Mar 16, 2019 | 01:49 am | 5
1.1 BACKGROUND OF STUDY
The most controversial court in Nigeria is perhaps the Shari’ah Court of Appeal. The Court was established amidst much controversy by the colonial authorities on the eve of their departure in 1960 when it replaced the Muslim Court of Appeal. The Court came to limelight again during the making of the 1979, 1989 and 1999 constitution. The Court is now a subject of fresh controversies following the revival of Islamic penal sanction in some parts of northern Nigeria.
Since the colonial era, it has always been a problem how to accommodate these laws within the Nigeria legal system as all the three types of law had their own peculiar court structure and system. The choice had always been between a unified system of courts and a system of parallel Courts. The solution adopted by the colonial authorities was an in between one, with common law courts assuming the dominant position. At the inferior court level, there are parallel courts but a unified system was adopted for superior courts. This makes it to be possibly termed “para- unified” court system. In the north, the colonial authorities retained the flourishing jurisdiction. At the superior court level starting from the High Court, the rigid division of jurisdiction between the three types of court administering the three types of law was not adhered to by the colonial authorities. The pre-colonial courts in the north were retained as inferior courts and so they carry on this inferiority till now, the various changes in their nomenclature notwithstanding. The High Court had and still has appellate and sometimes original jurisdiction in the three types of law in the country. It administers not only customary law but also Islamic law, which is administered as a species of customary law. This was and remains the crux of the controversy. The proponents of Shari’ah were disenchanted with this arrangement whereby the common law courts are the only superior courts that heard appeals in all cases. The stiff opposition to this arrangement encounteredduring the colonial period necessitated the establishment of the Muslim court of Appeal; which was the immediate precursor to the Shari’ah court of Appeal.
The Muslim Court of Appeal was established in 1956. It heard Appeals from Native Courts and with inferior status to High Court. Although the Muslims Court of Appeal was established to allay the fear of Muslims as to the future of Islamic Law in the Northern Region, the Court did not meet the expectations of Muslims. They complained about its want of a standing membership and its inferior position vis-a-vis the High Court. The Shari’ah Court of appeal was in response to the yearning of Muslims that it be raised to the same status with the High Court to relieve the Muslims and to make them believe that Shari’ah had been recognized. From the Muslim points of view, these colonial arrangements were less than satisfactory but they were forced to accept it. They depicted this by adopting a futuristic attitude of “JUST WAIT UNTIL THE BRITISH GO!”.
At the initial stage, there was only one Shari’ah Court of Appeal for the whole North as a single region. The creation of regions in 1967 necessitated the establishment of Shari’ah Court of Appeal in each of the then newly created Northern states. This pattern has continued with the subsequent creation of additional states in the country. The multiplicity of Shari’ah Court of Appeal led to the call for a federal Shari’ah Court of Appeal of the states. The advantage being that such a court of appeal would facilitate a uniform development of Islamic Law throughout the country. Further Appeal was to lie to the Supreme Court. The Shari’ah Court of Appeal and Customary Court of Appeal are courts of coordinate jurisdiction with the High court, but unlike the High Court which has replica in every state of the federation; their establishment was left to the discretion of each state (government). The only innovation was that Appeal now lies from the Shari’ah Court of Appeal to the Court of Appeal with special panels of three justices of the Court of Appeal who are learned in Islamic personal law to hear appeals from the Shari’ah Court of Appeal
The civilian regime that started in 1979 was hanged pending by the intervention of military through coup in 1985. The Shari’ah court of appeal retained its 1979 position during the twenty years military regime until the handling over to a civilian administration in 1999. Though several attempts were made during the military regime which proved non prolific, those attempts were that of 1976-1978 and 1989 Constitutions. The situation was so tense that according to Justice A. Anagolu, JSC as he then was, chairman of the constituent assembly; “For eight weeks........ Members were talking about Shari’ah as if Shari’ah was the only subject in the constitution”
It was only the intervention of the President that laid the controversy to the rest. The President declared the issue of Shari'ah as a “no go” area for the constituent assembly. The resultant 1989 constitution attempted to extend the jurisdiction of the Shari’ah Court of Appeal to all “civil proceedings involving questions of Islamic law where all the parties involved were Muslims”. However, the Constitution though promulgated into law, never came into force.
The draft 1999 Constitution which is currently in force reverted to its position under 1979 Constitution. The main difference between the 1979 and 1999 Constitution was that non-Muslims could no longer submit to the jurisdiction of the Shari’ah Court of Appeal as its jurisdiction is limited to Muslims only. Another difference is the establishment of a Shari’ah Court of Appeal for the Federal Capital Territory.
1.2 STATEMENT OF THE PROBLEM
The research topic gives the following research questions:
What is the meaning of the word Shari’ah and it sources?
What are the Islamic schools of law?
What are the application of Shari’ah law and the global trend in Nigerian state?
What are the appraisals of historical development of Shari’ah Court of Appeal?
What are the statutory powers of Shari’ah Court of Appeal and the repugnance doctrine?
What are the bases for the spread of the Shari'ah Court of Appeal, political development, terrestrial and political impediments?
What are the comparative analysis of the Shari’ah Court of Appeal and superior court of records?
What are the trends to bring out the recent development in the Shari’ah Court of Appeal?
1.3 AIM AND OBJECTIVES
The project is however ambitions of taking a critical look at the jurisdiction of the Shari’ah Court of Appeal in terms of actual, momentum (jurisdiction as it is) and potential jurisdiction (jurisdiction as it ought to be) over subject matters, persons and geographical spread with the following objectives.
To analyze the meaning and sources of Shari’ah.
To analyze the various Islamic Schools of Law.
To analyze the application of Shari’ah Law and the global trend in Nigerian state.
To analyze the historical development of Shari’ah Court of Appeal.
To analyze the statutory doctrine of Shari’ah Court of Appeal and its repugnance doctrine.
To analyze the bases for the spread of Shari’ah Court of Appeal, political developments, terrestrial and political impediments.
To analyze the comparative analysis of Shari’ah Court of Appeal and Superior Courts of records.
To analyze the trend that brought about the recent development of the Shari’ah Court of Appeal.
1.4 SCOPE OE STUDY
The scope of the Jurisdiction of the Shari’ah Court of Appeal is a wide concept which includes the establishment of the Courts, its jurisdiction and its impediments. However this study focuses its attention on the spread of Shari’ah Court of Appeal, politically, geographically and otherwise.
1.5 METHODOLOGY OF RESEARCH
The Research methodology adopted in this essay would be doctrinal in nature. The 1999 Constitution of the Federal Republic of Nigeria, Shari’ah Articles and Journals and deductions made from textbooks. This method is library oriented and materials were gathered from the Faculty of Law Library, Kogi State University Anyigba.
1.6 SIGNIFICANCE OF STUDY
This work tends to resolve the controversy surrounding the understanding of the word Shari’ah, its application; and the historical development of the Shari’ah court of appeal. It also seeks to resolve the controversy surrounding the jurisdiction of the Shari’ah court of appeal and it also went further to give a better understanding of the inner workings of the Shari’ah Court of Appeal, its development and impediment.
1.7 ORGANIZATIONAL LAYOUT
This long essay titled “Shariah Court of Appeal: An appraisal of its jurisdictions” has been divided into five chapters
Chapter one covers the general introduction of the subject treated including background of the study, statement of problems, aims and objectives, scope of the study, methodology of research, significance of the study and the organizational layout of the long essay.
Chapter two deals with the definitions and application of the Shariah law, sources of Shariah law, Islamic school of law, Application of Shariah law, Shariah and the Global trend and Shariah and the Nigerian state.
Chapter three deals with the establishment and the jurisdiction of the Sharia court of Appeal, jurisdiction over subject matter and Original and Appellate jurisdiction, statutory powers of the Shariah Court of Appeal and repugnancy doctrine and the Shariah Court of Appeal.
Chapter four deals with the spread and impediments to the Shariah Court of Appeal, geographical spread of Shariah Court, political development, territorial and political impediments, Shariah Court and other superior courts of record and the recent development.
The last Chapter, chapter five deals with the summary, recommendations and conclusion of this long essay.