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By : Abdulrasheed Ibrahim, LL.M, Notary Public

After the debut of my previous article titled: COURT MARRIAGE AND MUSLIM MARRIAGE: REVISITING THE CASE OF MUHAMMED Vs. MUHAMMED wherein I absolutely agreed with a recent decision of the Kwara State Sharia Court of Appeal (KWSCA) sitting in Ilorin, my attention was drawn to a decision of the Supreme Court in the case of AYORINDE Vs. KUFORIJI (2022) LPELR – 56600 (SC) delivered on 7th January 2022 setting aside the concurrent decisions the Court of Appeal and the Oyo State High Court both sitting in Ibadan in favour of the Appellants. When I earlier saw some of the ratios of the judgment as posted on a whatsapp platform, I immediately picked interest in reading the full judgment with a view to see if I could change my position. When it was again re-posted on another platform, I made the following remarks:

“Thanks for sharing this. I have almost finished reading the judgment and I am of the view that the facts in this case are different from the facts in the case of Muhammed Vs. Muhammed. For one case to be applicable to the other, the facts in both must be very similar. I have told those that sent this to me to do a rebuttal to my position so that I can pick it up from there. I have equally asked them to go to the Court of Appeal to test the KWSCA’s decision so that we can have certainty of law on that issue. Former CJN , Uwais said that it would be an act of laziness on the part of lawyers to read and rely on mere ratios of judgement rather than reading it entirely.”

As a said before, the best place to test the decision of a court is at the appellate court superior to that court, but I continue to wonder why some of our colleagues that disagreed with the said decision have refused to go on appeal so that we can have certainty on the issue at stake. One of the aims of every legal practitioner in litigation practice should be to develop our law and jurisprudence in areas where the law is not settled or the law is recondite. Most of the grounds and arguments being canvassed by them against the decision will be very useful at the Court of Appeal if they dare challenge the decision. It will not be proper and appropriate for our colleagues continue writing legal opinions as if they are sitting on appeal on the decision of the KWSCA. In my critique about two years ago on the Supreme Court’s judgment involving the former Governor Abia State, Senator Orji Uzor Kalu, now reported as UDEOGU Vs. FGN (2022) 3 NWLR (Pt. 1816) Pg. 41, I observed as following :

“The attempt here is not sit on appeal on the judgment delivered by the Supreme Court as I lack the capacity to do that. Since the Supreme Court is the apex court in the land, its decision is final and cannot be appealed against. It remains the law and binding. Despite the finality of the Supreme Court judgment, I do not think there is any law that precludes lawyers from expressing opinions, criticising or even ask questions on a judgment of the court after it has been delivered.”

The above observation may not be totally applicable to other courts below the Supreme Court because if you are aggrieved by a decision of the Court of Appeal, you can proceed to the Supreme Court to ventilate your grievance the same way you can proceed to the Court of Appeal if you are aggrieved by a decision of an High Court or other Courts of its coordinate jurisdiction. As if taking up my earlier challenge to write a rebuttal to my previous article on this issue, though not directly, the Editor in Chief of the Sharia Law Report has come up with a legal opinion signed and dated 22nd September 2022 also disagreeing with the same decision of the KWSCA.

A careful reading of the said legal opinion will reveal that like other previous critiques of the decision, it equally fell into the error of dwelling into the substance of the case rather than addressing the preliminary point argued before and ruled upon by the KWSCA. The learned Editor-in-Chief (EIC) argued his legal opinion as if KWSCA by its decision had disinherited the Respondents, whereas the main question before the KWSCA was whether based on the all facts placed before the Upper Area Court, it has the competence to assume jurisdiction on the case. Uncontroverted court processes were placed before the KWSCA to show that a similar case in terms of claims and parties was already instituted and pending before the High Court of Kwara State. The EIC in his legal opinion stated as follows:

“On the issue of jurisdiction, it is constitutional that the Sharia Court of Appeal has jurisdiction to determine the issue of inheritance of the estate of Major Muhammed Adeniyi, having died as a Muslim under Section 277(2) (c) of the 1999 Constitution (as) amended. This is applicable to all states that have Sharia Court of Appeal. It reads inter alia : (c) any question of Islamic Personal law regarding a wakf, gift, will or succession where the endower, donor, testator or DECEASED PERSONS is a Muslim; As we have seen that the Sharia Court of Appeal has the jurisdiction and, by extension, the Upper Area Court. This is because appeal lies from the Upper Area Court to the Sharia Court of Appeal on matter of Islamic Personal Law.”

While there is no contending the fact that the Sharia Court of Appeal (SCA) is a creation of the Constitution which assigns to it a limited and appellate jurisdiction on what it calls “Islamic Personal Law”, the court can only exercise that appellate but not original jurisdiction on those areas assign to it. SCA as a superior court of record cannot usurp the original jurisdiction of the Upper Area Court but only has to wait to exercise its appellate jurisdiction on any decision of the Upper Area Court appealed against that falls within the scope of the Islamic Personal Law assigns to it by the Constitution. If by his above assertion, the EIC had expected the KWSCA to usurp the original jurisdiction of Upper Area Court after it had dismissed the preliminary objection contesting its (UAC) jurisdiction to entertain the case based on all the facts before it, that would have been suicidal for the KWSCA if it had assumed jurisdiction on the merit of that case. Whatever decision it must have arrived at in that circumstance will not survive the bombardment of the Court of Appeal, if it is appealed against. The EIC in his legal opinion cited some case authorities that are to some extent grossly misconceived. For instance at a point, he stated that:

“In Tarana V. Musa & 7 Ors, Retired Justice Massoud Abdulrahman Oredola , JCA, sounded a note of warning that Sharia is different from common law principles and common law principles cannot be used to expound or adumbrate Sharia or Islamic law. He said: The Sharia appellate bench /panel of this Court has cause to reiterate and emphasize in numerous cases, that in matters where the parties are Muslims and they institute their claim in a court where Islamic law is the applicable law, then the court will be obliged to apply Islamic law, practice and procedure in determining the matter placed before it by the parties…..”

The question that becomes necessary and needs to be answered by the EIC from his above assertion is that, if the case cited above is applicable to the PARTIES THAT ARE MUSLIMS as clearly stated, then which LAW, PRACTICE AND PROCEDURE will be applicable to the parties that are not both or all Muslims as in the case of Muhammed Vs. Muhammed which the KWSCA ruled on? In my previous article on this issue, I made the following observations:

“On the deceased in the present case that earlier married under the Marriage Act and by so doing submitted to the English Common Law principles, if he had written a Will under the English Law wherein he shared his estate among all his beneficiaries, I do not think that his earlier Marriage under the Act can disentitle those his beneficiaries from taking what he has given to all the beneficiaries. But the situation on the ground now is that the deceased died without writing a Will under the English Common Law under which he contracted a marriage under the Act with the first wife who is now claiming with her child or children to be entitled to all the estate of the deceased to the exclusion of other children of the deceased. This is where the court that will hear the merit of the case will be expected to do substantial justice as Section 42 (1) (2) of the Constitution must come in. Will those other children or other members of the family of deceased be entitled or disentitled to share from his estate? As I have said earlier this is where serious legal firework will be required from those that will be involved in the legal battle before the court. This is a case where the potency of the Matrimonial Causes Act, Child’s Right Act, Administration of Estate Law and the Constitution of the Federal Republic of Nigeria will be tested. That is why I said earlier that this is going to be a very interesting case for the development of our law and jurisprudence. Since the case is still pending before the court that will hear it on merit, I will not want to go beyond this boundary.”

I made this observation under the impression I got from the decision of KWSCA that court processes of the matter pending before the Kwara State High Court, Ilorin Division formed part of the record before the KWSCA upon which it ruled that there was an abuse of court process. My expectation was that after the KWSCA’s decision (Ruling) on the appeal, the parties would return to the High Court for the proper trial of the case on merit. But from my later findings, I was very surprised to learn that the case had been withdrawn by the Claimants and same struck out by the High Court of Kwara State. As to the questions of at what stage was the case at the High Court withdrawn and whether the withdrawal was brought to the attention of the KWSCA are the questions that can be answered by the parties to dispute!

As I have submitted earlier and contrary to the views of some of our colleagues, the KWSCA did not go into the merit of the case, talk less of disinheriting any of the parties as being wrongly canvassed by some people. KWSCA only exercised its appellate jurisdiction on the appeal filed by the Appellants against the dismissal of their preliminary objection by the Upper Area Court despite the available facts put before it. It is very amazing that while the EIC condemned the view expressed by S.A. Giwa on the status of Registry Marriage and Islamic Law Marriage, he at the same time agreed with the position of Hon. Justice Ambali that “Muslims who contract their marriage under the Marriage Act have unconsciously created some complications. It is true that Marriage under the Acts can create complications”. The learned EIC tactically avoid explaining some of those complications the Learned Jurist was referring to. I make bold to say that one of those complications is the present one created by the late Major Adeniyi Muhammed that brought about this controversy.

The Marriage under the Act is not meant for a submissive Muslim man that knows for sure that he cannot be contented with only one wife. Even the principle upon which the Marriage under the Act is premised negates some verses of the Holy Quran that enjoin believing Muslims not to make promises they know they cannot fulfil. Is a Muslim man that enters into a marriage under the Act not saying he would not marry another wife apart from the one he marries under the Act? Having done that and thereafter come to marry many wives under Islam, can it be said that he has not violated that injunction of the Holy Quran? A Muslim that really believes in Islam must submit to it absolutely and wholeheartedly. The careless attitude and conduct of the deceased while alive was one of the complications the learned Hon. Justice Hambali was referring to and therefore other Muslim men must learn great lesson from this complication. The EIC having condemned S.A. Giwa for “the wrong assumption that Customary law includes Islamic law” proceeded further to prove a point :

“Because of the manifest injustice in the Statutory Marriage and giving it superiority over customary marriage, the Supreme Court recently held that the fact that the deceased had a statutory marriage before marrying other wives does not automatically exclude the application of customary law in the case of the Ayorinde Vs. Kuforiji, Ejembi Eko , JSC held: The personal law of an intestate which determines inheritance of his property by his direct beneficiaries depends on the circumstances of each case. There is no hard and fast rule that the children born out of wedlock to a man married under the Act but who lived his life as a polygamist must be deprived of inheritance; nor that customary law does not govern the distribution of same after it has vested in relations such as appellant in the instant case .The sub-beneficiaries will distribute accordingly to the applicable personal law be it English or customary.”

The above assertion has justified my point that those opposed to the decision of the KWSCA fell into error by their thinking that the court had determined the merit of the case that came before it on appeal from the Upper Area Court and therefore had disinherited the Respondents. This contention only becomes relevant if the KWSCA had entered into the merit of the case which it has no original jurisdiction to dwell into. Even the sets of facts in the said case of AYORINDE Vs KUFORIJI are not similar to the facts in case of MUHAMMED Vs. MUHAMMED. Or is the EIC saying that the principle in this new case has legalized the action of the late Major Adeniyi Muhammed? Unlike in the case of Muhammed Vs Muhammed where the late Major contracted his first Marriage under the Act but without legally dissolving that when ahead to marry more wives under the Islamic Law , there was nothing of such in the case of Ayorinde Vs Kuforiji because the late Rev. (Dr. ) James Tanimola Ayorinde whose land was in contention, married to only Mrs Ayorinde under the Marriage Act with whom he lived throughout his life and were not blessed with any biological child. Mr. Olufemi Ayorinde who was one of the Appellants in that case was his nephew who lived with late Rev. (Dr.) J.T. Ayorinde and his wife, Mrs. Ayorinde during their lifetime. After the death and burial of Mrs. Ayorinde, the Respondents went forcefully into the land in dispute with over 40 hefty men suspected to be thugs, to damage the gates , the poultry farm that had long been put in place by Mr. Olufemi Ayorinde ,the nephew to the late Rev. (Dr. ) James Tanimola Ayorinde .One of the issues that came up before the courts and fought up to the Supreme Court relates to the question of : Who are the persons entitled to inherit the properties of a person that dies without biological children?The learned EIC deliberately ignored the proper understanding of the wordings “…DEPENDS ON THE CIRCUMSTANCES OF EACH CASE. THERE IS NO HARD AND FAST RULE …” as contained the above pronouncement of Hon. Justice Eko, JSC (retired) being relied on. For the sake of being grossly misunderstood, I must state here clearly that it is never my position that under the common law principles any child can be disinherited or be discriminated against by the circumstance of his or her birth. Section 42 (1)(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is very clear on this point. As long as the father does not or did not deny the paternity of such child ,he or she remains the child of that father. It is again necessary to put forward this question: Is the case of Ayorinde Vs. Kuforiji an appropriate authority for the case of Muhammed Vs. Muhammed in controversy? My answer is capital NO because the facts in both cases are not similar. For a particular case to be an authority for the other, the facts in both must be very similar.

In the case of BUHARI & ORS Vs. OBASANJO & ORS (2003) LPELR 813 (SC), NIKI TOBI JSC stated clearly :

“A statement by a Judge, either by way of a ratio decidendi or an obiter dictum is determined in the context of the facts of the case before the Court. A ratio or an obiter cannot be determined outside the facts of the case or in vacuo. And in that exercise, a Court will be able to determine whether what the Judge said is a ratio or a dictum. While a ratio of a superior Court is binding, an obiter of a superior Court is generally not binding on inferior Courts. An obiter of the Supreme Court is not binding on that court. The only binding pronouncement is the ratio.”

BELGORE, JSC (later CJN) adding his own voice in the same case held : “Those who are familiar with the doctrine of obiter dicta will know their limit in jurisprudence. They are not conclusive authority; they are to be regarded as statements by the way. They arise when a Judge thinks it is desirable to express opinion on some points, though not in issue or necessary to the case before him; this makes obiter dicta not to have a binding effect or weight on the case.”

While I do not want to share the sentiment of our colleagues that are asking whether this issue is : “A watershed victory for Islam and its Islamic Law or for Common Law and its Statutory Marriage System?, I strongly believe that the doors of the Court of Appeal and that of the Supreme Court are widely opened for them to test the decision of the Kwara State Court of Appeal they considered wrong and erroneous. As a student of knowledge and research, I believe people need to be advised to stop attributing the failure of Muslims to do the right things as failure or defeat of Islam. They should always use Islam to judge Muslims rather than using Muslims to judge Islam. Islam as a divine system cannot suffer any defeat as its victory has already been prophesised and codified in the Holy Quran. See Chapter 61 Verses 8-9. Therefore, I rest my case!

NOTE: Anyone is at liberty to disagree with my above submissions as I will surely appreciate a balanced, fair and objective rebuttal.

08055476823, 08164683735

30th September 2022

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