BOLA v. USMAN
(2021)LCN/15034(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, February 03, 2021
CA/A/640/S/2019
RATIO
ISLAMIC LAW: POSITION OF ISLAM ON FAMILY TIES
Islam has placed a lot of emphasis on the maintenance of family ties. It is therefore recommended that the bonds of kinship be united, and allowing the Respondent in this case visitation rights is an act of maintaining family bonds. It is seen as an act of wickedness which attracts the curse of Almighty Allah to deprive a spouse the right to see or visit the children as seen in the following verses of the Holy Quran and the hadiths of the Holy Prophet.
In Quran Chapter 47 Verse 22 – 23, it says:
“Would you, perhaps, if you turn away, cause corruption on earth and severe your ties of kinship? Such are they whom Allah has cursed so that he has made them deaf and blind.”
And in Quran Chapter 15 Verse 25, it says:
“And those who break the covenant of Allah, after its ratification, and sever that which Allah has commanded to be joined, and work mischief in the land, on them is the curse, and for them is the unhappy (evil) home (i.e. hell).
Allah, the Almighty says: “No mother shall be treated unfairly on account of her child nor father on account of his child.”
In Al-Fiqh Al-Wadih, it is stated thus:
“If it is not proper for the mother to prevent the father from seeing his child; rather it is an obligation on her to allow him. It is also not proper for the father to prevent the mother to see her child when the period of custody has ended. It is an obligation on both of them to co-operate in this regard and to minimize their personal differences and should not use the child as a means of intrigue or vexation.”
It must be understood that it is against the concept of Islam to deprive a parent visitation rights. Islamic Law encourages both parents to have access to the children regardless of whom the right to custody is granted. The other party has visitation rights according to mutual understanding and consent. This is in conformity with the principles of Islamic Procedural Law enunciated by Sayyid Sabiq on page 226 where he says:
“And father or mother should not deter the child under his custody from visiting his/her father or mother, because refusal to allow him to visit her is a deliberate violation of human rights and an attempt to cut-off the family relation between a mother and her child.”
It is true that the jurists of all schools of thought have unanimously agreed that the Respondent in this appeal, being the father, has the right to see his children who are in the custody of the Appellant. However, the jurists differ on the time frame within which the visit can be conducted. This, notwithstanding, the parties can themselves agree on any time frame suitable for the visit if they have the understanding, tolerance and calm temperament. Where they are hostile to each other and unable to agree, the Court can intervene and impose the time, place and conditions of visitation on them. The power of the Court to so intervene must be exercised in accordance with the law. PER MOHAMMED BABA IDRIS, J.C.A.
ISLAMIC LAW: WHICH SCHOOL OF ISLAMIC LAW IS APPLICABLE IN CIVIL CASES
It is settled that the lower Court shall in civil cases and matters that come before it administer the Islamic laws of the Malik School of Jurisprudence. See ALKAMAWA VS. BELLO (1998) 8 NWLR (PT. 561) 173; HADA VS. MALUMFASHI (1993) 7 NWLR (PT. 303) 1.
In the instant case, where the parties are unable to agree on time and term of visit, the Court below ought to apply the rules of Malik School as stated thus:
“The mother, when she is not given the custody, has the right to visit her minor children once in a day, but her mature children, once in a week. The father has similar right with that of the mother in seeing his children before they reach the age of learning. But when the children reach the age of learning and acquisition of training, he has the right to see them anytime i.e. to observe and monitor them.”
See MAUSUMATUL FIQHUL ISLAMI WALQADHAYA ALMU’ ASIRAH. USTSAZ, DR. WAHBATUR RAHILI VOLUME 8 PAGE 760. PER MOHAMMED BABA IDRIS, J.C.A.
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
FATIMA BOLA APPELANT(S)
And
NURUDEEN ABATEMI USMAN RESPONDENT(S)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Respondent as the plaintiff at the trial Court (Grade 1 Area Court Wuse sitting at Gudu District, Abuja) took out a claim against the Appellant as Defendant in Suit No. CV/189/2017 as contained in pages 8-10 of the record of appeal.
The trial Court delivered its judgment as contained in pages 16 – 21 of the record of appeal. Being dissatisfied with the decision of the trial Court, the Appellant appealed to the Sharia Court of Appeal Abuja in Appeal No. SCA/FCT/CV/65/2018 as a result of which the Court delivered its judgment on the 22nd May, 2019 as contained in pages 89 – 106 of the record of appeal.
This is therefore an appeal against the judgment of the Sharia Court of Appeal, Abuja, FCT sitting at Gudu District, delivered on the 22nd May, 2019 by their Lordships Justice Ibrahim Rufai Imam (Grand Kadi), Justice Ibrahim Baba Gwaram (Kadi III) and Justice Aminu Sa’Ad (Kadi IV) in Appeal No. SCA/FCT/CV/65/2018 as contained in pages 89 – 106 of the record of appeal wherein the Sharia Court of Appeal gave judgment as follows:
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“…we therefore decided to alter with that method of granting right of access of four female children KARIMA, AMINA, HALIMA and QADIRIYYA to their father NURUDEEN ABATEMI USMAN by spending 2/3 of their every school vacation with the father accordingly at any time the need arises…”
The Appellant being dissatisfied with the judgment, filed a Notice and Ground of Appeal containing two (2) grounds dated 28th of June, 2019 as contained in pages 107 – 114 of the record of appeal filed on the same day, while the appeal was entered on the 22nd July, 2019, the Notice and Grounds of Appeal and receipt evidencing payment are contained in pages 107 – 115 of the record of appeal.
The parties filed and exchanged their respective briefs which were adopted at the hearing of the appeal.
In the Appellant’s brief, the issue hereunder was formulated for the determination of the appeal:-
Whether the principle of Sharia under Malik School of Jurisprudence, right to access four (4) female children granted to the respondent (who is their father) includes right to take custody of the children for a period of 2/3 of their every school vacation
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when the appellant (who is their biological mother) is alive, never deny the respondent access to the children staying with her at House No. 473, Gwandara Close, 1st Avenue, Opposite DBB Plaza, Gwarinpa, Abuja, FCT and has not lost her right to custody, whether the Sharia Court of Appeal relied on the relevant law to arrive at its decision. This ground is distilled from ground one, two and three of the Notice of Appeal.
Learned counsel for the Appellant argued that the Respondent’s right to access the children contrary to the decision of the Sharia Court of Appeal never included right to take the children into his custody for a period of 2/3 of their every school vacation, but that the right is only exercisable by way of visiting them where they reside with the Appellant. It was submitted that ordering the children to spend 2/3 of their every school vacation with the Respondent and returned back to the Appellant thereafter amounted to granting custody to the Respondent, and that it infringed on the custody right of the Appellant, which would in turn cause psychological trauma to the children and their welfare.
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This Court was urged to set aside the decision of the Sharia Court of Appeal and pronounce that the right to access the children was by way of visitation and not by taking custody of the children for a period of 2/3 of every vacation. The following authorities were relied on:-
LIST OF JUDICIAL AUTHORITIES
1. AL-FIQHUL MALIK AL MUYASSIR VOL. 2 P. 295
2. AL FIQHUL MALIK AL MUYASSIR VOL. 2 P. 295
3. JAWAHIRIL IKLIL
4.MUKHTASAR KHALIL VOL. II P. 680
- HASHIYATU DASUKI VOL. 1 P:526 – 527
6. SIRAJ SALIK (SHARHI ASHALUL MADARIK) VOL. 1 PAGE 408
7. SHARIA; A MISUNDERSTOOD LEGAL SYSTEM P. 81 PARAGRAPH 5 BY ABDULKADIR ORIRE
8. ABU AYUBA AL-ANSAR
9. IRSHADUS SALIK VOL. 2 PAGE 2055
10. ISLAMIC PROVISIONS OF LAW
11. FIQHU ALA MAZAHIB AL-ARBAH VOL. 4 P. 441 AND P. 442 BY ABDULRAHMAN
12. DANJA VS. DANJA (1998) 5 NWLR (PT. 550) 467 AT 476
13. ALKAMAWA VS. BELLO (1998) 8 NWLR (PT. 561) 173 AT 182
14. HADA VS. MALUMFASHI (1993) 7 NWLR (PT. 303) 1 AT 17
STATUTES
1. SECTION 23(1) OF THE FEDERAL CAPITAL TERRITORY ABUJA AREA COURT (REPEAL AND ENACTMENT) ACT 2011
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The Respondent filed his brief wherein he formulated the following issue for determination:-
Whether the Sharia Court of Appeal was right to have upheld the judgment of the lower Court, and whether by so doing, the Sharia Court of Appeal has granted custody to the Respondent.
It was argued that for the Respondent to be able to discharge his duty of good upbringing, an avenue must be created for him to interact with the children, therefore, the lower Court was right to have made the orders it made in the interest of the children.
It was submitted that the access granted to the Respondent by the lower Court did not amount to an encroachment on the right of the Appellant on custody, rather the orders made will serve the interest of justice and those of the children.
The Court was urged to dismiss the appeal. The following authorities were relied on:-
1. QUR’AN 66 VERSE 6
2. TAFSEERUL QURTUBY VOL. 18 PAGES 194 – 195
3. TANIMU VS. BASHIR 2014 VOLUME 2, S.Q.L.R. PART IV PAGE 663 @ 668 RATIO 6
4. QUR’AN 2 VERSE 233
5. ALFIQHUL ISLAMY WA’ADILLATUHU
6. AL’AHKAAM ASSULTAANIYYAH VOLUME 1, PAGE 122
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I have read the briefs filed by the parties herein, and I shall adopt the issue formulated by the Appellant as the issue that has risen for the determination of this appeal, and the issue is:
Whether the principle of Sharia under Malik School of Jurisprudence, right to access four (4) female children granted to the respondent (who is their father) includes right to take custody of the children for a period of 2/3 of their every school vacation when the appellant (who is their biological mother) is alive, never deny the respondent access to the children staying with her at House No. 473, Gwandara Close, 1st Avenue, Opposite DBB Plaza, Gwarinpa, Abuja, FCT and has not lost her right to custody, whether the Sharia Court of Appeal relied on the relevant law to arrive at its decision.
It appears that the part of the judgment the Appellant is aggrieved about can be found at pages 104 – 106 of the record of appeal where the lower Court held as follows:
“With regard to the method of seeing the children a judgment of a Court must be explicit and clear for implementing without any ambiguity we have no much quarrel with the trial Court order for granting access to the respondent but
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slating every 3rd week of month and their school vacation however it is a known fact that most of the days children do come with school assignment and work from the school which they treat at home and also attend Islamic school it is our view going by that method may affect their school and training plan the interest which we are trying to protect and a judgment of a Court must be free from that. See the book NAZAMULKALA P. 259 …
We therefore decided to alter with that method by granting right of access of four female children KARIMA, AMINA, HALIMA and QADIRIYA to their Father NURUDDEEN ABATEMI USMAN by spending 2/3 of their every school vacation with the father accordingly at any time need arises concerning their security, health training or welfare the appellant should look for the Respondents interventions which will grant him another access to the children.
Parents are the custodian and trustees of their under age children because they are (amana) trust Allah put under their care of we see no reason why a father will be under the surveillance of another person before interacting with his own biological child therefore the defendant should
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see his children during the time given to him by the Court without the intervention of any body.
In view of the above, we up hold the trial Court judgment for granting access of the children in question (Karima, Amina, Halima and Qadiriya) to their father the defendant (Nurudeen Abatemi Usman) with amendment quoted above.”
The Appellant is aggrieved by the amendment made by the lower Court in granting access of the four female children to the Respondent “by spending 2/3 of their every school vacation with the father accordingly at any time the need arises…”
I must state that the issue raised by this appeal is simple and straight forward. The Appellant in this appeal has the custody of the children of their marriage with the Respondent. Although, the Appellant has custody of the children, the Respondent being the father, has the right to visit and see the children.
Islam has placed a lot of emphasis on the maintenance of family ties. It is therefore recommended that the bonds of kinship be united, and allowing the Respondent in this case visitation rights is an act of maintaining family bonds. It is seen as an act of
8
wickedness which attracts the curse of Almighty Allah to deprive a spouse the right to see or visit the children as seen in the following verses of the Holy Quran and the hadiths of the Holy Prophet.
In Quran Chapter 47 Verse 22 – 23, it says:
“Would you, perhaps, if you turn away, cause corruption on earth and severe your ties of kinship? Such are they whom Allah has cursed so that he has made them deaf and blind.”
And in Quran Chapter 15 Verse 25, it says:
“And those who break the covenant of Allah, after its ratification, and sever that which Allah has commanded to be joined, and work mischief in the land, on them is the curse, and for them is the unhappy (evil) home (i.e. hell).
Allah, the Almighty says: “No mother shall be treated unfairly on account of her child nor father on account of his child.”
In Al-Fiqh Al-Wadih, it is stated thus:
“If it is not proper for the mother to prevent the father from seeing his child; rather it is an obligation on her to allow him. It is also not proper for the father to prevent the mother to see her child when the period of custody has ended.
9
It is an obligation on both of them to co-operate in this regard and to minimize their personal differences and should not use the child as a means of intrigue or vexation.”
It must be understood that it is against the concept of Islam to deprive a parent visitation rights. Islamic Law encourages both parents to have access to the children regardless of whom the right to custody is granted. The other party has visitation rights according to mutual understanding and consent. This is in conformity with the principles of Islamic Procedural Law enunciated by Sayyid Sabiq on page 226 where he says:
“And father or mother should not deter the child under his custody from visiting his/her father or mother, because refusal to allow him to visit her is a deliberate violation of human rights and an attempt to cut-off the family relation between a mother and her child.”
It is true that the jurists of all schools of thought have unanimously agreed that the Respondent in this appeal, being the father, has the right to see his children who are in the custody of the Appellant. However, the jurists differ on the time frame within
10
which the visit can be conducted. This, notwithstanding, the parties can themselves agree on any time frame suitable for the visit if they have the understanding, tolerance and calm temperament. Where they are hostile to each other and unable to agree, the Court can intervene and impose the time, place and conditions of visitation on them. The power of the Court to so intervene must be exercised in accordance with the law.
It is settled that the lower Court shall in civil cases and matters that come before it administer the Islamic laws of the Malik School of Jurisprudence. See ALKAMAWA VS. BELLO (1998) 8 NWLR (PT. 561) 173; HADA VS. MALUMFASHI (1993) 7 NWLR (PT. 303) 1.
In the instant case, where the parties are unable to agree on time and term of visit, the Court below ought to apply the rules of Malik School as stated thus:
“The mother, when she is not given the custody, has the right to visit her minor children once in a day, but her mature children, once in a week. The father has similar right with that of the mother in seeing his children before they reach the age of learning. But when the children reach the age of learning and acquisition of training, he has the right to see them anytime i.e. to observe and monitor them.”
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See MAUSUMATUL FIQHUL ISLAMI WALQADHAYA ALMU’ ASIRAH. USTSAZ, DR. WAHBATUR RAHILI VOLUME 8 PAGE 760.
It must be mentioned that the visit should be during the day time and at a place where the parties are free from harassment or inappropriate behavior. It is to this extent that the order made by the lower Court directing that the children spend 2/3 of their every school vacation with the Respondent cannot stand. In other words, the amendment made by the lower Court cannot stand.
While the Respondent herein has visitation rights, these rights can only be exercised in line with the rules of the Malik School of Jurisprudence set out hereinabove.
The appeal succeeds and the decision of the Sharia Court of Appeal, Abuja delivered on the 22nd of May, 2019 is hereby set aside. No order is made as to cost.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, before now, the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. I agree with his reasoning and conclusion that the appeal is meritorious.
I allow the appeal and award no cost.
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RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother, MOHAMMED BABA IDRIS, JCA availed me the opportunity of reading in draft the lead judgment delivered by him.
I am in firm agreement with the reasoning and conclusion arrived at by my noble Lord in the lead judgment with nothing useful to add.
The appeal succeeds and hereby allowed. The decision of Sharia Court of Appeal, Abuja delivered on the 22nd May, 2019 is hereby set aside.
Parties to bear their costs.
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Appearances:
S. AHMAD, ESQ., with him, A. I. MOHAMMED, ESQ., M. M. NDAJI, ESQ. and S. A. SALISU, ESQ. For Appellant(s)
A. ADAMU, ESQ. For Respondent(s)
