FEASIBILITY FOR HARMONISATION OF SHARI’AH AND COMMON LAW APPROACH IN THE RESOLUTION OF ISLAMIC FINANCE DISPUTES IN NIGERIA
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Date
2024-09-08
Authors
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Ahmad Ibrahim Kulliyah School of Laws, International Islamic University, Malaysia.
Abstract
A few years back, some states in the Federal Republic of Nigeria
announced the adoption of the full application of Shari’ah. This
raised many questions about the feasibility of the coexistence of
Shari’ah and Common law in a former British colony whose
Constitution is primarily based on the British Legal System.
Similar tensions have been displayed towards the application of
Shari’ah in the resolution of Islamic finance disputes at the
Common law courts or where parties adopt alternative dispute
resolution (ADR). The reality is how to reconcile these two
systems of Common law and Shari’ah. The paper therefore
highlights resolution strategies as applicable to Islamic finance
disputes by Common law-oriented courts in Nigeria and the
danger therein. The paper contends that instances of Islamic
finance cases appearing before the Common law courts in
Nigeria are distressing. There is a need for an Islamic resolution
framework to regulate Islamic finance disputes in Nigeria owing
to the unique approach in the UK, which gives parallel
recognition to Islamic finance matters whether at the English
Court or before an arbitration tribunal. This paper therefore
suggests that certain Shari’ah and Common law principles be
harmonised provided the two legal systems are kept in
equilibrium. Harmonisation is therefore necessary in the
resolution of Islamic financial disputes, especially where the
dispute is before the Common law-oriented court or where ADR
is adopted.
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Citation
In Contemporary Issues in Harmonising the Shari’ah and Law: Maqasidic Orientation & Guidelines. Chapter 19