ALIYU v. IDRIS (2022)

ALIYU v. IDRIS

(2022)LCN/16191(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/KN/279/S/2017

Before Our Lordships:

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

ABDULLAHI ALIYU APPELANT(S)

And

SALAMATU IDRIS RESPONDENT(S)

RATIO

THE ESSENCE OF A REPLY BRIEF

A reply brief is or should be a response to any new issue or point raised in the respondent’s brief. It is not a repair kit and should not be a re-argument or a repetition of the appellant’s brief. See N.P.A v. Aminu Ibrahim & Co. (2018) 12 NWLR (Pt. 1632) 62 (SC). PER TALBA, J.C.A.

WHETHER OR NOT IT IS MANDATROY FOR A JUDGE TO CONDUCT AL-LZAR BEFORE JUDGEMENT IN ISLAMIC LAW

The general rule is that it is mandatory on a judge to conduct Al-Izar before judgment. That is referred to as allocotus. Under English common law, Izar is a pre-judgment plea which gives the parties a final opportunity to go over their respective claims or ventilate their grounds before judgment. It is a condition precedent before judgment. but the exception here is that were HAKAMAIN are appointed the report of the Hakamain will be implemented by the Court without reference to the parties. The duties of Hakamain are stated in the case of Salamatu S. Wapanda v. Abubakar S. Wapanda (supra). PER TALBA, J.C.A.

THE PRINCIPLE OF AL-ZAR IN ISLAMIC LAW
Without much ado, from the record of appeal, it is crystal clear that the lower Court made an order for khul without conducting Al-Izar. In the case of Nasiru Alhaji Muhammadu v. Haruna 6 NWLR (Pt. 708) 104, the Court of Appeal held thus:
“The principle of Al-Izar in Islamic Law is like allocotus in English criminal justice which must be conducted before an accused person is sentenced before and or conducting. “Al-Izar” in Islamic Law goes beyond that. It is so fundamental that failure of the Court to apply it at an appropriate time would make the decision of that Court a nullity. It must be applied clearly before the decision or judgment. It enables each party to go over or ventilate its own case so that no party should say in future that he was not allowed to present his case by the Court.”
See Wangara v. Tsamiya Kara (2006) 3 SLR 16 and Suleiman v. Isyaku & 2 Ors (unreported) CA/K.1426/86, Hakimin Boyi Umar v. Aisha Bakoshi (2006) 3 SLR (Pt. 1).
The procedure is a condition precedent to judgment. Where a proceeding of a Court is lacking of this fundamental procedure, the judgment is a nullity and liable to be set aside. See Ihkamul Ahkam short commentary on Tuhfahul Ahfam page 24. The failure of the lower Court to conduct Al-Izar has rendered its proceedings and judgment a nullity and same is liable to be set aside. Issue two is resolved in favour of the appellant. PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Sharia Court of Appeal Jigawa State (hereinafter referred to as lower Court) delivered on 21st of November, 2016 in suit No: SCA/JG/CVA/30/2016.

The crux of the matter is that the appellant and the Respondent were married couples. The respondent instituted an action before the Upper Sharia Court Birniwa (hereinafter referred to as trial Court). The respondent claim at the trial Court is for the confirmation of the divorce made by the appellant, which the appellant refused to give her the divorce paper/document on the grounds that he has revoked the divorce. The respondent was represented by a counsel at the trial Court by name Bar Ibrahim Salisu. The counsel further explained that the respondent is seeking for divorce on the grounds of suffering in the hands of the appellant, i.e maltreatment. After hearing the trial Court granted a divorce to the respondent. Being aggrieved by the decision of the trial Court the appellant appealed to the lower Court. And after hearing the appeal, the lower Court, granted divorce by way of “KHUL’I”, the respondent is to pay back to the appellant his dowry the sum of N20,000.00, pursuant to Order 9 Cap S.5 Sharia Court of Appeal Rules 2012 (as amended). Further aggrieved by the decision of the lower Court, the appellant appealed to this Court vide a notice of appeal filed on 17/2/17 containing six (6) grounds of appeal.

At the hearing of the appeal on 23rd of February, 2022 S. G. Muhammad of counsel adopted the appellant’s brief of argument filed on 22/6/17 and it was deemed on 8/3/2021. And the reply brief filed on 8/3/21 and it was deemed on same date 8/3/2021. He urge the Court to allow the appeal with cost. Ibrahim Aliyu Nasarawa of counsel adopted the respondent’s brief of argument filed on 1/2/17 and it was deemed on 8/3/21. He urge the Court to dismiss the appeal and affirm the decision of the lower Court.

From the six (6) grounds of appeal, the appellant distilled two issues for determination thus:
(1) Whether the lower Court ought to have set aside the decision of the trial Court.
(2) Whether the lower Court was right to order for Khul in the circumstance of this case.

The respondent adopted the issues submitted by the appellant. I also adopt the issues for the determination of this appeal. While submitting on issue one the appellant’s counsel contended that where the judgment of the trial Court is inherently beyond repairs the appellate Sharia Court of Appeal of Jigawa State ought to set it aside. There are two fundamental issues upon which the lower Court ought to have set aside the judgment of the trial Court. Firstly, the respondent sued the appellant for order of judicial decree. For such order to be granted the respondent has a duty to prove harm in accordance with Sharia. He referred to the book Mukhtasar Khalil 1/116 which provides thus:
(Arabic citation)
“And she has right to divorce where there is harm, even if not witnessed, once it persisted, but they should resolve their dispute. When it is impracticable; if it is the husband at fault they should be separated without khul and vice-versa.”

The nature of the harm which may warrant grant of order for judicial decree is explained in the book Mauhal-Jalil, Sharb Mukhtasar Khalil thus:
(Arabic citation)
“E.g. to stop talking to her or forsake her on bed.”

Learned counsel submitted that harm was not proved but yet the trial Court granted the respondent order for judicial decree.

Secondly, the trial Court failed to conduct AL-IZAR which was one of the reasons the appellant appealed to the lower Court and the lower Court mentioned it in its judgment at page 78 of the printed record. But the lower Court did not address the issue. The lower Court equally failed to conduct AL-IZAR before making its order for Khul. Learned counsel referred to Tuhfah al-Hukkam where it is stated thus:-
(Arabic citation)
“The last excuse is allowed litigants before judgment in the presence of two unimpeachable witnesses. This is the chosen view.”

This is explained in Al-Bahjah Fiy Sharh Al-Tuhfah 1/107 thus:
(Arabic citation)
“That it is mandatory on the Kadi to conduct al-Izar before judgment by saying to the party against whom judgment is being entered: do you have cause to show (why judgment should not be entered against you) or: do you have cause to show why you should be excused”
(Arabic citation)
…So it is adducible that a judgment without al-Izar as explained is a nullity. It is so because it is a condition precedent for its validity in the School (Maliki).”

Learned counsel relied on the case of Muhammadu v. Secretary & Anor (2013) 1 SCLR (Pt. 111) 44 at 58 para D where this Court reiterated the effect of failure to conduct AL-IZAR before entering judgment thus:
“In Sharia AL-Izar is so fundamental that failure of the Court to apply it at an appropriate time would make the decision of that Court a nullity. It must be applied clearly before the decision or judgment.”

Learned counsel submitted further that the dissolution of marriage by judicial process without conducting Al-Izar, the dissolution is a nullity. He relied on the book of Al-Bahjah Fiy Sharh al-Tuhfah 1/487, its stated thus:
(Arabic citation)
“If the wife proved harm (by calling witnesses) and divorced self and the husband traced the witnesses after divorce and say, impeached them the divorce is a nullity. Similarly (the divorce is a nullity) if a Khadi divorced (a woman) before conducting al-Izar, Allah knows best.”

Learned counsel submitted that neither the trial Court not the lower Court conducted Al-Izar before entering judgment. The lower Court was wrong when it refused to set aside the decision of the trial Court. And the lower Court was wrong to order for Khul without conducting Al-Izar.

In response to issue one, the respondent counsel submitted that the lower Court amend judgments and orders of Sharia Courts in Jigawa State due to error or mistake by the inferior Courts. The learned counsel referred to the case of Balaraba Mazadu v. Sule A. Garba & 5 Ors (2006) 3 S.L.R (Pt. 1) 21 at 32 and Order 9 of Jigawa State Sharia Court of Appeal Rules 2012, earlier referred to by appellants counsel. The respondent’s counsel submitted that the respondent sued the appellant seeking for Judicial decree, the respondent having discharged the burden on her of proving her claim of harm meted on her by the appellant, the trial Court granted her a divorce. The learned counsel relied on the authority of MANH AL-JALIL, SHARH MUKHTASAR KHALIL earlier cited by the appellant’s counsel. The learned counsel also referred to page 32 of the trial Courts record (Hausa version) whereby the appellant admitted that he talked to two of the witnesses not to appear in Court in order to testify, when the complaint was made by the respondent that the appellant forced her witnesses not to appear to testify on her behalf in support of her claim. Learned counsel submitted that the actions of the appellant is a clear case of harm under Islamic Law which can justify the Court to terminate the couple’s marriage. These include:
1. The appellant accused the respondent of having an affair with someone called Auwalu.
2. The appellant entered into the respondents family house and engaged in fighting with one of the members of her family, which action caused serious disturbance and harm to the mother of the respondent as well as her sister. The respondent produced witnesses to that incident and the appellant was unable to impeach the testimonies of those witnesses.
3. The appellant admitted that he posted the case of the respondent on facebook.

Learned counsel submitted that the lower Court was right in exercising its powers by applying the rules to amend the decision of the trial Court. On the issue of Izar, the learned counsel submitted that in cases of this nature Izar does not arise. He referred to the involvement of HAKAMAIN. He submitted that once HAKAMAIN were assigned to resolve a dispute between the couples, their duties are clearly stated in the case of Salamatu S. Wapanda v. Abubakar S. Wapanda (2014) SQLR Vol. 2 (Pt. 111) P. 389 Ratio 5 these are:
1. To invite spouse to their session and hear each one
2. To try to reconcile between the couple (Suth)
3. To advise and warn the one in fault or both
4. If the defaulter is the husband, separate the marriage
5. If the wife is the defaulter she should be made to pay Khul’i to redeem her freedom from the marriage tie.

Whatever the outcome of the decision of HAKAMAIN, it is to be executed and no excuses shall be entertained from the couples. The learned counsel submitted that the application of the principle of Al-Izar does not apply to this case hence it involved HAKAMAIN. Two members each from the side of the appellant and the respondent were involved. The two members from the side of the appellant reported to the Court that there is nothing that can be done except for the respondent to go back to her matrimonial home. And if there is a mistake from the husband he should be told to correct his mistake. And since the two HAKAMAIN from the side of the appellant are of the view that the appellant should be told to correct his mistake by this piece of evidence, it is enough for the Court to invoke the rule in WAPANDA’S case and dissolve the marriage without conducting Izar.

I have read the reply brief filed by the appellant and my observation is that it is a re-argument of the appellant’s brief. It does not conform with Order 19 Rule 5(1) of the Court of Appeal Rules 2021. A reply brief is or should be a response to any new issue or point raised in the respondent’s brief. It is not a repair kit and should not be a re-argument or a repetition of the appellant’s brief. See N.P.A v. Aminu Ibrahim & Co. (2018) 12 NWLR (Pt. 1632) 62 (SC).

The main contention of the appellant is that the lower Court should have set aside the decision of the trial Court because the trial Court failed to conduct Al-Izar and the respondent did not prove harm in accordance with the provisions of sharia, yet the trial Court granted an order for judicial decree. On the issue of harm the learned appellants counsel relied on the authority of the book Mukhtasar Khalil 1/116 (supra) where it is stated that a wife has a right to divorce where there is harm, even if not witnesses, once it persisted but they should resolve their dispute. When it is impracticable; if it is the husband at fault they should be separated without Khul and vice-versa. However, the learned counsel has a restricted view of the nature of the harm which may warrant the grant of order for judicial decree, e.g to stop talking to the wife or forsake her on bed. He also relied on Manh Al-Jalil, Sharh Mukhtasar Khalil (Supra). The general ground of divorce under sharia law is the failure or inability of one or both parties to discharge their marital duties and to consort with each other in kindness, peace and compassion. Certain situations peculiar to the husband’s position will justify the grant of Judicial decree, i.e. long absence without knowing the where about of the husband, long imprisonment, refusal to provide for the wife, severe poverty, impotence, chronic disease, assault and even physiological trauma, the list is endless.

In this instant case, the trial Court found that the respondent proved maltreatment by the appellant. At pages 63-64 of the record of appeal, the judgment of the trial Court English version it reads thus:
“…Base on this, this Court proved the existence of maltreatment from defendant to the plaintiff as follows
(1) by entering plaintiff’s house and disturbed their peace by fighting is amount to cheating as proved above by the witnesses and the witness may either be male or female, house maid or neighbour to proved that as said by Malam Ibn Salam in Hulal Ma’aseem page 184.
(2) making calls to witnesses to show them what he want them to tell Court is injustice and bring justice delay which amount to cheating against the plaintiff.
Base on these reasons is enough Court to relied and proved maltreatment by the defendant to plaintiff…”

There is no appeal against this findings of the trial Court and therefore it is wrong for the appellant’s counsel to contend that harm was not proved. The second issue has to do with the failure of the trial Court to conduct Al-Izar. It is trite law that in every general rule there is an exception. The general rule is that it is mandatory on a judge to conduct Al-Izar before judgment. That is referred to as allocotus. Under English common law, Izar is a pre-judgment plea which gives the parties a final opportunity to go over their respective claims or ventilate their grounds before judgment. It is a condition precedent before judgment. but the exception here is that were HAKAMAIN are appointed the report of the Hakamain will be implemented by the Court without reference to the parties. The duties of Hakamain are stated in the case of Salamatu S. Wapanda v. Abubakar S. Wapanda (supra). After the report of Hakamain the trial Court proceeded to grant a judicial decree. The lower Court was right not to have set aside the decision of the trial Court hence the trial Court found that harm or maltreatment was proved by the respondent. And the trial Court involved or rather appointed Hakimain before the Court granted a judicial decree. The first issue is resolved against the appellant.

The second issue is whether the lower Court was right to order for khul in the circumstance of this case. I must commend both counsel for their ingenious argument on this issue. Without much ado, from the record of appeal, it is crystal clear that the lower Court made an order for khul without conducting Al-Izar. In the case of Nasiru Alhaji Muhammadu v. Haruna 6 NWLR (Pt. 708) 104, the Court of Appeal held thus:
“The principle of Al-Izar in Islamic Law is like allocotus in English criminal justice which must be conducted before an accused person is sentenced before and or conducting. “Al-Izar” in Islamic Law goes beyond that. It is so fundamental that failure of the Court to apply it at an appropriate time would make the decision of that Court a nullity. It must be applied clearly before the decision or judgment. It enables each party to go over or ventilate its own case so that no party should say in future that he was not allowed to present his case by the Court.”
See Wangara v. Tsamiya Kara (2006) 3 SLR 16 and Suleiman v. Isyaku & 2 Ors (unreported) CA/K.1426/86, Hakimin Boyi Umar v. Aisha Bakoshi (2006) 3 SLR (Pt. 1).
The procedure is a condition precedent to judgment. Where a proceeding of a Court is lacking of this fundamental procedure, the judgment is a nullity and liable to be set aside. See Ihkamul Ahkam short commentary on Tuhfahul Ahfam page 24. The failure of the lower Court to conduct Al-Izar has rendered its proceedings and judgment a nullity and same is liable to be set aside. Issue two is resolved in favour of the appellant.

Accordingly, the judgment of the Sharia Court of Appeal Jigawa State delivered on 21st of November, 2016 is hereby set aside. The appeal succeeds in part. Appeal is allowed.

MOHAMMED DANJUMA, J.C.A.: I have the privilege of reading in draft, the lead judgment of my learned brother, A. M. TALBA JCA. I agree with the reasoning and conclusion that the appeal succeeds in part and is hereby allowed.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother, A. M. TALBA, JCA obliged me with a draft of the leading judgment delivered in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I have nothing more to add. I abide by the conclusion reached therein.