TABLE OF CONTENTS
CHAPTER ONE
1.0 INTRODUCTION
1.1 Background
of the Study
1.2 Statement
of the Problem
1.3 Research
Questions
1.4 Objectives
of the Study
1.5 Research
Methodology
1.6 Significance
of the Study
1.7 Limitation
and Delimitation of Study
1.8 End
Notes
CHAPTER TWO
2.1 AL-WASIYAH IN ISLAM
2.2 Concept
of Wasiyah in Islamic Law
2.3 Will
Practices in Common Law
2.4 Elements of valid Wasiyyah
2.5 Will
Invalidators
2.6 The Significance of Wasiyyah
2.7 Summary of the Review
CHAPTER THREE
3.0 MUSLIMS AL-WASIYYAH IN ABEOKUTA
3.1 Abeokuta
and Islam
3.2 Will
Practices in Yoruba Customary Law
3.3 Demographic
Data
3.4 Discussion
of demographic data
CHAPTER FOUR
4.0 CONCLUSIONS AND RECOMMENDATIONS
CHAPTER ONE
INTRODUCTION TO THE STUDY
The waves of Islam is felt in
nook and cranny of the world as the result of its sound seed which is its creed
planted on a fertile land of Arabian Peninsula in fourteen hundred years ago by
the able Planter, the Prophet of Allah, Muhammad bn Abdillah bn Abdilmutalib.
The growth of the seed was rapid and miraculous with the production of gigantic
trees across the globe; Africa, Asia, Europe, Australia, North and South America. The companions of the Prophet like Abubakr, „Umar, „Uthman and a host of
others contributed greatly to the spread of Islam into the aforementioned
continents after the death of the Prophet. Africa felt the presence of Islam
during the life of the Prophet in 6th century and this continued
after his death. West African empires also were flourished with Islamic
civilization through the effort of Islamic traders and clerics who travelled to
Biladus-Sudan, Mali, Ghana, Songhai,
Timbuktu etc. The unflinching interest of the Jihadists in spread of Islam made
the incursion of Islam in the 7th and 8th century to
Nigeria a reality before the creation of Nigeria as a country in 1900. Islam
had spread to virtually all the northern territories between 10th and 14th centuries. Its incursion
to Yorubaland was in the 16th century with the help of both
traders and Islamic clerics who settled
at Oyo Ile during the reign of
AlafinAjiboyede.1
Abeokuta which is the capital of
Ogun State since 1976 had felt the impact of Islam before the creation of Ogun
State. People of Abeokuta was known as Egbas
who were people of civilization as at 1830 in all spheres of life before the
advent of colonial master.2
Islam had been in Egba forest by 18th century
when the Owus(the fourth kingdom in Egba) came as refugees seeking
protection from Egba, a Fulaani Mallam accompanied the Owus to Abeokuta and he began the
practice of Islam. 3
Itoko and Ijemo were
known to be the originators of Egbaland
after which people from Orile-Ake
joined the two. There were some personalities in Itoko who strived for the spread of Islam in Abeokuta from Orile to Adagba in 1829, they were; Saliu, the Baale of Itoko, Muhammad Etu-Kosi,
the Alari of Itoko and Ahmad Mogaji,
the Oloko of Itoko land. The number
was few then because of the activities of these people, Islam became a
household name till date in the history of Egba
which comprises of Ake, Oke-Ona, Gbagura
and Owu kingdoms.4
Wasiyah
had been made obligatory at the inception of Islam with the total amount of
money, property and estate given as gift to the relative heirs, parents in
particular.
Wasiyyah is an Arabic word which means bequest, will and legally it
is the confirmation of a right of property to some person that takes effect
after the death of the testator (Al-Musi).5
Before the advent of Islam, Arabs used to make
unlimited bequest in favour of any person according to their own interest. Thus, a testator may bequeath a portion or
whole of his property to any individual as he desired, relatives and
non-relatives inclusive and a times animals or slaves are bequeathed to as
witnessed in the western world.
Consequently, in the early days
of Islam, the Holy Qur‟an enjoined the Muslims to make Wasiyyah to the parents or other relatives. This is referred to in
the Qur‟an as follows:
ُةَّيصِ وَْلا ارً يْخَ كَرَ َت نِإ تُ وْمَْلا مُكُدَحَ
َأ رَضَ حَ اذَِإ مْكُ يَْلعَ بَ ِتكُ امَدَعْ
َب ُهَلدََّب نمََف ينَ قَِّتمُْلا ىَلعَ اقِّحَ
فِ ورُ
عْمَْلاِب ينَ ِبرَ
ْقّّلااوَ نِْيدَِلوَلِْل فَ اخَ نْ مََف
- مٌيِلعَ عٌيسََِ َللََّّ ا نَِّإ ُهَنوُلدَِّبُ ي نَ يذَِّلا ىَلعَ ُهُثِْْإ آَنََّّإَِف
ُهعَسََِ رٌوفُغَ َللََّّ ا نَِّإ هِيَْلعَ
َثِْْإ َلاَف مْهُ َن يَْ ب حَ َلصْ َأَف اًثِْْإ وَْأ افً َنجَ صٍ ومُّ نمِ
مٌيحِرَّ
It is prescribed for you, when death
approaches any of you, if he leaves wealth, that he makes a bequest to parents
and next of kin, according to reasonable manners. (This is) a duty upon Al-Muttaqin (the pious).Then whoever
changes it after hearing it, the sin shall be on those who make the change.
Truly, Allah is All-Hearer, All-Knower. But he who fears from a testator some
unjust acts or wrongdoings, and thereupon he makes peace between the parties
concerned, there shall be no sin on him. Certainly, Allah is OftForgiving, Most
Merciful (Q2:180).
Also in another verse of the Holy Qur‟an in Surah Al-Baqarah (Q2:240),
﴾ٍجاسَ
خْ إِ سَ ٍْ غَ لِ ىْ حَ نْ ا ىَنإِ اعً ـَتمَّ مهِ ج ِاوَ ش ْلا ًتٍَّ صِ وَ اجً
وَ شْ َأ نَ وزُ َرَ ٌوَ م ْك ُىمِ نَ ىْ َّفىَ َتٌُ هَ ٌرِ نَّاوَ ﴿
“And those of you who die and
leave behind wivesshould bequeath for their wives a year‟s maintenance and
residence without turning them out. But
if they(the wives) leave, there is no sin on you for that which they do of
themselves, provided it is in honourable (e.g lawful marriage). And Allah is All-Mighty, AllWise”.
This order concerning Wasiyyah continued until the verses 11
and 12 of Surah Al-Nisa‟a were
revealed, where making of Wasiyyah in
favour of parents, legal heirs and widows has been abrogated. As it is mentioned in the Hadith of Holy
Prophet (SAW) .„That Allah has given everybody having right, his right. So there should be no Wasiyyah for an heir‟. Abu Dawud and IbnMaja. Also it is reported
by Ibn„Abbas, that Holy Prophet (SAW)
said, „Wasiyyah is not lawful for an
heir unless the other heirs given consent. Ibn Abu Hatim reported that Ibn
„Abbas said about what Allah said as follows:
The widow used to reside, and have her provisions
provided for her for a year, in her deceased husband's house. Later, the Ayah
that specified the inheritance (4:12) abrogated this Ayah (2:240), and thus the widow inherits one-fourth or oneeighth
of what her (deceased) husband leaves behind7.
Therefore, if any testator made a Wasiyyah in favour of his legal heir, it can be determined after
his death, after the consent of other heirs, if they approved that Wasiyyah, it will be valid, and
otherwise it will become invalid. Both ancient and early practices were
abrogated with the law of inheritance and it remained for those who are not
entitled to the right of inheritance as quoted in hadith of Sa‟dbn Abi Waqas
who was visited by the Prophet (SAW) on his sickbay, he said to the Prophet “my
heirs may spoil my reward and render it useless after my death. Verily, you
should live until some will benefit from you and others”.
He said “the Messenger of Allah, no body is my heir except
my daughter and she has benefited a lot from my wealth, Can I Will out all my
wealth” the Prophet said “ be calmed”. The Sa‟d said, „can I will out two-third
of my property?‟ The Prophet replied “No” Can I make use of half? “He said no”.
He then said “can I will one-third?” the prophet replied one-third, one-third,
one-third is much. Indeed, your desire to leave your heirs wealthy is better
that leaving them in poor condition.8
Generally, there are various
definitions of Wasiyyah in the
context of Islam and these definitions made it known that Wasiyah can be used in different versions of application. Al-Wasiyyah or
Will in Islamic terminology is "all instruction a person leaves for tasks
to be carried out after his death in relation to the times agreed on
to the lawfulness of the will in Islam.9 In Islamic law, it
is agreat gift for mankind in cash or debt and what the person will to be
benefited after the death of the owner10. This shows the differences
between Hibah and Wasiyah, because Hibah is a gift of any items in quality and quantity determined and
executed by the owner before his death while Wasiyah becomes executed after the demise of the possessor11.The
significance of the study is to establish the extent at which the Muslims in
Abeokuta understand and practiced the will documentation from the Islamic point
of view.
1.2 STATEMENT OF
THE PROBLEM
Many Muslims lived and prepared their Wills with the sole
aim of favouring their siblings as they desired in contrary to the tradition of
the Prophet that says “"لاوصٍت نهىازث
“there is no will for the heirs”.12
The implication of this injunction is missing in the midst
of Muslims rather; they take into the usage of what they want as bequest.
Bequest is yet to be practiced under the context of Islamic law but done with
preference to the common law.
In relation to many lectures and speeches delivered, Muslims
have in mind to execute law of Allah but rarely utilize it in conformity with
the divine dictates as embedded in Islam.
This study
will therefore, evaluate the extent which Wasiyah
is being practiced among Muslims especially in Abeokuta metropolitan. And also will
investigate why some Muslims do not find it at ease to prepare and execute Will
as laid down by the Law and take to the estate distribution of the divine
law.
The advent of Islam was with an opportunity of making a Will
that will be free of extremism as it will not affect the heirs negatively”
Wasiyah will bring
a lot of benefits to those who take to its divine principles as laid down by
the teaching of Islam.
It brings about new ways of sharing estates after the demise
of the owner in line with the dictates of the Quran
Scholars have great influence on the populace when the
correct knowledge is spread in a good manner with perfect method that will show
the divine benefits embedded in the practice of Wasiyah in Islam
The research will access some official Wills prepared by
Muslims with the Professional legal backing in the court of Federal high Court
Isabo, Abeokuta.
Interview will be conducted among selected Muslims in
Abeokuta.
The belief is that Wasiyah
can contribute meaningfully if used in a good wayfor the human and capital
development in the society.
1.3 PURPOSE OF STUDY
The purpose
of is to x-ray the practice of Wasiyah
among the Muslims in the area of coverage.
The following are specific objectives:
1.
Evaluates the extent to which Wasiyahis being practiced by Muslims
2.
Determine the benefits of Wasiyah to the deceased and the heirs
3.
Prepare a constructive critique of the common law
method of will preparation
4.
Ascertain the constrains associated with the practice
of Wasiyah
5.
X-ray the method with which Muslims should practice Wasiyah
6.
Ascertain the extent of Muslim awareness on the
usefulness of some Islamic materials scholars as regard getting adequate
information on the subject matter
7. Prepare
a roadmap to the proper implementation of Allah‟s Will.
1.4
SCOPE OF THE STUDY
The research work is designed to focus on the practice of Wasiyah among Muslims specifically
Abeokuta. And also it will focus on the extent to which Wasiyah is applied with preference to Islamic tenets.
1.5
RESEARCH HYPOTHESIS
This is stated as thus:
There is no significant difference between the Wasiyah practiced by Muslims and what
contained in common law among Muslims in Abeokuta.
1.6
RESEARCH QUESTIONS
To attain the objectives set
above, the following questions were generated:
1.
What are the wisdom behind the legislation of Wasiyyah?
2.
How has common law affected the practice of Wasiyyah?
3.
What is the level of understanding of Muslims as regard
Wasiyah?
4.
What are the benefits of Wasiyah?
5.
What are the constraints associated with the effective
application of Wasiyah?
6.
What is the extent to which Islamic materials and
scholars are available to enlighten the public on the concept of Wasiyyah?
7.
What are the possible solutions that could be proffered
to enhance the practice of Wasiyah?
1.7
SIGINIFICANCE OF THE STUDY
This work is aimed
that the study will provide knowledge -based-information on the extent to which
Wasiyah is practiced among Muslims in
Abeokuta. It will serve as document that could be consulted by those who want
to practice Wasiyah as expected of a
good Muslim within the purview of Islamic teachings. It will also stimulate
research and discussion on issues relating to Mirath and its execution under the Islamic Civil Law. It will also
show the constructive criticism of both the Common Law and Yoruba Context.
1.8
LIMITATION OF THE STUDY
The Research work at
hand is limited to some important personalities who were Muslims, whose documents
on will are released for the Study under the auspices of Federal High Court,
Isabo, Abeokuta, Ogun State.
1.9
End notes
Shari‟ah is
defined as Islamic ordinances ordained by Allah as guiding principles for the
entire mankind
Mirath is
described as the distribution of shares among the rightful heirs
Wasiyah means the
will document prepared by the testator to a beneficiary.
Musi is the
testator
Musilahu is the
beneficiary
Musifihior Musibihi is the object/item of the
will or gift
Wakil is the
executor or trustee
Sigatuwasiyah is
the statement of the will
1.10
PROBLEMS ENCOUNTERED
The problems prepared to be encountered in carrying out the
research work may include: irregularities and inadequacies in responses,
insufficient time available compounded by financial difficulties in
implementing certain tasks in the research work. Also inability of the court
probate/registry to release executed will which has become public document as
stated in legal profession.
End
Notes
1.
Gbadamosi in saitama‟ project
2.
Ogunwolu, 1995, History
of Egba, 10
3.
Sitama
4.
Ogunwolu, 1995, History
of Egba, 10
5.
Online
6.
Muhsin, K. 2008, Noble
Qur‟an,
7.
Ibn Kahtir, tafsirul
Qur‟an,
8.
Fathul bahri,
9.
Ibd.
10.
Wahbar, A. 2008, Fiqhul
Islami wa adilatuhu, 3
11.
Uthaymin, S. 2012, Shar‟ul
Mumti‟, 185
12.
Abdurahman, N. 2008, fthulbahri fi sharhi Sahihu Bukhari,456
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