It is natural and common in human society to have between individuals a kind of dispute that may probably arise. Islamic Law had laid down and provides the procedures through which such dispute can be judicially determined. Nigerian Courts are enjoined to apply principles and Rules enunciated by Makili School of jurisprudence. Complete application of Islamic law of Evidence in Nigeria has been limited and most of the texts on Islamic law of Evidence are classical and written in Arabic language. The rules of Islamic law of Evidence pronounced by the classical books are yet to be comprehensively codified to guide Nigerian Courts in conducting trials. Regrettably the poor level of knowledge of Islamic law of Evidence rules among lawyers and the lower courts judges has led to erroneous appreciation and application of the rules. The scope to be covered by this research is: the sources of Islamic law of Evidence, the cardinal principles governing the use of testimony, the application of testimony as means of Proof in Establishing both Criminal and Civil Cases. 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.
1.1 Background of the Study
The word Testimony means: the evidence of a witness usually given in court and usually under oath.1The first source of the proof of a crime or a right in islamic law is SHAHADA i.e Testimony literally means: information of what one has witnessed or seen or beheld with his eyes, declaration of what one knows, decisive information, it also means to be present.
Technically means: to give true information before a competent court of law what one has seen or known for the purpose of proving or disproving a right or crime.2 The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding, these rules determine what evidence must or must not be considered by the trier of fact in reaching its decision and sometimes the weight that may be given to that evidence. The law of evidence is also concerned with the quantum (amount) quality of proof is how reliable such evidence should be considered. This includes such concepts as hearsay authentication, admissibility, reasonable doubt and clear and convincing evidence.
There are several types of evidence, depending on the form or source, evidence governs the use of testimony (e.g oral or written statements, such asaffidavit), exhibits (e.g physical objects), documentary material, or demonstrative evidence
1. Bone, S., Osborn’s Concise Law Dictionary, Sweet and Maxwell, London, 2001, p.376. 2. Cowdhury, A., The Islamic Law of Evidence, Kitab Bhavan, New Delhi, India, 2006, p.19.
which are admissible i.e allowed to be considered by the trier of fact, such as jury in a judicial or administrative proceedings, e.g a court of law when a dispute whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to decide in his favour.The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy. In Nigerian law the rule of corroboration in criminal cases requires that there must be two pieces of evidence, to prove each essential fact, eventhough this corroboration requirement is no longer applies in civil cases with the exception of some areas of family law, such as divorce, when another individual not party to the marriage must act as witness. Also in nigerian law, evidence that would otherwise be admissible at trial may be excluded at the discretion of the trial judge if it would be unfair to the defendant to admit it.Evidence of a confession may be excluded because it was obtained by oppression or because the confession was made in consequence of anything said or done to the defendant that would be likely to make the confession unreliable. In these circumstances, it would be open to the trial judge to exclude the evidence of the confession. Further the authentication requirement has import primarily in jury trials, if evidence of authencity is lacking in a bench trial, the trial judge will simply dismiss the evidence as unpersuasive or irrelevant.
In systems of proof based on the Nigerian law almost all evidence must be sponsored by a witness, who has sworn or solemnly affirmed to tell the truth. The
bulk of the law of evidence regulates the types of evidence that may be sought from witnesses and the manner in which the interrogation of witness is conducted such as during direct examination and cross of witnesses. Other types of evidentiary rules specify the standards of persuation (e.g proof beyond a reasonable doubt) that a trier of fact whether judge must apply when it assesses evidence. Today all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings and all persons are also presumed to have legal obligation to serve as witnesses if their testimony is sought. However legal rules sometimes exempt people from the obligation to give evidence and legal rules disqualify people from serving as witnesses under some circumstances. Witness competence rules are legal rules that specify circumstances under which persons are ineligible to serve aswitnesses e.g nor judge is competent to testify in a trial in which the judge serves in that capacity, so also a person is deemed not competent to testify as to statements of or transaction with a deceased opposing party. The Nigerian law set out the rules that regulates the procedure of witnesses whom are capable to testify in a court of law.
Islamic law is strives to ensure that justice does not only reign but fully implemented. And one of the way of ensuring justice is done is through judicial system. In order to ensure justice in judicial system, islamic law laid down thelaw of proof known as evidence (Bayyinah). The purpose of evidence in islamic law is to
avoid punishing innocent persons through errors i.e to set the innocent free and punish the offender if found guilty. It is for this reason that islamic law made it incumbent on claimant to produce a piece of convincing evidence in support of his claim, on the basis of which decisions of courts are given. In both civil and criminal procedings, claims are proved in one of the following ways:
1. Through written or oral confession, (Iqrar)
2. By oral testimony (Shahada) which is the topic of research
3. By oath (Al-yameen)
4. By circumstantial evidence (Al-ithbaat bi Qaraa‟in al Ahwaal)
5. By documentary evidence (Alkitaba)
6. By opinion of experts (Raayul-khabir)
7. Through the knowledge of Judge (Ilmul-Qadi)
8. By hearsay evidence (Assimaa‟a)
Other method of proof such as swearing on oath, circumstantial evidence, documentary evidence,experts evidence, knowledge through the judge and hearsay evidence do not form part of the scope of this work.
In islamic law great importance has given to testimony (Shahada).3 for that reason: Allah said:
(O you who believe! Be staunch in justice witness for Allah even though it is against you or your parents or kindred)4
3 Chowdhury, A., Principles of Evidence in Islam, A.S. Noordeen, Kuala Lumpur, Malaysia, 2004, p.1.
(And call to witness from among your men two witnesses, and if two men are not available then one man and two women whom you approve as witnesses, so that if the one makes an error the other will remind her…)5 Considering the significant of proof in both civil and criminal litigations, the messenger of Allah (S.A.W) was reported to have said:
Were people to be given whatever they claim (without proof) they would have claimed the property of other people and their blood, i.e lives, but establishment of proof i.e. al-bayyina is on the claimant and oath is administered on who refutes the claim i.e. defendant.6 There are two separate stages as far as testimony is concerned, the period of concieving a particular piece of evidence (Attahammul) is one stage and the period of rendering such testimony in evidence (Adaa‟a) is another stage, and is not every bit of what one percieves or views that comes before court, the court will only satisfied with the oral testimony that will assist in ensuring justice.
The research work will put emphasis on Tesimony in Nigerian law with a particular reference to Islamic law, it is known that the Nigerian legal system enjoys three different laws i.e, a. The English common law, b. The Customary law, c. and The Islamic law.
4 Qur’an 4:135 5 Ibid, 2:282 6 Abdulwahab, A.A., Commentary on Forty an Nawawi’s Collection, Arabiyya House for Publishing and Distribution, 1989, p.98
But park in his superb book The Source of Nigerian Lawis of the view that: The term customary law for throughout the federation it includes islamic law. This is made explicit in the north by section 2 of the Native Courts Law which provides that: thus the practical purposes Islamic law and the various tribal law are treated alike, though there are many theoretical distinctions between them. In particular Islamic law originates from outside Nigeria, and is not a purely indigenous phenomenon. Consequently it isnot grounded in any particular locality,and can apply in appropriate cases throughout the countryin large parts of the North, however it has supplanted the local system almost entirely, and occupies the same position in relation to those areas as does Igbo law to most of the west.
It seems that islamic law is not always uniform throughout Nigeria, but in the main it is the Maliki system that prevails
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