ISLAMIC LAW AS A CUSTOMARY LAW: CLARIFYING THE DICHOTOMY THROUGH A SURGICAL LEGAL ANALYSIS
By
Muhibudeen, Qosim Atanda
1.0 Introduction
It has been a long battle, drawing a distinction between Customary Law and Islamic Law as a separate stream of law. Customary Law is said to stem from the long usage, common adoption and actuation by a set of people belonging to a particular geographical location and has the accepted force of law and bindingness among them. Islamic law (or Muslim Law, as it is otherwise called), on the other hand, gains its force of law from sacred sources of Islamic Law, namely the Glorious Qur-an and the Sunnah (practices of the prophet). I have seen many write-ups trying to clarify the issue but without clarifying the root and basis which led to the placement of both distinct sets of laws on the same footage in the first place. This piece is only intended to fill this gap and make clear the fundamental underlying issue relating thereto, drawing authorities strictly from decided cases and applicable legislation. It is, however, important to state, at this earliest stage, that the move of equating Islamic Law and Customary Law, placing them on the same footing, does not arise, after independence, until the coming into force of the Northern Nigerian Native Courts Law[1] – a replica of the Native Courts Law.[2] This was further retained in section 2 of the High Court Law.[3] And now, the question to ask is whether this same law is still in existence or whether there are still in force any other similar provisions giving credence to the equal status of Islamic law and customary law, which shall be concisely addressed in this write-up.
2.0 Legal Meaning of Customary Law and Islamic Law
The definitions of Islamic Law and Customary law are very notorious and widely known to both the blind and deaf. As such, much ink shall not be wasted on an attempt to define the two systems of law. The definition of 'Customary Law' in various Customary Court and Customary High Court laws as 'the rule of conduct as established by custom and usage' is incapable of including 'Moslem Law'. Authoritative in this respect is the decision of the Supreme Court in Usman v. Umaru,[4] where the learned wise men of the apex court held clearly thus:
It is clear from the foregoing that in its ordinary meaning and within the meaning of section 2, "Customary Law" does not include "Moslem Law". It is only by virtue of specific provision in a Law, such as section 2 of the High Court Law, Cap 49, the Laws of Northern Nigeria 1963 which provided that "native law and custom includes Moslem Law", that Moslem Law is regarded as native law and custom.
Still, without wasting much ink, the clarity given by the Supreme Court in Usman v. Umaru (supra) is apt to finally put to rest attempt on the definition of Customary Law and Islamic Law where their Lordships stated clearly stated thus:
...the definition of "Customary Law" in section 2 of the Customary Court of Appeal Law which means "the rule of conduct as established by custom and usage (Italics mine)" is incapable of including "Moslem Law". Since the decision in Lewis v. Bankole 19081NLR 81 at 100 customary law has been stated to be the unwritten customary law recognised as law by the members of an ethnic group and it is "a mirror of accepted usage".
By and large, Islamic Law is rigid and does not obtain validity from the people subjected to it but from what the Glorious Qur-aan and the Sunnah, i.e., the traditions, of the holy prophet (the two main sources of Islamic Law) provide, and it is universally applied as held in Alkamwa v. Bello.[5] Customary Law, on the other hand, is flexible and needs accentuation by the people subjected to it, which must be coupled with proof.
3.0 Islamic Law as Customary Law: The Clear Exposition
For the first time, section 2 (the interpretation section) of the Northern Nigerian Native Courts Law[6], introduced a provision which placed Islamic Law on the same status as Customary Law. The section provides that Customary Law includes Islamic Law. Importantly, the High Court Law,[7] built on the model of the Northern Nigerian Native Courts Law,[8] also retained section 2 thereof with slight changes in the nomenclature of the court from 'sharia court' to 'area court'. The then Area Court, by virtue of the law, possesses jurisdiction to administer customary law (including Islamic law) generally. However, notably, in the Southern States, there is no provision of the law equating Islamic law with Customary Law. The case of TIMOTHY TANLOJU ADESUBOKAN v. RAZAKI YUNUSA[9] is very direct and instructive here, as the court iterated thus:
...there is no provision, to our knowledge, of any law which makes Moslem law, whether of the Maliki sect or any other sect, enforcible, either on its own, as such, or as part of any customary law, in any of the courts of the Southern States.
The above holding even seems not to recognise the existence and application of Islamic Law in Southern States. This is far from being the position of the law, as the decided case of Asiata v Goncallo[10] already affirmed the recognition and application of Islamic Law in the Southern part of the country, including Lagos State, following the principle of the law that 'the way of life of the parties is a major determinant factor for ascertaining which law should apply'. The application of Islamic Law, unlike Customary Law, does not depend on geographical location.
Further to this, the provision of various Customary Court Laws and High Court Laws, in addendum, provided the criteria for the application of Customary Law which includes Islamic Law by the express provision of some laws most especially in Northern Nigeria. The criteria are nothing but the notorious twin test of repugnancy and incompatibility, which all customary norms and practices are being subjected to before being upheld by the Court. The origin of the twin test traces back to the coming into operation of Section 19 of the Supreme Court Ordinance of 1876 which provides that:
Nothing in this ordinance shall deprive the Supreme Court of the right to observe and enforce the observance, or shall deprive any person of the benefit of any law or custom existing in the said colony and territories subject to its jurisdiction, such Law or Custom not being repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any enactment of the Colonial Legislature.
The above provision is not alien to our jurisprudence, a sequel to the introduction of the English Law in the system of this country by the colonials. However, the question one needs to ask further is on the extent of its application. Does the twin test of repugnancy and incompatibility doctrine applicable to Customary Law also apply to Islamic Law? The answer to this may appear to be an outright 'Yes'. This logically, and indeed, by community reading of other provisions of the laws regulating the application of Customary Law, reveals that Islamic Law is to be subjected to the twin test before its application in the same way and manner that Customary norms and practices would be subjected to the same before enjoying legal recognition. However, upon further research, study and clarification, one would come to a contrary conclusion. Flowing from the above little expositions, it has been understood that prior to the enactment of the Northern Nigerian Native Courts Law 1956,[11] Islamic Law operated as a distinct system of law different from Customary norms and practices even after years of the existence of the colonials in Nigeria. Its operation was, albeit, regulated gradually before 1956, when, for the first time, Islamic Law was placed on the same footing as customary law. Since then, various states in the North, including the Federal Capital Territory, Abuja, have been retaining the provision in their respective High Court Laws.
The next important question would be: is the status of Islamic Law under the relevant provisions of the Northern Nigerian Native Courts Law[12] and the High Court Law[13], still the same under the current Nigerian legal framework?
The point should be reiterated once again that, in the whole Southern part of the country, there has not been and there is no law subjecting the application of Islamic law to the rules guiding the application of Customary Law reference to the quoted holding of the Supreme Court in Timothy Tanloju Adesubokan v. Razaki Yunusa (supra). An answer to this needs thorough research and investigation on the extant applicable laws in jurisdictions faced with the internal conflict of law. There is no doubt that the Northern Nigerian Native Courts Law,[14] and the High Court Law,[15] are no more in operation by their repeal. While the latter repealed the former, the latter has been equally repealed by various respective state laws. Thus, reaching a conclusion on the status of Islamic law as a Customary Law depends on the relevant laws in each jurisdiction.
Starting from Jigawa State, one of the Northern States, the repealed Northern Nigerian Native Courts[16], and the High Court Law,[17] formerly applied. The Jigawa State High Court Law CAP H2, 1998, which defined Customary Law as including Islamic Law, has been erased totally by the Jigawa State High Court Law.[18] This, other states are equally following suit. The same applies in Kano State.
It is important to, in addition, state that some northern states with dual application of both the Customary Law and the Islamic Law, as in the case of Plateau State and other related states, including the Federal Capital Territory, Abuja, have separate enactments for the two systems of law. In the Federal Capital Territory, Abuja, for instance, there are in existence the Federal Capital Territory Customary Court Act,[19] and the Area Courts Act,[20] which has now been repealed by the Federal Capital Territory Area Courts (Repealed Enactment) Act.[21]
5.0 Conclusion
The question of Islamic Law being on equal strength as Customary Law only arises as to the operation of Islamic Law in the northern part of the country. It appears that the equal treatment of Islamic Law as a species of Customary Law by virtue of the provisions of the Northern Nigerian Native Courts Law[22] and the High Court Law,[23] cannot in the present time stand the test of law. The author further argues that even where there are still similar provisions in any of the states in which the two Laws formerly applied or any other states within the Federation, such law or laws cannot still stand the test of law, not even on the ground of inconsistency with the Constitution. However, looking at the scope of this instant piece, it will not be convenient to address such an issue here. As such, there will be continuous discussions on the application of Islamic Law within the Nigerian legal framework.
About the Author:
Muhibudeen, Qosim Atanda is a final-year student of Common and Islamic Law at the Faculty of Law, Bayero University, Kano, and a web developer. He is an ardent legal researcher & writer and has keen general law practice and tech. He can be reached via muhibqosim@gmail.com or 09037074761.
[1] 1956, Cap. 78, s. 2
[2] 1956 (N.R. No. 6 of 1956)
[3] Cap 49 Laws of Northern Nigeria, 1963
[4] (1992) 7 NWLR (Pt. 254) 377
[5] (1998) 8 NWLR (Pt. 561) 173
[6] Ibid
[7] Ibid
[8] Ibid
[9] (1971) All N.L.R. 227
[10] (1900) 1 NLR 41
[11] Ibid
[12] Ibid
[13] Ibid
[14] Ibid
[15] Ibid
[16] Ibid
[17] Ibid
[18] No. 7 of 2004
[19] 2007
[20] Cap. 477, Laws of the Federal Capital Territory Abuja, 2006,
[21] 2010.
[22] Ibid
[23] Ibid
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