The Legal Implication Of A Will And Estate Disposed And Distributed Under Islamic Personal Law By A State High Court: A Rebuttal To The Submission Of JOHN, OVUNDAH WISDOM

By Gobir Habeeb Bolaji

INTRODUCTION

Sometimes around 8th day of July, 2020, a renowned friend and brother, Mr Rilwan Saidu Salihu (hereafter ” first writer”) published an article titled: The Legal Implication of A Will and Estate Disposed and Distributed Under Islamic Personal Law by a state High Court. The article was sent to me by one of my good friend, and i had the grace of reading the article from the beginning to the end. For ease of reference, here is the link to the article: https://www.barristerng.com/the-legal-implication-of-a-will-and-estate-disposed-and-distributed-under-islamic-personal-law-by-a-state-high-court-by-rilwan-saidu-salihu/.

Not quite long, i received yet, another article published by another friend of mine, W.O.J Ovundah ( Hereafter ” Second writer“) as a  rebuttal to the article written by Rilwan Saidu Salihu. I couldn’t resist the eagerness burning in me to read the rebuttal which i did. For ease of reference, here is the link to the article as written by W.O.J Ovundah: https://thenigerialawyer.com/re-the-legal-implication-of-a-will-and-estate-disposed-and-distributed-under-islamic-personal-law-by-a-state-high-court-another-view/.

Upon a proper perusal of both articles, i find some of the submission made by the first writer to be more in tune with the law( though with some little flaws) as against the rebuttal made by the second writer. Hence, the need to substantiate the submission made by the first writer birthed this article. For the readers to get the full gist of this work, a summary of the submission made by both writers in their articles  is made available below:

FIRST WRITER SUBMISSION

Mr Rilwan S. Salihu in his work, started by condemning the common practice in some States where parties in Islamic related matters cases were given the option to submit their dispute to a State High Court in the absent of a sharia court of appeal in that state.  He kicked against this practice by cutting a clear distinction between the jurisdiction of the Sharia court of appeal ( Hereafter SCOA) and that of a state High court(hereafter SHC). He argued that parties cannot confer jurisdiction on a court. He  further explained that the jurisdiction of SCOA is exclusive and same cannot be shared with SHC. He supported this with the Court of Appeal decision in Salev.Mohammed(2005)FWLR(pt.256)p.766@ 777,. He proceeded with his submission, that by the provision of S. 277(1) of the 1999 constitution, matters relating to Islamic personal law was made exclusively for SCOA. He further supported his view on the basis of the requirements a judge must possess before he can adjudicate on Islamic related issues. He explained that judge of a SHC does not have this requirements, and as a result, it further made the jurisdiction of SCOA exclusive and can’t be shared. By way of extension of argument, he  emphasized that states that are yet to established a SCOA ought to do so as an alternative, rather than taking the case to state High Court. He used the numbers of Muslims  in the state as a metric.

SECONG WRITER REBUTTAL

W.O.J OVUNDAH, in his rebuttal criticized the metric used by the first writer( the numbers of Muslim community in that state)  in determining the establishment of SCOA in any state of the federation. According to the second writer, in his words, the metric for determining the existence or otherwise of a SCOA is highly discretionary and not mandatory. He relied on the wordings used in S.275(1) CFRN which provides thus: ” there shall be for any state that desires it a shariah court of appeal for that state.” On the basis of this provision, he strongly submitted that failure of any state to create a SCOA (even where we have a substantial numbers of Muslims ) is not illegal as argued by the first writer. He further submitted that the intention of the framers of our law by providing for the SCOA, was only to accommodate adherents of the Islamic faith with respect to a Judicial system having a similitude with their belief and nothing more.

On the basis of exclusivity of the jurisdiction of SCOA, the second writer submitted in the contrary, that the omission by the legislators to include any phrase that suggests the exclusivity of the court on appeals as contained in s.277(2) CFRN would mean that the said appellate jurisdiction of the court is shared with and by the SHC. To support this, he made contrast to the provisions of ss. 272(2), 277, 232, 233, 239, 240, 251 CFRN. He submitted, that the fact that  judge of the SHC are not learned in Islamic personal law is immaterial.  He concluded that where a state fails to create the SCOA, litigants would not be frustrated given the lack/non-existence of the SCOA, as they can approach the SHC to have their disputes resolved. Also, that even where the court exist in the state, parties are still at liberty to opt for regular hearings by traditional courts, irrespective of the specialization of the SCOA Judges in Islamic law or the litigants being all Muslims.

THE REBUTTAL TO THE SECOND WRITER SUBMISSION

In as much as i perfectly understand how big the fountain of the stream of argument of the Second writer is, the fact just remain that, same with more is insufficient to justify his submission. First off, I must acknowledge his reasoning and submission. In fact, some of his submission threaded the right path and paint a portrait of what is obtainable in our laws. But then, there is need to clarify some misdirection in his submission.

ON THE BASIS OF EXCLUSIVITY

I have a dissent view on his argument on this aspect. In his words, the second writer said:

” the omission by the legislators to include any phrase that suggests the exclusivity of the court on appeals as contained in s.277(2) CFRN would mean that the said appellate jurisdiction of the court is shared with and by the SHC.”

He then contract the provision of s. 277(2) CFRN with ss. 272(2), 277, 232, 233, 239, 240, 251. For ease of reference, section 277(1&2) CFRN provides thus:

” The sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal Law which the court is competent to decide in accordance with the provisions of subsection (2) of this section.

(2) For the purposes of subsection (1) of this section, the sharia Court of Appeal shall be competent to decide –

(a) any question of Islamic personal Law regarding a marriage concluded in accordance with that Law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant;

(b) where all the parties to the proceedings are muslims, any question of Islamic personal Law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a founding or the guarding of an infant;

(c) any question of Islamic personal Law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a muslim;

(d) any question of Islamic personal Law regarding an infant, prodigal or person of unsound mind who is a muslim or the maintenance or the guardianship of a muslim who is physically or mentally infirm; or

(e) where all the parties to the proceedings, being muslims, have requested the court that hears the case in the first instance to determine that case in accordance with Islamic personal law, any other question.

Admittedly, the word exclusive wasn’t used by the framers of the constitution in the above section. But that notwithstanding, it doesn’t mean that the jurisdiction of SCOA can be shared with SHC as argued by the second writer. Here in Nigeria, there is no court in existence (with the exception of court of appeal) that have the required constituted authorities to hear appeals on matters relating to Islamic personal law except the Sharia court of appeal. Does that not suffice to make the jurisdiction of SCOA exclusive? The State High court is not excluded from court that lacks the required constituted authorities to hear appeals bordering on Islamic personal law. High court judge did not possess the required qualification. How then can we reasonably agreed that it can share jurisdiction with the SCOA?  Little wonder the learned justices of the court of appeal in the case of Sale Vs Mohammed ( 2005) FWLR (pt. 256) p. 766@ 777 have this to say:

” The shariah court of Appeal to the exclusion of High court of a State has jurisdiction on Islamic personal law of succession and gift.”

Again, there is a place where the second writer contrast the provision of S. 277(2) with S. 272(2) CFRN. For ease of reference, s. 272(2) provides thus:

” The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”

He argued that from the wordings used in the above section, the jurisdiction of the SCOA(islamic personal law)  is caught by the general jurisdiction of the SHC. He however failed to appreciate the fact that our laws of today rested squarely on pages of code. The inclusion of one is the exclusion of others. The inclusion of Islamic personal law into the general jurisdiction of the SCOA is an exclusion of same from the general jurisdiction of SHC on matters that originate in that state. The provision of S. 272(2) is not a blanket rule as canvassed by the second writer. In fact, it cannot be said that, it is the intendment of the framers of our constitution to include matters that was specifically listed under the jurisdiction of SCOA to the general jurisdiction of SHC. While the provision of S. 272(2) serve as a general rule to the general jurisdiction of SHC, S. 277(2) is an inevitable exception to same. The framers of the constitution can never have it in their contemplation to include matters that cannot be handled by a SHC properly into it jurisdiction.

In another paragraph, the second writer in his words said:

” We submit that it is Immaterial that the Judge of the SHC isn’t “learned in Islamic law”, although it is desirable that the adjudicator be learned in Islamic law. ”

The above submission was not only made erroneously, but also kick against logic and reasoning. This is coupled with the fact that the submission was not based on any authority. If there is anything more appropriate to explain the meaning of injustice, it is a system that allows you to take a case before a judge that has zero knowledge on the areas of dispute brought for settlement. Why then should we considered the qualification of the judge to be immaterial?  It is not in doubt that justice cannot be done to any islamic related cases by the judge of the SHC. At the end, the matter will have to be taken to court of appeal for proper resolution. This is nothing but a clog in the wheel of the justice system. The writer himself alluded to this standpoint in his work where he said:

” Furthermore, we submit that given that the SHC isn’t the final appellate authority, whatever seeming contradiction that may exist can be properly corrected at the Court of Appeal, where some Justices are required to be learned in Islamic personal law.”

When it is obvious that the case would better be resolved by a court with constituted authorities, why then should it be taken to a court that is lacking same? All these  invariably made the jurisdiction of SCOA  exclusive and can’t be shared with SHC as argued by the second writer.

ARGUMENT ON THE BASIS OF METRIC

On this aspect, the second writer is right on some of the salient point raised. An example is the issue of discretion of state to create SCOA. Yes. From the wordings of S.275(1) establishment of SCOA is highly discretionary. It is meant for state that so desire for same. The matric, as a matter of law is not on the basis of population as argued by the first writer. This, i must say is the only flaws in the argument of the first writer. But then, if we look at the argument of the first writer from another angle, one will see some sense in it.

Let me start by saying that there is a need for a quick amendment of the provision of 275(1) CFRN. The establishment of SCOA in a state should not be made a matter of discretion for state. It should rather be made on the basis of the numbers of Muslims in that state as opined rightly by the first writer. What is the essence of a law that lacks the facilities for it enforcement? When you made the establishment of SCOA to be discretional, is as good as rendering Islamic law obsolete. It is another way of subjecting the application of Islamic law to the discretion of states which is wrong. The second writer in his words said:

“The whole essence of the establishment of SCOA is to accommodate adherents of the Islamic faith with respect to a Judicial system having a similitude with their belief and nothing more.”

Even if the above assertion represent the intendment of the framers of the constitution (which is not), does our Justice system which made the establishment of SCOA discretionary accommodate adherents of the Islamic faith?  The answer to this is a resounding “NO”

Making the establishment of SCOA to be discretionary violate the provision of S. 6(6) CFRN that provides for free access to court. Failure to established SCOA in a state where we have Muslims is an indirect way of compelling them to chose SHC as an alternative. The numbers of Muslims in that state should be the metric as against discretion. By so doing, it doesn’t paint a particular state to be an Islamic state (secularism). Islamic law is part of our law in Nigeria and the application of same should not be made a matter of discretion for state to decide. I will suggest that the appropriate authority should call for a quick amendment of S. 275(1). Establishment of SCOA should be on the basis of substantial Numbers of  Muslims in a state ( which need not to be predominant) as against discretion.

CONCLUSION

In conclusion, i strongly aligned myself with the submission of the first writer on the exclusivity of the jurisdiction of the Sharia court of appeal. I however disagreed with the submission of the second writer on this issue. His argument as to include the jurisdiction of Sharia court of appeal into the general jurisdiction of state High court holds no water. However, i will align myself with the submission of the first writer on issue of metrics. His argument is basically what is obtainable in our laws. But then, i will recommend a quick move on the argument of the second writer on issue of metrics which centered around the numbers of population of Muslims. His argument , though failed to represent the position of the law, it still represent the appropriate metrics that should be followed. His argument on metrics is a clarion call to all.

Gobir Habeeb Bolaji is a penultimate law student of Usmanu Danfodiyo University. (Writing from kwara state). He can be reach via:08108527278, Habeebgobir2@gmail.com