Precedent in sharia

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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 Challengesof 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-hukkamfi 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
MukhtasarKhalil 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 & Challengeson 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 AnnualReport 81 at 86

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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
75 Ibid. It does appearthat ProfessorYadudu 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
83 Ibid
84 Oba, Op. Cit., note 14, p.122

12
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
89 Ibid

13
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
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)

14
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 appearthat 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 Paiko);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

15
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

16
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, AppealNo. 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.

17
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.

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