ADAMU v. ABDURAHMAN (2020)

ADAMU v. ABDURAHMAN

(2020)LCN/14559(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, August 31, 2020

CA/A/132/S/2019

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

KHADIJAH ADAMU APPELANT(S)

And

SIRAJO ABDURAHMAN RESPONDENT(S)

RATIO

WHAT IS THE LAW IN REGARDS TO CUSTODY OF CHILDREN

The fundamental question I wish to raise is what is the law with regards to Hadanah (custody of children)? It is that the mother is entitled to the custody of her male child until he reaches the age of puberty, and her female child until after the consummation of her marriage. See DASUQI, HASBIYAT AL-DASUQI: VOL II PAGE 526; MUDAWWAMAN AL-KUBRA VOL III P. 356. This right that is conferred on the mother continues even after she is divorced by the father of the child, unless she marries another husband in which case she will lose the right. In this case, the Appellant though divorced by the Respondent unilaterally, had not married a second husband.
It should be noted that the father is the primary and natural guardian of his minor children and the right of custody of the mother and the female relation mentioned in the hierarchical order stipulated under the Sharia is subject to the supervision of the father which he is duly entitled to exercise by virtue of guardianship.
In the case where a mother is for any reason disqualified from taking custody of her children, then the following women will take her place accordingly:
1. Mother, whether Muslim or a kitabis;
2. Mother’s mother how high so ever;
3. Maternal aunt;
4. The mother maternal aunt;
5. The father’s mother
6. The father paternal aunt;
7. The child’s sister
8. The father’s executor;
9. Anyone appointed by the Court;
10. The child’s brothers, uncles and paternal grandfather.
The above represents the hierarchical order of precedent regarding the right of custody of a child in Sharia. It appears that the Court below did not follow the above order of precedent in its judgment, the subject matter of this appeal, so that even if it was right in denying the Appellant custody of the children, it could not disregard the above order regarding custody in making its final orders/judgment. See generally MALIKI LAW MUKHTASAR OF SIDI KHALIL BY F.H. RUXTON PAGE 155; MAIDALA VS. MUAZU (2015) 3 SQLR (PT1) 126; ALABI VS. ALABI (2008) ALL FWLR (PT418) 245; JADI VS. ADI (2014) 2 SQLR (PTIV) 637; JEMILAT VS. TAIWO (2014) 2 SQLR (PTII) 313.
The Sharia is clear that the person entrusted with the custody of a child must possess the following attributes:-
1. He or she must be in full possession of his or her senses/faculties;
2. He or she must be an adult and sane;
3. Must be able to look after the child i.e. not too old according to the majority opinion;
4. Must live in a place where the child in his or her charge may remain absolutely free from seduction, licentiousness or loss of property;
5. Must be free from all immorality or vice, and from all infectious diseases; and
6. Must be honest in all his/her dealings with the child’s property
See DASUQI, HASBIYAT AL-DASUQI VOL II, PP 528 – 530.
There is nothing in the record to show that the Appellant herein does not possess the necessary attributes to enable her to be entrusted with the custody of the children herein.
It must be mentioned that although a man may be entrusted with the custody of a child, it must however be ascertained that he has a family capable of taking care of the child. The Respondent herein is divorced; there is nothing in the record to show that he indeed has a family that is capable of taking care of the children, especially the minors.
There is no doubt that a mother who is otherwise entitled to the custody of a child shall lose the right of custody in the following instances:-
1. If she marries a person not related to the child within the prohibited degrees. In this case, there is no such evidence against the Appellant before the Court.
2. If she goes and resides during the subsistence of the marriage at a distance from the father’s place of residence. In this case, there is no evidence from the record that during the subsistence of the marriage, the Appellant herein went to reside at a distance from the father’s (Respondent) place of residence.
By the clear provision of Al-Bahja commentaries on Tuhfatul Hukkam by Abul Hassan Aliyu Bn Abdulsalam Attasuuly Vol. 1 page 649, it made a distinction between (Safr) travelling for business or livelihood, and (Intiqal) that is permanent relocation.
In the case of (Safr) travelling for livelihood, the mother of the children is not obliged to relocate to the new location of the children’s father.
In the instant case, the relocation, from the record of appeal is for livelihood, and not a permanent relocation. It is undeniable that the world today is a global village whereby a mere relocation in search of livelihood cannot be enough reason for the mother who is generally saddled with the responsibility of custody to loose such right.
The words Safr Naqlatun and Inqita’a have been interpreted by Dr Mohammed Bashir Al – Shagfah in his book, AL Fiqhul Maliki Fisaubifi Al Jadid Vol. 14 PAGE 587 as follows:
‘’Travelling for the purpose of relocation and cutting off is to travel from the Balad where someone is residing to a different Balad to reside and settle down there’’ PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Upper Sharia Court Bida to the Niger State Sharia Court of Appeal and now to this Court. It borders on issue of custody of children, involving the Respondent herein as the Plaintiff at the lower Court, and the Appellant herein as the Defendant.

The presiding judge Honourable Mallam Jibrin Alhaji Usman via a judgment delivered on the 19th September, 2017 granted custody of the Appellant’s children to the Respondent. The Appellant dissatisfied with the decision appealed to the Sharia Court of Appeal Niger State wherein the decision of the trial Upper Sharia Court Bida was affirmed. The Appellant further dissatisfied with the decision appealed to this Court.

The simple facts of the case are that:-
(a) The Appellant and the Respondent were husband and wife and both lived in Bida, Niger State. The marriage was blessed with four children namely: AISHA 17 years, ABDULKARIM 14 years, ABDULLAHI 11 years and ADAMU 8 years. In July 2016, the marriage between the Appellant and the Respondent was terminated via a unilateral divorce by the Respondent.

(b) On the 24th July, 2017, the Respondent (as the Plaintiff) filed a civil suit against the Appellant (as the Defendant) at the Upper Sharia Court Bida (herein referred to as the Trial Court) seeking the Court to order the Respondent to vacate his house and to give him custody of his children (according to him) for proper upbringing.
(c) The trial Court disqualified the Appellant and denied her right to custody of her four children on the other hand; the Court gave custody of the four children to the Respondent who left Bida, Niger State with them to his new place of work at Kebbi State.
(d) The Appellant dissatisfied with the decision of the trial Court, appealed to the lower Sharia Court of Appeal Niger State where the decision of the trial Court was affirmed. The Appellant further dissatisfied with the decision of the lower Court filed this appeal.

In the Appellant’s brief of argument, 2 (two) issues were distilled as follows:-
(a) Whether in the circumstances of this case the lower Court was right in denying the Appellant her right of custody to her four children. (Distilled from grounds 1 and 3)
(b) Whether the lower Court was

right in granting custody to the Respondent without having recourse to the hierarchical order stipulated under Sharia. (Distilled from ground 2)

Learned counsel for the Appellant argued that the lower Court wrongfully denied the Appellant her right to the custody of her four children because under Sharia the mother was most qualified to take custody of her children in the event of a dissolution of the marriage, and that in the circumstances of this case, there was no legal reason for denying her the custody of the children.

Learned counsel argued that once the Respondent left Bida which is the usual place of residence of the children for Kebbi State, he was disqualified from taking custody of the children.

Learned counsel further argued that the lower Court was wrong in granting custody of the children to the Respondent without having recourse to the hierarchical order stipulated under Sharia. That even if the Appellant was rightly disqualified from her right to the custody of the children; the Respondent was not the next qualified person to be granted custody of the children.

The Court was urged to allow the appeal and set aside the

judgment of the lower Court. These authorities were relied on:
1. JADI VS. ADI (2014) 2 SQLR (PT. IV) 637
2. MAIDALA VS. MA’AZU (2015) 3 SQLR (PT. 1) 126
3. JEMILAT VS. TAIWO (2014) 2 SQLR (PT. 11) 339
4. ALABI VS. ALABI (2008) ALL FWLR (PT. 418) 245

The Respondent adopted the issues distilled by the Appellant and argued that the Respondent was in the best position to take care of the children’s wellbeing, training and providing adequate shelter, and that for these reasons, the judgment of the lower Court should be affirmed.

The Respondent’s counsel argued that the lower Court was right in denying the Appellant the right to custody of the children of the marriage because the Respondent is saddled with the responsibilities to monitor the activities of the children.

The Court was urged to dismiss the appeal. These authorities were relied on:-
1. THE HOLY QUR’AN TEXT AND COMMENTARIES (ENGLISH TRANSLATION) BY YUSUF ALI
2. DALATU QURRA’U WAL BAYAN FI AYATUL QUR’AN VOL. 8 PAGE 329 (ARABIC TEXT) BY ALHUS SAINI ALKAIRAWANI
3. FIQU-SSUNAH BY SHEIKH SAYYIDU ASSABIQ VOL. 2 P. 237 (ARABIC TEXT)

TUHFATUL AHKAM AT PAGE 126 (ARABIC TEXT)
5. MINHAJIL – MUSLIM BY SHEIKH ABUBAKAR AL-JAZAIRI AT PAGE 370 (ARABIC TEXT)
6. BADR – ZZAUJAINI BY ABUBAKAR HASSAN AL-KASHINAWI AT PAGE 284 (ARABIC TEXT)
7. BUKAR FALATA VS. DOWOMA (1961 – 1968) VOL. 1 SHARIA LAW REPORTS OF NIGERIA

The Appellant filed a brief in reply, which brief was adopted at the hearing of the appeal, along with all the other briefs.

I shall adopt the issues formulated by the parties herein, however; both issues will be resolved together. The issues again are:-
1. Whether in the circumstances of this case the lower Court was right in denying the Appellant her right of custody to her four children.
2. Whether the lower Court was right in granting custody to the Respondent without having recourse to the hierarchical order stipulated under Sharia.

RESOLUTION OF THE ISSUES
In striking out the appeal and affirming the judgment of the trial Court, the lower Court stated its reasons at pages 87 – 90 of the record of appeal in these terms. I restate them for their full meaning and effect as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Having listened to the submissions of both counsels of the Appellant and Respondent respectively, we hereby observed the followings:
1. The right to the custody of a child is vested in both parents when they are living together in the matrimonial home.
2. If the Mother lives apart from the Father the right of the custody of their child is vested in the Mother.
3. The right of the Mother to the custody of her male child extends until puberty.
4. However, the right of custody is lost by the mother if the child is removed without the consent of his father or guardian, to such a distance from his usual place of residence as would prevent him from exercising his rights of general supervision and control. This rule is effective when the distance is according to texts. More than 72 miles. Refers to the Book of Hashiyat Al-Dasuki, commentaries on Mukhtasar Al-Halili Vol. 2 at page 531.
5. The learned trial judge was right in denying the Appellant the right to custody of the said children. Qur’anic 66 V6 which says:-
…
“O you who believe! Save yourself and your families from a fire whose fuel is men and

stones:-
And also Q2. V233:-
…
“…and their maintenance and their clothing must be borned by the father according to usage….”
And also many Hadith.
6. We equally agreed that the trial judge was right in granting the custody of the children to the Respondent under Islamic law, and that the respondent is the most appropriate to take care of the children.
We considered that the Respondent as stated without objection resides at Kebbi State of Nigeria and it is evident that he is not coming back on time as his means of livelihood is in Kebbi State. And the rule states that if the distance is more 72 miles according to texts, the father takes custody refer to the book of Hashiyat Al-Dasuki, commentaries on Mukhtasar Al-Halili Vol. 2 pg 531
…
7. And that if the father moves from his usual place of residence, he has the power of withdrawing the child from its custodian. See the book of Al-Dasuki Vol. 2 page 531.
…
It has been further observed that (which is also a common knowledge) the distance from Bidda where the Appellant resides to Kebbi where the Respondent equally

resides exceeds 72 miles.
The Respondent has the right to carry along all his children namely: Aisha who was 16 years old (now 17 years) Abdulkareem who was 13 years old (now 15 years) are deemed to be matured to take good care of them and their education.
In view of the foregoing therefore, we hereby affirm the decision and judgment of the upper Sharia Court, Bida which is in line with the sharia and it does not go contrary to the Islamic law as it was held in the book of As’halil Madarik which says and I quote
…
No to us that determines this appeal and no to the Court above to determine our appeal can change this judgment unless it is contrary to the clear text.
The Respondent shall continue to retain the ownership of his children namely:-
1. Aisha
2. Abdulkareem
3. Abdullahi
4. Adamu
So that he can exercise his powers of supervision and control over his children. If the Appellant so wishes to continue looking after her children, she can join him (the Respondent) in his place of work i.e. Kebbi State, it is his duty to provide shelter, food etc to her in order for her to have control of the said

children and if not, she loses again, as it was held in the book of Hashiyat Al-Dasuki, commentaries on Mukhtasar Al-Halili Vol. 2 at page 531
…
And you should follow your custody if you wishes
In view of foregoing this appeal is hereby struck out we so hold.”

subject to the supervision of the father which he is duly entitled to exercise by virtue of guardianship.
In the case where a mother is for any reason disqualified from taking custody of her children, then the following women will take her place accordingly:
1. Mother, whether Muslim or a kitabis;
2. Mother’s mother how high so ever;
3. Maternal aunt;
4. The mother maternal aunt;
5. The father’s mother
6. The father paternal aunt;
7. The child’s sister
8. The father’s executor;
9. Anyone appointed by the Court;
10. The child’s brothers, uncles and paternal grandfather.
The above represents the hierarchical order of precedent regarding the right of custody of a child in Sharia. It appears that the Court below did not follow the above order of precedent in its judgment, the subject matter of this appeal, so that even if it was right in denying the Appellant custody of the children, it could not disregard the above order regarding custody in making its final orders/judgment. See generally MALIKI LAW MUKHTASAR OF SIDI KHALIL BY F.H. RUXTON PAGE 155; MAIDALA VS. MUAZU (2015)

3 SQLR (PT1) 126; ALABI VS. ALABI (2008) ALL FWLR (PT418) 245; JADI VS. ADI (2014) 2 SQLR (PTIV) 637; JEMILAT VS. TAIWO (2014) 2 SQLR (PTII) 313.
The Sharia is clear that the person entrusted with the custody of a child must possess the following attributes:-
1. He or she must be in full possession of his or her senses/faculties;
2. He or she must be an adult and sane;
3. Must be able to look after the child i.e. not too old according to the majority opinion;
4. Must live in a place where the child in his or her charge may remain absolutely free from seduction, licentiousness or loss of property;
5. Must be free from all immorality or vice, and from all infectious diseases; and
6. Must be honest in all his/her dealings with the child’s property
See DASUQI, HASBIYAT AL-DASUQI VOL II, PP 528 – 530.
There is nothing in the record to show that the Appellant herein does not possess the necessary attributes to enable her to be entrusted with the custody of the children herein.
It must be mentioned that although a man may be entrusted with the custody of a child, it must however be ascertained that he has

a family capable of taking care of the child. The Respondent herein is divorced; there is nothing in the record to show that he indeed has a family that is capable of taking care of the children, especially the minors.
There is no doubt that a mother who is otherwise entitled to the custody of a child shall lose the right of custody in the following instances:-
1. If she marries a person not related to the child within the prohibited degrees. In this case, there is no such evidence against the Appellant before the Court.
2. If she goes and resides during the subsistence of the marriage at a distance from the father’s place of residence. In this case, there is no evidence from the record that during the subsistence of the marriage, the Appellant herein went to reside at a distance from the father’s (Respondent) place of residence.
By the clear provision of Al-Bahja commentaries on Tuhfatul Hukkam by Abul Hassan Aliyu Bn Abdulsalam Attasuuly Vol. 1 page 649, it made a distinction between (Safr) travelling for business or livelihood, and (Intiqal) that is permanent relocation.
In the case of (Safr) travelling for livelihood,

the mother of the children is not obliged to relocate to the new location of the children’s father.
In the instant case, the relocation, from the record of appeal is for livelihood, and not a permanent relocation. It is undeniable that the world today is a global village whereby a mere relocation in search of livelihood cannot be enough reason for the mother who is generally saddled with the responsibility of custody to loose such right.
The words Safr Naqlatun and Inqita’a have been interpreted by Dr Mohammed Bashir Al – Shagfah in his book, AL Fiqhul Maliki Fisaubifi Al Jadid Vol. 14 PAGE 587 as follows:
‘’Travelling for the purpose of relocation and cutting off is to travel from the Balad where someone is residing to a different Balad to reside and settle down there’’
At the same page the learned author continued in these words:
‘’Travelling for relocation and cutting off, but if the travelling is for trading and commercial purposes or merely for visits or holidays and tourism or to pursue the right due to custodian or for medical purposes, the right of custody would not be

lost in such circumstances even if the distance is beyond 133Km and it is the same if the Waliyyi is the one travelling or the custodian. The custodian would not be prevented from taking her wards with her in such travelling because it is not a travelling for permanent relocation.’’
I am in complete agreement with the opinion expressed by my learned brother Abdullahi JCA in the case of ALABI VS. ALABI (2008) ALL FWLR (PT. 418) 245 @ 262 Page 298 Paras D – E as follows:
‘‘Under Islamic law, custody of a child, whether male or female, is generally granted to a mother unless there is compelling reason not to do so even where the mother for one reason or the other cannot cater for her child, custody is given to her relation not to the relation of the father’’
3. If she is leading an immoral life i.e. prostitution and the like. In this case, there is no such allegation against the Appellant herein.
4. If she neglects to take proper care of the child. See DASUQI HASHIYAT AL-DASUQI, VOL II, PP 529 – 531.
The fact that the Appellant herein sells masa (rice cakes) cannot be evidence of neglect.

Although the Appellant appears to admit that the children hawk the rice cakes before they go to school in the morning, this in my view is insufficient proof of neglect to take proper care of the children. The evidence before the Court is that the Appellant shouldered the responsibility for the upkeep of the children at least prior to the institution of this action at the trial Court with the proceeds realized from the sale of the rice cakes. The Respondent whose duty it was to maintain the children abdicated this responsibility.
As an aside, it appears from the record that the Appellant was divorced in July 2016 and the action was filed on 24th July 2017, a period of more than one year after the unilateral divorce by the Respondent herein. The Respondent’s cause of action for the custody of children of the marriage arose in July 2016. Where as in this case, the action was not filed within the one year period, the right of the Respondent to make any claim on the subject matter of this appeal lapses.
See page 647 Al-Bahja commentaries onTuhfatul Hukkam by Abul Hassan Aliyu Bn Abdulsalam Attasuuly Vol. 1
Accordingly, if a father leaves his

children with their mother for one year after the cause of action has arisen, his claim should not be entertained except if he has a very cogent and justifiable reason for the delay, in the case at hand, no reason whatsoever was given by the Respondent in bringing an action at the time he did to justify the delay.
I hold the view that the lower Court did not advance cogent reasons for its decision. Its decision was clearly perverse, and it is hereby set aside. An order is hereby made granting custody of the four children namely: AISHA, ABDULKARIM, ABDULLAHI and ADAMU to the Appellant herein, being the most qualified person under Sharia. The Respondent herein shall continue is his responsibility of the maintenance of the aforementioned children.

There shall be no order as to cost.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading, before now, the draft judgment just delivered by my learned brother the Hon. Justice M. B. Idris, JCA. Having equally read the briefs of argument of the respective learned counsel vis-à-vis the record of appeal, I cannot but concur with the reasoning reached therein, to the conclusive

effect that the present appeal is grossly meritorious.

Instructively, the two issues canvassed by the respective learned counsel raised the following crucial questions:
3.1 Whether in the circumstances of this case, the lower Court was right in denying the Appellant her right of custody to her four children. (Distilled from grounds 1 and 3).
3.2 Whether the lower Court was right in granting custody to Respondent without having recourse to the hierarchical order stipulated under Sharia. (Distilled from grounds 2).

The far reaching findings of the Court (pages 87-90 of the Record of Appeal) have ben copiously alluded to by my learned brother in the read judgment. The said findings are to the following conclusive effect:
6. We equally agreed that the trial judge was right in granting the custody of the children to the Respondent under Islamic Law, and that the Respondent is the most appropriate (sic) to take care of the children.
We considered that the Respondent as stated without objection resides at Kebbi State of Nigeria and it is evident that he is not coming back on time as his means of livelihood is in Kebbi State…<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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And that if the father moves from his usual place of residence, he has the power of withdrawing the child from its custodian. See the book of Al-Dasuki Vol. 2 page 531…
The Respondent has the right to carry along all his Children namely: Aisha who was 16 years old (now 17 years) Abdulkareem who was 13 years old (now 15 years) are deemed to be matured to take good care of them and their education…
In view of the foregoing therefore, we hereby affirm the decision and judgment of the Upper Sharia Court, Bida. Which is in line with the Sharia and it does not go contrary to the Islamic Law…
The Respondent shall continue to retain the ownership (sic) of his Children namely:
1. Aisha
2. Abdulkareem
3. Abdullahi
4. Adamu
…
In view of the foregoing this appeal is hereby struck out. We so hold.

With possible deference, the foregoing findings and conclusion reached thereby cannot, by any stretch of imagination, be deemed to be cogent and unassailable. Undoubtedly, the findings are neither in consonance with the evidence adduced at the trial nor compatible with trite fundamental doctrines of

Islamic jurisprudence.

It is evident on the face of the record of appeal, that the Respondent herein, had urged the trial Sharia Court, Bida, for the following reliefs:
1. Quit the defendant from my house.
2. To give me the custody of my four children amely: (i) Aisha 16 years; (ii) Abdulkareem 13 years; (iii) Abdullahi 10 years; (iv) Adamu 7 years;
It was aptly stated by the Court below at page 87 of the Record:
1. The right to the custody of a child is vested in both parents when they are living together in the matrimonial home.
2. If the mother lives apart from the father the right of the custody of their child is vested in the mother.
3. The right of the mother to the custody of her child extends until puberty.
It ought to be stressed at this point in time, for the avoidance of any lingering doubt, that the devolution of custody of the child upon the mother either during Idda (the period of separation upon divorce) or at the expiration of Idda does not absolve husband from the responsibility of absolute upkeep of the child or children of the marriage.
Indeed, under Islamic law, the father shoulders the

onerous responsibility to provide maintenance and general welfare: (shelter, food, clothing, health care and educational needs) of his child (or children).
In SIRAJUS-SALIK Volume 11 @ 112, it is stipulated thus:
… (Islamic citation)
Meaning:
“The father should maintain his child till he attains the age of majority and capable to earn a living.”
What’s more, in the book of AL-MUDAWWAAAH AL-KUBRA Volume 11 @ 247, the foremost learned author, IMAM IBN ANAS AL-ASBAHI, reiterated the fundamental Islamic doctrine:
… (Islamic citation)
Meaning:
“In the circumstances, his (child’s) maintenance is mandatory on the father if the child has not attained the age of puberty.”
It was equally strongly postulated in KITABUL FIQHI’ALAL MADHAHIBIL ARBA; Volume IV, @ 513 by Abdul Rahman AL-JUZAYRY thus:
… (Islamic citation)
Meaning:
“It is mandatory on the father to maintain his children.”
See also ARABI VS. MUSA (2017) 5 SQLR (part 11) @ 402 paragraphs C-A.
Against the backdrop of the foregoing far reaching trite fundamental principles of Islamic law, the two Courts below

have erred in law In denying the Appellant the right to the custody of her children. The two Courts below have equally erred in law in declining or refusing to impose upon the Respondent the responsibility of maintaining the four children of the marriage until they are either married (in the case of Aisha) or reached the age of maturity (in the case of Abdulkarim, Abdullahi and Adamu respectively).

ON THE DUTY OF APPELLATE COURT TO CONSIDER NOT ONLY ISSUES (GROUNDS) RAISED IN THE APPEAL BUT RELEVANT TO LAWS AND DOCTRINES OF ISLAMIC LAWS.
It ought to be taken in to account, that very often than not cases brought before an appellate Court are not exclusively restricted to the issues distilled from the grounds of appeal. In such circumstances, the appellate Court is enjoined to consider suo motu, devoid of any further application and invoke the relevant laws and doctrines and apply them accordingly. See AHMADU SIDI VS. SHAABAN (1992)4 NWLR (Pt. 233) 113 @ 117-118.
In TABSIRATUL HUKKAM, Volume 1 @ 79, IBN FARHUM has remarkably espoused the fundamental doctrine:
… (Islamic citation)
Meaning:
It is permitted to the jurists

(appellate judges inclusive) to consider (trial or lower Court’s decision) where it is obvious there to, that it was wrongly based, then they should reverse (set it aside) …
But where they found that it was decided in accordance with laid down procedures, it should be affirmed and enforced.
See also LIMAN VS. LIMAN (2017) 5 SQLR (Pt. 11) @ 392 paragraphs D-F.
Indeed, there is no controversy at all, that in matters of practice and procedure, Sharia Courts are not strictly bound the provisions of the Evidence Act. The reason being, that the provisions of the Evidence Act are only but a guide to the Sharia Courts (nay Customary Courts). As aptly pontificated upon by the Apex Court about 5 decades ago:
Great latitude must be given to and a broad interpretation placed upon native (nay Sharia) Court cases so that the earlier proceedings, the evidence of the parties and the judgment must be examined in order to determine what the Native or Customary (nay Sharia) Court case is all about. (Ajayi vs. Aina 16 NLR page 67). The conception and result of the proceedings will show to what the parties were fighting for the matters upon which the

Issues were joined even if technically framed in an appropriate language from the stand point of a legal technocrat and the decisions of the Native or Customary (nay Sharia) Court in those issues.
SeeZAIDAN VS. MOHSSEN (1973) 11 SC @ 21. see also SALATI VS. SHEHU (1986) NWLR (pt. 15) 198;IKPANG VS. EDOHO (1978) 6-7 SC @ 222; OGO VS. OGO (1954) NWLR 179; AOKO VS. FAGBEMI (1961) All NLR 400.
Barely a decade ago, this Court had the privilege of reiterating the trite fundamental doctrine to the effect:
(T)hat the proceeding of Customary Courts (nay Sharia Courts), in contradiction to other regular Courts like the High Courts. The Court of Appeal and the Supreme Court are sue generic. Thus, by the special distinctive nature thereof, the proceedings of the said Courts (nay Sharia Courts) ought to be accorded very exceptional consideration by appellate Courts in matters arising from such Courts.
See also KHALID VS. IBRAHIM (2017), 5 SQLR (Pt. 11) per Saulawa, JCA @ 261-262 paragraph A-C; DAGUN JEUN VS. OSHO (2002) 1 QCLRN 1.
The whole essence of the trite doctrine, as cherishingly reiterated in the foregoing authorities, was to enable

appellate Courts arrive at decisions that would appear to be reasonable, fair, just, equitable, and conclusively in accord with, or amenable to, common sense.
Hence, against the backdrop of the foregoing postulation, I concur whole heartedly with the apt reasoning of my noble brother, Idris JCA to the conclusive effect that the instant appeal is grossly meritorious and same is equally hereby allowed by me. Thus, the vexed judgment of the Court below being adjudged to grossly perverse, same is hereby set aside by me. As aptly copiously alluded herein above, it is a trite fundamental doctrine of Islamic law that:
“It is permitted to the jurists (appellate judges) to consider (trial or lower Court’s decision) where it is obvious thereto, that it was wrongly based, then they should, reverse (set it aside) …”
See TABSIRATUL HUKKAM, Volume 1: IBN FURHAM @ 79; VS. LIMAN (2017) 5 SQLR (Pt. 11) @ 392 paragraphs D-F.
Accordingly, I abide by the consequential orders granting the custody of all the said four children of the marriage to the Appellant and thereby imposing upon the Respondent the onerous responsibility of the maintenance of

the children until either married (in the case of Aisha) or reached age of majority (puberty) in the case of Abdulkarim, Abdullahi and Adamu, respectively.

MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading a draft copy of the judgment just delivered by my learned brother Mohammed Baba Idris, JCA. I agree with the conclusion therein, and I adopt same as mine.

I only add for emphasis that in the absence of any allegation of immorality on the part of the appellant, she is the person most entitled and suited to custody of the children; see Alabi v. Alabi (supra).

I also find the decision of the lower Court perverse and set it aside, thus granting custody of all the four children to the appellant.

I make no order as to cost.

Appearances:

G. KOROKA ESQ. For Appellant(s)

ALHASSAN, ESQ. For Respondent(s)