AN ANALYSIS OF ISLAMIC CIVIL PROCEDURE IN NIGERIA - UNIPROJECTS

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AN ANALYSIS OF ISLAMIC CIVIL PROCEDURE IN NIGERIA

AN ANALYSIS OF ISLAMIC CIVIL PROCEDURE IN NIGERIA

ABSTRACT
As a result of interactions between individuals, it is normal for dispute
to arise. Islamic Law had provided the procedures through which
such dispute can be judicially determined. Nigerian Courts are
enjoined to apply procedural Rules enunciated by Makili School of
jurisprudence.
Full application of Islamic Civil procedure in Nigeria has been limited
by some statutes. Most of the texts on Islamic Civil Procedure are
classical and written in Arabic language. The rules of Islamic Civil
Procedure enunciated by the classical books are yet to be
comprehensively codified to guide Nigerian Courts in conducting trials.
Unfortunately the poor level of knowledge of Islamic procedure rules
among lawyers and the lower courts judges has led to incorrect
appreciation and application of the rules.
The scope to be covered by this research is: the sources of Islamic
Civil procedure, conditions precedent to commencement of civil action,
hearing and determination of disputes. The research methodology of
the thesis is doctrinal and analytical.
In the course of the research, some findings or observations were
made. The research found that there is no clear distinction between
substantive and procedural law in Islamic Law and most of the texts
on the subject are written in classical Arabic which is technical in
nature. The jurisdiction of Shari’a Court of Appeal in Nigeria is limited
to Islamic personal Status. Suggestions were made in the research as
proffered solutions to the enumerated findings/observations.
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LIST OF ABBREVIATIONS:
ALL FWLR – All Federation Weekly Law Reports.
BOS – Borno State.
CA – Court of Appeal.
CFRN – Constitution of the Federal Republic Nigeria
F.S.C. – Federal Supreme Court Cases.
FWLR – Federation Weekly Law Reports.
KSW – Kwara State.
LFN – Laws of the Federation of Nigeria 1990.
NWLR – Nigerian Weekly Law Reports.
RSMNW – Rahotannin Shari’ar Musulunci Na Wata-Wata
A Najeriya.
SCA – Sharia Court of Appeal
SCNJ – Supreme Court Judgments Of Nigeria.
SHLRN – Sharia Law Report Of Nigeria.
SLR – Sarauniya Law Reports.

CHAPTER ONE
1.0 Introduction
History of mankind shows that at a point in time when there
was no divine revelation individuals used to depend on the
might of their strength in the protection of their rights. At that
time there was no law and order. Jungle justice was the order
of the day. Islam came and met Arabian societies in this era of
darkness. Through divine intervention sanity was brought to
the Arabian system of justice established and aggrieved
individuals enjoined to resort to it in settling disputes.
However, Islamic law provided the procedure through which
complaints can be presented and proved before courts of law
in order to arrive at just and fair decisions.
Islamic law does not differentiate between substantive law and
law of procedure. The law of procedure is in itself substantive
law which a judge must comply with. Such being the case, one
cannot get a book distinctly for law of procedure since it is
mixed with the substantive law. Islamic law does not provide a
uniform procedure for governing any criminal or civil trials as
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in the case with man made law. Some laws of procedure differ
from others as regard to provision for trials1.
The emphasis Islamic law puts on the process and means to
justice is as much as the emphasis it puts on justice itself.
The concept and process of justice stipulated by the Sharia
rests primarily on six foundations:
i. The judge whose person and process of his appointment
satisfy the laid down rules and regulations,
ii. The applicable substantive law,
iii. Parties
iv. The issue in dispute,
v. The procedures to be followed to arrive at the decision2.
Islamic law is all inclusive and contains solutions to any
problem that may arise out of all of circumstances. Allah
(SWT) is the legislator of Islamic law3 and His beloved Prophet
Muhammad (S.A.W) was a judge,4 during his life time, he used
1 Mahmud, A.B. (1991) Supremacy of Islamic Law. Hudahuda Publishing Company, (Zaria), Nigeria.
p.103.
2 At-Tasuli, A.A. (1951) AlBahjah, Commentary on the Tuhufah, Mustafa Al-Babi, al-Halabi and Sons
Press , (Cairo) Vol. 1. p.25
3 Q 65:18
4 Q 4:105; 57:25
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to settle disputes. Prophet Muhammad (S.A.W) had laid down
rules of procedure during his life time. When he (S.A.W)
appointed Kadi Ali as a judge to Yemen, Ali said to him; “Oh
Messenger of Allah, you are sending me to Yemen as a judge
while I don’t know how to judge. Prophet (S.A.W) replied that
God the sustainer, the Almighty, will prepare your mind, and
confirm your work, when a dispute is brought before you give
equal hearing to both sides before making judgment, that is
how you will understand the dispute in question”5. It is also a
well known rule of Islamic procedure laid down by Prophet
(S.A.W): “He who asserts must prove and oath lies on he who
denies”6.
The Prophet’s (S.A.W) judgments are remarkable for their
simplicity, fairness and equanimity. The cases are decided
based on evidence. It was reported from Umm Salamah that
the Prophet (S.A.W) said “You bring to me for (judgment) your
disputes, some of you perhaps being more eloquent in their
plea than others, so I give judgment on their behalf according
to what I hear from them. (Bear in mind, in my judgment) if I
slice off anything for him from the right of his brother, he
5 Mahmud, A.B. Op. Cit. pp. 117 – 118.
6 Al-Baihaqi, A.H. (1973) Sunan – Al-Kubra. Dar al-Fikr, (Beirut) Vol.Viiii P.177.
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should not accept that, for I sliced off for him a portion of hell
fire”7. On the demise of Prophet (S.A.W), he left behind an
explicit lesson on trial procedure together with rules and
regulations.
The first Khalifah, Abubakr al-Siddiq (R.A) continued to
adjudicate amongst the Muslim community in accordance
with the Holy Qur’an,8 the Sunnah of the Holy Prophet
(S.A.W)9 and the consensus of the companions of the holy
Prophet (S.A.W) known as Ijma. In 634 A.D Khalifah Umar
(R.A) succeeded Abubakr, the boundaries of Islamic territory
expanded vastly, and the administration of justice and law,
and the maintenance of peace and order were systematized. It
is interesting to read the famous letter sent by Khalifah Umar
(R.A) to Abu Musa Al-ash’ari, the Governor of Kufa. The letter
reads:
………….The court must observe equality between
the parties …. The burden of proof is on the plaintiff
and the defendant may be put on oath …. If you
have decided a case, then after due care and
thinking you may revise your decision …. When a
7 Siddiqi,

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