Advertisment

Whether Failure to Observe Al-Izar Before Judgment is Delivered Nullifies Proceedings in a Sharia Court

INTRODUCTION

As part of the inbuilt mechanism to actualize the principles of a fair hearing and to ensure that opportunity for fair hearing had been actually given to all the parties, Islamic law provides that Al-izar must be observed at the end of proceedings before judgement is delivered. See Wangara v. Tsamiyar Kara (2018) 6 SQLR (Pt. lI) 310 CA.

It must be applied clearly before the decision or judgement. It is so fundamental that failure of the court to apply it at an appropriate time would make the decision of that court a nullity.

Advertising

This essay is an exposition of the principle of Al-Izar.

 

  • The Principle of Al-Izar

In Medinat & 1 Or v. Adam (2013) 1 SQLR (Pt. IV) 152 SCA, it was held that,

it is incumbent on the judge either at trial or on appeal that before judgement is finally delivered the judge must give the parties final chance/opportunity to state and produce evidence in discharging the burden of proof.

This was supported by the decision of Court of Appeal in Suleiman, representative of Ibrahim v. Isyaku & 2 Ors (unreported) CA/K/1426/86, delivered on 5/2/1987 by Hon. Justice A.B. WaLi JCA (as he then was) where it was held as follows:

Advertisement

At the end of the party’s case the court shall ask them whether they have anything more to say before the court pronounces its judgement.

This is what is called Al-Izar, something have similarities with alacutos (sic). Where a judgement is pronounced without it, it will be set aside on appeal. See page 3 “BaJah” , commentary on Tuhfatul-Hukkam where it is stated, majority view of the jurists is that judgement pronounced without it (l’Izar) is a nullity.

The Court of Appeal in the same appeal refers to above further held that:

The principle of Al-Izar in Islamic Law is like allocutus in English Criminal Justice which must be conducted before an accused person is sentenced and or convicted. “Al-Izar” in Islamic Law goes beyond that. It is so fundamental that failure of the court to apply it at an appropriate time would make the decision of that court a nullity.

It must be applied clearly before the decision or judgement. It enables each party to go over or ventilate its own case so that no party should say in future that he was not allowed to present his case by the court.

See also Nasiru Alhaji Muhammed v. Haruna Muhammadu & 1 other (2001) 6 NWLR (pt. 708) 104 and Mamman dan Buhari v. Hajo Usman (unreported) CA/K/171/S/92 delivered on 30/6/94.

 

  • The Significance of the Principle of Al-Izar Before Judgement is Delivered 

In Wangara V. Tsamiyar Kara (2018) 6 SQLR (Pt. lI) 310 CA at (Pg. 335 Paras. A-C), it was held that:

Under Islamic Law Procedure, a Trial Court must apply the principle of AL-IZAR throughout where a witness testifies in favour of either the Plaintiff or the Defendant as the case may be.

The court must allow a form of cross-examination of the witness to take place or else the whole proceeding will be a nullity. Sometimes to be on the safer side the court would put some questions to such witness to make sure that the principles of AL-IZAR had been complied with.

Thus, after the witness had given his testimony, the judge will call on the opposing party saying: “Have you heard the testimony of the witness? Do you have any question for him by way of impeachment or whatever.” That is not all.

As part of the inbuilt mechanism to actualize the principles of a fair hearing and to ensure that opportunity for fair hearing had been actually given to all the parties, the court will at the conclusion of trial and before adjournment for judgement ask whether the parties (i.e the Plaintiff and the Defendant) have finished calling their witnesses or either party has any witness to call or to say anything before judgement delivered.

At this period either party has a right to say what he wants to say or call any witness to say it on his behalf. This satisfies the principle of Audi alteram patem and the constitutional provision.

This procedure or principles of AL-Izar was outlined by the Sharia Appellate Bench in Alhaji Muhammadu V. Alhaji Bala Zangina (1997) 11 NWLR (pt. 529) 526 at pgs. 536-537 paras G-A per Muntaka Coomassie JCA thus:

I must say without mincing words that it is wrong for any court to condemn a party unheard. Both common law and Shari’ah respect the principles of hearing the other party. It was clearly stated in so many words that Al-Izar must be announced before the decision.

The judge must ask the party whether he has anything more to say before judgement is entered against him or that whether he has more witnesses to call.

If Al-Izar was not done or done after the decision the whole proceedings became a nullity. See p.21 of Ihkamul-Ahkam Supra, also Bahjah a complete commentary on Tuhfa pages 64-67.

It is to be noted also that this requirement of Al-Izar is akin to allocutus in criminal justice. The main purpose however is to make sure a party has not been condemn unheard.

Also, in the unreported case of Suleiman v. Iyakuu & 6 Ors (1961-89) SLRN p. 150/154 it was held by Wali JCA as he then was “…It is a mandatory principle of Islamic Law that no one shall be condemned without being afforded the opportunity of being heard.

At the end of the parties’ case, the court shall ask them whether they have anything more to say before the court pronounce its judgement. This is what is called Al-Izar, something having similarity with allocutus.”

 

CONCLUSION

The principle of Al-Izar in Shari’ah courts cannot be overemphasized. For a judgment to stand, the Alkali/Kadi must apply it at the right time.

Hence, it is imperative for litigants to be acquainted with the principle and observe closely, whether or not the principle is applied in their individual cases so that to know the appropriate step to be taken.

 

About the Author

Muhammad Ahmad Isa is currently a law student of Ahmadu Bello University, Zaria. He can be contacted via: +2348107208774 or

[email protected]

Advertisment
Leave a Reply

Your email address will not be published. Required fields are marked *

You May Also Like