SARKIN FULANI MALISA VS. AISHATU RUWA TUFARA

SARKIN FULANI MALISA VS. AISHATU RUWA TUFARA

IN THE COURT OF APPEAL

SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

ON THURSDAY, 30TH NOVEMBER, 2017

Appeal  No. CA/S/76S/2014

                                                                                                                                       Citation No.

Before Their Lordships:

HUSSEIN MUKHTAR JCA
M. L. SHU’AIBU JCA
FREDERICK O. OHO JCA

    

BETWEEN:

       SARKIN FULANI MALISA       (APPELLANT) 

     AND 

       AISHATU RUWA TUFARA         (RESPONDENT)

 


PRONOUNCEMENTS


A. COURT:

  1. Powers of Court to Raise  Issue(s) Suo Motu – Can a Court raise an issue suo motu and         determine it without hearing parties; effect thereto:

“The scenario in this case where the grounds of appeal at the Court below were completely unrelated to the issues raised at the Court below and the parties were not allowed to address the Court on the propriety or otherwise of appointment of the two mediators under Islamic Law, the judgment of the Court below on the opinion of foreign mediators is a denial of the right to fair hearing and renders the decision of the lower Court null and void. See A.G. LEVENTIS NIG. PLC. V. AKPU (2007) 6 S.C. (Pt. I) 239 at 265 – 267 lines 30-5 where it was held per Ogbuagu, JSC thus:
“This Court has in many decided cases, deprecated a Court raising a matter/point suo motu, without affording the parties the opportunity of addressing it on the matter/point as it amounts to a denial of fair hearing guaranteed in Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria now Section 36(1) of the 1999 Constitution. See the cases ofOdiase v. Agho  (J.S.C. (Reprint) 69 (1979) 1 ANLR (Pt. 1) 170; Alhaji Otapo v. Alhaji Sunmonu (1987) 2 NWLR (Pt. 58) 587 and recently, Mallam Mohammed v. Alhaji Mohammed (2005) ALL FWLR (Pt.275) 502 at 508, 516 citing other cases therein and Mrs. Fombo v. Rivers State Housing and Property Development Authority (2005) 5 SC (PT II) 102; (2005) 5 WSCNJ 213 also citing some other cases therein, just to mention but a few.” PER HUSSEIN MUKHTAR, JCA.

B. FAIR HEARING:

ii.  RIGHT TO FAIR HEARING-  Effect of Denial of the Right to Fair Hearing to a party in a proceeding.

It is also trite law that whenever right to fair hearing is denied to any party in any proceeding, it renders the whole proceedings null. See BAKOSHI V. CHIEF OF NAVAL STAFF [2004] 15 NWLR (Pt.896) 268 where it was held thus:
“It is a fundamental principle of the law that where there is a breach or denial of fair hearing, the entire proceedings are a nullity and a party thereby affected is entitled ex debito justitiae to have the proceedings set aside. See Dawodu v. Ologundudu (1986) 4NWLR (Pt. 33) 104; Ogundoyin v. Adeyemi (2001) 13NWLR (Pt. 703) 403 at page 422 Per EKPE, J.C.A. (P. 31) paras. F-G)” PER HUSSEIN MUKHTAR, JCA

C. INTERPRETATION OF STATUTES:

iii. Principles Guiding Interpretation of Status – where a statute provides for a particular method of carrying out a duty 

“In the instant case, it was the Court below that introduced the issue of reconciliation but derailed by not implementing the process according to tenets of Chapter 4 Verse 35 of the Glorious Qur’an. There is nothing from the record that shows compliance with the requirement of law as the mediators appointed by the Court below were neither related to the parties nor were they involved in picking them (the reconciliators), contrary to the plain provision of the Glorious Qur’an 4 verse 35. The non-compliance with the requirement of law renders the appointment of mediators inconsequential and any decision reached by the lower court based on the findings or advice of such faulty mediators is an error in law that necessitates the intervention of the Appellate Court. See ADHEKEGBA V. HON. MIN. OF DEFENCE (2013) LPELR-20154 (CA) where it was held

“It is an established principle of law that where a law provides for a procedure for doing an act, that procedure must be followed for the subsequent act to be valid. Thus, once there is a condition precedent to be adopted before an aggrieved party does an act, if that condition precedent is not satisfied, the act carried out will be regarded as invalid. Moreover, where the law prescribes the doing of a thing as a condition for the performance of another, failure to do such a thing renders the subsequent act void.“

It is settled law that where a statute provides for a particular method of carrying out a duty regulated by the statute that method and no other must be adopted and followed. The failure of the Court below to follow the law in Chapter 4 Verse 35 renders the reconciliation process void and gives a compelling ground for the resolution of issue one in favour of the Appellant. The first issue is so resolved” PER HUSSEIN MUKHTAR, JCA.

JUDGMENT DELIVERED BY HUSSEIN MUKHTAR, JCA

The Appellant was the Respondent before the Kebbi State Sharia Court of Appeal, Birnin Kebbi, while the Respondent was the Appellant. The Respondent sued the Appellant before the Sharia Court Masama for dissolution of marriage on the ground of non-conception and cruelty. The case was subsequently transferred to Upper Sharia Court Gwandu (herein referred to as ‘the trial court’), which heard and determined the case. The Respondent however succeeded only on ground of cruelty or maltreatment while the claim of non-conception was held to be insufficient to ground dissolution of marriage under Islamic Law. The Respondent was advised to return to her matrimonial home and admonished to be loyal to her husband.

Dissatisfied with the decision of the Upper Sharia Court Gwandu the Respondent/Plaintiff appealed to the Kebbi State Sharia Court of Appeal. The Court below however suo motu appointed two mediators without the consent of the parties and resolved the issue on the view of the mediators by dissolving the marriage.

Dissatisfied with the decision of the Court below the Appellant appealed to this Court on the following two grounds of appeal:

  1. The learned Kadis of Kebbi State Sharia Court of Appeal erred in law by appointing two (2) mediators when the condition precedent for their appointment has not been satisfied.

PARTICULARS

  • Whereas before two (2) mediators are appointed under Islamic Law to decide the fate of a marriage under Islamic law there must have been instituted several actions by the wife against the husband on the allegation of harm committed to her without proof.
  • Whereas the instant case is the first to be instituted against the appellant by the respondent which emanated from Sharia Court Masama transferred to Upper Sharia Court Gwandu and appealed to Sharia Court of Appeal Birnin Kebbi.
  • Whereas before a court appoints two (2) mediators who are not related to the parties, the parties must first be asked if they have any mediators from their respective sides. It is only where there is none, the strange mediators not related to the parties can be appointed by the court.
  • Whereas the learned Kadis of Sharia Court of Appeal Birnin Kebbi appointed two (2) mediators not related to the parties without their consent which causes serious miscarriage of justice against the appellant.
  1. The learned Kadis of Kebbi State Sharia Court of Appeal erred in Law when they suo mota resolved to appoint two (2) mediators on appeal without affording the parties an opportunity to address them on it when the issue of mediators was not part of the grounds of Appeal of the respondent before them.

PARTICULARS

  • Whereas under Islamic Law, a judge is not allowed to give a decision on an issue that is not raised before him and if he so desires to raise such issue and to give decision on same, the parties must be afforded an opportunity to address the court on same as contained in Tabsiratul Hukkam at page 319.
  • Whereas learned Kadis of Kebbi State Sharia Court of Appeal suo motu appointed two (2) mediators without affording parties an opportunity to address same before the court, and hence causes serious miscarriage of justice to the appellant.

From the foregoing two grounds of appeal, the Appellant distilled the following twin issues for determination:

  1. Whether the condition preceding to the appointment of mediators under Islamic Law has been fulfilled by the Lower Court warranting the Court to appoint and rely on the opinion of the mediators who are not related to either party. (Distilled from ground one).
  2. Whether the Lower Court was right to have ignored all the grounds of appeal placed before it by the Respondent and decide the instant case on the opinion of mediators appointed suo motu without affording parties the opportunity to address it before their appointment when none of the Respondent’s grounds of appeal touches on issue of appointment of mediators. (Distilled from ground two).

Arguing issue one, the Learned Counsel for the Appellant submitted that the appointment of two mediators by the court, who are unrelated to the parties and without any input from them, did not comply with the principles of mediation between husband and wife under Islamic law. See Ahkamul ahkam at P. 112 – 113 and also book titled “Tarjamatut-Tuhfatul Hakkam translated by Alhaji Usman Daura at pp. 16-17.

The learned Counsel for the Appellant however derailed from issue one by arguing on the condition to be fulfilled by a wife claiming divorce on ground of cruelty by the husband. This is totally unrelated to issue one that questions the propriety of mediation by persons appointed by the Court below without recourse to the parties in whose cause the mediators were appointed. The arguments canvassed in the Appellant’s brief on requirement of repeated unsuccessful actions by the wife claiming for dissolution of marriage on the ground of maltreatment by her husband is extraneous and accordingly hereby discountenanced.

The Court below commenting on the issue of mediation at page 15 lines 16 to 17observed thus:

“We appoint these mediators … but the issue proves abortive, because they did not do their assignment”.

The fact that the parties neither made an input in the appointment of the mediators apparently rendered the entire negotiation process otiose.

Allah says in Sura Al-Nisaa Verse 35:

وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِنْ أَهْلِهِ وَحَكَمًا مِنْ أَهْلِهَا إِنْ يُرِيدَا إِصْلَاحًا يُوَفِّقِ اللَّهُ بَيْنَهُمَا ۗ إِنَّ اللَّهَ كَانَ عَلِيمًا خَبِيرًا

Meaning: If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.

By this verse, it is clear that Islamic Mediation is an established process for resolving disagreements. The verse talks about the process of mediation in a family dispute based on the following principles:

  • The process must be fair to all parties with equal representation from each side.
  • The process needs collaborative problem solving between the disputing parties.
  • Every effort to aim for a ‘win/win’ situation which is acceptable to all parties.
  • A focus on the future, with emphasis on rebuilding relationships or recognizing that agreeing to disagree is also acceptable but in a civilized manner.
  • Respect for all concerned must be in the forefront of all discussions and dealings.
  • The past issues may be part of discussion with or without apportioning blame for what has happened in the past.
  • A belief that acknowledging feelings as well as facts allows participants to let go of their anger and move forward.
  • Re-affirming the belief that Allah is watching over everything.

Prophet Mohammad (PBUH) used to encourage and enable all parties to think on a common approach to resolve their issues that is beneficial to all including the families and the community at large. It is a step for both the husband and wife to look inwards for their own short comings and behavior in contributing to the issues and think about how they could put the situation right. It allows the parties to come up with their own practical solution which will benefit both sides and rebuild relationships as they work together to find a common ground for resolution in an agreement that is their own.

In the instant case, it was the Court below that introduced the issue of reconciliation but derailed by not implementing the process according to tenets of Chapter 4 Verse 35 of the Glorious Qur’an. There is nothing from the record that shows compliance with the requirement of law as the mediators appointed by the Court below were neither related to the parties nor were they involved in picking them (the reconciliators), contrary to the plain provision of the Glorious Qur’an 4 verse 35. The non-compliance with the requirement of law renders the appointment of mediators inconsequential and any decision reached by the lower court based on the findings or advice of such faulty mediators is an error in law that necessitates the intervention of the Appellate Court. See ADHEKEGBA V. HON. MIN. OF DEFENCE (2013) LPELR-20154 (CA) where it was held

“It is an established principle of law that where a law provides for a procedure for doing an act, that procedure must be followed for the subsequent act to be valid. Thus, once there is a condition precedent to be adopted before an aggrieved party does an act, if that condition precedent is not satisfied, the act carried out will be regarded as invalid. Moreover, where the law prescribes the doing of a thing as a condition for the performance of another, failure to do such a thing renders the subsequent act void.“

It is settled law that where a statute provides for a particular method of carrying out a duty regulated by the statute that method and no other must be adopted and followed. The failure of the Court below to follow the law in Chapter 4 Verse 35 renders the reconciliation process void and gives a compelling ground for the resolution of issue one in favour of the Appellant. The first issue is so resolved.

Issue Two:

On the second issue, it was submitted for the Appellant that the three grounds of appeal presented by the Respondent before the Lower Court did not relate to issue of appointment of mediators, which issue was not even before the trial Court. Moreover, none of the parties or their counsel was invited to address the court before the appointment notwithstanding an application in open court by the Appellant’s counsel on 13th February 2014 to be allowed to address the court but was flagrantly refused. It was further submitted for the Appellant that the denial of the right to address the Court by Counsel on the issue raised sua motu by the Court below was tantamount to denial of fair hearing and also contrary to the provision of Tabsiratul Hukkam Vol. 1 page 19 where the learned author states that:

“That a judge shall not adjudicate on what is not raised before him”.

The scenario in this case where the grounds of appeal at the Court below were completely unrelated to the issues raised at the Court below and the parties were not allowed to address the court on the propriety or otherwise of appointment of the two mediators under Islamic Law, the judgment of the court below on the opinion of foreign mediators is a denial of the right to fair hearing and renders the decision of the lower Court null and void. See A.G. LEVENTIS NIG. PLC. V. AKPU (2007) 6 S.C. (Pt. I) 239 at 265 – 267) lines 30-5 where it was held per Ogbuagu, JSC thus:

“This court has in many decided cases, deprecated a court raising a matter/point suo motu, without affording the parties the opportunity of addressing it on the matter/point as it amounts to a denial of fair hearing guaranteed in Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria now Section 36(1)of the 1999 Constitution. See the cases of Odiase v. Agbo J.S.C. (Reprint) 69 (1979) 1 ANLR (Pt. 1) 170; Alhajj Otapo v. Alhajj Sunmonu (1989) 2 NWLR (Pt. 58) 587 and recently, Mallam Mohammed v. Alhaji Mohammed (2005) ALL FWLR (Pt.275) 502 at 508, 516 citing other cases therein and Mrs. Fombo v. Rivers State Housing and Property Development Authority (2005) 5 SC (PT II) 102; (2005) 5 WSCNJ 213 also citing some other cases therein, just to mention but a few.”

It is also trite law that whenever right to fair hearing is denied to any party in any proceeding, it renders the whole proceedings null. See BAKOSHI V. CHIEF OF NAVAL STAFF [2004] 15 NWLR (Pt.896) 268 where it was held thus:

“It is a fundamental principle of the law that where there is a breach or denial of fair hearing, the entire proceedings are a nullity and a party thereby affected is entitled ex debito justitiae to have the proceedings set aside. See Dawodu v. Ologundudu (1986) 4NWLR (Pt. 33) 104; Ogundoyin v. Adeyemi (2001) 13NWLR (Pt. 703) 403 at page 422 Per EKPE, J.C.A. (P. 31) paras. F-G)

In the circumstances of this case, issue 2 is as well resolved in favour of the Appellant and against the Respondent. The appeal has merit and is accordingly allowed.

The null decision of the Court below delivered on 6th March 2014 has to be and same is hereby struck out. In the stead thereof, the appeal against the judgment of the Upper Sharia Court Gwandu in suit number USC/DG/CV/F1/54/2013 delivered on 29th July 2013 shall be reheard and determined by the Court below by another panel to be constituted by the Hon. Grand Kadi of Kebbi State.
The parties shall bear their respective costs.

M. L. SHUAIBU, JCA.: I have had the privilege of reading in advance the judgment of my learned brother, Hussein Mukhtar, JCA which has just been delivered. I entirely agree with his reasoning and conclusion. There is nothing I can usefully add.

F. O. OHO, JCA.: I had the opportunity of reading the draft of the Judgment of my learned Brother HUSSEIN MUKHTAR, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. Consequently, the judgment of the Court below delivered on 06-03-2014 is hereby set aside. In the stead thereof, the Appeal against the judgment of the Upper Sharia Court Gwandu shall be reheard and determined by the Court below by another panel to be constituted by the Hon. Grand Kadi of Kebbi State. The parties shall bear their respective costs.

Appearances:

G.A. Shehu Esq. For the Appellant

No Representation For the Respondent