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Islamic Law as Customary Law: The Changing Perspective in Nigeria

Published online by Cambridge University Press:  17 January 2008

AA Oba
AA Oba
Affiliation:
Senior Lecturer and Head, Department of Jurisprudence and International Law, University of Ilorin, Ilorin, Nigeria.
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Extract

Pluralism is a main feature of Nigeria as a country. There is ethnic pluralism.1 The pre-colonial Nigeria comprised of over 250 nation states embracing over 500 ethnic and linguistic groups.2 These ethnic groups spread across the three main geographical units in the country, namely, the north, the west, and the east. The north was dominated by the Hausa-Fulani and the Kanuri peoples, the west by the Yoruba speaking tribes, and the east by the Igbos.

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Articles
Information
International & Comparative Law Quarterly , Volume 51 , Issue 4 , October 2002 , pp. 817 - 850
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 See a study of the political aspects of ethnic pluralism in Nigeria in Okwudibu, Nnoli, Ethnic Politics in Nigeria (Enugu: Fourth Dimension Publishers, 1979)Google Scholar and its legal aspects in Oba, AA, ‘Constitutional Responses to Tribalism and Ethnic Pluralism in Nigeria’, University of Jos Law Journal 1998, vol. 6, 27–42.Google Scholar

2 Oluyede, Peter, Constitutional Law in Nigeria (Lagos: Evans, 1992), 21.Google Scholar

3 See ss 2 (2) and 3 (1), Constitution of the Federal Republic of Nigeria, 1999, enacted by the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999 (No 24 of 1999) hereinafter referred to as ‘1999 Constitution’.

4 See s 4, and the Second Schedule, 1999 Constitution

5 The States created out of the former regions now total thirty-six, that is, from the Northern Region Adamawa, Bauchi, Benue, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Nassarawa, Niger, Plateau, Sokoto, Taraba, Yobe, and Zamfara, those created out of the former western region are Delta, Edo, Ekiti, Lagos, Ogun, Ondo, Osun, and Oyo while Abia, Akwa-Ibom, Anambra, Bayelsa, Cross-River, Ebonyi, Enugu, Imo, and Rivers were created out of the old Eastern Region. These are sometimes referred to herein as the ‘northern States’, ‘western States’, and ‘eastern States’ respectively.

6 Paden, JN, Ahmadu Bello Sarduana of Sokoto: Values and Leadership in Nigeria (Zaria: Hudahuda Publishing, 1988), 117.Google Scholar

7 There are various introductory books on Islamic law, its nature and sources. However, their perspectives differ. Books written by orientalists are apt to present a distorted, prejudiced, and biased view of Islam and its laws while books written by Muslims present a sympathetic view. Books written by orientalists include Joseph, Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1984)Google Scholar, Joseph, Schacht, Origins of Mohammedan Law (Oxford: Clarendon Press, 1959)Google Scholar, Fyzee, AAA, Outlines of Muhammedan Law (Delhi: Oxford University Press, 1974)Google Scholar and Coulson, NJ, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964).Google Scholar Orientalists translations of standard Islamic law books can also be very defective and misleading, for example Ruxton, , Maliki Law (London: Lucas and Co Ltd, 1978)Google Scholar, discussing marriage says at 89: ‘If the Believer is afraid of falling into the way of illicit pleasure, let him take a concubine.’ This is not consistent with Islamic law or with the text translated. The work is in fact a ‘Translation’ of ‘a Summary of the French Translation of the Mukhtasar of Sidi Khalil’. The problems inherent in using orientalist books as teaching and reference materials are examined in Abdullah, Ustaz Yunus, ‘Observations on Teaching Materials’, in Rashid, Syed Khalid (ed), Islamic Law in Nigeria (Application and Teaching) (Lagos: Islamic Publications Bureau, 1986), 123–8Google Scholar and A Rahman Doi, ‘Islamic Law and Its Teaching through “Hostile” Textbooks’, in ibid, 129 and 141. Books written from the Islamic law perspective include Doi, Abdur Rahman I, Shari'ah: The Islamic Law (Ibadan: Iksan Islamic Publishers, 1990)Google Scholar (the book is also published by Ta-Ha Publishers in London) and Ibrahim, Ado-Kurawa, Shari'ah and the Press in Nigeria: Islam Versus Christian Western Civilization (Kano: Kurawa Holdings, 2000).Google Scholar

8 A comparative study of these systems from a Western perspective is in Rene, David and Brierly, John EC, Major Legal Systems in the World Today (London: Stevens and Sons, 1985)Google Scholar and from an Islamic perspective in Muslehuddin, M, Philosophy of Islamic Law and the Orientalists (New Delhi: Taj Company, 1986).Google Scholar Some Western studies are at times so shallow that Islamic law is completely ignored in the study of comparative legal systems, for example see: Peter, Cruz, Comparative Law in a Changing World (London: Cavendish Publishing, 1999)Google Scholar

9 Estimates of the population of Muslims in the world varies: David, and Brierly, , op cit, 466 say ‘over 500 million’. Irving, citing the World Muslim Gazetter (Karachi: Umma Publication, 1975)Google Scholar and Muslims in Europe complied by the Islamic Council of Europe puts the Muslim population in 1975 as 907,197,000 distributed as follows: Muslims in independent Muslim countries 599, 589,000, Muslims in countries under non-Muslim control 77, 948,000, Muslims in non-Muslim countries 229,660.000: Irving, TB (Ta'lim Ali), Islam Resurgent: The Islamic World Today (Lagos: Islamic Publication Bureau,1979), at 300.Google Scholar

10 Abdur Rahman I Doi, Shari'ah: The Islamic Law, op cit, 2 and Ado-Kurawa, op cit, 22, ‘Shari'ah’ has an important symbolic meaning to desert peoples where water is a matter of life and death. It symbolises access to water on a daily basis.

11 Joseph Schacht, op cit, 59.

12 See the Arabic books, Idris, Awd Ahmad, Al-Wajizfil Usul al-Fiqh (Beirut: Dar wa Maktab Al-Hilaal, 1992), 88–90Google Scholar and Khallaf, Abd Wahab, Ilm Usul al-Fiqh (Kuwait: Dar al-Qalam, 1996), 20–2Google Scholar and the English books, Abdur Rahman I Doi, Shari'ah: The Islamic Law, op cit, 21–49 and Ado-Kurawa. op cit, 22–49 and Wali, AB, ‘An Introduction to Islamic Legal Theory’, in Abdul-Rahmon, (ed), Perspectives in Islamic Law and Jurisprudence: Essays in Honour of Justice (Dr) Muritala Aremu Okunola (Ibadan: National Association of Muslim Law Students (NAMLASS), 2001), 86–93.Google Scholar

13 The Quran is in Arabic language. Several translations are available. The Yusuf Ali's translation, that is, Ali, A Yusuf, The Holy Quran: Text, Translation and Commentary (London: The Islamic Foundation, 1975)Google Scholar, is used throughout this paper.

14 The hadith or the sunna consists of sunna quoliyyah (spoken words), sunna filiyyah (actions) and sunna taqriryah (acts done in presence of the Prophet without his disapproving of them) the juristic basis of this as law is the Quran, see: Khallaf, op cit, 16–17 and Ado-Kurawa, op cit, 33.

15 Sallahu alaihi was salaam (Peace and Blessing of Allah be upon him): this is the invocation made by Muslims whenever the name of the Prophet's name is mentioned. It is obligatory for every Muslim to do this at least once in his lifetime: See Quran, Surat Azhab 33: 56: O ye that believe! Send ye blessings on him, and salute him with all respect'. Muslims says alaihi salaam (on him peace) whenever other prophets (Musa (Moses), Isa (Jesus), are mentioned.

16 See Quran, Surat Nisaa, 4: 80: ‘He who obeys the Apostle, obeys God.’

17 Quran, Surat Azhab 33: 21: ‘Ye have indeed in the Apostle of God, a beautiful pattern (of conduct) for any one whose hope is in God and the Final Day and who engages much in the praise of God.’

18 Bello, Iysa Ade, ‘The Development of Ijma in Islamic Jurisprudence’, in M Oloyede Abdul-Rahmon (ed), op cit, 162.Google Scholar

19 Iysa Ade Bello, op cit, 162 and n 4 citing Hasan, A, ‘The Classical definition of Ijma’: The Nature of Consensus', Islamic Studies, vol 14 (1975), 261–70.Google Scholar

20 Ado-Kurawa, op cit, 47

21 Doi, Abdur Rahman I, Shari'ah: The Islamic Law, op cit, 83–4.Google Scholar

22 Said Ramadan, op cit, 33.

23 Abdur Rahman I Doi, Shari'ah: The Islamic Law, op cit, 81–2.

24 On the secondary sources generally, see: Khallaf, op cit, 89–95, Awd Ahmad Idris, op cit, 62–93, M Muslehuddin, op cit, 127–79, Ahmed Beita Yusuf, op cit, 23–5, Abdur Rahman I Doi, Shari'ah: The Islamic Law, op cit, 64–84 and Ado–Kurawa. op cit, 22–54.

25 Joseph Schacht, op cit, 3.

26 Quoted in Abdur Rahman I Doi, Shari'ah: The Islamic Law, op cit, 85–6.

27 The schools were named after their founders Imam Abu Hanifa (b 80H), Imam Malik bin Anas (b 93), Imam Muhammad Idris al-Shafi'i (b 150H) and Imam Muhammad bin Hanbali (b 164) respectively, see their biographies in Doi, Abdur Rahman I, Shariah: The Islamic Law, op cit, 85–112Google Scholar and Ruxton, op cit, 7–8.

28 On the development of the schools of Fiqh, see Ahmed Beita Yusuf, op cit, 25–8 and Ado-Kurawa, op cit, 49 et seq.

29 Ado-Kurawa, op cit, 59.

30 Ruxton aptly pointed out in the preface to his book that: ‘In a law book it is absolutely necessary to use legal terms, but a warning must here be given that in scarcely any case can the terms as employed be given an exact English meaning … The reader is further asked to lay aside all preconceived ideas derived from our own law, or based on our notions of what is just or logical. In Mohammadan Law, terminology, principles, procedure, deductions, all differ radically and absolutely from our own’, Ruxton, op cit, vii.

31 See Dennis, Lloyd, The Idea of Law (Harmondsworth: Penguin Books, 1981), 78–81.Google Scholar

32 According to Lloyd, this natural law was the ‘combination of Christian theology, working on a substratum of Greek philosophy and Roman law’: ibid, 78 and see also Ibrahim Suleiman, ‘The Shariah and the 1979 Constitution’, Syed Khalid Rashid (ed), op cit, 64

33 See: Khallaf, op cit, 96–116, Abdur Rahman I Doi, Shari'ah: The Islamic Law, op cit, 50–1 and Zubair, A, The Rules of Law in the Shariah (Lagos: IIC Publications, 1994), 48–84.Google Scholar

34 Schacht, op cit, 1 and SHA Malik, ‘Shariah: A Legal System and a Way of Life’, in Abdul-Rahmon (ed.), op cit, 25–41.

35 Secularists have always found this difficult to understand, see an articulation of the secularist approach in Prof.essor Dhokalia, RP, ‘The Human Right to Religious Freedom: The Problems of Definition and Effective Enjoyment’, Calabar Law Journal (1986), vol. 1, no 1, 90.Google Scholar

36 ‘if any fail to judge by (the light of) what God hath revealed, they are (no better than) unbelievers … wrongdoers [and] … those who rebel … To each [Jews, Christians and Muslims] among you have we prescribed a Law [Shariatan] and an open way [minhaj]…’: Surat Maidah, 4: 47–51; and ‘Then we put thee on the right Way [Shariatan] of religion: so follow thou that (way) and follow not the desires of those who know not’, Surat Jathiya, 45: 19

37 The Quran says: ‘O ye who believe! Enter into Islam wholeheartedly [ie, completely]’ Surat Baqara 2: 208.

38 There is no obedience to human beings ordering disobedience to Allah: ‘nor obey any whose heart We have permitted to neglect the remembrance of Us, one who follows his own desires, whose case has gone beyond all bounds’: Surat al-Kahf 18: 28; and ‘And follow not the bidding of those who are extravagant—who make mischief in the land, and mend not their ways’: Surat Shu'raa, 26: 151–2. The Prophet also quoted as having said that: ‘There is no obedience due to any creature (no matter who they are) if they order to sin against Allah)’ and ‘He who commands you to sin has no authority over you’, both quoted in Abdur Rahman I Doi, Shari'ah: The Islamic Law, op cit, 468. See the general analysis of this and related issues in Sayyid Abul A'la, Mawdudi, The Islamic Movement Dynamics of Values, Power and Change (ed Khurram, Murad) (London: The Islamic Foundation, 1984).Google Scholar

39 Irving op cit, 41–2.

40 Ibid, 42 and Ahmed Beita Yusuf, op cit, 27.

41 See details in Masour, Mansour Hasan, ‘The Spread and the Domination of the Maliki School of Law in North and West Africa, Eighth-Fourteenth Century’ (unpublished PhD Thesis University of Illinois, Chicago, 1981)Google Scholar facsimile available on University Microfilm International, Ann Arbor, Michigan, 1985 (No 1707), see also Irving, op cit, 42, Ahmed Beita Yusuf, op cit, 27, and Ado-Kurawa, op cit, 219.

42 Mansour Hasan Masour, op cit, 228 and 234–6, and Ahmed Beita Yusuf, op cit, 27.

43 Maliki law has been the predominant code in the north since the time of El-Maghili who was reputed to be the first scholar to bring Maliki books into Hausaland: Ahmed Beita Yusuf, op cit, 276. The leading Maliki books in use in Nigeria are Risalah of Ibn Abi Zayd al-Qayrawani; Mukhtasar of Khalil Ibn Ishaq al-Jundi; Tuhafat al-Hukkam by Ibn Asim; Kitab al-Muwatta by Imam Maliki and their various commentaries: see Ahmed Beita Yusuf, op cit, 28 and 50, AA Gwandu, ‘Aspects of the Administration of Justice in the Sokoto Caliphate and Shaykh Abdullahi Ibn Fodio' s Contribution to It’, in S Khalid Rashid (ed), op cit, at 23–4, Abdur Rahman I Doi, ‘Islamic Law and its Teaching Through “Hostile” Textbooks’, in ibid, 139–40, and Ado-Kurawa, op cit, 218–19, IO Oloyede, ‘Mukhatasar Khalil and the Understanding of Islamic Law in Nigeria’, Hamdard Islamicus XII 1: 89, Ibrahim Abdullahi, ‘What Law Books Do They Use in Sharia Courts: Rejoinder’, The Bloom (Sept 1989), 50–1, Kani, Ahmed M, ‘The Place of Katsina in the Intellectual History of Bilad al-Sudan up to 1800’, in Tsiga, Isma'ila A and Adamu, Abdalla U (eds), Islam and the History of Learning in Katsina (Ibadan: Spectrum Books, 1997), 24–34Google Scholar, Usman Muhammad Bugaje, ‘Some Reflections on the Development of Islamic Learning in Katsina’, ibid, 77–87 and R Raji, ‘Katsina as the Gateway of the Earliest Muslim Scholars and Learning in Nigeria: The Case Study of Madh Literature’, in ibid, 151–60.

44 See, Ahmed M Kani, above, Usman Bugaje, above, and R Raji, above.

45 See the account of the Jihad in Murray, Last, The Sokoto Caliphate (London: Longman, 1977).Google Scholar

46 Adewoye, O, The Legal Profession in Nigeria, 1865–1962 (Ikeja, Longman Nigeria Ltd, 1977), at 2.Google Scholar

47 Said, Ramadan, Islamic Law: Its Scope and Equity (np, 1970) 146 and 152–4Google Scholar, and SO Mohammad, ‘Shari'ah in a Multi-religious Society’, in M Oloyede Abdul-Rahmon, op cit, 244–8

48 Ahmed Beita Yusuf, op cit, 56 and Murray Last, op cit, 106.

49 See an account of the customary legal traditions in northern Nigeria in Ahmed Beita Yusuf, op cit, 54–87.

50 Ahmed Beita Yusuf, op cit, 27.

51 Gbadamosi, TGO, The Growth of Islam among the Yoruba 1841–1908 (London: Longman, 1978) 3.Google Scholar

52 Islamic courts were established by Muslims at various times before or during the colonial era by Muslims in Iwo, Ede, Ddrun, and Epe see Okunola, M, ‘The Relevance of Shar'ia to Nigeria’, in Nura, Alkali, Adamu, Adamu, Awwal, Yadudu, Rashid, Motem, and Haruna, Salihi (eds), Islam in Africa: Proceedings of the Islam in Africa Conference (Ibadan: Spectrum Books, 1993) 23Google Scholar, Quadri, YA, Shari'ah: The Islamic Way of Life (Ijebu-Ode: Shebiotimo Publications, rev edn, 2000) 11–13Google Scholar, Deremi, Abubakre, ‘Religion, Culture and Politics Among the Yoruba Muslims’, in Olupona, Joseph K (ed), Religion and Peace in Multi-Faith Nigeria (He Ife: Olupona, 1992), 128Google Scholar, SHA Malik, ‘Shariah: A Legal System and a Way of Life’, in M Oloyede Abdul-Rahmon, op cit, 33–4 and Ado-Kurawa, op cit, 282–3.

53 Gbadamosi, op cit, 109 and 215.

54 See the Customary Courts Law, Cap. 31, Revised Edition of the Laws of Western Nigeria, 1959 (applicable in the defunct western region of Nigeria).

55 Ibid, s 6.

56 Ibid, s 17.

57 Ibid, s 20 (3) (b) and (5).

58 Anderson, JND, Islamic Law in Africa (London: Cass, 1978), 222–3Google Scholar and Malik, op cit, 35.

59 See an account of this agitation in Anderson, op cit, 222–3, Quadri, op cit, 12–3, Malik, op cit, 34–6 and Ado-Kurawa, op cit, 283–5.

60 These three phrases were identified by Professor Yadudu in Yadudu, AH, ‘We Need a New Legal System’, in Ibrahim, Suleiman and Siraj, Abdulkarim (eds), On the Future of Nigeria (Zaria: Hudahuda Publishing Co, 1988), 4–5.Google Scholar

61 Suleimanu Kumo, ‘The Application of Islamic Law in Northern Nigeria: Problems and Prospects’, in Syed Rashid (ed), op cit, 44 and Mahmud, Abdulmalik Bappa, A Brief History of Shariah in the Defunct Northern Nigeria (Jos: Jos University Press, 1988), 9–11.Google Scholar

62 Ajami is the writing of non-Arabic language using Arabic scripts. In this case, the colonialists introduced the writing of Hausa using Arabic letters.

63 Last, op cit, 191–2, SAS Galadanci, ‘Islamic Education in Africa: Past Influence and Contemporary Challenges’, in Alkali, et al (eds), op cit, 101–2 and Abdulmalik Bappa Mahmud, op cit, 6–9.

64 Okonkwo, and Naish, , Criminal Law in Nigeria (London: Sweet &Maxwell, 1980), 9–10.Google ScholarRichardson, SS, Notes on the Penal Code Law (Zaria: Gaskiya Corporation, 1967), 1.Google Scholar ‘Both the Criminal and Penal Codes are traceable to the English Common Law’. Owoade, MA, ‘Some Aspects of Criminal Law Reform in Nigeria’, The Nigerian Bar Journal, vol XVI (1980), 25 at 25 n 2Google Scholar, Owoade, MA, ‘The Military and the Criminal Law in Nigeria1’, Journal of African Law, vol 33, no. 2 (1989), 135CrossRefGoogle Scholar, and Abdulmalik Bappa Mahmud, op cit, 23–7.

65 See s 2, Native Courts Ordinance, Cap. 142, Revised Edition of the Laws of Nigeria, 1948 and Park, AEW, The Sources of Nigerian Law (London: Sweet & Maxwell, 1963), 65.Google Scholar

66 Cap 42, Laws of Northern Nigeria, 1963 (applicable in the Northern States).

67 See, eg, s 2, District Courts Law, Cap 33, Laws of Northern Nigeria, 1963.

68 (1942) 8 WACA 39

69 Ibid, 41–2.

70 See: Karibi-Whyte, AG, The History and Sources of Nigerian Criminal Law (Ibadan: Spectrum Law Publishing, 1993), 124–5.Google Scholar

71 In Khairie Zaidan v Fatima Mohssen (1974) UILR (Pt. II) 290, it was so applied to Lebanese Muslims living in Nigeria. See the analysis of this case in Gordon, Woodman, ‘Moslem Law in Nigeria: The Decision in Khairie Zaidan v Fatima Mohssen’, Journal of African Law, vol 20, no 1 (Spring 1976), 63Google Scholar and MA Noibi, ‘Shari'ah in the Nigerian Legal System’, in M Oloyede Abdul-Rahmon(ed), op cit, 202–3.

72 In former British colonies in the Indian sub continent, see Pearl, , A Textbook on Muslim Personal Law (London: Croom Helm Ltd, 1978)Google Scholar, and in Africa, see Anderson, op cit.

73 The colonial dream was that common law would eventually displace Islamic law and customary law in the colonies: see Park, op cit, 138–43, Muhammad Tabiu, ‘Constraints in the Application of Islamic Law in Nigeria’, in Syed Rashid (ed), op cit, 76–7 and Abdulmalik Bappa Mahmud, op cit, 33.

74 These tests are stated in the various High Court and Native Courts Laws and the Evidence Act. For example, s 20, Native Court Law, No 6 of 1956 (Northern Nigeria) provided thus: ‘a native court shall in civil causes and matters administer—(a) the native law and custom prevailing in the area of the jurisdiction of the court or binding between the parties, so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by implication with any written law for the time being in force’ see now, s 20 (2), Area Court Edict, 1967 (No 2 of 1967, Kwara State). The effect of the incompatibility with statute test is that statutes can nullify customary law: Yunusa v Adesubokan (1968) NNLR 97. See discussions on these tests in Park, op cit, 68–80. Section 14 (3) Evidence Act, op cit,: ‘… [a custom] … shall not be enforced as law if it is contrary to public policy …’

75 Abdulmalik Bappa Mahmud, op cit, 14.

76 For detailed analysis see: AA Oba, ‘Lawyers, Legal Education and Shariah Courts in Nigeria’, (paper delivered at the Commonwealth Legal Education Association Conference held between 28 and 30 Nov 2000 at Sheraton Hotel, Abuja), 14–18.

77 See: s 14 Evidence Act, op cit.

78 Under s 54, Area Court Edict (Kwara State) appeal from Area Courts lies to the Sharia Court of Appeal in matters of ‘Islamic Personal Law’ while in other Islamic law matters, appeal goes to the High Court.

79 See discussions below.

80 See Oba, ‘Lawyers, Legal Education and Shariah Courts in Nigeria’, 16–17 and id, ‘The Due Process of Law and Key Factors in the Application of the Concept in Area Courts’ (paper presented at a Workshop for Area Court Judges from Five States organised by the Nigerian Bar Association, Ilorin Branch and sponsored by Women, Law and Development, held at Kwara Hotel, Ilorin, between 8 and 9 June, 2000), 14–15.

81 Kharie Zaidan v Fatima Mohsen (1971) UILR (Pt. II) 283 at 292.

82 Anderson, op cit, 172.

83 (1961) NRNLR 81.

84 (1968) NNLR 97.

85 (1971) NNLR 77 (see also: Yahaya, Mahmood (ed), Sharia Law Reports of Nigeria, vol 1 (1961–1989), 26–32).Google Scholar

86 Ibid, 31–2. This was and remains a very controversial case. It is perhaps correct to say that apart from possibly the decision of the Supreme Court in Lakanmi and anor v Attorney General, Western State (1971) 1 Univ of Ife LR 201, no other Nigerian judicial decision has received such national and international attention. See comments in Odje, ‘Adesubokan v Yunusa— Case, Comment, Choice of Law—An Irredeemable Step’, 6 Nigerian Law Quarterly, vol 1–4, 194–195;Google ScholarOnwuchekwa, , ‘Some Aspects of the Law of Wills in Nigeria’ 13 Nigerian Bar Journal, 28–29;Google ScholarAgbede, I, ‘Legal Pluralism and the Problems of Ascertaining Personal Laws. A Consideration of Yunusa v Adesubokan’, (1971) 13 Nigerian Bar Journal 69Google Scholar; Mosugu, SE, ‘Moslem Wills and the Courts in Nigeria’ (1971) Nigerian Journal of Contemporary Law, 105;Google ScholarAllott, , ‘A Case Comment’, (1972) Journal of African Law, vol 14, no 1, 82;Google Scholar Vietch, (1971) Modern Law Review 24; Ajayi, O, ‘The New Wills Edict and the Reform of Wills Law in Nigeria: Some Thoughts and Suggestions’ (1988–1991) Nigerian Current Law Review, 79 at 81Google Scholar and Ajia, , ‘Legal Pluralism and the Mishandling of Muslim Wills: Further Considerations of Adesubokan v Yinusa and the Internal Conflict Rules’ (1986) Nigeria Current Law Review, 127Google Scholar. Two decades later, the trial judge Bello, CJN (as he had then became) in Idehen v Idehen (1991) 7 SCNJ (Pt II) 196, at 213 reaffirmed the position of the Supreme Court. His Lordship said: “During the colonial era, the Wills Act 1837 of England which empowered a testator to dispose of his properties—real or personal—as he pleased, applied as an Act of general application throughout Nigeria. At that time, any native law and custom which was incompatible with the Wills Act was unenforceable and the provisions of the Act prevailed. A testator had the right to dispose of his properties, real or personal irrespective of any incumberance of native law and custom on the property': Adesubokan v Yunusa (1971) 1 All NLR 225. See also similar comments by Bello CJN in Olowu v Olowu (1985) 3 NWLR (Pt 13) 372, at 389–390. In spite of these, the controversy remains: Ajia, , ‘Legal Pluralism and the Mishandling of Muslim Wills: Further Considerations of Adesubokan v Yinusa and the Internal Conflict Rules’, Nigeria Current Law Review (1986), 127.Google Scholar

87 Kharie Zaidan v Fatima Mohsen, op cit, 292.

88 They pay jizya (tribute tax), in exchange for State protection: Said Ramadan, op cit, 132–5 and Muhib O Opeloye, ‘The Quranic Guidelines in Inter-Religious Relations: An Overview’, in Jacob K Olupona (ed), op cit, at 83.

89 SO Mohammad, op cit, 244–8 and Said Ramadan, op cit, 115–20, 146, 152–70.

90 See Awd Ahmad Idris, op cit, 88–90, Abd Wahab Khallaf, op cit, 89–91, Beita Yusuf, op cit, 25 Abdur Rahman I Doi, Shari'ah: The Islamic Law, op cit, 84 and Schaht, op cit, 62 and 136.

91 Beita Yusuf, op cit, 25, Abdur Rahman I Doi, Shari'ah: The Islamic Law, op cit, 84.

92 Ambali, MA, The Practice of Muslim Family Law in Nigeria (Zaria: Tamaza Publishing, 1998), 58–9.Google Scholar

93 Karibi-Whyte, AG, The History and Sources of Nigerian Criminal Law (Ibadan: Spectrum Law Publishing, 1993) 125.Google Scholar

94 Muslim scholars who have written articles devoted to this include: Abdulmalik Bappa Mahmud, op cit, 14–16; Saadu, YK, ‘Islamic Law is NOT Customary Law’, 1997 Kwara Law Review, vol 6, 136–50;Google ScholarAbun-Nasr, Jamil, ‘The Recognition of Islamic Law in Nigeria as Customary Law: Its Justification and Consequences’, in Abun-Nasr, et al (ed), Law Society and National Identity in Africa (1990), 34Google Scholar quoted in Bakari, Adam Haji, ‘The Sharia Marriage Practices Amongst the Islamic Communities in Tanzania’, Punjab University Law Journal (1995), vol LII, 55 at 61, 34;Google Scholar Adam Haji Bakari, op cit, 60–1; Suleimanu Kumo, ‘The Application of Islamic Law in Northern Nigeria: Problems and Prospects’, op cit, 47–8, Muhammad Tabiu, ‘Constraints in the Application of Islamic Law in Nigeria’, in ibid, 81–4; Yusuf, Aboki, ‘Does the Definition of Customary Law include Islamic Law?’ (1999) Al-Nur (The Light), vol 1, 67–89,Google Scholar cited in Aboki, ‘The Effect of the Land Use Act on Transfer of Land under Islamic Law’, paper presented at the Judges Conference organised by the Center for Islamic Legal Studies, Ahmadu Bello University, Kongo Campus, Zaria between 25 and 27 Nov 1999 at Kongo Conference Hotel, Zaria, and Kelani, LA, ‘Islamic Law and the Customary/Native Law: A Line of Distinction’, Unilorin Shariah Journal, vol 1 (12 2000), 43–55.Google Scholar Learned non-Muslim writers who have expressed the similiar views include: AD Badaiki, who calls the classification ‘a fallacy’: Badaiki, AD, Development of Customary Law (Lagos: Tiken Publishers, 2001), 11–12;Google ScholarElegido, JM, Jurisprudence (Ibadan: Spectrum Books, 1994), 137 n 34, 137–8;Google Scholar and Tilley-Gyado, M, ‘A Case for the Inclusion of African Customary Law in the Curriculum of Law Faculties in Nigerian Universities, Nigerian Current Legal Problems, vols 2 and 3 (1993–1995). 246, at 256–7’Google Scholar.

95 Park, op cit., 65.

96 Aguda, TA ‘Towards a Nigerian Common Law’, in Ajomo, MA (ed), Fundamentals of Nigerian Law (Lagos: Nigerian Institute of Advanced Legal Studies, 1989), 260.Google Scholar

97 Agbede, IO, ‘Legal Pluralism: The Symbiosis of Imported, Customary and Religious Laws-Problems and Prospects, in Ajomo, MA (ed), Fundamentals of Nigerian Laws (Lagos: Nigerian Institute of Advanced Legal Studies, 1989), 235, at 235.Google Scholar

98 See Tobi, Niki, Sources of Nigerian Law (Lagos: MIJ Professional Publishers, 1996), chs 5 and 6Google Scholar, Yusuf, Ahmed Beita, Nigerian Legal System—Pluralism and Conflict of Laws in the Northern States (New Delhi, National Publishing House, 1982)Google Scholar, chs 2 and 3; Kolajo, AA, Customary Law in Nigeria Through the Cases, (Ibadan, Spectrum, 2000);Google ScholarAderemi, PO, Modern Digest of Case Law (Ibadan, Spectrum Books, 2000), 68–71Google Scholar, Obilade, AO, Nigeria Legal System (Ibadan: Spectrum Books, 1998)Google Scholar, ch 6, and Margaret N Tilley Gyado, op cit, 256–7.

99 (1961) 1 All NLR 304.

100 Ibid, 399.

101 Eshugbayi Eleko v Government of Nigeria (1931) AC 662 at 673.

102 See Oba., ‘Law as an Instrument of Social Change: The Common Law and Islamic Law Perspectives’ (paper presented at the Annual Award Luncheon of the National Association of Muslim Law Students (NAMLASS) held at Kwara Hotel, Ilorin, Nigeria on 17 Feb 2001), 24.

103 Jamil Abun-Nasr, op cit, 34 quoted in Adam Haji Bakari, op cit, at 61.

104 (1908) 1NLR81

105 Ibid, 100–1.

106 Saka Salau v Aderibigbe (1963) WNLR 80; Kharie Zaidan v Fatima Mohsen, op cit, Nsirim v Nsirim (1995) 9 NWLR (Pt. 418) 144; Usman v Umaru (1992) 7 NWLR (Pt. 254) 377 and Obi v Obijirulu (1996) 1 NWLR (Pt. 423) 240: see Aderemi, op cit, 68.

107 Kharie Zaidan v Fatima Mohsen, op cit, 292 and Park, op cit, 65.

108 Islamic Law applies in varying extent in most parts of Africa, Middle East, Asia, and Indonesia.

109 Obilade, op cit, 83.

110 Abdur Rahman Doi, Shariah: The Islamic Law, op cit, 22–63; Ahmed Beita Yusuf, op cit, 22–8; and Obilade, op cit, 83.

111 For a list of Maliki Law textbooks used in Nigeria see n 43 above.

112 (1990) 4 NWLR (Pt 144) 327.

113 Ibid, 375.

114 Okonkwo, and Naish, , Criminal Law in Nigeria, 2nd edn (London: Sweet & Maxwell, 1980), 4.Google Scholar

115 Nasir, Jamal J, The Islamic Law of Personal Status, 2nd edn (London: Graham and Trotman, 1990), 29.Google Scholar This classification has even been accepted in some Arab countries under the term ‘Law of Personal Status’: Abdulmalik Bappa Mahmud, op cit, 38, but it is still rejected in most Arab Gulf States, Saudi Arabia, Yemen, Libya, and Sudan: ibid, 31.

116 Cap 122, Laws of Northern Nigeria, 1963.

117 See subsection (e) in s 242(2), 1979 Constitution.

118 See subsection (e) in s 262(2) and 277(2), 1999 Constitution.

119 Below.

120 See s 54, Area Courts Edict, 1967 (Kwara State).

121 See Abuja v Bizi (1989) 5 NWLR (R 119) 120; Garba v Dogon Yara (1991) 1 NWLR (Pt 165) 102; Tumfafi v Ueresno (1993) 1 NWLR (Pt 269) 378; Baka v Dandare (1997) 4 NWLR (Pt 498) 244; and Gumbo v Tukuji (1997) 10 NWLR (Pt 526) 591.

122 Ariyoosu, DA, ‘Islamic Law as an Appendage of Customary Law- Fact or Fallacy?’ The Jurist (Unilorin) (2000), 34.Google Scholar

123 (1992) 7 NWLR (Pt 254) 377.

124 Ibid 407.

125 1997 11 NWLR (Pt 527) 1.

126 Ibid, 9, per Adamu JCA.

127 (2000) 4 NWLR (Pt 659) 99

128 Ibid, 109.

129 Above.

130 Ibid, 112. See comments in SM Abdelrasaq, ‘The Jurisdiction of the Sharia Court of Appeal under the 1999 Constitution’, unpublished paper on file with the author.

131 Section 247 (1), 1979 Constitution and s 276, 1999 Constitution.

132 Saadu, op cit, 148–9. Another writer says ‘it would be sacrilegious to consider that Sharia is subjected to repungancy and human formulated compatibility tests’: Ariyoosu, op cit, 32.

133 Suleiman Kumo, ‘Sharia Under Colonialism—Northern Nigeria’, in Alkali, et al (eds), op cit, 14–15.

134 Tobi, op cit, 137.

135 Abdur Rahman I Doi, op cit, 84. See further details see Awd Ahmad Idris, op cit, 88–90 and Abd Wahab Khallaf, op cit, 89–91.

136 (1934) EACA 130, 133.

137 Appeal No 67 of 1961 cited in Bakari, op cit, 61.

138 Cap 42, Laws of Northern Nigeria, 1963.

139 1968 NNLR 97 at 104.

140 Obilade, op cit, 147–8.

141 (1971) NNLR 77 (see also Yahaya, Mahmood (ed), Sharia Law Reports of Nigeria, vol 1 (1961–1989), (Ibadan: Spectrum Books Ltd, 1993), 26 at 31).Google Scholar

142 Op cit.

143 Ibid, 401.

144 [1998] 6 SCNJ 127

145 Culled from the head note, ibid, at 127–8.

146 His Lordship cited Sahihul Buhkari, vol 3, 165; Bidayatul Mujtahid, vol II, 193; Adawi, vol II, 229; Ashalul Madarik, vol 3, 37; Ihkamul Akham (commentary on Tuhfah) 198; Al-Khirshi, vol 67, 163 (commentary on Mukhtasar el- Khalil); and Matn -ar- Risalah of Ibn abi Zayyid 189: see 133–5 of the judgment.

147 See criticism of this decision in Zubair, A, ‘Denying the Neighbour's Right of Pre-Emption (Shufah)—A Proper Interpretation of Islamic Law? Alkamawa v Bello and Anor’, Kwara Law Review, vol 8 (1999), 152–9.Google Scholar

148 Uwais CJN, Kutigi, Ogbwegbu and Onu, JJSC, see 136–8 of the judgment, op cit.

149 Ibid, 136.

150 ‘Rationes decidendi’ that is plural of ‘ratio decidendi’: the material part of a judgment which constitutes a judicial precedent while ‘obiter dictum’ is a statement made in passing, a chance remark: See Granville, Williams, Learning the Law (London: Stevens, 1982), 67Google Scholar, Obilade, op cit, 112–3 and Okafor, IA, ‘The Appellate System of Justice in Nigeria’, in Elias, TO and MI, Jegede (eds), Nigerian Essays in Jurisprudence (Lagos: MIJ Publishers, 1993), 312, at 314.Google Scholar

151 At 134–6 of the judgment.

152 Ibid, 136–8

153 At 134–6 of the judgment, 136

154 Section 14 (2) of the Evidence Act, Cap 112, Laws of Federation of Nigeria, 1990 says: ‘A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.’

155 Reports of the Constitution Drafting Committee, Vol II (Lagos: Federal Ministry of Information, 1976), 110 and 113.Google Scholar

156 See an account of the Sharia controversy in the Constituent Assembly in Udoma, Udo, History and the Law of the Constitution of Nigeria (Lagos: Malthouse Press Ltd, 1994), at 313.Google Scholar

157 Clarke had accurately predicted that the matter will always be a contentious one anytime Nigeria deliberates on a Constitution: Clarke, Peter, ‘Islamic Reform in Contemporary Nigeria: Methods and Aims’, Third World Quarterly, vol 10, no 2 (04 1988), 519 at 528CrossRefGoogle Scholar. See the account of what happened at the Constituent Assembly in Aniagolu, AN, The Making of the 1989 Constitution of Nigeria (Ibadan: Spectrum Books Ltd, 1993), 50–73 and 93–147Google Scholar and Auwalu Hamisu Yadudu, ‘The Prospects for Shar'ia in Nigeria’, in Alkali, et al (eds), op cit, 48–54.

158 See ss 242(2)(e) and 282(2)(e) in the 1979 and 1999 Constitutions respectively.

159 See the enunciation of the objectives of the Zamfara State Government in a paper titled: ‘Sharia and Democracy: The Zamfara State Experience’, presented by the Attorney General and Commissioner for Justice, Zamfara State, Ahmed Bello Mahmud at the Conference on Sharia which took place at the Kwara State College of Arabic and Islamic Studies, Ilorin between 16 and 18Feb2000.

160 See the reactions to the Zamfara State move documented in Ado-Kurawa, op cit, 324–437.

161 Tobi, op cit, 136.

162 Muhammad, Tabiu, ‘Realisation of Freedom of Religion under the Nigerian Constitution: Challenges before Muslims’, Al-Mujjahid–Journal of the Muslim Ummah, Nigerian Law School, Abuja (1998), vol 1, 60,Google ScholarSaleh, Mohammed, ‘Shariah as the Fundamental Right of Muslims’, Ahmadu Bello University Law Journal, vol 15–16 (1999–2000), 155Google Scholar and Noibi, op cit, 196.

163 Universal Declaration of Human Rights 1948 (Art 10), International Convention on Civil and Political Rights (Art 18) and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 1981. There is also the African Charter on Human and Peoples Rights, 1981. (OAU Doc CAB/Leg/67/3/Rev 5). This Charter has been domesticated in Nigeria by a local legislation, viz, the African Charter on Human and Peoples' Rights (Enforcement and Ratification) Act, Cap 10, Laws of the Federation of Nigeria, 1990: General Sani Abacha & Ors v Chief Gani Fawehinmi [2000] 4 SCNJ 401 (Supreme Court). See text of the Charter in (1981) 21 International Legal Materials 58 and Schedule to the African Charter on Human and Peoples' Rights (Enforcement and Ratification) Act (above). Article 8 thereof provides that: ‘Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.’

164 [1917] AC 406, where Lord Summer said thus: ‘It has been repeatedly laid down by the Courts that Christianity is part of the law of the land, and it is the fact that our civil polity is to a large extent based upon the Christian religion’(at 425). His Lordship also remarked that: ‘Ours is, and always has been, a Christian State. The English family is built on Christian ideals, and if the national law is not Christian there is none. English law may well be called a Christian Law, but we apply many of its rules and most of principles, with equal justice and equally good government, in heathen communities and its sanctions, even in courts of conscience are material and not spiritual’ (at 464). Lord Finely in the same case said: ‘There is abundant authority for saying that Christianity is part and parcel of the laws of the land—but the fact that Christianity is recognised by law is the basis to a great extent for holding that the law will not help endeavours to undermine it’ (425). This case and the quotations were perhaps first cited for this purpose in Ibrahim Suleiman, ‘The Shariah and the 1979 Constitution’, op cit, 64. It has since then been cited in almost every paper where the issue is argued.

165 His Lordship said that: ‘all the forces which made colonisation possible, namely imperial control, Christianity, commerce, were aimed at promoting everything British and rejecting everything Nigerian as primitive and barbarous’, Karibi-Whtye, , History and Sources of Nigerian Criminal Law (Ibadan: Spectrum Books Ltd, 1993), 268.Google Scholar

166 See generally Clarke, op cit and the cover stories in The African Guardian, 24 Oct 1988 and This Week, 24 Oct 1988.

167 See Udoma, op cit, at 313.

168 See the account of the incident from a Christian point of view by the Chairman of the Constituent Assembly, Justice Aniagolu, a retired justice of the Supreme Court in Aniagolu, op cit, 50–73, ch 6 tilted ‘The Sharia Imbroglio’, at 93–147 and the account from the Muslim perspective by Yadudu, who was a Muslim member of the Assembly in Auwalu Hamisu Yadudu, ‘The Prospects for Shar'ia in Nigeria', op cit, 48–54. Reports of the event as ‘cover stories in newsmagazines can be found in The African Guardian, 24 Oct 1988 and This Week, 24 Oct 1988.

169 See Paul Nwabuikwu, ‘Sharia: Man or God's Battle’, The African Guardian, 24 Oct 1988, 20.

170 See the editorial titled ‘Matters for the new Constitution’, in The Guardian, Thursday, 21 Jan 1999, 16.

171 See the comprehensive study of Christians' reaction of the recent revival of Islamic penal sanctions in some states in Ado-Kurawa, op cit, ch 6 (324–422).

172 See the communique issued at the end of the Two Day National Conference on Muslims and the Review of the 1999 Constitution organised by the National Hijra Ummatul hlamiyyah at the Indoor Sports hall, Kwara State Stadium, Ilorin between 11 and 13 Oct 2001.

173 BA Haruna, Muslims and the Review of 1999 Constitution, paper delivered at the Two Day National Conference on Muslims and the Review of the 1999 Constitution organised by the National Hijra Ummatul hlamiyyah (above), 9–11.

174 Ibrahim Suleiman, ‘A Fresh Constitution Required’, in Ibrahim Suleiman and Siraj Abdulkarim (eds), op cit, 8–16, see: the various English translations and studies of the document which some scholars refer to as the Constitution of Madinah (Dustur al-Madinah) in Haykal, Muhammad Husayn, The Life of Muhammad (translated by al-Faruqi, Ismail) (Lagos: Islamic Publications Bureau, 1982), 180–33;Google ScholarZakaria, Bashier, Sunshine at Madinah: Studies in Life of the Prophet (LondonThe Islamic Foundation, 1990), 104–8Google Scholar and Watt, W Montgomery, Muhammad at Medina (Oxford: Oxford University Press, 1956), 221–5.Google Scholar

175 Above, non-Muslims residing in an Islamic State have political freedom and social and judicial autonomy, see Said Ramadan, op cit, 146, 148, 152–62.

176 See the analysis of the impact of the orientalist approach in Ibrahim Suleiman, ‘The Shariah and the 1979 Constitution’, op cit, 68–9 and Ado-Kurawa, op cit, 84–110.

177 Matthew 22: 21 (Revised Standard Version), see the comparison between Islamic law and canon law in David and Brierly, op cit, 463–5.

178 David and Brierly, op cit, 464.

179 Saleh Mohammed, op cit, 162, Muhammad Tabiu, op cit, 60 and Ado-Kurawa, op cit, 162.

180 Ambali, op cit, 2.

181 Constitution of the Federal Republic of Nigeria, 1979, Cap. 62, Laws of Federation of Nigeria, 1990. This Constitution has now been superseded by the 1999 Constitution op cit. Both Constitutions are similar on the issues relevant hereto.

182 Only the Constitution of the Northern Region, 1963 made provisions for the establishment of courts specifically administering Islamic law, see ss 54 and 55 of the Constitution of Northern Nigeria, Cap 1, Laws of Northern Nigeria, 1963. Islamic law was ignored in the Constitutions of the Eastern and Western Regions of Nigeria, though Muslims form the majority in the Western region.

183 Section 242, 1979 Constitution.

184 Ibid, ss 240–4.

185 See ss 260–4 and 275–79 respectively. See analysis of similar provisions in the draft 1989 Constitution in Aihe, , ‘The Sharia and Customary Law within the Administration of Justice System’, in Proceedings of the Eight Working Sessions of the National Conference on the Draft Constitution, June 28th–30th, 1989 (Lagos: Nigerian Institute of Advanced Legal Studies, undated), 301–2.Google Scholar

186 Abdullahi, UF, ‘The Impact of the Form of Marriage on the Rights of the Child’, Justice—A Journal of Contemporary Legal Problems, vol 1, no 2 (1990), 64 at 66.Google Scholar

187 For Islamic Law, see ss 240–4, 1979 Constitution and ss 260–4 and 275–9, 1999 Constitution, for customary law see: ss 245–9, 1979 Constitution and ss 265–9 and 280–4, 1999 Constitution.

188 See ss 261 (3) and 276 (3), 1999 Constitution and 241 (3), 1979 Constitution for Kadis and ss 266 (3) and 281 (3), 1999 Constitution and s 246 (2), (3), 1979 Constitution for judges of Customary Court of Appeal.

189 (1983) 2 FNLR 216 and also reproduced in Syed Khalid Rashid (ed), op cit, Appendix VIII, 251–82

190 (1983) 2 FNLR 216, at 220.

191 Ibid, 231.

192 In both 1979 and 1999 Constitutions, s 1 (1) says: ‘This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria’, and s 1 (3) says: ‘If any other Law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.’

193 Usman v Umaru, op cit, 407 per Uwais JSC (as he then was).

194 Kwara State have made progress in this area by the promulgation of the Laws of Kwara State, 1994.

195 See Ajai, O, ‘The New Wills Edict and the Reform of Wills Law in Nigeria: Some Thoughts and Suggestions’, Nigerian Current Law Review (1988–1991), 79 at 81.Google Scholar

196 Bendel State was split to Edo and Delta States in 1991 by the States (Creation and Transitional Provisions) Decree (No 2), 1991 (No 41 of 1991).

197 (1991) 7 SCNJ 196 (also (1991) 6 NWLR (Pt 198) 382)

198 Ibid, 212, per Kawu, JSC.

199 See s 1 (1) of No 17 of Rivers State and s 3 (1) of No 13 of Oyo State, both cited and quoted in Ajai, ‘The New Wills …’, op cit, 81 and Wills Law, Cap 168, Laws of Kwara State, 1994.

200 See, eg, The Shariah Penal Code Law (No 10, 2000, Zamfara State).

201 See the case for religious tolerance and understanding in EO Oyelade, ‘Religion, Politics, and Peace in Africa: A Study of Religious Pluralism and Islamic Fundamentalism in Africa’, in Jacob O Olupona (ed), op cit, 177–93.

202 eg, see, Oba, , ‘Rethinking the Law of Homicide: A Shariah Perspective’, in Nwauche, ES and Asogwah, FI (eds), Essays in Honour of Professor CO Okonkwo (Port Harcourt: Jite Books, 2000) 84–104Google Scholar, and Oba, ‘Law as a Instrument of Social Change’, op cit.

203 Oba, ‘Rethinking the Law of Homicide’, op cit, 103–4.

204 Saadu, op cit, 149.

205 Similar calls have been made by many writers see: Yadudu, ‘We need a New Legal System’, in Ibrahim Sulaiman and Siraj Abdulkarim (eds), op cit, 7; Ibrahim Sulaiman, ‘A Fresh Constitution Required’, op cit, 12 and 15; Abdulmalik Bappa Mahmud, op cit 54–59, Muhammad Tabiu, op cit, 84 and Ariyoosu, op cit, 34.

206 Abdel Rasaq, op cit., 3.