1. Allott, A., Essays on African Law 64 (1960)Google Scholar. This term is used interchangeably with Native Law and Custom to describe the same thing. Without supplying any clear definition of the term, the statutory provision on customary law in the Northern Region of Nigeria merely states that the term “native law and custom” includes Islamic law. As observed by Keay and Richardson, this has resulted in the conspicuous absence of a clear and unambiguous definition of the term in the North such as obtains in and has been quoted from the Eastern Region Law, see infra note 2. See Keay, & Richardson, , The Native and Customary Courts of Nigeria (1966)Google Scholar.

2. See Eastern Region Law, No. 21 of 1956, § 2 and the Evidence Ordinance, Laws of Nigeria, Cap. 63, 1948, § 2. The Privy Council decision in Eshuabavi Eleko v. Government of Nigeria, A. C. 662 (1931), listed what are generally considered to be the main characteristics of the Native Law and Custom, namely, acceptance of the norm by the community, its flexibility and consequent uncertainty, multiplicity and unwritten nature. And in the case of Owoniyin v. Omotosho, I All N.L.R. 307 (1961), the Federal Supreme Court endorsed many of these characteristics, especially when one of its Justices described custom to be “a mirror of accepted usage” of the community.

3. See supra note 1.

4. For a review of several, energetic and lively conferences and a flurry of scholarly pieces on the emerging field of African Law, see Allott, A., A Note on Previous Conferences on African Law: The Integration of Customary and Modern Legal Systems in Africa (1971)Google Scholar and Allott, A., Discussing African Law 86 (1971)Google Scholar. The Integration of Customary and Modern Legal Systems in Africa, Kuper, H. & Kuper, L., African Adaptation and Development, 216, (1965)Google Scholar is also a good reference material on the study of African Law. See also, Read, , Tony Allott: A Colleague's Tribute, 31 J. Africa L. 3 (1987)CrossRefGoogle Scholar.

5. Ajayi, , The Interaction of English Law with Customary Law in Western Nigeria, 4 J. African L. 98, 105–08 (1960)Google Scholar.

6. Id. at 105.

7. Id.

8. Haad punishments are specific penalties for offenses defined and prescribed in the Koran.

9. Ubah, , Islamic Legal System and the Westernization Process in the Nigerian Emirates, 20 J. Legal Pluralism 69 (1982) Shari'ah is defined infra note 23CrossRefGoogle Scholar.

10. Salamone, , The Clash Between Indigenous, Islamic, Colonial and Post-Colonial Law in Nigeria, 21 J. Legal Pluralism 15 (1983)CrossRefGoogle Scholar.

11. Griffiths, , Legal Duality: Conflict or Concord in Botswana, 27 J. Legal Pluralism 150 (n.d.)Google Scholar.

12. Id.

13. Roberts, , Introduction: Some Notes on “African Customary Law,” 28 J. African L. 1 (1984)CrossRefGoogle Scholar.

14. Snyder, , Colonialism and Legal Form: The Creation of Customary Law in Senegal, 19 J. Legal Pluralism 49 (1981)CrossRefGoogle Scholar.

15. Id. at 74.

16. Id. at 75.

17. Id. at 70.

18. Id. at 69.

19. See, e.g., Roberts, supra note 13.

20. See Snyder, supra note 14. Snyder has argued the case for economic determinism as a decisive factor in the transformation of a concept of customary law among the Banjal Diola of Senegal. Roberts has taken issue with this approach. See supra note 13 at 2-3.

21. See Roberts, supra note 13.

22. If we fail to recognize that there is a distinct notion of a customary law which predates colonialism, then we risk the pitfall of the American realist school of thought, which holds that, regardless of what the text says, law is what the courts finally and ultimately pronounce it to be.

23. In modern times, the term “Islamic law” has come to mean the law derived from the totality of these sources and often used interchangeably with the term Fiqh. On the other hand, the term Shari'ah has acquired a very restrictive meaning, referring only to those rules of Islamic law which are derived from the twin sources of the Qur'an and Sunnah. The distinction has been made to indicate that the Shari'ah is the pure and unaltered law decreed by Allah and further explained by the Prophet. By contrast, Fiqh or Islamic law is a body of rules derived from the former but containing, as well, the human interpretive element to the extent that is permissible in Islam.

24. F. Lugard, Instructions to Political Officers, no. 3, 168 (1906) (manuscript on file with author).

25. “At the turn of the eighteenth to nineteenth century,” writes Hiskett, “a revolutionary movement,” otherwise known as the Jihad of Shehu Usman Dan Fodio, “arose in Hausaland that was to have a profound influence on the subsequent history of the area.” Hiskett, M., The Sword of Truth; The Life and Times of Shehu Usman Dan Fodio, 3 (1973)Google Scholar. For a more detailed account of this event, see these recent publications: Sulaiman, I., A Revolution in History: The Jihad of Usman Dan Fodio (1986), The Islamic State and the Challenge of History (1987)Google Scholar; Last, M., The Sokoto Caliphate, and Bayan Wuijub al Hiira ‘alal ‘Ibad (ed. El-Masri, F. H., 1978)Google Scholar.

26. Sheikh Usman Dan Fodio, Hidayat at-Tullab, (unpublished Arabic manuscript on file with author).

27. Usman Dan Fodio Kitab al-frag: A Work on Habe Kingdoms: Bulletin of the School of Oriental and African Studies, D.550 (M. Hiskett 1960)Google Scholar.

28. Hiskett, supra note 25, at 144.

29. Lugard, supra note 24.

30. Salamone, supra note 10, at 29, echoes some of these arguments while discussing the relation of Islamic, indigenous, colonial and post-colonial laws in Nigeria.

31. See Yahaya, , The Legal Status of Muslim Women in Northern States of Nigeria, 2 Journal of Islamic and Comparative Law (JICL) 28 (n.d.)Google Scholar. See also A. B. Yusuf, Legal Pluralism in Northern States of Nigeria: Conflict of Laws in a Multi-ethnic Environment, (unpublished thesis on file at SUNY, Buffalo (1976)).

32. Salamone, supra note 10.

33. Anderson, , Islamic Law in Africa 184 (1970)Google Scholar.

34. Yusuf, supra note 31, at 68-69, as quoted by Salamone, supra note 10, at 31.

35. Smith, , in Derrett, J. D. M., Studies in the Laws of Succession in Nigeria 283 (1965)Google Scholar.

36. An informant has revealed that some of these records have been preserved and are available, for instance, at the Palace of the Emir of Kano under the custody of his advisers. Salamone must have relied heavily on Greenberg, J., The Influence of Islam on a Sudanese Religion (1946) (monograph of American Ethnological Society)Google Scholar.

37. Allott, , What is to be Done with African Custom Law, 28 J. African L. 56, 58 (1984)Google Scholar.

38. See Perham, M., Native Administration in Nigeria (1937)Google Scholar which is a seminal work on the development of this policy. For its extension to the judicial sphere, refer to Lugard, F., The Dual Mandate in British Tropical Africa (5th ed. 1965)Google Scholar and Political Memorandum (1918) in which the administration's policy towards the Native Court system was spelled out in the best spirit of Indirect Rule.

39. On the very intricate history of this conflict refer to two cases: Idi Womaka v. Sokoto, NRNLR IS. (N.A. 1957), and Maizabo v. Sokoto F.S.C. (N.A. 1957). See also the following works by J.N.D. Anderson who took a special interest in keeping track of developments relating to these recurring conflicts and reports about them: Anderson, J.N.D., Islamic Law in Africa (1970)Google Scholar, Conflict of Laws in Northern Nigeria, 1 J. African L. 87 (1957)CrossRefGoogle Scholar, Conflict of Laws in Northern Nigeria: A New Start, 8 Int'l and Comp. L.Q. 442 (1959)CrossRefGoogle Scholar.

40. Hubbard, 3 J. African Law 86–87 (1959)Google Scholar.

41. Id. at 86.

42. Nigeria: Report of the Commission Appointed to Enquire into the Fears of Minorities and the Means of Allaying Them (1958).

43. In adopting the proposals of the Panel and thereby changing the region's legal system profoundly, the legislature went through excruciating moments. See Legislative Proceedings: Northern Region of Nigeria House of Chiefs (Sept. 1, 1959). Refer also the comments of the Sardauna of Sokoto, A. Bello, who revealed the following reasons for introducing the reforms: “It was borne upon us that these legal and judicial reforms would have to be carried out if the self-governing region was to fulfill its role in the federation of Nigeria and command respect amongst the nations of the world… Finally, there are the commercial and industrial interests, mainly financed by capital brought into this country from abroad, which we are doing our best to encourage and foster” (emphasis added). Sir.Bello, A., My Life 217 (1962)Google Scholar.

44. Commenting on whether or not Islamic law should continue to apply to criminal matters, and especially to the homicide cases in which the most difficulties were encountered, Prof. Anderson, in 1955, argued: “On any long view it is clearly intolerable that a homicide committed on one side of a somewhat ill-defined boundary line between Emirates should be tried under one system of law, while one committed a few yards away on the other side of that line is triable under (the criminal code) a totally different system… so eventual unification appears inevitable” (emphasis added). See Anderson, , Islamic Law in Africa 221 (1970)Google Scholar (earlier published as Colonial Research Publication No. 16, 1954 by H.M.S.O, January, 1955.)

45. The history of the code has been traced in Gledhill, A., The Penal Codes of Northern Nigeria and the Sudan (1963)Google Scholar. It was first drafted for India in 1837 by Macaulay, a Member of British Parliament who also served on the Law Commission, and was later borrowed for use in Northern Sudan in 1899. Macaulay, who was an ardent advocate of codification, was guided by certain goals in drafting the Indian Penal Code. The goal of codification, in his view, was to achieve “uniformity where possible, diversity only when it was inevitable but always certainty.” Gledhill also reports that the basis of the Indian Code “was the law of England stripped of technicality and local peculiarity, shortened, simplified, made intelligible and precise.” Id. at 16.

46. Yadudu, , We Need A New Legal System, in On The Political Future of Nigeria 3 (ed. Sulaiman, and Abdulkarim, , 1988)Google Scholar.

47. For instance, when Lagos was ceded as a colony to Britain in 1863, the application of English law was, subject to certain conditions, extended to the colony by Ordinance No. 3. When the Southern and Northern Protectorates were amalgamated in 1914, English law was extended to these territories on similar terms. The basic laws governing the “reception” of English law in the country vary from one region to another. Section 28 of the High Court Law, Northern Region of Nigeria, No. 8 of 1955 gives the language of the “reception” in this region. To date this law remains valid for the states comprising the former region. Section 28 provides that, subject to certain qualifications “(a) the common law; (b) the doctrines of equity; and (c) the statutes of general application which were in force in England on the 1st day of January, 1900, shall … be in force within the jurisdiction of the (High) court.” Section 34 (I) of the same law provides further that: “The High Court shall observe, and enforce the observance of, every native law and custom which is not repugnant to natural justice, equity, and good conscience, nor incompatible either directly or by implication with any law for the time being in force, and nothing in this law shall deprive any person of the benefit of any such native law or custom.” This law dictates the terms of the coexistence and the extent of the applicability of both English and Islamic laws in the region.

48. See supra note 47.

49. See Adesubokan v. Yunusa, NNLR 77 (1971) and 16 J. African Law 82 (1972). In interpreting the section, the court had recourse to Section 28 of the High Court Law 1955 of Northern Nigeria which delimits the application of received English laws to natives to the extent that local circumstances would permit this.

50. Adesubokan, supra note 49.

51. In 1986, I compiled several public lamentations over the inadequacy of the Nigerian legal system. For instance, a Military Governor in Nigeria urged the development of a “new set of laws that will deal with our endless political problems.” Another enjoined members of the Nigerian Bar Association to “avoid too much technicalities” (in the law) by eliminating unnecessary preliminaries in the court proceedings. And no less a distinguished personality than the Chief Judge of a state was worried over the non-availability of cheap, affordable and otherwise accessible justice to the poor, and hence called for the control of fees charged by attorneys. Yet another law-enforcement officer was of the view that existing laws are too alien, such that no amount of translation would make them relevant. Again, characterizing the Nigerian legal system as “absolutely irrelevant to the yearnings and aspirations of our society,” a group of social scientists decry the quality of our judicial personnel and claim that judgments handed down by the Nigerian Bench tend to be too technical and not based on fundamental social issues. See New Nigerian Newspaper (Nov. 21, 23, 1985; Jan. 31, Feb. 19, 1986). See also supra note 43.

52. Excerpts from the letter sent out to all Deans of law faculties in the country by the Nigerian Law Reform Commission, July 11, 1986.

53. From newspaper reports on the official receipt of the report of the commission by the Attorney-General of the Federation.

54. See supra note 46. It may well be argued, though, that the aim of the review exercise was to achieve no more than a modernization and simplification of the English statutes of general application along the lines done earlier by Western Nigeria in 1959. If this were so, then the conference was quite a success. However, judging by the mood of the nation and the strong sentiments expressed during the conference, this aim was not quite what was being pursued. Indeed, amendments suggested went far beyond the Western region simplification drive. The sentiments and lamentations expressed in note 51 certainly call for more than what the Western region attempted to achieve.

55. “Substance” has been defined to mean “the essential or material part of a thing as distinguished from its form.” “Form” has similarly been defined as “the legal or technical manner observed in legal instruments or juridical proceedings.” Black's, Law Dictionary 1280, 586 (5th ed. 1979)Google Scholar.

56. Extracts from the address which was read to the Sokoto leaders on March 21, 1903 are quoted by Brooke, N.J., the Commissioner in the Report: Native Courts (Northern Provinces) Commission of Inquiry (Lagos, 1952)Google Scholar.

57. The judge's academic training occurs within the formal traditional system of Islamic education which differs considerably from one place to another. The other qualities are otherwise acquired in life and can be recognized in an individual.

58. There is a Hadeeth of Prophet Muhammad which categorizes types of judges. The Hadeeth has been variously interpreted either to discourage persons from taking the office or to invite believers to engage in good deeds through the office of the judge. See Mukhtasar of Al-Khalil, Maliki Law 273 (F. H. Ruxton 1916)Google Scholar (statement of the law according to the Maliki School on the office of a judge).

59. The character of a witness in an Islamic law trial may be impeached on the ground that he lacks “adalah,” a comprehensive term which goes to the moral probity and trustworthiness of an individual. The yardstick used to measure this in early times was relatively stringent, i.e., such a person must not have been known to be a liar or deceitful or recalcitrant in saying his prayers on time. Over the years, getting such types of witnesses became impossible and the requirement had to be relaxed somewhat. See Ruxton, supra note 58, at 293.

60. See M. LAST and F.H. El-Masri, supra note 25, who have given a good historical account of the state of scholarship in the Sokoto caliphate.

61. Lugard, supra note 24, at 168. S. F. Nadel, the author of an anthropological study of the Nupe, has corroborated this argument in A Black Byzantium: The Kingdom of Nupe in Nigeria (1942). Hadeeth is denned supra note 58.

62. See the Native Courts Proclamations of 1900 and 1906; the Native and Protectorate Courts Ordinances of 1914 and 1933. Laws of Nigeria, 1910, 1923, 1933.

63. See supra note 62.

64. Id.

65. See Crocker, W.R., Nigeria: A Critique of British Colonial Administration 229 (1936)Google Scholar; Morris, & Read, , Indirect Rule and the Search for Justice: Essays in East African Legal History (1972)Google Scholar, in which similar criticisms were offered in that region.

66. See Report: Native Courts (Northern Provinces) Commission of Inquiry supra note 56; the Area Court Edict, 1968; Kano State Laws, 1968; Nigeria: White Paper on Government Views on the Report of the Customary Courts Committee, (1978) and Part D of the Third Schedule to the Federal Republic of Nigeria Constitution, 1979.

67. See Northern Region of Nigeria Moslem Court of Appeal Law No. 10 of (1956); 1979 Const, of the Federal Republic of Nigeria § 240; 1989 Const, of the Federal Republic of Nigeria § 259.

68. This is one of the many instructions which Caliph Umar gave Abu Musa when he appointed him to the office of a Governor and it has served as the most important document to refer to in discussing the office of a judge under the Shari'ah. In Dhiya ul-hukkamfi ma lahum wa ma 'alaihim minal ahkam, (trans. Yamusa, S., unpublished M.A. dissertation submitted to the Ahmadu Bello University, Zaria, 1976)Google Scholar, Abdullah bn Fodio has listed these, among others, to be the functions of a judge under the Shari'ah.

69. Ijtihad is a process by which a judge fills the voids of the explicit principles of the Qur'an and Sunnah by engaging in analogical deduction through interpretation to arrive at a new decision which is not otherwise covered by the Qur'anic precepts. This dynamic process helped the cause of the rapid development of Islamic law tremendously. Muslims, however, abandoned this method when the door of Ijtihad was allegedly closed late in the third century after Hijra (circa A.D. 900). For a more detailed discussion of this period and how it affected the development of the Shari'ah refer to Dr. M. Dasugi, Aliitihad fit fiqh al-islami, and Pasha, A. T., Nazrah Tareekhivya fi Huduth al-Mazahib al-Fiqahiyva (1969)Google Scholar.

70. Messrs Brooke and Anderson had both recommended this, see supra note 56 and note 33.

71. This writer is a beneficiary of this type of degree programme. I obtained the LL.B. (specialization in Islamic law) degree of the ABU in 1978. Other law faculties in the North, such as those at Bayero, Maiduguri and Usman Dan Fodio Universities, have recently copied this programme with major improvements which have enriched it even more.

72. My comment will not, I hope, be misunderstood to amount to an unsolicited public condemnation of these programmes of study, for I am a beneficiary, and participant in the evolution and implementation of them. I only attempt to be honest about what it has become: an integral part of the colonial scheme to transform both the substance and form of Islamic law in Nigeria for the worse. I happen also to believe that, stripped of their pretensions, the programmes could be overhauled, enriched and put to better use.

73. The common law has wreaked even more havoc on other customary law concepts especially in Africa, by introducing new terminologies and concepts to govern land tenure.

These have come to displace completely or submerge the terms and categories known to creating these systems. See Snyder, supra note 14, at 49. In Nigeria, as elsewhere throughout former British African colonies, customary law concepts governing communal land holding have virtually been transformed into common law freehold tenure through judicial interpretation and application. For instance, see James, R.W., Modern Land Law of Nigeria 13–31 (1973)Google Scholar; Nwabueze, B.O., Nigerian Land Law 106–37 (1972)Google Scholar.

74. Section 1(4) (c) of the Evidence Act, Cap. 62 of 1945 provides that the “Act shall apply to all judicial proceeding in or before any court established in the Federation of Nigeria but it shall not apply … to judicial proceedings in or before any native court (unless otherwise directed).”

75. Section 10(a) of the Provincial Courts Ordinance of 1914 had introduced this section and subsequent Native Court Laws and Edicts had retained it. According to the Legal Practitioners Act of 1962, a person called to the Nigerian Bar and enrolled as Solicitor and Advocate of the Supreme Court of Nigeria is called a Legal Practitioner. In Nigeria the distinction between barristers and solicitors has been eliminated.

76. The proper import of section 33(2) of the 1979 Constitution was in question. See the judgment of the Federal Court of Appeal in Karimatu Yakubu v. Yakubu Paiko, CA/K/805/85 (n.d.), in which this interpretation has been offered by Justice A.B. Wali. This is not to say that the Shari'ah does not recognize a concept which permits parties to be represented in legal proceedings. Indeed, the Appellate court had to consider and distinguish the Islamic concept of legal representation from its common law counterpart.

77. See Veall, D., Popular Movement for Law Reform (1970)Google Scholar.

78. Both the colonial Federal Supreme Court and the contemporary Supreme Court of Nigeria have held this common law doctrine to have been received in the country. See Oijosipe v. Ikabala, I AL L N.L.R. 128 (1972) and Johnson v. Lawanson, N.M.L.R. 380 (1971).

79. Excerpts from the letter have been translated with comments by Ghanem, I., Outlines of Islamic Jurisprudence 28 (3rd ed., Saudi Publishing House, 1983)Google Scholar.

80. In the Maliki School, writes the author of Mukhtasar al-Khalil, “a judge is obliged to consult the text of the Law on each fresh question arising for the court's decision. The Kadi will look up the precise intention and the just application of the Law, with respect to the matter under consideration for a judgment is always a special, isolated, decision one of detail, never a general one embracing several cases.” See Ruxton, supra note 58, at 288.

81. Karimatu Yakuba v. Yakubu Paiko, CA/K/805/85 (n.d.).

82. Much of what passes for Muslim law is no more than a collection of judicial pronouncements primarily on the Hedaya, a Hanafi legal manual which had earlier been translated into English by Sir Hamilton. See Rashid, S.K., Muslim Law (1979)Google Scholar; Fyzee, A.A.A., Outlines of Mohammedan Law (1964)Google Scholar and Hodkinson, K., Muslim Family Law: A Sourcebook (1984)Google Scholar.

83. Given the choice, I would very much prefer that judges, possessing all the necessary qualifications and exercising all due deference to the Islamic tradition, reopen the allegedly closed door of “Ijtihad.” An internally generated method of reinvigorating judicial discourse is far more preferable to striking out on an uncertain and, eventually, dangerous voyage of a wholesale borrowing of terminologies and doctrines and, even then, operating within a system for which Muslims have little respect because of their religious scruples, consciences and disdain for the colonial legacy.