Islamic Law and Procedure

• Pages: 555-592

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ISLAMIC LAW AND PROCEDURE

ADMISSIONS.

Effect of admission against interest in Islamic Law. “The admissionof the claim by the 1st

appellant, was against her interest. The author of Tabsiratul Hukkam Note to Fathul Ahali Al-

Malik, Volume 2 page 41 states – “Admission may be against one’s interest or anotherperson’s

interest, or both simultaneously if he makes admission against his interest .... He would not be

allowed to retract it.” – PerYahaya, J.C.A., in Kur v. Fannami Suit No. CA/J/269/2005; (2011)

1 N.W.L.R. (Pt. 1228) 287 at 298.

Effect of admission under Islamic Law. “The position of Sharia is that, where a sane adult

person, free from any interdiction, makes an admission in a civil suit, he is bound by his

admission. The Prophet (PBUH) is reported to have said:

Translation: Admission/confession is a better form of evidence than witnesses. The authority

cited by the trial Court in this respect is also quite apposite here:

Translation: An adult free of interdiction is held liable for his admission. See: Khalil, Jawahir

al-lklilVol.2 p. 132, The plaintiff made admission that the house was not owned by his father.”

– PerI.T. Muhammad, J.C.A., in Hamza v. Yusuf Suit No. CA/K/12/S/1995; (2006) 10

N.W.L.R. (Pt. 988) 238 at 253.

Treatment of admission in Islamic Law. (1) “In Islamic Law, ‘admission’ is certainly one of

the means of proving a claim, contrary to the submission of learned counsel for the appellant.

I refer to Ruxton on Maliki Law at page 210, where the learned author opined thus - “The Judge

will not enter judgment in favour of any of the litigants until after the claimant has stated his

case. The Judge will then ask the defendant to respond to it: If he (the defendant)admitsthe

claim, then there is no problem, but if he denies, the plaintiff shall be called upon to adduce

evidence in proof of his claim.” – PerYahaya, J.C.A., in Kur v. Fannami Suit No.

CA/J/269/2005; (2011) 1 N.W.L.R. (Pt. 1228) 287 at 298. (2) “Admission is regarded as the

best form of evidence as it is from a direct source, as seen from the prophetic hadith which says

“Admission is a better form of evidence than the calling of witnesses to testify.” – PerYahaya,

J.C.A., in Kur v. Fannami Suit No. CA/J/269/2005; (2011) 1 N.W.L.R. (Pt. 1228) 287 at 299.

When admission or iqrar acceptable in Islamic Law. “The position of Ruxton that admission

is recognized by Islamic law as judicial proof, has been applied by the Supreme Court in Hada

v. Mulumfashi (supra)where Wali, J.S.C. at pages 14 - 15 of the report held - “It is trite law in

Shariah that a free admission made by a mature and sane person against his interest in favour

of another is binding and enforceable against the maker. See pages 39 - 40 Vol. 1 Fathul Aliyyal

Malik wherein admission is given the following definition and effect: ‘Admission is a binding

declaration by its maker in favour of another. It must be clear and devoid of ambiguity’ Also

in Bidayatul Mujtahid Vol. II page 352 it is stated that: ‘Where an admission (its wording and

context) is clear, it is binding on the Court to act upon it.’From this authority, it is clear that

for admission or ‘Iqrar’ to be acceptable, it must have been clear, unambiguous, made by a

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person of sound mind, without compulsion. InBaba v. Baba(1991) 9N.W.L.R. (Pt. 214) 248.

The Court of Appeal per Okunola, J.C.A. of blessed memory, held that “The position under

Islamic Law is similar to that of common law in that a confession or admission by a sane adult

binds him. SeeMuktasar KhalilVol. 11 P133.” See AlsoWali v. Ibrahim(1997) 9N.W.L.R..

(Pt.519) 160at 168.” Therefore, once the admission was forced out of the party, or that he was

not sane or was not an adult or is ambiguous so that it cannot be properly deciphered, then

judgment cannot be entered on its basis. SeeSirajus Salik, Sharhu As - Halul Masalik of Sayyid

Uthman Al Maliky Vol. II P 162.” –PerYahaya, J.C.A., in Kur v. Fannami Suit No.

CA/J/269/2005; (2011) 1 N.W.L.R. (Pt. 1228) 287 at 298 - 299.

BURDEN OF PROOF.

Burden of proof on plaintiff in a claim in respect of moveable and immoveable property

under Islamic Law. “It is an established general principle of Islamic Law, for both moveable

and immoveable property, that the claimant as the plaintiff, in order to discharge the burden of

proof on his shoulders, must present in Court, two male unimpeachable witnesses; or one male

witness and two female unimpeachable witnesses; or one male with a claimant’s Oath; or two

females with a claimant’s Oath. Where the plaintiff fails to bring the witnesses in proof of his

claim, the defendant, if he denies the claim, would be givenan Oath of denial to discharge

himself from the plaintiff’s allegation. See page 34 of Ihkamul Ahkam, short Commentary on

Tuhfatul Hukkam of the English translation; Beli v. Umar(2005) 12N.W.L.R. (Pt. 939) 325at

335 C-D;Baba v. Aruwa(1986) 5N.W.L.R. (Pt. 44) 774at 786;Hada v. Malumfashi (1993)

7 N.W.L.R. (Pt. 303) 1at 17C andNasi v. Haruna(2002) 2 N.W.L.R. (Pt. 750) 240.” – Per

Yahaya, J.C.A., in Kur v. Fannami Suit No. CA/J/269/2005; (2011) 1 N.W.L.R. (Pt. 1228) 287

at 296 - 297.

Burden of proof under Islamic Law. (1) “It was held inShittu v. Biu, Sharia Law Report p.

39 that in both English procedure and Islamic law procedure, the burden of proof is the same,

that is to say, he who asserts must prove. In the instant appeal, the burden was on the plaintiff,

i.e. respondent, to adduce evidence in proof of his case.” – Per Orji-Abadua, J.C.A., in Gezoji

v. Kulere Suit No. CA/K/82/2009; (2012) 4 N.W.L.R. (Pt. 1291) 458 at 476 - 477. (2) “The

principal issue involved in this appeal is rested upon the claim that the child delivered by the

respondent was delivered within a period under the minimum gestation period and that medical

report confirmed that. I shall come back to the issue of medical report and its’ probative value

in due course. Let me however recapitulate the episode, leaning more on whatthe appellant

said in course of his explanations and the evidence he called as contained in the record of appeal

before this court. Even though he was the defendant at the trial Court, the burden to prove his

allegation that he did not have sexual intercourse with his wife squarely rested upon his

shoulder as this assertion now turns him to be a plaintiff. The Prophet (PBUH) has laid down

the principle:- ******** Translation:- Burden of proof is on the one who alleges

(plaintiff).Oath is on the (denier) defendant. (Hadith of the ProphetSAW).” – Per I.T

Muhammad, J.C.A., in Rabiu v. Amadu Suit No. CA/K/123/S/92; (2003) 5 N.W.L.R. (Pt. 813)

343 at 364.(3) “The principle of law laid by the Prophet is that a claimant must establish his

claim.” – Per I.T. Mohammed, J.C.A., in Usman v. Usman Suit No. CA/J/242/S/99; (2003) 11

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N.W.L.R. (Pt. 830) 109 at 137.(4) “When a plaintiff has no evidence to establish his claim, the

claim is dismissed straight away. Translation: It is the plaintiff that is required to establish his

claim by evidence in all circumstances. (See: Almayyara, Vol. 1 page 19) Thus, where there is

no evidence to prove a claim the law requires that the claim be dismissed.” – Per I.T.

Muhammad, J.C.A., in Maiwake v. ModuSuit No. CA/J/258S/98; (2007) 13 N.W.L.R. (Pt.

1050) 167 at 183 - 184.(5) “The present appellants were the respondents at the lower Court

and defendants at the trial Court. However, by their response to the complaints placed by the

plaintiffs before the Court, they automatically became the plaintiffs and the plaintiffs (original)

became the defendants. Such a thing seldom happens under Islamic Law dispensation. See

Almayyarah Commentary on Tuhfatul Hukkami, Vol. 1 page 18. By their new position,

therefore, the (defendants) plaintiffs have theonus on their shoulder to prove that the houses

in their possession were given to them as gifts by their late father.” –Per I.T. Muhammad,

J.C.A., in Safeti v. Safeti Suit No. CA/K/282/S/2000; (2007) 2 N.W.L.R. (Pt. 1017) 56 at 67.

CLAIM UNDER ISLAMIC LAW.

How to state claims under Islamic Law.“One of the underlying principles of civil procedure

rules of Islamic law is that every claim must be stated in clear unambiguous and categorical

terms.” – Per Orji-Abadua, J.C.A., in Gezoji v. Kulere Suit No. CA/K/82/2009; (2012) 4

N.W.L.R. (Pt. 1291) 458 at 475.

Need to determine separately claim and Counter-claim under Sharia Law.“Although it is

not procedurally wrong under sharia to take such claims together, it would have been much

easier for the trial Court if they were taken separately. This would have obviated unnecessary

duplications and confusions encountered on the record.” –PerI.T. Muhammad, J.C.A., in

Hamza v. Yusuf Suit No. CA/K/12/S/1995; (2006) 10 N.W.L.R. (Pt. 988) 238 at 251.

CONFESSION.

Treatment of confession under Islamic Law. (1)“A sane and adult Muslim stands

responsible and answerable to all his deeds or misdeed. Secondly, where he makes a free and

voluntary confession, he is bound by his confession which is even regarded to be a better form

of evidence than calling of witnesses. See: Jawahir Al-lklil, Sharh Mukhtasar Al-Khalil, Vol.

11 bySheikh Salih Abd Alsami Al-Ashari, page 132;Wonaka v. Sototo N. A. (supra).” – Per

Muhammad, J.S.C., in Kaza v. State Suit No. S.C. 212/2004; (2008) 7 N.W.L.R. (Pt. 1085) 125

at 198 - 199. (2)“A sane and adult Muslim stands responsible and answerable to all his deeds

or misdeed. Secondly, where he makes a free and voluntary confession, he is bound by his

confession which is even regarded to be a better form of evidence than calling of witnesses.

SeeJawahir Al-iklil, Shark Mukhtasar AI-Khalil,Vol. II by Sheikh Salih Abd Alsami Al-

Azhari, page 132,Wonakci v. Sokoto N.A. (supra).” – Per Muhammad, J.S.C., in Shalla v. State

Suit No. S.C. 245/2004; (2007) 18 N.W.L.R. (Pt. 1066) 240 at 297.

COURTSHIP.