Binding Precedent and Shari'a/Islamic Law in Nigeria: An Attempt at a Civil-Criminal Distinction

Abstract

Two eminently outstanding cases in Nigeria that have touched on the issue of precedent in Shari'a are Karimatu Yakubu Paiko & Another v. Yakubu Paiko & Another and Chamberlain v. Abdullahi Dan Fulani both of which were civil cases. Karimatu was a case on the question of ijbar (the right of a father to marry off a virgin daughter with or without her consent) in which the Court cited with approval the earlier decision of a Sharia Court of Appeal. Professor Auwalu Hamisu Yadudu and Professor Muhammad Tawfiq Ladan have criticized the Federal Court of Appeal for relying on an earlier decision to reach its own decision. Their individual conclusion is that this reliance has deviated from Sharia/Islamic law principles. Chamberlain is significant because it presents an opportunity to observe the difference between Common law and Islamic law systems on the issue of precedent. With the re-introduction of the Hudood in some states of Northern Nigeria, it has now become inevitable that precedents will be established and courts in the hierarchy established by the Penal Law must abide by them. This is likely to produce some conflicts that may resemble the conflicts which were experienced in the 1950s which gave rise to the ousting of criminal jurisdiction from the so-called customary courts. It should be noted that the Nigerian legal system seems to treat Islamic law as customary law. This paper examines the likely distinction between civil and criminal matters in Shari'a courts in Nigeria and how the concept of precedent plays or is likely to play a part in the development of the law.