An Assessment of Islamic Law as Customary Law vis a vis the Supreme Court Ruling in Alkamawa v Bello and Anor 1998 6 SCNJ 127

ABSTRACT 

There has been a controversy as to the question whether Islamic law can be classified as customary law in Nigeria. There exists a divide among jurisprudential scholars as to the answer to this question but the prevailing school of thought sees Islamic law as customary law. This position is supported by Nigerian Statues as is made evident by the provision of section 2 of the Native Courts Law 1957 and its succeeding legislations which states that ‘native law and custom includes Moslem law’ and most importantly the Nigerian1999 Constitution which provided for a Sharia Court of Appeal as a counterpart to the Customary Court of Appeal. On the strength of this state of equivocacy of Islamic law to customary law, 

Islamic law has been established as an integral part of the Nigerian legal system. However, the Supreme Court in Alkamawa v Bello handed down a contrary perception of the nature of Islamic law where it held that Islamic law is not customary law as it does not belong to any particular tribe. It is a complete system of universal law, more certain, permanent and more universal than the English common law. This paper seeks to assess and analyze this decision of the Supreme Court and its legal implications on the Nigerian legal system together with a comparative analysis of Islamic law to customary law. The methodology used is doctrinal while the approaches include historical, analytical, and comparative approaches. Library and internet sources were extensively utilized as a tool of sourcing for information while sources of data collection include the use of statutes, case laws, journals and textbooks. The result of this research demonstrated compellingly that Islamic law is not the same as customary law as it is not indigenous to any tribe in Nigeria and can best be regarded as an imported law in the same vein as English common law in line with the decision of the Supreme Court in Alkamawa v Bello. Thus, the writer recommends that there should be an amendment of Nigerian laws and civil procedure to reflect this decision of the Supreme Court as a way to resolve this controversy and that the customs of the indigenous tribes in the North should be recognized as customary law in its indigenous areas.  

TABLE OF CONTENTS 

Title Page …………………………………………………………………………………..….... i 

Approval ………………………………………………………………………………………... ii 

Certification …………………………………………………………………………………….. iii 

Dedication ………………………………………………………………………………………. iv 

Acknowledgements ………………………………………………………………………………v 

Abstract …………………………………………………………………………………..……... vi 

Table of Contents …………………………………………………………………………...….. vii Table of Cases …………………………………………………………………………….……... x 

Table of Statutes ……………………………………………………………………...………... xii 

Table of Abbreviations .………………………………………………………………..…........ xiii 

Bibliography ………………………………………………………………………………….... xv 

CHAPTER ONE: GENERAL INTRODUCTION 

1.1.  Background of Study ……………………………………………………………………. 1 

1.2. Statement of  Problem …………………………………………………………………….. 2 

1.3. Purpose of Study ………………………………………………………………………….. 4 

1.4.  Scope of Study …………………………………………………………………………… 4 

1.5. Significance of Study ……………………………………………………………………... 4 

1.6. Methodology ……………………………………………………………………………… 5 

1.7. Organizational Layout ……………………………………………………………………. 5 

1.8. Definition of Terms ………………………………………………………………………. 6 

CHAPTER TWO: CUSTOMARY LAW IN NIGERIA 

2.1. Nature of Customary law in Nigeria …………………………………………………….. 7 

2.2. Validity of Customary law in Nigeria …………………………………………………… 11 

2.3. Proof of Customary law …………………………………………………………………. 18 

CHAPTER THREE: ISLAMIC LAW IN NIGERIA 

3.1. Nature of Islamic law ………………………………………………………………….….. 22 

3.2. History of Islamic law in Nigeria …………………………………………………………. 25 

3.3. Sources of Islamic law …………………………………………………………………….. 30 

3.4. Schools of Islamic law …………………………………………………………………….. 34  

CHAPTER FOUR: THE ASSESSMENT OF ISLAMIC LAW AS CUSTOMARY LAW 

4.1. The Case of ALKAMAWA V BELLO ……………………………………………………. 38 

4.2. The Comparative Analysis between Islamic law and Customary law ………………..…. 43 

CHAPTER FIVE: CONCLUSION AND RECOMMENDATION 

5.1. Conclusion ………………………………………………………………………………. 47 

5.2. Recommendations ………………………………………………………………………. 50