Customary Court can not assume Jurisdiction over Islamic Marriages– Justice Oshodi [Brief Facts about ISP]

Islamic Law
Justice Oshodi ruled that Islamic law and Customary law are not the same. Therefore, the latter cannot validly adjudicate matters relating to Sharia law

 

In Madam Ayisat Afinni v. The President and Members of Grade “B” Customary Court, !solo, Lagos State and Alhaji Jumat Owolabi, [Suit No.: ID/852M/2007 (Unreported)], the petitioner, Alhaji had approached the Customary court to dissolve his marriage [Nikah] with Madam Ayisat.

Customary Court, wrongly, assumed jurisdiction and granted the petitioner’s prayer.

The Wife’s lawyer asked the High Court for certiorari and quashing of the Customary Court proceeding because the court can not validly preside over Islamic marriage matters.

Justice O. H. Oshodi agreed that Islamic law and Customary law are not the same and as such the Customary Court can not  assume jurisdiction over Islamic marriages.

His Lordship then held that;

It must be placed on record that there exists in Lagos State Independent Sharia Panels […].The 2nd Respondent should have approached any of these Panels with respect to his desire to dissolve the marriage”

 

Facts About the Independent Sharia Panel

The Independent Sharia Panel,ISP, of Lagos State was established in 2002 to which Muslims are invited to submit their civil disputes for adjudication under Islamic law.

It was the closest alternative after attempts to sponsor bills creating Sharia Courts failed— not once —but three times.

The ISP is open to all types of civil cases including divorce, custody of children, inheritance, land matters, election petitions from Islamic associations, contracts, and moneylending.

The ISP has two divisions. The first sits in Abesan Central Mosque in Ipaja Estate, while the second presides over matters in the Central Mosque of the 1004 Estates, Victoria Island.

Once the parties are before the panel, the proceedings are conducted in Yoruba and English languages and of Islamic and English legal form

The proceedings are open to the public except in highly sensitive matters

Legal practitioners are permitted to appear and represent their clients, non-qualification in Islamic law is no hindrance.

Objections, applications, or motions based on Nigerian law may be made and argued and are ruled on in writing. Once the case proceeds to hearing on the merits, Islamic law and procedure take over and all the complex rules of procedure and evidence laid down in the Maliki books of Islamic jurisprudence (fiqh) for the disposition of various types of cases are employed.

After hearing the case, the judges confer with one another to reach an agreement on proper disposition of the matter. One  of them is assigned to produce the lead judgment.

This is in writing, formally explained and reasoned, with citations to appropriate authorities, signed, certified, and delivered to the parties, similar to judgments of the High Court.

A book on ISP selected judgements has been published.

The ISP is a private tribunal: its judgments cannot be enforced directly.

Presumably, they can be taken to the High Court for enforcement on the ground that they are the outcomes of arbitration to which the parties agreed.

2 thoughts on “Customary Court can not assume Jurisdiction over Islamic Marriages– Justice Oshodi [Brief Facts about ISP]

  1. This was an interesting and welcome decision given in 2007 that now raises an important legal question in the context of the current Customary Courts Law of Lagos State 2015. Section 51 of the Customary Courts Law of Lagos State 2015 provides that: “Customary Law” includes Native Law and Custom and Islamic Law and Custom”. Also the section on the civil jurisdiction of customary courts provides in Section 22(3) that the Judicial Service Commission “may designate a Court to adjudicate in Islamic Law and matters in relation to marriage, divorce, custody and inheritance as it deems fit”. The legal question is this: Does this later legislation now supercede the 2007 decision of the Lagos High Court or can the two be reconciled in any way?

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