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It is natural and common in human society to have between individuals a kind of
dispute that may probably arise. Islamic Law had laid down and provides the
procedures through which such dispute can be judicially determined. Nigerian
Courts are enjoined to apply principles and Rules enunciated by Makili School of
Complete application of Islamic law of Evidence in Nigeria has been limited and
most of the texts on Islamic law of Evidence are classical and written in Arabic
language. The rules of Islamic law of Evidence pronounced by the classical books
are yet to be comprehensively codified to guide Nigerian Courts in conducting trials.
Regrettably the poor level of knowledge of Islamic law of Evidence rules among
lawyers and the lower courts judges has led to erroneous appreciation and
application of the rules.
The scope to be covered by this research is: the sources of Islamic law of Evidence,
the cardinal principles governing the use of testimony, the application of testimony
as means of Proof in Establishing both Criminal and Civil Cases. The research
methodology of the thesis is doctrinal and analytical.
In the course of the research, some findings or observations were made. The
research found that there is no clear distinction between substantive and procedural
law in Islamic Law and most of the texts on the subject are written in classical
Arabic which is technical in nature. The jurisdiction of Shari‟a Court of Appeal in
Nigeria is limited to Islamic personal Status. Suggestions were made in the research
as proffered solutions to the enumerated findings/observations.
1.1 Background of the Study
The word Testimony means: the evidence of a witness usually given in court and
usually under oath.1The first source of the proof of a crime or a right in islamic law
is SHAHADA i.e Testimony literally means: information of what one has witnessed
or seen or beheld with his eyes, declaration of what one knows, decisive
information, it also means to be present.
Technically means: to give true information before a competent court of law what
one has seen or known for the purpose of proving or disproving a right or crime.2
The law of evidence encompasses the rules and legal principles that govern the proof
of facts in a legal proceeding, these rules determine what evidence must or must not
be considered by the trier of fact in reaching its decision and sometimes the weight
that may be given to that evidence.
The law of evidence is also concerned with the quantum (amount) quality of proof is
how reliable such evidence should be considered. This includes such concepts as
hearsay authentication, admissibility, reasonable doubt and clear and convincing
There are several types of evidence, depending on the form or source, evidence
governs the use of testimony (e.g oral or written statements, such asaffidavit),
exhibits (e.g physical objects), documentary material, or demonstrative evidence
1. Bone, S., Osborn’s Concise Law Dictionary, Sweet and Maxwell, London, 2001, p.376. 2. Cowdhury, A., The Islamic Law of Evidence, Kitab Bhavan, New Delhi, India, 2006, p.19.
which are admissible i.e allowed to be considered by the trier of fact, such as jury in
a judicial or administrative proceedings, e.g a court of law when a dispute whether
relating to a civil or criminal matter, reaches the court there will always be a number
of issues which one party will have to prove in order to persuade the court to decide
in his favour.The law must ensure certain guidelines are set out in order to ensure
that evidence presented to the court can be regarded as trustworthy.
In Nigerian law the rule of corroboration in criminal cases requires that there must
be two pieces of evidence, to prove each essential fact, eventhough this
corroboration requirement is no longer applies in civil cases with the exception of
some areas of family law, such as divorce, when another individual not party to the
marriage must act as witness.
Also in nigerian law, evidence that would otherwise be admissible at trial may be
excluded at the discretion of the trial judge if it would be unfair to the defendant to
admit it.Evidence of a confession may be excluded because it was obtained by
oppression or because the confession was made in consequence of anything said or
done to the defendant that would be likely to make the confession unreliable. In
these circumstances, it would be open to the trial judge to exclude the evidence of
Further the authentication requirement has import primarily in jury trials, if evidence
of authencity is lacking in a bench trial, the trial judge will simply dismiss the
evidence as unpersuasive or irrelevant.
In systems of proof based on the Nigerian law almost all evidence must be
sponsored by a witness, who has sworn or solemnly affirmed to tell the truth. The
bulk of the law of evidence regulates the types of evidence that may be sought from
witnesses and the manner in which the interrogation of witness is conducted such as
during direct examination and cross of witnesses.
Other types of evidentiary rules specify the standards of persuation (e.g proof
beyond a reasonable doubt) that a trier of fact whether judge must apply when it
Today all persons are presumed to be qualified to serve as witnesses in trials and
other legal proceedings and all persons are also presumed to have legal obligation to
serve as witnesses if their testimony is sought. However legal rules sometimes
exempt people from the obligation to give evidence and legal rules disqualify people
from serving as witnesses under some circumstances.
Witness competence rules are legal rules that specify circumstances under which
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