It is natural and common in human society to have between individuals a kind of dispute that may probably arise. Islamic Law had laid down and provides the procedures through which such dispute can be judicially determined. Nigerian Courts are enjoined to apply principles and Rules enunciated by Makili School of jurisprudence. Complete application of Islamic law of Evidence in Nigeria has been limited and most of the texts on Islamic law of Evidence are classical and written in Arabic language. The rules of Islamic law of Evidence pronounced by the classical books are yet to be comprehensively codified to guide Nigerian Courts in conducting trials. Regrettably the poor level of knowledge of Islamic law of Evidence rules among lawyers and the lower courts judges has led to erroneous appreciation and application of the rules. The scope to be covered by this research is: the sources of Islamic law of Evidence, the cardinal principles governing the use of testimony, the application of testimony as means of Proof in Establishing both Criminal and Civil Cases. The research methodology of the thesis is doctrinal and analytical. In the course of the research, some findings or observations were made. The research found that there is no clear distinction between substantive and procedural law in Islamic Law and most of the texts on the subject are written in classical Arabic which is technical in nature. The jurisdiction of Shari?a Court of Appeal in Nigeria is limited to Islamic personal Status. Suggestions were made in the research as proffered solutions to the enumerated findings/observations.

CHAPTER ONE: INTRODUCTION

1.1       Background of the Study
The word Testimony means: the evidence of a witness usually given in court and usually under oath.1The first source of the proof of a crime or a right in islamic law is SHAHADA i.e Testimony literally means: information of what one has witnessed or seen or beheld with his eyes, declaration of what one knows, decisive information, it also means to be present.
Technically means: to give true information before a competent court of law what one has seen or known for the purpose of proving or disproving a right or crime.2
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding, these rules determine what evidence must or must not be considered by the trier of fact in reaching its decision and sometimes the weight that may be given to that evidence.
The law of evidence is also concerned with the quantum (amount) quality of proof is how reliable such evidence should be considered. This includes such concepts as hearsay authentication, admissibility, reasonable doubt and clear and convincing evidence.
There are several types of evidence, depending on the form or source, evidence governs the use of testimony (e.g oral or written statements, such asaffidavit), exhibits (e.g physical objects), documentary material, or demonstrative evidence which are admissible i.e allowed to be considered by the trier of fact, such as jury in a judicial or administrative proceedings, e.g a court of law when a dispute whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to decide in his favour.The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy.
In Nigerian law the rule of corroboration in criminal cases requires that there must be two pieces of evidence, to prove each essential fact, eventhough this corroboration requirement is no longer applies in civil cases with the exception of some areas of family law, such as divorce, when another individual not party to the marriage must act as witness.
Also in nigerian law, evidence that would otherwise be admissible at trial may be excluded at the discretion of the trial judge if it would be unfair to the defendant to admit it.Evidence of a confession may be excluded because it was obtained by oppression or because the confession was made in consequence of anything said or done to the defendant that would be likely to make the confession unreliable. In these circumstances, it would be open to the trial judge to exclude the evidence of the confession.
Further the authentication requirement has import primarily in jury trials, if evidence of authencity is lacking in a bench trial, the trial judge will simply dismiss the evidence as unpersuasive or irrelevant.
In systems of proof based on the Nigerian law almost all evidence must be sponsored by a witness, who has sworn or solemnly affirmed to tell the truth. The bulk of the law of evidence regulates the types of evidence that may be sought from witnesses and the manner in which the interrogation of witness is conducted such as during direct examination and cross of witnesses.
Other types of evidentiary rules specify the standards of persuation (e.g proof beyond a reasonable doubt) that a trier of fact whether judge must apply when it assesses evidence.
Today all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings and all persons are also presumed to have legal obligation to serve as witnesses if their testimony is sought. However legal rules sometimes exempt people from the obligation to give evidence and legal rules disqualify people from serving as witnesses under some circumstances.
Witness competence rules are legal rules that specify circumstances under which persons are ineligible to serve aswitnesses e.g nor judge is competent to testify in a trial in which the judge serves in that capacity, so also a person is deemed not competent to testify as to statements of or transaction with a deceased opposing party.
The Nigerian law set out the rules that regulates the procedure of witnesses whom are capable to testify in a court of law.
Islamic law is strives to ensure that justice does not only reign but fully implemented. And one of the way of ensuring justice is done is through judicial system. In order to ensure justice in judicial system, islamic law laid down thelaw of proof known as evidence (Bayyinah). The purpose of evidence in islamic law is to avoid punishing innocent persons through errors i.e to set the innocent free and punish the offender if found guilty.
It is for this reason that islamic law made it incumbent on claimant to produce a piece of convincing evidence in support of his claim, on the basis of which decisions of courts are given.
In both civil and criminal procedings, claims are proved in one of the following ways:
1.         Through written or oral confession,   (Iqrar)
2.         By oral testimony       (Shahada) which is the topic of research
3.         By oath           (Al-yameen)
4.         By circumstantial evidence    (Al-ithbaat bi Qaraa?in al Ahwaal)
5.         By documentary evidence      (Alkitaba)
6.         By opinion of experts (Raayul-khabir)
7.         Through the knowledge of Judge       (Ilmul-Qadi)
8.         By hearsay evidence   (Assimaa?a)
Other method of proof such as swearing on oath, circumstantial evidence, documentary evidence,experts evidence, knowledge through the judge and hearsay evidence do not form part of the scope of this work.
In islamic law great importance has given to testimony (Shahada).3 for that reason:

Allah said:
(O you who believe! Be staunch in justice witness for Allah even though it is against you or your parents or kindred)

Allah said:
(And call to witness from among your men two witnesses, and if two men are not available then one man and two women whom you approve as witnesses, so that if the one makes an error the other will remind her…)5
Considering the significant of proof in both civil and criminal litigations, the messenger of Allah (S.A.W) was reported to have said:
Were people to be given whatever they claim (without proof) they would have claimed the property of other people and their blood, i.e lives, but establishment of proof i.e. al-bayyina is on the claimant and oath is administered on who refutes the claim i.e. defendant.6
There are two separate stages as far as testimony is concerned, the period of concieving a particular piece of evidence (Attahammul) is one stage and the period of rendering such testimony in evidence (Adaa?a) is another stage, and is not every bit of what one percieves or views that comes before court, the court will only satisfied with the oral testimony that will assist in ensuring justice.
The research work will put emphasis on Tesimony in Nigerian law with a particular reference to Islamic law, it is known that the Nigerian legal system enjoys three different laws i.e, a. The English common law, b. The Customary law, c. and The Islamic law.
But park in his superb book The Source of Nigerian Lawis of the view that:
The term customary law for throughout the federation it includes islamic law. This is made explicit in the north by section 2 of the Native Courts Law which provides that: thus the practical purposes Islamic law and the various tribal law are treated alike, though there are many theoretical distinctions between them. In particular Islamic law originates from outside Nigeria, and is not a purely indigenous phenomenon.
Consequently it is not grounded in any particular locality, and can apply in appropriate cases throughout the country in large parts of the North, however it has supplanted the local system almost entirely, and occupies the same position in relation to those areas as does Igbo law to most of the west.
It seems that islamic law is not always uniform throughout Nigeria, but in the main it is the Maliki system that prevails.7

1.2       STATEMENT OF PROBLEM
One of the avenue of ensuring justice in the court of law is TESTIMONY, it is obligatory to convince the court about an offence that occurred which is punishable in the eyes of law, or a right that should be entertain in order to seek for redress and remedy i.e to return it back to the owner, or claiming for damages, in all of the above situations a case must be proved beyond a reasonable doubt in criminal matters, or the evidence will lies on preponderant possibility in civil cases.
Burden of proof is a right of parties in dispute, they will play a positive role in trying to prove or confute a case before the court and the judge under the authority of the court will weigh between the two evidences.
It is clear that burden of proof may refer to the ultimate burden of establishing a case either by preponderance of evidence as in civil cases or beyond a reasonable doubt as in criminal cases, the burden of producing evidence whether at the beginning of a case or at any later moment throughout the trial, that is the burden of proof in the sense of introducing evidence in proof of certain facts.8
General burden of proofin criminal cases, is indeed provided in 1999 Nigerian constitution that:
Every person who is charged with a criminal offence shall be presumed to be innocent untilhe is proved guilty.9
While in civil casesit is stated in Evidence Act that:
Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.10
The above law expressly stated that the accused can not be regarded as a guilty person until the prosecution satisfy the court that the accused is guilty. But the constitution moves further to state that:
Provided that nothing in this section shall invalidate any law by reason only that the burden of proving particularfact.
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.11
Therefore burden of proof as provided in the constitution is of two types that depends on or upon the party to any given case.

1. Burden of proof on the prosecution to prove the accused person guilty of an offence or crime.
2. Burden of proof on defence to disprove or cast doubt to the prosecution case.

In every dispute there are at least two litigating parties, the plaintiff and the defendant, the former claims what is contrary to the apparent facts and the defendant denies such claim. The burden of proof lies on the plaintiff because what is apparent is presumed to be the original state, if the plaintiff has no proof and the defendant denies the claim, he will then be given an oath after which the plaintiff?s suit must fail.12
In Islamic Law, burden of proof means liability upon a party who brought his case to a court to provide evidence as to the truth of his claim, failure of which judgement would not be given on his favour unless the adverse party admits the plaintiff?s claim positively.
In DanjumaV. Baaji13 The court of Appeal Jos Division commented on wrongly producing witnesses in procedure of Civil Area Court Gombe thus:
I cannot understand how the trial court first ordered the defendant (and not the plaintiff) to prove his case. Hajja Baaji never took the matter to court. The facts as stated in the record of proceedings do not show that Hajja Baaji could be a plaintiff. After the statement of the claimant the defendant (Hajja Baaji) merely denied the claim. Instead of the judge to order the claimant to adduce Evidence in proof of his claim by calling the required witnesses, that court directed the defendant to call witness which was done by the defendant.
The court below therefore cannot, with due respect be right in upholding the decision of the upper Area court which in turn affirmed the wrong decision of the trial court. Moreover before the afore cited comment by the court of Appeal, the said court had held inter alia that the trial judge did not discharge his primary duty at the onset, to determine who is the plaintiff and the defendant among the parties that appeared before him.
Also in the case of Dakasoye V. Dakasoye14 the Court of Appeal Kaduna Division, Per Coomasie J.C.A. (as he then was) while commenting on procedural lapses of Upper Area Court, Yankaba (Kano State) observed that: “………….. some of the Area Courts and even Upper Area Courts fall frequently into the mistakes of asking the defendant to call his or her witnesses in the event that the plaintiff failed to call required number of witnesses or even when the claimant failed completely to call any witness. In such a situation the court should call upon the defendant who is in possesion to take (Yaminul Qada?a) the oath of judgement and dismiss the claim of the plaintiff.
Also in the case of Maryam V. Sa?adu15the Magistrate ordered Maryam to produce her evidence i.e witness that will testify before the court to support her allegation and convince the court that her ex husband Sa?adu directed Zaheed (a classroom teacher in their children?s school) to disgrace and disallow her access to their children whenever she visited the children in the school, Zaheed discharged his assignment and sent her away with insulting her.
She failed to produce the witness and the accused outrightly denied the allegation after which the case was dismissed.
In Kinnami V. Borno Native Authority, it was stated that: in Moslem law, as in English law, it is not the duty of the accused to prove his innocence. The duty is upon the accuser to prove his accusation. There is a presumption that an accused person who denies accusation is innocent, which makes it the duty of the accuser to prove his guilt.16
It is interesting for the legal luminaries to see that there is a broad consensus of the facts before it can be well established and that will lead to an appropriate decision.
It is also a matter of fact that before a claimant can win his claim he will provide a concrete evidence that will convince the court, otherwise he will lost his claim, there are some challenges disrupting the court?s procedure in establishing cases through oral testimony the issues of consideration are: subject matter before the court i.e condition of claims (shurut da?awa), the competency of parties in dispute and jurisdiction of the court.
There are also issues to beput into consideration on witnesses and weighing their evidence such as: a. Qualification of a witnesses, b. Reception and admissibility of evidence, c. Is it true or false evidence, d. Is there any clashes of the evidence, e. Injuring Tarjih.
The rules of oral testimony are derived from caselaw and are applied by the courts to ensure the reliability of the testimony that is relied on, to reach a decision, however a judge errs in law if he gives no weight to a document because its contents were not proved in accordance with the rulesof testimony.
Thus: the assessment of the testimony should be framed in terms of the credibility and trustworthiness of the evidence as that is the test set out in our courts proceedings, weighing of testimony tend to support the position of evidence either to admit or to reject it completely.
Further it is preferable to assess the credibility of the testimony based on total evidence presented, credible decisions are not always easy to make and often require careful thought and analysis if not the hearing process would become very slow and tedious.
In light of the foregoing and in order to overcome the problems of losing claims due to lack of sound oral testimony, research work of M.A Laws level is a welcome idea.

1.3       AIM AND OBJECTIVES
Since legal materials on proof by oral testimony in Nigeria law are mostly scattered in our leading books, the main aim of the thesis is to produce a material that will serve as an easy reference in Evidence law, also to equip the litigants or disputant parties on an ideal way of presenting or testifying their facts before the court of law to make it admissible.
It is part of the objectives of the work to:
Analyze the problems the courts are facing when adopting Testimony to establish or confute cases with a view to profer solutions.
Furthermore the thesis work will also analyze the concept of testimony in Nigerian law i.e Common law and Islamic law in particular with a view to arrive at a correct legal material as contribution in the area of proof.

1.4       SCOPE OF THE RESEARCH
It is hoped that the research work will be restricted to Nigerian law of proof i.e Common law and Islamic law with particular reference to principles of proof by Testimony as one of the various means of evidence in both criminal and civil cases under Islamic law.

1.5       METHODOLOGY
The doctrinal research method that is to say library oriented which involves the study and analysis of available literature, (i.e Evidence textbooks, judicial authorities, journals), in order to determine the practicality or otherwise of the issue in question, is used.

1.6       JUSTIFICATION
In view of the fact that dispute can arise in our day to day activities and the court can adopt a sound and convinced oral testimony as a basis of its decision, there is an ardent need for the entire citizens to know more about Testimony so that they will know how to establish or refute cases.
In view of the above this research work should be interested to Judges, Lawyers, Academicians, and it will also be equally useful to general public.

1.7       LITERATURE REVIEW
In the process of this research work, emphasis is or would be place in bringing the two different laws together to deliberately point out the untouched areas in the text written by learned minds in the field who have strictly focussed on single aspect of law of Evidence generally some of the litratures consulted are as follows:
Ismaeel, richly discussed various means of proof in his book17 Commentary of the Sudanese Evidence Law, however , he laid emphasis on the means of proof as applied in the criminal matters only ignoring the civil cases.
Aguda, in his book18 discussed intensively and extensively the principles of Evidence from relevancy, means of proof, documents, production as effect of Evidence and finally closed his discussion with witness, he also pointed out the relevant reference to the law of Evidence Act, alongside with a large number of judicial decision, but the author?s work is silent and ignored the principles of the law of Evidence in the eyes of Islamic Law, this is an ommission that requires an action to be taken.
Nwadialo,19explained the source of Nigerian Law of Evidence, he showed the matters that need not to be proved by Evidence i.e. Formal Admissions, Judicial Notice and Presumptions, he also observed the facts that have to be proved by Evidence, i.e. Facts in issue, Relevancy of facts, Resgestae, Facts relevancy on special ground e.t.c. he rightly observed facts generally irrelevant but which may be proved in exceptional cases on one hand while on the other he takes a look at relevant facts but the proof of which is not allowed.
The author?s work on the topic should be enough to exhibit the admission and confession with an accurate explanation, he furthermore considered the proof right from Burden of proof in both civil and criminal cases, standard of proof in both civil and criminal cases and corroboration, its nature and the cases that required corroboration under Evidence Act.
In chapter fifteen of the book, the learned author dealt with witness: competence and compellability, competence of children, competence of parties to civil suits and their spouses, competence in criminal proceedings, witnesses for the prosecution, witnesses for the defence and examination of witnesses. However with due respect the work did not go far enough to discuss the aforementioned issues under Islamic Law.
Bambale, in his book20 dealt with the concept of crime, features of Islamic criminal liability. He laid great emphasis on capital punishments (Hudud) where he rightly exhibited and explained the crimes and the punishments attached to each crime which gives a clear, comprehensive and all-embracing view on Islamic criminal justice system.
He also discussed the various means of proof for establishing some criminal offences such as Zina (Adultery), Qadhf (False accusation), Hiraaba (Brigandage, Highway robbery) e.t.c
Chowdhury, In his book21 titled Principles of Evidencein Islam, he highlighted and enlighten the principles of evidence, ranging from Testimony (Shahada), Admission, Circumstantial Evidence, Oath and Expert opinion, he only explains the principles of proof as applied in the criminal matters ignoring the civil matters.
Abubakar, popularly known as Alkafawy in his book22extensively discussed the general principles of islamic law of evidence relating to criminal cases, but the author?s work did not give attention to proof on civil matters. This is a serious ommision.
Awdah, (of the blessed memory) in his book23 Islamic Criminal Law discussed the principle of Testimony (Shahada) as a proof of the offences in some criminal offences, such as a assault against an Embryo which terminates the life of child resulting in Abortion.
He also discusses other offences such as fornication, its proof and other offences and their proofs. He regrettably failed to discuss proof in civil cases, this is a serious ommission which needs to be remedied.
El’imairi,24 rightly dealt with issues in respect of principles of Evidence under Islamic Law, he discussed the conditions of the claim, parties to a dispute, Acknowledgement, he also discussed the authority for Evidence, the required conditions of witness and the number of witnesses in different cases.
However with due respect, the value of the work of the author centered on Islamic Law ignoring the principles of Evidence under English Law.
Alkalaby, in his book25 Laws of Jurisprudence talked on Testimony (shahada) and the conditions which the witnesses must satisfied, the degrees of Testimonies and witnesses and also the consequences that may happened as a result of retraction or withdrawal from Testimony, but could not discuss proof in both criminal and civil litigation.
Azzuhaily, in his book26 The Concise on Islamic Jurisprudence extensively discussed the concept of Testimony, the conditions required to be satisfied in a valid Testimony by a non muslimand the penalty that should be imposed on a false witness (perjury). He however , not discussed or provide answers to proof on civil litigations.
Salihu, devoted the last chapter of his book27to a detailed discussion of Testimony from its definition to its legality, and his opinion on the required conditions of witness. He move further to laid down the related principles of testimony. The work however did not cover the application of Testimony on both civil and criminal matters.
Isma’eel, in his book28 did not did a thorough job with regards to testimony, the only areas he touched is the gneneral introduction to testimony and the Islamic stand on receiving fees over testimony.
He further discussed the modes of delivering testimony, the work however did not cover the application of testimony on civil and criminal matters which is an ommission that needs an action to be taken.
Abdussalam, In his book29Commentary on the Tuhfatul Hukkam, the author makes an extensive discussion on adjudication and its fundamentals, procedure of ascertaining who is a plaintiff and who is a defendant was discussed. The procedure of stating claim by the plaintiff and the manner in which the defendant is to respond to the plaintif?s claim; the relationship between courts within same jurisdictional district and out had been discussed. He also extensively examines testimony of witnesses, oath and matters relating therefrom.
It is these gaps or ommissions in the present literature on testimony and issues related thereto and further development creeping into litigation in Nigeria that the thesis intends to fill.
By bridging the gaps, the thesis will be unique and different from previous research works in the realm of Evidence in Nigeria.

1.8       ORGANIZATIONAL LAYOUT
For proper assimilation of this work, it is prudent to subdivide it for easy understanding. This research work has been broken down into five chapters.
Chapter one is the General introduction which includes: introduction, statement of the problem, aims and objectives of the research, methodology, justification, literature review, and organizational layout.
Chapter two contains a discuss on the sources of Islamic law of Evidence which includes the Qur?an, Sunnah (Prophetic traditions), Classical work of Islamic jurisprudence, Contemporary works of Islamic jurisprudence by the contemporary islamic law jurists, Constitution of the Federal Republic of Nigeria 1999 as amended, Sharia courts? Rules and the Evidence Act.
Chapter three contains a discuss on the concept of testimony which includes the principles of the oral testimony, the required conditions of witness and the divergent views of scholars in respect of conflict between witnesses in Nigerian law.
Chapter four discusses the oral testimony as a means of proof in establishing criminal cases such as theft, adultery, drunkness, robbery e.t.c. Also the chapter discusses the oral testimony as a means of proof in establishing civil cases such as sale contract, loan, mortgage, gift, marriage, divorce, revocation.
Chapter five concludes the research work and consistsof a summary of the previous chapters, findings and recommendations.