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Rabiu v. Amadu

TASIU RABIU

V

AISHATU AMADU

SUPREME COURT OF NIGERIA

ALOMA MARIAM MUKHTAR JSC ( Presided )

FRANCIS FEDODE TABAI JSC

SULEIMAN GALADIMA JSC ( Read the Lead Judgment )

BODE RHODES-VIVOUR JSC

NWALI SYLVESTER NGWUTA JSC

SC. 147/2003

FRIDAY, 13 JANUARY 2012

APPEAL - Concurrent findings by lower courts - Supreme Court Attitude of thereto

COURT - Supreme Court - Attitude of to concurrent findings by lower courts

EVIDENCE - Burden of proof under Islamic law - Who bears

EVIDENCE - Expert evidence under Islamic law - What constitutes - Who may give

ISLAMIC LAW - Burden of proof thereunder - Who bears

ISLAMIC LAW - Expert evidence thereunder - What constitutes - Who may give

ISLAMIC LAW - Paternity - Determination of - Medical report therefor -  Approach of Islamic law thereto

ISLAMIC LAW - Paternity of a child - How a party may deny under Islamic Law - Effect of

ISLAMIC LAW - Paternity of a child thereunder - How confirmed When presumed

ISLAMIC LAW - Paternity thereunder - Issue of - Fundamental nature of - Child born outside wedlock - Whether legitimate - Acceptable period of gestation - What constitutes

Issue:

Whether the court below was justified in granting paternity of the child in issue to the appellant notwithstanding the fact that the marriage between the parties hereto was void ab initio.

Facts:

The plaintiff (now respondent) commenced an action in the Area Court in Katsina State on grounds of lack of maintenance since delivery, removal and retention of her personal properties and denial of the paternity of her child. She sought to know her relationship with the appellant. The trial court decided to take the issue bordering on the child’s paternity while setting aside the other claims. It subsequently awarded the paternity of the child to the defendant. Aggrieved, the defendant appealed to the Upper Area Court where his appeal was dismissed. Yet aggrieved, he appealed to the Sharia Court of Appeal where the decisions of the lower courts were affirmed. His further appeal to the Court of Appeal was dismissed. Still aggrieved, he appealed to the Supreme Court.

In determination of the appeal, the Supreme Court considered the following statutes;

Jawa Hir Aliklil, page 381:

Under no circumstance shall pregnancy or child (of marriage) be denied where the wife, delivers complete baby within a period lesser than six months five or six days less, from the date, of the marriage contract. In that situation paternity can be denied without the necessity of having resource to li’an ( mutual imprecation) as there exists a legal barrier

( between the child and its suspected father )