Whether a Muslim Can Opt Out of the Application of Islamic Personal Law Without Renouncing the Islamic Faith?

CASE TITLE: MOHAMMED & ORS v. MOHAMMED & ANOR (2024) LPELR-62831(CA)

JUDGMENT DATE: 23RD AUGUST, 2024

PRACTICE AREA: ISLAMIC LAW

LEAD JUDGMENT: MUHAMMED LAWAL SHUAIBU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on administration of the estate of an interstate Muslim.

FACTS:

This is an appeal against the judgment of the Sharia Court of Appeal of Kwara State sitting at Ilorin in Appeal No. KWS/SCA/CV/AP/IL/14/2022 delivered on the 3rd of August, 2022, wherein it set aside the earlier ruling of the Upper Area Court I, Ilorin.

The Appellants as plaintiffs instituted suit no. UACI/CV/FM/968/2020, claiming, inter alia:

1. AN ORDER of this honorable Court directing that the sum of Twenty-Three Million, Five Hundred and Eighty-Eight Thousand Naira in dependent’s account at FCMB be the benefit and emblements (sic) of late Major Mohammed Arogun Adeniyi’s estate in accordance with Islamic law.

2. AN ORDER of this honorable Court directing the Defendant to surrender all personal belongings and properties of late Major Mohammed in its (sic) possession, such as Jeep CRV, Toyota 2016 model for distribution in accordance with Islamic law.

3. AN ORDER for the cost of filing and prosecution of this case.

​Upon being joined in the proceedings as a co-defendant, the 2nd Dependent (now the 2nd Respondent) challenged the jurisdiction of the trial Upper Area Court to determine the suit contending that since the deceased was a Christian and he got married to her under the Marriage Act, his estate was heritable only by her and the children she begat for him, to the exclusion of the deceased’s aged parents and the Appellants, under the Administration of Estates Law of Kwara State. In other words, the trial court lacked jurisdiction to hear and determine the Appellant’s case and that Islamic Law was not applicable to the estate.

In his ruling, learned trial Upper Area Court judge dismissed the objection and assumed jurisdiction to hear and determine the matter under Islamic Law.

Aggrieved with the ruling of the Upper Area Court, the Defendants (now respondents) appealed to the  Sharia Court of Appeal  which reversed and set aside the ruling of the trial Upper Area Court.

Dissatisfied with the judgment, the Appellants filed the instant appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues:

1. Whether the Court below was right in holding the Administration of Estate Law of Kwara State was the applicable law to govern the administration of estates of the late Major Mohammed Adeneyi and not Islamic Law.

2. Whether the learned Kadis of the Court below were not in error when they held that the Appellants’ suit was an abuse of Court process having regard to the Suit No. KWS/2/2020 before High Court of Kwara State.

DECISION/HELD:

In the final analysis, the appeal was allowed.

RATIOS:

• ADMINISTRATION OF ESTATE – ESTATE OF A DECEASED- Applicable law governing the administration of the estate of an intestate Muslim who married under the Marriage Act
• ISLAMIC LAW AND PROCEDURE – ISLAMIC LAW MARRIAGE- Whether marriage under the Marriage Act or marriage to a Christian by a Muslim man implies a renunciation of his Islamic faith or prevents him from marrying other legally permissible wives
• ISLAMIC LAW AND PROCEDURE – ISLAMIC LAW- Whether a Muslim can opt out of the application of Islamic Personal Law without renouncing the Islamic faith
• ISLAMIC LAW AND PROCEDURE – ISLAMIC LAW- Whether there is a dichotomy between native law and Islamic law

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