Principles guiding the application of Islamic Law

Principles guiding the application of Islamic Law

“The clear principle of Islamic Law cannot by now be obscured. The onus is on the claimant to prove his case. The Defendant, after denial, shall not say or do any thing. He is supposed to wait for the Plaintiff to call witnesses to establish his claim. If the Plaintiff failed to prove his case in accordance with Islamic law principle; then his case stands dismissed. In some situation, the Defendant will be asked to subscribe to an oath of denial. The author of Tuhfatul Hukkam has tacitly and generally too put it thus:-
The Plaintiff is required to bring witnesses to testify for him and the Defendant is required to take an oath in the event of failure of the plaintiff to call witnesses.” See also Ashalul Madarik Fi Irshadissalik Vol. III page 238.

It is the duty of the presiding judge in all cases to determine, at the onset, who is the plaintiff. Once this is discovered then the Judge will order him to call the required witnesses to prove his case. In the appeal at hand, the Judge did not say in so many words who is the plaintiff. The record of proceedings showed that Saini Danjuwa was the plaintiff and Hajja Baaji was the Defendant. The Court did not state that Hajja Baaji was turned into plaintiff. The plaintiff was then expected to call his witnesses in proof of his claim. It was a surprise to us to see that the defendant was asked to call witnesses and the plaintiff was not even asked to respond or cross examine the witnesses called by the Defendant. This is clearly contrary to Islamic principles. See Hada v. Malumjashi (1993) 7 NWLR (Pt.313) 1 at p.17 per Wali, J.S.C. See also Ruxton on Malik Law p.281-282; Also – Usman v. Kureem
(1995) 2 NWLR (Pt.379) p537 at 548 per Wali, J.S.C. The procedure adopted by the trial Court and acceptable by the Upper Area Court and the Court below is clearly and fundamentally wrong capable of making the proceedings a nullity and I so hold. I cannot understand how the trial Court first ordered the Defendant (and not the plaintiff) to prove his case. Hajja Baaji never took the matter to the Court. The facts, as stated in the Record of Proceedings, do not show that Hajja Baaji could be a plaintiff. After the statement of the claimant the Defendant (Hajj Baaji) merely denied the claim. Instead of the Judge to order the claimant to adduce evidence in proof of his claim by calling the required witnesses that Court directed the Defendant to call witnesses which was done by the Defendant in compliance with the Court’s order, this is wrong. The Court below therefore cannot, with due respect, be right in upholding the decision of Upper Area Court which in turn affirmed the wrong decision of the trial Court. The decision of the trial Court was clearly perverse and the subsequent judgments of the Upper Area Court and Sharia Court of Appeal Gombe State are similarly wrong. The 1st issue is therefore negatively answered.”

DANJUWA v. BAAJI (2000) LPELR-6916(CA)