A Study of the Court Systems of Northern Nigeria with a Proposal for the Creation of Lower Sharia Courts in Some Northern States

The British took over Northern Nigeria in 1900. Early enactments included statutes establishing two types of courts. “English” courts, of which there were only a few, primarily applied “English” law to “non-natives”; over the course of a century they have developed into today’s state High Courts and Magistrate Courts, plus federal High and appellate courts. On the other hand, “Native Courts”, of which there were many scattered across the North, primarily applied “the native law and custom prevailing in the area of the jurisdiction of the court”, to natives. “Native law and custom” was defined to include Islamic law; Islamic law was the law prevailing in the areas of the jurisdictions of most Native Courts in the North (approximately 70% Muslim); and accordingly Islamic law, including Islamic criminal law (with some limitations) was widely applied. In 1960 a Sharia Court of Appeal was added to Native Courts side of the system. Since 1960 the North’s Native Courts have developed into today’s “Area Courts”, established under statutes of the 19 states into which the North has been divided; and the one Sharia Court of Appeal for the North has become separate Sharia Courts of Appeal for the states. To begin with the “English” and “Native” court systems were kept separate. In 1933, however, the statutes were changed to allow appeals from Native to English courts in certain classes of cases; and subsequently the two systems have been linked together in evolving and complex ways. The successive changes have not been without controversy, often about the application of Islamic law. The most famous such controversy perhaps was the “Great Sharia Debate” of 1976-78, over whether a Federal Sharia Court of Appeal should be written into the new Nigerian constitution then being drafted. The complex history of these evolving court systems and controversies is the subject of this monograph. The focus is particularly on the Native/Area courts. The aim is not only to understand how these courts developed in their various aspects and in relation to other courts, but to survey the scholarly literature discussing them, and to form some opinion about the merits of the controversies that continue to surround them. The report concludes with a recommendation that the current dualistic system of “English” and “Native/Area” courts inherited from the British, with its now-incoherent overlap of jurisdictions, be replaced with three separate systems – English (i.e. Nigerian), Islamic, and Customary – each with its own lower and appellate courts. The book includes, in an appendix, a series of diagrams showing the different court systems in the North at principal stages of their evolution, and a bibliography of much of the literature around the whole subject.