The Permissibility Of Muslims In States With No ‘Islamic Marriage Registry’ To Obtain ‘Islamic Marriage Certificate’ In Any Of The Sharia Courts Of States In Nigeria That Has Islamic Marriage Registry Established; For The Purpose Of Islamic Personal Law/Family Law Matters: My Critical Analyses

By Hameed Ajibola Jimoh Esq.

BACKGROUND:

In Nigeria, there have been several reasons necessitating the need for ‘Islamic Marriage Certificate’ especially, to prove that the said couple(s) are legally married under the Islamic Personal/Family Law. To this extent, there has been an issue as to whether a Muslim or Muslim couple who resides in a State within which Islamic court or Sharia Court has not been established by the Legislative Arm of the government (i.e. the State House of Assembly) of that State or where a Sharia Court is established in that State but the Islamic Marriage Registry has not been so established therein, has any alternative to resolve his Islamic Personal Law/Family Law issues as regard the issue of need of a ‘Marriage Certificate’? A number of Muslims in Nigeria, especially living in States in which ‘Islamic Marriage Registry’ has not been established or where a Sharia Court is established in that State but the ‘Islamic Marriage Registry’ has not been so established therein, have had to suffer rejection (either for employment or travelling purposes or other purposes) continuously with no rescue. This urgent need for this ‘Islamic Marriage Certificate’ has forced a number of Muslims to seek and obtain the ‘Marriage Certificate’ of the Common Law Courts and notwithstanding the likely implications and or consequences of such ‘Non-Islamic Marriage Certificate’ to their marriage, pursuant to the Marriage Act, 2004. Some of the Nigerian States such as the Federal Capital Territory-Abuja, have established Islamic Marriage Registry (and laid down the procedures for same) to issue marriage certificate to Muslims across Nigeria (including those Nigerian Muslims who reside abroad). Some Muslims have been taking advantage of this benefit while some Muslims of other States might not be aware or some of this Muslims might be in doubt as to whether the law permits them to obtain such Islamic Marriage Certificate in the Sharia Court(s) of other State where they are not resident. This is the question that this paper aims to answer and convince and or assure such Muslims that the law (in fact, the Constitution of the Federal Republic of Nigeria, 1999 (as amended)- herein after referred to as the Constitution) permits them or any Muslim to obtain such Islamic Marriage Certificate without the need to obtain the Marriage Certificate of the Common Law Courts, for whatever purpose that he needs the certificate for. From my observations, such marriage certificate is often requested or required at the need of either: National Youth Service Corps; travelling to outside the country of Nigeria; some Embassies; some Islamic Family Law matters such as: inheritance, etc. to issue matrimonial causes (cases or legal issues) arising from some Muslims’ marriages and other aspects of the Islamic Personal Law.

I continued to research and pondered and reasoned on the non-establishment of the Islamic Marriage Registry in each of the States of the Federation to make it easy for Muslims residing or resident in any of those States to obtain with ease and comfort rather than having to travel or undergo untold hardship (if not denial) of benefits of same as well as the tribulations befalling some of our Muslims in need of the said Islamic Marriage Certificate. I have been researching and reasoning at the same time as well as praying fervently to Allaah to guide me through a workable and tenable solution! Alhamdulillah! The thoughts as well as the legal arguments and solutions came upon me from Allaah which is the subject matter of this paper though, sometimes around the year 2018, I had made some recommendations to the Honourable, the Grand Kadi of the Sharia Court of Appeal, FCT-Abuja, to establish the Islamic Marriage Registry to be issuing Islamic Marriage Certificate to Muslims to. Alhamdulillah! The Honourable, the Grand Kadi considered my recommendations and granted my prayers for same and therefore established the ‘Islamic Marriage Registry’ for Nigerian Muslims across the Worlds which has been in operation till date with very simple, friendly procedures and cheap to afford financially! May Allaah continue to reward My Lord, the Honourable Grand Kadi of the Sharia Court of Appeal, FCT-Abuja (Honourable Justice Rufai Imam)! Aamiin!)! I therefore humbly seek the reader of this paper to read and study this piece with open mind in reasoning along with my reasoning towards the solutions and positions that I have maintained in this paper as a way of relief or rescue to our Muslims in States that Sharia Courts and or Islamic Marriage Registry have not been established. I am strengthened with some solutions as rescue which form the bases or foundation of this current legal article and that is the reason for this article. I pray and I am hopeful that these acts or efforts of mine would be rewarded by Allaah and would be able to guide Muslims in those States of Nigeria which do not have any Sharia Court or those States that have Sharia Courts but have no Islamic Marriage Registry established therein to make use of same for their needs! May Allaah accept these efforts as act of sadaqatun jaariyah (i.e. a continuous good deed) from me and I seek my brothers in Islam to also always remember me in their good prayers while I continue to pray to Allah for more knowledge, wisdom and understanding! Hence this topic.

 

INTRODUCTION:

First and foremost, in my humble submission, a ‘Certificate’ in the instance of this paper is just a confirmation that such Islamic marriage took place according to Islamic Family Law; it is not a conclusive evidence of such Islamic marriage, though. It is only a prima facie evidence that such marriage took place as claimed by the person tendering such certificate and in appropriate cases, it (i.e. the certificate) can be challenged and rendered invalid, null and void, where certain facts have occurred to rebut the facts of the existence of such Islamic marriage or the existence of any acts that invalidate marriage in Islamic Family Law. Therefore, the marriage certificate does not precede the conduct of such Islamic marriage. For instance, the Nigerian Common Law Courts have had the opportunity of deciding on ‘WHETHER A CERTIFICATE OF OCCUPANCY CONSTITUTE A VALID TITLE TO LAND IN FAVOUR OF THE GRANTEE’ and the Courts held thus “A certificate of occupancy issued under the Land Use Act is not conclusive evidence of any interest or valid title to the land in favour of the grantee. It is only a prima facie evidence of such right, interest or title without more, and may, in appropriate cases, be challenged and rendered invalid, null and void. Consequently, where it is proved, that another person, other than the grantee of a certificate of occupancy had a better title to the land, the Court may set it aside on the ground that it is invalid, defective or spurious. See also the following decided cases by the Supreme Court and the Court of Appeal; Dsungwe Vs Gbishe; Ogunleye Vs Oni (1990) 2 NWLR (Pt. 135) P. 745; Saude Vs Abdullahi; Olohunde Vs Adeyoju and Lababedi Vs Lagos Metal Ind. Ltd (1990) 2 NWLR (Pt. 135) P. 745. PER I.S.BDLIYA, J.C.A.

Hence, this paper considers the powers of the respective Honourable Grand Kadis of the various Islamic Courts or Sharia Courts in Nigeria to establish Islamic Marriage Registry to issue Islamic Marriage Certificate, as well as the permissibility of a Muslim or Muslim couple who resides in a State within which Islamic court or Sharia Court has not been established by the Legislative Arm of the government (i.e. the State House of Assembly) of that State or where a Sharia Court is established in that State but the Islamic Marriage Registry has not been so established therein, to obtain such Islamic Marriage Certificate from other Sharia Court of Appeal or Sharia Court of other State (either a neighboring State or not). Hence, the title of this paper.

 

MUSLIMS’ RIGHT TO ‘RELIGION’ AND ‘PRACTICE OF RELIGION’ IN NIGERIA

Apart from the International Laws such as the African Charter on Human and People’s Rights (as an International Law to which Nigerian is a signatory and had adopted same as binding in Nigeria) which guarantees the right of every person to ‘religion’ which provides in Article 8 thus ‘Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.’ ((underlining is mine for emphasis) which includes the Muslims in any country), the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- has also guaranteed such right by section 38 of the Constitution thus ‘38.—(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief, in worship, teaching, practice and observance. (2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction, ceremony or observance relates to a religion other than his own, or a religion not approved by his parents or guardian. (3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.’. Also, section 42 of the Constitution guarantees the freedom from religious discrimination thus ‘42.—(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person— (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action, of the government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, circumstance of birth, sex, religions or political opinions are not made subject ; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions. (2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.’. See: the recent Supreme Court of Nigeria on the Muslims’ rights to ‘religion’ and ‘the practice of same’ in the case of: Lagos State Govt. & Ors. V AbdulKareem & Ors (2022) LPELR-58517 (SC).

 

POWERS OF THE HONOURABLE GRAND KADI OF SHARIA COURT OF APPEAL OF EACH STATE TO ESTABLISH ISLAMIC MARRIAGE REGISTRY FOR THE PURPOSE OF ISSUING ISLAMIC MARRIAGE CERTIFICATE, ETC., FOR MUSLIMS ON ISLAMIC PERSONAL LAW OF MUSLIMS:

First and foremost, I humbly submit that ‘Islamic Law’ is not a ‘customary law’ rather, it has its root/source from the: Quran; the Hadith; Ijma’a’; Qiyaas; with Ijtihaad; being a resulting source of Islamic Law, and being in their written forms (as customary law is unwritten), among other differences. Nevertheless, Muslim practitioners in those South Western States (very pathetically) have been left to abide by customary law courts’ and common law courts’ jurisdictions (helplessly and against their will and conscience by the government of those State) in deciding their Islamic law matters, and they have been made to reject their religious right and practices by having to obtain Marriage Certificate from the Common Law Courts notwithstanding the implications of such action having the effect of converting their Islamic marriage to a marriage under the Marriage Act and Matrimonial Causes Act i.e. including the matrimonial causes thereto, which is against their faith and constitutional right to religion and practices of same! Islamic law is Allaah’s legislated law. See: Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; (1992) 7 SCNJ (Pt.11) 388 P.400. Also, the superior authority of the Quran in Nigerian Islamic Personal Law has been upheld even by the Supreme Court of Nigeria. See the cases of: Alhaji Ila Alkamawa v. Alhaji Hassan Bello & Anor (1998) LPELR-424(SC) and Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; (1992) 7 SCNJ (Pt.11) 388 P.400.

Furthermore, as I stated above, section 38 of the Constitution and other International Human Rights Laws guarantees the right to ‘religion’ and ‘religious practices’ of every Nigerian, including Muslims. Furthermore, in my humble submission, the Grand Kadi of the Sharia Court of each State (FCT- here is regarded as a State) has been empowered to establish such Islamic Marriage Registry as ‘incidental powers’ pursuant to the Constitution in section 275 with its jurisdiction provided in section 277 of the Constitution and other laws which I have relied upon in this paper thus ‘275.—(1) There shall be for any State that requires it a Sharia Court of Appeal for that State. (2) The Sharia Court of Appeal of a State shall consist of— (a) a Grand Kadi of the Sharia Court of Appeal; and (b) such number of Kadis of the Sharia Court of Appeal as may be prescribed by a law of the House of Assembly of the State. 277.—(1) The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the court is competent to decide in accordance with the provisions of subsection (2) of this section. (2) For the purposes of subsection (1) of this section, the Sharia court of Appeal shall be competent to decide— (a) any question of Islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant ; (b) where all the parties to the proceeding are Muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant ; (c) any question of Islamic Personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim ; (d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm ; or (e) where all the parties to the proceedings, being Muslims, have requested the court that hears the case in the first instance to determine, that case in accordance with Islamic personal law, any other question.’. Also see section 15(2) of the Constitution against discrimination on the basis of ‘religion’. Also, see section 260 and 262 of the Constitution in respect of the establishment of the Sharia Court of Appeal of the Federal Capital Territory, Abuja.

The Court has in the case of Ajomale v Yaduat (No.1) (1991) NWLR (Pt.191), stated how jurisdiction of a court of law is derived thus: ‘It is well settled that in this country, the exercise of all original and appellate/ supervisory jurisdiction is statutorily derivable from either (a) the 1979 Constitution (b) from a particular statute. These are the only sources from which jurisdiction is derived’. (Underlining is mine for emphasis). This judicial decision is important to refer to as proceedings without jurisdiction is a nullity no matter how well conducted. See: Elabanjo v. Dawodu (2006) LPELR – 1106 (SC); Dalyop v. State (2013) LPELR – 21898 (CA).  Kayode Eso J.S.C. (of blessed memory) also held in the case of A.G. Lagos State v. Dosunmu (1989) LPELR – 3154 (SC) as follows: “It is futile to set down issues, deliberate on evidence led, resolve points of law raised, if the court that is seized of the matter is devoid of jurisdiction. The substratum of a court is no doubt jurisdiction. Without it, the ‘labourers’ therein, that is both litigants and counsel on the one hand and the Judge on the other hand, labour in vain.’. The Supreme Court, per Aderemi J.S.C. further defined jurisdiction in the case of F.B.N Plc v. Abraham [2008] 18 NWLR (Part 1118) 172 as “the authority by which a court has to decide matters that are laid before it for litigation or to take cognizance of matters presented in a formal way for its decision.” Ejiwunmi J.S.C. also referred to a lack of jurisdiction as “injustice to the law, to the court and to the parties” Olutola v. University of Ilorin (2004) LPELR – 2632 (SC). The bottom line is that everything done in want of jurisdiction is a nullity. See: Adetona v. Igele General Enterprises Ltd. (2011) LPELR – 159. Four factors have also been set down by the Supreme Court in the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 as the ingredients of jurisdiction. They are:

‘The court must be properly constituted as to its number or its membership;

Any condition precedent to its exercise of jurisdiction must have been fulfilled;

The subject matter of the case must be within its jurisdiction; and the case or matter must have been brought to the court by the due process of the law.’ It is therefore my humble submission that arising from the decision of the appellate Court of Nigeria in the case of Ajomale v Yaduat (supra), which stated how jurisdiction of a court of law is derived thus: ‘It is well settled that in this country, the exercise of all original and appellate/ supervisory jurisdiction is statutorily derivable from either (a) the 1979 Constitution’, it is my humble submission that the Constitution has conferred jurisdiction on the respective Grand Kadi of all Sharia Courts of Appeal in Nigeria to establish Islamic Marriage Registry in any of such respective State for any Muslim to obtain whether residing within or outside the jurisdiction of the Court (the appellate Court held that jurisdiction is conferred on a court of law by the Constitution (i.e. as in the instance paper). In my humble submission, also, section 318(4) of the Constitution has adopted the Interpretation Act to be used to interpret the Constitution. section 10(2) of the Interpretation Act, 2004, provides on ‘incidental powers’ thus ‘An enactment which confers power to do any act shall be construed as also conferring all such other powers as reasonably necessary to enable that act to be done or are incidental to the doing of it’.

 

THE PERMISSIBILITY OF MUSLIMS IN STATES WITH NO ISLAMIC MARRIAGE REGISTRY TO OBTAIN SUCH ISLAMIC MARRIAGE CERTIFICATE IN ANY OF THE STATES IN NIGERIA THAT HAS ISLAMIC MARRIAGE REGISTRY ESTABLISHED; FOR THE PURPOSE OF ISLAMIC PERSONAL LAW/FAMILY LAW MATTERS:

Having stated the Constitutional and international guarantee of the right of every Muslim in Nigeria to ‘religion’ and ‘religious practices’ as well as the provisions of the Constitution establishing the Sharia Courts to hear all Islamic Personal/Family Law matters, as well as the ‘incidental powers’ of the Honourable Grand Kadi of any of the Sharia Courts of Appeal in any of the States in Nigeria to establish an Islamic Marriage Registry for Muslims subject to Islamic Personal Law/Family Law, it is my humble submission that Islamic Personal law/Family Law is a law not limited by territorial jurisdiction in Nigeria (i.e. by States’ territorial differences). To this extent, it is my humble submission that any Muslim or Muslim couple that resides in a State within which Islamic Court or Sharia Court has not been established by the Legislative Arm of the government (i.e. the State House of Assembly) or where a Sharia Court of Appeal has been so established in that State but an Islamic Marriage Registry has not been so established by the Grand Kadi of that Sharia Court of Appeal, may approach any of the Sharia Courts established by any of the States of the Federation in Nigeria to obtain such Islamic Certificate without the need to obtain the Marriage Certificate from a non-Islamic or Common Law Court or Marriage Registry (as some Muslims do this days out of frustration and or compulsion by circumstances) and such Islamic Marriage Certificate is admissible in evidence before any Sharia Court for any evidential purposes under the Islamic Personal/Family Law matters, before any: Ministry; embassy; courts, etc. Furthermore, I humbly submit that the intention of the law makers or the drafters of the Constitution establishing Sharia Court for each State of the Federation or permitting same for States that ‘require’ its establishment, was not to limit the application of the Islamic Personal Law to a particular State or by territorial limit rather it is to create ‘ease’ and ‘convenience’ for Muslims in any State of the Federation to have to access the Sharia Court within his immediate State without the need for him to transport himself to another State to access such Court to seek justice, for sometimes, access to justice might be very urgent than one could imagine. Hence, the Constitution in section 275(1) used the word ‘requires’ thus ‘275. (1) There shall be for any State that requires it a Sharia Court of Appeal for that State.’ Furthermore, in my humble submission, there is nothing in the Constitution that states that Islamic Personal Law Matters can only be resolved in those Courts alone and exclusively (i.e. to the exclusion of other Sharia Courts in other States)! Also, in my humble submission, the Constitution (being the supreme law of Nigeria) does not stipulate or state that any of the Sharia Courts it establishes shall lack the ‘incidental powers’ to establish such Islamic Marriage Registry’ to issue Islamic Marriage Certificate’ and therefore, in my humble submission, until there exists any such limitation of the incidental powers of the Grand Kadi to so establish, it would be deemed that such incidental powers are duly conferred on the Grand Kadi to so establish the Islamic Marriage Registry with the powers among others, to issue ‘Islamic Marriage Certificate’ to Nigerian Muslims who have conducted Islamic marriage. In fact, section 277 (2), especially subsection (a) and (b) of the Constitution provides the jurisdiction of the Sharia Court of Appeal of a State (just as section 262(2) especially subsection (a) and (b) of the Constitution for jurisdiction of the Sharia Court of the Federal Capital Territory, Abuja) empowers any Sharia Court to entertain any Islamic Personal/Family Law matters brought before it by any Muslim (including those Muslims residing outside its territory) where it provides thus (2) For the purposes of subsection (1) of this section, the Sharia court of Appeal shall be competent to decide— (a) any question of Islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant; (b) where all the parties to the proceeding are Muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant ; (c) any question of Islamic Personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim ; (d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm ; or (e) where all the parties to the proceedings, being Muslims, have requested the court that hears the case in the first instance to determine, that case in accordance with Islamic personal law, any other question.’. (Underlining is mine for emphasis). In my humble submission, Also section 318(4) of the Constitution has adopted the Interpretation Act to be used to interpret the Constitution. section 10(2) of the Interpretation Act (supra) provides on ‘incidental powers’ thus ‘An enactment which confers power to do any act shall be construed as also conferring all such other powers as reasonably necessary to enable that act to be done or are incidental to the doing of it’.

Also, I humbly submit further that having regard to the provision of section 262(2)(a) and (b) (and 277(2)(a) and (b) of the Constitution), section 318 of the Constitution and the provisions of section 10 of the Interpretation Act (supra), all the enactments herein mentioned or cited herein cannot be read in isolation but read altogether to realise the intention of the law makers or the drafters of the Constitution. Nigerian Judicial precedents are clear on the rules guiding interpretation of the provisions of the Constitution thus “…where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution.”. See the case of: NIGERIA EMPLOYERS CONSULTATIVE ASSOCIATION & ANOR. vs. ATTORNEY-GENERAL OF THE FEDERATION & ORS. (2021) LCN/14984 (CA).

As I stated earlier in this paper, there is no provision of the Constitution that prohibits the Honourable Grand Kadi of the Sharia Court of Appeal of each State (FCT- here is regarded as a State) from establishing such Islamic Marriage Registry to issue Islamic Marriage Certificate to Nigerian Muslims and there is no such prohibition under the Constitution prohibiting any person or Muslim or Muslim couple who resides in a State that have no Sharia Court established in that State or which has Sharia Court of Appeal established but Islamic Marriage Registry has not been established therein, to obtain Islamic Marriage Certificate from any of the Sharia Courts of Appeal established in any other States to resolve his or her Islamic Personal Law/Family Law matters or needs. More so, if the Constitution (which has permitted every Muslim to use any Sharia Court (since the function of establishment of Sharia Court in a State is that of the government and not that of the Muslim citizens residing therein) has not expressly prohibited such use of the other Sharia Court of any other State of the Federation by any Nigerian Muslim, the implication in my humble submission is that no statute can prohibit same, else, such statutory provision would be inconsistent with the constitution and therefore be null and void and of no effect to the extent of its inconsistency. For instance, in the case of: F.C.D.A. v. Ezinkwo (2007) ALL FWLR (Pt. 393) 95 at 115, paras. C- D it was held that: ” The constitution being the organic law of the country and the fons et origo from which all other laws derive their validity…no part of it can be described to be adjectival or procedural law…The Constitution is a substantive law.”. Also, there is a cardinal principle of law that ‘What is not prohibited is permitted’. See: ANYAEBOSI VS. R.T. BRISCOE LTD. (1987) 3 NWLR (Pt. 59) 108, the apex court, aptly held, inter alia thus: “It is important to state that a computerized account …. does not fall into the category of evidence absolutely inadmissible by law. In my opinion, it falls within the category of evidence admissible…’. Also, in the case of Dankwambo V Abubakar (2015) LPELR-25716 (SC) the Supreme Court of Nigeria held thus “It is a cardinal principle of law that what is not expressly forbidden, is permitted.” Also, in the case of THEOPHILUS V FRN (2012) LPELR-9846 their Law Lords held that: “the basic canon of interpretation or construction of statutory provisions remains that what is not expressly prohibited by a statute is impliedly permitted…it is not within the court’s interpretative jurisdiction or powers to construe a statute to mean what it does not mean, nor to construe it not to mean what it means…’. Wikipedia online also states this principle as an English law or common law principle thus ‘Everything which is not forbidden is allowed” is a legal maxim. It is the concept that any action can be taken unless there is a law against it. Slynn, Gordon; Andenæs, Mads Tønnesson; Fairgrieve, Duncan (2000), Judicial review in international perspective, Kluwer Law International, p. 256, ISBN 9789041113788. Glanville Williams, “The Concept of Legal Liberty”, Columbia Law Review 56 (1956): 1729. Cited in Dimitry Kochenov (2019), Citizenship, ISBN 9780262537797, p. 159. It is also known in some situations as the “general power of competence” whereby the body or person being regulated is acknowledged to have competent judgement of their scope of action. A cartoon in Hugo Gernsback’s Electrical Experimenter lampooning proposed regulations to make radio a monopoly of the US Navy. The opposite principle “everything which is not allowed is forbidden” states that an action can only be taken if it is specifically allowed. A senior English judge, Sir John Laws, stated the principles as: “For the individual citizen, everything which is not forbidden is allowed; but for public bodies, and notably government, everything which is not allowed is forbidden.” Laws, John (October 2, 2017). “The Rule of Law: The Presumption of Liberty and Justice”. Judicial Review. 22 (4): 365–373. doi:10.1080/10854681.2017.1407068. S2CID 158167115 – via Taylor and Francis+NEJM. (Underlining is mine for emphasis). Legal philosopher Ota Weinberger put it this way: ” In a closed system in which all obligations are stated explicitly the following inference rules are valid: (XI) Everything which is not forbidden is allowed”. Weinberger, Ota (October 29, 1988). “The Role of Rules”. Ratio Juris. 1 (3): 224–240. doi:10.1111/j.1467-9337.1988.tb00016.x – via Wiley Online Library.’.

Furthermore, on the instruments of interpretations of the Nigerian Constitution and statutes, HON. JAMES ABIODUN FALEKE V. INEC & ORS. (2016) 18 NWLR (PART 1543) 61 AT 117 F–H per KEKERE-EKUN, JSC, who said: “The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided. See: A-G, Bendel State v. A-G, Federation (1981) 10 SC 132–134, (1982) 3 NCLR 1; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506. It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See: ‘Ojokolobo v. Alamu (1987) 3 NWLR Pt.61) 377 @ 402, F-H; Adisa v Oyinwola & Ors. (2000) 6 SC (Pt. II) 47, (2000) 10 NWLR (Pt. 674) 116; Saraki v. FRN (2016) LPELR–40013 SC, (2016) 3 NWLR (Pt. 1500) 531.” 2. OCHOLI ONOJO JAMES, SAN V. INEC & ORS. (2015) 12 NWLR (PART 1474) 538 AT 588 D–G also per KEKERE-EKUN, JSC, who had this to say– “In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their natural and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See: Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCI-R 293; Adetayo v. Ademola (2010) 15 *NWLR (supra) @ 190 191 G–A, 205 D–F.”. 3.  CHIEF (MRS.) O. V. EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS. (2006) 18 NWLR (PART 1012) 544 at 588: “It is settled law that the Court should, when interpreting the provisions of the Constitution, bear in mind that the function of the Constitution is to establish a framework and principles of Government, broad and in general terms, intended to apply to the varying conditions which the development of a plural and dynamic society must involve. Therefore, more technical rules of interpretation are to some extent inadmissible in a way as to defeat the principles of Government enshrined in the Constitution. Therefore, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution. See: Rabiu v. Kano State (1981) 2 NCLR 293, (1980) 8/11 SC 130; Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; A-G, Abia State v. A-G, Federation (2002) 6 NWLR (Pt. 763) 264.

I must also submit (as an emphasis) that Islamic Law is not a customary law rather, it has its root/source from the Quran, the Hadith, Ijma’a, Qiyaas with Ijtihaad being a resulting source of Islamic Law, and being in their written forms as customary law is unwritten, among other differences. Also, the National Assembly or the House of Assembly of a State lacks the constitutional powers to legislate on Islamic Marriage and all incidental matters thereto as the Constitution in section 262(2)(a) and (b) and section 277(2)(a) and (b), section 318(4) of the Constitution conferred such powers on the Grand Kadi of the Sharia Courts of Appeal of each State as the case might be. I humbly submit that Islamic Personal Law and the procedures thereto are sui generis under the Nigerian Constitution emanating from the Constitution itself just like the fundamental rights contained in Chapter IV of the Constitution. See: Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; (1992) 7 SCNJ (Pt.11) 388 P.400. Also, the superior authority of the Quran in Nigerian Islamic Personal Law has been upheld even by the Supreme Court of Nigeria. See the cases of: Alhaji Ila Alkamawa v. Alhaji Hassan Bello & Anor (1998) LPELR-424(SC) and Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; (1992) 7 SCNJ (Pt.11) 388 P.400. On the sui generis status of fundamental rights contained in Chapter IV of the Constitution and the procedures or Rules made thereto, see the cases of: Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A., Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. and Odogwu v A.G. of the Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6.

Therefore, on the issue as to the issue on ‘THE PERMISSIBILITY OF MUSLIMS IN STATES WITH NO ISLAMIC MARRIAGE REGISTRY TO OBTAIN SUCH ISLAMIC MARRIAGE CERTIFICATE IN ANY OF THE STATES IN NIGERIA THAT HAS ISLAMIC MARRIAGE REGISTRY ESTABLISHED; FOR THE PURPOSE OF ISLAMIC PERSONAL LAW/FAMILY LAW MATTERS’, it is my humble submission that any Muslim or Muslim couple that resides in a State within which Islamic Court or Sharia Court has not been established by the Legislative Arm of the government (i.e. the State House of Assembly) or where a Sharia Court of Appeal has been so established in that State but an Islamic Marriage Registry has not been so established by the Grand Kadi of that Sharia Court of Appeal, may approach any of the Sharia Courts established by any of the States of the Federation in Nigeria to obtain such Islamic Certificate without the need to obtain the Marriage Certificate from a non-Islamic or Common Law Court or Marriage Registry (as some Muslims do this days out of frustration and or compulsion by circumstances) and such Islamic Marriage Certificate is admissible in evidence before any Sharia Court for any evidential purposes before any: Ministry; embassy; etc.

 

THE HISTORICAL BACKGROUND OF THE INCLUSION OF THE PROVISIONS FOR THE ESTABLISHMENT OF SHARIA COURTS OF APPEAL IN THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA: A GUIDING TOOL TOWARDS THE UNDERSTANDING OF THE THE PERMISSIBILITY OF MUSLIMS IN STATES WITH NO ISLAMIC MARRIAGE REGISTRY TO OBTAIN SUCH ISLAMIC MARRIAGE CERTIFICATE IN ANY OF THE STATES IN NIGERIA THAT HAS ISLAMIC MARRIAGE REGISTRY ESTABLISHED; FOR THE PURPOSE OF ISLAMIC PERSONAL LAW/FAMILY LAW MATTERS’:

 

Almost everything that exits in life is not without its historical background, such is the nature of the inclusion of the provisions for the establishment of Sharia Courts in the Constitution as contained in section 260 and the jurisdiction thereto contained in section 262 relating to the Sharia Court of Appeal of the Federal Capital Territory, Abuja, and the provisions of section 275 and the jurisdiction thereto contained in section 277 of the Constitution relating any other State that requires the establishment of a Sharia Court of Appeal in that State.

I was (not quite long a time) having a discussion with a staff of the Sharia Court of Appeal, FCT-Abuja, on some Islamic matters. He briefed me (though briefly) of the historical background that led to the inclusion of the provision for the establishment of Sharia Courts in the Constitution as well as the roles played by our Islamic scholars during the colonial period (especially by our scholars in the Northern part of Nigeria) when the Constitution was to be made for the Federal Republic of Nigeria. According to him, it took a lot of reluctance to permit the inclusion of ‘Islamic religion’ or the ‘practices thereto’ in the Constitution and if this rejection was to succeed, it would not have been possible for Muslims in Nigeria to even practice in their religion of Islam in Nigeria (thanks to the Islamic scholars in the Northern part of Nigeria who stood their ground!). After so much deliberations and consultations, the Islamic Personal Law/Family Law was the only aspect of Islam that could be achieved hence, its inclusion in the Constitution and all other repealed and amendment thereto till the 1999 Constitution of today. In fact, item 61 of the Part 1 of the Second Schedule to the Constitution limits the powers of the National Assembly from legislating on Islamic Personal Law/Family Law matters as Islam by Quran, the Hadith, Ijma’a, Qiyaas with Ijtihaad being a resulting source of Islamic Law, and being in their written forms have already made legislations in relation to the Islamic Personal/Family Law matters. The said item 61 provides thus ‘The formation, annulment and dissolution of marriages other than marriages under Islamic Law and Customary Law, including matrimonial causes relating thereto.’ (underlining is mine for emphasis). The principle of law is therefore clear that as used in the Latin maxim  ‘SPECIALIA GENERALIBUS DEROGANT’ “Where there are 2 enactments, one making specific provisions and the other, general provisions, the specific provisions are impliedly excluded from the general provisions”:  AGF vs ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 472E, per Onu, JSC “Where there are 2 provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision”: SCHROEDER vs. MAJOR & CO. (1989) 1 NSCC 399 @ 406 per Agbaje & Wali, JJSC. Therefore, it is my humble submission that by item 61 (supra), the Islamic Personal Law/Family Law matters (including issue relating to the issuance of ‘Islamic Marriage Certificate’ by Islamic Marriage Registry and all other incidental matters relating thereto applicable to any Nigerian Muslim are specific provisions which are impliedly excluded from the general legislative powers of the National Assembly (and by extension, the House of Assembly of a State, and that is in my humble submission, the intention of the drafters of the Constitution).

May Almighty Allaah continue to bless and reward all those scholars for their achievements in this regard and grant them Al-jannatu-Firdaus! Aamiin! The criminal aspect of Islamic jurisprudence or Law was rejected, hence, Nigeria not practicing the Islamic Criminal Law till date. The other aspects that have to do with: faith; morals; and some parts of the Islamic jurisprudence: such as: salat (prayer); fast of the month of Ramadan (i.e. in the 9th month of the Islamic calendar); Zakaat (alms giving); Hajj (pilgrim); and all other jurisprudential aspects that are not within the rejected aspects of the Islamic jurisprudence, are being regarded as part of the Islamic practices as guaranteed under sections: 38; and 42 of the Constitution respectively and under the international human rights laws. I however wish to add that while Islamic Personal Law/Family Law has been long accepted in the Northern Part of Nigeria, the South-Western Part of Islam have been reluctant to establish Sharia Court even where the Constitution in section 275 has empowered them to so establish.  I hope our Islamic Scholars in the south-Western Part States of Nigeria would prevail upon the situation, at least to ease and conform the Muslims in those States. I however hope that we Muslims have these historical background written in our Islamic archives! If, however we have not, I am of the firm view and recommendation that this resolution is worthy and advisable so that our generations would appreciate the efforts of their predecessors and understand the historical background of the establishment of the Sharia Court in Nigeria.

From the above narrations, it is in my humble view, that the historical background as discussed above (and the details of same, possibly elsewhere outside this paper) has explained the intention of the law makers or the drafters of the Constitution to the effect and my humble submission that the purpose of establishing Sharia Courts throughout Nigeria for each State is not to create a territorial limit or Islamic differences of a State from another State, rather, Islamic law as a written law of Muslims is generally acceptable as made by the Quran, the Hadith, the Ijm’a and the Qiyas all through out of the entire human life (and in this instance, throughout the Federal Republic of Nigeria, as one religion of Muslims and Muslims who have submitted to the religion of Islam). Also, this brief historical background substantiates my humble legal submission and analyses on the permissibility of any Muslim or Muslim couple that resides in a State within which Islamic Court or Sharia Court has not been established by the Legislative Arm of the government (i.e. the State House of Assembly) or where a Sharia Court of Appeal has been so established in that State but an Islamic Marriage Registry has not been so established by the Grand Kadi of that Sharia Court of Appeal, may approach any of the Sharia Courts established by any of the States of the Federation in Nigeria to obtain such Islamic Certificate without the need to obtain the Marriage Certificate from a non-Islamic or Common Law Court or Marriage Registry (as some Muslims do this days out of frustration and or compulsion by circumstances) and such Islamic Marriage Certificate is admissible in evidence before any Sharia Court for any evidential purposes before any: Ministry; embassy; etc. having regard to the provisions of section 262(2)(a) and (b) (and 277(2)(a) and (b)) of the Constitution (supra) and other legal authorities that I have relied upon in this paper. Therefore, any Muslim or Muslim couple that resides in a State within which Islamic Court or Sharia Court has not been established by the Legislative Arm of the government (i.e. the State House of Assembly) or where a Sharia Court of Appeal has been so established in that State but an Islamic Marriage Registry has not been so established by the Grand Kadi of that Sharia Court of Appeal, may approach any of the Sharia Courts established by any of the States of the Federation in Nigeria to obtain such Islamic Certificate without the need to obtain the Marriage Certificate from a non-Islamic or Common Law Court or Marriage Registry (as some Muslims do this days out of frustration and or compulsion by circumstances) and such Islamic Marriage Certificate is admissible in evidence before any Sharia Court for any evidential purposes before any: Ministry; embassy; etc. having regard to the provisions of section 262(2)(a) and (b) (and 277(2)(a) and (b)) of the Constitution (supra) and other legal authorities that I have relied upon in this paper.

 

CONCLUSION AND RECOMMENDATION:

It is therefore my humble submission that there is no provision of the Constitution that prohibits the Honourable Grand Kadi of the Sharia Court of Appeal of the Sharia Court of Appeal of each State (FCT- here is regarded as a State) from establishing such Islamic Marriage Registry to issue Islamic Marriage Certificate to Nigerian Muslims and there is no such prohibition under the Constitution prohibiting any person or Muslim or Muslim couple who resides in a State that have no Sharia Court established in that State or which has Sharia Court of Appeal established but Islamic Marriage Registry has not been established therein, to obtain Islamic Marriage Certificate from any of the Sharia Courts of Appeal established in any other States to resolve his or her Islamic Personal Law/Family Law matters or needs. It is therefore my humble submission that: the Honourable Grand Kadi of the Sharia Court of Appeal of each State (FCT- here is regarded as a State) has such ‘incidental powers’ to establish such Islamic Marriage Registry to issue Islamic Marriage Certificate to Nigerian Muslims; and any Muslim or Muslim couple that resides in a State within which Islamic Court or Sharia Court has not been established by the Legislative Arm of the government (i.e. the State House of Assembly) or where a Sharia Court of Appeal has been so established in that State but an Islamic Marriage Registry has not been so established by the Grand Kadi of that Sharia Court of Appeal, may approach any of the Sharia Courts established by any of the States of the Federation in Nigeria to obtain such Islamic Certificate without the need to obtain the Marriage Certificate from a non-Islamic or Common Law Court or Marriage Registry (as some Muslims do this days out of frustration and or compulsion by circumstances) and such Islamic Marriage Certificate is admissible in evidence before any Sharia Court for any evidential purposes before any: Ministry; embassy; etc. having regard to the provisions of section 262(2)(a) and (b) (and 277(2)(a) and (b)) of the Constitution (supra) and other legal authorities that I have relied upon in this paper.

I also recommend (humbly) that each of the Honourable Grand Kadis of each of the Sharia Courts of Appeal in Nigeria should utilize His Lordship’s ‘incidental powers’ under the law (as I had submitted above) to establish the Islamic Marriage Registry in their respective State for the Muslims in that State to benefit from as well as the Muslims of other States in Nigeria, who are Nigerians (home and abroad) especially too, those Muslims residing within the State in which Islamic Court or Sharia Court has not been established by the Legislative Arm of the government (i.e. the State House of Assembly) or where a Sharia Court of Appeal has been so established in that State but an Islamic Marriage Registry has not been so established by the Grand Kadi of that Sharia Court of Appeal, so that such Muslim may approach any of the Sharia Courts established by any of the States of the Federation in Nigeria to obtain such Islamic Certificate without the need to obtain the Marriage Certificate from a non-Islamic or Common Law Court or Marriage Registry (as some Muslims do this days out of frustration and or compulsion by circumstances) and such Islamic Marriage Certificate is admissible in evidence before any Sharia Court for any evidential purposes before any: Ministry; embassy; etc.   

Finally, I accept every error of thought and reasoning and writing etc. in this paper as that of mine. I assure that the error is not made deliberately but as a human error and I accept responsibility for such error while I pray to Almighty Allaah to forgive me and overlook my shortcomings made in this paper and to accept it as rewarding deed for me and as a source of granting me Al-Jannatul Firdaws! Aamiin!

For any further engagement or consultation or discussion with me on this topic by the reader of this paper, I can be reached on the below contacts.

 

Email: hameed_ajibola@yahoo.com        08168292549 (WhatsApp number and for calls).


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