THE PRINCIPLES OF EQUITY: A REPLICA OF THE PRINCIPLES OF SHARI’AH BY ABDULKADIR HARUNA INUWA

Every society is said to prosper always where there are effective and enforceable rules and regulations. Before the coming of the Noble Prophet of Islam, Muhammad (SAW), people lived in a lawless and dark period (otherwise known as Jahiliyyah). Dark period because of the barbaric and inhumane acts that have taken place. It does not mean that there were no laws in the Jahiliyyah period, no. But the laws were not effective and were also harsh and inhumane. Time went on for many years. At one point in time the last and leader of the prophets and messenger of Allah, that is, prophet Muhammad (SAW) emerged. The prophet (SAW) was sent to the generality of mankind to right the wrongs in the society, and he was also sent as a blessing and mercy to the generality of mankind.

‘’ We sent thee not, but as a mercy for all creatures’’  - Q21:107

On the other hand, England, like the ancient community of Arabs, had a set of principles or rules which were formed based on the common practices of the people of England. This is otherwise known as the ‘Common Law’. The Common Law, like that of the Jahiliyyah period of the Arab, was very rigid and harsh, full of injustice, unfairness and lacuna. As time went on, the people of England started lodging complaints and petitions to the king of England seeking for his intervention to remedy them when injustice is been done to them. The king was initially dealing with the complaints and petitions personally. However, as he became more committed and engaged, the king assigned his secretary (otherwise known as the CHANCELLOR) to deal with the petitions and complaints who would use his sense to arrive at a conclusion that appeared right to him without any recourse to the Common Law courts. As the petitions started to become too much, the king now started appointing Church Heads to take care of the petitions and complaints who in turn dealt with the petitions based on their thinking of what was right, fair and just with the aim of softening the rigidity and harshness of the Common Law and also to fill the vacuum left by the Common Law.

 

EXEMPLIFICATION OF SOME EQUITABLE PRINCIPLES UNDER THE SHARI’AH

The Islamic law (Shari’ah) has some principles that are always applied to solve problems whenever the need arises. These principles could be found in the major sources of Islam- Qur’an, Sunnah, Ijma’a and Qiyas. On the other hand, Equity also has some principles that are always applied in solving problems. These principles are usually found in the ‘Equitable Maxims’.

1.    Equity looks at that as done which ought to be done. This can be exemplified in the following prophetic hadith:

‘’Actions are judged according to intentions’’

Under the Shari’ah once a person intends to do an act which is good, a reward is written for him. But however, if a person intends to do an act which is prohibited, a sin will not be written for him unless he acts. Now, under the common law, if a person intends to do something like enter into a contract, Equity will assume that, that contract has already been entered. For example, Equitable mortgage, estate contracts and conversion.

 

2.    Equity looks to the intent rather than to the form. This can be exemplified in the following hadith:

‘’verily, Allah does not look at your bodies nor structures. But he looks at your hearts and deeds…’’

Under the Shari’ah, Allah is not in any way concerned with the structure of His creatures. He is only concerned with their intentions and deeds. Allah says:

‘’… Verily, the most honoured of you in the sight of Allah is (he who is) the most righteous of you…’’

On the other hand, equity is always after fairness and justice. Under this maxim, in a situation where a person enters into a contract where he is bound to pay some amount of money at a stipulated time, and later on he fails to pay (perhaps for some reason), equity would not allow the contract to terminate (because of the time clause) as far as it can be proved that the person has the intention of paying the said amount.

 

3.    The doctrine of satisfaction.

Under the Shari’ah, if a person is found guilty of committing two capital offences concurrently and which by their nature carry Hadd (prescribed punishment), it is said that, the most grievous punishment shall be inflicted and it shall satisfy the less grievous one. For instance, where a person commits murder and theft which carries execution and amputation of arm respectively, the execution could be inflicted only and it could satisfy the amputation. Under the common law, if a person owes another person some amount of money, and if the creditor wills or gives out an amount of money higher than the debt to the debtor, it is presumed that the higher amount (which is the will or gift) satisfies the debt.

 

CONCLUSION

It is very pertinent to state that, both Shari’ah and equity did not condemn the principles of Jahiliyyah and common law in their entirety. Rather, they accepted some, modified some and rejected some, as well. One of these instances is the sacredness of some four calendar months (Muharram, Rajab, Dhul Qa’adah and Dhul Hijjah) during Jahiliyyah period in which all forms of war or violence were prohibited. Subsequently after the coming of Islam, this principle was maintained. Allah says:

‘’The number of months in the sight of Allah is twelve (in a year) - so ordained by Him. The day He created the heavens and the earth; of them four are sacred: that is the straight usage. So wrong not yourselves therein…’’ - Q9:36

On the other hand, it is said in one particular equitable maxim that ‘’Equity follows the law’’. This means that equity follows some common law principles that are void of injustice and unfairness.

 

 

ABDULKADIR HARUNA INUWA is a 400 Level law student at Faculty of Law, Bayero University, Kano- Nigeria. He can be reached via:

+2348136950201 OR abdulinuwa2017@gmail.com OR FACEBOOK: Abdulkadir H Inuwa OR WHATSAPP +2348136950201

REFERENCES

1.    Abdullahi, Y. A: The Holy Quran- Text, Translation and Commentary

2.    Sahihul Bukhariy

3.    Kodilinye, G: Introduction To Equity In Nigeria