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PROJECT TOPIC ON ANALYSIS OF THE MEANS OF PROOF IN CIVIL LITIGATION UNDER ISLAMIC LAW

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ANALYSIS OF THE MEANS OF PROOF IN CIVIL LITIGATION UNDER ISLAMIC LAW

ABSTRACT

This dissertation entitled “A Critical Analysis of the Means of Proof in Civil Litigation under Islamic law “primarily examined the principles of Islamic Law applicable to means of proof. In this regard, the essential means of proof have been highlighted, i.e., Shahadah (testimony), al-Iqrar (Confession/Admission), Qarinah (circumstantial evidence), al-Kitabah (documentary evidence), flm al-Qadi (personal knowledge of a judge), al-Yamin (oath), al-Qiyafah (forecast), al-Khabar (Information). The study is predicated upon the research problem that while under Islamic law litigants are under an obligation to furnish proof in order to succeed in the prosecutions of their cases; and consequently, while the courts are also obliged to adjudicate on the basis of the strength of the proof presented before them, it is imperative that the particular means of proof recognized by Islamic law are brought to lime line and critically examined as to its utility in the adjudication of disputes before the courts. Therefore, this dissertation primarily examines various means of proof in civil litigation under Islamic law and their efficacy in the administration of justice under the sharia. The dissertation adopts mainly doctrinal method of research. It is principally observed that Islamic law makes it mandatory on Muslims to promote the cause of justice by obliging litigants to produce proof in support of their claims before judgment could be made in their favour and that anyone who is in possession of any piece of evidence is obliged to furnish it in order to uphold the cause of justice and secure the restoration of the legitimate rights of the people. Thus, the law accords ample means and standard of proof to different categories of matters in order that the ends of justice are attained. It is thereby recommended that Islamic law of evidence as interpreted by different schools of thought should be strictly adhered to by our judges in deciding disputes before the sharia courts in Nigeria and that the Sharia implementing states, through their Ministries of Justice and the Judiciaries, should intensify efforts in training their sharia judges in institutions of higher learning, for the effective performance and implementation of the shariah legal system in our states.

CHAPTER ONE

GENERAL INTRODUCTION

1.1        Introduction

Islamic law (Shariah) is a divine law which is believed and considered by Muslims to be the most complete and comprehensive code of conduct deriving its source from the Glorious Qur’an which contains all aspects of life in this world and the hereafter1. The Glorious Qur’an it is also the primary source of Islamic Law devoid of any distortion, manipulation, interpolation and not subject to human alteration as Allah the Lawgiver has taken unto Himself the responsibility of protecting the integrity of the Glorious Qur’an2. Allah (SWT) in chapter 15:9 says: “verily, is He who have sent down the Dhikr (i.e. the Qur’an) and surely, We will guard it (from corruption)”.3

This verse is a challenge to the entire mankind and obliges the belief in the miracles of the Glorious Qur’an as it is a clear fact that more than 1400 years have elapsed and not a single word of the Glorious Qur’an has been changed, although the disbelievers tried their utmost to change it in every way, but they failed miserably in their efforts. On the contrary, all the other holy Books (the Torah and Gospel) have been corrupted in the form of additions or subtractions or alterations in the original text.4

Therefore, the Islamic Law is perfect, just and fair for all places and times and treats all human conduct with equality and justice, be it civil or criminal in nature and also lays down the procedures and manner of proving all allegations. Being the divinely revealed law, Islamic law seeks a number of temporal and spiritual goals, the most important of which is the pursuit of justice. Both the Glorious Qur’an and the Sunnah of the Holy Prophet (PBUH) repeatedly demand justice and condemn injustice; hence, rendering justice attracts reward and occasioning injustice attracts punishment.5

Islamic law has laid great stress on the evidence to prove the facts relevant for the judgement of a court. Unless it is proved beyond reasonable doubt that the accused has committed the crime or the defendant, has violated the right of the plaintiff, the court cannot give judgement against the accused or the defendant. The Holy Prophet (PBUH) said, “if people would be given what they claim (without evidence), some persons would claim other people’s blood and properties, but it is obligatory on the claimant to produce evidence.”6 Thus, evidence is of Supreme importance in the administration of justice. Moreover, evidence is a restrainer to false, weak and unsubstantiated claims and complaints. The Prophet (PBUH) warns those who make false claim by saying:

You come to me for adjudication perhaps some of you are cleverer in arguments than others. If I should adjudicate in favour of a person against his brother depending upon the former’s statement while the latter in reality is in the right, then I would only be handling the former a piece of hell-fire.7

The Glorious Qur’an has made it imperative for a witness to give evidence and not to conceal it especially when he is summoned by a court for it. It has laid down the criterion for evidence for different crimes and rights as well as of the witness. The Sunnah of the Holy Prophet (PBUH) also gives Supreme importance to the evidence produced in the court of justice. The disputants are given full freedom to present their cases and set forth their points of view.

Detail inquiries and investigations were conducted to bring to the knowledge of the courts the real circumstances leading to the commission of the offences. The ultimate reliance for the decision of the case was made on the apparent evidence. The Holy Prophet (PBUH), “We have been ordered to decide on the apparent evidence and this is Allah Al-Mighty who knows the secretes.”8Umar Ibn Al-Khatab (May Allah be pleased with him), in a letter to Abu Musa al-Asha’ri, writes,

The burden of proof is on the claimant and the defendant may be put on oath. If a claimant brings proof within the prescribed time, his claim should be allowed otherwise judgement should be given against him. All Muslims are acceptable as a witness against each other except those who have been punished with hadd of Qazf (accusation of adultery), those who have tendered false evidence, and those who are suspected (of partiality) on the ground of accuser’s status or relationship.”9

The instructions of Abu Yusuf to Caliph Harun al –Rashid regarding the proof of a crime are wroth-mentioning. He writes to the Caliph:

You should not accept the compliant alone as proof of the man against another in murder or theft. One should not be punished for a had crime save according to clear and certain evidence or confession free from coercion. It is impossible to imprison a man merely as a result of another man’s accusation against him. The Holy Prophet (PBUH) did not question the people with accusation. But you must call both the accuser and the accused together. If the accuser produces positive evidence in support of his allegation, the judge will rule for him, otherwise, he will set the accused free. The companions of the Holy Prophet (PBUH) were so cautious about imposing punishment for fear they might harm the innocent that they preferred to avoid penalties.

They would say to an accused thief, ‘Did you steal”, say “No”.10

The object of the Law of Evidence is to lay down principles for the proof of the facts relevant for the decision of a court. In every dispute there are at least two litigant parties, the plaintiff and the defendant. The latter denies the claim and the former claims what is contrary to the apparent fact. The burden of proof lies on the plaintiff because what is apparent is presumed to be the original state. If a defendant can produce evidence to disprove the claim of the plaintiff and to establish his non-liability; he is allowed to present such evidence. The defendant is also allowed to disprove the credibility of the plaintiff’s witness of submitting evidence to that effect.11

However, any fact can be proved by any evidence which proves the facts in issue to the satisfaction of the court. The term “bayyinah” is normally used for evidence which means anything which proves or disproves the fact disputed in a court – whether it be the statement of a witness, circumstantial evidence, documentary evidence, opinion of an expert, oath or any other thing with which the court is satisfied.12

It is pertinent to point that evidence may also be of two kinds, namely, judicial and extra-judicial. Judicial evidence means evidence produced during judicial proceedings in or before the court to prove or disprove any fact disputed therein. Judicial evidence includes testimony given by a witness in a court, all documents produced to and read by the court and all things examined by the court for the purposes of proof. Extra-judicial evidence means evidence recorded or produced in matters outside the courts such as the attestation of the document of any contract.13

It is relevant to mention that the jurists, while interpreting the text of the Glorious Qur’an and Sunnah have adopted different views in certain matters relating to evidence.14But the court may not strictly follow the views of any particular school of thought or jurists and may follow the view of any school or jurists whose view is suitable in the circumstances of a particular case because all the schools of thought and jurists are right and their research was aimed to elaborate the matters relating to the evidence.

ANALYSIS OF THE MEANS OF PROOF IN CIVIL LITIGATION UNDER ISLAMIC LAW

1.2        Statement of the Research Problem

The application of Islamic law by Sharia courts in Nigeria faces serious problem and challenges from various dimensions, virtually due to lack of proper or adequate training of our judges on Islamic law of evidence and procedure. In the circumstances, the issue of the presentation of proof and its acceptance by the courts and what particular kind of proof is best suited to a particular transaction or claim is a pivotal question that both litigants and judges must be familiar with in order to render justice to the deserving party. Hence, in the absence of a strictly Sharia-compliant rules of evidence and procedure to guide the courts, in the state that are not applying the Shari’ah rule i.e. some of the states in Nigeria that there are yet to implement it, in some instances both litigants, judges, lawyers, and court registrars do perambulate as to the applicable principle of Islamic law of evidence in a given case, thereby resorting to English procedure instead of that of Islamic law. To avert this setback, it is imperative to elaborate and analyze the means of proof in civil litigation under Maliki Jurisprudence to serve as a reference to our judges, lawyers and students learning the Islamic law of evidence.

Moreover, while Islamic scholars have written various books on the subject, majority of these books were written in Arabic language, ranging from the interpretation of some Ahadith of the Prophet (S.A.W.), to various Islamic jurisprudential books. Hence, this work will serve as reference for the elaboration and analysis of the means of proof in Islamic Law of evidence.

1.3        Research Question

The following research questions are as follows:

  1. To what extents has the shari’ah court effectiveness implements the shari’ah rules of evidence and procedure?
  2. What are the challenges and hindrances that shari’ah implementing states faces in modern day world?
  3. What are the role of judges and Islamic scholars in enhancing the success of implementing the various means of proof in civil litigation under Islamic law?

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1.4        Aims and Objectives of the Study

The principal aim of this research work is to provide an analysis on the principles of Islamic law relating to means of proof in civil litigations under Maliki jurisprudence. In the light of the above, the following are the objectives of this research work:

  1. To examine and highlight the various means of proof provided for in civil litigation under Islamic law as per the Maliki School of Islamic Jurisprudence.
  2. To examine the value of proof (evidence) and its role in the administration of justice under the sharia.
  3. To examine and analyze some of the problems militating against the application of Shari’ah legal system as it relates to the applicability of Islamic law of evidence in Nigeria.
  4. To provide additional reference material in English language for better understanding of the subject matter by judges, lawyers, students and other stakeholders involved in the administration of sharia justice in Nigeria.

1.5        Significance of the Study

This study will be beneficial to judges, lawyers, lecturers, students, magistrates, police, draftsmen, and other stakeholders involved in the administration of Sharia justice in Nigeria and to the general public. It can also help towards securing additional compliance with the rules of the Sharia on matters relating to proof (evidence) by the Sharia Courts. The study will also provide frontier for further research work on means of proof in civil litigation under the Shari’ah.

1.6      Methodology

Doctrinal research method, otherwise known as library based research was adopted in this dissertation. Useful materials and information from books, journals, and manuscripts were consulted and duly acknowledged. Footnotes system was used as a method of references and bibliography of the whole materials consulted was provided at the end of the whole work. Both primary such as the Glorious Qur’an and the Hadiths and secondary sources such as Islamic textbooks, journals etc. will be used and internet sources will also be used if the need arises.

1.7      The Scope of the Research

The scope of the research is purely limited to the discussion of the principles of Islamic law of evidence relating to civil litigation under Islamic law.

ANALYSIS OF THE MEANS OF PROOF IN CIVIL LITIGATION UNDER ISLAMIC LAW

1.8      Literature Review

The notable books on the subject are:

Abu Zaid in Al-Risala15had espoused on the principles of Islamic law of evidence in a nutshell but the subject matter was not clearly discussed, limiting his discussions on the principles of the law of evidence without any details as to the classification of the means of proof.

Other books of fiqh within the Maliki School of law besides those mentioned above that are typically known and frequently referred to in Nigeria are books of commentary mostly to those books already mentioned above.

But before going into these books of commentary, an important book to be looked at is Tuhfatul Hukkarn16 being one classical book most frequently referred to and relied upon by both lawyers and judges alike in Sharia courts as a book of substantive law and procedure in the field of litigation. The exposition contained in this book has covered several aspects on the subject. This book alone has also attracted so many  commentaries  such  as  Ihkamul  Ahkam  al-Bahjah  fi  Shark al-Tuhfah17Mayyara ala al-Asimiyyahs18 etc. and each of these commentaries remain standard works as far as means of proof is concerned.

There are certain well written and authoritative books of commentaries on the above stated Maliki’ books on fiqh, prominent among them is Al-Mudawwanah,19 Shark al-Kabirli al-Sheikh al-Dardir’20, Shark Mukhtasar Khalilli al-Khirshy.21Hashiyat al-Dasuqiala Shark al-Kabir; Hashiyat al-Sabuni ala Shark al-Sagir22, Fawakih ad Dawani23Minhajal-Jalil Sharh Mukhtasar Khalil24 these books have thoroughly considered the various means of proof under Islamic law as exposited by various Muslim scholars. These books taken together have provided abundant literatures on the subject of Islamic law of evidence and procedure and they are authority on the subject, especially under the Maliki School of Islamic law.

Abdus-Sami Al-Ash’ari.25, is one of the popular and more preponderant versions of Malik jurisprudence. While explaining Islamic la w of evidence in the chapter he called “qualification of judges and evidence”, he adopted the method of using technical expression, which makes the whole chapter incoherent and difficult to understand. He mixed up the procedure and evidence together.

Shamsuddeen, the author of Hashiyatul Dasuki on the commentary of Sharhul Kahir, has discussed many issues relating to Islamic law of evidence, particularly the means of proof. In the chapter dealing with the law of evidence, he discussed the following issues, namely: Shahada (testimony), Iqrar (confession), al-Yameen (the oath taking), Qasama and Qarinah, all were discussed in single chapter; this style makes the whole things ambiguous.26

Abdullahi Muhammad Ahmad, the author of Fat hut Ally al-Malik on the commentary of Tabsiratul-Hukkam, the author outlines the legal position and the logic behind the position of Qadi (judge). He also classified the people who qualify and those who do not qualify to be judges. He enumerated all the means of proof and other related matters.27

The contributions of these authors are such that most of today’s legal issues on the question of means of proof in any Islamic society that desires the application of the Sharia in the arena of administration of justice has ample source of guidance in doing so. However, these books of Islamic law can be considered to have contemplated situations relative to the time these Muslim jurists of which today, many recent and emerging legal problems continue to pose questions in search of legal solution that to contextualize the already established principles of the Sharia would require a re-examination of the contribution of these authors as regards legal problems appropriate to present day situations. It is therefore expedient that these books be studied and analyzed so as to gain their contemporary application in the administration of sharia justice particularly in the northern states of Nigeria where quest for the application of sharia resurfaces.

El-Imairi28, in his manuscript titled “Marufa’at: Procedure and Evidence in Sharia” Courts” has discussed the procedures related to the administration of justice under Islamic law. The elegance of his presentation togeth er with the scope of the issues covered in the manuscript is good enough to warrant its recommendation as a source book to be refined and adopted as the rules of procedure to guide the sharia courts in northern Nigeria. However, his discussion featured only certain aspect of the means of proof to the neglect of others.

Keffi29, in his article on the subject has discussed certain aspects of proof by testimony of witnesses in civil litigation under Islamic Law and M. S. Abubakar30 on the other hand had discussed “Oath: Al-Yameen” as one of the means of proof under Islamic law. However, although these authors have examined these two modes of proof, i.e., shahadah(testimony) and al-Yameen (oath), and had exposited enormously on them, this study would further examine the other means of proof beside those mentioned by these authors.

In the book Irskadal-Saalik31, some aspects of the Islamic law of evidence and procedure was discussed by this author. So also, in the book Aqrab al- 28El-Imairi, M.T. Murafa’at: Procedure and Evidence in Sharia Courts,unpublished manuscript Centre for Islamic Legal Studies, Institute of Administration, Ahmadu Bello University, Zaria.

Masalik32particular means of proof in the adjudication of disputes was also discussed.

Similarly, in the book Mukhtasar Khalil33 it follows closely what the book Aqrabul Masalik have conversed on the subject but that the discussion furthered compasses certain aspect of the well-known means of proof under Islamic law. However, these three books, that is to say, Irshad al -Saalik, Aqrab al-Masalik and Mukhtasar Khalil provided mainly the basic and general principles on the adjudication processes under Islamic law without setting forth the procedural aspect of how every mode of proof is to be placed and accepted before the courts. These books did not also elaborate further on the principles regarding the formality and kinds of cases every particular mode of proof is applicable.

Another contemporary writer in this area Anwarullah, the author of “Principle of Islamic Law of Evidence”,34 had tried to highlight some important aspects of Islamic law of evidence and he classified the means of proof in order of priority. This book is a valuable material and a good reference for those who have interest in Islamic law of evidence and would be a valuable source material for this study, although important as it is, it was a collection of Islamic jurisprudence relating to evidence under the Hanafi School of law.

1.9        Organizational Layout

The research work consists of six chapters. Chapter one deals with the general introduction and it focuses mainly on the background of the study, statement of the research problem, aim and objectives of the study and significance of the research. It also discusses the scope of the study, methodology and literature review. Chapter two dealt with nature of proof in Islamic law of evidence. Chapter three discusses the concept of Iqrar (admission). Chapter four deals with the concept of Shahadah (testimony) and alyamin (oath). Chapter five discusses proof by expert evidence while chapter six provides for the summary and conclusion of the research work.

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