Authored By: SALAUDEEN, Hikmat Oloruntola
University of Abuja
Case Name: MOHAMMED & ORS v. MOHAMMED & ANOR (2024) LPELR 62831-CA
Court: Court of Appeal (Kano Judicial Division)
Name of the judges: Muhammed Lawal Shuaibu, Abubakar Muazu Lamido and Mohammed Ahmed Ramat
Date of Judgement: Friday, 23August 2024.
Parties Involved
Appellants(s)
Maimuna Mohammed & Inna Fatimoh (the 2nd & 3rd wife of the deceased – Major Mohammed)
Respondent(s)
Nike Mohammed and Evang. (Mrs) Olabisi Mohammed (1st wife of the deceased)
Facts of the case
The deceased (Major Mohammed) got married to Evang. (Mrs) Olabisi Mohammed his first wife who is a Christian under the Marriage and thereafter marry the two (2) appellant as 2nd and 3rd wife under Islamic law. Upon his death, the respondent refused to share the deceased estate with the family as well as the aged parent of the deceased claiming she alone have the right to inherit the estate of the deceased. At the trial court, the defendant (now respondent) raised that the Upper Area court lacks jurisdiction to entertain the issue which was dismissed the the trial judge who assumed jurisdiction and hence the matter was decided under Islamic law. The defendant (respondent) appeal to the Shariah court of Appeal upon which the trial’s court judgement was reversed. Dissatisfied with this, the respondent (appellant) filled the instant appeal.
Issue Raised
- Whether the Court below was right by holding that Administration of Estate Law of Kwara State was the applicable law to govern the administration of estates of late Major Mohammed Adeneyi and not Islamic Law.
- Whether the learned Kadis of the Court below were not in error when they held that the Appellants’ suit was an abuse of Court process having regard to the Suit No.KWS/2/2020 before High Court of Kwara State.
- Whether marriage under the Marriage Act or marriage to a Christian by a Muslim man implies a renunciation of his Islamic faith or prevents him from marrying other legally permissible wives
Argument of the Parties
The respondent having being properly served, failed to appear before the court and no argument was made by the respondent, hence, the default judgment.
Appellant argument
The 2nd & 3rd wife of the deceased argued as follows
- That the trial court had jurisdiction to entertain the suit on the ground that the prayers before the court was to retrieve the deceased properties in the custody of the respondent[1] And that jurisdiction is determine by relief sought before the court.
- That the deceased is bounded by Shariah by virtue of his faith as a Muslim relying on the provision of the Quran[2] and a commentary book[3] and Islamic law hence enforceable which will also grant them the right to competent court of jurisdiction[4]
- And that the marriage of the deceased to the 2nd respondent under the marriage act does not nullify his marriage with the appellant on the ground that, the provision of section 35 of the Marriage Act expressly mention customary law and that the express mentioning of one thing is to the exclusion of all others relying on Ogunbiyiya Vs Okudo (1976) 6-9 SC 32, Udoh Vs Orthopaedic Hospital Management Board (1993) 7 N (1998) 6 SCNJ 127 at 136.
- WLR (Prt. 304) 139 and Buhari & Anor Vs Yusuf & Anor (2003) LPELR-812(SC) The appellant submitted that, Islamic law not being a customary law but rather a universal law relying on Alkamawa Vs Bello & Anor[5]Universality of shariah law
- That the suit at the trial court is not an abuse of court process because pending claim and parties before the High Court of Kwara state in the suit No.KWS/2/2020 is different from that of the trial court which is for distribution of estate.
Judgement/Final Decision
The Appeal was allowed and the judgment of the lower court was set aside as the court restored the earlier decision of the trial court. Tthe court of Appeal held that the trial court (Upper Area Court, Ilorin) as the jurisdiction to entertain the matter. The court held that, the estate of the deceased (Major Mohammed) should be distributed in accordance with Islamic law and not the Administration of Estate Law Cap. A1. Laws of Kwara State. And that the previous suit pending before the High Court of Kwara state does not makes the suit at the trial court an abuse of court process, hence, judgement was given in Favour of the appellant
Legal Reasoning / Ratio Decidendi
The mere marriage of the 2nd respondent to the deceased under the marriage act does not nullify his lawfully capacity to marry four (4) wives at a given time by virtue of his faith as a Muslim.
The provision of section 33(1) of the marriage Act only refer to customary law and Islamic law being a universal law is not customary. And that Section 1(1) (a) & (b) of Administration of Estate Law Cap. A1. Laws of Kwara State had expressly exempted itself from being applicable on estate of deceased governed by Islamic law and at such, the deceased marriage to the 1st and 2nd appellant is lawful and does not offend the provision of the marriage act.
Also, the suit is not an abuse of court process because the relief sought and the parties before the court is not the same as well as the jurisdictional limit of the High court to Islamic law.
Conclusion/Observation
Mohammed & ors v. Mohammed & anor[6] is a significant case in family law that brings about a strategic change in the existing legal perspective of marriage under the Act and its renowned benefits. This case had set a new judicial precedent which differs in nature from the plethora of case as Agbaje v. Agbaje (1985) 3 NWLR (pt. 11) 11; Osamwonyi v. Osamwonyi (1972) LPELR-2789(SC) That uphold and establish the provision of section 33(1) of the Marriage Act which mandates that statutory marriages are monogamous and prohibits anyone already married under the Act from attempting another marriage. This case is a beginning of a new chapter in the family law field as spouses who are Muslims can, relying on this case , proceed to take more wives outsides their Statutory marriage and in my opinion which will disrupt the legal basis and nature of the Marriage Act as a monogamous marriage between a man and a woman.
Reference(S):
[1] Counsel to appellant relied on section 17 of Area Court Law Cap A9 Laws of Kwara State, 2006.
[2] Chapter 7 v 4-7
[3] Introduction of Islamic Law of Succession Testate and Intestate 2nd Edition by Dr. Aminu Gurin t
[4] Counsel relied on section 38 of the Constitution of FRN, 1999 (as amended) & Provost Kwara State College of Education, Ilorin Vs Salihu (2016) 4 SQLR (Prt. 111) 509
[5] (1998) 6 SCNJ 127 at 136.
[6] (2024) LPELR 62831-CA
