RE: Supreme Court rejects Sharia Law discriminating against women on property distribution

While the Supreme Court is to be commended highly for its decision in the case of Abdul Rahman Osumanu Giwah, Alhaji Ali Adamu Giwah and Hajia Fatima Alhassan Giwah v. Baba Ladi [2013] DLSC2745 for once again taking the opportunity to entrench the rights of women and the recognition and preservation of fundamental human rights guaranteed under the present constitutional dispensation, it is very important to dissect the factors which informed the decision at the trial court, since the effect of the Supreme Court ruling was to affirm the positions of the trial court and the Court of Appeal.

The facts as established before the trial court were that, the Plaintiffs and the Defendant were the great grandchildren of a woman called Fatima Suka who died in 1954. The said Fatima Suka had four children. Her only male child was called Mallam Ibrahim Osumanu Fulani. Her children also included Ramatu Osumanu Fulani. Whilst the Plaintiffs are the grandchildren of Ramatu Osumanu Fulani, the Defendant is the grandson of Mallam Ibrahim Osumanu Fulani. Upon the death of Madam Fatima Suka, she had three houses situate at Cowlane, Tudu and New Town all in Accra.

Before the commencement of the case at the High Court however, the parties had gone before the Islamic Judicial Committee to resolve the dispute where it was held that the Defendant, Baba Ladi was the proper person to succeed all of Madam Fatima Suka’s estate to the exclusion of the rest of the great grandchildren, the Plaintiffs. The basis for this decision was the IJC’s mistaken view of Islamic law that the grandchildren of Fatima Suka being Ramatu Osumanu Fulani and Mallam Ibrahim could not altogether share in the estate of their deceased grandmother and that according to Islamic/Sharia law, only Mallam Ibrahim was entitled to all of Fatima Suka’s estate and this was supposedly because according to Islamic law, Ramatu Osumanu Fulani was not entitled because she was a woman. This meant that all the descendants of Ramatu including the plaintiffs could not be successors to their great grandmother’s estate.

The Plaintiffs therefore brought an action before the High Court in seeking to overturn the decision by the IJC and to declare them as successors to the estate of Fatima Suka.

The relevant part of the IJC decision, put in evidence as exhibit 2 at page 175 of the record at the trial court was as follows:

“…according to Islamic Sharia (law) of inheritance the child of the late Mallam Ibrahim has to inherit all the properties his grandmother left. The children of the late Ramatu have nothing to inherit at all. Therefore Alhaji Abubakar Baba Mma, the son of Mallam Ibrahim is the true and rightful person to inherit what his grandmother Fatima Suka left behind, that means the children of Madam Ramatu have nothing to inherit”

This leads us to examining the definition and scope of Islamic/Sharia/Mohammedan law on succession and whether or not it ought to have been considered by the trial judge for whatever it was worth.

“Sharia”which is the Arabic name for Islamic law which encompasses chiefly the rules and doctrines from the Holy Quran and Hadith. It may simply be defined as the law according to Muslim faith as interpreted from the Holy Quran and the Hadith. It may sometimes be referred to Mohammedan law.

According to Joseph Schaacht in his An Introduction to Islamic Law, “The sacred law of Islam is an all-embracing body of religious duties, the totality of Allah’s commands that regulate the life of every Muslim in all aspects”

The recognition of Islamic Law and the application of same in Ghana was provided for by the Marriage of Mohammedan Ordinance, Cap. 129 (1951 Rev.) in particular Section 10 thereof. This provision now finds its place under Section 28 of the Marriages Act, 1884-1985 (Cap. 127).

It must to be noted that following the decision in Kwakye v. Tuba, Ollenu J rightly held that “in Ghana succession is not based on a person’s religion, it is regulated by customary law unless otherwise provided by statute. As Kwasi Kumah was alleged to have been a Muslim, Mohammedan law will apply to his estate only if it is proved that his marriage satisfied the conditions of the Marriage of Mohammedans Ordinance, Cap 129 in particular Section 10 thereof, which requires that the marriage must have been registered under the Ordinance. There being no evidence of the registration of Kwasi Kumah’s marriage, Mohammedan law cannot apply to him”.

Also in the case of Hausa v Haruna, the plaintiff a widow applied for letters of administration to the estate of her deceased husband who had died intestate. This application was met with a caveat by the defendant his paternal nephew who claimed adverse interest as the customary successor of the deceased. The plaintiff claimed that since the marriage to the deceased was a Mohammedan one, the devolution of the estate of the deceased must be done according to Mohammedan law by which she was entitled to two-thirds of the estate. The court per Lassey J. held that the Plaintiff’s claim could not succeed as she was unable to establish in accordance with the provisions of the Marriage of Mohammedans Ordinance, Cap. 129 (1951 Rev.) that she was in fact married according to Mohammedan law. The court further pointed out that a local customary law to which a Ghanaian is subject will be applied to him in all matters except where rights derived under such customary law have been specially taken away by statute.

The Marriages Act, 1884-1985 (Cap 127.) is the reigning statute in force in respect of Customary, Islamic and Christian Marriages. and Section 28 of the Act provides that “On the death of a Mohammedan whose marriage has been duly registered under this Part the succession to the property of that Mohammedan shall be regulated by Mohammedan law.”

It is important to note that Section 10 of the Marriage of Mohammedans Ordinance (Cap. 129), the section which was applied in deciding the aforementioned cases is in pari materia with Section 28 of the Marriages Act, 1884-1985 Cap.127.

It is also relevant to note therefore that Section 28 of the Marriages Act serves as a condition precedent for the application of Mohammedan/Islamic/Sharia law to the devolution of any estate of a Muslim/Mohammedan.

It does not appear from the facts of the case as established by the High Court that Madam Fatima Suka’s marriage was ever registered under Part Two of the Marriages Act, therefore with all due respect to the trial judge, he never should have considered the IJC decision as the position of the Islamic law since following the decisions in Kwakye v Tuba and Hausa v Haruna, mutatis mutandis the presumption rather went in favor of Fatima Suka’s customary law. The record also showed that the trial court went to some length in examining Islamic law on inheritance as stated in the Holy Quran which the learned judge found to have contradicted the position of the IJC.

For the avoidance of doubt, the Islamic position on the succession of a Muslim’s estate is found in Al Nisaa Chapter 4, verse 11 of the Holy Quran which states thus;

“Allah instructs you as regards your children’s inheritance: to the male, a portion equal to that of two females. If only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the only heirs, the mother has a third; if the deceased left brothers or sisters, the mother has a sixth. The distribution in all cases must be after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is All-knowing, All-wise.”

This goes to show and as the trial judge himself found, a contradiction of the erroneous and misleading position adopted by the IJC that females were not entitled to anything under Islamic law.

Having demonstrated that the IJC decision was an erroneous and misleading position of the Islamic law and that the trial court need not have considered the IJC decision as Islamic or Sharia law since Section 28 of the Marriages Act was not satisfied, the alternative he had was to consider the IJC decision as the customary law of Fatima Suka under Sections 54 (1) Rule 2 and 55 of the Courts Act, 1993 (Act 459).

Section 54 (1) provides:

“Subject to clause 2 of Article 11 of the Constitution, this Act and to any other enactment, a court when determining the law applicable to an issue arising out of a transaction or situation, shall be guided by the following rules in which references to the personal law of a person are references to the system of customary law to which that person is subject or to the common law where that person is not subject to a system of customary law.”

Rule 2 provides: “In absence of an intention to the contrary, the law applicable to an issue arising out of the devolution of a person’s estate shall be the personal law of that person.”

However, one need not go further than this since it is clear from the immediately quoted provision that the application of the choice of law rules provided under Section 54 of the Courts Act is subject to an enactment such as the Intestate Succession Act, PNDCL 111.

This is to say that the trial judge with all due respect had no basis for considering the IJC decision as either Islamic law or Customary law.

If the IJC decision is disregarded as being erroneous and misleading and the position that the ratio of male to female succession under Islamic law of the estate of their parent/s is 2:1 in favor of the male as provided by the Holy Quran Chapter 4 verse 11 is accepted as the correct and proper view, the argument of discrimination against females will still hold. However given that the Holy Quran is over 1,400 years old, there are bound to be reservations concerning some of the provisions found therein.

Until the enactment of the Married Women’s Property Act, 1882, married women at common law did not have the capacity to own or succeed the estate of their deceased husbands. The Holy Quran has always catered for succession by females (daughters) albeit a lesser proportion compared to males (sons).

Even if for the purpose of argument we were to assume that the deceased entered into an Islamic marriage and same was registered under Section 28 of the Marriages Act (Section 10 of the Marriages of Mohammedans Ordinance), this would invariably mean that a court would, per the decision in Kwakye v Tuba be bound to apply Islamic law. However the court may also be bound to apply the Intestate Succession Law since the deceased would have been caught by Section 1 thereof.

Obviously this would pose a classic conflict of laws question since the propositus would have been caught by two different laws. This also means that the result of applying either would be manifestly irreconcilable with the application of the other. The task of a court confronted with such an issue would then be to ascertain which law overrides the other and to apply same to the issue.

The earlier cited Section 54 of the Court’s Act again comes into play. However there is a bit of a confusion with the use of the word ‘enactment’. To wit, which of the laws is Section 54 subject to? Is it Section 1 of the Intestate Succession Law or Section 28 of the Marriages Act?

It seems a court may be perfectly justified in applying either of the two laws. However it is submitted that the court is likely to lean in favor of the Intestate Succession Law since same is a statutory expression of Articles 17 and 22 of the Constitution of Ghana, 1992.

Article 17 of the Constitution provides for equality and freedom from discrimination whiles Article 22 provides for the property rights of spouses.

The application of Islamic law would be less likely to serve the purpose of these provisions of the Constitution.

The outcome in this latter situation again demonstrates the unfruitfulness of Section 28 of the Marriages Act.

Lastly, it is argued that given the present constitutional dispensation and the posture of the Supreme Court of Ghana towards enforcing the rights of women towards devolution of the estates of their deceased husbands or parents, Section 28 of the Marriages Act seems to have a nugatory effect since the application of Islamic or Sharia law does not synchronize well with Articles 17 and 22 of the Constitution, 1992. It is therefore submitted that a repeal of Section 28 of the Marriages Act may be the most effective way to go so as to send a clear indication to those who practice the Islamic faith and lawyers alike.

The alternative would be to amend the Intestate Succession Law and make it subject to the personal law of the deceased Intestate.