LEGAL REPRESENTATION IN ISLAMIC LAW AND MUSLIM LAWYERS IN NIGERIA: AN ASSESSMENT
DOI:
https://doi.org/10.53704/fulaj.v1i1.523Abstract
Abstract
The legal profession is a noble profession and it plays an important role in attainment of justice according to the rule of law and the task of ensuring the attainment of substantive justice is more onerous on Muslims who are lawyers as this is an obligation both in the religion and in the profession. Generally, legal representation is the discharge of a specialist duty by a professional who in his representation can serve an attorney, counselor, solicitors, barrister, advocate or agent. The paper compared the concept of legal representation under the Shariah and Common law wherein it consulted writings and opinions of scholars and Islamic jurists on the basis for legal representation in Islam making recourse to the concept of wakalah (agency) and rights and duties of a Wakeel (agent) and Mutawakeel (principal). The paper with the aid of doctrinal method observed that though traces of legal representation cannot be clearly found in explicit words in the shariah but deduction from happenings and actions of prophets of Islam will lead to the just conclusion that legal representation has its roots in Shariah. The paper recommends that scholars should be firm in their resolve as to the presence of Legal representation in the Shariah through the concept of Wakalah.
KEYWORDS: LEGAL REPRESENTATION, MUSLIM LAWYERS, NIGERIA, WAKALAH
References
Qur’an Chapter 4 verse 105
Qur’an Chapter 5 verse 2
Abu Dawud . Sunan Abu Dawud: Kitab al-Aqdiyah (Sh. Muhammad Ashraf Publishers, 1984) 1016-1019.
Abdul Munir Yaacob. Etika Peguam Menurut Perspektif Islam in Abd Munir Yaacob (ed). Etika Hakim dan Peguam. 1996. Kuala Lumpur: IKIM. P. 122.
In the case above, Ali RA can be considered as the legal representative of the accused i.e. the pregnant woman. See Ahmad Ibrahim and Mahmud Saedon. Judges and Lawyers under the Shariah in Aidit Ghazali (ed). Islam and Justice. (IKIM, 1993) 139-143.
Ibid quoted from Ibnu Qayyim al-Jauziyyah. Al-Turuq Hukmiah, 70.
Companions of the Prophets (SAW)
Ibn ABdulbarr, Al-Isti??b fi Ma?rifatil Al-Ash?b (NP, ND)
QURAN, sura an-Nahl 16:4, in THE MESSAGE OF THE QUR’?N 394 (Muhammad Asad trans., E. J. Brill 1980). Muhammad Asad, relying on the authority of past jurists, translates the phrase khaseemun mubeenun as a person endowed “with the power to think and to argue”.
Abu Hamid Al-Ghazali, Revival of Religious Learning (IHYA ULUM-ID-DIN) 97–98 (Fazl-Ul-Karim trans., Durul-Ishat 1993), available at http://www.ghazali.org/books/ihya-v3.pdf This book is one of the most influential in Islamic legal literature. It consists of four volumes and has been translated in numerous languages, including English. 210–211.
Okonkwo C.C Introduction to Nigerian Law (Sweet and Maxwell, London 1980) p.165
(No. 15 of 1975)
Okonkwo C.C… p. 165-166
Ibid.
Otherwise known as wik?lah, wak?lah. The word wakeel (or vekil) is a pre-Quranic Arabic word. The words wakeel and wakalat are derived from the stem wkl, which means to trust, appoint, authorize, empower, or put in charge.
Ruxton F.H Maliki Law Cairo (Egypt); (Elnahar Printing Press, Cairo, 2004)201
Salih F., A Summary of Islamic Jurisprudence (Al-Maiman Publishing House, Riyadh 2005) 83
Introduction to Wakalah (agency) Contracts, https://www.blossomfinance.com/posts/introduction-to-wakalah-agency-contracts accessed 16th December, 2023.
Ibid.
A. Zaidan, ‘Al-Madkhal li Dirasat al-Shari?ah al-Islamiyyah (1981) 339.
A. Zubair, Principles of Islamic Law of Contract (1991) 215.
The Delegator must be a mukallaf (legally accountable for all his deeds under the Shari?ah. This also applies to the delegate. The subject matter of the delegation should not be a prohibited act. For example, killing, buying of swine or liquour cannot be a subject matter of any delegation.
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Qur’an Chapter 18 verse 19
Qur’an Chapter12 verse55
Qur’an Chapter 9 verse 60
Al-Bukhari (3642) [6/772]
At-Tirmidhi (841) [3/200]
Ibn Hajar Al-Asqalani Fathu al-Bari fi Sharh Sahih al-Bukhari (Vol.10, Damsyik, Dar al-Faiha, Riyadh 2000) pp. 555-559
Quran Chapter 5 verse 1
For example, a teacher of law whose lecture clashes with his client’s assignment is likely to fall into this pit. This is simply because two employers are involved and on no ground should the interest of one to override another’s. A law teacher in this situation is thus expected to give preferential treatment to his client’s duties for the classroom assignment, if missed can be made up subsequently.
I. T. Muhammed ‘The Concept of Legal Practice and Representation Under Islamic Law and the Constitution of the Federal Republic of Nigeria 1999’ in I. O. Oloyede (ed), Al-‘Adl (The Just): Essays on Islam, Islamic Law and jurisprudence in Honour of Hon. Justice Tijani Bolarinwa Babalakin, JSC (Rtd) (National association of Muslim Law Students, University of Ibadan, 2009) 187
A. A. Oba ‘Legal Practice in Nigeria and Islamic Ethics’ in Y. A. Lawal (ed), ‘The Learned’: Essays on in Honour of Alhaji Saka A. Isau (SAN) (Law Students Association, Kwara State College of Arabic and Islamic Legal Studies, Ilorin, 2009) 37
Qur’an Chapter 4 verse 58. Syed Vickar Ahameed, Interpretation of the Meaning of the Glorious al-Quran.
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Ibid, 189.
Muhammad Ali, Ethics: A Manual of Hadith. (Lahore, 1944).
Abu Dawud, Sunan Abu Dawud: Kitab Aqdiyah, 1016: in Farid Sufian Shuaib, Tajul Aris Ahmad Bustami & Mohd Hisham Mohd Kamal, ‘Administration of Islamic Law in Malaysia Text and Materials’ [2001] Malayan Law Journal, 293.
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