This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.
Background
In the wake of Fulani Sheikh Usman Danfodio’s conquest of Hausaland in 1804, an Islamic legal system was established in what would become Northern Nigeria.[1] Though the British attempted to repress the use of Islamic law during Nigeria’s colonial period, it is said that Islamic law was still “more widely, and in some respects more rigidly, applied in Northern Nigeria than anywhere else outside Arabia.”[2] Shortly before independence in 1960, the British pushed to further codify limitations on Islamic law in the country in order to attract foreign investment.[3] This push resulted in the Settlement of 1960, which effectively eliminated the applicability of Islamic law to criminal matters and confined it to issues of personal status.[4]
Despite this reform, proponents of Islamic law continued to advocate for the expansion of its purview in Northern Nigeria. Their advocacy resulted in the reintroduction of the full Islamic legal system in several Northern states beginning in 1999. It was against the backdrop of this movement that the Nigerian Supreme Court decided Alkamawa v. Bello and Another in June 1998.
Source: Alkamawa v. Bello and Another (SC 293/1991) [1998] 2 (19 June 1998) (Nigeria).
Summary
Appellant Ila Alkamawa was the next door neighbor of appellee Hassan Bello’s father.[5] When his father died, Bello offered to sell Alkamawa the late man’s house for 30,000 naira. Alkamawa told Bello that the price was too high, prompting the latter to search for an alternate buyer. A third man, Malami Yaro, agreed to purchase the home from Bello for 26,000 naira. Alkamawa brought suit in an Area Court under Islamic law. He argued that the sale should be set aside so that he might be able to exercise his right of shuf’a, or preemption.
In Islamic property law, shuf’a is a co-owner’s right of first refusal on the purchase of jointly-owned real estate.[6] According to the Ḥanafī School, property owners also enjoy this right over properties neighboring their own.[7]
In Alkamwa’s case, he argued that this right allowed him to purchase his neighbor’s home at the price Yaro had paid. Conversely, Bello argued that Alkamawa had waived his right to shuf’a when he declined to purchase the home when it was first offered. The case was eventually appealed to the Supreme Court.
Analysis
The Nigerian Supreme Court unanimously dismissed Alkamawa’s appeal. The court found that Alkamawa did not waive his right to shuf’ah (as a lower court had found) because Alkamawa never held such a right. The sale to Yaro, the court said, was therefore valid. The unique nature of this opinion, however, is not to be found in the court’s conclusions of law, but rather in their underpinnings and the dicta used by the court.
In his leading judgment, the legal conclusions of which represented the majority opinion of the court,[8] Justice Abubakar Bashir Wali reasoned that Alkamawa lacked a right to shuf’a because shuf’a with respect to a neighbor is only recognized in the Ḥanafī School of Islamic law. Though the Ḥanafī School recognizes shuf’a for neighbors, the Mālikī, Shāfi‘ī, and Ḥanbalī schools only recognize this right for partners in the ownership of a disputed property. Citing previous Area Court edicts, as affirmed by Nigeria’s Sharia Court of Appeal, Wali stated that it is “the Islamic law of the Mālikī School which is applicable generally to Northern States of Nigeria.”[9] As the Mālikī School does not recognize shuf’a for neighbors, nor can Nigerian courts, Wali concluded.
To reach his opinion, Wali, a former justice of the Sharia Court of Appeal,[10] relied on the writings of several Islamic law scholars primarily representing the Mālikī School. He ultimately wrote the supremacy of the Mālikī School into the Supreme Court’s jurisprudence on issues of Islamic law. Going beyond his legal justification for its use in Nigeria, Wali noted that the Islamic law of the Mālikī school has been in use in Northern Nigeria “both before and after the colonisation of the area”[11] and has achieved “acceptance and recognition”[12] worthy of judicial notice.
Despite citing Mālikī scholars, including Mālik Ibn Anas and Muḥammad al-Bukhārī, two early figures in the school, Wali did not write that Nigerian courts must restrict their consideration solely to the opinions of certain Mālikī jurists. Instead, he grounded his conclusion that neighbors do not enjoy a right to shuf’ah on the idea that such a right is not embraced by “the majority view as stated by the Mālikī.”[13]
Eclipsing this in significance, however, is dicta that Wali included with his opinion. Following his answer to the questions presented by the case, he wrote, “Islamic law is not the same as customary law as it does not belong to any particular tribe. It is a complete system of universal law, more certain and permanent and more universal than the English Common Law.”[14]
Wali’s statement distinguishes Islamic law from customary law and argues for the superiority of the former. This thinking is in direct conflict with thinking on Nigerian law as it stood since the colonial era, when the British first classified Islamic law as a form of customary law in what would become Nigeria.[15]
The elevation of Islamic law above customary law could theoretically pave the way for a change in how Islamic law is treated in Nigeria. One way this might occur is through a change in the law on who is allowed to interpret Islamic law. Currently, the Supreme Court and not the Sharia Court of Appeal has the final say on the meaning of Islamic law in Nigeria.[16] This means that jurists who are not required to have training in Islamic law are the final expositors of sharī‘a as applied to Nigeria’s Muslim North. Though Supreme Court justices are also not required to be trained in customary law, it is possible that future courts or policymakers, acting on Wali’s dicta asserting the special nature of Islamic law in Nigeria, might find this situation unacceptable and seek to enact new policy.
Notes:
[1] See Mamman Lawan, Islamic law and Legal Hybridity in Nigeria, 58 J. Afr. L. 303 (2014), https://www.cambridge.org/core/journals/journal-of-african-law/article/islamic-law-and-legal-hybridity-in-nigeria/AA23830DC4AB8DE8E5FEF683CE0E8644/core-reader.
[2] Id. (quoting J. N. D. Anderson, Islamic Law in Africa 219 (1955)).
[3] See id.
[4] See id.
[5] Alkamawa v. Bello [1998] 6 SCNJ 127 (Nigeria), https://nigerialii.org/ng/judgment/supreme-court/1998/2.
[6] Md Akther Uddin, Principles and Application of Preemption in Islamic Finance: A Critical Analysis, Munich Personal RePEc Archive 12 (Apr. 18, 2015), https://mpra.ub.uni-muenchen.de/67713/1/MPRA_paper_67713.pdf.
[7]Id.
[8] See 1-2 Olatokunbo John Bamgbose, Digest of Judgments of the Supreme Court of Nigeria 128 (2013) (noting that leading judgments must be in accord with the opinions of the majority of the justices on points of law or else be considered a dissenting judgment).
[9] Alkamawa v. Bello [1998] 6 SCNJ 127 (Nigeria), https://nigerialii.org/ng/judgment/supreme-court/1998/2.
[10] See Yush’u A. Ibrahim, Reminiscences with Justice Abubakar Bashir Wali (Rtd), SUNDAY TRUST (Oct. 15, 2017), https://www.pressreader.com/nigeria/sunday-trust/20171015/282583083237474.
[11] Alkamawa [1998] 6 SCNJ 127.
[12] Id.
[13] Id.
[14] Id.
[15] See A. A. Oba, Islamic law as Customary Law: The Changing Perspectives in Nigeria, 51 INT’L & COMP. L. Q. 826, 838 (2002), https://www.jstor.org/stable/pdf/3663189.pdf?refreqid=excelsior%3A8af9eac0c2319b03a98ed0babae12e79.
[16] Id. at 828.