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Binding Precedent and Shari’a/Islamic Law in Nigeria:

An Attempt at a Civil-Criminal Distinction

Aminu Adamu Bello

Introduction

Precedent is the making of law by a court in recognizing and applying new rules while

administering justice.1 A precedent may be binding, declaratory, original or persuasive. A

binding precedent is a precedent that a court must follow;2 a declaratory precedent is

merely the application of an already existing legal rule;3 an original precedent on the

other hand is one that creates and applies a new legal rule.4 A persuasive precedent is a

precedent that is not binding on a court, but that is entitled to respect and careful

consideration.5

The administration of justice entails the interpretation of laws relevant to the facts and

issues in contention. Each court often has the latitude to determine a case according to its

understanding of the applicable law so that in situations where the court determines a

case that eventually provides a basis for determining later cases involving similar facts or

issues, such a court is considered to have established a precedent.

Within a hierarchical courts structure, lower courts are bound by decisions of higher

courts in cases of same or similar facts and/or issues situations. In a non-hierarchical,

coordinate courts structure, precedents could only be persuasive.6 In Islamic law, it has

been held that precedent is non-existent as a judicial mechanism in the administration of

justice,7 because proceedings in Shari’a courts are predicated on a single, final

adjudicator.8

Two eminently outstanding cases in Nigeria that have touched on the issue of precedent

in Shari’a9 are Karimatu Yakubu Paiko & Another v. Yakubu Paiko & Another,10 and

Faculty of Law, University of Abuja 1 Bryan A. Garner, (ed.), Black’s Law Dictionary, Eight Edition, Thompson West, 2004 2 Ibid 3 Ibid 4 Ibid 5 Ibid 6 Gans, Jeremy, ‘The Faces of Islamic Criminal Justice’, 7 Yadudu, A.H., ‘Colonization and the Transformation of Islamic Law in Nigeria’, Journal of Legal

Pluralism, 1992- nr 35, pp.131-134 8 Gans, Op. Cit., note 6 9 ‘Shari’a’ will be used in this paper interchangeably with ‘Islamic law’ without conceding that they mean

the same thing. 10 Unreported Federal Court of Appeal case number CA/K/805/85

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Chamberlain v. Abdullahi Dan Fulani11 both of which were civil cases. Karimatu Yakubu

was a case on the question of ijbar (the right of a father to marry off a virgin daughter

with or without her consent) in which the Court cited with approval the earlier decision of

a Sharia Court of Appeal. Professor Auwalu Hamisu Yadudu12 and Professor Muhammad

Tawfiq Ladan13 have criticized the Federal Court of Appeal for relying on an earlier

decision in reaching its own decision and concluded that this reliance was a deviation

from Shari’a/Islamic law principles. Chamberlain is significant because it presents an

opportunity to observe the difference between Common law and Islamic law systems on

the issue of precedent.14

Ijtihad, Taqlid and the concept of Precedence

Because of the absence of hierarchy of courts in the Islamic legal system, there is

apparently no system of appeal.15 This lack of an appeals process did not mean that

judicial decisions were not liable to review. The decision of a Shari’a court judge could

be reformed for error of law as was done in the common law system.16 This reversal

could be accomplished by the issuing judge, a second judge who was a contemporary of

the issuing judge, or a successor judge.17 In no circumstance could a decision be reformed

for error of fact,18 nor could the review be performed by a higher court constituted as an

appellate court.19 In an Islamic state, the courts were coordinate in structure,20 which

would seem to raise the question as to the status of Nigeria, vis-a-vis the adoption of a

state religion, 21 for unless the country had Shari’a/Islamic law guiding not only the legal

system, but the political system also, the courts will have to conform to a system other

than that which is obtained in the Shari’a/Islamic law legal/political system.

While Professor Ali Khan has wondered whether indeed the door of ijtihad had been

closed and so should be re-opened,22 Professor Wael Hallaq has argued that the doors of

11 (1961–1989) 1 Sh.L.R.N. 54 at 61, per Gwarzo, JCA 12 Yadudu, Op. Cit., note 7 13 Ladan, M.T., Introduction to Jurisprudence Classical and Islamic , Malthouse House, 2006, pp.202-295 14 Oba, A.A., ‘Lawyers, Legal Education and the Shari’ah Courts in Nigeria’, Journal of Legal Pluralism,

2004-nr-49, pp. 134-139 15 Makdisi, J.A., The Islamic Origins of the Common Law, 77 N.C.L.R. 1635, p.32, citing Martin Shapiro,

Courts: A Comparative and Political Analysis, 221, (1981) 16 Ibid, citing Henri Bruno and Gaudefroy-Demombynes (eds. and trans), Le Livr des Magistratures d’el

Wancherisi, 1937, pp.87-90 17 Ibid, citing David S. Powers, ‘On Judicial Review in Islamic Law’, 26 Law and Society Review, 315,

320-24, (1992) 18 Ibid 19 Ibid 20 Ibid 21 See section 10, 1999 Constitution of the Federal Republic of Nigeria 22 Khan, Ali, ‘The Reopening of the Islamic Code: The Second Era of Ijtihad’, online at

http://ssrn.com/abstract=935607

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ijtihad had never been closed.23 According to Professor Hallaq, there are several reasons

in support of the proposition that the door of ijtihad was never closed. These reasons

include (1) the continued existence of renowned Mujtahids up to the tenth/ sixteenth

century;24 (2) the practice by which Muslims choose a Mujaddid at the turn of each

century,25 and (3) the opposition to the purported closure by the Hanbali school who

claimed that Mujtahids existed at all times thus weakening the coalition in which Hanafis

and Malikis took part.26

A Mujtahid is a person entitled to ijtihad,27 and ijtihad is considered to be that maximum

effort expanded by the jurist to master and apply the principles of usul al-fiqh (legal

theory) for the purpose of discovering God’s law.28 Islamic law expects that every judge

must be a Mujtahid of the highest grade,29 provided however that only where such a

person is not available, would persons of lesser knowledge (including non-Mujtahid

conversant with the verdicts of the applicable madhab), be appointed as judge.30

According to Ambali:

The law expects a Muslim judge to be a Mujtahid, i.e. a person who possesses and exercises capacity to make research and relate it to current

event with a view to solving the problems of the day which never confronted the Muslim Community before.31

In discussing the requirements for ijtihad, Wael Hallaq has explained that later jurists did not depart significantly from the established Sunni legal doctrine propounded by Ghazali,32 who had maintained that to be a Mujtahid, one must:33

1. Know the 500 verses needed in law; committing them to memory is not a

prerequisite. 2. Know the way to relevant hadith literature; he needs only to maintain a

reliable copy of Abu Dawud’s or Bayhaqi’s collections rather than

memorize their contents. 3. Know the substance of furu works and the points subject to ijma, so that

he does not deviate from the established laws. If he cannot meet this

23 Hallaq, W.B., ‘Was the gate of Ijtihad closed?’ in Yvonne Y. Haddad and Barbara F. Stowasser, (eds.),

Islamic Law and the Challenges of Modernity, Altamira Press, 2004, pp.21-53 24 Ibid, p. 33 25 Ibid 26 Ibid 27 Ibid, p.71 28 Ibid, citing Ali b. Ali al-Amidi, al-Ihkam al-Ahkam, 3 Vols. Cairo, 1968, III, 204 29 Oba, Op. Cit., note14, p.122 30 Ibid 31 Ambali, M.A., The Practice of Muslim Family Law in Nigeria , Tamaza, Zaria, 1998, p. 87 32 Hallaq, Op. Cit, note 23, citing Schacht, J., An Introduction to Islamic Law, Oxford, 1964, p.7 33 Ibid, p. 6, citing Ghazali, Mustasfa, II, 353-354

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requirement he must ensure that the legal opinion he has arrived at does not contradict any opinion of a renowned jurist.

4. Know the methods by which legal evidence is derived from the texts. 5. Know the Arabic language; complete mastery of its principles is not a

prerequisite. 6. Know the rules governing the doctrine of abrogation. However, the jurist

need not be thoroughly familiar with the details of this doctrine; it suffices

to show that the verse or the hadith in question had been repealed. 7. Investigate the authority of hadith. If the hadith has been accepted by

Muslims as reliable, it may not be questioned. If a transmitter was known for probity, all hadiths related through him are to be accepted. Full knowledge of the science of al-ta dil wal-tajrih (hadith criticism) is not

required.

According to Ghazali those who intend to engage in ijtihad in all areas of substantive law

must fulfil the enumerated qualifications, but those who would only engage in a single

case need not fulfil the conditions but are required to know the methodological principles

and textual material needed to solve that particular problem.34 This divisibility (tajzi’a) of

ijtihad was recognised to be lawful in Sunni law, and it would appear that a limited

knowledge of usul was sufficient to allow a jurist to practice ijtihad in an individual

case.35

It has been observed that because Islamic law is a religious law, the determination of the

law was ultimately a question of the judge’s conscience when faced with questions for

which revelation did not provide explicit answers,36 and as such, that the creation of

uniform legal doctrine was not one of the goals of Shari’a/Islamic law, as such there was

no need for the institution of judicial review simply to achieve uniformity in law.37

According to Coulson,

The Shari’a is an attempt to define the will of Allah, and since the unequivocal texts of divine revelation were comparatively limited, the

deliberations of the jurists produced many conflicting opinions and views which represent merely probable rules of law. While one qadi may base his judgement on one opinion, an exactly similar case may subsequently

be decided according to the contrary opinion, for in each case the onus of determination of the rule applicable falls in upon the conscience of the

individual qadi concerned. This attitude runs directly counter to the notions of uniformity and certainty in the law which are at once the object and result of a case-law system. In short, it may be argued, this conflict

34 Ibid 35 Ibid, p.7, citing Shawkani, Irshad, p.237 36 Fadel, M., ‘The Social Logic of Taqlid and the Rise of the Mukhatasar’, 3 Islamic Law and Society,

1996, p.227 37 Ibid

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reflects one of the fundamental distinctions between a secular and religious legal system.38

This statement by Coulson would only apply, it seems, in a context where the judge was

practicing ijtihad,39 but not where the judge was a muqallid and his activities were

regulated by non-subjective rule of recognition40 whose explicit goal was to ensure that

judges and muftis applied the same rule to similar cases.41

Apparently, the internal rule of recognition known to all Mujtahid of the Maliki School

had been established by Imam Malik himself:

Malik said: the judge should rule based on [those provisions of] the Book

of God that have neither been abrogated, not that have been explicitly contradicted by the sunna. If he does not find [the solution] in the Book of

God, then [he should rule] based on that which is unanimously attributed to the Messenger of God, practice having been in accord with it. If he fails to find [the solution there], then [he should rule] based on that which has

been reported about the [opinions of the] Companions, if they were in agreement. If they disagreed, he rules according to that [opinion] which is

in accord with practice in regard to that [question]. If he does not find it, then [he should rule] based on that which has been reported about the [opinions of the] Followers. If he does not find [the solution there] then

[he should rule] based on that which scholars have agreed upon. If he does not find [the solution there] then he should exercise his independent

judgment and make an analogy based on that which he knows from them [viz., the scholars]. If [the case] is problematic for him, he should consult jurists who are worthy of consultation because of their religiosity, their

intelligence, and their understanding. If they contradict each other, he should consider which [opinion] is most likely correct and rule based on it.

If he should reach an opinion contrary to their opinion, he should not rule, suspend judgment and gain more information. Then, he should rule on that [case] based on what he perceives most likely to be correct. He has the

right to rule based on his own opinion if he is their equal, but not if he is

38 Fadel, Op. Cit., note 36, p.227, citing Coulson, J., Muslim Custom and Case-Law, p.20-21 39 Ibid 40 Hart, H.L.A., The Concept of Law, Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994, p. 92, cited in

Jeremy Waldron, ‘Who needs Rules of Recognition’, online at http://ssrn.com/abstract=1358477

(suggesting that the simplest form of remedy for the uncertainty of the regime of primary rules is the

introduction of what is called a ‘rule of recognition’. This will specify some feature or features possession

of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to

be supported by the social pressure it exerts). 41 Fadel, Op. Cit., note 36, p.227, citing Coulson, History, 146 (explaining Coulson’s concession that

theory required that in cases of conflict the qadi should normally follow the dominant doctrine of his

school).

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beneath them [in learning]. If he is unable to reach a conclusion, he should leave it and not rule on something about which he entertains a doubt.42

This rule of recognition made it possible for the eventual crystallization of legal doctrine

within the Maliki madhab43 which has helped to provide sources of the school’s doctrinal

approaches to issues for non-Mujtahid jurists of the school. According to Mohammed

Fadel, a univocal expression of Maliki doctrine was achieved with the publication of

Mukhtasar Khalil, (The Abridgment of Khalil).44 Fadel also pointed out that the

Mukhtasar of Khalil, included only legal rules, and hence served the needs of taqlid

perfectly as it only sought to clarify what is used in giving legal opinions.45 It also served

to create a sharp distinction between what was the position of the school, i.e., the rule

(hukm) of the school, and what was the opinion (qawl) of an individual jurist.46 Within

the Maliki madhab, no new mukhtasars of any importance were produced after Khalil,47

making it easy for non-Mujtahids to be appointed as judges and also maintaining Malik’s

last opinion, the mashhur, as the bedrock of the Maliki madhab.48 By this development,

Fadel concludes that Islamic law in the age of the Mukhtasars had come to occupy a

position between two extremes of judge-made law and code-law, a position Fadel says

may be likened to codified Common law.49 But, even so, many lawyers and legal

academic writers in Nigeria have insisted that precedent is unknown to Shari’a/Islamic

law.

Professor Zubair has argued that, the doctrine of stare decisis and hierarchy of courts is

unknown to pure and proper Shari’a.50

A stereotyped judgment is unknown to Shari’a. Each judge is guided by the Qur’an, the Sunnah and Ijma. The doctrine of stare decisis and hierarchy of courts is alien to pure and proper Shari’a; what is known is

division of jurisdiction of court for administrative conveniences.51

42 Ibid, p.210, citing Ibn Hisham, al-Mufid li-l-hukkam fi ma ya’rid lahum min nawazil al-ahkam, Arab

League Manuscript Institute, #35 Fiqh Malik , 3r 43 Ibid, pp.215-226 44 Ibid, p.225 45 Ibid, citing Al-Hattab, 1:24; also Hallaq, ‘From Fatwas to Furu’, 58 46 Ibid 47 Ibid, p.226, citing Ahmad b. Muhammad b. Ahmad al-Dardir, al-Sharh al-sagir, ed. Kamal Wasfi, 4 vols

Cairo: Dar al-Ma’arif, 1986, noting: ‘the work of the Egyptian Maliki jurist al-Dardir, al-Sharh al-sagir,

became a very popular mukhtasar at least for Egyptian Malikis. However, it never replaced Mukhtasar

Khalil; instead, it served as an introductory text that was studied prior to the law student’s study of

Mukhtasar Khalil at a more advanced stage of study 48 Ibid, p.233 49 Ibid 50 Zubair A. ‘Re-Introduction of Shari’a Courts in Nigeria: Some Perspectives’ in Shari’a Implementation

in Nigeria, Issues & Challenges on Women’s Rights And Access to Justice , Women’s Aid Collective, 2003,

pp. 228-246 51 Ibid

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What Professor Zubair has not explained is what constituted pure and proper Shari’a and

whether the division of courts according to jurisdiction for administrative reasons was a

horizontal division within a single territorial jurisdiction, with the effect of establishing

superior and inferior courts, or if it was a vertical division, cutting across several

territorial jurisdictions, with the effect that such division establishes courts of coordinate

jurisdiction. It is unlikely that Professor Zubair’s observation relates to a division of

courts horizontally, each hierarchy dealing with specific individually administered

subject, e.g., matrimonial causes courts; commercial matters courts etc. For, if this was

the basis of his observation, it was inevitable that the hierarchy, which he indicates as

alien to ‘pure and proper’ Shari’a would have indeed existed to maintain the supposed

administrative convenience. However, if the coordinate jurisdiction is implied by his

observation, then it is possible to seek for the ‘pure and proper’ Shari’a in line with the

argument advanced by Damaska in his work ‘The Faces of Justice and State Authority’52

Jeremy Gans53 has examined Damaska’s proposed general framework which compared

different nations’ curial procedures, first rejecting the classification of every court as

either adversarial or inquisitorial because of their apparent non-exclusivity and instead

advanced a classification associating the adjudicative procedures of a particular state with

that state’s political features.54 Thus, Damaska holds that court procedure (and, hence,

courts themselves) are creatures of politics.55 In an environment where the political

structures are not entirely put up according to the dictates of religion (Islam), the

likelihood is that the court system will not be built upon a structure according with the

dictate of the religion (Islam) and no claim can be had to any ‘pure and proper’ Shari’a.

So, if the Shari’a in a place like Nigeria is not the pure and proper Shari’a, does it not, in

its ‘impurity and improperness’ inevitably include admitting the concept of precedent?

In further advancing the argument that precedent is alien to Shari’a/Islamic law, it has

been maintained that to accept the common law doctrine of stare decisis or precedent into

the Shari’a/Islamic legal system will amount to turning Shari’a/Islamic law upside

down,56 as Shari’a/Islamic law does not require deference be given to factual findings of

previous generations of jurists.57 In Islamic law, a judge is obliged to consult the text of

the Law on each fresh question arising for the court’s decision and not merely a ruling of

a ‘superior’ court.58

52 Damaska, Mirjan, ‘The Faces of Justice and State Authority’, (1986) 53 See ‘The Faces of Islamic Criminal Justice’ available online at http://ssrn.com/abstract=1030476 54 Ibid 55 Ibid 56 Yadudu, Op. Cit., note 7, p. 133 57 Fadel, M.H., ‘Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and

International Human Rights Law’, Chicago Journal of International Law, Vol. 8 No. 1, p. 12 58 Ibid

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The kadi will look up the precise intention and the just application of the Law with respect to the matter under consideration, for a judgement is

always a special, isolated decision on details, never a general one embracing several cases.59

In his work, the Qadi is often assisted by appointed Muftis. Adewoye has claimed that the

role of Muftis in pre-colonial Sokoto Caliphate included expressing judicial opinion

based on actual cases and precedents,60 signifying that some form of precedent informs

the judicial opinions so expressed by the Muftis. It must be noted that Adewoye’s

summary of the role of Muftis was mainly to emphasize their position as learned

Mallams, deeply knowledgeable in and as expounders of Shari’a.61

The position of Gwarzo, JCA in the Chamberlain case on the issue of precedent is

emphatic: His position is that:

There is no question of relying on higher or lower court’s interpretation

when the prescription of the law is vividly clear.

In Islamic law a judge is not bound by a precedent in a case which is

similar. See commentary Mukhtasar Khalil, vol. 2 entitles ‘Jawahir al-Iklil’ page 30. Thus, if a judge gave a judgment in a case, then a similar

case came, his judgement in a similar case will not extend to a case which is similar to the one in which he gave judgment in the first instance because trying a case is non-integral, but if a similar case arose after the

first judgment between same litigants or others, independent examination is required by law from the first judge or another judge.62

Justice Gwarzo’s position on precedent in Islamic law appears to be what is generally

reflected in decisions of the Shari’a Court of Appeal which routinely distinguished

decisions of Supreme Court on the ground that the cases were not arrived at through the

procedure of Islamic law.63 Abdulmumini Oba cites64 Ndaguna Sha’aba v. Nda

Mohammed,65 Isiaka Lawal Ajia v. Alhaja Adijat Oloduowo and ors,66 and Alhaji Issa

Alabi v. Alhaji Salihu Kareem67 as cases, in which the Kwara State Shari’a Court of

59 Yadudu, Op. Cit., note 7, p. 132, footnote 30, citing Al-Khalil, in Ruxton, F.H., (trans., with summary),

Maliki Law, 1916, p.288 60 Adewoye, Omoniyi, The Legal Profession in Nigeria 1865-1962, Nigeria: Longman, 1977, p.2-3, cited in

Oba, Op. Cit., note 14, p.129 61 Ibid 62 Chamberlain v. Abdullahi Dan Fulani , supra note 11 63 Oba, Op. Cit., note 14, p.136, 64 Ibid, note 49 at p.136 65 2000 Kwara State Sharia Court of Appeal Annual Report 81 at 86 66 2001 Kwara State Sharia Court of Appeal Annual Report 100 at 102 67 2002 Kwara State Sharia Court of Appeal Annual Report 54 at 59

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Appeal distinguished the Supreme Court judgments as contrary to Islamic law procedure,

and as such, of no binding effect on the court.

The criticisms of the application of the doctrine of precedent by Yadudu68 and Ladan69 as

it appeared to be applied in the Karimatu Yakubu case gives added significance to the

issue of precedent in Shari’a/Islamic law within the present circumstances of the

Nigerian legal system. Yadudu has observed that though the processes of ‘Qiyas’

(analogical deduction) and ‘Taqlid’ (the procedure imposing obligation of following

juristic opinions of earlier juris-consults) would seem to resemble the common law

concept of precedent, they are not.70 He insists that the grades of Native and Area Courts

were innovations of colonialists and ‘were unknown to the pre-colonial judicial system’71

in northern Nigeria. The reasoning that the Native and Area Courts, and indeed the

eventual legal system within which Shari’a/Islamic law was purported to be implemented

were ‘alien’ to Shari’a/Islamic legal system should have reflected in the criticism of the

Karimatu Yakubu case since an acknowledged anomaly cannot be expected to act

normally. If it is true that the grades of courts, including the courts system eventually

bequeath Nigeria by the colonialists were alien to the Shari’a/Islamic law legal system,

should there be an expectation that the same courts would or should have actually

behaved as if they were the creation of Shari’a/Islamic political and legal system?

Professor Yadudu and Professor Ladan have given the impression that the court in

Karimatu Yakubu was a court established by the Shari’a/Islamic legal system while it

was not. They appeared to be very uncomfortable with the consequences of the appellate

court’s reliance on an earlier judgment of what was technically a court that was inferior

on the hierarchy, of an imposed judicial structure, to the Federal Court of Appeal.

Karimatu Yakubu v. Yakubu Paiko72 was an appeal from the Niger State Shari’a Court of

Appeal. One of the issues which the appellate court was asked to decide was whether a

father could lose his powers of ijbar (the right to marry off his virgin daughter to

whomsoever he wishes with or without her consent) by releasing her. The Federal Court

of Appeal held that the father could lose and forfeit the right of ijbar where he puts the

daughter to choose between options.73 According to Yadudu, Justice Uthman Mohammed

68 Yadudu, Op. Cit., note 7, pp.131-134 69 See, ‘Is judicial precedent an Islamic doctrine? Karimatu Yakubu and Anor v Yakubu Paiko’, in Law in

Society 2: 107–110, cited in Oba, Op. Cit., note 14. Also, see Ladan, Op. Cit., note 13 70 Yadudu, Op. Cit., note 7, p.131 71 Ibid, p.132 72 Supra note 10 73 Ibid

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... cited with approval the decision of the then North-Western State Shari’a Court of Appeal, curiously a lower court within the judicial

hierarchy, in the unreported case of Alhaji Isa Bida v. Baiwa. In essence, Justice Mohammed considered the earlier judgment of a Shari’a Court of

Appeal to have precedential value, with the consequence that the Niger State Shari’a Court of Appeal should have either followed or reconsidered it in deciding the Karimatu Yakubu case.74

Professor Yadudu75and Professor Ladan later,76 have argued that reliance on a lower

court’s earlier ruling was a ‘curious’ way of ‘superimposing’ an alien doctrine which had

never been referred to by lower courts or even ‘any other Shari’a Court of Appeal’ since

their establishment in Nigeria.77 They also sounded piqued that with the possibility of

available and relevant textual authority derivable from a primary source of

Shari’a/Islamic law, the Federal Court of Appeal relayed on the doctrine of judicial

precedent which is unknown to/in Islamic law.78 Both Professors did not mention which

textual authority could have guided the Federal Court of Appeal in deciding the case, but

they have eliminated the possibility of resorting to Qiyas or Taqlid from the onset. They

have instead placed the Shari’a bench at the appellate court in the capacity of Mujtahids

especially since the prevailing legal system recognised only Islamic personal law which

has remained completely uncodified.79

Three issues would seem to inform the objection to the use of an earlier decision to reach

its own decision as done by the Federal Court of Appeal in the Karimatu Yakubu case.

These issues are:

1. That the earlier decision was a decision of a court lower in hierarchy than the

Federal Court of Appeal. Unfortunately, there is a strenuous objection to a

hierarchical structuring of courts under Shari’a. As Professor Zubair has

maintained, the division of courts under Shari’a is just for administrative

convenience and not to have superior and inferior courts.80 That a hierarchy

74 Yadudu, Op. Cit., note 7, pp.132-133 75 Ibid. It does appear that Professor Yadudu published his first opinion on this subject in ‘Colonialism and

the Transformation of the Substance, Methodology and Application of Islamic Law in Nigeria’ a paper

presented during the 1986/87 Bayero University, Kano Public Lecture Series on Saturday June 6th 1987 (a

copy on file with author) and then in 1992 in the Journal of Legal Pluralism, Op. Cit., note7. 76 A paper of the same title was published by M.T. Ladan in Ahmadu Bello University’s Law and Society 2,

107-110, and also in Ladan, Op. Cit., note 13 77 Yadudu, Op. Cit., note 7, p.133; Ladan, Op. Cit., note 13, p.203 78 Ibid 79 See for instance Saudatu Shehu Mahdi, ‘Women’s Rights in Shari’a: A Case for Codification of Islamic

Personal Law in Nigeria’, in Philip Ostien, Jamila M. Nasir, Franz Kogelmann, (eds.), Comparative

Perspectives on Shariah in Nigeria , Spectrum Books, 2005, pp.1-6 80 Zubair, Op. Cit., note 50

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exists81 means that the legal system is not pure and proper Shari’a with the

consequence that the workings, including procedure may deviate from the

application of strictly pure and proper Shari’a doctrines in order to achieve the

objective of the hierarchical structuring;

2. That the advertence to precedent by the appellate court in the Karimatu

Yakubu case meant that the Niger State Shari’a Court should have either (a)

followed the earlier judgment or (b) reconsidered the earlier judgment.82 If the

Niger State Shari’a Court of Appeal had followed the earlier judgement of the

North-Western State Shari’a Court of Appeal, the judgment of the appellate

court would seem to indicate that it would have simply affirmed it and the

same criticism would have followed this affirmation. If the Niger State

Shari’a Court of Appeal had reconsidered the earlier judgment and deviated

from it either because it was able to distinguish it or cite authority from

primary sources, chances were that on a further appeal, the Federal Court of

Appeal would have (based on its decision under discussion) reversed it and

allowed the appeal. However, it is also possible that the Federal Court of

Appeal would have upheld the decision of the Niger State Shari’a Court of

Appeal if it had distinguished the unreported North-Western State Shari’a

Court of Appeal case of Alhaji Isa Bida v. Baiwa and deviated from it, in

which case, both appellate courts, in a hierarchical order, would have refused

the doctrine of precedent.

3. It does appear that according a lower court’s decision precedential value is

significant in provoking the criticism of the Karimatu Yakubu case.83 Is it then

possible that if the earlier judgement was that of a superior court of record that

the same criticism would not have arisen? When Abdulmumini Oba opined

that superior court judges would appear to arrogate to themselves the status of

Mujtahid and see lower courts judges as Muqallid,84 the legal system must of

necessity, acknowledge ijtihad and taqlid. The relationship between these two

Shari’a doctrines will enable a determination of the place of precedent in the

Shari’a/Islamic legal system.

This paper has maintained no distinction between Shari’a and Islamic law. This has

enabled a discussion of the issue of precedent in a situation where the legal system is pure

and proper Shari’a. The two cases which have been highlighted in discussing the issue

have been cases decided within the constitutional provision allowing judicial

81 Yadudu, A.H., Commentary on Ruud Peters’ paper, ‘Enforcement of God’s Law: The Shari’ah in the

Present World of Islam’, in Philip Ostien, Jamila M. Nasir, Franz Kogelmann, (eds.), Comparative

Perspectives on Shari’ah in Nigeria , Spectrum Books, 2005, p.140 82 Yadudu, Op. Cit., note 7, pp.132-133 83 Ibid 84 Oba, Op. Cit., note 14, p.122

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determination of Shari’a/Islamic personal law causes, most of which have been decided

based on uncodified Shari’a/Islamic law. By 1999, the scenario changed in Nigeria.

Several states in the northern part of the country re-introduced the criminal aspects of

Shari’a. Each of these states codified Shari’a rules into penal form to satisfy

constitutional requirements. It is yet to be determined if codification of Shari’a will affect

the concept of precedent within the Nigerian Shari’a/Islamic legal system.

Codification and Precedent

Section 6(3) of the 1999 Constitution of the Federal Republic of Nigeria has created a

hierarchy of courts, including within it, the Shari’a courts. The section provides that:

The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (i)

of this section shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior

court of record.

The courts to which section 6(3) relates, include at section 6(5) (g), a Shari’a Court of

Appeal of a State, and at 6(5)(k) ‘such other courts as may be authorised by law to

exercise jurisdiction at first instance or on appeal on matters with respect to which a

House of Assembly may make laws.’ These constitutional provisions evidently enabled

the Shari’a implementing states in Nigeria to create their respective processes of

implementation, establishing courts and assigning jurisdiction to them.85

Muhammed Tawfiq Ladan has identified three models or approaches to the

implementation of the criminal aspects Shari’a, in Northern Nigeria.86 In each of these

models, a hierarchy of courts has been maintained with prescribed sequence of appeals to

terminate at the Supreme Court.87

This hierarchy has apparently divided the courts into superior and inferior courts, with the

Area Courts (now designated Shari’a Courts) being the inferior court while the Shari’a

Court of Appeal of a State is the superior court.88 By virtue of this hierarchy,

Abdulmumini Oba has argued that judges of superior courts may now each tend to place

themselves in the position of Mujtahid solely by virtue of their being so appointed.89 If

this is acceptable, especially to Nigerian Muslim jurists, it then becomes inevitable that

85 Ibid, pp.278-310 86 Ibid, p. 286 87 Ibid, pp.287-289 88 Oba, Op. Cit., note 14, p.134 89 Ibid

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lower Shari’a courts will be compelled to observe taqlid while Superior Shari’a Courts

will practice ijtihad.90

Codified Procedural Matters and Precedent

Zamfara State, North-Western Nigeria, was the first to enact a Shari’a Penal Code Law91

and other enabling enactments for the re-introduction of the criminal aspects of Shari’a.

Section 7(i) of the Zamfara State Shari’a Courts (Administration of Justice and Certain

Consequential Changes) Law, No. 5 of 199992 stipulates that the applicable laws and

rules of procedure for the hearing and determination of all civil and criminal proceedings

before the Shari’a Courts shall be as prescribed under Islamic law, and explains Islamic

law as comprising, (a) the Holy Qur’an; (b) the Hadith and Sunnah of Prophet

Muhammad (SAW); (c) Ijma; (d) Qiyas; (e) Maslahah-Mursala; (f) Istihsar; (g) Istshab;

(h) Al-Urf; (i) Mashabul-Sahabi; and (j) Shar’u Man Kablana.

The Bauchi State Sharia Criminal Procedure Code, 200293 makes adherence to the rules

of procedure prescribed under Islamic law more emphatic, stating that where the law is

silent on any issue or criminal matter, the presiding judge is at liberty to resort to the

primary sources of Islamic law and any work of recognised Islamic jurists and proceed

accordingly.94 Also, the Bauchi Code further directs that:

A judge is at liberty to resort to any Arabic text of recognized Islamic

jurists on any procedure notwithstanding the provisions of this Code if the text to be referred to is more in conformity with the primary sources of Shari’a95

The provisions of the Qur’an, Sunnah and Ijma being the primary sources of Shari’a are supreme, accordingly any provision in this Code that is

inconsistent with any of the provisions of the said primary sources shall, to the extent of the inconsistency be void.96

90 Oba, Op. Cit., note 14, p.122 91 Zamfara State Shari’a Penal Code Law No.10 of 2000 92 Only Gombe, Jigawa, Kaduna, Kebbi, Sokoto and Zamfara States have enacted new comprehensive

Sharia Criminal Procedure Codes for application in Sharia Courts running parallel to the Criminal

Procedure Code, CPC, which still applies in the Magistrates’ and High Courts. 93 This Code essentially limits itself to the governance of trials in the State’s Sharia Courts and apparently

also allows the same Sharia Courts to continue the application of the Criminal Procedure Code, CPC if and

when they must deal with matters not covered by the brief statute governing trials before them. See

generally, Philip Ostein, et al, Shari’a Implementation in Northern Nigeria 1999-2006: A Sourcebook , Vol.

IV 94 Section 3(2), Bauchi State Criminal Procedure Code, 2002 95 Ibid, section 44(4) 96 Ibid. section 44(5)

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Ostein et al,97 have observed however, that these provisions cannot be the whole story

about the law applicable in the Shari’a Courts of these states because there are other laws

and rules, like the Shari’a Courts Laws themselves, the Shari’a Penal Codes, the Shari’a

Criminal Procedure Codes, and the Evidence Act98 which also apply in the Shari’a

Courts in criminal proceedings.99 The combined effect of these various enactments has

created a new framework for the application of Islamic law that may not fit into the

traditional construct of Islamic law adjudication where the concept of precedent is

believed to be unknown.100 It is the humble submission here therefore, that the hierarchy

of courts, established by the constitution and acknowledged by the various state

enactments on Shari’a implementation, places greater strain on the application of Islamic

law rules even in private and personal law causes.101 It becomes more problematic when

the same hierarchy of courts is expected to determine issues in Islamic criminal law from

the court of first instance to the Supreme Court.

Section 240 of the 1999 Nigerian Constitution provides for the appellate jurisdiction of

the Court of Appeal in the hierarchy of courts in Nigeria. This section provides that:

Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court

of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of

Appeal of a State, Customary Court of Appeal of a State and from decisions of a court martial or other tribunal as may be prescribed by an Act of the National Assembly.

The implication of this provision is that all appeals from the Sharia Court of Appeal of a

State lay to the Court of Appeal, regardless of the nature of the particular law deemed to

have been offended and subject matter of the appeal. It does appear therefore that though

the States implementing the criminal aspects of the Sharia have enlarged the jurisdiction

of their respective Sharia Courts of Appeal,102 such enlargement has not happened in the

case of the Court of Appeal to which appeals lay from the Shari’a Court of Appeal of a

97 Ostein, et al., Shari’a Implementation in Northern Nigeria 1999-2006: A Sourcebook , Vol. IV, p.188 98 It would appear that Ostein et al are not aware of the Evidence Enforcement (Amendment) Decree, 1991

which exempted the Sharia Courts, including the Sharia Court of Appeal of a State from strict application

of the Evidence Act; see Ibrahim Tanko Mohammed, JSC, ‘Proper Constitutional Provisions for Islamic

Rules of Evidence in Shari’ah Court’, paper presented at the 3rd National Conference of Sharia

Implementing States, held at the Zaranda Hotel Bauchi, 27th – 29th April, 2008 99 Ibid, p. 188 100 Zubair, Op. Cit., note 50 101 See Yadudu, Op. Cit., note 7, (especially his criticism of the ruling in respect of ijbar in Karimatu

Yakubu Paiko v. Yakubu Paik o); also see Gwarzo, JCA (dissenting), Chamberlain v. Abdullahi Dan Fulani

(1961–1989) 1 Sh.L.R.N. 54 at 61 102 See sections 277, 278 of the 1999 Constitution FRN

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State. It is however noteworthy that since the process of enlargement of a court’s

jurisdiction is not limited to the exact specifications in the Constitution,103 and since

jurisdiction may relate to offences or to territory,104 and can also be conferred by the

statute creating the subject-matter,105 the acknowledgement that appeals could lay and do

in fact lay to the Court of Appeal from the Shari’a Court of Appeal of a State, provides

an incentive to advance the proposition that the Court of Appeal will not decline

jurisdiction to hear an appeal arising from a criminal proceeding of a Shari’a Court of

Appeal of a State.

Although section 244 of the 1999 Constitution provides that an appeal shall lie from

decisions of a Sharia Court of Appeal to the Court of Appeal as of right in all civil

proceedings before the Shari’a Court of Appeal with respect to any question of Islamic

personal law which the Shari’a Court of Appeal is competent to decide, the Court of

Appeal will not decline jurisdiction to hear criminal appeals from the Shari’a Court of

Appeal of a State. It may only be compelled to determine the legality of the law, i.e. the

consistency of the law with the provisions of the constitution. Its eventual decision

becomes binding not only on all courts below, but will also have an impact on the

country’s legal system. This will necessarily have the effect of establishing binding

precedent on the Shari’a Court of Appeal of a State.106 This state of affairs is technically

removed from the pure and proper Shari’a wherein precedent is deemed to be

unknown.107

Muslims who prosecute or are prosecuted in the Shari’a courts may not go beyond the

Shari’a Court of Appeal, and this is likely to make the Shari’a Court of Appeal of a State

the final arbiter in Islamic criminal law causes;108 otherwise, it becomes inevitable that

any appeal to the Court of Appeal will dwell on the legality of the law, i.e., the Shari’a

Law enactments in the light of consistency with Constitutional provisions. However,

litigants charged and convicted under the Shari’a up to Upper Shari’a Court level in any

of the states enforcing the hudood may choose to challenge such conviction through the

103 See for instance, Baba Shani’s discussion of the Jurisdiction of Criminal Courts in Notes on Some

Aspects of Criminal Procedure in Northern Nigeria , Ahmadu Bello University Press, Zaria, 1988, pp.9-15 104 Ibid, p. 9 105 Ibid 106 See for instance Ojosipe v. Ikabala [1972] 1 All N.L.R 128; Johnson v. Lawanson [1971] N.M.L.R. 380

(holding this common law doctrine of precedent to have been received in Nigeria), cited in Yadudu, Op.

Cit., note 7 107 Zubair, Op. Cit., note 50, 108 Peters, Ruud, Islamic Criminal Law in Nigeria, Spectrum Books, 2003, p.17

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High Courts,109 the effect of which will also be a challenge on the constitutionality of all

Shari’a law enabling enactments, including the Shari’a Penal Code Law itself.110

The appellant in Amina Lawal111 had anticipated that seeking the nullification of Amina

Lawal’s zina conviction and sentence through the State High Court on the ground that the

application of Islamic criminal law by Katsina State was unconstitutional would have

created an uproar within the Muslim community,112 and that Amina Lawal would have

become an outcast and a disgrace to her family and society113 which is why the appellant

insisted in maintaining a cause in Shari’a/Islamic law.114 According to Aliyu Musa

Yawuri,

Amina Lawal is a Muslim; she lives in a Muslim community. She believed that the Sharia, under which she was convicted and sentenced to death,

should contain some mechanism that could allow her appeal and set her free. In other words, she yearned for legitimacy.115

The Amina Lawal appeal at the Katsina State Sharia Court of Appeal was allowed, the

judgements of the two lower courts convicting the appellant for the offence of zina were

set aside, and Amina Lawal was discharged and acquitted. Yawuri believes that the

judgement discharging and acquitting his client provided valuable guidance to the lower

Shari’a courts and [sets] valuable precedents for the future.116 Precedent may therefore

become part of Shari’a/Islamic Criminal law in Nigeria. The reality is that Nigeria’s

plural legal system weighs heavily on the side of a perceived secular orientation. This

orientation is reflected in the relationship between the Shari’a Courts and the various

Magistrates’ Courts and High Courts in Nigeria.117 Conflict between Shari’a/Islamic law

and the prevalent and apparently ‘superintending’ common law heritage is inevitable

within such an environment.

109 See section 272, CFRN 1999 110 Ibid. (The relevant provision provides that the High Court of a State shall have unlimited jurisdiction ‘to

hear and determine any criminal liability proceedings involving or relating to any penalty, forfeiture,

punishment or other liability in respect of an offence committed by any person.’) 111 Amina Lawal vs. The State, KTS/SCA/FT/86/2002, translation reproduced in Ostien et al., Op. Cit, note

(--), Vol. V, pp.52-107 112 Yawuri, A.M., ‘On Defending Safiya Hussaini and Amina Lawal’, in Ostein et al., Op. Cit., Vol. V, p.

133 113 Ibid 114 Ibid 115 Ibid. 116 Ibid, p.135 117 See for instance Garba Mai Tangaran v. Abdullahi Mai Taxi, Appeal No. BOM/5A12002, a Borno State

High Court case, which was an appeal under section 272 of the 1999 Constitution, from the judgement of

the Upper Area Court No. 2, which judgement was delivered on the 28th of June, 2002, in which the Court

held that the jurisdiction of the State Shari’a Court of Appeal can only be tempered with when the 1999

Constitution is duly amended and that the enlargement of the Court’s jurisdiction by legislation is of no

effect whatsoever.

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Conclusion

Shari’a/Islamic law in Nigeria appears to be in ‘transition’. It has already passed the

stage of ‘transformation’ foisted upon it by colonialists.118 The transformations are

evident in the nature of the court system, including an apparent hierarchical structure that

is not known to the Shari’a/Islamic legal system.119 Until 1999, the transformation of the

Shari’a/Islamic legal system was limited to the imposition of this hierarchical structure of

courts and a forced compliance to certain tests that could make superior courts reverse a

Shari’a/Islamic law ruling if the applicable law failed any of the tests.120 It is within this

period that there appeared to be a vociferous objection to the place of precedent in

Shari’a/Islamic law in Nigeria.

The new hudood enactments in Nigeria, (the Shari’a Penal Code Laws), have introduced

a streamlining of the judicial system, incorporating Shari’a Courts into existing

structures,121 and also accepting the hierarchical structure with the inevitability that

superior courts would impose their rulings on lower courts who would refuse upon the

pain of always having their judgments reversed on appeal.122 It does appear therefore that

a civil-criminal divide exists on the issue of precedent in Shari’a/Islamic law in Nigeria.

Yet, there is no indication that any of the legal academic writers in the country have

changed or modified their positions on the issue.

118 Yadudu, Op. Cit., note 7 119 Ibid 120 Ladan, Op. Cit., note 13 (discussing the repugnancy, public policy, equity and good conscience test) 121 See for instance Parts I & II of the First Schedule to the Kano State Shari’a Court’s Law, No. 6 of 2000

listing seven grades of Shari’a Courts and assigning civil/criminal jurisdiction to each 122 Section 287 of the 1999 Constitution of the Federal Republic of Nigeria provides for the ‘enforcement

of decisions’ of the (1) Supreme Court; (2) the Court of Appeal and (3) Federal High Court, a High Court

and all other Courts ‘established by this Constitution’ by courts of law with subordinate jurisdiction to

these courts.