Relevance of the Common Law Doctrine of Stare Decisis to the Shari’ah Court System in Nigeria

1

CHAPTER ONE GENERAL INTRODUCTION

1.0.0. INTRODUCTION By virtue of the legal and judicial legacy bestowed on Nigeria by colonial masters, common law principles, rules and doctrines have tremendous influence on administration of justice system in the country. Particularly as an offshoot of that influence, the common law doctrine of stare decisis, translated as judicial precedent or simply as precedent,1 has come to be regarded as a source of law in the country.2

Simply put, stare decisis is a practice in the administration of justice in common law jurisdictions,3 whereby a court is bound to follow decisions of a higher court in the hierarchy of the court structure put in place in the state.4 It has also been explained as “a judgment or decision of a court of law cited as an authority for deciding a similar set of facts”5 and as “a case which serves as an authority for the legal principle embodied in its

1

Some writers referred to it as “Case Law”. See for example, Park, A. E. W. The Sources of Nigerian Law (African University Press, Lagos; Sweet and Maxwell, London: 1963) p.54; Asien, J. O. Introduction to the Nigerian Legal System (Sam Bookman Publishers, Ibdan: 1997) p67; Olaosebikan F. and Olowu, D. “Sources of Law” in Sanni, A. O. (Ed.), Introduction to Nigerian Legal Method (Faculty of Law, O. A. U. Ile-Ife: nd) p128; and Glanville Williams, Learning the Law, Eleventh Edition (Sweet and Maxwell/Stevens and Sons, London: 1982) p. 67. It has also been referred to as “Decisions of Courts”. On this, see David, Rene and Brierley, John E. C. Major Legal Systems in the World Today, Third Edition (Stevens and Sons, London: 1985) p. 367. 2 Olaosebikan and Olowu, n. 1, p.128 3 Common law jurisdictions are countries where common law has influence on their legal systems. They are usually countries formerly colonised by Britain. Common law originated from Britain. Thus, common law as a source of law is not peculiar to Nigeria alone. For example, under the Application of Laws Act, Common Law constitutes one of the sources of law in Brunnei Darussalam. For a general study on Common law as one of the leading legal systems in the world, see Brierley, David and n. 1, pp307-439. 4 Obilade, Akintunde Olusegun, The Nigerian Legal System (Spetru Books Limited, Ibadan: 1990) p115. 5 Rutherford, Leslie and Bone, Sheila (Edts), Osborn‟s Concise Law Dictionary, Eight Edition (Sweet and Maxwell, London: 1993) p256

2

decision”.6 Thus, for the doctrine to have relevance in any nation, the practice of hierarchy of courts structure must be in place.7

But contrary-wise, existence of hierarchy of courts in place where Islamic law applies may not make the doctrine to apply automatically for Islamic law has a different perspective in the doctrine. In Nigeria, hierarchy of courts and Islamic legal system, administered by Shariah courts are in operation. This therefore calls for a balance to be struck in the circumstance to put the doctrine in its proper Islamic point view. This is what is done in this research work.

1.1.0. BACKGROUND TO THE STUDY In Nigeria, by the combined effects of the provisions of Sections 68 and Chapter VII9 of the 1999 Constitution of the Federal Republic of Nigeria (hereinafter the Constitution),10 ground is well prepared for an effective operation of precedent through the hierarchical judicial structure so institutionalised thereby. The general impression is that, hierarchical court system in the country is patterned to cater for and have relevance in all courts applying any of the three major legal systems of common law, customary law and Islamic law that constitute the Nigerian law.11 This impression was come about without due regard to the respective legal positions of both Islamic law and customary law on the
6 7

Rutherford and Bone, n.5, p. 256 See David and Brierley, n.1, p. 367 8 This section is on the delineation and distribution of judicial powers in the country 9 This is the Chapter on the Judicature of the state and provides details on the court system of the country. 10 Formerly cited as the Constitution of the Federal Republic of Nigeria (Promulgation) Decree No. 24, 1999, but now CAP C23, Laws f the Federation of Nigeria (LFN) 2004. A copy of the Constitution is also contained in Pylee, M. V. Constitutions of the World, 3rd Edition., Vol. 2 (Universal Law Publishing Co. Pvt. Ltd, New Delhi: 2006) pp.1620-1764 11 This is so because both inferior and superior courts are respectively created for each of the three legal systems. High Court, Court of Appeal and the Supreme Court are the Superior Common law courts while its inferior courts are magistrate, District, Customary Courts and Area Courts (as the case may be); Customary Court of Appeal; Court of Appeal and the Supreme Court are the Superior Customary Courts while the inferior courts are the customary courts of various grades; and Superior Shariah Courts are Shariah Court of Appeal, Curt of Appeal and the Supreme Court while the inferior courts are Area courts and Shariah Courts (as the case may be).

3

doctrine.12 The doctrine is therefore ipso facto expected to be observed in all courts in the country regardless of whatever rules or doctrines that may be violated under both customary law and Islamic law.13

Muslim scholars are not settled on the relevance of appellate/review and hierarchy of courts practices to the Islamic Judicial system. Views have been expressed for and against the permissibility of the practice, giving the system of justice which Islamic law seeks to achieve.14 On either side of the arguments, reliance has been placed on the provisions of the Qur‟an, the practices of the Prophet and those of the rightly guided Caliphs. However, the prime basis of the rejection of appellate practice and hierarch of court structure in Islamic judicial arrangement seems to be for the argument that, every qadi (judge) adjudicating on any matter within the scope of its jurisdiction must decide the matter to finality without opening doors for further review.15 Also, it has equally been argued that the system of Bench of Judges is unknown to Islamic law16 and neither is there ranking practice among the judges in Islamic judicial set-up.17

12

This problem is further compounded by the fact that, legal practitioners in Nigeria are products of common law and all their thinking is informed and in fact their loyalty is to common law regardless of the court they appear. See Oba, A. A. “Kadis (Judges) of the Sharia Court of Appeal and the Problems of Identity, Relevance, and Marginalisation within the Nigerian Legal System” (2004) 2 (2) JCLLE, p.54. 13 There is a general trend in Nigeria for judges and advocates to blindly adopt and apply common law approach to procedural issues in the country. For example, for a critical study on such anomaly with regard to how to challenge jurisdiction of courts under Islamic law, see Ishola, Abdullahi Saliu “Rules and Procedure for Challenging Jurisdiction (Wilaya) of Courts under the Sharia: A Model for Orthodox Courts in Nigeria”, Al-Maslaha – Journal of Law and Religion, Vol. 5, 2009/2010 (NAMLAS, University of Ilorin) pp. 131-170. 14 For arguments towards these directions, see Mohammad Hashim Kamali, “Appellate Review and Judicial Independence in Islamic Law” in Mallat, Chibli (Ed), Islam and Public Law (Graham and Trotman: 1993) pp. 49-90. The article had earlier been published in Islamic Studies Quarterly Journal, Autumn 1990 (Islamic Research Institute, International Islamic University, Islamabad, Pakistan) pp. 215 250 15 Ruxton F. H., Maliki Law (El-Nahar Press, Cairo: 2004) p. 277, fn.1. 16 Ibid, p. 277 fn.2 17 Ibid, p.276 fn.7

4

No doubt, appellate practice and hierarchy of courts are very well on ground in the Shariah Court System operative in Nigeria. Generally in practice, both Advocates representing litigants and the Shariah court itself in the country do feel bound by the decisions of a higher court.18 However, the caution expressed by the Shariah Court, seems to be that, it is not bound to perpetrate error in the name of inconsistency.19 Thus, it would appear that, the esteemed caution, which the Shariah Court has expressed in its observance of the practice of judicial precedent, is that, the Shariah court is only bound by the decision of a higher court decided on a previously agitated Islamic law case and not generally by any decision of a higher court.20 All the same, this still raises more questions begging for answers. It goes into the relevance of the doctrine in Shariah court in the light of the principles of Islamic law.

1.2.0. AIMS AND OBJECTIVES OF THE STUDY The general legal position in Nigeria is that stare decisis is a source of law that must be observed by all courts, especially with the hierarchy of courts in place in the country. Also, with the fusion of Courts adopted in the appellate practice in the state, the hierarchical order obtainable in the Shariah Court System in the nation is not yet well spelt out. This study therefore presents a clear-cut position of Islamic law on the doctrine of stare decisis. Secondly, the study discloses the relevance of the doctrine to the Shariah Court in the country in a bid to check whether the aim of Islamic justice is being met or defeated by its application to Islamic law cases. Thirdly, this study provides guide to both the practitioners and the Shariah Courts on what should be their attitude towards the doctrine as a source of law in the nation, as far as Islamic law is concerned.

18

See for example the dissenting opinion expressed by Abdullahi, A. K. (Kadi) in Fatimoh Muhammed vs. Ambassador Ali Assayouti, (2008) KSSCAAR, pp.12-15, particularly at p15. 19 See Ayinla Elepa vs. Akande Ita Elepa, (1995) KSSCAAR, p.66 at 73. 20 See Alhaja Sara (Deceased) and Anor vs. Alhaji Maliki Okanla, (2004) KSSCAAR, p.59 at pp.68-69.

5

1.3.0

STATEMENT OF THE PROBLEM

There are many intriguing issues in the Shariah Court System in Nigeria that have been subjects of detailed discussions by legal and non-legal writers over the years. Papers, articles, academic research works and textbooks abound on the history of Shariah, Shariah Practice and Administration, Shariah legal education and Shariah Practice and Procedure in the Country.21 Issues pertaining to the judicial set-up and sources of the applicable laws in Shariah Courts in the federation have however not so much received the desired academic and analytical attention. It had always been taken for granted that there was no need for a study on the application of the doctrine in Shariah Courts as if it is a source of Islamic law. This has a far reaching effect on attainment of justice in Shariah courts in the federation.

1.3.0. B.

RESEARCH QUESTIONS

In view of the statement of the problem and aims and objectives of this research stated above, this dissertation answers the following questions: i. Is the doctrine of stare decisis relevant to the Shariah Court system in Nigeria? ii. Why is the doctrine of stare decisis not relevant to the Shariah Court system in Nigeria? iii. Can Islamic law principles permit the application of stare decisis vis-à-vis the nature of the Shariah Court system in Nigeria? iv. What is the implication of the trends on application of the doctrine to Shari‟ah matters in the country?

21

Some of these materials are referred to and relied upon in this research.

6

1.4.0. SCOPE OF THE STUDY This study is limited to the examination of the relevance of the recognition of stare decisis as a source of law in Nigeria to the Shariah Courts in the nation. A study on stare decisis as a source of law in Nigeria is wider than what this study focuses on. Other aspects of the study that can be undergone on the subject which fall outside the scope of this study include its relevance to the customary court system in the country. This study cannot therefore pretend to be covering all that can be said on the relevance of the doctrine of stare decisis to the Nigerian judicial or court system. This study is also constrained to an examination of what has been the trend in that regard to determine whether things are working the way they should.

1.5.0. JUSTIFICATION AND SIGNIFICANCE OF THE STUDY Stare Decisis occupies a very significant place in the general administration of justice in Nigeria. It is so much jealously guided by the higher courts of the land that any attempt to deviate from it by any lower court is usually met with the gravest anger from the higher Bench. In fact, higher courts have had cause to regard such deviation as an act of “judicial rascality”.22 Thus, observance of the doctrine goes a long way to shape justice of cases in one way or the other in the country. However, while the application of the doctrine in the appropriate common law courts may assist the course of justice, it will be otherwise if it is observed in any court where it is not relevant.

This study is therefore justified since it puts the relevance of the doctrine to the Shariah Court System in the country in its proper perspective and therefore properly guides parties to Shariah matters to refrain from observing the doctrine since this research eventually reveals that the doctrine is alien to Islamic law and therefore not relevant to the Shariah Court System in the country. The study is equally significant since it lays to

22

See for example, Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536

7

rest all doubts and confusions about the actual applicable sources of law in Shariah Courts in the state.

1.6.0. RESEARCH METHODOLOGY This study is library based and for this reason, reference is made to published and unpublished works of legal writers, hard and soft materials, as well as internet documents. Qualitative, interactive oral interviews were also conducted with some selected Shariah practitioners including some retired Alkalis, Kadis of the Shariah Court of Appeal, Judges sitting on Islamic law matters at the Area Courts and Shariah law teachers. The interview mode was unstructured. Essentially, the research methodology adopted in this research is both comparative and analytical. The various sources of information relied upon in this research as enumerated herein have been critically appraised, analysed and compared in arriving at the conclusion reached in this research.

1.7.0.

LITERATURE REVIEW

There are indeed numerous materials on the subject of the doctrine of stare decisis. The doctrine has been discussed in many textbooks, essays, articles and the likes on the Nigerian legal system. Essentially, the relevant literature that becomes necessary to be reviewed are those written on the Nigerian law and in which the doctrine was examined; and these are basically written in English language. Also relevant is the literature written on administration of Islamic law in Nigeria and other related subjects and in which the doctrine was examined vis-à-vis Islamic law. Some books on Islamic law, mostly written in Arabic, are also of relevance to this study.

It would be noted that, one common missing gap in all these various materials, as it is demonstrated below in their review, is that they have not really answered the question whether the doctrine is relevant to the Shari‟ah court system in Nigeria or not; they have either noted the trends on the attitude of courts in applying the doctrine to Shari‟ah cases

8

in the country; or specifically states the position of Islamic law on the doctrine or project into the feasibility of the application of the doctrine by Shari‟ah courts in the nation. Thus, the need for this study is imperative. A. E. W. Park, in his popular book, The Sources of Nigerian Law23 in Chapter 4 thereof, treated the doctrine referring to it as “case law”24 and particularly recognised it as one of the sources of law in Nigeria which, although at the period the author wrote the book in 1963, constituted “the least creative of law in the country”.25 Even though the author made a very impressive attempt to state the technical rules of precedent applicable to the Nigerian courts as at that time, basing some of his conclusions purely upon speculation for the reason that the authorities available to him at that moment were very few, the limitation of his research was expressly disclosed when he stated that, “no attempt will be made to discuss them in relation to any customary, native, or Moslem courts”.26 Thus, the relevance of the doctrine to the Shari‟ah court system in the country was completely out of his consideration.

Another very significant and relevant work is the 1979 book of Akintunde Olusegun Obilade titled The Nigerian Legal System27. In Chapter 7 of the book, running through pages 111 to 135, the author discussed the doctrine. He especially posited that, “the doctrine of judicial precedent as a common law doctrine applies to only those courts which are empowered to administer adjective common law of which the doctrine forms part”.28 A further study of the argument of the author would seem to have answered the questions agitated in this research; particularly creating this impression is his submission that, “Customary courts, Sharia Courts of Appeal and area courts are not empowered to
23 24

Park, n.1 Ibid, pp.54 – 64 25 Ibid, p. 54 26 Ibid, p. 56 27 n.4 28 Ibid, p.114

9

apply adjective common law. Therefore, the common law doctrine “does not apply to them; nor does any legislation provide for a precedent system in customary courts”.29 However, the concluding part of his analysis in that respect shows clearly that the author is not in clear picture of the correct position on the relevance of the doctrine to, especially, Shari‟ah courts. This cannot be otherwise, in view of his worry and enquiry that;

The question now arises whether there is a rule of precedent under customary law … it appears that there is nothing in the attitude of customary courts, area courts or Sharia Courts of Appeal to support the view that there exists a system of precedents under customary law. 30

To him, the only concrete thing, that justifies the conclusion that the doctrine is not relevant to the Shari‟ah courts, is the absence of any organised system of law reporting covering decisions of such courts.31 Thus, the author still leaves the question hanging, whether or not, considering the circumstances on ground in the country and relevant principles of Islamic law, the doctrine is relevant to the Shariah Court system in Nigeria.

It should particularly be noted that, the confusion of the author on the position of the doctrine under Islamic law became more manifest when, at pages 133 to 134, he, at the length, maintained that, “the doctrine does not apply to the Sharia Court of Appeal of any of the northern States because the court is not empowered to administer adjective common law” while at the breadth, he posited that, “by virtue of the appellate systems, the Sharia Court of Appeal should follow the decisions of the Supreme Court of Nigeria.

29 30

Ibid, p. 114 Ibid, pp. 114 -115 31 See ibid, p. 115, where the author forcefully posited that, “The argument against the existence of a rule of precedent under customary law is strengthened by the fact that there is no organized system of law reporting covering decisions of such courts”. It should be noted that, his reference to customary law includes Islamic law.

10

Similarly, customary and area courts should follow the decisions of the higher courts”; thereby justifying the relevance of the doctrine to the Shariah courts to that extent. For all these mix-ups, there is therefore the need for this present study to fill the gap and clear the air on the uncertainty which the author has created. On his own part, in his Sources of Nigerian Law,32 Niki Tobi33 identifies judicial precedent as “a steady growth of Nigerian case law which can be reckoned with as an original source of Nigerian law”.34 The author did not however look at the doctrine from the Islamic law perspective at all; he essentially discussed the doctrine vis-à-vis the principles regulating its application in the country.35 A lacuna has therefore been created for this research to fill. John Ohireime Asein‟s Introduction to Nigerian Legal System,36 is another significant work on Nigerian law that treats the doctrine in some details. The author recognises the doctrine as “a feature of Nigerian traditional jurisprudence”.37 It is manifest that Islamic law is not included or intended as part of what he refers to as “Nigerian traditional jurisprudence” when he states further that;

To allay any doubts, it should be reiterated that the notion of precedent, at least in the loose sense of the word, is not entirely alien to the traditional system of adjudication. Antecedent rules or decisions serve as reference points to guide elders in the determination of subsequent cases. Like cases are, as much as possible, treated alike so that members of a community could predict the outcome of a breach or
32 33

Tobi, Niki, Sources of Nigerian Law (MIJ Professional Publishers Limited, Lagos, 1996). He was a Justice of the Supreme Court of Nigeria. His Lordship was also a Professor of Law, former Dean, Faculty of Law and Deputy Vice Chancellor, University of Maiduguri, Maiduguri – Nigeria. 34 N.31, p. 77 35 See ibid, pp. 77 – 102 36 Assein, n.1 37 Ibid, p. 67

11

misdemeanour or the legal implication of a proposed line of conduct. It equally provides the societies concerned with known standards for the ascertainment of the justice or otherwise of particular decisions”. 38

Certainly, he could not have been referring to Islamic law and talked about “elders in the determination of subsequent cases”. The author did not consider the relevance or otherwise of the doctrine to Shariah court in the whole of chapter 4 dedicated to the analysis of the doctrine. To even make any inference contrary to this at all, the conclusion that can be reached is simply that, to the author, “Customary and Area Courts are the least concerned with the intricacies of judicial precedent”39 and the reason for that is simply “because many of these courts are presided over by laymen who are not sufficiently knowledgeable in the general law to be able to appraise the decisions of superior courts”,40 and not because the doctrine is not relevant to them. Thus, he too has not answers the questions to be addressed in this research. P. U. Umoh‟s Precedent in Nigerian Courts41 is perhaps the only specialised and most comprehensive book dedicated to the doctrine vis-à-vis the trends on its observance in the Nigerian courts, which thes researcher was able to lay his hands upon in the course of this research. The book provides very useful information on the history and growth of the doctrine in Nigeria. The book is particularly very handy in providing this research with an insight into cases decided on Islamic law principles and in which the doctrine was a sort of applied. All in all, the author demonstrated clearly that the trend is that the doctrine is equally in observance in Shariah courts in the country, but all the same he did not consider the relevance of the doctrine to the Shariah courts, notwithstanding its application in those courts. This research will also fill this lacuna.
38 39

Ibid, p. 69 Ibid, p. 84 40 Ibid, p. 84 41 Umoh, P. U, Precedent in Nigerian Courts (Fourth Dimension Publishers, 1984).

12

The PhD thesis of late Ali Musa Ajetunmobi titled Shari‟ah Legal Practice in Nigeria: 1956 - 198342 prepares the necessary foundation for this study especially with regard to providing a very useful insight on how the practice of Shariah fared in the Nigerian courts within the period of his study. The author specifically mentioned “the Nigerian case law” as one of the five sources of Nigerian law he identified.43 Even though the author provided useful information on instances of misapplication of Islamic law principles in Nigerian courts, especially at the appellate level, he did not consider the implication involved in some of those cases where the doctrine of stare decisis was applied, notwithstanding that he made reference to some of such cases and even appended copies of such judgements to his work. This is a very missing gap that will be filled by this research. N. M. Abdulraheem (Mrs), in her “Judicial Precedent: Concept and Operation in Nigerian Legal System”44, argues that “the doctrine of judicial precedent applies only to courts, which are empowered to administer common law rules. The doctrine does not however apply to the Shariah Courts and Customary Court directly. They may however be bound in principles by virtue of appellate system where their decisions ultimately reach the Supreme Court”.45 Since her contention is that the doctrine may indirectly be applicable to Shariah courts, she has equally not answered the questions posed by this research and it is therefore necessary for this research to fill that gap.

42

Ajetunmobi, Ali Musa, “Shari‟ah Legal Practice in Nigeria: 1956 - 1983” (Unpublished PhD thesis in the Department of Religions, Faculty of Arts, University of Ilorin, Ilorin, Nigeria, June 1988) 43 Ibid, p. 16 44 Abdulraheem, N. M. (Mrs), “Judicial Precedent: Concept and Operation in Nigerian Legal System”, Ilorin Bar Journal, Vol. 1. No. 1. April, 2002, pp. 141 - 155 45 Ibid, p. 145

13

In her Family Law,46 Margaret C. Onokah, considered the relevance of the doctrine to customary courts, but did not particularly look at the position in Shariah courts. Her argument, which is self explanatory, is produced as follows:

Customary Courts do not consider themselves bound by any principles of English common law, inclusive of the stare decisis principle. The practice and procedure in these courts are governed by „native law and custom‟. A Customary Court may refer to a previous decision of a higher court on customary law not because it is binding on it, but as mere evidence.47

Failure of the author to pronounce on the situation in Shariah courts in the main makes this research a welcome development. The book of M. A. Ambali entitled: The Practice of Muslim Family Law in Nigeria48 is also relevant to this study. It particularly provides the necessary background information on the history of Shariah in Nigeria. However, even though it dwelled so much on the effect of colonial administration on Shariah in the country, 49 it did not consider the influence of colonial law on the Shariah adjudication which could have made him proffer his view on the problem which the present study seeks to solve. It is for this reason that this research will be an improvement on Ambali‟s book too. The recent book of Adamu Abubakar named Islamic Law – The Practice and Procedure in Nigerian Courts50 is also relevant to this study in that it gives an almost up to date
46 47

Onokah, Margaret C., Family Law (Spectrum Books Limited, Ibadan, 2003 [2007 reprint]) Ibid, pp. 49 - 50 48 Ambali, M. A., The Practice of the Muslim Family Law in Nigeria, (Zaria: Tamaza Publishing Company Limited, Second Edition, 2003) 49 Ibid, pp. 16 - 20 50 Abubakar, Adamu Islamic Law – The Practice and Procedure in Nigerian Courts (Adamu Abubakar & Co., Kano, 2008)

14

detail on the Islamic law practice and procedure in the Nigerian courts, as its title indicates. The author even does excellently well in examining all issues that pertain to giving of judgement under Islamic law and the position of Islamic law on appellate and review practices.51 In fact, one would expect that the author would digress to the subject of this study when he discussed issues of estoppel per rem judicattam;52 whether a judge can reverse his judgment;53 and, review of judgment by another court;54 but, he did not do that. It is therefore the lacuna created in that regard that this research will fill.

There are some writers on administration of Islamic law in Nigeria who have variously made attempts at analysing the doctrine of stare decisis from a general Islamic law viewpoint, without necessarily positing in clear terms whether the doctrine is relevant to the Shariah court system in the country or not. Such writers include Yadudu,55 Ladan,56 Zubair,57 Oba
58

and others,59 who have occasionally reacted to some specific Islamic

law cases where the doctrine of stare decisis was observed or have examined the position of Islamic law generally on the doctrine, without critically examining the relevance which the doctrine has to the country, giving the courts structure in the nation. The latitude has left practitioners and Shariah Courts at a cross on the correct approach they should adopt in applying and observing the doctrine or otherwise. Failure to arrive at a conclusion on the relevance of the doctrine to the Shariah Court system in the country
51 52

Ibid, Chapter Seventeen, pp. 242 – 266 and Chapter Eighteen, pp. 267 -280 Ibid, pp.247 - 251 53 Ibid, pp. 251 - 252 54 Ibid, pp. 252 - 254 55 Yadudu, Y. H. “Colonization and the Transformation of Islamic Law in Nigeria”, Journal of Legal Pluralism, 1992-nr-35, p131 56 Ladan, M. T. Introduction to Jurisprudence – Classical and Islamic (Malthouse Publications: 2006). 57 Zubair, A. “Re-Introduction of Shari‟a Courts in Nigeria: Some Perspectives” Shari‟a Implementation in Nigeria, Issues and Challenges on Women‟s Rights and Access to Justice (Women‟s Aid Collective: 2003) pp228-246. 58 Oba, Abdulmumini A., “Lawyers, Legal Education and the Shari‟ah Courts in Nigeria” Journal of Legal Pluralism, 2004-nr-4, pp. 135 – 137 59 See for example, Aminu Bello, “Binding Precdent and Shar‟a/Islamic Law in Nigeria: An Attempt at a Civil-Criminal Distinction” in Islamic Law and Law of the Muslim World Research Paper Series No. 0967 (New York Law School) available at http://ssrn.com/absract= 1397737.

15

has a far reaching effect on attainment of justice in Shariah Courts. It is this lacuna in the literature of these writers that this research will fill.

Now, before concluding, reference must be made to the recent joint article of Hassan Ahmed and Sa‟id Adekunle Mikail titled “Feasibility of the Doctrine of Judicial Precedent in Shari‟ah Courts”60 in which the writers undertook a survey/feasibility study on the application of the doctrine in Shariah courts in England, Malaysia, Nigeria and Pakistan. At a first glance at the topic of the paper, one would expect that the writers would answer the questions raised in this research. There was a very close effort to that in the work especially with their conclusion that, “this paper stresses on the point that the doctrine of stare decisis and judicial precedent can be applied in Shari‟ah courts system as guiding precedent but not binding”.61

A careful study of their arguments before arriving at this conclusion would show clearly that, the question of the relevance of the doctrine to the Shariah court system in Nigeria was not addressed by them. All they rely upon to arrive at that conclusion is simply that, under Islamic law, “it is allowed to take guidance from previous decisions and there is no express prohibition in Shari‟ah on them. In addition, having guiding precedents rather than binding would alleviate some shortcomings therein and the benefits of it such as assurance of the judicial consistency, certainty and reliability in Shari‟ah legal system”. If the doctrine is not in tandem with the principle of Islamic law, can the doctrine validly provide the guidance suggested by them? Will this not be another way of making Islamic law to be applied in its own courts “on common law terms rather than as an independent

60

Available at http://www.agc.gov.my/agc/onlinesys/KnowledgeSharing/pdf/Syariah/Jan2010/4th%20International%20C onference/24.%20FEASIBILITY%20OF%20THE%20DOCTRINE%20OF%20JUDICIAL%20PRECEDE NT%20IN%20SHARI 'AH%20COURTS_hasan.pdf (accessed on 5/07/2010) 61 Ibid, p. 19

16

system of law”?62 This study is therefore necessary to put the issue in its proper perspectives.

Other works that will equally be copiously referred to for their relevance to this research include F. H. Ruxton‟s Maliki Law;
63

Abdulkareem Zaidan‟s Nizomul Qodoh Fi

Shari‟atul Islmiyyah; Bin Hazim‟s Al-Muhala Bil-Athaar; and, Imam Khassaf‟s Aadaab Al-Qaadi.

To conclude, it is very significant that this work has a lot to add to knowledge and it really sets out to address a very pressing problematic issue in the administration of Shariah in Nigeria and the methodology adopted also goes to justify that it is going to proffer effective solutions to solve the problem, which has not yet been solved. The review of literature done above would bear testimony to this as the position. The literature reviewed above is however not exhaustive on the subject of this research.

1.8.0.

STRUCTURE OF THE STUDY/OVERVIEW OF THE CHAPTERS

This study is accompanied by an Abstract. It is divided into five chapters. Chapter One will be the introductory chapter and it covers such subjects as introduction; Statement of the Problem; Aims and Objectives of the Study; Scope of the Study; justification and Significance of the Study; Research Methodology; Overview of the Chapters; and, Literature Review.

Chapter Two looks at the doctrine of stare decisis and Court System in Nigeria where Purport, Status and History of the doctrine in the country; and general structure of court

62

These are the words of Oba, Abdulmumini A., in his “The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction”, The American Journal of Comparative Law, Volume LII, Fall 2004, Number 4, p.862 63 N. 15, especially Chapter XXXVIII, pp. 273 – 291

17

system in the nation are considered. Islamic Law Perspective on stare decisis is the focus of Chapter Three.

Chapter Four undergoes a general appraisal of the practice of the doctrine of stare decisis in Shariah courts in Nigeria. Thus, it critically examines the relevance of the doctrine to the Shariah Court System in the country by looking at the trends on the observance of the doctrine in Islamic law cases; bringing forth the outcome of the interviews conducted; reconciling the doctrine with Islamic law principles and judicial practice and particularly come up with an authentic list of the sources of law applicable in Shariah courts in the country. The chapter makes a decisive position on whether there is any place for the doctrine in the Shariah Court System in the federation while it concludes by projecting into the possibility of a Shariah Court System without stare decisis in the country.

Chapter five is the conclusion and it cover findings from the previous chapters; Summary and Inferences from the Study; and Recommendations.

CONCLUSION Based on the forgoing, it is clear that the study undergone in this dissertation is of very interesting relevance to the judicial system in Nigeria and contributes to further knowledge on the administration of Islamic law and how Shariah Courts work in Nigeria. Those involved in the administration of Islamic law in the country are better enlightened and properly guided on what should be their attitude towards observing the doctrine of stare decisis in Shariah Courts while adjudicating on Islamic law matters.

It therefore follows that this research provides an all encompassing insight into the position of Islamic law in the doctrine of stare decisis and whether the situation in Nigeria can make any difference in the practice in Shariah courts in the country.

18

CHAPTER TWO COURT SYSTEM AND THE PLACE OF STARE DECISIS IN THE NIGERIAN LEGAL SYSTEM

2.0.0. INTRODUCTION: THE IDEA OF A LEGAL SYSTEM By legal system, it is meant the system of law in operation within a particular society, locality, nation, enclave, state or even among a particular set of people bound together by some affiliations be it social, cultural, religious, political or historical, which comprise a legal order of normative values.64 The idea of a legal system will be well appreciated by noting that the view held by one system of law about any legal concept or sources of law may vary in another; for instance, there are societies where the western notion of law is altogether unknown.65 Thus, it can be posited that as many as there are countries, peoples and nations, there also are legal systems.66 But, the focus here is on the Nigerian Legal System.

Therefore, this chapter provides background information on the Nigerian legal system, nature of its court system and the place of the doctrine of stare decisis in the country‟s legal corpus.

64 65

Asein, n.1 p.1 David and Brierley, n.1 p.5 66 A deeper understanding of the idea of a legal system in the contemporary world would reveal that, legal system is now in two forms viz; municipal or national legal systems; and, international, universal or world legal systems. Example of the former are the systems of law of various individual countries, like the Nigerian legal system; while examples of the latter are the systems of law that have gained universal applicability and are no longer territorially limited such as Islamic law; common law; Roman law; Socialist law; etc. See generally, David and Brierley, n.1. It should be noted that in most cases, what constitute the national legal system in a country may be a combination of some of the universal legal systems. This has been stated to be true of Nigeria; see Oba, Abdulmumini Adebayo, “Harmonisation of Shari‟ah and Common Law in Nigeria: Problems and Prospects” (Paper presented at the International Conference on “Harmonisation of Shari‟ah and Civil Law” organised by the IIU, Malaysia held in Kuala Lumpur on 21 – 21 October, 2003), p1

19

2.1.0. OVERVIEW OF THE NIGERIAN LEGAL SYSTEM Historically, the development of what has culminated into the Nigerian legal system in its present form dates back to 1863 when the English law was officially introduced.67 Prior to that period, what was in existence that could be referred to as the Nigerian legal system, if there was anything like that;68 was a combination of various existing traditional legal systems basically in the form of Islamic law and customary laws. This historical fact has informed an argument that those traditional legal systems of law existing before the English law came in, with the exception of Islamic law, are the Nigerian living law69 and perhaps, by implication, the real Nigerian legal system. But, this is not the view subscribed to on the idea of Nigerian legal system in this dissertation. What is posited here is that, the Nigerian legal system, which is the same thing as the Nigerian law, is the totality of the sources of the law operative in the country and the machinery put in place to implement and administer them, as it will be demonstrated below. Accordingly, one view posits that, the Nigerian legal system is the “totality of the laws or legal rules and the legal machinery which obtain within Nigeria as a sovereign and independent African country”.70 This implies that, to have a grasp of the Nigerian legal system would require one to “possess some knowledge of the sources, the history of the courts, and the elementary principles of law”71 as well as various doctrines applicable in the country as a legal order regulating the affairs of the people living within her territory.
67

Elias, T. Olawale, The Nigerian Legal System (London: Routledge and Kegan Paul Ltd, 1963) p. 3; Park, n.1, p.1; Awoyale, Oladoyin, “The Importance of Indigenous Laws in Nigeria”, The Jurist, V0l. 8, 2003 (Law Society, Faculty of Law, University of Ilorin, Nigeria), p.169 68 See generally, Tobi, n.32, pp.1-16 69 For an argument in this direction, see Ayinla, Lukman A., “The Nigerian Living Law and Its Relegation, The Sociological and Historical Perspectives”, University of Ilorin Law Journal - (2006) UILJ Vol. 1, pp.191-213 70 Ojo, Abiola, Constitutional Law and Military Rule in Nigeria (Ibadan: Evans, 1987) p.82 cited in Asein, n.1, p.1, fn.3 71 See Elias, n.67, p. ix

20

It is deducible from the foregoing that, to have a clear picture of the Nigerian legal system, one must know the sources of the law in the country, the structure of its court system and the working modalities of the machinery implementing the principles enunciated by those sources. This is what is captured as the Nigerian legal system. It is that distinct system of law peculiarly operating in Nigeria, uniquely making it to be different from others that may be found else where; notwithstanding the striking similitude that may be found between it and those others.72 Looked from another angle, the Nigerian legal system can be described as “common law system”;73 “mixed system”; or “multifaceted system”. Its striking characteristics of duality, diversity, legal pluralism, volume of external influence, system of precedents, order of judicial hierarchy, fusion of the legal profession, accusatorial or adversary system and military influence, also go a long way in shaping it into the form it now is.74 Giving a general overview of the Nigerian legal system and what it requires to appreciate it, Asein writes:
Consequently, the Nigerian legal system emerges as a unique system equipped with all its laws and necessary legal machinery in a selfcontained sovereign state. A detailed study of the Nigerian legal system should include its characteristic features, the sources of its laws and how the various institutions interact within a defined social economic and political milieu.75

72

For instance, a study of the legal systems of Aceh, Indonesia and Germany will show that they have close similitude with the Nigerian legal system, especially with the relevance which Islamic law also has in those countries. On this, see Siregar, Hasnil Basri, “Islamic Law in a National Legal System: A Study on the Implementation of Shari‟ah in Aceh, Indonesia”, Asian Journal of Comparative Law, Volume 3, Issue 1, 2008, Article 4; and, Mathias Rohe, “Islamic Law in German Courts”, Erschienen in Islamic Law in German Courts, Hawwa 1 (2003), S. 46-59 73 Asein, n.1, p.3 74 For explanations on these and other characteristics or salient features of the Nigerian legal system, see Asein, n.1, pp.4-8; Obilade, n.4, pp. 4-5; and, Oba, n.58, p.113 75 Asein, n.1, pp. 3-4

21

Put differently, the Nigerian legal system is a pluralistic legal system consisting of three types of laws namely Common Law, Islamic Law and Customary Law. 76 It is these three legal components that, if properly studied, would give detailed explanations on what may be conceived as other sources as well as the relevant machinery put in place to make up what can be termed the Nigerian Legal System.77 It must also be noted that, by its nature, the Nigerian legal system is seriously influenced by the Common law of England (shortened simply as Common Law)78 and for this reason, some people, even including legal writers, do print the picture of the Nigerian legal system through the negative of Common law.79 This can be misleading and may not represent the correct synopsis of the system. Common law is just “an aspect” or “a part” of the “whole” of the Nigerian legal system; which can neither be equal to nor more than the whole, a part of which it forms.80 To represent the Nigerian legal system as Common law alone is to present it in its most perverted or curtailed form.81

2.2.0. SOURCES OF LAW IN NIGERIA The focus here is simply to identify sources of law in Nigeria; it is not intended here to explain, appraise or analyse them. That will be appropriate in another research, but not
76

Ishola, Abdullahi Saliu, Role of a Judge in the Administration of Justice: Shari‟ah and Common Law Perspectives (Long Essay Submitted to the Islamic Law Department, Faculty of Law, University of Ilorin in Partial Fulfilment for the Award of Bachelor of Laws, LL.B (Hons), [Common and Islamic Law] Degree of the University of Ilorin, October, 2005), p.2; See also Oba, n.58, p.113 77 For example, as it will be shown later in this work, case law or judicial, precedent, equity, statutes of general application are extensions of Common law, notwithstanding that they are also considered as sources of law in the country in their own right. 78 See Ekundayo, A. A. M., “The Common Law of England – A Stranger or An Indigene in Nigeria”, in Ajomo M. Ayo. (Ed), Fundamentals of Nigerian Law (Lagos: Nigerian Institute of Advanced Legal Studies, 1989), p.204 79 It must be mentioned that this attitude has propelled the advocacy for the Nigerian Common Law as different from the Common Law of England applicable in the country. See Ekundayo, n.78, p.205 80 There is a scientific theory which states that, “the whole is greater the sum of its parts”. 81 Park, n.1, p9, seems to also share this sentiment when he writes: “…in Nigerian circumstances it is not possible to speak of the common law as a complete system forming residual law of the country. How, for instance, could the common law begin to deal with a chieftaincy dispute? For Nigeria the truth is that on some matters the common law forms the residual law; on some other matters customary law fulfils the role”. His reference to customary law here includes Islamic law.

22

here. Where the Nigerian legal system derives is what is meant by its sources. There are different approaches that have been variously adopted by different writers in giving what constitute sources of law in Nigeria. The approach is usually dependent on the bias of individual writers. One noticeable attitude of most writers however is that, they usually present those sources in a way that prominence will be given to English law; depicting it as being superior to other sources.82 The position here is that no one source can be held to be of more value than others save with empirical justifications.83

Shorn of the motive that might be behind the approach adopted by any writer, sources of the Nigerian law have been variously categorised into “primary and secondary sources”;84 “formal and historical sources”; “material or literal and legal sources”.85 It is also possible to have a much more narrowed classification into “criminal law and civil

82

For instance, even though Elias, n.67, titled his book Nigerian Legal System, his focus was basically on English law. He made this clear when he stated at page 3 that, “we are not immediately concerned here to elaborate the history of what the exact nature of the indigenous mechanism for securing law and order must have been before the advent of British rule. For one reason, such an effort would require another book in itself; for another, it would because of the absence of written records entail a good deal of hypothetical reconstruction of its real set-up. We would do better to concentrate on that part of the legal machinery which has been the creature of British enterprise in Nigeria”. Since this was the situation, he would have done well to have titled his book “British Legal Enterprise in Nigeria” or “English Legal System in Nigeria” or so, instead of the title given to it. 83 For instance, while advancing the prominence of Islamic law on common law within the Nigerian legal system, Zubair made the point forcefully thus: “The efficacy and relevance of various rules of law in our society are found in Islamic law not Common Law. Common Law remains an alien imposition on our society. If law should be taught as it exists at any given moment, Islamic Law should be given its proper precedence in the legal education of our law students for its relevance to the prevailing social and political systems of our community. And until this is done, the various social, economic and political conflicts in our society will defy solution”. See Zubair, Abdul-Qadir, Shari‟ah in Our Citadels of Learning – The Sixty-Sixth Inaugural Lecture, University of Ilorin, 2003, p.22. Similarly, in contending the superiority of customary law to both Common law and Islamic law in Nigeria, Ayinla, n.69, has contended at p.202 that, “The fact that Nigeria was colonized aided the introduction of the English Legal System into Nigeria. It was an imposition of a foreign legal system on Nigeria”; and at p.208 that, “Islamic law is also imported into Nigeria”. These seem to be empirical in nature. 84 See Olaosebikan and Olowu. n.1, p.125 85 Obilade, n.4, p.55; and Asein, n.1, p23

23

law sources”86 and “substantive law and procedural law sources”.87 It will ordinarily be appropriate to look at what and what have been categorised under these different classifications, but the concern here is to pin down what really qualify as sources of law in the country. The approach here is to bring into fore what writers have said on the issue.

To start with, in the view of Olaosebikan and Olowu;
The primary sources of law in Nigeria are of four types: (i) Received English Law, (ii) Nigerian legislation or statutes, (iii) and case laws and (iv) delegated legislation … Secondary sources includes (sic) customary law, international law, books, legal dictionaries, periodicals, newspapers, speeches etc.88

According to Ajetunmobi,89 “there are five major sources of Nigerian law: the custom of the people, Shari‟ah law, English law, Nigerian legislation, and the Nigerian case law”.90 Similarly, Park had earlier stated the sources of the Nigerian law in the following terms:

86

For the differences between these forms of law see Sanni A. O., “Aspects of Law” in Sanni, (Ed) n.1 21, p.29. For a study on the criminal law sources, see Karibi-Whyte, A. G., History and Sources of Nigerian Criminal Law (Ibadan: Spectrum Law Publishing, 1993) 87 For differences between the duos, see Sanni, n.86, p.30 88 Olaosebikan and Olowu, n.1, pp.125-126. It is surprising that customary law is categorised as a secondary source of law in a country where it is indigenous while the English law, together with all its adjuncts like case laws, which is a foreign law imported into the country is regarded as a primary source of law. This is one of the anomalies that have stricken the Nigerian legal system so much that many things are no more got right. 89 He was a Professor of Islamic Studies, with specialization in Islamic law, at the Department of Religions, University of Ilorin, Ilorin – Nigeria. He died in 2008. He has many published papers to his credit in both national and international journals. For instance, see his following publications: Ajetunmobi, Musa Ali; “Development and Value of Islamic Law of Bequest”, Hamdard Islamicus, Vol.XXIV, No.1, pp.29-35; “Kalalah in Islamic Law of Succession”, Islamic Culture, VOL. LXV, No.4, October, 1991, pp.47-79; “The Intricacy of Al-Awl (Pro Rata Reduction) in Islamic Law of Succession”, Islamic Culture, VOL. LXI, No.2, April, 1987, pp.51-69; “Towards an Orderly Approach to Neo-Ijtihad in Islamic Law”, JARS, Volume 6, December, 1989 (Department of Religions, University of Ilorin, Ilorin, Nigeria) pp.25-34. 90 Ajetunmobi, n.42, p.16

24

Thus the sources of Nigerian law fall into the following three categories: (1) English law. Mostly this consists of the general law of England that was introduced, or “received” into Nigeria, but before October 1, 1960, a number of English Acts or Orders in Council were enacted which applied directly to Nigeria, and a few of them remain in force. (2) The products of the local institutions established originally by the British authorities. This category in its turn subdivides into two parts: (a) Local legislation. (b) Nigerian case law. (3) Customary law, under that or one of the various other names which have been accorded to it – “native law and custom”, “native custom” and “local custom” are most commonly used in alternatives.91

Very closed to the list given by Park as highlighted above, Obilade states the sources as follows:
The sources of Nigerian law are: (1) Nigerian legislation (2) English law which consists of: (a) the received English law comprising: (i) (ii) (iii) the common law; the doctrines of equity; statutes of general application in force in England on

January 1, 1900; (iv) (b) Nigeria. (3) (4) Customary Law. Judicial Precedents.92 statutes and subsidiary legislation on specified matters.

English law made before October 1, 1960 and extending to

91 92

Park, n.1, pp. 1-2 Obilade, n.4, pp.55-56

25

For his different approach to the issue, what Asein considers as the sources of law in Nigeria deserves a special mention. He opines that;

The principal legal sources of Nigerian law are: (a) The Constitution; (b) Local statutes; (c) Case law; (d) English law, comprising Acts or Orders-in-Council applying directly to Nigeria, statutes of general application, the common law and doctrines of equity; and (e) Customary law.93

It would be noticed that, there has not been a complete harmony in the various sources of the Nigerian law given by different writers considered above. To therefore synchronise all the sources, it is here posited that, looked from whatever angle and presenting them in the most simplified format, sources of law in Nigeria, as at today, the year 2010, are as follows:94
1) Nigerian Constitution;95 2) Nigerian Legislations;96 3) Customary Law;97
93 94

Asein, n.1, pp. 23-24 Most writers would rather not want to consider the Constitution as a Source of Law but as the guiding, or organic law for all sources of law. For example, see the sources recognized by Tobi, n. 32, p.183. In fact, it has even been argued that, “Custom, judicial precedent and legislation are the main sources of law in common law jurisdictions”, including Nigeria. See Elegido, J. M., Jurisprudence (Ibadan: Spectrum Law Publishing, 1994 [reprint, 2002]) p. 243 95 The current Constitution in the country is the 1999 Constitution of the Federal Republic of Nigeria (hereafter called “the Constitution”). For a copy, see Pylee, n.10, pp. 1620-1764. The Constitution is considered as a “literary or material source”; “formal source”; and “legal source”. For details, see Asein, n.1, p25 96 This is a very encompassing source of the Nigerian law. It covers both state and federal enacted laws, and even by extension, the “bye-laws” of local governments. If it refers to federal enactments or statutes it is called “Acts”; State‟s as “Laws”, and for Local Governments, “Bye-Laws”. There are many matters in the country whose legal regulations are only found in legislations. For example, on laws governing education system in Nigeria, see Eleja, K. K., “Law and Education in Nigeria” in IQRA ANNUALLY – The Magazine of IQRA College, Ilorin, Nigeria, Vol 1 Issue 1 (IQRA College, Ilorin, nd) p. 59

26

4) Islamic Law;98 5) English Law;99 and, 6) Nigerian Case Laws;100

All the above listed sources fall under what may be termed legal or formal sources of law in Nigeria. There are other forms of sources such as historical and material sources, which are either explanatory of the nature of each of the legal sources 101 or serve as pointers to where the legal sources can be fished out102 or give a guiding impetus to
97

For a general study on customary law as a source of the Nigerian law, see Badaiki, A. D., Development of Customary Law (Lagos: TIKEN PUBLISHERS, Second Edition, 2001). 98 Until recently, Islamic law used to be considered as part of customary law and that is why, as it could be noted, except for Ajetunmobi, there is no specific mention of Islamic law as a source of law in Nigeria, by most of the writers mentioned above. This research is therefore an improvement in that regard. For a general study on how the attitude of including Islamic law as part of customary law has changed, see Abdulmumini A. Oba, “Islamic Law as Customary Law: The Changing Perspective in Nigeria”, International and Comparative Law Quarterly, Vol. 51, October 2002, pp. 817-850 (the author made the manuscript of that paper available to this writer and it is the pages of that copy, spanning pages 1-39, that will henceforth be referred to). 99 This comprises of principles and practices of Common law, doctrines of Equity, Statutes of General Application in force in England Law as at October 1, 1900; and Acts or Orders-in-Council made applicable directly to Nigeria. It is noteworthy that most of these components of English are now matters of historical relevance, most of them have become obsolete and completely lost touch with the reality in the country today and there is an ongoing call for most of them to be jettisoned. For example, it has been argued forcefully that, “it is no doubt an affront to our sovereignty if we continue to apply „statutes of general application‟” and that “we must face the nagging issue of the relevance to Nigeria, of laws fashioned in England for Englishmen. Laws that are not consistent with a nation‟s socio-politico and cultural realities are bound to fall later or sooner into disrepute.” See, Oba, A. A., “Statutes of general application – effect in Nigeria of subsequent repeal in England: Lawal v Ejidike & anor”, Abia State University Law Journal, Volume 6, No.1, 1999, p.75. The same call for the English law to be done away with, has led to the intellectual exertion on the realization of Nigerian Common Law. In fact, to ensure that common law of England does not influence the search, it has recently been contended that there is a possibility to achieve that goal on the basis of human rights yardstick. For the argument in this direction, see Nwauche, E. S., “A Bill of Rights as the Basis of A Common Law in a Pluralist Nigeria”, African Journal of Legal Theory, Volume 1, 2007, pp. 45-69 100 This is as different from the English case law that was initially applicable in the country. The case laws that now constitute a source of law are those developed by the Nigerian courts. On the present status of the Supreme Court of Nigeria vis-à-vis English courts, with the attendant effect on the emergence of the Nigerian case laws, see the pronouncement of Elias, CJN, in the case of MINISTER OF LAGOS AFFAIRS MINES AND POWERS & ANOR VS. CHIEF AKIN A OLUGBADE & ORS (1974) ALL NLR 748 at 754 101 For instance, classification into historical sources will group sources like English law and Islamic law under it based on the mode of their introduction into the country. 102 For example, legislations as source of law are contained in statute books; the latest codification of the federal statutes is the 2004 Laws of the Federation of Nigeria (LFN, 2004). Various states have also

27

proper understanding, appreciation or study of the legal sources.103 What therefore follows is that, when reference is made to sources of the Nigerian law, what is meant are the legal sources, which are truly the sources of law even without adding the prefix “legal”. It is here posited that, it is an over assumption to talk of legal sources and other sources; this is because other materials regarded as sources of law are “sources of law” improperly so called or no sources at all; at best, they can be regarded as “Aids, Compliments or Auxiliaries to Sources of Law in Nigeria”, they cannot even be seen as “Secondary Sources”.104 One other point that must perhaps be made is that, these “legal” sources are divisible into two, namely “substantive sources” and “procedural sources”. All the above mentioned sources are “substantive sources”; the “procedural sources” are the roots where the Rules regulating conduct of proceedings of courts are found.105 They are not within the scope of this study.106

codified their Laws. See for example, Laws of Kwara State of Nigeria, 2007. Nigerian case laws can be fished out from law reports. 103 Materials that provide this aid include law dictionaries, legal speeches, law journal publications and law textbooks. 104 This researcher does not approve materials like Newspapers, Journals and even text books as sources of law; not even in Islamic law where the works of jurists are held in the esteemed prominence has such view been advanced. 105 These sources are also divided into “civil procedural sources” and “criminal procedural sources”. For more explanation on “civil procedural sources”, see n. 106, below. The two “criminal procedural sources” applicable in the Southern and Northern Nigeria, respectively, are Criminal Procedure Act [CPA] and Criminal Procedure Code [CPC]. For further study on these sources, see Course Handbook on Criminal Procedure, Bar Part II Course, 2005/2006 Edition (Abuja, Nigeria: Council of Legal Education, Nigerian Law School) and Aluko, Oluwole, The Civil Procedure of the Superior Courts in Nigeria (Ibadan, Nigeria: Spectrum Law Publishing, 1997). 106 The power to make these (civil) Rules is usually vested in the Chief Head of each court and the power is traceable to the Constitution. See, Sections 236, 248, 254, 259, 264, 269, 274, 279 and 284 of the Constitution. Examples of the Rules are The Supreme Court Rules, 2010; The Court of Appeal Rules, 2007; Federal High Court Rules, 2009; etc. For a more comprehensive list of the Rules of most of State High Courts in the country, see Ishola, Abdullahi Saliu, “The Shari‟ah Approach to Challenging Jurisdiction (Wilaya) of Courts: A Model for Orthodox Courts in Nigeria” (unpublished paper, on file with the author), p18, fn. 80.

28

2.3.0. GENERAL STRUCTURE OF COURTS SYSTEM IN NIGERIA The word “structure” lexically connotes “the way in which something is organised, built or put together”.107 By structure of court system in Nigeria therefore, it means “the way courts are organised” in the country. A general overview of that organisation is what will be considered so that every conceivable structure of the court will be brought into fore. Brief notes will be given on each of the forms of the structure that will be considered. It must be noted that the court structure in Nigeria in all its ramifications, is a creation of the Constitution. This will be demonstrated at the appropriate stage of discussion. For ease of reference, it is posited in this paper that, the general structure of court system in Nigeria is in the followings forms:
1. 2. 3. 4. 5. Legal System Structure Administration Structure Jurisdiction and Function Structure Grading and Status Structure Other Forms of Structure108

The above highlighted forms of court structure in Nigeria will be briefly elaborated seriatim in what below follows. 2.3.1. LEGAL SYSTEM STRUCTURE One very unique feature of the Nigerian legal system is that, it is a composition of three systems of law which are independent legal systems on their own. These systems of law are customary law, English law and Islamic law.109 Nigerian courts have therefore been structure in such a way that each of the three legal systems have specialised courts where their laws are administered. This is what is meant by legal system structure.
107

Hornby, A. S. Oxford Advanced Learner‟s Dictionary of Current English, Fifth Edition (Oxford University Press,1995) p.1186 108 See generally, Ishola, n.76, p. 19 109 For an overview of these three legal systems, see David and Brierley, n.1, Part 3 (common law), Part 4 Title I (Muslim law) and Part 4 (Laws of Africa and Malagasy).

29

Accordingly, based on legal system pattern, Nigerian courts can be divided into:

i. ii. iii.

Common Law Courts; Customary Law Courts; and, Islamic Law or Shariah Courts.110

A critical study of Chapter VII of the Constitution will reveal the above arrangement. The Common Law Courts are as follows:
The Supreme Court;111 The Court of Appeal;112 Federal High Court;113 High Court of the Federal Capital Territory (FCT), Abuja;114

a. b. c. d.

110

For some explanations on this court structure, see Mukhtar, Sadiq, U., “The Role of Directors/Inspectors in the Administration of Justice in the Shari‟a/Area Courts” (Paper presented on Tuesday, 11 July, 2006, during a 5-day Workshop organised by National Judicial Institute (NJI) for Shari‟a Court Judges and Directors/Inspectors of Sharia Courts held in Zamfara State in 2006) 111 This is the apex court of the land. Final appeal in any matter from Court of Appeal, where there is one, lies to it. So, for various courts of all the three legal systems, this court serves as their final court. Generally on the court, see Sections 230-236 of the Constitution and Supreme Court Act, CAP S15, LFN, 2004 112 Appeal from High Courts (State or Federal) lies to this court. See generally, sections 237-248 of the Constitution and Court of Appeal Act, CAP C36, LFN, 2004. 113 See sections 249-254 of the Constitution and Federal High Court Act, CAP F12, LFN, 2004 114 See sections 255-259 of the Constitution and section 13, Federal Capital Territory Act, CAP F6, LFN, 2004

30

e. f. g.

High Court of a State; Magistrate Courts;115 and, District Courts (as the case may be).116

Customary Law Courts are as listed below:
The Supreme Court;117 The Court of Appeal;118 Customary Courts of Appeal of States;119 Customary Court of Appeal of the FCT, Abuja;120 Customary Courts (as the case may be); 121 and, Area Courts (as the case may be).122

a. b. c. d. e. f.

Islamic law or Shariah Courts in the country, in a holistic approach, are the followings:123

115

Magistrates‟ Courts are so called when they sit on criminal matters while they are referred to as District Courts when they sit on civil cases in Northern Nigeria. They are called by the same name in all proceedings and sessions in Southern States. The former is the practice in the FCT. 116 This is only in existence in Northern States as a court of civil jurisdiction. See n.114 and Obilade n.4, pp. 204-206 117 See n.111 118 See n.112. See particularly Sections 240 and 245 of the Constitution. 119 See sections 280-284. This court hears appeals from customary courts and it is commonly in existence in Southern States. Kaduna is about the only Northern State that has established the court and also established customary courts. There are also instances where appeal would lie from area courts to the court where the court exists without customary courts being in place. For detailed study on all of these, see Olubor, Joseph Otabor, “Appeals from the Customary Courts to the Customary Courts of Appeal: Rules, Procedure, Practical Challenges and Options for Greater Efficiency” (Paper presented at the 2005 Induction Course for Newly Appointed Judges and Kadis, held at Abuja). 120 See sections 265-269 of the Constitution. It must be noted that both Customary Courts of Appeal of States and of the FCT can only exercise civil appellate jurisdiction; they do not have the potential for criminal jurisdiction, unlike Sharia Courts of Appeal that have been acclaimed to have possible criminal and even original jurisdictions. See generally, Oba, A. A., “The Criminal Jurisdiction of the Sharia Court of Appeal and the False Analogy of the Customary Court of Appeal”, The Jurist, V0l. 8, 2003 (Law Society, Faculty of Law, University of Ilorin, Nigeria) pp.151-162 121 See n.119 122 See n.120. This is particularly the case in any State where there exists Customary Court of Appeal without customary courts.

31

a. b. c. d. e. f. g. h.
123

The Supreme Court;124 The Court of Appeal;125 Shariah Courts of Appeal of States;126 Shariah Court of Appeal of the FCT, Abuja;127 High Court of a State (as the case may be)128 Customary Court of Appeal of a State (as the case may be) 129 Area Courts (as the case may be);130 Shariah Courts (as the case may be);131 and,

For a general study on them, see Abikan, Abdulqadir Ibrahim, “The Application of Islamic Law in Civil Causes in Nigerian Courts”, Journal of International and Comparative Law, June 2002, pp. 88 -115. This writer was only able to have access to the manuscript copy of the paper spanning 26 pages. Henceforth, the pages will be cited as appeared in the manuscript. 124 See n. 111 125 See n.112 and particularly sections 240 and 244 of the Constitution 126 See sections 275-279 0f the Constitution. See generally, Oba, n.62 pp.859-900 127 See sections 260-264 of the Constitution 128 This is due to the fact that in States that have not declared Shariah as their official state law, appeal in Islamic law matters, other than in Islamic personal law, goes to the High Court. A typical example of this is the tussle over Immamship (leadership of the Mosque). See further Abikan, n.123, pp. 3 – 7; Abdul Salami v. Salawu (2002) 6. S. C. (Pt. II) p. 196; and, Alhaji Ola Carpenter v. Alhaji Oba Carpenter (1998) KSCAAR, p. 1 129 This is the situation in States in Southern Nigeria where neither Area Courts nor Sharia Courts are in place, notwithstanding the overwhelming population of Muslims in those States. Matters of Islamic law are heard and determined by customary courts and the appeal would lie to this court in that part of the country; although this is not without its attendant perversion of justice in Islamic law matters, especially in Islamic matters of personal status of Muslims like marriage, divorce, inheritance, will; etc. Luckily, some researches have been conducted on this anomaly and Muslim elites in the Area are making efforts to provide their fellow Muslims with alternatives to the courts. See the following: Sanni, Ishaq Kunle, “Independent Sharia Court Enriching the Nigerian Legal System: Oyo State in Spectrum”, Al-Maslaha – Journal of Law and Religion, Vol. 4, 2007 – 2008, pp. 35 – 50; Opeloye, Muhib O., “The Realisation of the Shari‟ah in South-West Nigeria: A Mirage or Reality?” in Oseni, Zakariyau I. (Ed), A Digest on Islamic Law and Jurisprudence in Nigeria – Essays in Honour of Hon. Justice Umaru Faruk Abdullahi (PCA), (Auchi, Edo State – Nigeria: Darun-Nur, 2003) pp. 28 – 45; Abdul Lateef, Abdul Hakeem, “The Nigerian Constitution and Protection of Rights to Freedom of Religion: The Muslim Experince” (Paper presented at the 4th National Conference of Muslim Lawyers Association of Nigeria [MULAN] held at the University of Ibadan on 25th June, 2010), pp.17-20; and, Ishola, Abdullahi Saliu, “Shariah in the Fifth Republic of Nigeria: A Case for Further Advancement”, Al-Bayan – The Explanation, No. 6, Jumadal Thani, 1428 AH – July, 2007 CE (Muslim Students‟ Society of Nigeria, University of Ilorin Branch); pp. 49 - 51 130 See for example, Section 4 (1) (a) and (2) of the Area Courts Law CAP. 13, Laws of Kwara State, 1994 131 This is a new development in some States of Northern Nigeria since 1999, with Zamfara State taking a lead in the crusade. With this, Islamic law matters are now handled purely by Shari‟ah courts while customary law cases involving perhaps non-Muslim members of the State are now handled by Area Courts. See generally Kano State Sharia Courts Law, 2000.

32

i.

Customary Courts (as the case may be).132

Before considering another structure, it must be noted that based on the legal system structure, the Nigerian courts are divided into English-style courts and non-English-style courts. While the former sees itself as advancing common law or English law (including legislations), the latter feels concerned about non-English law, i.e. customary law or Islamic law. The situation however is that both the Supreme Court and the Court of Appeal which should ordinarily be considered as non-English-style courts in some circumstances, are English-style courts at all times and in all circumstances and they conduct themselves as such. As it would be shown in some other parts of this study, this attitude has made the two courts in particular and other English style-courts in general, having course, based on the jurisdiction conferred on them to that extent, to apply the doctrine of stare decisis in matters where the legal system it relates to, does not have the same place which English law has for the doctrine.133 2.3.2. ADMINISTRATION STRUCTURE This form of structure is for administrative convenience; and, it is especially meant to delineate very clearly the authority that has the power of appointing, disciplining and removing various judicial officers. Also, it is through this structure that a clear demarcation is made between where judicial powers of the Federation and judicial powers of various States are vested.134 Based on this structure therefore, courts in Nigeria have been divided into State Courts and Federal Courts respectively.135 According to the

132 133

See n.66 See Onokah, n. 46 p. 39 134 See Sections 6 (1) and (2) of the Constitution 135 The implication of this is that there is no provision for Local Government courts in the country.

33

relevant provisions of the Constitution136 and other statutes, Federal and State Courts respectively are as listed below. Federal Courts:
            The Supreme Court of Nigeria The Court of Appeal The Federal High Court National Industrial Court137 Court Martial138 Federal Election Petition Tribunals139 Investments and Securities Tribunal. 140 The High Court of the Federal Capital Territory, Abuja The Sharia Court of Appeal of the Federal Capital Territory, Abuja The Customary Court of the Federal Capital Territory, Abuja Magistrates‟ Courts of the Federal Capital Territory, Abuja District Courts of the Federal Capital Territory, Abuja

136

Federal Courts are treated in the Constitution under Part I of Chapter VII covering sections 230 to 269 while Part II, which covers sections 270 to 284, is dedicated to State Courts. 137 This was established vide the National Industrial Court Act, 2006. It is a federal court because it is a creation of the National Assembly which is the legislative organ of the Federation [Sections 4 (1) of the Constitution] and it enjoys the same status of the Federal High Court [Sections 1 (3) and 3 of the Act]. For a study on the activities of the court, see Kanyip, Benedict Bakwaph, “The National Industrial Court: The Journey So Far” (A paper presented on “the workings and rules of the National Industrial Court” at the session of the Young Lawyers Forum at the 2008 Annual General/Delegates‟ Conference of the Nigerian Bar Association held from 23 rd – 28th August, 2008 at the International Conference Centre, Abuja under the theme, How Federalism Accommodates Diversity and Strengthens the Constitution). Even though the court can be rightly regarded as a federal court, the constitutionality of regarding it as a Superior Court of Record has been seriously contested. Thus, to regularise the anomaly, a Bill has been placed before the National Assembly to include it in the Constitution as such; the Bill is to serve as a form of amendment to the Constitution. On the progress made so far on the Bill, see Eric Ikhilae, “NIC Bill Inches Towards Passage by House of Reps”, The Nation (Newspaper), Tuesday, August, 17, 2010, p. 44 138 See Section 240 of the Constitution and generally Sections 118 – 145 of the Armed Forces Act (as amended), CAP A20, LFN 2004. See also, Umar, Aisha and Imhanobe, Sylvester, Quick Reference Material on Nigerian Law and Practice (Abuja: Temple Legal Consult, 2004) pp. 117 - 120 139 These are called “the National Assembly Election Tribunals”. See generally Sections 285 (1) of the Constitution. 140 It was created by the Investments and Securities Act, 1999. For a general view on the court, see Nigerian Investments and Securities Law Reports, (2004) NISLR, pp. 6 - 19

34

 

Area Courts of the Federal Capital Territory, Abuja Sharia Courts and other Courts of the FCT, Abuja

State Courts:141
          High Court of a State; Sharia Court of Appeal of a State; Customary Court of Appeal of a State; State Election Tribunals142 Local Government Election Tribunal;143 State Magistrates‟ Courts State District Courts State Customary Courts (as the case may be) State Area Courts (as the case may be) State Sharia Courts (as the case may be)

It must be noted that, there is no end to the number of more of the Federal or State Courts that can emerge144 and there are indeed some other courts that have been left out in this study.145 Also, the classification or structure of courts in Nigeria into state and federal is less significant “as it is only indicative that federal courts are normally

141

There are 36 States in Nigeria with a Capital Territory, in Abuja. See Section 3 (1) and (4) of the Constitution. Thus, each of the State Courts are ordinarily supposed to be 36 in number, but this is not so. Only few states have all the courts established. 142 These are known as the Governorship and Legislative Houses Election Tribunals with “jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house”. See Section 285 (2) of the Constitution 143 This hears petitions against any Chairmanship or Councillorship elections. It is usually established by a State Law and this is what qualifies it as a State court. See generally the Electoral Law of Kwara State. 144 See Sections 6 (5) (j) and (k) of the Constitution 145 For instance, this research has deliberately left out both Coroners Court and Juvenile Court not because they are no courts, but there is no clear cut approach in categorising them either as State or Federal courts. Study in this area can therefore be taken further perhaps in a research that is specifically focused on court system in Nigeria and no other subject.

35

financed and subject to the control of the federal organs …, while State courts are financed and subject to the control of the state organs”.146

2.3.3. JURISDICTION AND FUNCTION STSRUCTURE In terms of jurisdiction and function, Nigerian courts are divisible into Trial Courts, Courts of Original Jurisdiction, Courts of General Jurisdiction, Courts of Special Jurisdiction or Specialised Courts,147 Courts of Unlimited Jurisdiction, Courts of Limited Jurisdiction, Appellate Courts148 and Supervisory Courts. All the courts mentioned in the Constitution under Parts I and II almost fall under these various heads of classification under this structure, but with some variations. For instance, both the Supreme Court and the Court of Appeal qualify as courts of original,149 appellate150 and supervisory jurisdictions,151 but they may not fit in as courts of unlimited jurisdiction.152 Similarly, while the Shariah Court of Appeal can be (or capable of being) regarded as a court of general jurisdiction, exercising adjudicatory powers in both civil and criminal matters,153 the same thing cannot be said of the Customary Court of Appeal.154

146 147

Ishola, n.76, p.19 Examples of specialized courts are the Federal High Court; Shariah Court of Appeal; National Industrial Court, etc. 148 For a study on appellate courts and appellate civil practice in the country, see Obi-Okoye, A., Essays on Civil Proceedings, Volume 4 (Enugu, Nigeria: Fourth Dimension Publishing Co. Ltd., 1980) 149 See Sections 232 and 239 of the Constitution in respect of the duos respectively. 150 See Sections 233 and 240 of the Constitution in respect of the duos respectively. 151 See Sections 236 and 248 of the Constitution in respect of the duos respectively. 152 The truth is even that it is difficult to say any court will truly qualify as of unlimited jurisdiction. Such courts will only continue to be discussed in abstract. There is therefore, as a matter of fact, no court of unlimited jurisdiction in Nigeria. This is the position in this study. The claim usually made in favour of the High Court of a State as being a court of unlimited jurisdiction cannot be correct. 153 See Oba, n. 62, pp. 867 -877 154 See Oba, n.120

36

2.3.4. GRADING AND STATUS STSRUCTURE In consideration of how they are graded and the status in which they are variously placed, Nigerian courts are structured into Inferior and Superior Courts and it is this structure that has equally informed the argument that, “there are two major categories of courts in Nigeria”.155 The Constitution creates no doubt on what this structure connotes and the courts that fall under each class. It suffices to note that, the Supreme Court; the Court of Appeal; the Federal High Court; High Courts, Shariah Court of Appeal and Customary Courts of Appeal of States and of the FCT; among others, 156 are Superior Courts of Record.157 All other courts in the categories of Area Courts; Customary Courts; Magistrate Courts; and, District Courts; are inferior courts.158

2.3.5. OTHER PROPOSED COURT STRUCTURES IN NIGERIA This segment examines succinctly the propositions that have variously been made from different quarters on the court structure that should operate in Nigeria to enable the country take care of the interests of all the components of its legal system. The propositions have been approached from the backgrounds of legal system structure already in place, as considered above, and cost effectiveness; although the motive behind the agitation was initially more to foster ground for the emergence of “a Nigerian Common Law” or “a Common Law in Nigeria”159 than any thing else. The propositions are in between “Parallel Court System” and “Fused or Unified Court Structure”;160

155 156

Ambali, n.48 p. 79. See also Section 6 (3) of the Constitution Some other courts, like the National Industrial Court, have been statutorily declared to be Superior Courts of Record, outside the purview of the Constitution. On the constitutionality of this, see n. 137 157 See Section 6 (5) of the Constitution 158 See generally Obilade, n.4, pp.169 - 223 159 For differences between the two concepts, see Tobi, n.32, p. 185 160 See generally, Tobi, n.32, pp.183 -188; Oba, n.62, pp. 888 – 891

37

although what is currently on ground cannot be said to be either of the two, but a sort of what is here called “Mixed Court Structure” system.161

The Parallel Court Structure enables each of the three major legal systems constituting the Nigerian law, i.e. Customary law, English law and Islamic law, to operate separate courts from the trial court to the apex court ladders without having to come in contact with any court whose business is not solely with that particular legal system. For example, in this arrangement, in the administration of Islamic justice system, the courts in place may be in the forms of Sharia Court, Upper Shariah Court, High Sharia Court (of each State and of the FCT), Shariah Court of Appeal of Nigeria (Federal) and Final (Supreme) Shariah Court of Nigeria. Similar arrangements will also be made for both Customary Law and English Law respectively. 162 It must be mentioned that all Christians, both the moderate and extreme antagonists to operation of Shariah in the country, are “united in their opposition to parallel courts”.163 On the other hand, the “Fused or Unified Court” structure envisages the Nigerian courts to be arranged in such a way that, “there will be specialist Divisions of the High Court specializing in English-style law (the common law or the „general law‟), Islamic law, and customary law”.164 The inferior courts will also be patterned in a similar manner while both the Supreme Court and the Court of Appeal will retain their current structure. It must be mentioned that this was the initial arrangement planned for the country by the colonial Masters so much that the only inferior courts they expected to operate in the country were the Magistrates‟ courts; hence, it was the bid to remedy the attendant
161

There is uniformity of the court structure, i.e. “Fused or Unified Court Structure” at the top, i.e. at both the Court of Appeal and the Supreme Court; while down the line, there is diversification, i.e. “Parallel Court Structure” 162 To a large extent, the present arrangement in place can be adopted for the English law, just with some spattering modifications. 163 For details on this point, see Oba, n.62, pp. 888 – 891, particularly at 890 164 Oba, n.62, p. 890; Tobi, n.32, p. 187

38

anomaly that followed that arrangement that Native Courts (now Area Courts) were incorporated into the judicial system under the control of Chief Justice;165 and the more remedying approach was the introduction of the Shariah Court of Appeal. Thus, any attempt to reverse to that position in the country may not meet the interest of justice in Muslim the cases.

It must be observed that, the quest for a Nigerian common law cannot be a justification for adoption of Unified Court system at the expense of the more demanding interest of justice. For one, there is no way the Unified Court System will not breed injustice in matters of Islamic law; even the manageable existing Mixed System has not been able to cross this hurdle. It is therefore not enough that, in view of the peculiarity of Sharia, its separate identity should continue to be maintained in the Nigerian legal system, as argued by Tobi;166 the court structure must be parallel rather being fused. Thus, the search for a Nigerian common law cannot be achieved on the platform of Unified court system and it is equally doubtful that it can be accomplished on the basis of the Bill of Rights contained in the Constitution.167 This work is therefore of vehement position that, for justice not only to be done, but be truly seen to be done in all courts in Nigeria, focus must be shifted to the parallel court system.

165

Hill, D. H., “Comparative Aspects of the Maliki Law and Common Law of Agency”, Journal of the Centre of Islamic Legal Studies, Ahmadu Bello University, Zaria, Vol. 1, No. 2, p.53 166 Tobi, n.32, p. 186 167 A call is being made towards this direction. It is doubtful that human rights provisions in the Constitution can be used as litmus to emerge the Nigerian common law since they are mere declarations of common law principles [see Oluyede, P. A and Aihe, D. O., Cases and Materials on Constitutional Law in Nigeria, Second Edition (Ibadan: University Press Plc, 2003) p.131]. For this new approach to the search for a Nigerian Common law, see Nwauche, n. 99, pp. 45 - 69

39

2.4.0. PURPORT, HISTORYAND STATUS OF THE DOCTRINE OF STARE DECISIS IN NIGERIA Under this segment, the research looks at the meaning and definition of the doctrine of stare decisis; its types and categories; requirements for its operation; its merits and demerits; and finally, its history and its status as a source of law in Nigeria.

2.4.1. MEANING AND DEFINITION OF STARE DECISIS The doctrine of stare decisis (which can be translated simply as binding precedent) is a form of judicial precedent which is the highest in grade of all other forms,168 in terms of its force of authority as a source of law in any country, usually common law jurisdictions,169 where it is in practice. Judicial precedent itself is an off-shoot of the general concept of precedent. To therefore appreciate what the doctrine connotes, one must first understand what precedent in the general sense means and what judicial precedent in the narrowed meaning portends. Precedent is defined in the Oxford Advanced Learner‟s Dictionary as “a similar event or action that happened earlier”.170 Citing Chamber‟s Twentieth Century Dictionary, Umoh observes that, precedent in the general sense means “that which precedes; a past instance that may serve as an example” and what is significant before precedent can be said to exist is just that there must be “an occurrence that can be seized upon as an example for emulation for good or evil”171 and it does not matter whether it pertains to private life of
168 169

Other forms include persuasive judicial precedent Common law jurisdictions are mostly the formal British colonised or protected countries or countries on which Britain had serious influence. It is worthwhile to note that, in some legal systems like German law, French law and Scotch law, the doctrine of judicial precedent is unknown, while even though it is known in some others, it is of less significance, like in Roman law. Generally on this, see Gray, John Chipman, et al (Eds) The Nature and Sources of the Law (England: Dartmouth Publishing Company Ltd., 1997) 170 Hornby, n.107, p.907 171 Umoh, n.41, pp. 3 - 4

40

the individual or the public life of the nation.172 What follows from here is simply that, precedent is the previous example; guide or ways of doing things set in the past while in practical sense, the process of following, emulating, adapting, adopting and invoking such example for application in addressing the new issue that arises is by itself called precedent. It therefore follows that one can talk of social precedent, education precedent, teaching precedent, drafting precedent, religious precedent, economic precedent, and indeed judicial precedent.173

Now, it is appropriate to look at what judicial precedent is all about. A judicial precedent has been described as a judicial decision that serves as a paradigm for future decisions. It has also been described as the habit of following previous decisions that is mostly identified with English courts.174 Explaining what judicial precedent connotes in terms of its scope and technical components, Williams describes it as:
The part of a case that is said to posses authority is the ratio decidendi, that is to say the rule of law upon which the decision is founded. 175

Similarly, Obilade posits that, “judicial precedent or case law consists of law found in judicial decisions. A judicial precedent is the principle of law on which a judicial decision is based. It is the ratio decidendi (literally, the reason for the decision).”176 More apt to the study in this work, Asein argues that, “case law refers to that body of principles

172

Precedent in this wise, may be compared with what is known as bidi„ah in Islamic law. An understanding of the concept of bidi„ah may therefore aid an appreciation of what may be the stand of Islamic law on precedent even in its wider usage. Bidi„ah is divided into two Bidi„ah Hassana (good precedent or innovation) and Bidi„ah Seyiah (devilish or evil precedent or innovation). For a study on this, see Al-Harary, Abdullahi, As-Siratul Musteqeem (Beirut, Lebanon: Isdarul Jami‟yyah Al-Masharii‟i AlKhayriyyah Al-Islamiyyah, Eighth Edition, 1990) pp. 94 – 95. 173 See further, Umoh, n.41, pp. 3 -8 174 Williams, n.1, p. 64 175 Williams, n.1, p. 64 176 Obilade, n.4, p. 111

41

and rules of law which, over the years, have been formulated or pronounced upon by the courts as governing specific legal situations”.177

In terms of material source, judicial precedent is embedded in cases decided by courts 178 and in terns of composition, at least in the Nigerian legal sense, “it consists of the principles of common law and the doctrine of equity”.179 It must be noted that, the whole essence of judicial precedent is that it is a law developed or evolved by courts.180 This therefore poses a serious challenge to the claim that judges do not make law in common law sense, where the doctrine is no doubt well entrenched.181

On the purport of stare decisis, it has been described as “the „sacred principle‟ of English law by which precedents are authoritative and binding and must be followed”.182 The words “authoritative” and “binding” are the parentheses that must be noted in this description of stare decisis. In appreciating the place of the doctrine of stare decisis in the general concept of judicial precedent, the point must be made that, the classification of judicial precedent can be done from two perspectives. The first classifies judicial precedent into “original”, “derivative” and “declaratory” precedents;183 while the second classifies it into “authoritative or binding precedent” and “persuasive precedent”.184 The

177 178

Asein n.1, p. 67 This explains why it is otherwise referred to as “case law”. 179 Tobi, n. 32, p. 77 180 It may henceforth be referred to in this work simply as “precedents”. 181 On the concern of common law in balancing the claim that judges do not make law with judicial precedent as a “law”, see Tobi, n.32, pp. 78 – 80; Asein n.1, pp. 69 – 71; Mikail http://www.agc.gov.my/agc/onlinesys/KnowledgeSharing/pdf/Syariah/Jan2010/4th%, n.60 pp. 7 -8 182 Rutherford, and Bone, n.5 p. 310 183 See Umoh, n.41, pp. 115 – 128; 184 See Umoh, n.41, p. 129

42

doctrine finds its seat in the second classification and it is actually what is referred to as “binding or authoritative precedent”.

It must be stated that while judicial precedent or simply the doctrine of persuasive precedent is of antiquity,185 the doctrine of stare decisis is relatively of modern development;186 and it is particularly so in respect of the Nigerian legal system.187 This is one reason why an enquiry into its place in the Nigerian legal system is still very much relevant.

To further shed lights on the exact meaning of stare decisis, the views expressed by both Umoh and Abdulraheem are apt for consideration at this juncture. Umoh, making reference to Lord Wright,188 graphically draws a distinction between persuasive precedents and stare decisis in the following terms:
The doctrine of judicial precedent involves two ideas. One is that a judge will respectfully examine a previous decision of another judge which is relevant to the case he is handling and follow it if he likes it. Another is that a judge is bound to follow the previous decision of another judge in a given set of circumstances. The first is called the loose doctrine of

185

David and Brierly, n.1, at p. 377, however hold a contrary view when they posit that, “it is only since the beginning of the first half of the nineteenth century that the rule of precedent,… was firmly established”. 186 Abdulreheem, n.44 p.143 187 As at 1963, when Park, n.1, p. 54, was writing, he noted that, judicial precedent generally constituted “the least creative source of law in the country”. Stare decisis was not even in his contemplation then. Umoh is however of the contrary view that the doctrine is of recent development in Nigeria. His view is that Nigeria did not experience “time-lag between precedent and stare decisis because the court hierarchy and the doctrine were introduced into the country at the same time.” See Umoh, n.111, p. 130. This writer does not share that opinion; certainly hierarchy of court is not the only factor for the development of stare decisis. For instance, not until when Law Reporting of decided cases became well in practice in the country, the doctrine could not be said to have gained any relevance in the nation. 188 Lord Wright, “Precedents”, (1944) 8 C. L. J. 118, 119, as cited by Umoh.

43

precedent because the judge before whom the precedent is invoked has a discretion regarding it and is not bound to follow it if it is not in keeping with his taste. The other is called the strict doctrine of precedent because the judge must follow it whether he likes it or not … An authoritative precedent is a precedent which is the pith and marrow of the strict doctrine, otherwise called stare decisis. A persuasive precedent is the foundation of the loose doctrine; it is a precedent which a judge may consider, but is not bound to follow. It has a powerful influence on the mind of the judges and compels attention, but that is all. 189

To Abdulraheem;
The doctrine of binding precedent or stare decisis (sic; stare decisis) lies at the heart of the English Legal system. The doctrine refers to the fact that within the hierarchical structure of English Courts, a decision of a higher court will be binding on a court lower than it in that hierarchy. 190

From the foregone discussions, the following points are noticeable about stare decisis: 1. That it is just an aspect of the whole idea of judicial precedent; 2. That it is an authoritative or binding judicial precedent by its nature; 3. That the system of hierarchy of court is very necessary for its operation; 4. That in accordance with the doctrine, a lower court has no choice in following or not following principles laid down by a higher court in the hierarchy.

2.4.2. CATEGORIES AND TYPES OF JUDICIAL PRECEDENT From the previous analysis, it is deducible that judicial precedent is divided into two categories: “Category A” and “Category B”, respectively. While Category A is of three
189 190

Umoh, n.41, p. 129 Abdulraheem, n. 44, p. 142

44

types, Category B is of two types. Thus, there are all in all five types of judicial precedent. Category A is expository of the developmental growth or evolutionary trend of any judicial precedent from its inception while Category B shows the status it attains after its evolution. All the five types, according to the category they belong are as listed below: Category A: Type One: Original Precedent Type Two: Derivative Precedent Type Three: Declaratory Precedent Category B: Type One: Loose Precedent – Persuasive Precedent Type Two: Strict Precedent – Authoritative or Binding Precedent, i.e. Stare Decisis191

2.4.3. REQUIREMENTS FOR OPERATION OF THE DOCTRINE While there is only the single requirement of existence of courts for operation of the loose precedent, there are two requirements for application of stare decisis. Different views have been expressed on what those requirements are. It is the position of Obilade that, “a settled hierarchy of courts and an efficient system of law reporting are therefore essential to the proper operation of the doctrine of judicial precedent”.192 Thus, the two main requirements for the operation of the doctrine are hierarchy of courts structure and a stable law reporting system.193

191 192

For detailed study on all of them, see Umoh, n.41, pp. 115 - 167 Obilade, n.4, p. 111 193 See further, Tobi, n. 32, pp. 96 -98; Onokah, n.46, pp. 36 – 39; Eletu, Ibraheem, K. K., “The Role of Judicial Precedents Revisited”, The Learned, (Law Students‟ Association, CAILS, Kwara State, Nigeria, 5th Edition, June 2009) p.19

45

Another requirement for the application of the doctrine of stare decisis is compliance with the principle stating that, the doctrine applies only if the facts, circumstances and issues decided in the earlier case are the same or similar to those of the later case wherein it is sought to apply the doctrine.194 To apply the doctrine contrary to this principle will be very much counter-productive. It is however paradoxical that, what this principle lays down can hardly be met. It must be quickly added in the same vein, application of the doctrine courts established to administered justice in accordance with laws other than common law will amount to a deviation from the requirements.

2.4.4. MERITS AND DEMERITS OF THE DOCTRINE The coin of the doctrine of stare decisis, like any other coin, is of two sides. On the one side are its merits while its demerits are on the other side.195 It must be stated out rightly that, the irony of the two sides is that, it is the exact opposites of all the good things considered to be the merits of the doctrine that also constitute its demerits. What a paradox! For example, while it has the benefit of bringing about certainty in law, it is also by it that serious uncertainty is created in the same law.196 Essentially therefore, merits of the doctrine include certainty; consistency or stability of the law; efficiency; flexibility; convenience; freedom of the judge from bias; and, freedom from errors of individual judgement.197 And, some of its demerits are: quantity or proliferation of legal rules; legal dogmatism; inhibition of independent judicial reasoning; jeopardy of lawyers‟ and judges‟ reputation; autocratic approach to

194 195

Asein, n. 1, pp. 69 – 70; Action Congress v. Jang [2009] All FWLR (467) 156 at 185, paras A - B For both merits and demerits, see generally, Umoh, n.41, pp. 149 -158; Eletu, n. 193, pp. 17 – 19; 20 21; and Abdulraheem, n.44, pp. 151 -152 196 Umoh, n.41, 106, p. 150 197 See Umoh, n.41, 106, pp. 149 – 156; Abdulraheem, n. 44, p. 151

46

administration of justice; uncertainty; fixity; rigidity; unconstitutionality; assumption of legislative duty by judiciary; etc.198

2.4.5. HISTORY OF STARE DECISIS IN NIGERIA When exactly can it be said that the doctrine of stare decisis found its root on the Nigerian soil? The starting point is that, while it is arguable, as has been contended by Asein,199 that the notion of precedent is not completely unknown to the traditional system of adjudication in the country prior to the arrival of the colonialists, it is doubtful that the same position can be maintained on stare decisis.

There are two approaches to tracking the historical evolution of the doctrine in Nigeria. One is to appraise it from the introduction date of common law, which part it forms, while the other is to see it from the period of establishment of the English-style courts in the country. If the first is followed, it may simply be posited that the history of the doctrine dates back to 1863 when the English law was introduced;200 while the historical date of the doctrine, if the period when the English-style courts were established is gone by, will be pinned down to 1876.201

A controversy, which falls outside the consideration of this study, has been raised with regard to whether or not the reception date of 1900 attached to the English Statute of General Application to apply in Nigeria also applies to common law and equity, wherein
198 199

See Abdulraheem, n. 44, p. 152; Eletu, n. 193, , pp. 20 – 21 Asein, n.1, p. 69 200 See Elias, n.67. The analysis made by Umoh, n.41, p. 25 would however suggest that English law was introduced as long as 1861 or even earlier. 201 See Onokah, n. 46, p. 28.

47

the doctrine is embedded, to therefore pencil down the history of the doctrine to that date.202 It is however the position of this study that either of the two dates of 1863 (or 1861 as the case may be) and or 1876 will be most correct, if real, and not technical or legalistic, historical facts are to be relied upon and not otherwise. All in all, the doctrine has been in Nigeria since the colonial masters found their ways on the Nigeria soil. It was brought into the country as part the legal system they carried along with them.

2.4.6. STARE DECISIS AS A SOURCE OF LAW IN NIGERIA It is no more news that the doctrine enjoys the status of a source of law in Nigeria. It is the aspect of the “judge-made” law in the country. It is this status of being a source of law in the nation that is considered as its most important contribution to legal theory.203 The previous discussion in this research on the sources of law will further draw home the status of the doctrine as a source of law in the state. One point that must however be pointed out is that the doctrine falls under the shade of legal sources of law and that is even why it is considered herein as a source of law in the country at all.204

The point must also be added that, a study of the doctrine as a source of law is a study of the hierarchy of courts system in the country. This study cannot equally accommodate a detailed examination of that too. It however suffices to state that the Supreme Court is the apex court, followed by the Court of Appeal, then High Courts and Shariah Court of Appeal and Customary Court of Appeal, followed by other inferior courts.205

202 203

See generally Umoh, n.41, pp. 25 -38 Umoh, n.41, p. 109 204 See the earlier argument canvassed herein on the use of such terms as “primary sources of law”; “secondary sources”; “historical sources”; “legal sources”; etc. See also Umoh, n.106, pp. 109 - 113 205 See generally Umoh, n.41, pp. 171 -205; Obilade, n.4, pp. 114 – 135; Park, n.1, pp. 54 – 64; Tobi, n.32, pp. 86 -96; Abdulraheem, n.44, pp. 145 – 147; Asein, n.1, pp. 72 – 91; Onokah, n.46, pp. 36 – 66; Elegido, n.94, pp.252 -259.

48

2.5.0. CONCLUSION The interrelationships between Court system, the doctrine of stare decisis and the Nigerian Legal system have been explored in the analysis that has been made so far. The Nigerian Legal system has been holistically examined, noting that its development to its current form started sometime in 1863, when the English law was introduced into the country. The sources of law in the country have been identified. The study has dwelled in some details on the doctrine of stare decisis and its significance in Nigeria. The study has been able to clarify the differences between the general concept of precedent and judicial precedent while it particularly discloses that stare decisis is not the whole idea of judicial precedent, but one of its two ideas. The doctrine has also been shown as having the status of a source of law in the state It is therefore deducible that, with the explanations that have been made under this chapter, a clear picture of the Court system in Nigeria and the place of the doctrine in its legal system has been properly painted. It is thus safe to conclude on this chapter that there is need for a close interaction between both Court system and the Nigerian legal system in moulding the doctrine of stare decisis in the country. Without a proper appreciation of the duos therefore, the place of the doctrine in the nation may therefore be elusive. It is doubtful that, in such a state of uncertainty, the doctrine will not be misapplied. Through this chapter, this research has been able to cover various issues that are closely connected with the doctrine of stare decisis as it operates in Nigeria. How the doctrine became relevant has been analysed.

49

CHAPTER THREE ISLAMIC JUSTICE SYSTEM AND THE COMMON LAW DOCTRINE OF STARE DECISIS IN NIGERIA

3.0.0. INTRODCUTION The intent of the doctrine of stare decisis is no doubt focused on attainment of justice. In its own unique way, Islamic law has its ideal sense of justice. There is therefore no way one can appreciate the Islamic law perspective on the doctrine without being in clear picture of the Islamic justice system. In essence, what is done in this chapter is to answer the question whether, giving all the apparatus that must be put in place for the attainment of justice in Islamic law, the doctrine of stare decisis can be said to be relevant to Islamic justice system. This is the crux of this chapter.

3.1.0. NATURE AND INTRICACY OF JUSTICE IN ISLAM The word justice can be described as “the proper administration of laws … The constant and perpetual disposition of legal matters or disputes to render everyman his due”.206 It is also seen as “the upholding of rights, and the punishments of wrongs, by the law”.207 Another appropriate notion of justice here is its descriptions as “the law and its administration”208 and as “proper administration of law”.209 When considered as a specific area within morality, justice is viewed as “the constant and unceasing will to render to each one his due”.210

206

Black‟s Law Dictionary, 5th Edition as cited by Okunola, Muri, Sharia And Justice (Paper delivered at the Annual Islamic Welfare Foundation Day Lecture held at the Kwara Hotels, Ilorin on Saturday 27 th June, 1998) p. 1 207 Rutherford and Bone (Eds), n.5, p. 190 208 Hornby, n.107 p. 645 209 Gilbert Law Summaries Pocket Size Dictionary (USA: Harcourt Brace Legal and Professional Publications, Inc., 1997) 210 Elegido, n.94, 1994) p. 360

50

In the language of Islamic law,211 the terminology for justice is „adl.

212

Based on this

term, there are many possible connotations that may be advanced on the concept of justice in Islam. One significant point that summarises them all however is that, the Islamic justice system is not cosmetic in nature, it is justice in practice; this cannot be otherwise since “it is much more than the distributive or remedial justice of the Greeks, the formal justice of the Romans or even the natural justice of the Anglo-American common law”.213 Essentially, and very uniquely in deed, justice is considered in Islam to be an attribute of Allah while its administration is regarded as the performance of a religious duty.214

Very significantly, Islamic justice is not confined to Muslims alone as it does not admit of any restriction that would compromise its objective application.215 The position strictly maintains by Islam is that, “justice must be done equally and to all and sundry even if it is to be done against oneself, or one‟s parents or relatives. There must be no

211

Arabic is the language of Islamic law. This explains why its knowledge is indispensable in the study and appreciation of the law. Many writers have explained the intricacy of Arabic language in the understanding of Islamic law. See the followings: Timehin, Saheed O., “The Arabic Language and the Understanding and Application of Islamic Law” in Oseni, Zakariyau I. (Ed), A Digest on Islamic Law and Jurisprudence in Nigeria – Essays in Honour of Hon. Justice Umaru Faruk Abdullahi (PCA), (Auchi, Edo State , Nigeria: Darun-Nur, 2003), pp. 21 – 27; Surty, Muhammad Ibrahim H. I., “Al-Shari‟ah, Arabic and Methodology” and Zubair, Abdul Qadir, “The Importance of Arabic Language in the Study of Shari‟ah” both in Rashid, Syed Khalid (Ed), Islamic Law in Nigeria (Application and Teaching), (Lagos, Nigeria: Islamic Publications Bureau, 1986), pp. 195 – 202 and 203 – 209; respectively. 212 See Qazi, M. A., A Concise Dictionary of Islamic Terms (New Delhi, India: Kitab Bhavan, 2000) p. 1; Kamali, Mohammad Hashim, Freedom of Expression in Islam (Kuala Lumpur: Ilmiah Publishers Sdn. Bhd., 1998), p. 315. Other terms that also connote justice are: Insoof; Qaadiy; „Adaalah; Haq; Istiqaamah. See Mo‟men, Akram, Ibn Sina Pocket English Dictionary (Maktabah Sa‟iy, 2006) p. 189. Kamali has argued that justice is one of the Qur‟anic meanings of haqq. See p. 266. 213 Rehman, Hamoodur “Introduction” in Ullah, Mahomed, The Administration of Justice in Islam – An Introduction to the Muslim Conception of the State (New Delhi: Kitab Bhavan, 3rd Ediction, 1990) p. 1; Doi, Abd ar-Rahman, (revised and expanded by Clarke, Abdassamad), Shari‟ah – Islamic Law (London: Ta-Ha Publishers, Ltd, 2008) p. 26 214 Rehman, n.218, p. 1 215 Kamali, n.212, pp. 126 - 127

51

differences between rich and poor with respect to the execution of justice”.216 The Qur‟an has been explicit on this when it declares as follows:
                

                   

    

O ye who believe! Stand out firmly for justice as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well- acquainted with all that ye do.217

The Islamic justice system is also of such nature that, the duty of its administration is not just hooked on the neck of the judge alone; it is in the main the general responsibility of the society and indeed the obligation of every individual, i.e. fard kifayyah.218 When compared with law, it would be discovered that the very purpose of law itself is the attainment of justice and neither of the two can be separated from the other. Olohuntoyin elaborates further on this point when he notes that;
Law and justice in Islamic Law are two striking concepts that are married together and inseparable. The reason is that for there to be justice, Law must first be properly laid down and followed accordingly while justice is paramount to Law in Islamic Law. 219

216 217

Doi, n.213, p. 26 Q4: 135 218 Rehman, n.213, pp. 1 – 2; Kamali, n.212, p. 127; Olohuntoyin, Bello Ibraheem, “The Concept of Law and Justice in Islamic Jurisprudence”, The Learned (Ilorin: Law Students‟ Association, Kwara CAILS, 6 th Edition, July, 2010) p. 170; Ambali, n.48 p. 84; Shakeir, Reima Y. (Ed), 500 Questions and Answers on Islamic Jurisprudence (Dar Al-Manarah for Translation, Publishing and Distribution, 2006), 337 219 Olohuntoyin, n.218, p. 154

52

It is very worthwhile to state that from Islamic law perspective, justice is a command of Allah (the creator of the universe); its violation therefore attracts punishment as a criminal act.220 To capture a holistic picture of the nature and intricacy of justice in Islamic law, the following observations of Doi are very instructive; he states thus:

Justice is Allah‟s attribute, and to stand firm for justice, even if it is detrimental to our own interests as we conceive them, or the interests of those who are near and dear to us, is to be a witness to Allah. According to the Latin saying, “Let justice be done though heaven should fall.” However Islamic justice is something higher than the formal justice of Roman law or any other human law. It is even more penetrating than the subtler justice found in the speculations of the Greek philosophers. It searches out the innermost motives, because we are to act as in the presence of Allah to Whom all things, acts and motives are known.221

The point must also be made that, the duty of justice, and to assume the discharge of it as a responsibility is very delicate. It is for this reason that the office of a judge does not look so attractive in Islam as it does in the modern world for every decision the judge arrives at in each case he adjudicates upon, he will be held accountable to Allah. Prophet Muhammad has emphasised the fact that there are three types of judges out of which only one will meet the pleasure of Allah to gain paradise while the remaining two will incur the wrath of Allah and end up in Hell-Fire.222

220 221

Doi, n.213, p. 24 Doi, n.213, p. 26 222 See further, Doi, n.218, pp. 34 – 37; and, Kamal, Abdulfatai Ali Waliyu, “Islam: The Religion of Justice”, Liwauu „Ludah, Fourth Edition, 2006 – 2007 (Committee of Islamic Civilization, Marcaz General Old Students‟ Union of Nigeria, Cairo, Egypt) pp. 37 – 39; As-Seyid, Majidy Fatiy, Fiqh Rasuul (Maktabah Taofiqah) p. 402

53

Although it has been argued that, it is only the fear of attaining the desired justice that prompted some scholars to posit that it is suicidal to accept judicial appointment,223 it is the position of this writer that, the fact remains that involvement in the responsibility of justice administration is not a celebrated act in Islam. This is due to the nature of justice in Islam; justice as prescribed by Allah – no more, no less!224 It has also been argued from another quarters that “justice in Islam has no antithesis”;225 it is not accommodative of any substitute. What this emphasises is that, “justice which is expected to be administered is not subject to the definition of an individual”; it will therefore seem untenable in Islamic law for a judge to decide a case in a particular manner simply because another judge had decided a similar matter in that manner in the past. Much will be said on this issue as this work progresses.

The point must also be made that, in Islamic context, justice is divided into two namely; “judicial justice” and “divine justice”.226 While divine justice is the end that must be sought after, judicial justice is just a means to that end. Thus, judicial justice will only be serving its purpose when it is able to meet the end of divine justice; otherwise its purpose will be defeated. Besides, divine justice permeates every stratum of the society and is expected to reflect in all the dispositions of man.227

223

For arguments justifying the legality of judicial jobs in Islam, even in the modern world, see generally, Ambali, n.48, pp. 64 - 78 224 It has also to this extent been argued that, “in Islamic law, justice is justice according to what Allah says is just”. See Ishola, n.76 p. 3 225 Owoade, A. A., “Rule of Law and Justice System in Nigeria: Common Law and Islamic Jurisprudential Approach”, Al-Maslaha – Journal of Law and Religion, Vol. 5, 2009/2010 (NAMLAS, University of Ilorin) p. 232 226 Olohuntoyin, n. 218, 13, p. 172; Zubair, Abdul-Qadir, Islamic Constitutional Administrative Law (in press), pp. 120 - 121 227 For a general study on the subject of divine justice in Islam, see Al-Balagh Foundation, Lessons in Islamic Ideology 2 - Divine Justice (Tehran, Islamic Republic of Iran: Al-Balagh Foundation, First Edition, 1994)

54

3.2.0. THE

PLACE

AND

DUTIES

OF

THE

JUDGE

IN

THE

ADMINISTRATION OF JUSTICE IN ISLAMIC LAW In the commonest usage, the act of administration of justice in Islamic law is known as Al-Qada while the institution of judiciary administering justice is referred to as Qada and the judge himself is called Al-Qaadi. It is described as the process whereby a court arrives at a decision based on Shari‟ah and which decision is binding on either or both parties involved in a dispute.228 Based on what was earlier noted on the two divisions of justice, it can be rightly posited that, the kind of justice being administered by the judge under Islamic legal system is judicial justice and the purpose for which that is done is to attain divine justice. Thus, the very first point noticeable about the place of the judge in the administration justice in Islamic law is that, his allegiance is to Allah whose divine justice he must preserve and achieve at all cost.

As earlier noted, the legal ruling about administration of justice is that it is a collective duty since the affairs of people cannot be properly ordered without it.229 It is significant to state that, Islamic judicial justice, like any other of its kinds in any legal systems of all ages, is not immune from being found wanting and neither does it not do fall short of expectation of the subjects whose interest it is to serve.230 However, unlike other legal systems, Islamic law faces this reality and thereby provides augmenting institutions to be auxiliaries to the judicial justice institution of Qada to meet the end result of divine justice. The two augmenting institutions so put in place are Hisbah and Mazalim.231 This arrangement tells a lot about the place of the judge in the administration of justice in Islamic law. It dislodges the recognition of judiciary as an arm of government in Islamic

228

Ambali, n.48, p. 64; Aal Fawzaiy, Salih Bin Aal Fawzaiy Bin „Abdullahi, Al-Mukhlas Al-Fiqhiy (Mansurah: Maktabah Imman, Volume One, 2007) p.455 229 See n. 217 and Aal Fawzaiy, n. 228, p. 455 230 Zubair, n.226, p. 120; Olohuntoyin, n.218, p. 172 231 See further Olohuntoyin, n.218, pp. 172 – 175; Zubair, n.226, pp. 122 – 132. For a study on the institution of Hisbah, see As-Sanamy, „Umar Bin Muhammad Bin „Awadu, Nisob-l-Ihtisab (Riyadh: Darul Waton, First Edition, 1993)

55

law or as the sole public organ responsible for administration of justice as it is conceived in the modern world.

To start with, since the judge stands fallible, at least in the eye of the Islamic law, there is every pressing tendency for him to want to act according to his wish or be influenced by the wish of some others. It is therefore for this reason that he must seek guidance only from divine sources of Islamic law which are the only pointers that can lead him to the divine justice which he must go after. Also, the Islamic judge does not hold any special status because of the position; he is still subject to the ordinary rules and codes of conduct as binding on any other Muslim. Thus, the Muslim judge does not have the privilege of enjoying any form of immunity. The Muslim judge is rather held answerable for every word altered even in the course of his duty, either civilly or criminally; legally or religiously; in this world or in the hereafter under Islamic law.232 He cannot justifiably revere the view of any other person to swerve from the discharge of his duties as imposed on him.

To further appreciate the place of the judge in Islamic law, qualifications for the post must be mentioned before dwelling on his duties. No person can validly assume the position of a judge in Islam save he is a Muslim, matured, sane, and possessive of the knowledge of the rulings of the Qur‟an and of the Sunnah validated as being from the Prophet.233 All these qualifications and others in that respect relevant have been highlighted to be the followings:
 Ad-Dhukiriyyah: That he should be a man, which comprises of his being a male and matured;

232

Ishola, n.76, p. 33; See also Ambali, Muttalib Ahmad, “The Doctrine of Immunity on the Scale of Sharia Islamic Law” in Law Students Society Public Lecture/Seminar Series 01, p. 2 233 Bin Hazm al-Andalusy, Abu Muhammad „Aliy Bin Ahmad Bin Sa‟eed, Al-Muhala Bil Athar, (Darul Fikr, Vol. 8) p. 427

56

     

Al-Huriyyah: That he should be a free born man and not under any captivity of incapacitation; Al-Islam: That he should be a Muslim; Al-Adalah: That he should be of high probity or uprightness; As-Salaama fi Sam’i Wal-absar: That he should be sound in hearing and sight Al-‘Aqlu: That he should be sane, wise and intelligent Al-‘Ilm: That he should be knowledgeable and verse in the knowledge of Shari‟ah234

Other qualifications235 that must be noted include the requirements that, the judge must be a Mukallaf,236 Mujtahid,237 and Mutakalima238. From here, the duties of the judge can now follow.

Duties of the judge under Islamic law are otherwise called Adaab-l-Qaady.239 The level to which the judge is able to discharge his duties will be reflective of his traits. He is therefore expected, as his very first duty, to be courageous without being harsh, liberal without being weak and should treat parties before him equally whether they are Muslims or non-Muslims.240 It is for the Muslim judge as the prime of his duties, to judge in accordance with the law of Allah and not on the basis of any other
234

See generally Ishola, n.76, pp. 26 – 27; Aal Fawzaiy, n.228, pp. 456 -457; Ambali, n.48, pp. 81 – 84; and, Muhammad, Abdul Waseef, Misbah Saalik (Beirut, Lebanon: Darul Fikr, n.d.) pp. 200 – 202; Uthman, Muhammad Bello, “The Role of the Judge under Islamic Law” (Paper presented at the National Seminar Organised by NAMLAS held at Ambrose Alli University, Ekpoma, Edo State, Thursday 3 rd -5th February, 2005) pp. 6 – 8; and, Isma‟il, Muhammad Bikr, Al-Fiqh-l-Waadih Mina-l-Kitab Was-Sunnah „Ala-l-Madhaib Arba‟ (Cairo: Darul Manar, Vol. Two, 1998) pp. 321 - 323 235 See Aal Fawzaiy, n.228, p. 457 236 This is a legally liable person who does not have any legal incapacity. For an insight into the rules of legal capacity under Islamic law, see Muhammad, Muhammad Abdul „Aaty, At-Takleefu Shari‟y Wama Yata‟alaq Bihi Min Ahkamin (Cairo: Darul Hadith, 2008) 237 That is a person who is capable of independent legal reasoning. Ibn Qayim is reported to have described him as a person who has the knowledge of both the Qur‟an and the Sunnah. See Aal Fawzaiy, n.228, p. 457 238 This simply means that he should be able to communicate by word and not by sign. 239 Adab ordinarily connotes ethic. But, the appropriate translation here is duty. See Aal Fawzaiy, n.228, p. 457 240 Isma‟il, n.234, p. 202; Ishola, n.76, p. 80

57

consideration; this has been insisted upon in a bid to ensure that the ideal justice of Islam, which is divine justice, is what is dispensed by him.241 This duty must be emphasised and must be specifically noticed for its significance to the subject of this research.

It must be particularly reiterated that, it is not the duty of the judge in the administration of justice under Islamic law to justify and arrive at his decision on bases other than those permitted by Islamic law. The principles, doctrines and the laws according to which the Islamic judge has the duty to judge are not evasive; they are unequivocal and well spelt out. They will be listed out under the next segment of the study.242 Any principles, doctrines or practice that fall outside the list cannot be imported into the temple of Islamic justice under any disguise.

3.3.0. SOURCES OF LAW AND REQUISITES FOR ADMINISTRATION OF JUSTICE UNDER ISLAMIC LAW Stricto senso, the basic sources of Islamic law are the Qur‟an and the Sunnah. Other materials considered as sources are mere means by which the basic sources can be espoused and expounded. This study is not concerned about the controversy surrounding the acceptance or rejection of any of them as a source. What is of concern here is to identify virtually all of them, shorn of the controversies, for whatever their worth is, at least if just to demonstrate that there is a settled list of what constitutes sources of law under Islamic law. This study will not close eyes to the fact there are indeed many approaches that have been adopted in categorising the various sources of Islamic law into

241 242

Ishola, n. 76, p. 77 Meanwhile, see Khasas, Imam (translated into English by Mughal, Munir Ahmad), Adab Al-Qadi (Islamic Legal and judicial System), (New Delhi: Adam Publishers and Distributors, 2005 Edition) pp. 54 63

58

one form or the other.243 But, for space constraint, the sources to be considered will be grouped into primary sources; secondary sources and subsidiary sources.

What is meant by primary sources are the Qur‟an and the Sunnah244 while the secondary sources refer to both Ijma‟ (juristic legal consensus)245 and Qiyas (analogical legal reasoning).246 For the purpose of clarity, the subsidiary sources, those that are next in grade, validity and authority to both primary and secondary sources, are as follows:
i. ii. iii. iv. Al-Maslahah Al-Mursalah (Public Interest or Extended Qiyas); 247 Al-Istihsan (Juristic Preference);248 Istishab (Juristic/Legal Presumption or Status Quo);249 Sadd Dharai (Blocking Avenues of Temptation);250

243

Such approaches have grouped the sources into rational sources, etc. See generally Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence, Revised Edition (UK: Islamic Texts Society, 1991) pp. 5; Nyazee, Imran Ahsan Khan, Islamic Jurisprudence (Usul al-Fiqh) (New Delhi: Adam Publishers and Distributors, 2006) pp. ; Ibrahim, Qasim Abolaji, “Justification of (sic: for) Rational Secondary Sources As a Valid Proof of Islamic Law” (A Seminar Paper presented to the 2009/2010 LL.M Class of Usul al-Fiqh, Department of Islamic law, Faculty of Law, University of Ilorin, February, 2010; on file with the author); and, Al-Mustapha, Sekinat Ibrahim, “An Appraisal of Primary Sources of Islamic Law” (A Seminar Paper presented to the 2009/2010 LL.M Class of Usul al-Fiqh, Department of Islamic law, Faculty of Law, University of Ilorin, February, 2010; on file with the author). 244 See generally Al-Mustapha, n.243; Kamali, n.243, pp. 14 – 85; Nyazee, n.243, pp. 155 – 181; Doi, n.213, pp. 47 – 97; Khallaf, Abdul-Wahab, „Ilm Usul al-Fiqh (Cairo: Darul Hadith, 2002) pp. 26 – 49; 245 See generally, Khallaf, n.244, pp. 50 – 56; Kamali, n.243, pp. 168 – 196; Nyazee, n.243, pp. 182 – 193; 246 See generally, Nyazee, Imran Ahsan Khan, Theories of Islamic Law – The Methodology of Ijtihad (Pakistan: IIT and IRT, 1994), pp. 140 – 146; Ishola, Abdullahi Saliu, “A Exploration of the Basis of the Arguments For and Against the Adoption of Qiyas As A Valid Proof of Islamic Law (Shari‟ah)”, (A Seminar Paper presented to the 2009/2010 LL.M Class of Usul al-Fiqh, Department of Islamic law, Faculty of Law, University of Ilorin, March, 2010; on file with the author); Chaleby, Kutaiba S., Forensic Psychiatry in Islamic Jurisprudence (Selanghor, Malaysia: The Other Press, 2004 Edition), p. xix; Nyazee, n.213, pp. 213 – 229; Khallaf, n.243, pp. 59 – 86; Al-„Uthaymin, Muhammad Bin Salih, Sharih-l-Usul Min „Ilm-l-Usul (Al-Mansoura, Egypt: Dar Al-Ghad Al-Gadeed, First Edition, 2008) pp. 335 – 366; Doi, n.213, pp. 108 – 116; Kamali, n.243, pp. 197 – 228. 247 See generally Doi, n.213, pp. 125 – 127; Chaleby, n.246, p. xx; Nyazee, n.243, pp. 195 – 201; 240 -248; Kamali, n.243, pp. 267 – 282; Khallaf, n.244, pp. 93 – 98. 248 See generally, Chaleby, n.246, p. xx; Ibrahim, n.243, pp. 9 – 11; Nyazee, n.243, pp. 231 – 236; Kamali, n.243, pp. 245 – 266; Khallaf, n.244, pp. 88 – 92. 249 See generally, Doi, n.213, p. 128; Chaleby, n.246, p. xxi; Ibrahim, n.243, pp. 11 – 13; Kamali, n.243, pp. 297 – 399; Nyazee, n.243, pp. 236 – 239.

59

v. vi. vii.

Qaolu Sahabi or Madhabi Sahabiyun (Opinion of a Companion of the Prophet);251 Shari‟u Man Qablana (The „Law Before Ours‟) 252 „Urf or „Aadah (Customary Practices).253

Other legal practices which Muslim jurists have adopted in tackling any legal issue they are faced with, and which may be adopted by the judge, include the practice of Taqleed (Juristic Imitation or Emulation)
254

and Risalatul Qaadi ila Qaadi (Juristic

Correspondence).255 These practices cannot, by any stretch of imagination, be considered as sources of law under Islamic law. It is obvious that, judicial precedent is not on the list as a source of Islamic law and neither is the mention made of stare decisis, which is even just an aspect of it. They are neither law nor practice in the Islamic administration of justice.

The point must also be made that, unlike the common law, materials like jurisprudential works or books, law dictionaries, and law reports have never formed part of the sources

250

See generally, Chaleby, n.246, pp. xxi – xxii; Doi, n.213, p. 129; Nyazee, n.243, pp. 248 – 252; Kamali, n.243, pp. 310 – 320. It must be mentioned that, this source has led to the postulation that, “Harm must be eliminated” (Ad-Darar Yezul). For a study on this and others, see Ishola, Abdullahi Saliu, “A Discourse on the Five Major Principles of Islamic Law (Al-Qawa‟id Al-Fiqhiyyah Al-Asliyyah Khams)”, (A Seminar Paper presented to the 2009/2010 LL.M Class of Usul al-Fiqh, Department of Islamic law, Faculty of Law, University of Ilorin, July, 2010; on file with the author). 251 See generally, Khallaf, n.244, pp. 107 – 108; Kamali, n.243, pp. 235 – 244; Nyazee, n.243, pp. 253 – 255. 252 See generally, Khallaf, n.244, pp. 105 – 106; Kamali, n.243, pp. 229 – 234; Nyazee, n.243, pp. 255 – 256. 253 See generally, Khallaf, n.244, pp. 99 – 101; Kamali, n.243, pp. 283 – 296; Nyazee, n.243, pp. 256 – 259. Recognition of Custom as a source of law has given rise to the principle which stipulates thus: “Custom is the Basis of Judgment (al-„Adah Muhakammah)”. See on this, Ishola, n.250, pp. 6; 15 – 17. 254 Philips, has described this as “the blind following of a Madh-hab”. For a general study on this practice and its development in Islamic law, see Philips, Abu Ameenah Bilal, The Evolution of Fiqh (Islamic Law and the Madh-habs), (International Islamic Publishing House, 1990); pp. 105 – 128; Al-Khajnadee, Sheikh Muhammad Sultan Al-Ma‟soomi, Should A Muslim Follow A Particular Madhhab? (Riyadh: Maktaba Darussallam, Second Edition, December 2004); Al-Uthaymin, n.246, pp. 426 – 435. 255 See generally, Bin „Abdul-„Azeez, Imam „Umar, Sharh Adaab-l-Qaadi Li Imami Abi Bakr Ahmad Bin. „Umar Al-Khadof (Beirut, Lebanon: Darul Kutubi Al-„Ilmiyyah, First Edition, 1994), pp. 375 – 401

60

of law in Islam.256 Even the arguments that have been canvassed by some writers tending to suggest that what is regarded as Islamic law itself in the modern world is a mere conglomerations of the views, interpretations and opinions of the leaders of the various schools of Islamic law (Madhaib)257 have not even for once made them to deny or doubt the materials listed above as the main sources of Islamic law. The misconceptions inherent in those arguments belong to another realm, which cannot be taken up in this study.258

On the requisites for administration of justice under Islamic law, the perspective is multifaceted. An aspect of it will concern the posture which the judge must be or must not be for him to validly engage in adjudicatory exercise on any matter brought before him. The other perspective is on the indispensable ingredients which must guide the judge in the discharge of his duty, especially in the very heart of proceedings. These have been termed “Necessaries for Administration of Justice”.259

256

Hon. Justice Mutalub Ahmad Ambali (a retired Grand Kadi of the Kwara State Sharia Court of Appeal), in a telephone conversation which he made with this writer at about 5:57 PM on 29th June, 2010, following an earlier interview granted to the writer on the same made at Muslim Model School, Idi-Ori Area, Ilorin, bluntly condemned those who regard books of jurisprudence or Islamic law books (Kutubul Fiqh) as sources of Islamic law. He posited that, those books are not even judicial precedent, but mere interpretations of the law by jurists and not by judges. Chaleby, n.246, p. xvii, also shares this view when he posits that, “the effort to understand the Qur‟an and Hadith as law is called fiqh or jurisprudence”. What can be stressed further here by this writer is that, it is only if mere art or act of interpretations of the law can by itself constitutes sources of law that the argument that these books are sources of law will hold water. 257 There are four orthodox schools of jurisprudence in Islamic law. They are: the Hanafi School; the Maliki School; the Shafi‟ School and the Hanbali School. There are some other highly controversial schools like Zahiri School; Shi‟ite School; etc. For a study on the developments of these schools, see Philips, n.54 Doi, n.213, pp. 131 – 168; Ambali, n.48, pp. 34 – 63 258 For some sorts of arguments in this direction, see Sheu A. T., “”Islamic Jurisprudence in Perspective”, Ilorin Bar Journal, Vol. 1, No. 1, April, 2002, pp. 90 – 99; Emon, Anver M., “Huquq Allah and Huquq Al„Ibad: A Legal Heuristic for A Natural Rights Regime”, Islamic Law and Society 13, 3, pp. 325 – 390; available at http://www.law.utoronto.ca/documents/emon/HuquqAllah_ILS.pd (accessed on 10 January, 2008); and, Emon, Anver M., “Natural Law and Natural Rights in Islamic Law”, Journal of Law and Religion, Vol. XX, pp. 351 – 395. 259 Ishola, n.76 p. 51

61

Considering the first aspect, it would be observed that, in Islamic law, the judge is to conduct himself based on some codes of self discipline. To this end, Khassas has noted that a judge should not decide cases while he is in any states of anger, hunger, agony and grief or surfeit and neither must he perform his duty when he is bored or stressed up.260 Similarly, Ambali has also made the point that, people must not lobby for judicial appointment and neither must the Muslim judge be pre-informed of a case coming up before him or listen to a party when the other party is not present; nor must he take bribe or present from those who were not used to giving him such gifts prior to his appointment as a judge and he must refrain from adjudicating in cases in which he is involved, in one way or the other.261

With regard to what has earlier on been referred to as “Necessaries for Administration of Justice”, it is required that the judge must conduct himself in a way that he maintains equality of the parties before the law; observes rules of fair hearing; promotes Rule of Law; ensures equal access to courts to all manners of people and strenuously asserts Supremacy of the Law.262 More importantly, no matter how highly placed any of the parties might be, the Muslim judge must ensure that both litigants appear before him and face the same rigour of justice.263 These are the very serious requirements that must be put in place for proper administration of justice in Islam.

3.4.0. NATURE OF COURT SYSTEM UNDER ISLAMIC LAW Generally, there are four institutions for administration of justice under Islamic law;264 three of them are structural in nature, while until recently, the fourth one had all along
260 261

Khassas, n.242, pp. 191 - 192 Ambali, n.48, pp. 88 -89; Khassas, n.242, p.200 262 See generally, Ishola, n.76, pp. 51 – 64; Doi, n.213, pp. 35 -37 263 Doi, n.213, p. 36 264 See Ishola, n.76, pp. 39 - 40

62

been in the form of mere theory.265 The three that have structures are the institutions of Hisbah Qada Qada, Hisbah and Mazalim. The fourth one is the institution of Sulih. Scholars have copiously discussed the significant role which all these institutions variously play in ensuring that justice is properly maintained in Islamic set up.266 The focus here is however just on the institution of Quada, which is the judicial system or court system of Islam.

Qada is described as the interpretation and implementation of the rules of Shari‟ah.267 It is the task of adjudicating on disputes and the rendering of judgement, settling of disputes between litigants.268 Even though it is the judicial arrangement of Islam, majority of Muslim scholars holds the view that, it does not operate independently so as to ensure the observance of separation of powers as it obtains in the modern world.269 Rather, Qada (i.e. Islamic Court System) is just one of the arrangements that must be put in place by the head of Islamic State in discharge of his duties as the overseer of the public affairs, of which maintenance of justice forms a very cardinal principle that must be observed.270 To this end, the head of state is empowered to control the judiciary and even as a matter of fact, the judge which mans the judicial set up acts in deputation for
265

It ordinarily appears that Sulih (Settlement), vide Q49: 9, is just a mere step that must first be taken before recourse is had to other means of dispute resolution. However, it has now been so much developed in the modern world that it is now an institution. For an insight into the use which it is now put into, see Akanbi, M. M., “Mainstreaming Shariah Arbitration into the Nigerian Legal System”, Al-Maslaha – Journal of Law and Religion, Vol. 4, 2007 - 2008 (NAMLAS, University of Ilorin, Ilorin - Nigeria) pp. 15 – 34; Kosemani, “Shari‟ah: The Bedrock of Alternative Dispute Resolution”, The Jurist, Vol. 14, 2009 (Law Students Society, Ilorin) pp. 277 – 294; Oseni, Umar A., “Appointing A Non-Muslim As an Arbitrator in Tahkim Proceedings: Polemics, Perceptions and Possibilities”, The Learned, 5th Edition, June, 2009 (LASA, Kwara State CAILS) pp. 31 - 58 266 For a study on these institutions variously, see Zubair, Abdul-Qadir, “Human Rights in Islam: Theory and Implementation”; Almawaridy, Abi Al-Hassan Aliy Bin Muhammad, Bin Habeeb Al-Basary AlBagdaady, Al-Ahkam As-Sultaniyyah Wal-Willayat Dinniyah (Cairo, Egypt: Al-Maktabah Taofikiyyah) pp. 128 – 174; 406 – 434; Abi Ya‟la, Muhammad Bin Husain Al-Farau Al-Hanbaliy, Al-Uhkam AsSultoniyyah (Beirut, Lebanon: Darul Kutubi Al-„Ilmiyyah, 2nd Edition, 2006) pp. 285 - 291 267 Ishola, n.76, p. 45; Al-Jazairy, Abubakar, Minhaj-l-Muslim (Beirut, Lebanon: Darul Fikr, 1999) p. 419 268 Aal Fawzaiy, n.228, p. 455 269 Kamali, n.14, p. 49 270 Generally, position of authority in Islam is a form of trust (amanah) that must be properly accounted for. See Q4: 58

63

the head of state.271 Although, this does not put the head of state at any advantage when it comes to the administration of justice between him and another litigant, by the judge who deputises for him.272

It should be mentioned that the Islamic court system is not an ego-boosting arrangement that confers any special status on the judge, it rather confers additional and in deed a more tasking burden on him. It is for this reason that the striking difference between it and the modern court system must be appreciated. The point has been well made that;

Although Qada can be likened to the modern court system, it is to be distinguished from it as Qada‟ has no authority or jurisdiction to judge by any rules save the rules of law revealed by Allah through the medium of Prophet Muhammad (SAW).273

The above general description of Qada is also true and must continue to be true of the courts adjudicating Islamic law matters in Nigeria. Thus, the Kwara State Shariah Court of Appeal clears airs on the issue concerning itself when it states that; “in this court and at all times our decisions are predicated on applicable principles of Islamic law, practice and procedure.”274

It must be stated straight away that the Shariah court system in Nigeria may not completely represent the ideal court system of Islam while the fact that its practice and procedures have, to a large extent, been interpolated with many strange jurisprudence can
271 272

Al-Jazairy, n.267, pp. 419 - 410 See the previous analysis made on the requisites for administration of justice in Islamic law under paragraph 3.3.0. herein 273 Ishola, n.76, p. 46 274 Alhaja Sara (Deceased) And Alhaji Toyin Alausa Vs. Alhaji Maliki Okanla (2004) KSCAAR, p. 59 at 71

64

no longer be denied or covered up. After all, the Shariah courts in the country are only expected to apply Islamic law rules, practice and procedure along the line paved for them by relevant statutory provisions.275 But, even at that, no Muslim judge in the country, whose duty is to administer Islamic law, will have any excuse to act contrary to the ideal rules, principles, doctrines, practice and procedure of Islamic law. This is a blunt reality that must be faced if a spade is to be called a spade.

For the fact that the Qada is recognised as the most instrumental organ in the dispensation of justice in Islamic law, the issue pertaining to the exercise of its jurisdiction must also be appreciated. It is very much permitted for the jurisdiction (wilaya) of court to be made general or restricted in terms of territory of cover, subject matter and even parties to be adjudicated upon.276 It will therefore not be proper for a judge to go outside its jurisdiction so specified.277 The message here is that even though the jurisdiction confers on a particular judge (court) is appellate in nature, that would not place him at any higher rank on the fellow judge conferred with trial jurisdiction so as for him to be so much revered by the judge of lower (trial) jurisdiction or be bound by his view on the meaning and purport of the law.278 This is not in tune with the principle of equality recognised in Islam. Piety is the only attribute by which any man can be held to be higher in rank and of greater reverence in Islam; it is not by status or mundane ratings.279

Other issues that need be clarified on the nature of Islamic Court System bother on the hierarchy of courts and appellate/judicial review practice. However for the special

275 276

Ibid See generally, Zaidan, Abdulkareem, Nizamul Qadai Fi Shari‟at-l-Islamiyyah (Bagdad: First Edition, 1984) p. 47; Ruxton, n.15, p. 277 277 Zaidan, n.276, p. 47 278 Ruxton, n. 15, p. 276, fn. 7, has, along this same view, posited that, “there are no ranks in the Muslim Judiciary”. 279 See Q49: 13

65

consideration they require, they will be discussed under the next paragraph that will now follow.

3.5.0. POSITION

OF

ISLAMIC

LAW

ON

HIERARCHY

AND

APPELLATE/REVIEW COURT PRACTICE Hierarchy of courts system is synonymous with appellate/review practice under the common law. This is why it was not possible for the English legal system to have a clear picture of the rankings among its courts until after the Judicature Acts; 1873 – 1875 came into the limelight. With that development, it became settled that a court to which an appeal from another court lies is automatically of the higher status in the hierarchical order of courts in the land to that from which the appeal comes.280 It was equally a consequence of that development that some judges began to be held in higher esteem over some others. This impression has been carried to every common law jurisdiction and Nigeria is not an exception. As it will be shown later in this work, that attitude has not spared Shariah judges who have had a bite of the common law legal training in the country. The point being made essentially is that common law does not imagine an appellate or review practice that will not place the appellate court in the position of a “semi-god” whose view and perspective of law would not be a binding principle to be followed by the courts of lower ranks to him.

Under Islamic law, jurists are not unanimous on whether appellate review is permitted or not. There are bipolar assertive views on the issue.281 The argument of those who argue against the practice is that, historically, “no court of appeal came into being during the era of Prophet Muhammad, nor during the ensuing period of the pious Caliphs (khulafa

280 281

See Umoh, n.41, pp. 129 - 130 Oba, n.62, p. 892

66

rashidun – ca. 621 – 665 A.D.)”.282 The various views expressed in support of this opposition have been well compressed by Kamali as follows:
A. A. Fyzee has thus commented on the qadi that „his judgment was decisive, there being ordinarily no appeal from it‟. This is equally the case, according to another observer, with regard to penal sentences in which „there is no appeal (murafa‟a) against the sentence of a qadi. The punishment is executed without delay or resistance…‟ Al-Nabahani is also categorical in stating that Islamic law makes no provision either for appellate jurisdictions (mahakim isti‟naf) or cassation courts (mahakim tamyiz). Adjudication of disputes before the court is rendered in a single instance. „When the qadi has pronounced his decree, it is effective upon pronouncement, and it is not liable to reversal by the decree of another qadi whatsoever‟. Al-Nabahani continues on the same page: once the qadi has pronounced his decision, neither he himself nor another qadi has the authority to reverse it. The reason for this is the consensus of Companions. The first caliph Abu Bakr, his successor „Umar b. al-Khattab, the fourth caliph, „Ali and other Companions have all adjudicated cases on the basis of their personal reasoning (ijtihad). They have disagreed with each other, but such disagreements have on no occasion affected the validity of their judicial decisions. None of the leading Companions has reversed the judgement of a fellow Companion on grounds of a mere difference of opinion and personal judgement. 283

The view that appellate practice exists in Islamic law has also enjoyed the backing of many notable Muslim scholars. In their reactions, they forcefully faulted the arguments of those who posit that the practice is unknown to Islamic law, condemning the perspective as being „somewhat dogmatic and questionable‟ and absolutely „fallacious‟.284 They also fortify their stand by posting that there is „ample evidence to

282

Kamali, n. 41, p. 50, Ruxton, n.15 also belongs to this camp when he, at p. 277, fn.1, categorically declares that “There is no appellate jurisdiction in Muhammadan Law”. 283 Kamali, n. 41, p. 50 284 Kamali, n.41, p. 51

67

show that appellate review is valid both in theory and in practice‟ and that even „those who maintain that Islamic law proscribes appellate review have themselves acknowledged the circumstances in which judicial decisions are liable to reversal under Islamic law‟.285 Further reliance has also been placed on the principle that “To remove error that leads to evil and injustice is one of the fundamental teachings of Islam and a foremost function of its administration of justice”.286 The argument for each side persists.

One significant point that must however be noted is that even though the more favourable view to this writer is perhaps that, Islamic law permits appellate review in some matters,287 the approach of Islamic law to the practice is quite different from that of the common law and it for this reason that, for example, „the powers of the Sharia Court of Appeal with respect to appeals before it are not expressly defined along the lines envisaged by Islamic law‟.288 In the vein similar to the position of Islamic law on appellate review, it would appear that hierarchical order of courts is not completely missing in the history of Islamic world before it eventually gets to the stage in which it now is. Essentially, the trace of a form of hierarchy of courts system in Islam cannot be said to be earlier than since the end of what Rehman would call „the republican period of Islam‟ which immediately followed the assassination of the Fourth Caliph, „Ali Bin Abi Tallib.289 It was at that period that Islam began to witness appointment of subordinate Judges that were being supervised by main Judges and it was not long after that era before Islam began to also witness appointment

285

Fathi „Uthman, Al-Fikr al-Qanuni al-Islami: Bay Usul al-Shari‟a wa Turath al-Fiqh (Cairo:) p. 314 as cited by Kamali, n. 41, p. 51 286 Kamali, n.41, pp. 51 – 52. This principle is an extension of the general principle of Islamic law that states that, “harm must be eliminated”. See further on this, Ishola, n.250, pp. 6; 13 -15 287 Appellate review is not permitted in some matters like issues decided based on personal reasoning. See further, Oba, n.60, p.892; Kamali, n.41, pp. 69 - 84 288 Oba, n.62, p. 892 289 Rehman, n.213, p. 9

68

of “Chief Qadi” (Chief Judge) while the High Court of Appeal manned by Head of State himself gained recognition as of higher status in the hierarchy of other courts.290 However, despite all the above historical realities that would appear to justify the existence of hierarchy of courts system in Islam, especially as it operated since the period after the reign of the fourth caliph, a further scrutiny will reveal the line of dichotomy between what the system is meant under Islamic law and what is conceived of it under the common law system, even as it has been demonstrated by the Nigerian Superior courts. For one, the purpose of hierarchy of courts under Islamic law is just for administrative convenience; the arrangement does not attach any better status or reverence to persons of the judges that sit on the higher court. The Prophet himself demonstrated this. It is therefore apt to agree with Oba291 that, the practice of the hierarchy of courts in Nigeria based on common law system, categorising some courts as superior and others as inferior, only creates worse confusion in the administration of Islamic justice system in the country. If the hierarchy had been projected as perceived by Islamic law, no judge would have looked than at others. It is thus necessary to consider what the Nigerian higher courts hold of themselves based on the hierarchy of courts system in the country in order to show clearly that the essence of hierarchy of courts in the nation as different from its purpose under Islamic Law.

To start with, it is very necessary to note that both the Supreme Court and the Court Appeal operate in the form of “semi-gods”, “dictators”, “law-makers” and “lawgivers” to other courts in the country. The Supreme Court is particularly revered as holding a preeminent position and for this reason, what it says is, in the final analysis, the law of the

290 291

All these developments started during Ummayad period. See generally, Rahman, n.213, pp. 9 - 11 Oba, n.58, p.113 291 Asein, n.1, pp. 133 - 134

69

land.292 The courts themselves have also demonstrated this to be their positions by recognising the fallibility of the lower (trial) courts while they project themselves as being infallible, especially that they correct errors of other judges while they have no other courts to correct their own errors.293 In the case of Chukujekwu v. Olalere,294 the Court of Appeal commented on the fallible nature of lower courts in the following terms:
Very often learned counsel regards Judges on the bench as the pedestal of angels who must be presumed to be infallible. That of course, is not only sacrilegious but untenable. The Judge on the bench is not imbued with infallibility. It is common knowledge that although Judges on the bench may be upright and their character impeccable, their competency in adjudicatory process cannot be rationalised in terms of their uprightness and impeachability.295

More accurate to better draw home the point being made is the pronouncement made by the Supreme Court, while declaring its status in relation to other courts, in the case of Adegoke Motors Ltd. v. Adesanya,296 where the court states forcefully as follows:

We are final not because we are infallible; rather we are infallible because we are final.297

It is on the basis of the above status of infallibility held by the Supreme Court of itself, and by extension by other higher courts of themselves, that the hierarchy of courts in

292 293

Asein, n.1, p. 76 The Court of Appeal is the final court in some matters like Election Petitions. 294 (1992) 2 NWLR (Part 221) p. 89 295 Ibid, pp. 96 – 97; see also Oteju v. Olugunna (1992) 8 NWLR (Part 262) p. 757 at 765 - 766 296 (1989) 3 NWLR (Part 250) 297 Ibid, p. 274

70

Nigeria has become a subject for purposes other than the mere administrative convenience. The existence of appellate system and hierarchy of courts practice in Islamic law has not placed the individual judge at any better treatment vis-à-vis a fellow judge, let alone making his opinion of what the law is, become an authority for the lower judge. In Islam, no judge is infallible on any ground. Even the Prophet Muhammad, who is naturally infallible,298 still admitted his human limitations and did warn litigants against getting from him what they did not deserve as he could only arrive at a decision based on the facts, evidence and argument presented and canvassed before him.299

Before drawing curtain on this segment of the study, it must be mentioned that, since it is here being posited that both appellate practice and hierarchy of courts system obtain in Islamic law, it remains to confirm whether panel of judges-practice, whether at the appellate or trial session, enjoys validity under Islamic law. The views of Muslim jurists on this are also in two folds. Representing the first view, Ruxton opines that, “a Bench of Judges is an unthinkable proposition to a Muhammadan mind”.300 This may be correct if what Ruxton means by this is the gorgeous bench practice that now obtains in the modern world. But, if his impression is actually that, by having more than one judge sitting on a matter, associating and consulting, one of them will be half of the other since no complete decision can be reached unless they all agree on it, he may not be on the right track.301 Islam encourages consultation in all affairs of Muslims; administration of justice cannot therefore be an exception.302

298 299

All Prophets of Allah are regarded as infallible (ma‟zum) in Islam See further, Al-Jazairy, n.267, p. 423 300 Ruxton, n.51, p. 277, fn.2 301 Ruxton, n.15 actually believes that, perhaps according to his understanding of the Islamic principle of justice, “a judge should not be the half of a judge”. See p. 277 302 For a general study on the concept of consultation in Islam, see Ndayako, Mohammed, “The Concept of Al-Shura and Western Democracy”, Al-Maslaha – Journal of Law and Religion, Vol. 5, 2009/2010 (NAMLAS, University of Ilorin) pp. 2 -8; Khassas, n. 242, pp. 211 - 214

71

From the other angle, which is the better view, it is contended that it is not illegal for a judge to associate, consult or sit with other judges in determining a matter. Jurists as well as Shariah courts in Nigeria seem to be in tandem with this position. It has been judicially held that „it is in order to have a panel of judges‟.303 Imam Khassas, expressing a view that tends to support the Islamic permission for what is now known as the practice of “Bench or Panel of Judges” in the modern world, opines that;

If the judge does not consider it proper to make any other person sit with him as his counsel or otherwise he may act as he deems proper provided he is well acquainted with the knowledge of administration of justice. If he is not so acquainted, then it is better for him to consult the fuqaha concerning the problems coming before him and to make the fuqaha sit with him is the best course for him.
304

Following the foregoing, it should therefore not be surprising that Muslims in Nigeria have no quarrel with the constitutional provision that makes the Sharia Court of Appeal to be “duly constituted” by at least “three Kadis”.305 Thus, if there would therefore be any divergence between Islamic law and the doctrine of stare decisis, the appellate review practice and the hierarchy of courts systems cannot be the valid justification for it just as the duos cannot validly be relied upon as the basis for indispensability of the doctrine in the Shariah courts in the country.306 Whatever is disclosed as the real position of Islamic law on it must be the practice in Shariah courts in the nation.

303 304

Fatima Nna Kashi & 1 Other v. Mohammed Tsado, (2004) KSCAAR, p. 12 Khassas, n.242, pp. 209 – 210. See generally, pp. 202 – 210. 305 Sections 263 and 278 of the Nigerian Constitution 306 It is interesting to note that even in Saudi Arabia, seniority or hierarchy of courts is well entrenched. Section 51 of the country‟s 1992 Constitution provides that “The authorities establish … the seniority of the courts … ” see Pylee, n.10, pp. 2108 – 2115

72

3.6.0. POSITION OF ISLAMIC LAW ON THE DOCTRINE OF STARE DECISIS The correct notion of the purport of the doctrine of stare decisis earlier noted must be brought to mind. It would therefore be recalled that the doctrine is not accommodative of choice for a lower court on the decision arrived at or the principle of law espoused by a higher court; he is bound to follow it and he even has no authority to question the validity or otherwise of the decision. The Supreme Court and other higher courts had severally held307 and even still continue to hold308 that the decision of a higher court is binding on all courts below it even when such decisions are plainly erroneous or are demonstrably wrong; all in the name of consistency in judicial decisions in the country.309

It must also be mentioned that, an offshoot of the above principle of the doctrine is that, it is illegal for a judge to review his own decision or the decision of his predecessor or that of a judge of co-ordinate jurisdiction with him.310 This is contrary to the practice in Islamic law. Under Islamic law, a judge can review his own judgment, that of his predecessor or of another judge of co-ordinate jurisdiction with him.311 Both the doctrines of res judicata312 and functos officios313 do not apply.314 It must be quickly
307

See for example, Federal Administrator-General v. Adeshola (1960) W. N. L. R., p. 53; Chairman, L. E. D. B. v. Oyewo (1969) 1 N. M. L. R., p.332 Ngwo v. Monye (1970) 1 All N. L. R, pp. 91 – 100; and Ojosipe v. Ikabala (1972) 1 All N. L. R., pp. 128, 131 – all as cited by Umoh, n.41, p. 130 308 See for example, Union Bank v. Adediran (1987) 1 NWLR (Part 47) p. 54 309 See further, Umoh, n.41, p. 130 310 See S. G. B. (Nig.) Ltd. v. Awaye Motors Ltd. (1992) 4 NWLR (Part 234) p. 237 at 247; Nnaji v. Ede (1996) 8 NWLR (Part 466) p. 335 at 342 311 Ruxton, n. 15, p. 287; Oba, n.62, p. 892 312 This is a doctrine by which successful plea by a party, the court will be deprived jurisdiction to hear a matter it relates to. For a general study on the doctrine, which is otherwise called estoppels by record, see Dada, Jacob Abiodun, The Law of Evidence in Nigeria (Calabar: University of Calabar Press, 2004), pp. 108 – 132; Adah, C. Eche, The Nigerian Law of Evidence (Lagos: Malthouse Press Ltd), pp. 69 – 86; Nwadialo, Fidelis, Modern Nigerian Law of Evidence (Benin City: Ethiope Publishing Corporation) pp. 50 – 64. 313 This means that once a judge has pronounced judgment in a case, he becomes incapacitated to further say anything or conduct any proceedings on the matter. 314 It would however seem that the position in Nigeria is that a trial Islamic court judge cannot review his own decision for the reason of hierarchy of courts that exists and invariably means that the two doctrines apply. In the case of Ayinla Elepa v. Akande Ita Elepa (1995) KSCAAR, p.66 at 73, the Kwara State

73

added that these two doctrines are auxiliaries to the doctrine of stare decisis; their inapplicability in Islamic law will therefore in the main be suggestive of lack of permissibility of the doctrine in Islamic law. This is the view held to this end in this study.

Quite apart from the issues of res judicata and functos officios, it must be stated that, under Islamic law, every judge is responsible for the decision he arrives at in each case determines by him and to that extent he is not even bound by that decision on anther occasion, let alone that the decision will be binding on others on the excuse that the court which made that decision „is infallible because it is final‟. Every judge is to treat every fresh case as if he had never determined any other before then so that only justice of the case as dictated by the law and not past reasoning would be his guiding light. Ruxton explains this well as follows:
On each fresh question arising for the Court‟s decision, the Kadi will look up the precise intentions and just application of the Law with respect to the matter under consideration; for a judgment is always a special, isolated, decision, one of detail, never a general one embracing several cases. 315

Prophet Muhammad has emphasised the point that every individual is a shepherd who will be held accountable for his wards. The Imam whom the judge deputises for is himself a shepherd; the judge cannot therefore be less than that. The hadith which conveys this reads thus:

Shariah Court of Appeal held thus: “In our system today where hierarchical structure of courts exists and appellate jurisdictions are statutorily stipulated, a court shall not be competent to revisit its own decision, once it is delivered”. Can this position be said to be Islamic? It is very disturbing that even the Sharia Court of Appeal has not been consistent on its view on the position of Islamic law on the two doctrines. See conflicting decisions in Anafi Aremu v. Alhaji Ayuba Akanni and Ambali Aremu (2002) KSCAAR, p. 1, at 13; Dalibi v. Tela (2000) FWLR (Part 27) p. 2030 at 2034, Paragraphs A – B; Akanni Akibu v. Iyabo Imam (2006) KSCAAR, p. 68 at 71 - 72; Amudalatu Akanke v. Jamiu Alao (2006) KSCAAR, p. 165. See also the view of Ruxton, n.15, pp. 287 – 288, fn.4. 315 Ruxton, n.15, p. 288

74

Another approach to the doctrine of stare decisis that will assist in putting it in the proper Islamic perspective is to recall its “recent development or evolution” status. Thus, in Islamic jurisprudence, the doctrine cannot be regarded other than an innovation (bidi‟ah). Without much ado, the position of Islamic law on innovation in religious matters is that of complete prohibition. Since administration of justice is also a religious duty, it goes without saying that any form of innovation in it must be rejected. During the Address made by the Prophet Muhammad at Tabuk in the 9th year of Hijrah,316 he made it clear that “the worst in religion are those things which are newly introduced without sanction”.317 Therefore, any argument suggestive of the fact that the use of judicial precedent generally or stare decisis, in particular, is not expressly outlawed in Islam cannot be tenable.318 It will be a display of lack of appreciation of the methodology of Islamic law to expect it to make declaration on every minute issue. Islamic law is in the nature of general principles on the bases of which the validity of any issue can be adjudged.319 To this end too, it is posited here that Islamic law rejects the doctrine for being an innovation in a religious matter.320 On yet another ground, if the reality of the nature of the doctrine as a “man-made (judicial) law” is faced, then one will have to justify that man-made lawmaking exercise receives the sanction of Islamic law in order to applaud the use of the doctrine in Islamic law cases. It is beyond arguments that the sole Lawmaker (Al-Haakm) in Islamic law is Allah while man is the subject of the law (Al-Mahakum Fihi).321 It would be recalled, as earlier noted, that a major duty of the Muslim judge is to adjudicate in accordance with the law of Allah; he is not to lay down the law, his understanding or interpretation of the
316 317

This means the migration made by the Prophet from Mecca to Medina. Dawah and Irshad Committee, Three Important Addresses of Prophet Muhammad (Islamic Research Institute, Islamad, 1982) p. 8 318 For an argument in this direction, see Ahmed and Mikail, n.60, p. 19 319 Safi, Louay M., “Islamic Law and Society”, The American Journal of Islamic Social Sciences, Vol. 7, No. 2, 1990, p. 177, has argued that, “Shari‟ah, or Islamic law, is a comprehensive system encompassing the whole field of human experience. It is not simply a legal system, rather a composite system of law and morality ”. 320 On the kind of innovation which Islam allows, see Al-Harary, n.172, p. 94 321 See Khallaf, n.244, pp. 111, 149

75

law cannot therefore constitute another law on its own as it is advanced by the doctrine of stare decisis. The denial of the fact that by upholding the doctrine of stare decisis, the common law judges are lawmakers is cosmetic and a sheer hypocrisy. Nothing can be farther from the truth than that denial. As a matter of fact, as Tobi observes, „there are instances when the Judge, in the performance of the traditional function of interpretation makes the law, so to say‟.322 The above raises many questions that beg for serious and very intriguing answers. Can any Muslim judge, worthy of his salt as a Muslim, genuinely justify the claim that “decisions of superior courts on issues of Islamic law, which are duly grounded on primary and authoritative sources of Islamic law in the context of Nigerian legal system are binding on Islamic law courts and not otherwise”,323 without running foul of the position of Islamic law on the issue of lawmaking exercise? Does Allah instruct and expect its law to be applied „in the context of Nigerian legal system‟? Is there no possibility that decisions of superior courts in the country on issues of Islamic law thought to have been „duly grounded on primary and authoritative sources of Islamic law‟ are in fact contrary to Islamic law? Is such a view not an indirect way of saying that Islamic courts of lower ranking will have no right to ignore the decision of the superior courts even when such decisions seem unfair and erroneous to him? Then, what is going to become the interest of justice which Islamic law seeks to protect? Is the principle of accountability attached to individual judge in respect of each decision he makes not going to be destroyed? Is the criterion that a Muslim judge “must not only be men of deep insight and profound knowledge of the Shariah, but they must also have integrity
322 323

Tobi, n.32, p. 79 A prominent protagonist of this view is Hon. Justice Massoud AbdulRahman, Oredola (now JCA). His Lordship has advanced the propositions on at least two occasions in his judicial and extra judicial capacity, respectively. See Alhaja Sara v. Alhaji Maliki Okanla, n. 69, pp. 68 – 69; and His Lordship‟s article titled. “The Relevance of Yinusa V. Adesobokan, in a Multi-Religious Society” (Paper presented on 16th November, 2005 at the 40th NBA Kaduna Branch Anniversary Week Lectures Holden at Kaduna from 14th to 18th November, 2005 – on file with the author) p. 23. It is surprising, with due respect, that His lordship could make such a u-turn to canvass that position in his article after he had earlier stated the position of Islamic law correctly. This may be due to the common law training, in addition to the Islamic law background, of his lordship.

76

and be God-fearing”324 not being jeopardised? themselves to be Muslims.

These are serious issues that Muslim

judges that advance that view must seriously ponder upon if they still truly consider

Without doubts, any support for man-made laws in whatever guise, is mistrust in what Prophet Muhammad came with and will surely amount to treating the explanation provided by the Prophet as if it was incomplete.325 Now, to make it much expressly clearer that the position of Islamic law on the doctrine of stare decisis is that it is not relevant to its justice system, the following captivating and self explanatory points made by Oredola are very instructive. He accurately put the issue thus:
The position under Islamic law regarding the application of doctrine of stare decisis is dissimilar and quite distinct from that of the Common Law. In Islamic law, previously decided cases are not subsequently applied to govern and determine the fate of fresh ones. On this point, the directives contained in the letter of Caliph Umar b. Al-Khattab to Judge Abu Musa „Al-„Ash‟ari is instructive. It states inter alia thus:
Do not allow a previously given decision which upon reconsideration you become guided aright, prevent you from rescinding from the previous one. Nothing annuls what is right and reversal of what is wrong is preferred against continuation of something which is erroneous, (See Tabsiratul Hukkam Vol. 1 P. 28)”

In Islamic law, a judge is not bound by the precedent of previously decided cases as such. The Islamic law position regarding the issue of applicability of doctrine of judicial precedent has been amply elucidated upon in the authoritative and renown works – Jawahirul Iklil Commentary on Muhtasar Khalil Vol. 2 P. 230 by Sheikh Abdul Sami Al-„Azhari.326

324 325

Doi, n.213, p. 34, Oba, n.62, p. 133 Ibrahim Shaikh Muhammad, Tahkim Al-Qawanin – Ruling By the UnIslamic Laws (no publisher name stated, no date) p. 4 326 Oredola, n.323, p. 22

77

When a judge (court) has decided a matter and is faced with a similar case; his (the) previous decision will not extend to the fresh matter as to be inextricably bound by the former. This is because, the hearing of a matter is non-integral, moreso (sic), when cases are separate and distinct. (However,) where the fresh matter involves the same parties or different ones, reappraisal by independent examination is required from the first or another one.

From the foregoing, one needs no further explanation to be clear about the position of Islamic law on the doctrine of stare decisis. It is not of relevance and it is a complete stranger. Even though the doctrine is in-explicable to the concept of justice in the English legal system, and by extension in common law courts in Nigeria, its application is otherwise antithetical to the ideal form of justice advanced by Islamic law. Since English law is therefore not so spectacular, splendid or sacrosanct to warrant its superimposition over other legal systems like Islamic law, application of the doctrine of stare decisis in Islamic law courts in Nigeria will be most counterproductive.327 This is the way of Islamic justice that must be treaded by those involved in its administration. It will be a mere interpolation of the pure spirit of justice which Islamic Law advances. It is significant to state it loud and clear that, when the picture of Islamic justice is printed by the negative of a doctrine that is not in tune with its principle, one cannot expect it to produce a positive result; what it will bring out will definitely be the ugly image of injustice or sheer perversion of justice. It should also be stated that, “important as it is that people should get justice, it is even more important that they should be made to feel and sense that they are really getting it”.328 Which Muslim litigant will feel that he has really gotten justice when he realises that the tape-rule used in measuring out the cloth of justice sold to him in the market of litigation he went to, after bargaining for Islamic fruits from his labour, was the mere opinion or decision of a judge and not the law of Allah? Certainly, justice arrived at by any Islamic judge on the basis of doctrine or principle, like stare decisis, which is contrary to Islamic Law, cannot be regarded as „justice‟ in the real sense of the word, from the perspective of Islamic Law.
327 328

See also Oredola, n.323, p. 23 Oredola, n.323, p. 23

78

3.7.0. DISTINGUISHING STARE DECISIS FROM IJMA’, IJTIHAD, QIYAS AND TAQLEED As earlier noted, while Ijma‟ (juristic consensus) and Qiyas (analogical reasoning) are the secondary sources of Islamic law, Taqlee (blind following or juristic imitation) is a mere practice that evolved at a stage during the development of Islamic law. It must be noted that Ijtihad is the common term for both the secondary and subsidiary sources of Islamic law already highlighted above. However, because all these principles (or rather Csources) also command respect and serve as some sorts of emulative guidance in Islamic law, just as stare decisis seems to be in common law, there is the tendency and habit among some students and even scholars to see them with the eyes of precedent to therefore conclude that judicial precedent is on ground in Islamic law. It therefore becomes imperative that the existing dichotomy between these concepts and the doctrine be disclosed.

To start with, it has been extremely contended that, both the source of law traceable to the Prophet (i.e. the Sunnah) and that noticeable with the “four rightly guided Caliphs” (i.e. such as Ijma‟ or Qaolu Sahaby) are in the nature of binding precedents, having the status of law while decisions of all others are merely of persuasive effect. 329 In other words, what these views tend to express is that Sunnah and „Ijma‟ are the reflections of the doctrine of stare decisis. Can this view be correct in the light of the correct notion of the doctrine as it has been put in its proper perspective in this work? This writer has no hesitation in stating that the answer is in the negative. Much will be said further on this at the appropriate part in this study. But before then, it is necessary to give a brief explanation on the purports of all the concepts being compared with the doctrine, vis-àvis the doctrine itself.

329

Oredola, n.323, p. 23

79

3.7.1. STARE DECISIS AND IJMA’ Ijma‟ can simply be described as the unanimous consent of the learned men of alIslam.330 In the simplest sense in which it can be understood by a layman in the field of Islamic law, Tobi has explained the meaning of Ijma‟ as follows:
The Ijma, as a source of Islamic law, comes after the Qur‟an and the Sunnah, in order of importance if one may say so. The noun Ijma is the verb variant of Jama‟s which means “to add” or “to gather together”. In literal parlance, Ijma, in the words of Mahmud, means “consensus or concurrence of opinion or agreement of all Muslim jurists of a particular age after the death of the Holy Prophet on a particular question of law. Technically, it has been defined as the agreement of Muslim jurists in any particular age on a judicial rule”.331

Even though the above may not capture the whole essence of ijma‟, it has given the simplest purport of it. In a more appropriate Islamic legal parlance, Kamali explains the concept of Ijma„ in Islamic Law as follows:
Ijma‟ is defined as the unanimous agreement of the mujtahidun of the Muslim community of any period following the demise of the Prophet Muhammad on any matter.332

It has been opined that it is Allah that encourages seeking of views of others, which has informed the consultation that will be made among jurists before they agree on a common legal position on a matter.333 It is also noticeable that the development of Ijma‟ is traceable to the period of the Companions of the Prophet.334 Reliance has been placed on the authority of both the Qur‟an and Sunnah to validate Ijma‟ as a source of law.335

330 331

Qazi, n.212, p. 24 Tobi, n.15, p. 146 332 Kamali, n.212, p. 169. See further, Doi, n.213, pp. 98 – 107 333 Doi, n.213, p. 98 334 Doi, n.213, p. 99 335 Among these are: Q3: 159; Q42: 38; Q4: 59; 115; etc.

80

It is no more news that Ijma‟ enjoys the sanction of majority of Muslim jurists and its objective is to provide a practical solution.336 There is also a clear position in Islamic law that Ijma‟ is a binding proof.337 It is this binding status which has made it to be placed side by side the doctrine of stare decisis by those who seem not to appreciate the distinction between the two concepts. It is such a misconception that has, perhaps, made Owoade to posit that “a not too dissimilar concept of stare decisis in Shariah Law is the concept of Ijma”.338 Are the duos really not too dissimilar to each other? The analysis made by Owoade himself, shows that they are very dissimilar. He draws the line of dichotomy between the two concepts when he states that;
The concept of Ijma (consensus of opinion) is based on established textual authorities and not necessarily precedents though precedents built upon the same foundation may be relevant and acceptable. Unlike stare decisis of the common law, Ijma give (sic) room to fresh matters to be treated and dealt with on its own merit considering the situation at hand which may not necessarily be there in the precedent (old case). Another difference between stare decisis in common law and Shariah Law is that where a judgment it (sic: is) given, it is instructional that on the discovery of better evidence, the previous decision or judgement can be over ruled.339

It is instructive to state that, in Islamic law, Ijma‟ is not being respected as binding because of the status or rank or calibre of the set of all jurists that agreed on it as the position of the law at a particular period, but simply because no other jurists holds any contrary view to the position agreed upon. This is farther from being similar in any way to stare decisis where the only criterion why the lower courts must follow the decision of the Supreme Court is because “it is infallible because it is final” not even because it is truly infallible. What sheer imposition and what an autocratic approach to the delicate, Herculean task of justice administration! In fact, very much unlike stare decisis, Ijma‟
336 337

Doi, n.213, p. 100 Kamali, n.212, p. 168; Tobi, n.15, p. 148 338 Owoade, n.225, p. 235 339 Owoade, n.225, p. 235

81

had been and is till being subjected to serious challenge as a binding proof of law.340 This is why „the only form of Ijma‟ which has been generally upheld is that of the Companions of the Prophet, which is partly due to their special status and not always due to their participation and consensus‟.341

More significantly, while stare decisis is indispensably rooted in judicial decisions, Ijma‟ is invariably envisaged on juristic unanimity, both cannot go beyond their respective boundaries. The belief of Owoade that (judicial) precedents built upon the textual authorities may also be accepted as Ijma‟ is not well grounded; such approach would at best amount to no Ijma‟ known to Islamic law or a serious bastardisation of the form recognised by it. One should not owe any apology in calling a bastard what he is. The truth therefore, is that, Ijma‟ is not stare decisis and neither is stare decisis Ijma‟. Period!

3.7.2. STARE DECISIS, IJTIHAD AND QIYAS The concepts of Ijtihad and Qiyas are closely related and can be explained together visà-vis the differences between them and stare decisis. All the secondary and subsidiary sources earlier mentioned are no doubt products of one Ijtihad or the other. Thus Qiyas is a product or a form of Ijtihad while Ijtihad itself is a legal exertion made by any learned man, be it juristically or judicially, in order to come up with or arrive at a practical solution to an emerging legal issue.342 Philips opines that „the process of arriving at reasoned decisions to suit new circumstances and the decisions themselves are referred to as Ijtihad‟.343

340

For such heated arguments, see generally, Farooq. Mohammad Omar, “The Riba-Interest Equivalence: Is there an Ijma (consensus)?” and “The Doctrine of Ijma: Is There a Consensus?” available at: http://www.globalwebpost.com/farooqm/writings/islamic/r-i-consensus.html 341 Kamali, n.212, p. 169 342 Qazi, 212, p. 25 343 Philips, n.254, p. 36

82

Again, Ijma‟ is also a kind of Ijtihad. However, „while the Ijma‟ is „the consensus of the opinions of the celebrated muslim (sic: Muslim) jurists, their individual opinion is known as qiyas‟.344 According to Doi;
Among the intellectual principles are qiyas and ijtihad. Qiyas could be defined, in Islamic parlance, as analogy, or analogical deduction. In other words, qiyas is the legal principle introduced in order to arrive at logical legal conclusions on certain matters pertaining to the welfare of the Muslims. In exercising this, however, it must be based on Qur‟an, Sunnah and Ijma‟.345

It must be mentioned that there is no consensus (ijma‟) among the jurists on the legal validity of qiyas as a source of Islamic law. The divergence has given birth to two opposing camps respectively referred to as anti-qiyas (Nufatul Qiyas) and pro-qiyas (Muthbitul Qiyas).346 The arguments canvassed to justify the position of each camp however falls outside the scope of this work.347 It can be posited at this stage that the relationship that exists between ijma‟ and stare decisis also subsists between qiyas, ijtihad and the doctrine. The only further necessary observation that must be made is that both qiyas and ijtihad, unlike ijma‟, can be a subject of judicial exertion and juristic exercise. But all the same, they do not play the role which the doctrine plays in common law courts. In the words of al-Oadah;
What does it really mean for someone to perform ijtihâd for a new and unprecedented development? It means that he refers it to the decision of Allah and His Messenger (peace be upon him). This task can only be carried out by a qualified scholar of Islamic Law, and this qualification is often not enough. Everything about the situation must be known. All requisite knowledge must be attained. Everything that is somehow related

344 345

Ambali, n.48, p. 9 Doi, n.213, p. 108 346 See Doi, n.213, p. 109; Khallaf, n.244, p. 61; Ishola, n.246, p. 3 347 For summary of the analysis of the arguments, see Ishola, n.246

83

to the issue must be understood along with an appreciation of how it all fits together. You cannot pass judgment on something before you fully understand it.348

3.7.3. STARE DECISIS AND TAQLEED What was followed or the practice imbibed by both scholars and laymen at about the sixth stage in the development of Islamic law whereby all forms of ijtihad were dropped while Madhaahib (Schools of Islamic law) evolved into totally separate entities closely resembling sects, which is a sort of blind following of the opinion of a particular school, good or bad, right or wrong, is what is meant by Taqleed. It is simply interpreted as “the blind following of a Madh-hab”.349

According to Al-„Uthaymin, Taqleed technically means “the following of somebody whose opinion does not constitute a legal proof”.350 He explains further that what he meant by saying that the opinion of that person does not constitute a legal proof is simply that since the opinion of that person is not like the following of the Prophet, the people of Ijma‟ or of the view of a companion, it cannot be said to be better than the opinion of any other competent jurist.

It must be stated straight away that what stare decisis preaches is exactly the mission which Taqleed set out to achieve in the Muslim world on the Islamic law and its justice system. What befell Taqleed in Islamic law cannot therefore spare the doctrine too; after all birds of a feather flock together. The strict purport of Taqleed, just like the doctrine, is for an individual to follow the view of another person bindingly and blindly simply
348

al-Oadah, Shaikh Salman b. Fahd, “Discourses on Islamic Law Matters of Public Concern”, available at http://english.islamtoday.net, p. 4 349 Philips, n.254, p. 105; 107 350 Uthaymin, n.246, p. 426

84

because of the higher status which the latter is placed. In this sense, Taqleed does not enjoy the sanctions of Islamic law.351

There are indeed many rulings against Taqleed in Islamic law. It is the position of Philips, in this respect, that “since Muslims of earlier generations, with the exception of the Prophet, were not infallible, even those earlier interpretations should not be followed blindly without regard to certain basic principles of reason which enable us to distinguish between right and wrong.”352 Under no circumstance will it be justified under Islamic law for a lower court judge to follow and be bound by the decision of a higher court simply because the higher court is of superior status to it in the order of hierarchy of court structure operative in the country. No. That cannot be legal except if the law and justice being administered is not Islamic law. Prophet Muhammad has said that there is no following of a creature in disregard to the ruling of the Creator (La Ta‟ata Li Makhaluqin fi Ma‟siyat-l-Khaaliq).

Looked from another angle, it must even be stated that the leaders of the Schools of Islamic law never sanctioned their views to be embraced hook, line and sinker. For example, Imam Maliki (the founder of Maliki School) was fond of saying that no body should follow his views, utterances without seeing and considering the legal basis of his opinion to either agree or disagree with him. The Arabic text of that his popular statement reads thus:

‫ال يقل قولنا احد حتى يعرف دليالنا‬

351

For circumstances when taqleed may seem to be allowed in Islamic law, see Uthaymin, pp. 426 – 430. What Uthaymin however regards as circumstances when taqleed is allowed are mere instances of the practice of „Ittibaa‟ (reasoned following)which is distinct from taqleed. See Philips, n.254, p. 108. 352 Philips, n.254, p. 108

85

To conclude, the following views of Al-Khajnadee will further show the contradiction of taqleed to the pristine principle of Islamic law. This is very instructive considering the divine nature of Islamic law which must not be interpolated. He states thus:

Different Madhahib are personal and private opinions, judgments and interpretations of legal points according to religious scholars and jurists. Allah and the Prophet have not ordered us to follow these opinions and interpretations. There is a possibility of being correct or incorrect in their opinions and interpretations. There are many issues on which Imams had different views and they explained them according to their own reasons and speculations. But when the truth came to their knowledge, they reconsidered their own opinion and accepted the truth. They never stuck to their opinion when a true Hadith came to their knowledge.353

It therefore follows from the foregoing that, making the judgements of Islamic superior courts binding on lower Islamic Courts, which of course must have been grounded in the principles of Islamic Law as derivable from the primary sources of the law, is an indirect way of inviting the lower courts to engage in taqleed. It is also, in the same vein, an indirect invitation or instruction to lower Islamic courts to abide by the practice of stare decisis. This cannot be in the interest of the ideal justice of Islamic Law. The Prophet is reported to have said that whoever imitates a group will be regarded to be part of them.

353

Al-Khajnadee, n.254, p. 16

86

3.8.0. CONCLUSION The Islamic justice system has its own mode of operation. Administration of this justice in any part of the world cannot be done contrary to the mode laid down by Islamic law without breeding injustice. Nigeria is one of the countries where administration of Islamic justice has been of concern. The country has however been gravely influenced by the English system of justice. The common law doctrine of stare decisis is a reflection of such influence. With the influence, the doctrine is well in practice in the country and has permeated virtually every justice sector in the nation; it is already rearing its head in Shariah courts there. What the doctrine simply preaches is that lower courts in the country must follow the decisions of courts of higher status to them in the hierarchy of courts structure put in place. The hierarchy also has the impact in the Islamic law courts in operative in the federation. This chapter has therefore critically examined the Islamic justice system, the position and duties of a judge in Islamic law. The position of Islamic law on the doctrine has been disclosed which is to the effect that it is antithetical to the kind of justice which Islamic Law envisages to be admitted administration of Islamic law. It has been demonstrated that from whatever angle it is viewed, the doctrine of stare decisis and Islamic justice system are two polar widely apart; they can therefore never meet. The fact that the doctrine is being preached as a welcome development in the administration of Islamic justice in the country is another reflection of the sorry state which Muslims in the country, like their counterparts in other parts of the world, have found themselves, whereby “they have made their affairs so much dependent on the style and pattern of the West as if they cannot even do anything out of their own initiatives”354 within the parameters of Islamic law once such initiatives will not be to the pleasure of

354

Ishola, Abdullahi Saliu, “The Challenges Facing the Foreign Trained Nigerian Muslim Youths”, Liwaau „Ludah, Fourth Edition, 2006 – 2007 (Committee of Islamic Civilization, Marcaz General Old Studnets‟ Union of Nigeria, Cairo, Egypt) p. 26

87

non-Muslims. This is another influence of the disease of blind following they are suffering from even within their own folds. The chapter has particularly shown that the doctrine of stare decisis is not in any way similar to Ijma, Ijtihad and Qiyas as concepts well entrenched in Islamic Law is the concept of Taqleed (act of blind following of a scholar). However, Taqleed is rejected in Islamic Law. Thus, the doctrine of stare decisis cannot be placed on the platform of acceptability or be put in any use under Islamic law under whatever disguise. This is the position of Islamic Law. It can be safely inferred from the foregoing analysis that, continuing promotion of the doctrine of stare decisis in the administration of Islamic law in Nigeria, and indeed anywhere in the modern, is a negation of the whole essence of Islamic justice itself. Islamic justice is justice as stipulated by Allah, the sole lawmaker and not as dictated by fellow human beings on the mere ground of the status of superior courts. Justice can only be done to Muslim litigants when Islamic, both its substantive and procedural provisions, is allowed to take its due course as designed by itself. This is the call of justice that must be hearkened to by those who know its worth.

88

CHAPTER FOUR GENERAL APPRAISAL OF THE PRACTICE OF STARE DECISIS IN SHARIAH COURTS IN NIGERIA
4.0.0. INTRODUCTION Through the preceding chapters, it has been shown that the practice of stare decisis is a reality in Nigeria. In fact, the way it is so much grounded would suggest that it is the very foundation upon which the Nigerian judicial system rests. That is truly correct. But, the Nigerian judicial system is a combination of the judicial systems of the three major legal systems of common law, customary law and Islamic law, which are the main sources of law in the country. There is no contention that the doctrine is part and parcel of the common law system, it is even the very foundation upon which it rests,355 but contrary-wise, this research has so far shown clearly that the doctrine does not receive the favour of Islamic law. But despite this, the doctrine has continued to be applied in Shariah courts in Nigeria as if it is a normalcy.356

Thus, this Chapter undergoes a critical appraisal of the practice of the doctrine of stare decisis in the Shariah courts in Nigeria. After this introduction, the Chapter gives a brief historical account and the structure of the Shariah courts (the courts) in the country before looking at the sources of law applicable in the courts in the nation. The Chapter then looks at practical Islamic law cases where the doctrine has been applied, which is followed by the analysis of the outcome of the interview conducted. The Chapter then proceeds to rationalise the factors that will determine whether the doctrine will continue or cease to be applied in the courts in future.
355 356

Oba, n.58, p.113 For the Shariah courts in Nigeria, see the list under Paragraph 2.3.1, in Chapter Two of this work.

89

Then, the chapter proposes how the doctrine, appellate/hierarchy of courts practice and principles of Islamic law can be harmonised even if the present situation continues. The Chapter then critically re-examines whether there is even any justification for the application of the doctrine, even given the kind of Shariah court system in Nigeria and then projects into the kind of Shariah court system that should be put in place to avoid the temptation of applying the doctrine in Shariah cases. Then, the Chapter closes with a conclusion.

4.1.0. HISTORY OF SHARIAH COURTS IN NIGERIA The history of Shariah courts in Nigeria as currently constituted357 dates back to the colonial period. Prior to the colonial era,358 Islamic law in all its ramifications, civil, criminal, moral, ethics etc., applied in what later became Northern Nigeria.359 As at that time, Islamic law was administered, in that region,360 by highly trained Qadis;361 later

357 358

See n.356 For a general account of the mode of administration of justice in the pre-colonial traditional settings of Nigeria, see, Tobi, n.32, pp.1-16 359 Abikan, n.123, pp. 88 -115; p. 3; Belgore, Ahmad O., “History of Shari‟a in Nigeria”, Al-Maslaha – Journal of Law and Religion, Vol. 2, 1999 – 2003 (NAMLAS, University of Ilorin), p. 2. For a detailed study on the Islamic law system that obtained then, see Mahmud, Abdulmalik Bappa, A Brief History of Shari‟ah in the Defunct Northern Nigeria (Nigeria: Jos University Press, 1988) 360 The situation in the South, particularly in what now constitute South West (i.e. Yoruba land), was different. With regard to this, Belgore, n.4, p. 4, notes that, “Islam was firmly established in Yoruba land as private religion of individuals and that individualism attached to the religion accounted for the absence of an Islamic legal system in contrast to what obtained in the North during the same period. In the North, Islam was the state Religion while Sharia was the only system of law in operation”. However, for a somewhat different and more detailed account of the condition of Shariah in the South before the advent of colonialists, see Oba A. A., “Sharia in Yoruba Land”, The Emirate Spring, Vol. 1, No. 2, February, 2001 (Ilorin Emirate Students Union, University of Ilorin Chapter), pp. 30 – 31. He observes at p. 30 that “in addition to widespread individual practice and study of the Shariah (sic: ,) there was also evidence of institutionalisation of the Shariah in the South”. See also El-Miskin, “Education as Imperialism” in Ibrahim Sulaiman and Siraj Abdulkarim (eds), On the Political Future of Nigeria (Zaria: Hudahuda, 1985) p. 76; Okunola, Muri, “The Relevance of Sharia to Nigeria” in Nura Alkali, et al (eds), Islam in Africa – Proceedings of the Islam in Africa Conference (Spectrum, 1993) p. 81; Quadri Y. A., Shariah: the Islamic Way of Life (Shebiotimo Publications, 2000); Abdullah, U. Y., Sharia in Africa (Ijebu Ode: Shebiotimo

90

anglicised as Kadis by colonialists.362 The Shariah courts that were obtainable then were known as “Emir‟s Courts” and “Alkalis‟ Courts”.363 According to Oba, “when the colonialists gained full control of the area, they allowed the continued existence of these courts but gradually modified and patterned them along lines consistent with their own notions of justice”.364

In the South, it would appear, as Belgore has contended, that “there was no legal system strictly speaking, in existence … as at the time of British occupation. It was this vacuum the colonial administration intended to fill when it first introduced the Supreme Court to the Colony of Lagos and Protectorate territories”.365 If this account is taken as correct and if it is also agreed that Islamic law was not part of the law being administered by the native courts established by the colonial masters, following the establishment of the Supreme Court in 1876,366 one may then rightly posit that there was no trace of judicial administration of Islamic law in the South prior to colonial period. What transpired in the region during the colonial period has been captured by Oba as follows:
The colonial masters deliberately down played (sic)Shariah and Shariah education in the West. They refused to create Shariah courts for Muslims in Yorubaland (sic) not withstanding that they form (sic) a

Publications, 1998); and, Gbadamosi T. G. O., The Growth of Islam Among the Yoruba 1841 – 1908 (London: Longman, 1978) [all as cited in Oba, n.4 herein]. 361 Oba, n.58, p. 130 362 The Constitution also retains this bastardised term by referring to Shariah Court judges as Kadis. 363 Mahmud, n.359, pp. 1-2; Belgore, n.359, p. 4 364 Oba, n.58, p.130 365 Belgore, n.359, p. 5 366 Appeal from these native courts lied to the Head of Chief of the various tribes in the South such as the Alafin of Oyo; Owa of Ijesha, Oni of Ife, Bashorun of Ibadan etc. See further Belgore, n.359, p. 5

91

sizeable if not the majority of the population in the region. Persistent Muslim requests were rejected.367

What then is the situation in the South today? Truly, „up to today there is no Sharia Court in any Western State of Nigeria‟368. It is even worse that for lack of the requisite Shariah Courts, „they have been forced to be subject of the jurisdiction of Customary Courts‟. 369 One would have been less bothered about the situation if it had been how Muslims in that region wanted it, but rather, „all their agitations for the establishment of Sharia Courts, were ignored‟.370 It is indeed „disheartening that up until this moment reference to the existence of Shariah Court of Appeal in Nigeria [and even to any Shariah court of whatever grade] is only and usually to the Northern part of the country as none exists in other regions‟.371 Thus, in this work also, bulk of the focus of the study is on the North; it is only there that how the doctrine of stare decisis has been applied in Islamic law matters by Shariah courts can be much appreciated, since majority of muslim cases adjudicated upon by Shariah Courts emanate from there.

Now to be specific, it should be mentioned that Shariah courts in Nigeria have been in existence as far back as 1463 when they were manned by Qadis (judges) administering Islamic law in the North.372 However, their birth in their present forms, as a design of colonialists, is traceable to 1904 when the Shariah courts on ground in the North, for which Lord Lugard had earlier promised none interference with, were replaced with
367

Oba, n.360, p. 30; See also, Oba, A. A., “Re-Conceptualising Islamic Legal Education in Nigeria: The Case for Professionalisation”, Al-Maslaha – Journal of Law and Religion, Vol. 2, 1999 – 2003 (NAMLAS, University of Ilorin), p. 99 368 Mahmud, n.359, p. 3 369 Mahmud, n.359, p. 3 370 Mahmud, n.359, p. 3 371 Ishola, n.129 p. 50 372 Oba, n.62, p. 860. It is on record that it was this year that the first Qadis were appointed for Kano and Katsina. See, Awogbemila, Olu, et al., “Sharia: Unsteady Growth ”, This Week (Newspaper), October 24, 1988, p. 19 (citing Justice Ibrahim Gwarzo, the then Grand Kadi, Kano State); as cited by Oba, n.62, p. 860, fn.7

92

eight courts established for the North vide a warrant which set out their jurisdiction, powers and the maximum sentence they could enforce.373

With reference to South, mention must be made of the year 1914 when organised native courts were first established there by colonial masters vide the Native Courts Ordinance, 1914374; although colonial courts have been making reference to Shariah (Islamic law) prior to that time, even as far back as 1900 when the Supreme Court in Lagos, in the case of Asiata v.Groncallo,375 adjudged Islamic law to be “the applicable law to the devolution of the estate of [the] parties, who settled in Lagos because the deceased had during his life time considered himself subject to Muslim law”.376

It is significant to state that, both in the North and South, these native courts were established to administer customary law, which was declared in the North to be inclusive of Islamic law.377 Their establishment was a sort of response to the challenge posed by the initial unified system of courts378 which was projected by the jurisdiction conferred on the Supreme Court “to observe and enforce the observance … of any law or custom existing within the jurisdiction” (i.e. Nigeria).379 Thus the development continued until 1968 when the Native Court Ordinance was renamed in the North as Area Court Edicts. Talking strictly therefore, Shariah trial courts in Nigeria are the Area courts with exception of states that have adopted Shariah as their official state law and in which
373 374

Mahmud, n.359, p. 9 Belgore, n.359, p. 5. The Ordinance was also applicable in the North. See Mahmud, n.359, p. 11 375 (1900) N. L.R. cited by Belgore, n.359, p. 6 376 Belgore, n.359, p. 6. He noted that they the parties “married in Brazil, while slaves there, had gone through a Christian form of marriage although they were practising Muslims and had preceded the Christian rites with Muslim solemnization”. 377 See Section 2, Native Court Ordinance 378 Hill, n.165, p.53 379 See, Section 19, Supreme Court Ordinance, 1876, as cited by Belgore, n.359, p. 5

93

those Area courts have now been renamed “Shariah courts”.380 Even though the focus of this study is not on the jurisdiction of these courts, it must be mentioned that they have ceased for long to administer Islamic criminal law.381

With regard to appellate Shariah courts, i.e. Shariah Court of Appeal,382 its history is traceable to the eve of the departure of colonialists from the country in 1960. It was made to replace the then Moslem Court of Appeal,383 which had hitherto been in operation since 1956.384 It is worthy of mention that introduction of Islamic Appeal court by the colonial masters was not accidental; it was an attempt to relieve the agitation of the Northern Muslims after Islamic Criminal Law was abolished and civil appeals were transferred to the English courts.385 This is the history of the Shariah courts in Nigeria with recent dimension to it being the Zamfara State initiative of 1999.

4.2.0. STRUCTURE OF SHARIAH COURTS IN NIGERIA Shariah Courts in Nigeria are of Mixed-Up system whereby there is parallel system at the lower trial courts up till the appellate stage at the Shariah Court of Appeal while Unified System feature at both the Court of Appeal and the Supreme Court. In terms of

380

See generally Kano State Sharia Courts Law, 2000 and Ahamed Bello Mahmud, “Sharia and Democracy: The Zamfara State Experience”, Al-Maslah – Journal of Law and Religion, Vol. 2, 1999 – 2003 (NAMLAS, University of Ilorin), pp. 43 - 52 381 See generally, Mahmud, n.359, pp. 23 – 27; Abikan, n.123, pp. 3 - 8 382 It was established by the Sharia Court of Appeal Law, Northern Region, 1960, which later became Cap. 122, Laws of Northern Nigeria, 1963. Its commencement date was 30 September, 1960 383 Oba, n.62, p. 859 384 It was established by the Muslim Court of Appeal Law, 1956. See generally, Mahmud, n.359, pp. 34 37 385 Mahmud, n.359, p. 37

94

function and grading structure, they are divided into “Superior” and “Inferior” Courts and Courts of “Original” and “Appellate” Jurisdiction.386

The Supreme Court, Court of Appeal, Shariah Court of Appeal, High Court (as the case may be) and Customary Court of Appeal (as the case may be), are the Shariah Superior Courts of Record while Area Courts (as the case may be), Shariah Courts (as the case may be) and Customary Courts (as the case may be), are the inferior Shariah Courts. All inferior courts exercise original jurisdiction while the superior courts exercise appellate jurisdiction, although the Shariah Court of Appeal is believed to be capable of exercising both original and appellate jurisdiction.

For the purpose of clarity, it should be stated that, because the jurisdiction of the Shariah Court of Appeal has been restricted to what is termed “Islamic Personal Law” matters,387 appeals in other Islamic law matters go to the High Court while the Customary Court of Appeal is able to sit on appeal in some Islamic law matters in states where Islamic law matters are adjudicated upon by Customary Courts as part of Customary Law, usually in the South. If the situation were to change today and there exists Area or Shariah Courts in those states and Shariah Court of Appeal is given wider appellate jurisdiction in Islamic law matters generally, High Court, Customary Court of Appeal and Customary Courts will cease to be treated at all as part of Shariah courts in Nigeria. This is even the ideal that must be ensured in the interest of justice.

386 387

See generally, Ishola, n.13, pp. 138 – 140; 141 - 143 For a discussion on how this came about by the colonialists, see Abikan n.123, pp. 4 – 7; Mahmud n.359, p. 38

95

4.3.0. SOURCES OF THE APPLICABLE LAW IN SHARIAH COURTS IN NIGERIA It is interesting and in deed surprising that the Sources of Law applicable in Shariah courts in Nigeria, administering Islamic law which is of universal applicability and of settled sources, is slightly different from the known general sources of Islamic law world wide. The reasons for this situation are both of historical antecedents of the development of law in the country and colonial influence. This is why people can now talk of Shariah “in the Nigeria Context”.

Thus, Ishola has accurately stated the sources of Islamic law “in the Nigerian context” when he writes as follows:
The Islamic law Rules and procedure applicable in Islamic law courts in Nigeria derive essentially from the following sources: i. ii. Area Court Law and Area Court (Civil Procedure) Rules 388;

Shariah Court Law and Shariah Court (Civil Procedure) Rules; Shariah Court of Appeal Law and Rules389; Court of Appeal Act390 and Rules391; Supreme Court Act392 and Rules393; The 1999 Constitution of the Federal Republic of Nigeria; Classical Rules of Islamic law as espoused in the classical Islamic law books of Islamic law scholars of Maliki Madhab (i.e. Maliki School of Law).

iii. iv. v. vi. vii.

388 389

See for example, Laws of Kwara State of Nigeria, 2007, CAP A9. E.g. Ibid, CAP S4. 390 Laws of the Federation of Nigeria, CAP C36, 391 The previous 2002 Rules ceased to operate on 1st September, 2007 when the extant Court of Appeal Rules, 2007 came into existence. 392 Supra note 31, CAP S15. 393 There is now a new Supreme Court Rules of 2009.

96

viii.

The pristine sources of Islamic law i.e. Qur‟an, Sunnah, Ijma‟ and Qiyas394

It should be stated that all the sources listed above rely on the Constitution for their validity in the country.395 This is a major inhibition to the full enthronement of Shariah in Nigeria.396 It is based on this that some have argued that the expansion of Shariah and its declaration by the Zamfara State and other states that have followed it is unconstitutional.397 This has also in recent time received judicial backing, i.e. that the step is unconstitutional.398

394 395

Ishola, n. 386, pp. 143 - 144 See Section 1 (1) and (3) of the Constitution which declares itself to be supreme and that any other law that is inconsistent with its provision will be null and void. 396 For a study on such constitutional impediments, see Abdul Lateef, n.129; Olagunju, Ridwan Ibrahim, “Administration of Islamic Law in Nigeria: Some Constitutional Constraints and the Bailouts”, AlMaslaha – Journal of Law and Religion, Vol. 5, 2009/2010, pp. 51 – 71; Abikan, Abdul-Qadir Ibrahim, “Constitutional Impediments to the Total Enthronement of Shari‟ah in Nigeria”, in Oseni, Zakariyau I. (Ed), A Digest on Islamic Law and Jurisprudence in Nigeria – Essays in Honour of Hon. Justice Umaru Faruk Abdullahi (PCA), (Auchi, Edo State – Nigeria: Darun-Nur, 2003) pp. 164 – 188; Oredola, Justice Massoud Abdulrahman, “The 1999 Constitution and the New Initiative on the Shariah: Between the Ideal and the Possible”, Al-Maslaha – Journal of Law and Religion, Vol. 2, 1999 – 2003, pp. 53 – 57; and, Sulaiman, Ibrahim K. R., “The Shari‟ah and the 1979 Constitution” in Rashid, Syed Khalid, (ed), Islamic Law in Nigeria – Application and Teaching (Lagos: Islamic Publications Bureau, 1986) pp. 52 – 74; Tabi‟u, Muhammad, “Constraints in the Application of Islamic Law in Nigeria”, in Rashid, n.396, pp. 75 – 85. 397 See different debates for and against this view in Shari‟ah Dialogue (Committee of Concerned Citizens). See also, Yadudu, H. A., “Religion, Politics and National Cohesion: Getting the Mix Right”, AlMaslaha, Vol. 2, n.41, pp. 31 – 42; Yadudu, H. A., “Shariah Debate in Nigeria: Dialogue of the Deaf”, in Oseni, Zakariyau I. (Ed), A Digest on Islamic Law and Jurisprudence in Nigeria – Essays in Honour of Hon. Justice Umaru Faruk Abdullahi (PCA), (Auchi, Edo State – Nigeria: Darun-Nur, 2003) pp. 1 – 5; Olagunju, n.396 398 See Olagunju, n.396, p. 66. In this respect, he made reference to the cases of Alhaji Abdu Mai Daura v. Garba Bagobiri Tudun-Iya (unreported, Appeal No.: CA/K/320/S/ 2003, delivered on 24 th May, 2007, upon an appeal that emanated from Katsina State) and Bashir Gidan Kanawa v. Alhaji Sani Mai Kaset (2007) 10 NWLR (Pt. 1042) 283.

97

4.4.0. TRENDS ON THE OBSERVANCE OF THE DOCTRINE IN SHARIAH CASES The starting point is to state that, a major argument in favour of the doctrine of stare decisis, which has made Muslim lawyers and judges to believe that its importation into the administration of Islamic justice in Nigeria will be of benefit, is that of its certainty. But, the question is: is Islamic law uncertain? As far back as 1963 or even earlier when arguments had started to be canvassed for codification of customary law, Islamic law was never included. In fact, as Elias rightly stated it, the codification concern was with “the prevailing uncertainty regarding the local laws and customs in Southern Nigeria and some „pagan‟ areas of the North”.399Islamic Law was truly not part of customs in some „pagan‟ areas of the North.

It should also be observed that another reason why the doctrine has been taken to be indispensable in all the Nigerian courts, including Shariah courts, is the request for “a Nigerian common law”400 or “the common law of the realm”,401 which is believed can be achieved by the application of the doctrine402 since “the method of case-law is most conducive to the healthy and flexible growth of Nigerian law”.403 On this, the question to be asked is whether a truly genuine Nigerian Common law can be achieved by destroying the value and essence of the various independent individual legal systems that constitute the Nigerian law. Is the application of the doctrine in Shariah cases not a negation of the Islamic concept of justice? The paragraphs following will address this and shed more lights on it.

399 400

Elias, n.67, p. 375 This is the common and the recently adopted term. See generally, Tobi, n.32, pp. 183 - 188 401 This is the term used by Elias, n.44, p. 375 402 A recent view proposes the possibility of a Nigerian Common law through human rights litmus test. For this, see, Nwauche, n.99, pp. 45-69 403 Elias, n.67, p. 376

98

It is necessary to state that, application of the doctrine of stare decisis in Shariah cases in Nigeria has featured in some noticeable issues than others. However, the common effect on all of them is that it has always resulted in the perversion of justice through the perpetual perpetration of misapplication of the correct principles of Islamic law that has been laid down in what might be regarded as the original precedent.404 Issues where the doctrine has most frequently featured include: i. ii. iii. The issue of procedure for the selection of a Chief Imam or an Imam The issue of succession or distribution of the estate of a deceased Muslim Criminal matters pertaining to Islamic Law405

Some of the cases where some precedents have been laid down on the above issues and the trends on their continuing application will be examined in what will follow. The principles laid down in those cases which are in most cases a negation of the correct principles of Islamic law will be disclosed.

4.4.1. TRENDS IN THE ISSUE OF PROCEDURE FOR THE SELECTION OF A CHIEF IMAM OR AN IMAM This is one of the issues that have been taken outside the matters on which an Islamic law court, strictly speaking, has jurisdiction to sit over as it is outside the scope of Islamic personal law matters.406 It has therefore been exposed to a two-edge of detach

404 405

On the categories and types of judicial precedent, see Paragraph 2.4.2., Chapter Two herein. See generally, Umoh, n.41, pp. 101 - 104 406 For example, in Upper Area, a sole judge learned in Islamic law is to sit on Islamic personal matters while any two members of the court will be properly constituted to sit on other matters of Islamic law. See, section 4 of the Area Courts Law, Cap 13, Laws of Kwara State, 1994

99

from Islamic law.407 The available case, where a sort of original precedent was laid down on this issue, is Odebode v. Ashaka.408 This case laid down the principle that, “the election into the post of a Chief Imam depended upon the vote of a Moslem community taken unanimously or by a majority”.409 Soon after the rule was thus laid down, the principle was applied in the case of Asani v. Adeosun,410 where the Supreme Court held that, since neither of the two contestants for the post of a Chief Imam had a majority in his favour, none of them was entitled to act as Chief Imam in the absence of a unanimous or majority vote in his favour.411 This principle has therefore remained the law up till today.412

It must however be stated straight away that this is not completely in tandem with the principles laid down by Islamic law on the appointment of a Chief Imam. While it is in tune with the principle of Islamic law that a Chief Imam must not be appointed except upon unanimous selection (and not election or by voting) of the members of the Central or General Mosque and is equally permitted that the majority choice should prevail in the event of discrepancy when there are more than one candidates, the criteria that must be used to settle the controversy is to choose the person who is more religious, adherent to the Sunnah, verse in the Qur‟an and knowledgeable in the Islamic jurisprudence and not necessarily the rule of majority carries the votes.413

407

The first detach is that it is not made compulsory to be heard by the panel learned in Islamic law while the second is that it is always adjudicated upon as a matter not regulated strictly by Islamic law. Customary practices of Muslims on it have always been used as the yardstick. The further explanation provided will show this. 408 (1944) 17 N. L. R. 84, as cited by Umoh, n.41, p. 102, fn.74 409 Umoh, n.41, p. 102 410 (1966) N. M. L. R. 268 as cited by Umoh, n.41, p. 102, fn.75 411 Umoh, n.41, p. 102 412 See for example, Abdul Salami v. Salawu (2002) 6. S. C. (Pt. II) p. 196 413 See generally, Almawaridy, n.266, pp. 184 - 185

100

4.4.2. TRENDS IN THE ISSUE OF SUCCESSION OR DISTRIBUTION OF THE ESTATE OF A DECEASED MUSLIM On this, contrary to the principles of Islamic law of inheritance (Mirath) which stipulates how the estate of a deceased Muslim must be distributed, regardless of where and how a Muslim lived his life, so far he died on the path of Islam and he professed it in his life, precedent has been set since the case of Absi v. Absi,414 that it is the lex situs (the customary law applicable where the Muslim died) that would apply and not necessarily Islamic Law.

Similar to the above issue is the precedent that has been set on whether a Muslim has the power to make Will in accordance with English law so that he could distribute his estate as he so wishes contrary to Islamic Law which limits his power in that respect.415 The issue was first trashed out in Yinusa v. Adesubokan.416 The decision of the lower court handed down by Bello J (later CJN, now of blessed memory), which was to the effect that even though a Muslim can make Will under the Wills Act, he has no rights to deprive any of his heirs their stipulated shares by Islamic law, was reversed on appeal to the Supreme Court417 on the ground that that principle of Islamic law is contrary to the Wills Act which gives absolute discretion to every individual. The case has been invoked in other subsequent cases418 as the legal proposition that, Islamic law does not apply as the personal or “customary” law of Muslims in Southern Nigeria.419Some legal
414 415

(1973) L. L. R. 39, as cited by Umoh, n.41, p. 102, fn.76 For a comparative study on the practice of Will-Making under English and Islamic law, see Ishola, Abdullahi Saliu, “Muslim Citizens and the Practice of Will-Making in Nigeria: The Interface Between Shari‟ah and English Law”, The Learned, 5th Edition, June 2009 (LASA, Kwara State College of Arabic and Islamic Legal Studies, Ilorin) pp. 73 - 99 416 (1968) N. N. L. R. 97 417 The Supreme Court decision was reported as T. T. Adesubokan v. Rasaki Yunusa (1971) N. N. L. R. 77 418 See for example, Kharie Zaidan v. Fatima Khalil Mohssen (1973) 11 S. C. 1 419 For a general appraisal of the position of that case as precedent for that proposition of the law today, see Oredola, n.323. For the law laid down in the case, see the interview with R. O. Balogun.

101

practitioners, based on the Yinusa‟s case, posit that a Muslim can make Wills absolutely in English style.

Two other cases that should also be of interest are Karimatu Yakubu Paiko & Another v. Yakubu Paiko & Another;420 and Chamberlain v. Abdullahi Dan Fulani.421 These have been noted to be “two eminent outstanding cases in Nigeria that have touched on the issue of precedent in Shari‟a”.422 In Paiko‟s case Court of Appeal chastised the Sharia Court of Appeal for keeping mute on a previous case cited and relied upon by counsel. It was that same case cited by the counsel that the Court of Appeal relied upon to allow the appeal. In Chamberlain‟s case, the position of Islamic law on the doctrine of stare decisis was well spelt out; but all the same, the court refused to abide by the position, but rather still went ahead to be guided by the same doctrine which it acknowledged as being irrelevant to Islamic law. The pronouncement of Justice Kalgo is very instructive in this respect. His Lordship posits thus:
In deciding this issue this court will be guided by the established authorities on this point. I am not unaware of the fact that in Islamic law, there is no binding principle of precedents as we have in English type of courts. I have carefully examined all the available guiding authorities on the point and I find myself unable to agree with the view of my most learned brother, the Grand Kadi that there is a requirement to call on the appellant to give evidence in this case at the trial.423

420 421

Unreported Federal Court of Appeal Case No., CA/K/805/85 (1961 - 1989) I. Sh. L. R. N. 54 422 Aminu, n.59, p. 1 423 n.420, p. 59

102

4.4.3. APPLICATION OF THE DOCTRINE IN CRIMINAL MATTERS PERTAINING TO ISLAMIC LAW This may not ordinarily be of so much significance in the work since Islamic criminal law, in the real sense, cannot be said to still be in operation in the country. As earlier noted it had been abolished.424 It is however necessary to say one thing or the other on it especially since some states of the Federation have now adopted some seemingly Islamic law patterned criminal law so that they may be guided not to still go by those old decisions that have tended to have established certain principles in respect of some Islamic criminal law issues. Succinctly put, Islamic criminal law principles on the proof of armed robbery (hirabah);425 adultery and fornication (zina),426 among others have been declared to be repugnant to natural justice and good conscience; they are therefore no good law. The caveat here is that a perpetration of this precedent will contravene the criminal justice of Islam.427

4.4.4. CURRENT ATTITUDE OF THE SHARI’AH COURTS TO THE DOCTRINE For the Shari‟ah judges who still remember their callings as Muslim judges administering Islamic justice system;428 two subtle approaches seem to have been adopted in recent times. The first view is that, a lower Islamic court is no doubt bound by the decisions of higher courts, especially those of the Court of Appeal and the Supreme Court, decided on the principles of Islamic law. Ambali429 and Oredola430 are in
424 425

See generally, Mahmud, n.359, pp. 14 - 15 See Umoh, n.41, pp. 102 - 103 426 See for example, Mariyama v. Sadiku Ejo (1961) N. R. N. L. R. 81 427 See further, Umoh, n.41, pp. 102 -104; Mahmud, n.359, pp. 16 - 19 428 For a general insight on the code of conduct for a Muslim judge in Nigeria, see Akanbi M. M., “The Muslim Judge in A Multi-Religious Society”, Al-Maslaha, Vol. 2, pp. 78 - 84 429 Retired Grand Kadi, Kwara State Shari‟ah Court of Appeal

103

agreement on this view. The only slight difference between them is that while Ambali seems to have expressed some sorts of different views judicially as different from what he posits academically, Oredola has maintained this position in all his capacities, judicially and extra-judicially.

Justifying the need for an Islamic judge in Nigeria to be fluent in English language, as much as he would be in Arabic, Ambali states that “he needs it to read the judgements of the Supreme Court and Court of Appeal decided on the principles of Islamic Law which are binding on his court”.431 Acting judicially, however, his position is that “Islamic law does not enslave its judges to their previous judgements and those of others. Each case is determined on its own merit”.432

It must be observed that the position of Ambali is that stare decisis is not a practice in Islamic law. What could have made him to argue that the judgements of the Supreme Court and Court of Appeal decided on Islamic law are binding on the lower Shariah Courts is just to draw home the significance of the requirement for an Islamic law judge to be fluent in English language. This writer‟s interaction with him during the interview he granted in the course of this research revealed that that is how his mind was working. To therefore correct the wrong which the argument may create through the academic work, it may be necessary that the analysis be redrafted in a subsequent edition of the book to read as follows:

430 431

Formerly, Kadi, Kwara State Shari‟ah Court of Appeal; now Justice of the Court of Appeal (JCA) Ambali, n.48 p. 80 432 See Fatimoh Muhammed v. Ambassador Ali Assayouti (2008) KSCAAR, p. 9

104

As much as fluency in Arabic is a must for any Kadi no matter where he operates, for a kadi in Nigeria, fluency in English should be a must for efficient performance of his duties. He needs it to read the judgements of the Supreme Court and Court of Appeal decided on the principles of Islamic Law, which can be of immense assistance to him in the circumstances where his judicial reasoning will come to play when there is no direct principles on the matter in the primary sources; notwithstanding that those judgements are not necessarily binding on his court in accordance with the position of Islamic law on judicial precedent or stare decisis.

On his own part, the position of Oredola is simply that, “decisions of superior courts on issues of Islamic law, which are duly grounded on primary and authoritative sources of Islamic law in the context of Nigerian legal system are binding on Islamic law courts and not otherwise”.433

The other option being proposed is that, since the lower court may not be able to ethically, expressly declare that he is not following decisions of the Superior courts, he can adopt the “distinguishing technique” in evading to be bound by those decisions. This is similar to the principle known as al-Furuq in Islamic law.434 By adopting this technique, the Muslim judge will always be able to state the in-application of the principle espoused in the case cited as precedent.

433 434

Oredola, n.396, p. 23; See also, Alhaja Sara v. Alhaji Maliki Okanla (2004) KSCAAR, p. 59 at 71 On the technique of furuq, see Nyazee, n.243, p. 347

105

4.5.0. ANALYSIS OF THE INTERVIEW OUTCOME As shown on the Table of Interviews and Personal Communications, a total number fifteen (15) individuals were interviewed in the course of this research. Their places of origin and residence cut across various parts of the Federation. By status, career and experience, among them are Muslim law students, legal practitioners with purely common law or Shariah backgrounds, as well as those who are of both. Law lectures and retired Islamic law judges or Kadis were also among them. All efforts to formally interview a serving Kadi or Islamic law Judge of Area Courts proved abortive. Although it must be acknowledged that the researcher was able to meet very briefly with Hon. Judge Abdulhameed, who is the presiding judge on Islamic personal law matters at the Upper Area Court No. 1, Ilorin. He succinctly posited that the doctrine is not applicable in Islamic law.

The researcher engaged the interviewees on their knowledge of the doctrine and understanding of the position of Islamic law on it. The interview reveals that most of the interviewees did not differentiate between the general doctrine of judicial precedent and the doctrine of stare decisis. Some of them even viewed it from the general perspective of what precedent connotes. It is on the basis of this that some of them posited that Qur‟an, Sunnah, Ijma‟ and Qiyas are some kinds of precedent.

Generally, the researcher was able to discover through the interview that common law lawyers, not withstanding their status as Muslims, would find it difficult to completely condemn any common law doctrine or practice that is condemned by Islamic law. Some of them would even ordinarily believe that, if some Muslims whom they identified as Shariah proponents, consider any common law style as un-Islamic, they only do so because of the hatred they have for common law. For example, it is the position of R. O.

106

Balogun that those who claim that the doctrine does not apply in Islamic law will be negating the certainty that is also identified with Islamic law.435 It is surprising that Balogun was so assertive that the doctrine must be observed in Shariah courts despite the fact that he himself admitted at a breadth that he is not verse in Islamic law. He could therefore not have based his argument on any other ground than the common law purview.

Essentially therefore, while a segment of the interviewees do not see any thing wrong in the application of the doctrine in Shariah courts, some posit that it is not the approach of Islamic law that an Islamic judge should be blinded to the pronouncement of a fellow judge just because of the status conferred on him as a superior court. To this end, Ahmed Abdulrahman436 argues that the doctrine should not just be followed hook, line and sinker in Shariah courts the way it is done in common law. He did not see any sense in a judge to be bound by the decision of another judge even when it is erroneous simply because the other is higher in rank to him.

Mention must be made of a practical analysis given by Hon. Justice Ambali in showing why the application of the doctrine in Shariah courts will breed perversion of justice. He recalled the decision made by the Court of Appeal of the then Kaduna Division in an appeal that went there from Ilorin. He mentioned the case as one Nafisatu Ote‟s case. He noted that in the case, the Court of Appeal erroneous misapplied the principle known as Takrar Shakwah contrary to that of Taqrar Shakwah which is what is recognised in Islamic law. He explained that what the correct principle of Islamic law envisages is that a court should grant divorce (khul‟) to a woman upon her insistent return to court even
435

He is the Principal Partner of a law-firm based in Ilorin known as Balogun, Balogun & Co. He was interviewed on Monday, 28th June, 2010 at the Bar Centre, High Court Complex, Ilorin. 436 He is a 200 Level law student of the University of Ibadan. He was interviewed on 26 th June, 2010

107

when she is unable to substantiate her ground for the claim; and that in the circumstance, it is expected that she will be returning to the same, most likely, trial court. The Court of Appeal misapplied the principle by taking the various appellate steps which the woman had taken to have qualified her for the principle to be invoked in her favour.

His lordship stated that by appellate steps, the woman was not insisting, but rather just repeating. He therefore concluded that if the doctrine of stare decisis is to apply, then it would be expected that Shariah courts would continue to uphold the decision of the Court of Appeal as the law. He therefore warned that any Islamic law judge should desist from being blindfolded by the doctrine.

The interview has really enriched this study as the researcher was able to see different views held by various stakeholders on the relevance of the doctrine to the Shariah court system in Nigeria. The researcher will therefore encourage the reader to take time to listen to the various views gathered from the interview which has accompanied this work, as contained in the CD Tape.

4.6.0. FUTURE OF THE DOCTRNE IN SHARIAH COURTS IN NIGERIA: DETERMINANT FACTORS From the analysis made so far in this study, it is evident that the doctrine of stare decisis is being held in the usual esteem in Shariah courts in Nigeria. The work has also shown that application of the doctrine in Shariah courts has no sanction of Islamic law. It is therefore necessary to consider the various factors that may shape the future of the

108

doctrine in Shariah courts in the country. This is what is done in the subsequent subparagraphs that hereunder follow.

4.6.1. CONTINUING INFLUNECE OF COMMON LAW It is a well known fact that common law has tremendous influence on the Nigerian legal trends generally. Its tentacle of influence has also been extended to Islamic law in many forms. The doctrine of stare decisis is essentially its peculiarity. It will therefore follow that so long common law continues to hold sway in the Nigerian legal corpus; then the doctrine may continue to wax stronger in Shariah courts.437

4.6.2. HIERARCHY OF COURT SYSTEM AND APPELLATE PRACTICE As already explained, the system of hierarchy of court, and invariably appellate practice, is sine qua non for the operation of the doctrine of stare decisis. Continuing existence of this structure, without proper clarification of its essence in the administration of Islamic justice as different from common law, may therefore be a factor that may make it difficult for a Shariah court to be properly guided. It would be recalled, as earlier noted, that this impression has even made Justice Ambali, who is not in support of the doctrine in Shariah courts, to have erroneously made a statement that is contrary to his belief for he thought that by the hierarchy system on ground, judgments of both the Supreme Court and Court of Appeal are binding on the Shariah courts,438without necessarily saying that in favour of stare decisis. But, there is nothing un-Islamic about hierarchy of court structure and appellate practice, but that does not create any special status for the courts in higher ladders in the hierarchy over those in the lower ebb.

437 438

See also Umoh, n.41, p. 105 See Ambali, n.48, p. 80

109

4.6.3. NIGERIAN LEGAL EDUCATION SYSTEM The Nigerian legal education is still very much patterned after the common law system. This therefore makes it impossible for lawyers in the country to be trained on the position of Islamic law on issues highly celebrated or relegated under common law. This explains why some one like Habibat Bankole, a 300 Level law student,439 was surprised that the position of Islamic law on the doctrine could even be brought up. How will one expect a person of her calibre to react in future if she is told the doctrine which has been packaged to her to be the best in her legal training as the best is rejected by another legal system? In essence, until when legal education in Nigeria is tailored towards learning instead of leaning, the doctrine may continue to be applied in Shariah courts in the country.

4.6.4. PLACE OF ALLEGIANCE OF SHARI’AH JUDGES It has been argued that, “it is the thinking habit of lawyers and judges, more than anything else that brought the doctrine into Nigeria”.440 Why this was so is that the Nigerian lawyers, whether as private practitioners or judges, having been trained in common law legal education, have unalloyed allegiance to common law and will always protect common law and anything associated with it. There is no much difference in those who are Muslims among them; their allegiance to common law is also unqualified. Thus, the future of the doctrine in Shariah courts therefore depends on where the allegiance of the Shariah judges vests; either in common law or in Islamic law.

If the allegiance is for common law, just as Justice Kalgo did in the Chamberlain‟s case, the Shariah judges may still not disregard the doctrine, notwithstanding their
439 440

She is one of the interviewees. Umoh, n.41, p. 48

110

appreciation of the position of Islamic law on it. Of course, the allegiance to common law may be as a result of the training of the Shariah judge as a common law lawyer, which may pushed him “to bring [his] common law methods of legal thought to bear on decisions”441 on Islamic law or may simply be due to inferiority complex of such judge.

Certainly, for a Shariah judge to give allegiance to common law over Islamic law will be a disservice to Islamic law which he is supposed to serve and highly counterproductive to his standing as a Muslim judge. Such an attitude will cast a very serious doubt on his status as a Muslim judge defined as one “who has accepted Allah (Subhanau Wa Tahala) as the Supreme Being and the only one worthy of being worshipped and has chosen Islam as his way of life, and accepted Prophet Muhammad (S. A. W.) as the last and final seal of the Prophets”.442 Thus, the future of the doctrine in Shariah courts in the country depend on the Shariah judges themselves.443

4.6.5. NATURE OF APPOINTMENT TO THE SUPREME COURT Generally the nature of appointment, in terms of qualification, quality and quantity (the 3Qs), of judges administering Islamic law in Nigeria will tell a lot on the future of the doctrine of stare decisis in Shariah courts in the country. However, because of the status

441 442

Umoh, n.41, p. 106 Akanbi, n.428, p. 82 443 An attestation to this is the recent development in the Kwara State Sharia Court of Appeal in which, for the first time, a Kadi wrote a dissenting opinion. This might not have been of any special interest in this study, but for the fact that incidentally the basis for the dissent is that the dissenting Kadi strongly believes and so holds that they are “bound by the Court of Appeal decisions, more especially when the decision is on Islamic cases like this one at hand” and also because His lordship would not see any “cogent, concrete and convincing reason why this court should now change our age long practice of entertaining this type of appeal in our court”. See Fatimoh Muhammed v. Ambassador Ali Assayouti (2008) KSCAAR, pp. 6 – 11, for the main judgement (Coram: M. A. Ambali, Grand Kadi ; and, S. O. Muhammad, Kadi; agreeing) and pp. 12 – 15 for the dissenting judgement (Coram: A. K. Abdullahi, Kadi; dissenting).

111

of the Supreme Court as the final appellate Shariah court, having a final say on what Islamic law is in the country, it will be given a kind of special consideration.

The relevant point which must be made very succinctly is that, even though there is a provision for the appointment of at least three Justices learned in Islamic “Personal” law into the bench of the Court of Appeal, there is no similar provision for appointment into the Supreme Court. As a matter of fact, the Supreme Court is manned exclusively by common law trained lawyers, regardless of whether they have any specialisation in Islamic law or not.

Essentially therefore, the Supreme Court may be constituted mainly by justices who do not have any knowledge of Islamic law to sit on Islamic law matters. In such circumstance, they will only bring their common law methodology of legal reasoning to bear on the case and as such they will be neglecting Islamic law while they purport to apply it. This is most likely to be the situation in any case where the doctrine of stare decisis becomes an issue; they will not want to be bothered about the position of Islamic law on it, they would rather prefer to be guided, as Justice Kalgo did in Chamberlain‟s case, by the established authorities, as expected of them by common law. The future of the doctrine in Shariah courts will also be determined by this factor. 4.6.6. CONTINUING INDISCRIMINATE APPEARANCE OF LAWYERS AS ADVOCATES IN SHARI’AH COURTS By indiscriminate appearance, it is meant the appearance of lawyers in Shariah courts as advocates just on the mere ground of being a lawyer and on the constitutional entitlement of litigant to be represented by a lawyer of his choice without any regard to the assistance which such lawyers would give to the interest of justice in the matter.

112

It should be observed that, appearance of lawyers in Sharia courts has become an almost immutable constitutional reality; their appearance has been of a clog in the wheel of the administration of Islamic justice; contrary to the belief that it would be lubricating oil to that wheel. The Kwara State Shariah Court of Appeal has, in this regard, had to caution lawyers against some of their negative attitude towards the business of justice which was in violation of the Islamic ethics for administration of justice.444 Such negative attitude even continued unabated so much that the court had to voice out in 2005 with the forceful words of caution to lawyers thus:

We salute the diligence, dexterity and industries displayed by those lawyers who have come to handle one matter or the other before us. We hope they have cause to appreciate the capacity of Sharia: substantive and procedural laws to attain meaningful justice in our society. However, we wish to reiterate that the lawyers will be able to perform better as Ministers in the Temple of justice if they endeavour, be they Muslims or not, to find time to conduct research into the matters/appeals they want to handle in the courts operating Islamic Law. They will find it rewarding, educating illuminating (sic), fascinating and satisfying. They should be cautioned against using the negatives of Common Law of England to print the photographs of Islamic Law matters before us. Islamic Law has its procedural and substantive laws and there is no way that justice will not suffer if any strange principles are used to argue or decided Islamic Law matters. 445

444 445

See the 1995, 2003 and 2004 Annual Reports of the Court; p. viii; p. xi; and, p. xiii; respectively. See (2005) KSCAAR, p. xiii

113

It is deducible from the above that much is still demanding from the appearance of lawyers in Shariah courts in Nigeria. It is clear that their major challenge is the ability to appreciate the strength and methodology of Islamic law. Since they, by their training, have the peak of their legal reasoning in finding solution to any case they handle in decided cases, it will be too daunting to them for the practice of stare decisis not to be upheld in Shariah courts. As long as they therefore enjoy audience in the courts, they will make it difficult for the doctrine to be erased from there. A typical example of this is Balogun who vowed to rise against any body who says that the doctrine does not apply in Shariah courts. If he does not rise against them, given his background as a purely common law trained lawyer, will a stop to the application of the doctrine in those courts not be the end of his own appearance there? Certainly, it will be. So, in many ways, lawyers‟ appearance is a factor to shape the future of the doctrine in the Nigerian Shari‟ah courts.

4.6.7. STRUCTURE OF THE APPELLATE COURT SYSTEM As earlier explained, there is a sort of fusion of court at the appellate Shariah courts system in Nigeria. This therefore makes it difficult for those courts to completely discharge themselves from the shackle of the principle and spirit of common law when they sit on Islamic law matters, especially when it comes to the issue pertaining to the doctrine of stare decisis. If the Shariah court appellate structure is therefore not shifted from unified system to parallel system, the doctrine may continue to be applied in the courts.

So far, the above are some of the factors that may shape the future of the application of stare decisis in Shariah courts in Nigeria. The list is however not exhaustive.

114

4.7.0. ANY PLACE FOR STARE DECISIS IN THE SHARI’AH COURT SYSTEM IN NIGERIA? As it would be noticed, some people have tried to place the position of Islamic law on the doctrine of stare decisis within the context of the Nigerian legal system and by extension within the Shariah Court system in the country. While it may not be disputable that truly there is a unique Shariah court structure or system in Nigeria, but it is most doubtful that the Shariah being administered by those courts can be said to be of any particularity, peculiarity or uniqueness to Nigeria. Even if there is any of such peculiarity; it would be of negative and not positive influence. There is therefore no way a transgression on any principle of Islamic Law will be excusable on the ground of Nigerian context.

It is needless to remind every Islamic judge in Nigeria that they hold their offices in trust and they must of course “know that they are accountable to God Almighty and must, therefore, not sell or deny justice to any one”.446 What worse denial of justice can be occasioned than to print the photographs of Islamic justice with the negatives of the Common law, as it is done by the application of the doctrine of stare decisis in Shariah courts in the nation?

It should be placed on record that the doctrine of stare decisis which the Islamic law judge would not feel so much confident to disregard has not been so much branded as spotless even by the people whose allegiance is to no other system than common law. They are not as that comfortable with the application of the doctrine in Nigeria generally; i.e. even in the so called English-style courts. What then is the unnecessary and

446

Akanbi, n.428, p. 83

115

unconcerned attachment of the Islamic judge to the doctrine? 447 Tobi expresses his displeasure in that regard succinctly thus:
It is rather unfortunate that Nigeria should copy the English common law doctrine and tradition of precedent to the letter in spite of the divergencies (sic) in the constitutional set up of the two countries. And more importantly, even when there is a liberalapplication of the doctrine in England in deserved cases, the Nigerian courts still maintain a very hard line.

If the calibre of Tobi, would not see the relevance of the doctrine in Nigeria simply on the constitutional divergence, how then can the relevance of the doctrine to the Shariah court system in the country, administering Islamic justice, be justified? The two features of universality and immutability of Islamic law shows glaringly that the nature of Shariah courts in the federation cannot be a justification that there is any uniqueness in the Shariah being applied in Nigeria. If that is the case, i.e. there is no such uniqueness, then this study will have no hesitation in stating it loud and clear that, the doctrine of stare decisis is not relevant to the Shariah Court system in Nigeria; its application there is a mere aberration, forceful imposition, legalisation of an illegality and sheer disregard to the spirit and concept of justice that should obtain in Shariah courts.

4.8.0. A PROJECTION INTO A SHARIAH COURT SYSTEM IN NIGERIA WITHOUT STARE DECISIS The point has been made that Hierarchy of courts structure and appellate review practice, which are considered as indispensable tools for the operation of stare decisis are not completely rejected in Islamic law. It has also been noted that the two practices have never led Islamic courts to derail into the application of the doctrine. It is very
447

The Prophet is reported to have said that part of the beauty of the Islam of a person is for him to leave what does not concern him.

116

noteworthy that application of the doctrine in Nigeria is due to some factors which are the same factors that can determine the future of the doctrine in Shariah courts in the country.

It is therefore posited that with a proper appreciation of the ideal of justice in Islamic law and the intricacy of justice system of Islam, and if Islamic judges live up to their responsibilities, the Shariah court system in Nigeria can conveniently operate without obeisance to the doctrine of stare decisis.

4.9.0. CONCLUSION Trends on the practice of the doctrine of stare decisis in Shari‟ah courts in Nigeria have been the focus of this chapter. The Chapter has explored the reality of the application of the doctrine in Shariah courts in the nation. It has been shown that some of the principles laid down in some cases considered as precedents are in most cases a negation of the principle of Islamic law itself.

The factors that can determine the future of the doctrine in Shariah courts in the federation have also been considered. The study made so far has led to the conclusion that the doctrine of stare decisis is not relevant to the Shariah courts in Nigeria; its application there is a complete aberration and no Shariah judge will have any justification for not detaching from it.

117

CHAPTER FIVE GENERAL CONCLUSION
5.0.0. INTRODUCTION This research has been pre-occupied with the relevance of the doctrine of stare decisis to the Shari‟ah Court system in Nigeria. This was informed by the fact that the doctrine is generally believed to be a source of the Nigerian law. This is however not completely true for the doctrine is just an aspect of English law, which is one of the three legal systems that constitute the major sources of law in the country. Islamic law is one of those three major sources. However unlike the practice in English law, the doctrine does not enjoy the sanction of Islamic law. Thus, while the doctrine can rightly be regarded as a source of law in the English-style courts in the country, it is otherwise in the Islamic courts there.

In this research, it has been disclosed that there is a divergence of opinions among people in Nigeria on whether the doctrine should apply in Shariah courts in the country or not. The view subscribed to by this researcher is however that the doctrine is not relevant to Shariah courts; its application there is an imposition and a complete negation of the concept of the administration of justice in Islamic law. For justice to therefore be maintained and discharged by the Shari‟ah courts, the doctrine should cease to be embraced.

It has been disclosed in this research that there are many factors, which existence or nonexistence, will have impact on the future application of the doctrine in Shariah courts in the country. It has also been shown that Islamic law has its own system of justice which

118

does not have any place for the doctrine. It does not permit of the practice whereby the judge will be guided by the decisions of another judge. The Islamic judge is not even expected to stick to his past judgments when the circumstance and justice of the new case before him demands another approach. In fact, the past judgments are not to be in his contemplation or reasoning when adjudicating on a new case; he is to treat the case at hand as if he had never treated any before, his point of reference must be to the sources of the law like the Qur‟an, the Sunnah, Ijma‟ and Qiyas.

Having gone this far, it is therefore necessary to conclude the work by stating the findings from the preceding chapters; summary and inferences from the study and proffer some recommendations that may enable the doctrine to be treated the way it should in Shariah courts in Nigeria.

5.1.0. FINDINGS FROM THE PRECEDING CHAPTERS Four Chapters have been written in this work up till this stage. It is deducible from Chapter One that even though there are many works on the application of the doctrine of stare decisis generally in Nigeria and specifically in Islamic law cases, there has not been focus on the relevance of the doctrine to Shariah courts, notwithstanding that it is being applied there. From Chapter Two, it is clear that there are four classes of sources of the Nigerian law while the structure of its courts is multifaceted. The Chapter has also made it clear that while the doctrine of stare decisis is part of what judicial precedent connotes, it is not the whole idea of judicial precedent. Very significantly, the Chapter has shown that judicial precedent, which the doctrine forms a part, is a source of law in Nigeria.

119

From Chapter Three, it can be inferred that the job of administration of justice in Islamic law is a very demanding task. In demonstrating this, the Chapter analyses the nature and intricacy of justice in Islam while a sort of special attention is paid to the place and duties of the judge in the administration of justice in Islamic law. Through the Chapter, it has been made manifest that the practice of judicial precedent generally, let alone binding one, i.e. stare decisis, is not one of the identified sources of Islamic law. It is also deducible from this Chapter that application of the doctrine is a negation of the requisites for the administration of justice in Islamic law. It has equally been disclosed in the Chapter that there are three major institutions for administration of justice in Islamic law, namely; Hisbah, Qada, and Mazalim. The institution of Qada is the judicial set up of Islam, which is closed to the modern courts practice. It has also been demonstrated in the chapter that, both hierarchy of courts structure and appellate review practice are not strange to Islamic law, but their operation has never made the practice of judicial precedent inexplicable, contrary to the belief of common law practitioners that with their existence, judicial precedent is inevitable. To further throw clearer light on the rejection of the doctrine by Islamic law, the Chapter draws the necessary distinction between the doctrines and the Islamic law concepts of Ijma‟, Ijtihad, Qiyas and Taqleed, which have been argued in some quarters as the Islamic law versions of the doctrine. The Chapter shows that the doctrine shares no similarity with any of these concepts, except Taqleed. However, it has been demonstrated rejection of Taqleed (blind- following) in Islamic law further confirms rejection of the doctrine on the same footing.

Chapter Four has been devoted to the general appraisal of the practice of stare decisis in Shariah Courts in Nigeria. Through the chapter, it has been the necessary information about the Shariah system in the country, ranging from its history structure and sources of its applicable law. The chapter has also critically appraised the position of Islamic law on the doctrine of stare decisis vis-à-vis the nature of Shariah court system in the nation.

120

Essentially, while the chapter has been able to identify the unique nature of the Shariah courts operating in Nigeria, he could find that to be a justification for Islamic law judges adjudication on Islamic law matters, at any stage or court level, to deviate from strict compliance with the rejection which Islamic law has accorded it.

Following the foregoing, it can be posited that, all the chapters have addressed the various topics under them.

5.2.0. SUMMARY AND INFERENCES FROM THE STUDY The need for a clear cut position to be made on the application of the doctrine of stare decisis in Islamic law matters in Nigeria is in deed long over due. The misapplication of Islamic law which the practice has been breeding in the Nigerian particularly made this desire more imperative. The fact that a Muslim judge will be held accountable in the hereafter for every decision he arrives at in any case also justifies him to be properly guided on the position of Islamic law on the doctrine. It is even more demanding to clarify whether the Nigerian factor will exonerate the Muslim judge in observing the doctrine in his court of Shariah.

This research work has vividly addressed all the issues raised above. It has disclosed that the doctrine is not in accord with the Islamic system of justice administration. Hierarchy of court structure and appellate review practice, even though allowed, have been the basis for a lower judge to be bound by the decision of a higher judge in the hierarchy; each is responsible for the judgement he handles down in whatever capacity he acts; be

121

he as a trial (lower) court or an appellate (higher) court. And, no burden carrier can carry the burden of another.

Based on this study, the following inferences can therefore rightly be made: 1. That the doctrine of stare decisis is not relevant to the Shariah court system in Nigeria. 2. That the reason why the doctrine is not relevant to the Shariah court system in Nigeria is because the courts are engaged in the administration of Islamic law why the doctrine only fits in for application in the Englishstyle courts in the country. 3. That the Islamic law principles do not and cannot permit the application of stare decisis in any place where its justice is administered such as in Shariah courts in Nigeria. 4. That the implication of then trends on the application of the doctrine in Shariah matters in the country is that Islamic justice is mean administered on common law terms which is a negation of the concept of justice in Islamic which stipulates its justice to be administered simply on Islamic law terms. 5. That the argument that Islamic lower courts should be bound by the decision of superior courts decided on the basis of the primary sources of Islamic law is a form of innovation (bidi‟ah) which is seriously frowned at in Islam; since is particular because of the nature the duty of administration of justice as a religious calling in Islam. 6. That it will not be long before the sanctity of Islamic system of justice will be completely eroded in Nigerian courts if the Islamic judges administering Islamic law are not properly guided on the pristine position

122

of Islamic law on the doctrine and go strictly by it without necessarily adapting to suit “the context of the Nigerian legal system”; Allah obliges them to administer justice in his name and the context in which He has defined it and not “in the context of the Nigerian legal system”.

5.3.0. RECOMMENDATIONS Since the challenge facing the Shariah Court System, as it relates to this study, is how to comply with the position of Islamic law on the doctrine stare decisis, it is therefore recommended as follows: 1. The Nigerian Courts structure should embrace parallel court system where each of the three legal systems will be able to administer their various forms of justice in the terms known to them and not necessarily as dictated by common law. To this end, it is strongly recommended that Shariah courts in the country should consist of Shariah Courts; Upper Shariah Courts; High Shariah Courts of each State and the FCT; Federal Shariah Court of Appeal; and, Apex Shariah Court of Appeal. 2. Pending the full take-off of the suggested parallel court system, Shariah Division should be created at both the Supreme and the Court of Appeal. 3. Not less than Seven Justices learned in Islamic law should at all time be on the Bench of the Supreme Court and their primary duty should be to sit on appeals in Islamic law matters while a similar arrangement for not less than Five Justices should be made in respect of the Court of Appeal, assigned to the Shariah Division of the Court. It should be observed that Court of Appeal in England sits in Divisions; e.g. Probate Division; Criminal Division; Divorce Division; etc.

123

4. The jurisdiction of the Shariah Court of Appeal should no longer be restricted, directly or indirectly, to Islamic personal law matters while appeal in all Islamic matters should be going to it. High Court should cease to exercise appellate jurisdiction in any Islamic matters. 5. In Islamic law matters, none-Muslim members or Muslim members not learned in Islamic law, of lower courts should no longer sit on all Islamic law matters. To this end, creation of a Shariah Division of the court is also imperative.448 6. The Nigerian Legal Education System should be reformed. The trainings given to lawyers at both University and Law School should give the necessary attention to Islamic legal education. It is strongly recommended that specialisation in Islamic law practice in the country should be encouraged. A Shariah Council of Islamic Legal Education should be established with the responsibility of training and admitting Islamic legal aspirants to the Shariah Bar. 7. None-Muslim or Muslim members not learned in Islamic law should no longer sit on Islamic law matters at any court level, trial or appellate, in the federation. 8. Shariah courts and Shariah Court of Appeal with sole jurisdiction in Islamic law matters should urgently be established in Southern Part of the nation.

448

In 2004, during its 2004/2005 Legal Year Ceremony held on Wednesday 28th April, 2004, the Kwara State Shariah of Appeal, had publicly made a call in the direction similar to this suggestion, through the mouthpiece of it‟s the then Grand Kadi, Hon. Justice Mutalib Ahmad Ahmbali. The call was captivatingly and passionately made in the following terms: “The separation of the Area Courts operating Islamic Law from those applying Customary Laws is long over due. It does not allow for efficiency, speedy dispositions of the cases before them as it is confusing to the litigants who want Islamic Law but another system is imposed on them by the Area Courts When they are divided into Area Courts (Islamic Law) and Area Courts (Customary Law) the parties make their choice according to their faith, belief as provided by the Law of the land. Each court is then manned by experts in the relevant field. Specialization is then encouraged as efficiency is enhanced”. See (2004) KSCAAR, p. xi

124

9. Muslim Lawyers Association of Nigeria (MULAN) should be organising seminars, workshops and public lectures on Islamic law and administration of Islamic Justice in Nigeria. 10. When judge of Islamic law court judge is appointed, he should be made to swear to uphold and promote justice according to the dictates of Allah and not necessarily to uphold the Constitution of Nigeria or the Muslim judge should make this a self imposing duty on himself, as it would be expected of any sincere and conscious Islamic court judge. 11. Appearance of Lawyers in Shariah courts should be the prerogative of those of them who have received training in Islamic law and who are also Muslims since it only by that they will no longer be a clog in the wheel of Islamic justice administration. 12. Every Muslim judge should always place any common law practice on the scale of the pristine Islamic principle without necessarily forcing Islamic law to adapt it to fit in for the “context of the Nigerian legal system”. A spade should always be called a spade. 13. Observance of the doctrine of stare decisis in Islamic law cases should be monitored by Shariah proponents and be appraised as appropriate. 5.4.0. CONCLUSION

                 

 

Q12: 108: Say thou: "This is My way: I do invite unto Allah,- On evidence clear as the seeing with one 's eyes,- I and Whoever follows Me. Glory be to Allah and never will I join gods with Allah.".

125

BIBLIOGRAPHY ARTICLES IN JOURNALS  Abdulraheem, N. M. (Mrs), “Judicial Precedent: Concept and Operation in Nigerian Legal System”, Ilorin Bar Journal, Vol. 1. No. 1. April, 2002, pp. 141 – 155  Abikan, Abdulqadir Ibrahim, “The Application of Islamic Law in Civil Causes in Nigerian Courts”, Journal of International and Comparative Law, June 2002, pp. 88 -115  Ahamed Bello Mahmud, “Sharia and Democracy: The Zamfara State Experience”, Al-Maslah – Journal of Law and Religion, Vol. 2, 1999 – 2003 (NAMLAS, University of Ilorin), pp. 43 - 52     Ajetunmobi, Musa Ali; “Development and Value of Islamic Law of Bequest”, Hamdard Islamicus, Vol.XXIV, No.1, pp.29-35; Ajetunmobi, Musa Ali; “Kalalah in Islamic Law of Succession”, Islamic Culture, VOL. LXV, No.4, October, 1991, pp.47-79; Ajetunmobi, Musa Ali; “The Intricacy of Al-Awl (Pro Rata Reduction) in Islamic Law of Succession”, Islamic Culture, VOL. LXI, No.2, April, 1987, pp.51-69; Ajetunmobi, Musa Ali; “Towards an Orderly Approach to Neo-Ijtihad in Islamic Law”, JARS, Volume 6, December, 1989 (Department of Religions, University of Ilorin, Ilorin, Nigeria) pp.25-34.   Akanbi M. M., “The Muslim Judge in A Multi-Religious Society”, Al-Maslaha, Vol. 2, pp. 78 - 84 Akanbi, M. M., “Mainstreaming Shariah Arbitration into the Nigerian Legal System”, Al-Maslaha – Journal of Law and Religion, Vol. 4, 2007 - 2008 (NAMLAS, University of Ilorin, Ilorin - Nigeria) pp. 15 – 34;

126

 

Awoyale, Oladoyin, “The Importance of Indigenous Laws in Nigeria”, The Jurist, V0l. 8, 2003 (Law Society, Faculty of Law, University of Ilorin, Nigeria), Ayinla, Lukman A., “The Nigerian Living Law and Its Relegation, The Sociological and Historical Perspectives”, University of Ilorin Law Journal (2006) UILJ Vol. 1, pp.191-213

 

Belgore, Ahmad O., “History of Shari‟a in Nigeria”, Al-Maslaha – Journal of Law and Religion, Vol. 2, 1999 – 2003 (NAMLAS, University of Ilorin) Eleja, K. K., “Law and Education in Nigeria” in IQRA ANNUALLY – The Magazine of IQRA College, Ilorin, Nigeria, Vol 1 Issue 1 (IQRA College, Ilorin, nd) p. 59



Eletu, Ibraheem, K. K., “The Role of Judicial Precedents Revisited”, The Learned, (Law Students‟ Association, CAILS, Kwara State, Nigeria, 5th Edition, June 2009) p.19

  

Emon, Anver M., “Huquq Allah and Huquq Al-„Ibad: A Legal Heuristic for A Natural Rights Regime”, Islamic Law and Society 13, 3, pp. 325 – 390 Emon, Anver M., “Natural Law and Natural Rights in Islamic Law”, Journal of Law and Religion, Vol. XX, pp. 351 – 395 Hill, D. H., “Comparative Aspects of the Maliki Law and Common Law of Agency”, Journal of the Centre of Islamic Legal Studies, Ahmadu Bello University, Zaria, Vol. 1, No. 2, p.53



Ishola, Abdullahi Saliu, “Muslim Citizens and the Practice of Will-Making in Nigeria: The Interface Between Shari‟ah and English Law”, The Learned, 5th Edition, June 2009 (LASA, Kwara State College of Arabic and Islamic Legal Studies, Ilorin) pp. 73 - 99



Ishola, Abdullahi Saliu “Rules and Procedure for Challenging Jurisdiction (Wilaya) of Courts under the Sharia: A Model for Orthodox Courts in Nigeria”,

127

Al-Maslaha – Journal of Law and Religion, Vol. 5, 2009/2010 (NAMLAS, University of Ilorin) pp. 131-170.  Ishola, Abdullahi Saliu, “The Challenges Facing the Foreign Trained Nigerian Muslim Youths”, Liwaau „Ludah, Fourth Edition, 2006 – 2007 (Committee of Islamic Civilization, Marcaz General Old Studnets‟ Union of Nigeria, Cairo, Egypt) p. 26  Ishola, Abdullahi Saliu, “Shariah in the Fifth Republic of Nigeria: A Case for Further Advancement”, Al-Bayan – The Explanation, No. 6, Jumadal Thani, 1428 AH – July, 2007 CE (Muslim Students‟ Society of Nigeria, University of Ilorin Branch); pp. 49 - 51  Kamal, Abdulfatai Ali Waliyu, “Islam: The Religion of Justice”, Liwauu „Ludah, Fourth Edition, 2006 – 2007 (Committee of Islamic Civilization, Marcaz General Old Students‟ Union of Nigeria, Cairo, Egypt) pp. 37 – 39;     Kosemani, “Shari‟ah: The Bedrock of Alternative Dispute Resolution”, The Jurist, Vol. 14, 2009 (Law Students Society, Ilorin) pp. 277 – 294; Lord Wright, “Precedents”, (1944) 8 C. L. J. 118, 119 Mathias Rohe, “Islamic Law in German Courts”, Erschienen in Islamic Law in German Courts, Hawwa 1 (2003), S. 46-59 Mohammad Hashim Kamali, “Appellate Review and Judicial Independence in Islamic Law”, Islamic Studies Quarterly Journal, Autumn 1990 (Islamic Research Institute, International Islamic University, Islamabad, Pakistan) pp. 215 - 250  Ndayako, Mohammed, “The Concept of Al-Shura and Western Democracy”, AlMaslaha – Journal of Law and Religion, Vol. 5, 2009/2010 (NAMLAS, University of Ilorin) Nwauche, E. S., “A Bill of Rights as the Basis of A Common Law in a Pluralist Nigeria”, African Journal of Legal Theory, Volume 1, 2007, pp. 45-69

128



Oba, A. A., “Re-Conceptualising Islamic Legal Education in Nigeria: The Case for Professionalisation”, Al-Maslaha – Journal of Law and Religion, Vol. 2, 1999 – 2003 (NAMLAS, University of Ilorin), p. 99



Oba, A. A. “Kadis (Judges) of the Sharia Court of Appeal and the Problems of Identity, Relevance, and Marginalisation within the Nigerian Legal System” (2004) 2 (2) JCLLE, p.54.



Oba, A. A., “Statutes of general application – effect in Nigeria of subsequent repeal in England: Lawal v Ejidike & anor”, Abia State University Law Journal, Volume 6, No.1, 1999, p.75



Oba A. A., “Sharia in Yoruba Land”, The Emirate Spring, Vol. 1, No. 2, February, 2001 (Ilorin Emirate Students Union, University of Ilorin Chapter), pp. 30 – 31.



Oba, A. A., “The Criminal Jurisdiction of the Sharia Court of Appeal and the False Analogy of the Customary Court of Appeal”, The Jurist, V0l. 8, 2003 (Law Society, Faculty of Law, University of Ilorin, Nigeria) pp.151-162

 

Oba, Abdulmumini A., “Lawyers, Legal Education and the Shari‟ah Courts in Nigeria” Journal of Legal Pluralism, 2004-nr-4, pp. 135 – 137 Oba, Abdulmumini A., “The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction”, The American Journal of Comparative Law, Volume LII, Fall 2004, Number 4, p.862



Oba, Abdulmumini A. “Islamic Law as Customary Law: The Changing Perspective in Nigeria”, International and Comparative Law Quarterly, Vol. 51, October 2002, pp. 817-850



Olagunju, Ridwan Ibrahim, “Administration of Islamic Law in Nigeria: Some Constitutional Constraints and the Bailouts”, Al-Maslaha – Journal of Law and Religion, Vol. 5, 2009/2010, pp. 51 – 71

129



Olohuntoyin, Bello Ibraheem, “The Concept of Law and Justice in Islamic Jurisprudence”, The Learned (Ilorin: Law Students‟ Association, Kwara CAILS, 6th Edition, July, 2010) p. 170



Oredola, Justice Massoud Abdulrahman, “The 1999 Constitution and the New Initiative on the Shariah: Between the Ideal and the Possible”, Al-Maslaha – Journal of Law and Religion, Vol. 2, 1999 – 2003, pp. 53 – 57



Oseni, Umar A., “Appointing A Non-Muslim As an Arbitrator in Tahkim Proceedings: Polemics, Perceptions and Possibilities”, The Learned, 5th Edition, June, 2009 (LASA, Kwara State CAILS) pp. 31 - 58



Owoade, A. A., “Rule of Law and Justice System in Nigeria: Common Law and Islamic Jurisprudential Approach”, Al-Maslaha – Journal of Law and Religion, Vol. 5, 2009/2010 (NAMLAS, University of Ilorin) p. 232

 

Safi, Louay M., “Islamic Law and Society”, The American Journal of Islamic Social Sciences, Vol. 7, No. 2, 1990, p. 177, Sanni, Ishaq Kunle, “Independent Sharia Court Enriching the Nigerian Legal System: Oyo State in Spectrum”, Al-Maslaha – Journal of Law and Religion, Vol. 4, 2007 – 2008, pp. 35 – 50

 

Sheu A. T., “”Islamic Jurisprudence in Perspective”, Ilorin Bar Journal, Vol. 1, No. 1, April, 2002, pp. 90 – 99; Siregar, Hasnil Basri, “Islamic Law in a National Legal System: A Study on the Implementation of Shari‟ah in Aceh, Indonesia”, Asian Journal of Comparative Law, Volume 3, Issue 1, 2008, Article 4

 

Yadudu, H. A., “Religion, Politics and National Cohesion: Getting the Mix Right”, Al-Maslaha, Vol. 2, n.41, pp. 31 – 42 Yadudu, Y. H. “Colonization and the Transformation of Islamic Law in Nigeria”, Journal of Legal Pluralism, 1992-nr-35, p131

130

BOOKS    Aal Fawzaiy, Salih Bin Aal Fawzaiy Bin „Abdullahi, Al-Mukhlas Al-Fiqhiy (Mansurah: Maktabah Imman, Volume One, 2007) Abdullah, U. Y., Sharia in Africa (Ijebu Ode: Shebiotimo Publications, 1998) Abi Ya‟la, Muhammad Bin Husain Al-Farau Al-Hanbaliy, Al-Uhkam AsSultoniyyah (Beirut, Lebanon: Darul Kutubi Al-„Ilmiyyah, 2nd Edition, 2006) pp. 285 - 291       Abubakar, Adamu Islamic Law – The Practice and Procedure in Nigerian Courts (Adamu Abubakar & Co., Kano, 2008) Adah, C. Eche, The Nigerian Law of Evidence (Lagos: Malthouse Press Ltd), pp. 69 – 86; Al-Balagh Foundation, Lessons in Islamic Ideology 2 - Divine Justice (Tehran, Islamic Republic of Iran: Al-Balagh Foundation, First Edition, 1994) Al-Harary, Abdullahi, As-Siratul Musteqeem (Beirut, Lebanon: Isdarul Jami‟yyah Al-Masharii‟i Al-Khayriyyah Al-Islamiyyah, Eighth Edition, 1990) Al-Jazairy, Abubakar, Minhaj-l-Muslim (Beirut, Lebanon: Darul Fikr, 1999) Al-Khajnadee, Sheikh Muhammad Sultan Al-Ma‟soomi, Should A Muslim Follow A Particular Madhhab? (Riyadh: Maktaba Darussallam, Second Edition, December 2004)  Almawaridy, Abi Al-Hassan Aliy Bin Muhammad, Bin Habeeb Al-Basary AlBagdaady, Al-Ahkam As-Sultaniyyah Wal-Willayat Dinniyah (Cairo, Egypt: AlMaktabah Taofikiyyah)   Aluko, Oluwole, The Civil Procedure of the Superior Courts in Nigeria (Ibadan, Nigeria: Spectrum Law Publishing, 1997) Al-„Uthaymin, Muhammad Bin Salih, Sharih-l-Usul Min „Ilm-l-Usul (AlMansoura, Egypt: Dar Al-Ghad Al-Gadeed, First Edition, 2008)

131

     

Ambali, M. A., The Practice of the Muslim Family Law in Nigeria, (Zaria: Tamaza Publishing Company Limited, Second Edition, 2003) Asien, J. O. Introduction to the Nigerian Legal System (Sam Bookman Publishers, Ibdan: 1997) As-Sanamy, „Umar Bin Muhammad Bin „Awadu, Nisob-l-Ihtisab (Riyadh: Darul Waton, First Edition, 1993) As-Seyid, Majidy Fatiy, Fiqh Rasuul (Maktabah Taofiqah) p. 402 Badaiki, A. D., Development of Customary Law (Lagos: TIKEN PUBLISHERS, Second Edition, 2001) Bin „Abdul-„Azeez, Imam „Umar, Sharh Adaab-l-Qaadi Li Imami Abi Bakr Ahmad Bin. „Umar Al-Khadof (Beirut, Lebanon: Darul Kutubi Al-„Ilmiyyah, First Edition, 1994)

       

Bin Hazm al-Andalusy, Abu Muhammad „Aliy Bin Ahmad Bin Sa‟eed, AlMuhala Bil Athar, (Darul Fikr, Vol. 8) Black‟s Law Dictionary, 5th Edition Chaleby, Kutaiba S., Forensic Psychiatry in Islamic Jurisprudence (Selanghor, Malaysia: The Other Press, 2004 Edition) Course Handbook on Criminal Procedure, Bar Part II Course, 2005/2006 Edition (Abuja, Nigeria: Council of Legal Education, Nigerian Law School) Dada, Jacob Abiodun, The Law of Evidence in Nigeria (Calabar: University of Calabar Press, 2004), pp. 108 – 132; David, Rene and Brierley, John E. C. Major Legal Systems in the World Today, Third Edition (Stevens and Sons, London: 1985) Dawah and Irshad Committee, Three Important Addresses of Prophet Muhammad (Islamic Research Institute, Islamad, 1982) Doi, Abd ar-Rahman, (revised and expanded by Clarke, Abdassamad), Shari‟ah – Islamic Law (London: Ta-Ha Publishers, Ltd, 2008)

132

       

Elegido, J. M., Jurisprudence (Ibadan: Spectrum Law Publishing, 1994 [reprint, 2002]) Elias, T. Olawale, The Nigerian Legal System (London: Routledge and Kegan Paul Ltd, 1963) Fathi „Uthman, Al-Fikr al-Qanuni al-Islami: Bay Usul al-Shari‟a wa Turath alFiqh (Cairo:) Gbadamosi T. G. O., The Growth of Islam Among the Yoruba 1841 – 1908 (London: Longman, 1978) Gilbert Law Summaries Pocket Size Dictionary (USA: Harcourt Brace Legal and Professional Publications, Inc., 1997) Gray, John Chipman, et al (Eds) The Nature and Sources of the Law (England: Dartmouth Publishing Company Ltd., 1997) Hornby, A. S. Oxford Advanced Learner‟s Dictionary of Current English, Fifth Edition (Oxford University Press, 1995) Ibrahim Shaikh Muhammad, Tahkim Al-Qawanin – Ruling By the UnIslamic Laws (no publisher name stated, no date) Isma‟il, Muhammad Bikr, Al-Fiqh-lWaadih Mina-l-Kitab Was-Sunnah „Ala-l-Madhaib Arba‟ (Cairo: Darul Manar, Vol. Two, 1998)

   

Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence, Revised Edition (UK: Islamic Texts Society, 1991) pp. 5; Kamali, Mohammad Hashim, Freedom of Expression in Islam (Kuala Lumpur: Ilmiah Publishers Sdn. Bhd., 1998) Khallaf, Abdul-Wahab, „Ilm Usul al-Fiqh (Cairo: Darul Hadith, 2002) Khasas, Imam (translated into English by Mughal, Munir Ahmad), Adab Al-Qadi (Islamic Legal and judicial System), (New Delhi: Adam Publishers and Distributors, 2005 Edition)

133

             

Karibi-Whyte, A. G., History and Sources of Nigerian Criminal Law (Ibadan: Spectrum Law Publishing, 1993) Ladan, M. T. Introduction to Jurisprudence – Classical and Islamic (Malthouse Publications: 2006) Mahmud, Abdulmalik Bappa, A Brief History of Shari‟ah in the Defunct Northern Nigeria (Nigeria: Jos University Press, 1988) Mo‟men, Akram, Ibn Sina Pocket English Dictionary (Maktabah Sa‟iy, 2006) Muhammad, Abdul Waseef, Misbah Saalik (Beirut, Lebanon: Darul Fikr, n.d.) Muhammad, Muhammad Abdul „Aaty, At-Takleefu Shari‟y Wama Yata‟alaq Bihi Min Ahkamin (Cairo: Darul Hadith, 2008) Nwadialo, Fidelis, Modern Nigerian Law of Evidence (Benin City: Ethiope Publishing Corporation) pp. 50 – 64. Nyazee, Imran Ahsan Khan, Theories of Islamic Law – The Methodology of Ijtihad (Pakistan: IIT and IRT, 1994) Nyazee, Imran Ahsan Khan, Islamic Jurisprudence (Usul al-Fiqh) (New Delhi: Adam Publishers and Distributors, 2006) Obilade, Akintunde Olusegun, The Nigerian Legal System (Spetru Books Limited, Ibadan: 1990) Obi-Okoye, A., Essays on Civil Proceedings, Volume 4 (Enugu, Nigeria: Fourth Dimension Publishing Co. Ltd., 1980) Ojo, Abiola, Constitutional Law and Military Rule in Nigeria (Ibadan: Evans, 1987) Oluyede, P. A and Aihe, D. O., Cases and Materials on Constitutional Law in Nigeria, Second Edition (Ibadan: University Press Plc, 2003) Onokah, Margaret C., Family Law (Spectrum Books Limited, Ibadan, 2003 [2007 reprint])

134

     

Park, A. E. W. The Sources of Nigerian Law (African University Press, Lagos; Sweet and Maxwell, London: 1963) Philips, Abu Ameenah Bilal, The Evolution of Fiqh (Islamic Law and the Madhhabs), (International Islamic Publishing House, 1990) Pylee, M. V. Constitutions of the World, 3rd Edition., Vol. 2 (Universal Law Publishing Co. Pvt. Ltd, New Delhi: 2006) Qazi, M. A., A Concise Dictionary of Islamic Terms (New Delhi, India: Kitab Bhavan, 2000) Quadri Y. A., Shariah: the Islamic Way of Life (Shebiotimo Publications, 2000); Rehman, Hamoodur “Introduction” in Ullah, Mahomed, The Administration of Justice in Islam – An Introduction to the Muslim Conception of the State (New Delhi: Kitab Bhavan, 3rd Ediction, 1990)

        

Rutherford, Leslie and Bone, Sheila (Edts), Osborn‟s Concise Law Dictionary, Eight Edition (Sweet and Maxwell, London: 1993) Ruxton F. H., Maliki Law (El-Nahar Press, Cairo: 2004) Shakeir, Reima Y. (Ed), 500 Questions and Answers on Islamic Jurisprudence (Dar Al-Manarah for Translation, Publishing and Distribution, 2006) Shari‟ah Dialogue (Committee of Concerned Citizens).; Tobi, Niki, Sources of Nigerian Law (MIJ Professional Publishers Limited, Lagos, 1996) Umar, Aisha and Imhanobe, Sylvester, Quick Reference Material on Nigerian Law and Practice (Abuja: Temple Legal Consult, 2004) pp. 117 - 120 Umoh, P. U, Precedent in Nigerian Courts (Fourth Dimension Publishers, 1984) Williams, Glanville Learning the Law, Eleventh Edition (Sweet and Maxwell/Stevens and Sons, London: 1982) Zaidan, Abdulkareem, Nizamul Qadai Fi Shari‟at-l-Islamiyyah (Bagdad: First Edition, 1984)

135



Zubair, Abdul-Qadir, Islamic Constitutional and Administrative Law (in press)

CHAPTERS IN BOOKS  Abikan, Abdul-Qadir Ibrahim, “Constitutional Impediments to the Total Enthronement of Shari‟ah in Nigeria”, in Oseni, Zakariyau I. (Ed), A Digest on Islamic Law and Jurisprudence in Nigeria – Essays in Honour of Hon. Justice Umaru Faruk Abdullahi (PCA), (Auchi, Edo State – Nigeria: Darun-Nur, 2003) pp. 164 – 188;  Ekundayo, A. A. M., “The Common Law of England – A Stranger or An Indigene in Nigeria”, in Ajomo M. Ayo. (Ed), Fundamentals of Nigerian Law (Lagos: Nigerian Institute of Advanced Legal Studies, 1989)  El-Miskin, “Education as Imperialism” in Ibrahim Sulaiman and Siraj Abdulkarim (eds), On the Political Future of Nigeria (Zaria: Hudahuda, 1985) p. 76;  Mohammad Hashim Kamali, “Appellate Review and Judicial Independence in Islamic Law” in Mallat, Chibli (Ed), Islam and Public Law (Graham and Trotman: 1993) pp. 49-90.  Okunola, Muri, “The Relevance of Sharia to Nigeria” in Nura Alkali, et al (eds), Islam in Africa – Proceedings of the Islam in Africa Conference (Spectrum, 1993)  Olaosebikan F. and Olowu, D. “Sources of Law” in Sanni, A. O. (Ed.), Introduction to Nigerian Legal Method (Faculty of Law, O. A. U. Ile-Ife: nd) p128  Opeloye, Muhib O., “The Realisation of the Shari‟ah in South-West Nigeria: A Mirage or Reality?” in Oseni, Zakariyau I. (Ed), A Digest on Islamic Law and Jurisprudence in Nigeria – Essays in Honour of Hon. Justice Umaru Faruk Abdullahi (PCA), (Auchi, Edo State – Nigeria: Darun-Nur, 2003) pp. 28 – 45

136

 

Sanni A. O., “Aspects of Law” in Sanni, (Ed) n.1 21, p.29 Sulaiman, Ibrahim K. R., “The Shari‟ah and the 1979 Constitution” in Rashid, Syed Khalid, (ed), Islamic Law in Nigeria – Application and Teaching (Lagos: Islamic Publications Bureau, 1986) pp. 52 – 74



Surty, Muhammad Ibrahim H. I., “Al-Shari‟ah, Arabic and Methodology” in Rashid, Syed Khalid (Ed), Islamic Law in Nigeria (Application and Teaching), (Lagos, Nigeria: Islamic Publications Bureau, 1986), pp. 195 – 202

 

Tabi‟u, Muhammad, “Constraints in the Application of Islamic Law in Nigeria”, in Rashid, n.396, pp. 75 – 85. Timehin, Saheed O., “The Arabic Language and the Understanding and Application of Islamic Law” in Oseni, Zakariyau I. (Ed), A Digest on Islamic Law and Jurisprudence in Nigeria – Essays in Honour of Hon. Justice Umaru Faruk Abdullahi (PCA), (Auchi, Edo State , Nigeria: Darun-Nur, 2003), pp. 21 – 27;



Yadudu, H. A., “Shariah Debate in Nigeria: Dialogue of the Deaf”, in Oseni, Zakariyau I. (Ed), A Digest on Islamic Law and Jurisprudence in Nigeria – Essays in Honour of Hon. Justice Umaru Faruk Abdullahi (PCA), (Auchi, Edo State – Nigeria: Darun-Nur, 2003) pp. 1 – 5



Zubair, A. “Re-Introduction of Shari‟a Courts in Nigeria: Some Perspectives” in Shari‟a Implementation in Nigeria, Issues and Challenges on Women‟s Rights and Access to Justice (Women‟s Aid Collective: 2003) pp228-246



Zubair, Abdul Qadir, “The Importance of Arabic Language in the Study of Shari‟ah” in Rashid, Syed Khalid (Ed), Islamic Law in Nigeria (Application and Teaching), (Lagos, Nigeria: Islamic Publications Bureau, 1986)

137

NEWSPAPER REPORTS  Awogbemila, Olu, et al., “Sharia: Unsteady Growth ”, This Week (Newspaper), October 24, 1988, p. 19 (citing Justice Ibrahim Gwarzo, the then Grand Kadi, Kano State)  Eric Ikhilae, “NIC Bill Inches Towards Passage by House of Reps”, The Nation (Newspaper), Tuesday, August, 17, 2010, p. 44

PAPERS PRESENTED AT CONFERENCES, WORKSHOPS AND SEMINARS  Abdul Lateef, Abdul Hakeem, “The Nigerian Constitution and Protection of Rights to Freedom of Religion: The Muslim Experience” (Paper Presented at the 4th National Conference of Muslim Lawyers Association of Nigeria [MULAN] held at the University of Ibadan on 25th June, 2010)  Al-Mustapha, Sekinat Ibrahim, “An Appraisal of Primary Sources of Islamic Law” (A Seminar Paper presented to the 2009/2010 LL.M Class of Usul al-Fiqh, Department of Islamic law, Faculty of Law, University of Ilorin, February, 2010; on file with the author).   Ambali, Muttalib Ahmad, “The Doctrine of Immunity on the Scale of Sharia Islamic Law” in Law Students Society Public Lecture/Seminar Series 01, Ibrahim, Qasim Abolaji, “Justification of (sic: for) Rational Secondary Sources As a Valid Proof of Islamic Law” (A Seminar Paper presented to the 2009/2010 LL.M Class of Usul al-Fiqh, Department of Islamic law, Faculty of Law, University of Ilorin, February, 2010; on file with the author)  Ishola, Abdullahi Saliu, “A Exploration of the Basis of the Arguments For and Against the Adoption of Qiyas As A Valid Proof of Islamic Law (Shari‟ah)”, (A Seminar Paper presented to the 2009/2010 LL.M Class of Usul al-Fiqh, Department of Islamic law, Faculty of Law, University of Ilorin, March, 2010; on file with the author)

138



Ishola, Abdullahi Saliu, “A Discourse on the Five Major Principles of Islamic Law (Al-Qawa‟id Al-Fiqhiyyah Al-Asliyyah Khams)”, (A Seminar Paper presented to the 2009/2010 LL.M Class of Usul al-Fiqh, Department of Islamic law, Faculty of Law, University of Ilorin, July, 2010; on file with the author)



Kanyip, Benedict Bakwaph, “The National Industrial Court: The Journey So Far” (A paper presented on “the workings and rules of the National Industrial Court” at the session of the Young Lawyers Forum at the 2008 Annual General/Delegates‟ Conference of the Nigerian Bar Association held from 23 rd – 28th August, 2008 at the International Conference Centre, Abuja under the theme, How Federalism Accommodates Diversity and Strengthens the Constitution)



Mukhtar, Sadiq, U., “The Role of Directors/Inspectors in the Administration of Justice in the Shari‟a/Area Courts” (Paper presented on Tuesday, 11 July, 2006, during a 5-day Workshop organised by National Judicial Institute (NJI) for Shari‟a Court Judges and Directors/Inspectors of Sharia Courts held in Zamfara State in 2006)



Oba, Abdulmumini Adebayo, “Harmonisation of Shari‟ah and Common Law in Nigeria: Problems and Prospects” (Paper presented at the International Conference on “Harmonisation of Shari‟ah and Civil Law” organised by the IIU, Malaysia held in Kuala Lumpur on 21 – 21 October, 2003), p1



Okunola, Muri, Sharia And Justice (Paper delivered at the Annual Islamic Welfare Foundation Day Lecture held at the Kwara Hotels, Ilorin on Saturday 27th June, 1998)



Olubor, Joseph Otabor, “Appeals from the Customary Courts to the Customary Courts of Appeal: Rules, Procedure, Practical Challenges and Options for Greater Efficiency” (Paper presented at the 2005 Induction Course for Newly Appointed Judges and Kadis, held at Abuja)

139



Oredola, Massoud AbdulRahman, “The Relevance of Yinusa V. Adesobokan, in a Multi-Religious Society” (Paper presented on 16th November, 2005 at the 40th NBA Kaduna Branch Anniversary Week Lectures Holden at Kaduna from 14 th to 18th November, 2005 – on file with the author)



Uthman, Muhammad Bello, “The Role of the Judge under Islamic Law” (Paper presented at the National Seminar Organised by NAMLAS held at Ambrose Alli University, Ekpoma, Edo State, Thursday 3rd -5th February, 2005) pp. 6 – 8;



Zubair, Abdul-Qadir, Shari‟ah in Our Citadels of Learning – The Sixty-Sixth Inaugural Lecture, University of Ilorin, 2003

INTERNET MATERIALS   al-Oadah, Shaikh Salman b. Fahd, “Discourses on Islamic Law Matters of Public Concern”, available at http://english.islamtoday.net, p. 4 Aminu Bello, “Binding Precdent and Shar‟a/Islamic Law in Nigeria: An Attempt at a Civil-Criminal Distinction” in Islamic Law and Law of the Muslim World Research Paper Series No. 09-67 (New York Law School) available at http://ssrn.com/absract= 1397737.  Emon, Anver M., “Huquq Allah and Huquq Al-„Ibad: A Legal Heuristic for A Natural Rights Regime”, available at

http://www.law.utoronto.ca/documents/emon/HuquqAllah_ILS.pd (accessed on 10 January, 2008)  Farooq. Mohammad Omar, “The Riba-Interest Equivalence: Is there an Ijma (consensus)?” and “The Doctrine of Ijma: Is There a Consensus?” available at: http://www.globalwebpost.com/farooqm/writings/islamic/r-i-consensus.html  Mikail, Available at Mikail

http://www.agc.gov.my/agc/onlinesys/KnowledgeSharing/pdf/Syariah/Jan2010/4t h%20International%20Conference/24.%20FEASIBILITY%20OF%20THE%20D

140

OCTRINE%20OF%20JUDICIAL%20PRECEDENT%20IN%20SHARI 'AH%20 COURTS_hasan.pdf (accessed on 5/07/2010)

THESES  Ajetunmobi, Ali Musa, Shari‟ah Legal Practice in Nigeria: 1956 - 1983 (Unpublished PhD thesis in the Department of Religions, Faculty of Arts, University of Ilorin, Ilorin, Nigeria, June 1988)  Ishola, Abdullahi Saliu, Role of a Judge in the Administration of Justice: Shari‟ah and Common Law Perspectives (Long Essay Submitted to the Islamic Law Department, Faculty of Law, University of Ilorin in Partial Fulfilment for the Award of Bachelor of Laws, LL.B (Hons), [Common and Islamic Law] Degree of the University of Ilorin, October, 2005)

Bibliography: Oba, A. A., “Re-Conceptualising Islamic Legal Education in Nigeria: The Case for Professionalisation”, Al-Maslaha – Journal of Law and Religion, Vol. 2, 1999 – 2003 (NAMLAS, University of Ilorin), p. 99  Oba, A. A. “Kadis (Judges) of the Sharia Court of Appeal and the Problems of Identity, Relevance, and Marginalisation within the Nigerian Legal System” (2004) 2 (2) JCLLE, p.54.   Oba, Abdulmumini A., “Lawyers, Legal Education and the Shari‟ah Courts in Nigeria” Journal of Legal Pluralism, 2004-nr-4, pp Olohuntoyin, Bello Ibraheem, “The Concept of Law and Justice in Islamic Jurisprudence”, The Learned (Ilorin: Law Students‟ Association, Kwara CAILS, 6th Edition, July, 2010) p. 170  Oredola, Justice Massoud Abdulrahman, “The 1999 Constitution and the New Initiative on the Shariah: Between the Ideal and the Possible”, Al-Maslaha – Journal of Law and Religion, Vol. 2, 1999 – 2003, pp. 53 – 57  Oseni, Umar A., “Appointing A Non-Muslim As an Arbitrator in Tahkim Proceedings: Polemics, Perceptions and Possibilities”, The Learned, 5th Edition, June, 2009 (LASA, Kwara State CAILS) pp. 31 - 58  Owoade, A. A., “Rule of Law and Justice System in Nigeria: Common Law and Islamic Jurisprudential Approach”, Al-Maslaha – Journal of Law and Religion, Vol. 5, 2009/2010 (NAMLAS, University of Ilorin) p. 232   Yadudu, H. A., “Religion, Politics and National Cohesion: Getting the Mix Right”, Al-Maslaha, Vol. 2, n.41, pp. 31 – 42 Yadudu, Y. H. “Colonization and the Transformation of Islamic Law in Nigeria”, Journal of Legal Pluralism, 1992-nr-35, p131