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

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

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

 

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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.

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TABLE OF CONTENTS

Title Page — — — — — — – – — — i
Abbreviation — — — — — — — – — — xii
Abstract — — — — — — – – — — viii
Table of content – – – – – – – – – ix
CHAPTER ONE:
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Introduction — — — — — — — — 1
1.2 Statement of Research Problem- — — — — — — 6
1.3 Research Question – – – – – – – – 7
1.4 Aim and Objectives of the Research – — — — — 7
1.5 Significant of then Research – — — — — 8
1.6 Methodology — — — — — — — 8
1.7 The Scope of the Research– — — — — — — 9
1.8 Literature Review — — — — — — — 9
1.9 Organiszational Layout — — — — — — — 14
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CHAPTER TWO
NATURE OF PROOF IN ISLAMIC LAW
2.1 Introduction — — — — — — — 15
2.2 The concept of Shahadah — — — — — — — 16
2.3 Requisite on Regarding Proof in Islamic Law — — — — 17
2.4 Burden of Proof in Islamic Law- — — — — — — 20
2.5 Standard of proof — — — — — — — 22
2.6 Juristic Exposition on the Issue of proof — — — — — 25
2.7 Classification of means of Proof — — — — — — 28
2.7.1 Proof by testimony (Shahadah) — — — — — — 29
2.7.2 Proof by Admission — — — — — — — 31
2.7.3 Proof by Oath — — — — — — — 32
2.7.4 Proof by Documentary Evidence — — — — — — 32

CHAPTER THREE
AL-IQRAR (CONFESSION/ADMISSION)
3.1 Introduction — — — — — — — 34
3.2 The Definition of the Term Al-Iqrar. — — — — — 34
3.3 Authorities (Adillah) as to the Legality of Iqrar — — — — 35
3.4 Conditions for Admission — — — — — — — 36
3.4.1 Indivisibility of Admission — — — — — — 37
3.4.2 Delay in Admission — — — — — — — 37
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3.4.3 Retraction from Iqrar — — — — — — — 38
3.4.4 The Essential Elements of Iqrar — — — — — — 39
3.5 The Formula of Al-Iqrar — — — — — — — 43
3.5.1 The Condition Governing the Formula (Sigah) — — — — 43
3.5.2 Muhallul Iqrar – Place of Confession — — — — — 46
3.5.3 Iqrar in Civil Case – – – – – — — – 46
3.5.4 (Admission of paternity) — — — — — – – 47
3.5.5. Iqrar in theft (Sariqah) — — — — — — 48
3.5.6 Iqrar in Qisas and Diya — — — — — — — 48
3.5.7 Al-Iqrar in Favour of A Heir — — — — — — — 49
3.5.8 Iqrar in Bankruptcy – – – – – – – – 50
3.5.9 Extra Judicial Confession — — — — — — — 50
CHAPTER FOUR
TESTIMONY (SHAHADA)
4.1 Introduction — — — — — — — 51
4.2 Definition of Testimony(Shahada) – — — — — 51
4.3 Authorities for Shahadah in the Holy Quran and Sunnah of the Prophet (P.B.U.H) — — — — — — — – – 52 4.4 The Difference between Al-Bayyina and Al-Shahadah — — — 52
4.4.1 The Legal position in giving Shahadah — — — — — 54
4.5.1 The Nature of Shahadah — — — — — — — 55
4.5.2 The Pillars of Shahadah — — — — — — — 56
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4.6 Witness in Marriage Contract — — — — — — 59
4.7 Evidence on Rida’a (Breast Feeding) — — — — — 60
4.8 Tazkia (Purgation) — — — — — — — 61
4.8.1 The Condition Stipulated in Respect of Muzakki — — — — 62
4.82 Al-tajrih — — — — — — — 62
4.9 Al-Yameen (Oath as A means of proof) — — — — — 63
4.10 Kinds of Matters that Attract Oath taking — — — — — 64
4.10.1 Administration of Oath on Certain Occasions in Divorce Cases — — 66
4.10.2 When an Oath can be administered — — — — — 68
4.10.3 The Formula of Oath. — — — — — — — 70
CHAPTER FIVE
PROOF BY EXPERT OPINION
5.1 Introduction — — — — — — — 71
5.2 Proof by Expert Opinion — — — — — — — 71
5.3 Circumstantial Evidence — — — — — — — 73
5.4 Al-Qiyafah (Art of Tracing Lineages) — — — — — 77
5.4.1 Ascribing Paternity to a Non-Muslim by Qa’if — — — — 78
5.4.2 Linking paternity to two person by Qa’if — — — — 78
5.5 The evidence based on the personal knowledge of the judge – – – 79
5.6 Khabar Information as a means of proof – – – – – 82
5.7 Al-kitabah (Documentary Evidence) – – – – – 83

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CHAPTER SIX:
SUMMARY AND CONCLUSION
6.1 Summary — — — — — — — 86
6.2 Finding — — — — — — — – – 87
6.3 Recommendations — — — — — — — 88
Bibliography — — — — — — — 91

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

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