184 views | Hameed Ajibola Jimoh Esq. | December 20, 2020
The Honourable, the Grand Kadi of the Sharia Court of Appeal, Federal Capital Territory-Abuja had on the 16th day of December, 2020, signed into law, the Islamic Marriage Registry (Practice Direction, 2020), which accordingly (pursuant to Rule 1 of the Practice Direction) takes effect from the 9th day of December, 2020. This Practice Direction shall, save to the extent and may otherwise be directed by the Honourable, the Grand Kadi, apply to Islamic Marriage Registry matters. See Rule 2 of the Practice Direction. Also, the objective of the establishment of the Islamic Marriage Registry is to regulate matters under the Islamic Marriage Registry. See Rule 3 of the Practice Direction.Also, all the certificate of Islamic Marriage shall be issued by the Islamic Marriage Registry under the Department of Area Court. See Rule 4 of the Practice Direction. And for the purpose of the application for certificate of Islamic marriage, forms I and II under the Practice Direction shall be issued upon necessary prescribed fee having been paid by the applicant with evidence of payment produced to the Registry. See Rules: 5-11 of the Practice Direction. Furthermore, it is important to note that the Practice Direction is made pursuant to and in exercise of the powers conferred on the Honourable, the Grand Kadi of the Sharia Court of Appeal, FCT-Abuja, by virtue of section 264 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), section 24 of the Sharia Court of Appeal Act, Cap. 550, Laws of the Federation of Nigeria, 1990 and by virtue of other powers enabling His Lordship in that behalf. This paper view this development as a great achievement of the Honourable, the Grand Kadi of the Sharia Court of Appeal, FC-Abuja, which requires immediate emulation by all other States of the Federation having the Sharia Court of Appeal and those States that have not created a Sharia Court of Appeal for the State, hence, this paper submits that the establishment of the Islamic Marriage Registry for the FCT-Abuja is not only a welcome development in Islamic family law matters in FCT-Abuja (and Nigeria as a nation) but also a precedent for other States of the Federation to follow.
In my humble submission, it is very important for either of other States to establish its own Islamic Marriage Registry because considering the jurisdiction of Sharia Court of Appeal created by the Constitution in section 262 and 277 of the Constitution, only Islamic marriages conducted within the FCT-Abuja, would be able to benefit from application and issuance of the Islamic Marriage Certificate, to such an extent and legal effect that an applicant for the Islamic Marriage Certificate cannot apply to the FCT-Abuja’s Islamic Marriage Registry where he or she had conducted and or contracted his or her Islamic Marriage in either Niger State or Nasarawa State or Kogi State or Lagos State or any other State of the Federation outside the jurisdiction of the Sharia Court of Appeal of the FCT-Abuja. Therefore, it is my humble submission that any Muslim couple that intends to benefit from the issuance of an Islamic Marriage Certificate issuable by the Sharia Court of Appeal of FCT-Abuja’s Marriage Registry must be physical in Abuja to conduct the Islamic marriage. The need for being physical in Abuja to conduct the marriage would have been dispensed with if the State where the couples reside has Sharia Court of Appeal and other lower courts of first instance as well as an Islamic Marriage Registry. That is why this paper urges and recommends that all other States of the Federation should establish a Sharia Court of Appeal and lower courts of first instance (such as Area Courts) and to establish Islamic Marriage Registry (as done by the FCT-Abuja) and Islamic probate Registry. The establishment and functioning of these courts and registries would afford Muslims to enjoy their fundamental rights of religion and religious practices in any State that they reside. The Marriage Certificate would also resolve all or any argument in relation to the Islamic Marriage even after many years or where either of the two couples has died or both have died and in view of the importance of the Islamic Marriage Certificate in matrimonial causes and inheritance. In fact, the importance of the Islamic Marriage Certificate cannot be overemphasized. Section 264 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution provides thus ’Subject to the provisions of any Act of the National Assembly, the Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja may make rules for regulating the practice and procedure of the Sharia Court of Appeal of the Federal Capital Territory, Abuja.’. also see section 24 of the Sharia Court of Appeal of FCT-Abuja Act (supra). Furthermore, on conducting Islamic Marriage using instantaneous electronic devices of communication such as zoom, etc., in order to also be able to benefit from the application and issuance of the Islamic Marriage Certificate by the Sharia Court of Appeal, FCT-Abuja, please refer to my articles published in www.thenigerialawyer.com, among other media on the topics: (1.) ‘RESOLVING MATRIMONIAL CAUSES UNDER THE ISLAMIC FAMILY LAW IN STATES WITH NO SHARIAH COURTS: SOME RESCUES FOR MUSLIM WOMEN!’, and; (2). ‘WHETHER INTENDING MUSLIM COUPLES OF A STATE WITH NO SHARIAH COURTS MUST BE PHYSICALLY PRESENT IN ABUJA IN THE CASE OF SECTION 14(C) OF THE AREA COURT ACT OR THE MARRIAGE CONTRACT COULD BE CONTRACTED USING INSTANTANEOUS ELECTRONIC DEVICES OF COMMUNICATION SUCH AS ZOOM, ETC.?’.These two articles which can be Google searched on the internet would also guide on how the Islamic Marriage can be conducted online or virtually in such a way that the Muslim couples would be able to benefit from the issuance of the Islamic Marriage Certificate. It is noteworthy that the Islamic Marriage Certificate shall be issued to one man and each and every one of his wives. For instance, the first wife shall be issued a certificate of marriage she had with her Muslim husband; the second wife too would have her own certificate issued to her; and the third and fourth wives shall respectively have theirs issued to them separately and not a joint certificate for all wives more than one wife. This Marriage certificate is also important in the sense that it is issued for the Federal Republic of Nigeria and therefore enjoys both local (with Nigeria) and international statuses as a legal Marriage document certifying the contents contained in the certificate as true and genuine, so that a Muslim needs not apply for Marriage Certificate in a non-Islamic courts which for instance, under the Marriage Act, has the legal implications of converting the marriage into marriage under the Marriage Act which is a marriage of ‘one man to one woman’ which is contrary to the Islamic law of marriage. Nevertheless, it needs to be understood that the issuance of the certificate is only an evidence that the Islamic Marriage was conducted but it is not a prove as to the validity of such marriage as evidence may be called where required (and necessary) to prove that the purported Islamic Marriage fulfills those essential elements of a valid marriage which are four (4) essential elements and which must be present in a marriage before same can be valid in Islamic law such as:1. Offer (i.e. the proposal for marriage) and acceptance of same (Ijaabwalqubuul also known as ‘sighah’); 2. Legal Guardian; 3.Two witnesses; 4.Mahr (dowry).Persuasively, see the case of SUNMONU OLOHUNDE &ANOR VS PROFESSOR S.K. ADEYOJU 2000] 6 SCNJ 470(2000) 6 S.C.(PART III)118, where the Court toed the line of OGUNLEYE V. ONI (1990) 2 NWLR Pt 745 that a Certificate of Occupancy is not a conclusive evidence of title in favour of its holder, when it held that-“The point must be stressed that a certificate of statutory or customary right of occupancy issued under the Land Use Act, 1978 cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is, at best, only a prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and rendered invalid and null and void” It is therefore trite that where a Certificate of Occupancy is irregularly issued to a holder, the court has the power to declare the Certificate of Occupancy a nullity and same can be set aside. This position was well adumbrated by the Court of Appeal in the following cases: In OFOEZE V. OGUGUA (1996) 6 NWLR Part 455 page 451 @ 454, the Court held that Certificate of Occupancy does not confer an indefeasible title to land. This trend was followed in ANGBAZO V. SULE (1996) 7 NWLR Pt 461, Pg 479 @ 482, while in MBASHINYA V. LIMAN (1996) 3 NWLR Pt 434 Pg. 62 at page 64the court held that the right of an existing holder or occupier of a parcel of land is not automatically extinguished by a mere issuance of a Certificate of Occupancy to another person under the colour of a person in occupation. It does not extinguish the right of any other person having a customary right over the land. Consequently, any person without title to a parcel of land in respect of which a Certificate of Occupancy was issued acquires no right or interest, which he did not have before because “ex Nihilo Nihil Fit” that is, we cannot build something on nothing.
Furthermore, it must also be understood that the issuance of the Islamic Marriage certificate does not convert the Islamic marriage to a marriage of ‘one man and one wife’ rather, the Islamic law of a marriage of a man to a maximum of four wives under his care is affirmed (meaning that each of the man’s four wives has a Marriage certificate issued to her as a wife to the Muslim man).
Finally, it is my humble recommendation that all other States of the Federation should establish a Sharia Court of Appeal and lower courts of first instance (such as Area Courts) and to establish Islamic Marriage Registry (as done by the FCT-Abuja) and Islamic probate registry, relying on the precedent already laid down by the Honourable, the Grand Kadi of the Sharia Court of Appeal, FCT-Abuja, for the sake of Almighty Allaah and for Muslims to actively practise their religion and its practices. I also pray that Almighty Allah reward the Honourabe, the Grand Kadi of Sharia Court of Appeal, FCT-Abuja with Al-JannatulFirdaus (Paradise) for this great achievement and may Allaah make the establishment easy for other States of the Federation! Aamiin!