A CRITICAL ANALYSIS OF THE MEANS OF PROOF IN CIVIL LITIGATION UNDER ISLAMIC LAW

ABSTRACT

This dissertation entitled “A Critical Analysis of the Means of Proof in Civil Litigation under Islamic law “primarily examined the principles of Islamic Law applicable to means of proof. In this regard, the essential means of proof have been highlighted, i.e., Shahadah (testimony), al-Iqrar (Confession/Admission), Qarinah (circumstantial evidence), al-Kitabah (documentary evidence), flm al-Qadi (personal knowledge of a judge), al-Yamin (oath), al-Qiyafah (forecast), al-Khabar (Information). The study is predicated upon the research problem that while under Islamic law litigants are under an obligation to furnish proof in order to succeed in the prosecutions of their cases; and consequently, while the courts are also obliged to adjudicate on the basis of the strength of the proof presented before them, it is imperative that the particular means of proof recognized by Islamic law are brought to lime line and critically examined as to its utility in the adjudication of disputes before the courts. Therefore, this dissertation primarily examines various means of proof in civil litigation under Islamic law and their efficacy in the administration of justice under the sharia. The dissertation adopts mainly doctrinal method of research. It is principally observed that Islamic law makes it mandatory on Muslims to promote the cause of justice by obliging litigants to produce proof in support of their claims before judgment could be made in their favour and that anyone who is in possession of any piece of evidence is obliged to furnish it in order to uphold the cause of justice and secure the restoration of the legitimate rights of the people. Thus, the law accords ample means and standard of proof to different categories of matters in order that the ends of justice are attained. It is thereby recommended that Islamic law of evidence as interpreted by different schools of thought should be strictly adhered to by our judges in deciding disputes before the sharia courts in Nigeria and that the Sharia implementing states, through their Ministries of Justice and the Judiciaries, should intensify efforts in training their sharia judges in institutions of higher learning, for the effective performance and implementation of the shariah legal system in our states.

CHAPTER ONE

GENERAL INTRODUCTION

1.1        Introduction

Islamic law (Shariah) is a divine law which is believed and considered by Muslims to be the most complete and comprehensive code of conduct deriving its source from the Glorious Qur’an which contains all aspects of life in this world and the hereafter¹. The Glorious Qur’an it is also the primary source of Islamic Law devoid of any distortion, manipulation, interpolation and not subject to human alteration as Allah the Lawgiver has taken unto Himself the responsibility of protecting the integrity of the Glorious Qur’an². Allah (SWT) in chapter 15:9 says: “verily, is He who have sent down the Dhikr(i.e. the Qur’an) and surely, We will guard it (from corruption)”.³ This verse is a challenge to the entire mankind and obliges the belief in the miracles of the Glorious Qur’an as it is a clear fact that more than 1400 years have elapsed and not a single word of the Glorious Qur’an has been changed, although the disbelievers tried their utmost to change it in every way, but they failed miserably in their efforts.