Mohammed V. Mohammed: A Watershed Victory for Islam and Its Islamic Law or for Common Law and Its Statutory Marriage System? (Part 1)

By:
Dr Abdullahi Saliu Ishola
Senior Lecturer
Department of Islamic Law,
Faculty of Law,
Kwara State University, Malete, Nigeria.
07038998357
asishola1@gmail.com

I. BACKGROUND
On Wednesday, 7th September, 2022, becoming widely circulated was the decision of the Kwara State Sharia Court of Appeal (KWASCA) in the case of Mohammed v. Mohammad (Appeal No.: KWS/SCA/CV/AP/IL/14/2022). The judgment was delivered on Wednesday, 3rd August, 2022.

The facts of the case are straightforward. One late Major Mohammed Adeniyi (the deceased) married the 2nd Appellant, one EVANG (MRS) OLABISI MOHAMMED under the Common Law’s Statutory Marriage System. He later married other three women as his 2nd, 3rd and 4th (later divorced) wives in accordance with Islamic law. The marriages were blessed with children.

While the 2nd Appellant who happened to be a Christian and was married under the Act claimed to be solely, together with her child (1st Appellant), entitled to inherit the deceased as stipulated under the Adminstration of Estates Law, the Respondents (other wives and their children) claimed that they are also entitled to inherit from the estates since the deceased died as a Muslim.

The KWASCA agreed with the appellants and ruled against the Respondents, declaring, at pages 12-13 of the judgment, as follows:

” …the estate of late Major Muhammed Adéníyì would ordinarily have been governed by Islamic Law if he had not by own choice contracted a valid and subsisting marriage under the Act with the 2nd Appellant. Dissolution of a Marriage under the Act cannot be presumed, speculated or conjectured as erroneously done by the trial court.

Definitely, the conduct of a marriage under the Act (which is also a Christian marriage) is an act that conflicts which (sic: with) Islamic religion which the deceased professed. Certainly too, the subsequent Islamic conducts of the deceased including narrating other wives, dying and being buried as a Muslim etc could not, by the state of the Nigerian Law, legalize the illegality or change the law that should govern his intestate succession – his chosen Adminstration of Estates Law”.

Based on the above, the judgment is being celebrated in so many quarters by some Muslims as a good judgment that will caution Muslims from contracting the Marriage under the Act and thereby stick to the Islamic Marriage system. It is believed by the celebrants that the decision is a watershed victory for Islam and its Islamic Law.

I humbly posit that Muslims celebrating the judgment on that premise as well as those celebrating on being a proper interpretation of the law are doing so without reflecting on the consequences of the judgment for the religion of Islam and its Islamic law, especially its Islamic law of Inheritance.

Therefore, in this write up, I attempt to reveal the grave negative consequences of that judgment on the religion of Islam and its Islamic law. I intend, in sha Allah, to release my legal analysis of the judgment I’m another write up, which will be more elaborate.

For the avoidance of doubts, it is my humble position that the judgment under review is neither a victory for Islam nor for Islamic Law. The learned Kadi that wrote the judgment was misdirected by some erroneous legal reasonings which I spell out below before enumerating the negative implications of the judgment for Islam, Islamic Law and Muslims.

II. ERRONEOUS LEGAL REASONING LEADING THE LEARNED KADI TO HIS ERRONEOUS CONCLUSIONS

  1. Perceiving, Treating and Equating Islamic Law with Customary Law: This can be seen clearly in the reasonings advanced on cases reviewed and relied upon at page 12.
  2. Failure to be guided by the fact that a Muslim cannot die intestate. Throughout the judgment, the court dealt with deceased as a Muslim who died intestate. Justice Ambali sates in his book, also referenced in the case, at the same page 389:

“A Muslim does not die intestate because Islamic Law has stipulated how to handle his estate”.

Then, was the deceased in the case not a Muslim to have made the court considered which Law applied to his so called intestate properties?

  1. Heavy reliance on common law case laws and unnecessary guidance by decided cases especially those which are not Islamic law cases whereas judicial precedence has no relevance in Islamic law cases. In his book, WILLS UNDER ISLAMIC LAW, at page iii, Mas’ud Adebayo Oniye Esq (as he then was, now a Kadi) states as follows: “Judicial Precedence which is the bedrock of common law or other legal systems is inapplicable in Islamic law. Because in deciding a case under Islamic law, the Judge is not bound by a previous judgment(s). Also, the Judge can always re-open an earlier decided case”
  2. Unjustifiable Reliance on opinions of a non-shariah writer in a Monograph published by a non-academic publisher nor by a research institute: It is obvious that the learned Kadi, relied so much on the opinions advanced by one Hajia S. A. Giwa in her book titled THE STATUS OF REGISTRY AND ISLAMIC LAW MARRIAGES IN NIGERIA. This can be seen at pages 13 and 14 of the judgment. A careful study of that book would give an impression that the judgment was written as a caricature of the opinions of that author.
  3. Selective Reference to the view of Justice M. A. Ambali in the 3rd Edition of his book titled THE PRACTICE OF MUSLIM FAMILY LAW IN NIGERIA at page 389. The portion under reference extended to pages 390 and there, the learned retired Grand Kadi states clearly that:

“Islamic doctrines of succession constitutes part of Muslim faith of total Submission to the will of God. Muslims and what they possess belong to Allah and He dictates what to do with their possession after their death.

If the learned Kadi had not just taken a portion of the learned Grand Kadi’s analysis, the learned Kadi should have been guided to ask whether Allah dictates that once a Muslim marries under another marriage system, such as under the Act as in the case, his estates should no longer be subjected to Islamic law. Or was the fact that a writer, who is not learned in Sharī’ah (the said S.A. Giwa), and the decided cases relied upon by KWASCA, said so, is enough for a Shari’ah Court, to declare what Allah stipulated/prescribed, as illegal, null and void?

  1. Grave Violation of even the Common Law Rule of Statutory Interpretation with regards to Sections 1(1)(a) and (b) and Section 1(2) of the Administration of Estates Law , Kwara State. An elementary rule of Statutory Interpretation is that, no provisions of the Statute must be interpreted in isolation. However, the above provisions were intrested by the learned Kadi in a disjointed manner. It is that approach to statutory Interpretation that paved ways for the erroneous reasoning leading to the erroneous conclusions reached.

It is submitted that, by the combined proper Interpretation of Sections 1(1)(a) and (b) and Section 1(2) of the Administration of Estates Law, this law would only apply to any person who died without an English Will (died intestate) if all the following conditions are cumulatively met (no from for pick and choose as done by the learned Kadi):

  1. That the deceased is NOT a Muslim (i.e. a person whose estates is subject to Islamic law)
  2. That the deceased is a person who contracted a valid monogamous marriage
  3. That the deceased is survived by a spouse or issue of a such a valid monogamous marriage
  4. That the deceased had not died before the commencement of that Law, which is 15th August, 1991.

It is apparent that grave violation was done to the purports of the above provisions of the Law when the learned Kadi, interpreting each section separately, declared, referring to section 1(2) alone, that;

“What the above provision purports to say is that once a person chose to have a valid monogamous maarriage under the Act, it is the Administration of Estates Law that will apply to his or her intestate estate or the undisposed part of his/her testate estate page 12.

With due respect to the learned Kadi, what that provision of the Estates Law rather purports is that, given the earlier provision of sections 1(1)(a) and (b), it it will only apply to the estates of a deceased person who contracted a valid monogamous marriage so long as such a deceased person is not a person who died before 15th August 1991 and he was not a Muslim.

Thus, the deceased Major being a Muslim, the KWASCA ought to have declared that the Law does not apply to him notwithstanding that he purportedly contracted a valid monogamous marriage. The court should have thereby sent words of cautions to Muslims and their spouses who do marry or are already married under the Act that, depsite that, whenever such a Muslim dies, Islamic law would apply to his or her estates and not otherwise aa done by the court. Such declaration would have been a watershed victory to the religion of Islam and its Islamic Law and by implications to the Muslims.

With due respect, another grave violation done to the Interpretation of the Adminstration of Estates Law by the learnes Kadi, which influenced the judicial reasoning in the case was the giving of effect to the INCLUSION provision, which is section 1(2) while the EXCLUSION provisions, which are sections 1(1)(a) and (b) were gloved over.

After showing the erroneous legal reasoning that led to the wrong conclusions reached by the court, I shall proceed in Part 2 of this analysis to show that the judgment cannot be seen as a good caution to Muslims, but rather as a sad development subjecting Muslims and their religion of Islam and its Islamic law to the inferior level vis-a-vis the common law. The judgment also has grave negative implications for Muslim personality and Islamic law.

DISCLAIMER
No tone or language or word used in this write up is intended to cast any aspersion on the personality of the learned Kadi who wrote the judgment or to disparage the Kwara State Sharia Court of Appeal. Any reading of such intention into the write is not intended by the writer. Both the learned Kadi and the KWASCA are held in high esteem by the writer.

Dated this Wednesday, 14th September, 2022 at Ilorin.


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