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Disputes Relating to the Appointment of Imams in Nigeria: Jurisdictional Competition Between Islamic Courts and the High Court

Published online by Cambridge University Press:  22 May 2025

Abdulmumini A Oba Open the ORCID record for Abdulmumini A Oba [Opens in a new window]  and
Ismael Saka Ismael Open the ORCID record for Ismael Saka Ismael [Opens in a new window]
Abdulmumini A Oba*
Affiliation:
Faculty of Law, University of Ilorin, Ilorin, Nigeria
Ismael Saka Ismael
Affiliation:
Faculty of Law, University of Ilorin, Ilorin, Nigeria
*
Corresponding author: Abdulmumini A Oba; Email: obaadebayo@unilorin.edu.ng
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Abstract

Nigeria’s legal system is pluralistic with the common law, Islamic law and customary law as the main legal traditions. These legal traditions have their courts within a unified judiciary. Disputes relating to the appointment of imams often end in the English-style courts rather than Islamic courts. This paper examines the controversies regarding which courts within the Nigerian plural courts system have or should have the original and appellate jurisdiction in such disputes. The paper argues that mosques are waqf properties and thus should come within the ambit of Islamic personal law as defined by the Constitution. The paper concludes, inter alia, that in all instances, the courts vested with jurisdiction to hear disputes relating to the appointment of imams should be operated by judges who are learned in Islamic law and where this is not possible, the courts should use assessors who are experts in Islamic law to assist the judges.

Keywords

Abdulsalaam v SalawuEnglish-style courtsIslamic personal lawjurisdiction of the Sharia Court of Appealmosqueswaqf

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Type
Research Article
Information
Journal of African Law , First View , pp. 1 - 17
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of SOAS, University of London.

Introduction

Nigeria is a multi-religious country consisting of Muslims, Christians and adherents of African traditional religions with an estimated population of 53.5 per cent, 45.9 per cent and 0.6 per cent respectively in 2018.Footnote 1 The attitude of the Nigerian state to religion is premised on the principles of non-adoption of any religion as a state religion and freedom of religion.Footnote 2 This means there is no official regulation of the internal affairs of Islam. Religious institutions come within the ambit of the law and the judiciary. While there is a legal framework for the incorporation of registered trustees of religious groups and associations,Footnote 3 the state does not interfere in matters of doctrine. Without any clear and binding internal framework for resolving disputes within religious bodies, such disputes often end in the state courts. However, the courts will not generally concern themselves with matters relating to religious creeds and tenets or with the religious faith of the judges adjudicating on disputes.Footnote 4

The Nigerian legal system is pluralistic with common law, Islamic law and customary law as its major legal systems / traditions.Footnote 5 The country’s court systems feature “English-style courts” (the High Courts, Court of Appeal and Supreme Court), “Islamic courts” (area courts/Sharia courts and the Sharia Court of Appeal) and customary courts. However, these different types of courts do not exist as independent parallel courts but are within a unified court system dominated by the common law courts.Footnote 6 Appeals from the area courts/Sharia courts systems go to the Sharia Court of Appeal in matters of Islamic personal law while other Islamic law matters go to the High Court.Footnote 7 Appeals from the customary courts go to the Customary Court of Appeal in matters of customary law and to the High Court in other matters. Appeals from the High Court, the Sharia Court of Appeal and the Customary Court of Appeal go to the Court of Appeal where special panels of the court hear the appeals relating to matters of Islamic personal law and appeals relating to customary law matters respectively.Footnote 8 Appeals from the Court of Appeal go to the Supreme Court where there are no special panels or any special arrangements for the hearing of Islamic personal law cases. The Constitution of the Federal Republic of Nigeria (the Constitution or the 1999 Constitution) categorizes courts as “superior courts of record” that are specifically designated thus by the Constitution which includes the Supreme Court, Court of Appeal, High Court and the Sharia Court of Appeal,Footnote 9 and “courts with subordinate jurisdiction to that of a High Court” which the ConstitutionFootnote 10 allows the states to establish and the courts that the states have so established include the customary courts, the area courts and the Sharia courts. In this paper, area courts, Sharia courts and the Sharia Court of Appeal are referred to as “Islamic courts” while the High Court, the regular panel of the Court of Appeal and the Supreme Court are considered “English-style courts”.

Mosques are pivotal to Islam and imams as prayer leaders are important to the administration of mosques. The official madhhab [school] of Islamic law in the country is the Maliki School “as customarily interpreted”.Footnote 11 The Maliki School is not averse to customs that are not inconsistent or contrary to Islamic law.Footnote 12 Disputes concerning the administration of mosques, including those relating to the appointment of imams in the country, are generally decided by a combination of Islamic law and customary law, and, in some cases, state law.Footnote 13 The actual mix of this combination in any particular mosque depends on the location of the mosque and those who established the mosque.Footnote 14

Determining which courts have or should have jurisdiction in disputes relating to the administration of mosques and the appointment of imams is a rather complex and complicated affair. In Nigeria, Islamic law matters are separated into those concerning Islamic personal law and those relating to all other Islamic civil law matters. Different courts administer these two types of Islamic law matters which are again different in the southern and northern states. The jurisdictional competition between the courts on matters relating to the administration of mosques takes different dimensions in the southern and northern parts of the country respectively. The courts that are competing or could compete for the original jurisdiction in matters relating to the appointment of imams are customary courts, the Sharia courts, area courts, the High Court and the Sharia Court of Appeal while the High Court and the Sharia Court of Appeal could be the possible appellate courts.

This article examines the controversies as to which courts within the Nigerian plural courts system can or should adjudicate on disputes concerning the appointment of imams. After this introduction, the article puts the study in a proper perspective by discussing the scope of Islamic personal law with a particular focus on the concept of waqf, given the argument that a mosque or the administration thereof comes within the ambit of waqf. The article then discusses the courts that have or should have the original jurisdiction in disputes concerning the appointment of imams which is within the legislative competence of the states. The article also discusses the courts that have or should have appellate jurisdiction in such disputes which jurisdiction is determined by the Constitution exclusively. Before the conclusion, the article argues that mosques are waqf properties and thus should come within the ambit of Islamic personal law as defined by the Constitution.

Scope of Islamic personal law in Nigeria

In the pre-colonial era, Islamic law was applied fully in most areas of what is now northern Nigeria.Footnote 15 The colonial authorities introduced the classification of Islamic civil law into “Islamic personal law” and “other Islamic matters”.Footnote 16 As Nasir rightly pointed out, Islamic personal law or “law of personal status” known in Arabic as al-ahwalal-Shakhṣiyah is “a recent legal term in Arabic, unknown to classical Islamic jurists, and non-existent in all classical texts of Islamic jurisprudence”.Footnote 17 The classification of waqf (and hibah [gifts]) is also strange as Islamic jurists classify both under property law rather than family law.Footnote 18

Islamic law is wider than “Islamic personal law”.Footnote 19 The concept of Islamic personal law has now divided Islamic civil matters in the country into “Islamic personal law” and “other Islamic law” matters or more limitedly “other Islamic civil matters”. The concept of Islamic personal law allowed the colonial authorities to divert Islamic law matters away from Islamic courts to English-style courts, thereby stifling an orderly development of Islamic law jurisprudence in the country.Footnote 20 The classification and its effect have continued well into the independence era. Section 277 of the 1999 Constitution when defining the jurisdiction of the Sharia Court of Appeal also defines matters that fall within Islamic personal law. The section reads:

“(1) The Sharia Court of Appeal of a State shall, in addition to such other 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 –

  1. 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;

  2. b) where all the parties to the proceedings 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.

  3. 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;

  4. 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

  5. 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.”

Section 277(2)(c) refers to wakf, Footnote 21 the endower and donor, which is of central importance to this study. The possible classification of mosques as waqf is important because waqf comes within Islamic personal law, in which case, it is the Sharia Court of Appeal and not the High Court that has jurisdiction.Footnote 22 This is because the Sharia Court of Appeal has exclusive jurisdiction in matters of Islamic personal law while the High Court has jurisdiction over all other Islamic civil matters.

While the incorporation of corporate bodies is within the legislative competence of the federal government,Footnote 23 the regulation of the operations of waqf is left to the state governments because waqf is not on the exclusive legislative list.Footnote 24 The issue of mosques as waqf within the Nigerian plural legal system is also complex because there is no legal regulation of waqf in the country.Footnote 25 In the country, waqf have been expressed in different legal forms such as charitable trust,Footnote 26 “mutual fund”,Footnote 27 an unincorporated associationFootnote 28 and an incorporated association. The Islamic revivalism that came in the post-1999 era witnessed eight statesFootnote 29 enacting laws and establishing institutions for the collection and administration of zakat, ṣadaqah and waqf.Footnote 30 The diversity of waqf raises the issue of the proper judicial forum for adjudication of disputes arising from the management of the waqf.

Despite the affinity of mosques to waqf, there has been no serious effort in and by the courts to bring disputes concerning the appointment of imams within the ambit of Islamic personal law. Thus, the competition between the courts for jurisdiction in matters relating to the appointment of imams has gone with little or no reference to the mosques as waqf.

The competition for original jurisdiction

The possible courts of subordinate jurisdiction that could compete for original jurisdiction in cases concerning the appointment of an imam are the customary courts and High Court in the South, and in the North, area courts, Sharia courts, High Court and the Sharia Court of Appeal. In the North, each of the states used its Area Court Law enacted in 1967 or 1968 which replaced the Native Courts Law established for the defunct northern region.Footnote 31 The native courts were largely the pre-colonial Alkali courts renamed.Footnote 32 However, these states subsequently evolved along two distinct lines. The first consists of the seven northern states that did not adopt Islamic law in the post-1999 era.Footnote 33 Some of these states retained the Area Court Laws made in 1967 while some states have introduced important amendments to their Area Court Laws. Adamawa StateFootnote 34 and Kwara State (before 2007) illustrate the first scenario while Kwara State after the 2007 amendment of its Area Court Law illustrates the second scenario. The second group consists of the 12 states that established Sharia courts following their adoption of Islamic law in the post-1999 era.Footnote 35 The Sharia courts of Kaduna State, Zamfara and Niger States respectively are analyzed below as examples of this group.

Customary courts

In the southern part of the country, there are no Islamic courts at the level of courts of subordinate jurisdiction.Footnote 36 Customary courts would not take cognizance of Islamic cases. The position is premised on the Supreme Court decisions to the effect that Islamic law and customary law are not the same.Footnote 37 The implication is that where the law grants a court jurisdiction in customary law that jurisdiction does not extend to matters of Islamic law. This position is illustrated in Afinni v The President and Members of Grade “B” Customary Court, Isolo Footnote 38 where the Lagos High Court held that a customary court in the state does not have the jurisdiction to grant a divorce for a couple who married under Islamic law. Lagos State has tried to address this anomaly that deprives such persons of access to justice. The Lagos State Customary Court Law, 2011 now provides that in the customary courts, “customary law” includes “Islamic law and custom” and that the Judicial Service Commission for Lagos State “may designate a Court to adjudicate on Islamic law and matters in relation to marriage, divorce, custody and inheritance as it deems fit”.Footnote 39 However, it does not seem that this limited arrangement will accommodate disputes relating to appointments of imams and such cases will continue to be filed at the High Court.

Area courts

In the North, area courts and Sharia courts are trial courts of subordinate jurisdiction to the High Court established under the powers granted by the Constitution.Footnote 40 In some states in the North, area courts have jurisdiction in matters relating to customary law and Islamic law. However, the ambit of their jurisdictions on Islamic law matters is not always explicit.

In Kwara State, before 2007, section 18 of the Area Court LawFootnote 41 stipulated that an area court shall have jurisdiction in “all civil and criminal cases in which all the parties are subject to the jurisdiction of such area court”. In addition, section 20 empowered the court to apply, inter alia, “the Customary Law prevailing in the area of the jurisdiction of the court or binding between the parties”. Section 21 further allows the court to apply in “mixed causes”, and “the particular Customary Law which the parties agreed or intended, or may be presumed to have agreed or intended should regulate their obligations in connection with the transactions which are in controversy before the court”. The law also provided: “[A]ll question of Islamic personal law shall be heard and determined by the area judge or any member learned in Islamic law sitting alone”.Footnote 42 Part II of the schedule to the Area Court Law defined the monetary limits to the jurisdiction of courts in matrimonial causes and matters between persons married under customary law; suits relating to custody of children under customary law; and causes or matters relating to succession to property and administration of estates under customary law. Other items are “3. Civil actions in which the debt demand or damages do not exceed the amounts specified in the respective columns” and “5. Causes and matters concerning the ownership, possession or occupation of law under a customary right of occupancy…” Islamic law was not directly referred to in the schedule.

In Olanipekun v Balogun,Footnote 43 it was argued before the Kwara State High Court that the area courts do not have jurisdiction in disputes relating to the appointment of an imam of a mosque since such disputes are not included in the schedule of the Area Courts Law. In rejecting this argument, the court held that the items listed in the schedule are not exhaustive. The court held that the area courts have jurisdiction in disputes relating to the appointment of an imam of a mosque since such are matters of Islamic law, which are within the jurisdiction of the courts. The court held further that in any case, the schedule cannot override the provisions of section 20 and section 21. In 2007, the Area Courts Law was amended.Footnote 44 The amendment relevant to this paper is the addition of “Islamic or Customary Law” in some of the items listed in the schedule to the new law instead of “Customary Law” in the old schedule. Arguably, the amendment is redundant since “customary law” was and is still defined to include “Islamic law” under the High Court Laws applicable in the state before and after 2007.Footnote 45 However, the amendment may be useful because no law previously defined customary law as including Islamic law in the area courts.

In Olawore v Falali,Footnote 46 another panel of the Kwara State High Court held that the jurisdiction of the area courts in Islamic law matters is limited only to matters enumerated in the schedule to the law. The court distinguished Olanipekun v Balogun on the ground that the decision in that case “was based on the construction of the schedule to the Area Courts Law, Cap 13, Laws of Kwara State, 1991 while the appeal on hand is on the construction of a clear and wider schedule to the Area Court Law, Cap A9, Laws of Kwara State, 2007”.Footnote 47

There are strong arguments in favour of affirming the jurisdiction of the area courts in imamship cases. The first is that the 2007 law strengthens the area court’s jurisdiction by expressly including Islamic law in a few of the items listed in the schedule. The second reason is the wide jurisdiction conferred on area courts by item 3 on the schedule to the 2007 law. The item reads: “Civil actions in which the debt demand or damages do not exceed the amounts specified in the respective columns”. It is submitted here that the phrase “debt demand or damages” is wide enough to cover all aspects of civil law in Islamic law or customary law even though these laws are not expressly mentioned in connection with the item. The phrase contains three words “debt”, “demand” and “damages” which should be construed as independent words as it would be absurd to construct the first two as “debt-demand”. A third reason is that the Area Court Rules 2007 distinguishes between “Moslem cases” and “non-Moslem cases”. The rules provide that after the presentation of the case to the defendant, if the case is one “to which Moslem law is to be administered or applied, the court shall continue the hearing in accordance with Moslem practice and procedure”.Footnote 48 However, the rules did not define “Moslem cases” but it should include mosques affairs and appointment of imams.

If the construction adopted by the High Court in Olawore v Falali is correct, then the area court would not have jurisdiction in other Islamic personal law matters not mentioned in the schedule. These include matters relating to “wakf, gift, will” where the endower, donor, testator or deceased person is a Muslim, “any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Muslim”, “the maintenance or the guardianship of a Muslim who is physically or mentally infirm” and instances “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”.Footnote 49 Potential appeals to the Sharia Court of Appeal on these matters would also be frustrated thereby. Such an emasculated jurisdiction of the area court is an anomaly because area courts were originally Alkali courts before they became native courts, and now area courts.Footnote 50

In 2022, the new Area Courts (Civil Procedure) RulesFootnote 51 came into force.Footnote 52 Order 11 rule 1 thereof provides that in cases where Muslim law is applicable, the hearing of the case shall proceed “in accordance with Muslim practice and procedure”. Order 11 rule 2 also provides that “a sole Judge of the Area Court who is learned in Islamic law shall sit over Islamic matters”. The Area Courts Law 2007 has previously deleted a similar provision in the old Area Court Law for the hearing of matters of Islamic personal law. The new 2022 Rules have extended the jurisdiction of the Area Courts to all “Islamic matters”.

Sharia courts

The confusion surrounding the jurisdiction of courts in Islamic law matters is not present in the states where the Sharia courts replaced area courts under the post-1999 revival of Islamic law in northern Nigeria. For example, in Kaduna State, section 22(1) of the Sharia Courts Law states that the jurisdiction of the Sharia court in civil causes and matters shall be as prescribed in the first schedule. Item 6 in the first schedule gives the Sharia courts jurisdiction to hear, inter alia, civil “causes and matters under Islamic Law”.Footnote 53

High Court

Section 272 of the Constitution gives the High Court a wide jurisdiction that is subject only to other constitutional provisions:

“(1) Subject to the provisions of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

In the South, the High Court has original jurisdiction in disputes relating to appointments of imams.Footnote 54 In the North, such cases will originate in the lower courts that has jurisdiction. Where there are no courts with such jurisdiction, the case will originate in the High Court. There is no competition for original jurisdiction between the High Court and the Sharia Court of Appeal in these matters because the Sharia Court of Appeal has an appellate jurisdiction only and its jurisdiction is limited to matters of Islamic personal law.Footnote 55

In Abdulsalaam v Salawu,Footnote 56 the Supreme Court held that the jurisdiction of the Sharia Court of Appeal is limited to matters of Islamic personal law and that disputes relating to imamships do not come within Islamic personal law. Thus, the High Court is the proper forum for such disputes. At the trial court, the case, which was about who is entitled to be appointed to the Chief Imamship of Okengwe in Kogi State, was filed in the High Court. It was argued that the matter should have been filed at the Sharia Court of Appeal. The Court of Appeal rejected this argument. On further appeal, the Supreme Court held that such disputes do not fall within the ambit of Islamic personal law as defined by the Constitution and that the High Court and not the Sharia Court of Appeal was the proper venue for the case. Ayoola JSC also opined that the appellate jurisdiction given to the Sharia Court of Appeal does not detract from the unlimited jurisdiction given to the High Court.Footnote 57 Thus, the High Court has an original jurisdiction that includes all matters of Islamic law. The Supreme Court subsequently reiterated that the jurisdiction given to the Sharia Court of Appeal in matters relating to Islamic personal law is exclusive and cannot be exercised by the High Court.Footnote 58

Some have argued that this exclusivity is the absolute admitting of no exception.Footnote 59 The better position is that this exclusive jurisdiction of the Sharia Court of Appeal applies only in states that have established a Sharia Court of Appeal and not in states that do not have a Sharia Court of Appeal.Footnote 60 The scope of the unlimited original jurisdiction given to the High Court concerning matters of Islamic law came out vividly in Ibiyemi v Okunade Footnote 61 where the plaintiffs in the Osun State High Court claimed that the League of Imams, Ratibis and Alfas appointed the tenth plaintiff as the Chief Imam of Obaagun Central Mosque. The second respondent also claimed that the Oba of Obaagun appointed him (the second respondent) to the same post. The High Court, without hearing the parties, declined jurisdiction upon the submission of amici curie including the Independent Shari’ah Panel of Osun State,Footnote 62 an independent private arbitral body which the court had suo motu invited as amicus curiae.Footnote 63 On appeal, the Court of Appeal, relying on Abdulsalaam v Salawu, rejected the argument that since Islamic law governs the issue of appointment of imams, therefore the case cannot come before the High Court. The court held that the appointment of imams is not a matter within the ambit of Islamic personal law and that it is within the jurisdiction of the High Court to hear the case.Footnote 64 The court noted further the absence of lower Islamic courts in Osun State and the fact that the Sharia Court of Appeal, which in any case has not been established in the Osun State, is an appellate court only.Footnote 65

It has also been argued that the High Court should not have jurisdiction in any Islamic law matter because the judges of the court are not required to have any expertise in Islamic law.Footnote 66 The only academic and professional requirement for the office is that a “person shall not be qualified to hold office of a Judge of a High Court of a State unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years”.Footnote 67 Islamic law, including matters relating to the administration of mosques, can be quite technical. For example, in Okanle v Okanle,Footnote 68 decided by the Sharia court during the brief period when the jurisdiction of the Sharia Court of Appeal extended to all matters of Islamic law, the question in issue was when a town could be allowed to have more than one central mosque (Friday prayer masjid). The Kwara State Sharia Court of Appeal cited four important classical Maliki law manuals to support the position that it is permissible to establish another central mosque in a town where the people are divided by hostilities.Footnote 69 The court also cited two Maliki texts on when a court can revisit its judgment.Footnote 70

In Maida v Modu Footnote 71 Muntaka-Comassie JCA lamented the injustice in the High Court hearing Islamic law cases:

“It seems to me settled that the new 1999 constitution of the Federal Republic of Nigeria does not in anyway improve the jurisdiction of the Sharia Court in this country. It does not enhance the jurisdiction of those courts. This in my view, with all sense of responsibility, is unfair. In most cases, this appeal inclusive, one discovered that the land in dispute is situated in such a way that the rule of lex citus (sic) applies. The parties are both Moslems and consented to be governed by Islamic Law in Islamic Courts and lastly that the subject matters and issues involved called for intensive application of Islamic law and procedure which are not available in common law system. Moreover, the law to be applied in the High Court are (sic) quite alien to the parties and Sharia Court. I do not think that in such circumstances justice could be said to have been done to the parties and the subject matter.”Footnote 72

The most drastic consequence of High Courts hearing Islamic cases is the frequent misapplication or even non-application of Islamic law due to ignorance of even the most basic principles of Islamic law involved in the cases.Footnote 73 The Court of Appeal subsequently took a firm stance against judges of the High Court in the northern states who adjudicate on Islamic law matters without being experts in Islamic law. The court, in interpreting sections 62 and 64 of the High Court Law of the northern states,Footnote 74 held that where a High Court judge does not have expertise in Islamic law, that judge should sit with assessors who are Islamic law experts in order to do justice to the case otherwise his judgment would be a nullity.Footnote 75 Some justices of the Court of Appeal went further to say that the absence of Islamic law knowledge deprives such judges of jurisdiction on such matters.Footnote 76

It has not been easy for the judges of the High Court to get suitable assessors. The judges would not want lay persons and will only accommodate lawyers at best as amici curiae but not as assessors sitting with the court. They prefer to have judicial officers and the most suitable are Kadis of the Sharia Court of Appeal. However, the Kadis consider it infra dignitatem (and rightly too) to serve as assessors in a court they consider an equal to their court and in a court where they had hitherto served as full members. This is more so now that almost all if not all Kadis are also qualified lawyers which means that they have the same professional qualifications as the judges of the High Court and might even be professional seniors to the particular High Court judge.Footnote 77 The High Courts have relied mostly on judges of the Upper Area Court or Upper Sharia Courts as the case may be but this is an anomaly because the appeal in question came from those same courts.Footnote 78

Sharia Court of Appeal

The Sharia Court of Appeal is an optional court as only the states that want the court establish it.Footnote 79 All the states in the North except Benue State have the court. There is no Sharia Court of Appeal in the South. The Constitution grants the Sharia Court of Appeal appellate and supervisory jurisdiction in matters of Islamic personal law as enumerated in section 277(2) of the Constitution. The court has never had original jurisdiction in any matter. However, section 277(1) states that this jurisdiction is “in addition to such other jurisdiction as may be conferred upon it by the law of the State”. In Abdulsalaam v Salawu,Footnote 80 Uwais JSC (as he then was) in his concurring judgment alluded to the possibility of a state conferring original jurisdiction on the Sharia Court of Appeal when his lordship stated thus:

“Learned counsel did not refer us to any Kogi State Law, which gave the Sharia Court of Appeal of the State the jurisdiction to deal, at first instance, with any dispute relating to the appointment of an Imam, Chief Imam or Naibi, and whether such Law has excluded the State High Court from exercising jurisdiction in the subject matter of the dispute between the parties. It is necessary to point out that section 236 of the 1979 Constitution vested in the High Court of a State ‘unlimited jurisdiction’.”Footnote 81

Although his lordship held that the cases about the appointment of imams do not come within the ambit of Islamic personal law, this pronouncement offers a window for the expansion of the jurisdiction of the Sharia Court of Appeal to original jurisdiction in Islamic law matters either within or outside matters of Islamic personal law. Whilst the judge made a caveat regarding the jurisdiction of the High Court, it is apt to point out that the “unlimited jurisdiction” of the High Court is subject to the Constitution which confers on states the power to legislate on the jurisdiction of their Sharia Courts of Appeal. Although, no state has attempted to confer original jurisdiction on its Sharia Court of Appeal and the courts have rebuffed attempts to expand the appellate jurisdiction of the Sharia Court of Appeal to Islamic law matters beyond Islamic personal law,Footnote 82 this window is open for states to explore in pursuit of original jurisdiction for their Sharia Courts of Appeal.

The competition for appellate jurisdiction

In the North, appeals from area courts and Sharia courts go to the Sharia Court of Appeal in matters of Islamic personal law only while all other Islamic law matters including disputes concerning the appointment of imams go to the High Court.Footnote 83 Hitherto, Kadis of the Sharia Court of Appeal sat on High Court panels hearing appeals in Islamic law cases from the area courts but this arrangement has been judicially nullified.Footnote 84

This has been the position since the advent of the 1979 Constitution up to the present time except for the brief period under the 1989 Constitution when the Sharia Court of Appeal had “appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic law where all the parties are Muslims”.Footnote 85 During this era, the Sharia Court of Appeal decided all Islamic law civil cases including those relating to the imamship of mosques.Footnote 86 However, this arrangement did not last. The Sharia Court of Appeal remained a court whose jurisdiction is limited to Islamic personal law only. Apart from this, all the legislative attempts to expand the jurisdiction of the Sharia Court of Appeal to all Islamic civil matters prior to 1999 were firmly blocked by the (English-style) courts.Footnote 87

The position of the courts is that the jurisdiction that the Constitution confers on the Sharia Court of Appeal is restricted to matters of Islamic personal law. Karibi-Whtye JSC expressed this in his concurring judgment in Magaji v Matari Footnote 88 in an emphatic manner: “The intention of the Constitutional provision which is very clear is to confine and limit the exercise of the jurisdiction of the Sharia Court of Appeal to subject matters of Islamic personal law. The intention cannot be subverted by strained construction of the provision to give it an unintended meaning”.Footnote 89

This statement captures vividly the uncompromising attitude of the English-style courts to the jurisdiction of the Sharia Court of Appeal.Footnote 90 With due respect, the actual text does not support the purported intention of the Constitution inferred by his lordship unless one ignores the phrase in addition to such other jurisdiction as may be conferred upon it by the law of the state in section 277(1) of the Constitution as was done in the cases that limited the jurisdiction of the Sharia Court of Appeal to Islamic personal law only despite the clear legislation by some states to expand the jurisdiction of the court in the post-1999 era.Footnote 91 The courts have not allowed the jurisdiction of the Sharia Court of Appeal to go beyond the matters of Islamic personal law itemized in section 277(2) of the Constitution. This reasoning is, with all due respect, not convincing because there are two clauses in section 277(1) but the courts ignored the first clause that gave the states the power to grant additional jurisdiction to the court and considered only the second clause that links Islamic personal law with the items listed in section 277(2). In essence, the courts treated the first clause as being non-existent!Footnote 92 There is no reason to hold that the first clause is subordinate to the second rather than holding that the second clause is subordinate to the first. Perhaps, a better interpretation is that the first clause allows states to grant to the court additional jurisdiction in other matters within Islamic civil matters.

The ambit of some items on the Constitution’s definition of Islamic personal law, in particular waqf, has been sufficiently explored by the courts. For example in Abdulsalaam v Salawu, the Supreme Court decided that the administration of mosques does not come within matters of Islamic personal law enunciated by the Constitution without making any reference to Islamic law sources. Waqf being an Islamic law concept can only be defined in Islamic law terms. This may be due to the absence of Islamic law experts among the judges that heard the case from the trial court to the apex court.Footnote 93 Though there were Muslims among the judges, they are not experts in Islamic law.Footnote 94 Thus, the Supreme Court did not consider the possibility that under Islamic law, mosques are waqf and thus come within the ambit of Islamic personal law. If the court had considered and affirmed this argument, its judgment would have been different.

Mosques as waqf or waqf properties under Islamic law

Mosques [masājid, singular masjid] refer to the places set aside for the performance of the canonical Muslim prayers [ṣalat].Footnote 95 In Islamic law, the appointment of imams of some mosques is a matter of siyāsah [politics or policy] which is outside the jurisdiction of the Qadi.Footnote 96 As a matter of siyāsah, the appointment of imams is one of the fundamental duties and powers of the ruler,Footnote 97 that is, the Caliph or the Emir who must be a Muslim.Footnote 98 The Qadi has exclusive supervisory jurisdiction on waqf/ḥabs.Footnote 99 This was also the position of the leaders of the pre-colonial Sokoto Caliphate.Footnote 100

Mosques can be classified as “private” mosques whose entry is restricted according to the whims of the owner and “public mosques” that are open to all.Footnote 101 These are musallan rather than mosques in the technical sense. A mosque is a prayer place open to all Muslims. Once a musallan is opened to the public, it becomes a mosque, the control of which leaves private hands.Footnote 102 A building intended as a mosque does not need any consecration, dedication or special ceremony before it becomes a mosque. In terms of the ṣīgāh [form or documentation], a mosque does not need or require any formal document or documentation to become a waqf.Footnote 103 According to the Maliki School, once the public commences praying in a mosque, the ownership becomes inconsequential because the mosque becomes a ḥabs or ḥubus (plural aḥbas), that is, a property detained in the way of Allah and, thus, inalienable.Footnote 104 Waqf and ḥabs are generally used interchangeably by Islamic scholars although ḥabs is commonly used by Maliki scholars.Footnote 105 There are two classes of waqf, namely, waqf ahlī [family waqf] creatable for the welfare of the endower’s family, close relatives and their descendants,Footnote 106 and waqf khayrī [waqf for benefit of the public] which includes waqf dinī [religious waqf]. There is no disagreement among Islamic scholars that a waqf khayri can be for the establishment, building and maintenance of mosques.Footnote 107

Waqf has been variously translated or construed as “endowment”,Footnote 108 mortmainFootnote 109 and “trust estate”.Footnote 110 Although some have affirmed the indebtedness of the English law of trust to Islamic law,Footnote 111 there are differences between the two legal institutions.Footnote 112 As Ambali rightly argued, the scope of waqf as defined in Islamic law is much wider than the English concept of the endowment.Footnote 113 In any case, the legal requirements under English law for trusts are often more complicated than the simple process that Islamic law envisages for waqf. In addition, there is also the question of legal personality which the common law grants to artificial entities but which Islamic law does not grant.Footnote 114

Again, Abdulsalaam v Salawu decided that the appointment of an imam of a central mosque is not within the ambit of Islamic personal law without making any reference to or analysis of Islamic law sources. However, some Islamic scholars arguing from the perspective of the Maliki School have asserted that public mosques are waqf properties and that the appointment of an imam of a mosque relates to the administration of the mosques, that is the administration of a waqf. Ambali, a former Grand Kadi of Kwara State, argued that public mosques (which he defined as masjids that open to members of the public as opposed to private mosques open only to a select few) are by their very nature waqf and that imamship issues are inseparable from the management of such mosques.Footnote 115 He stated that Islamic law has comprehensive provisions for the establishment and management of masjid and that the makers of the Constitution deliberately used the word wakf in its pure Islamic terminology to ensure that this Islamic law governs all forms of disputes relating to the management of public mosques. He opined that since waqf is an Islamic law concept, the Sharia Court of Appeal rather than the High Court is better placed to adjudicate on issues concerning the administration of mosques. Similarly, Ishola and Abdul Kader argue that when a person builds a mosque, it becomes waqf the moment that person allows the people to offer prayers in the mosque.Footnote 116 They argued further that since any waqf is made for the sake of earning Allah’s good pleasure and ownership of waqf properties transfer to Allah upon being so dedicated as waqf, a mosque cannot be anything but waqf.Footnote 117 They cited the verse from the Quran quoted above.Footnote 118 Thus, they concluded that there is an irrefutable presumption of Islamic law that any mosque is waqf.Footnote 119

Nigerian courts have taken different positions on whether mosques are, by their very nature, waqf properties. In 1982, the Court of Appeal in Onibudo v Akibu Footnote 120 affirmed the traditional Maliki view when Uthman Mohammed JCA (as he then was) stated:

“Under the Islamic Law, [the] mosque is regarded as the House of Allah. It belongs to no one. It is not a property which could be inherited and it could not be claimed by anyone. If a [Muslim] builds a mosque, unless it is within the walls of his compound, the property in it will automatically become a charity for [the] religious use of the [Muslim] Community. Not even the person who builds it with his own money has the right to exclude any [Muslim] from praying in it. You cannot possess what you have given away for the worship of God and it is a gift which you cannot recover.”Footnote 121

Although the Supreme Court set aside the decision on the ground that there was no evidence in the case before the Court of Appeal of the applicable Islamic law,Footnote 122 Bello JSC in indicating his approval for the quoted portion pointed out that Uthman Mohammed JCA was an expert in Islamic law. Bello JSC also agreed that the statement does not apply to mosques within private houses.Footnote 123

In Abdulsalaam v Salawu,Footnote 124 counsel in the appeal neither brought Onibudo’s case to the attention of the Supreme Court nor advanced any argument from the Islamic law perspective to bring mosques within the scope of waqf. It is also probable that the learned justices who heard the appeal and the counsel who argued the appeal before the court were not experts in Islamic law and thus not aware of the link between mosques and waqf. There could be other reasons for the silence on the issue. It could be that waqfs are not common in West Africa generally and thus not within the popular perception.Footnote 125 Nuruddeen argues that waqf might have not existed as an institution in northern Nigeria but that informal waqf existed.Footnote 126 It could also be that the link between Islamic personal law and waqf is spurious. As Islamic law classifies waqf under property law and not family law, it will not be strange if a lawyer fails to see the connection between Islamic personal law and mosques.

Again, in 2006, the Court of Appeal in Garji v Garji Footnote 127 proffered a judicial definition of waqf. In making a distinction between amana [entrustment] and waqf, the court defined waqf as “a foundation of a charitable nature … an instance of ‘hubus’ which the giving or donation of a usufruct of a property which the founder or donor for such a period as the property may remain in existence”.Footnote 128 The court opined further that the equivalent term of ḥabs (plural hubus) is more appropriate for use in the Maliki School rather than waqf.Footnote 129 In the Maliki School, ḥabs “is interpreted to mean a foundation or ṣadaqah al-jāriyah Footnote 130 or an endowment” and “in any case, the donation endowment, or foundation is usually made for Allah’s sake and therefore with charitable intention”.Footnote 131 The judgment depicts the correct position relating to waqf in the Maliki School where the emphasis is on the ṣadaqah al-jāriyah nature of the charity.Footnote 132 No doubt, in this context, a mosque that is open to public use will come within the ambit of waqf. However, this Court of Appeal decision cannot overrule the precedent laid by the Supreme Court in Abdulsalaam v Salawu.

Conclusion: the way forward

The article discussed the courts that have or should have original and appellate jurisdictions in disputes concerning the appointment of imams. In the North, the original jurisdiction lies with the Sharia courts in states where these courts exist. In other northern states, it lies either in the area courts or the High Court depending on the local legislation, especially their Area Court Laws. In the South, the customary courts do not have jurisdiction in Islamic law matters and thus it is the High Court that has original jurisdiction in such matters. The position concerning appellate jurisdiction is uniform throughout the federation. Appeals from the Sharia courts and area courts in such disputes go to the High Court. The jurisdiction of the Sharia Court of Appeal is limited to matters of Islamic personal law and the courts have decided that disputes relating to appointments of imams do not come within the ambit of Islamic personal law.

This article argues that the Sharia Court of Appeal should have appellate jurisdiction because Islamic law, according to the Maliki law that is in operation in the country, treats mosques as waqf or waqf properties. As noted, some judicial authorities and literature by Islamic scholars in the country accept this as the correct position of the Maliki School. Disputes relating to the administration of mosques concern the administration of waqf and, therefore, should come within the ambit of Islamic personal law as defined by the Constitution. In the alternative, the article recommends that section 277(2)(c) of the 1999 Constitution be amended to include mosque affairs. The article also recommends that states in the North should give their area courts jurisdiction in disputes concerning the appointment of imams.

Ultimately, the important thing is that in all instances, the courts vested with jurisdiction to hear disputes relating to the appointment of imams should be operated by judges who are learned in Islamic law and where this is not possible, there should be assessors who are experts in Islamic law to assist the judges. A better alternative probably is that Muslims should establish a forum for resolving disputes relating to the appointment of imams without having to engage in litigation in the courts.Footnote 133

Competing interests

None

Footnotes

*

Professor of law, University of Ilorin, Nigeria.

**

Professor of Islamic law, University of Ilorin, Nigeria. Email: ismael@unilorin.edu.ng.

References

1 Central Intelligence Agency (CIA) The World Factbook: Nigeria, available at <https://www.cia.gov/the-world-factbook/countries/nigeria/#people-and-society> (last accessed 21 February 2025). See also previous estimates in AA Oba “Religious rights and the corporate world in Nigeria: Products and personnel perspectives” (2004) Recht in Afrika 195 at 195–96.

2 Constitution of the Federal Republic of Nigeria 1999 (the Constitution or the 1999 Constitution), sec 10 and sec 38.

3 Discussed below.

4 ES Nwauche “Law, religion and human rights in Nigeria” (2008) 8/2 African Human Rights Law Journal 568 at 579.

5 AA Oba “Religious and customary laws in Nigeria” (2011) 25/2 Emory International Law Review 881.

6 AA Oba “Harmonisation of shari’ah, common law and customary law in Nigeria: Problems and prospects” (2008) 35 Journal of Malaysian and Comparative Law 119 at 126–40.

7 For example, see Area Court Law (cap A9, Laws of Kwara State 2007), sec 54(1) and (3) (Area Court Law 2007).

8 1999 Constitution, sec 242, sec 244 and sec 247(1)(a).

9 1999 Constitution, sec 6(3) and (5).

10 Id, sec 6(2) and (4)(a).

11 For example, see Sharia Court of Appeal Law (cap S4, Laws of Kwara State 2007 (Sharia Court of Appeal Law 2007), sec 13; AA Oba “Judicial practice in Islamic family law and its relation to ʿurf (custom) in northern Nigeria” (2013) 20/3 Islamic Law and Society 272 at 275–76.

12 Oba, id at 273 and 275–78.

13 IS Ismael and AA Oba “Administration of mosques and appointment of imams in Nigeria: Between Islamic law, customs, and state law” (2020) 4/1&2 Islamabad Law Review 12 at 18–20.

14 Ibid.

15 AB Mahmud A Brief History of Shariah in the defunct Northern Nigeria (1988, Jos University Press) at 1–2.

16 AA Oba “Islamic law as customary law: The changing perspective in Nigeria” (2002) 51/3 International and Comparative Law Quarterly 817 at 832–33.

17 JJ Nasir The Islamic Law of Personal Status (3rd ed, 2002, Kluwer Law International) at 34.

18 Id at 34–35; MA Ambali The Practice of Muslim Family Law in Nigeria (3rd ed, 2013, Princeton Publishing) at xiii; AR Doi Shari’ah: The Islamic Law (rev and expanded A Clarke, 2nd ed, 2008, Ta-Ha Publishers) at pt 3 (Family Relations) and pt 5 (Inheritance and Disposal of Property).

19 Usman v Umaru (1992) 7 NWLR (pt 254) 377 “while ‘Moslem law’ is the totality of Islamic law which includes, but is wider in scope than, the limited area of Islamic law defined as ‘Moslem personal law’”, per Uwais JSC at 407; Gana v Alhajiram (1970) 10 NWLR (pt 525) 424 “Islamic Law is over and above Islamic Personal Law. The former includes all aspects of Islamic civil matters plus criminal law while the latter is restricted to Islamic Personal Law as provided by Section 242(2) (a) - (b) of the 1979 Constitution as amended”, per Muntaka-Coomassie JCA at 433.

20 Oba “Islamic law as customary law”, above at note 16 at 833.

21 Although the Constitution uses wakf, waqf is used here as a more widely used transliteration of the original Arabic.

22 the discussion on this below.

23 1999 Constitution, second sch, pt I, exclusive legislative list, item 32.

24 AS Ishola “Legal bases for al-waqf in Nigeria” (2019) 4/1 Journal of Shariah Law Research 69 at 69–70.

25 Ibid; UA Oseni “Towards the effective legal regulation of waqf in Nigeria: Problems and prospects” in SK Rashid and A Hasan (eds) Waqf Laws and Management With Special Reference to Malaysia (2012, Institute of Objective Studies) 339 at 341, available at: <https://ssrn.com/abstract=1478524> (last accessed 2 September 2024).

26 In Awoyo v Opere (1976) 4 SC (Reprint) 19, the Supreme Court held that a crown grant on land for “Abasi Opere on behalf of the Mohammedan Community of Victoria Street” vested the land in “the Moslem Community of the street as a charitable trust of which the Management Committee are trustees” even though the Moslem community was not incorporated.

27 For example, the Lotus Waqf (Endowment) Fund is an “open-ended fund which enables subscribers to continuously give to charity through a professionally managed endowment” that is, the Lotus Capital Limited, a fund manager. Lotus Waqf (Endowment) Fund and Lotus Capital Limited are duly registered with the Securities and Exchange Commission (SEC), available at: <https://www.lotuscapitallimited.com/waqf/> (last accessed 23 February 2024).

28 In Abubakri v Smith (1973) LPELR-56(SC) at 13, the Supreme Court held that “the rule in Foss v Harbottle applies to an unincorporated association possessing a constitution or a set of rules and regulations entitling it to sue and be sued as a legal entity, and that the Jamatul-Muslim of Lagos is such a body. It follows that the rule in Foss v Harbottle applies to this religious body in the same way and to the same extent as it does to a limited liability company or a trade union” even though the Jamat was not incorporated.

29 These are Bauchi, Borno, Jigawa, Kano, Kebbi, Niger, Yobe and Zamfara States: M Ahmad and SK Rashid “The need for high corporate governance in Nigerian zakāh and waqf institutions” (2016) 24/3 Shariah Journal 495 at 507. See Companies and Allied Matters Act (cap C20, Laws of the Federation of Nigeria 2007), sec 679(1) that confers legal personality on incorporated associations.

30 the legislation establishing these institutions in P Ostien (ed) Sharia Implementation in Northern Nigeria 1999-2006: A Sourcebook), vol 7, chap 9 “Ulama Institutions Zakat and Endowments Boards and Committees, Pt 2, Documentary Materials”, at 1–115, available at <http://www.sharia-in-africa.net/media/publications/sharia-implementation-in-northern-nigeria-volume-six/Chapter%209%20Part%20II.pdf> (last accessed 21 February 2025); the analysis in Ahmad and Rashid “The need for high corporate governance in Nigerian zakāh and waqf institutions”, id at 507–11.

31 The Native Courts Law (cap 78, Laws of Northern Nigeria 1963). Each of the states that emerged from the defunct Northern Region had an own Area Courts Law 1967 (or Area Courts Law 1968), see AO Obilade “Reform of customary court systems in Nigeria under the military government” (1969) 13/1 Journal of African Law 28 at 30.

32 EA Keay and SS Richardson The Native and Customary Courts of Nigeria (1966, Sweet and Maxwell) at 19-20; CN Ubah Government and Administration of Kano Emirate 1900-1930 (1985, University of Nigeria Press) at 23–6 and 122–55; AA Oba “Sharia Court of Appeal in northern Nigeria: The continuing crises of jurisdiction” (2004) 52/4 American Journal of Comparative Law 859 at 861; AA Oba “‘Neither fish nor fowl’: Area courts in the Ilorin emirate in Northern Nigeria” (2008) 58 Journal Legal Pluralism and Unofficial Law 69 at 70–72.

33 These are Adamawa, Benue, Kogi, Kwara, Nassarawa, Plateau and Taraba States.

34 the discussion of the position in Adamawa State in M Chiroma “Application of Islamic personal law and the judicial process in Adamawa state: Issues and challenges” (2022) 7/1 UNIMAID Journal of Islamic and Comparative Law 1 at 5–8.

35 These are Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe and Zamfara States.

36 N Tobi “Recent reforms in area and customary courts in Nigeria” (1978) 22/2 Journal of African Law 133 at 135. The consequence of this is that in the south-west, customary law rather than Islamic law is applied as the personal law of Muslims in these courts and in other cases where Islamic law should apply between the parties. See K Olatoye and A Yekini “Islamic law in southern Nigerian courts: Constitutional and conflict of laws perspectives” (2019) 6 Benin Journal of Public Law 210; AA Oba “Complexities and complications in the administration of Islamic and customary laws in Nigeria: Rabiu v Abasi (1996) revisited” in NM Jamo and AM Madaki (eds) Administration of Justice in the Customary Courts of Nigeria: Problems and Prospects (2009, Department of Private Law, Ahmadu Bello University) 412.

37 Usman v Umaru (1992) NWLR (Pt 254) 377; Alkamawa v Bello (1998) 6 SCNJ 127. See also Oba “Islamic law as customary law”, above at note 16 at 829–32 and 836–45.

38 (Unreported) Suit No: ID/852M/2007 judgment of the Lagos State High Court Holden at Ikeja delivered by Oshodi J. See further analysis of the case in UA Oseni “Sharī’ah court-annexed dispute resolution of three commonwealth countries – a literature review” (2015) 26 International Journal of Conflict Management 214 at 228–29, available at: <https://doi.org/10.1108/IJCMA-06-2012-0050> (last accessed 3 June 2023); Olatoye and Yekini “Islamic law in southern Nigerian courts”, above at note 36 at 133–34.

39 Customary Court Laws 2011, sec 22(3) and sec 51. In 2021, the Chief Judge designated Ifako Ijaye Customary Court to hear Islamic family matters in addition to its jurisdiction in customary law matters. See “MULAN Commends Lagos Chief Judge for Establishing Islamic Personal Laws in the State” (29 April 2022) The Muslim Voice, Nigeria, available at: <https://muslimvoice.com.ng/2021/10/15/mulan-commends-lagos-chief-judge-for-establishing-islamic-personal-laws-in-the-state/> (last accessed 21 February 2025). However, it is not clear whether this arrangement is now operational.

40 1999 Constitution, sec 6(4)(a).

41 Area Court Law (cap 13 Laws of Kwara State 1994) (Area Court Law 1994).

42 Id, sec 4(2).

43 (Unreported) Appeal No KWS/1A/2004 delivered by the High Court of Kwara State, Ilorin Judicial Division (Appellate) on 19 January 2005 by Kawu and Adewara JJ.

44 Area Courts Law (cap A9, Laws of Kwara State 2007) (Area Courts Law 2007).

45 High Court Law (cap 67, Laws of Kwara State 1991), sec 2; High Court Law (cap H2, Laws of Kwara State 2007), sec 2. Both sections state that “‘customary law’ includes Islamic law”.

46 (Unreported) Appeal No KWS/2A/09 delivered by the High Court of Kwara State, Ilorin Judicial Division (Appellate) on 22 January 2010 by Bamigbola, Yusuf and Saleeman JJ.

47 Id at 11.

48 Area Court (Civil) Procedure Rules 1971 (cap A9, Laws of Kwara State 1994) ord 11.

49 1999 Constitution, sec 277(2) and sec 277(2) (c), (d) and (e).

50 On the jurisdiction of the Alkali courts, see AB Foduye Guide to Administrators Diya’ al-Hukkam (ed and trans S Yamusa, 2000, The Islamic Academy) at 17 and 21 (English translation) / 34 and 42 (Arabic original).

51 Area Courts (Civil Procedure) Rules 2022.

52 Came into force on 28 December 2022, see Area Courts (Civil Procedure) Rules 2022, ord 1(1).

53 Sharia Court Law 2001 (Kaduna State), sec 22(1) and first sch. Similarly, see Sharia Courts (Administration of Justice and Certain Consequential Changes) Law 1999 (Zamfara State), sec 5; Niger State Sharia (Administration of Justice) Law 2001, sec 9(1); Kano State Sharia Court Law 2000, sec 6; SZ Syed Abdul Kader, and AS Ishola “A judicial misconception of mosque disputes in common law jurisdiction: The Supreme Court’s declaration of High Court’s jurisdiction in imamship disputes in Nigeria” (2017) 2/1 Miyetti Quarterly Law Review 123 at 141–42.

54 Examples of such cases that were commenced at the High Court include Odebode v Ashaka (1944) 17 NLR 84; Asani v Adeosun (1966) NMLR 268; Abubakri v Smith (1973) LPELR-56(SC); Awoyo v Opere (1976) 4 SC Reprint 19 (Ownership of mosque); Opebiyi v Noibi (1977) LPELR-2748(SC); Amokomowo v Andu (1985) 1 NSCC. 633; Audu v Ali (2005) LPELR-11330(CA); Hamzat v Sanni (2015) 5 NWLR (pt 1453) 486 (SC); Ibiyemi v Okunade (2022) LPELR-56636(CA).

55 Babale v Abdulkadir (1993) 3 NWLR (pt 281) 254.

56 (2002) 6 SCNJ 388.

57 Id at 401–403.

58 Usman v Umaru (1992) NWLR (pt 254) 377 at 397–98 and 401.

59 this argument in Olatoye and Yekini “Islamic law in southern Nigerian courts”, above at note 36 at 133–34.

60 Bello CJN clarified this in Usman v Umaru (1992) NWLR (pt 254) 377 at 401, “it should be appreciated that the Constitution envisages division of appellate jurisdiction on State matters between the High Court, Sharia Court of Appeal and Customary Court of Appeal in States where the three Courts have been established”.

61 (2022) LPELR-56636 (CA).

62 On the Sharia Panel of Osun State, see AK Makinde “The evolution of the independent sharīʿa panel in Osun State, south-west Nigeria” in J Chesworth and F Kogelmann (eds) Sharīʿa in Africa Today: Reactions and Responses (2014, Brill) 73. The panel is not an official court but is essentially a private arbitral panel without any power to compel parties and witnesses or enforce their awards.

63 (2022) LPELR-56636(CA) at 12.

64 Id at 14.

65 Id at 13–14.

66 M Abubukar and DJ Usman “The legal implications of the appeal system from Upper Shari’ah to the High Court of Kano State under the Nigerian legal system” (2020) 5/1 University of Maiduguri Journal of Islamic Law 57 at 60–62.

67 1999 Constitution, sec 271(3).

68 Annual Report of the Sharia Court of Appeal, Kwara State (1994) 119.

69 Id at 127–30.

70 Id at 124–25.

71 (2000) 4 NWLR (pt 659) 99.

72 Id at 112.

73 For example, see Chamberlain v Dan Fulani (1961-1989) 1 ShLRN 44 at 54 discussed in AA Oba “Lawyers, legal education and Shari’ah Courts in Nigeria” (2004) 49 Journal Legal Pluralism and Unofficial Law 113 at 134–39; Chiroma “Application of Islamic personal law and the judicial process in Adamawa State: Issues and challenges”, above at note 34 at 12–13; Sagagi v Nasiru (unreported) Suit No K/77A/2018 decided by the Kano State High Court on 11 June 2018; Kunya v Rotila (unreported) Suit No K/29A/2018 decided by the Kano State High Court on 9 October 2018 (the latter two both discussed in Abubukar and Usman “The legal implications of the appeal system from Upper Shari’ah to the High Court of Kano State under the Nigerian legal system”, above at note 66 at 63–64.

74 All the northern states inherited their High Court Laws from the defunct northern region. The High Court Law, sec 62 and sec 64 give the High Court appellate jurisdiction in all Islamic law matters apart from matters of Islamic personal law. In particular, sec 64(1) provides that “[O]n the hearing of an appeal from a Native Court [an area court] … the High Court may, if it shall think fit so to do, require the aid of one or more assessors and may hear the appeal wholly or partially with their assistance”. Sec 64(2) further provides that “the High Court may require the aid of such persons as it shall think fit in the capacity of assessors”.

75 Bungudu v Ibrahim (2016) 4 SQLR (pt 3) 571 at 582, 584 and 586–88 (delivered on 4 February 1991) citing Alhassan v Jaji (unreported) Appeal No CA/K/83/86 delivered on 27 July 1988 and the Islamic law text, Aḥmad ibn Muḥammad Ṣāwī Bulghat al-sālik li-aqrab al-masālik ilá madhhab al-Imām Mālik, Ḥāshiyah‘alá al-Sharḥ al-ṣaghīr li-Aḥmad al-Dardīr [In the Language of the Traveler, According to the Path Closest to the Doctrine of Imam Malik, A Footnote to the Small Explanation by AhmedAl-Dardir] vol II at 309. This position was reiterated in Hussaini v Bagade (unreported) Appeal No CA/K/64s/89 delivered on 4 July 1991 and Ziza v Mamman (2002) 55 NWLR (pt 760) 243.

76 Ziza v Mamman (2002) 5 NWLR (pt 760) 243 at 271.

77 This is the position in the Kwara State Sharia Court of Appeal, see AA Oba “Lawyers, law reporting and the Sharia Courts of Appeal in Nigeria” (2023) 31/1 Jurnal Syariah (Journal Syariah) 122 at 136–37.

78 For example, see Baba v Aruwa (1986) 7 CA (Pt 3) 215.

79 1999 Constitution, sec 275(1).

80 (2002) 6 SCNJ 388.

81 Id at 398–99.

82 discussions on this below.

83 For example, see Area Courts Law 2007, sec 54(1) and (3).

84 Ado v Dije (1983) 2 FNR 213 (also (1984) 5 NCLR 260); AA Oba, “Kadis (Judges) of the Sharia Court of Appeal: The problems of identity, relevance, and marginalisation within the Nigerian legal system” (2004) 2/2 Journal of Commonwealth Law and Legal Education 49 at 52–53 (also reproduced in MA Baderin (ed) Islamic Law in Practice (vol 3, 2014, Ashgate) at 519–41.

85 Constitution of the Federal Republic of Nigeria 1989, sec 261; Oba “Sharia Court of Appeal in northern Nigeria”, above at note 32 at 872–73.

86 For example, see Okanle v Okanle in Annual Report of the Sharia Court of Appeal, Kwara State, above at note 68 at 119.

87 Oba “Islamic law as customary law”, above at note 16 at 833–35; Oba “Sharia Court of Appeal in northern Nigeria”, above at note 32 at 872–74.

88 (2000) 8 NWLR (pt 670) 722.

89 Id at 736.

90 Gana v Alhajiram (1997) 10 NWLR (pt 525) 424, “The intendment of the legislature in respect of the jurisdiction of Sharia Court of Appeal is to confine the powers and jurisdiction of the Sharia Court of Appeal to matters of Islamic personal law”, per Muntaka-Coomassie JCA at 434.

91 the decisions of the Court of Appeal in Kanawa v Mai Kaset (2007) 10 NWLR (pt 1042) 283 (Sokoto State Sharia Courts Law 2000, sec 17(3)); Faransi v Noma (2007) 9 NWLR (pt 1041) 202 (Kebbi State Sharia (Administration of Justice) Law 2000, sec 14); Haruna v Suleiman (2014) 2 SQLR (pt 4) 521 (Zamfara State Sharia Courts (Establishment) Law No 5 of 1999, sec 42 and sec 43).

92 Oba “Sharia Court of Appeal”, above at note 32 at 884–86; Abdul Kader and Ishola “A judicial misconception of mosque disputes in common law jurisdiction”, above at note 53 at 135–36.

93 Abdul Kader and Ishola, id at 125–26 and 134. The judges and justices were Leslie J (High Court); Kalgo, Salami and Opene JJCA (Court of Appeal) and Uwais CJN and Belgore, Kutigi, Ejiwunmi and Ayoola JJSC (Supreme Court).

94 Id at 125. The three Muslim justices at the Supreme Court were Uwais, Belgore and Kutigi JJSC. The official profiles of these learned justices of the Supreme Court do not show that they are also experts in Islamic law, see their lordships’ valedictory speeches in (2006) 6 SCNJ A25–34, (2007) 1 SCNJ 10–19 and (2006) 1 SCNJ A20–26 respectively. In addition, none of these justices was part of any Islamic personal law panel when they were justices of the Court of Appeal, see Abdul Kader and Ishola “A judicial misconception of mosque disputes in common law jurisdiction”, above at note 53 at 135.

95 Ismael and Oba “Administration of mosques and appointment of imams in Nigeria”, above at note 13 at 13.

96 Foduye Guide to Administrators Diya’ al-Hukkam, above at note 50 at 32–33 (Arabic original).

97 Abū al-Ḥasan Al-Mawardi The Ordinances of Government: A Translation of al-Aḥkām al-Sulṭāniyya wa al-Wilāyāh al-Dīniyya (trans WH Wahba, 1996, Garnet Publishing) 113.

98 Id at 78.

99 Ibid. This is also the position of Maliki scholars, see Ibrāhīm Shams al-Din Ibn Farḥūn Tabṣirah al-Ḥukkām fī Uṣūl al-Aqḍiyah wa Manāhij al-Aḥkām [The Rulers’ Insight into the Principles of Cases and Methods of Judgments] (vol 1, 2001, Dār al-Kutub ‘Ilmiyyah) at 98; Muḥammad ibn Aḥmad Ibn Juzayy Al-Kalbī Al-Gharnātī Qawānīn al-Fiqhīyah fi Talkhīṣ Madhhab al-Mālikīyah wa al-Tanbīh ‘alá Madhhab al-Shāfi’īyah wa al-Ḥanafīyah wa al-Ḥanbalīyah [Jurisprudential Laws in Summarizing the Maliki School and Alerting to the Shafi’i, Hanafi and Hanbali Schools] (2017, Dār al-Gad al-Jadīd) at 361.

100 Foduye Guide to Administrators Diya’ al-Hukkam, above at note 50 at 17 and 21 (English translation) / 34 and 42 (Arabic original).

101 See a discussion of the classification of mosques in Ismael and Oba “Administration of mosques and appointment of imams in Nigeria”, above at note 10 at 14–15.

102 Id at 14.

103 Abdul Kader and Ishola “A judicial misconception of mosque disputes in common law jurisdiction”, above at note 53 at 133–34 citing U Abdmajīd al-‘Ānī Sanadūq al-Waqf al-Istithmarī [Waqf Investment Fund] (1st ed, 2010, Dar al-Bashāir al-Islamiyyah) 46–47.

104 Qur’an, surat [chapter] Al-Jinn, 72:18, “And the mosques are for Allah (Alone), so invoke not anyone along with Allah” quoted from MT Al-Hilal and MM Khan Interpretations of the Meanings of the Noble Qur’an in the English Language: A Summarized Version of At-Tabari, Al-Qurtubi and Ibn Kathir with Comments from Sahih Al-Bukhari (rev 2016, Darussalam) at 782. See also Doi Shari’ah: The Islamic Law, above at note 18 at 515 and 520–21. Similarly, Alavi opined thus: “The Mosque, from the earliest days, was never considered to be anyone’s property. It has always remained God’s property and an endowment to the public”, see K Alavi The Mosque Within a Muslim Community (ed F Hussain, new 3rd ed, 2004, Dawah Academy) at 20.

105 Ambali The Practice of Muslim Family Law in Nigeria, above at note 18 at 411–12; Doi, id at 515. See also H Wehr A Dictionary of Modern Written Arabic (ed JM Cowan, reprint 1980, Librairie Du Liban and MacDonald & Evans) at 153 and 1093.

106 Doi Shariah: The Islamic Law, above at note 18 at 521; Ambali The Practice of Muslim Family Law in Nigeria, above at note 18 at 418.

107 Ambali, ibid.

108 For example, 1999 Constitution, sec 277(2)(c) talks of the “endower”. See also Ambali The Practice of Muslim Family Law in Nigeria, above at note 18 at 411; Wehr A Dictionary of Modern Written Arabic, above at note 105 at 1093.

109 Wehr, ibid; Foduye Guide to Administrators Diya’ al-Hukkam, above at note 50 at 17.

110 Foduye, id at 21.

111 MM Gaudiosi “The influence of the Islamic law of waqf on the development of the trust in England: The case of Merton College” (1988) 4 University of Pennsylvania Law Review 1231.

112 Ambali The Practice of Muslim Family Law in Nigeria, above at note 18 at 418.

113 MA Ambali “Preface” in Annual Report of the Sharia Court of Appeal, Kwara State, above at note 68 at vii–viii.

114 IAK Nyazee Islamic Jurisprudence (2003, The Other Press) at 116–18. Some modern scholars make a case for legal personality for waqf, for example, see AA Abdallah “A new definition of waqf: On the basis of which the ‘legal personality’ of waqf is established” (1983) 8 Journal of Islamic and Comparative Law 57; M Sano “Significance of granting legal personality to waqf establishments in the republic of Guinea” (2021) 13/1 Al-Iqtishad: Jurnal Ilmu Ekonomi Syariah (Journal of Islamic Economics) 191. Some states such as Turkey, Malaysia and India have developed the concept of “corporate waqf” that has a juristic personality, see AI Saad “The corporate waqf in law and practice” (2019) 10/1 Berkeley Journal of Middle Eastern & Islamic Law 1.

115 Ambali The Practice of Muslim Family Law in Nigeria, above at note 18 at 422; Ambali “Preface”, above at note 113 at vii–viii.

116 Abdul Kader and Ishola “A judicial misconception of mosque disputes in common law jurisdiction”, above at note 53 at 134 citing W al-Zuḥaylī Al-Wassiyah wa al-waqf fi al-Fiqh al-Islamī [Wills and waqf in Islamic law] (2nd ed, 2008, Dar al-Fikr) 178.

117 Ibid.

118 Quran, 72:18, above at note 104.

119 Abdul Kader and Ishola “A judicial misconception of mosque disputes in common law jurisdiction”, above at note 53 at 132–34.

120 (1982) 2 FNR 224.

121 Quoted id at 226.

122 Islamic law is a question of fact in non-Islamic courts and proof of the applicable Islamic law is required before the court can act on the alleged Islamic law norm, see Oba “Islamic law as customary law”, above at note 16 at 827.

123 (1982) 2 FNR 224 at 226–27. See also 235–36 (Aniagolu JSC, lead judgment).

124 (2002) 6 SCNJ 388.

125 Many scholars have noted the dearth of waqf in the West African sub-region compared to some other Muslim lands, see Doi Shariah: The Islamic Law, above at note 18 at 523–24; SUD Keffi “Economic and social roles of endowment (waqf/ḥubs) under Islamic law” (2000) 22 Journal of Islamic and Comparative Law 31 at 38.

126 IN Muhammad “Existence of waqfs without waqf institution in the Sokoto caliphate: Contemporary challenge for northern Nigeria” (paper presented at the Second Kano Waqf International Conference, Kano, 18 October 2018), available at: <https://ssrn.com/abstract=3269540> or <http://dx.doi.org/10.2139/ssrn.3269540> (last accessed 26 May 2024).

127 (2014) 2 SQLR (pt 2) 237 (decided 22 June 2006).

128 Id at 255.

129 Ibid. See also Keffi “Economic and social roles of endowment (waqf/hubs) under Islamic law”, above at note 125 at 31. The term ḥabs is commonly used among Maliki scholars, see Salih ᶜAbd al-Samiᶜ Al-Ābī al-Azharī Al-Thamar al-Dani fītaqrab Al-Mānī Sharh Risalat Ibn Abi Zayd al-Qayrawani [The Low-Hanging Fruit: A Commentary on al-Qayrawani’s Treatise] (Dar al-Fikr) at 552 and 556–57; Salih ᶜAbd al-Samiᶜ Al-Ābī al-Azharī Jawāhir al-‘Iklīl: Sharh Mukhtaṣar al-Allāmah Shaykh Khalīl fī Madhḥab al-Imām Malik [The Jewels of Al-Iklil: A Commentary on Khalīl’s Concise Manual of Maliki Law] (vol 2, Dar al-Fikr) at 205–11; Ibn Juzayy Al-Gharnātī Qawanin al-Fiqhiyyah, above at note 99 at 439–43.

130 Ṣadaqah al-jāriyah means “recurring charity”. This is based on the hadith, “When a man dies, his acts come to an end, but three, recurring charity [ṣadaqha al-jāriyah], or knowledge (by which people) benefit, or a pious son who prays for him (for the deceased)”, Imam Muslim Sahih Muslim (trans AH Siddiqi, vol 3, Dar al-Arabiyyah) at 867 (hadith no 4005).

131 (2014) 2 SQLR (pt 2) 237 at 255.

132 On the emphasis of the Maliki School on the ṣadaqah al-jāriyah aspect, see also A Orire Shari’a: A Misunderstood Legal System (2007, Sankore Educational Publishers) at 275–76.

133 Ismael and Oba have advanced this suggestion earlier, see Ismael and Oba “Administration of mosques and appointment of imams in Nigeria”, above at note 13 at 37–38.