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
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
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:
كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِن تَ رَكَ خَيْ رًا الْوَصِيَّةُ
لِلْوَلِدَيْنِ وَالاّّقْ رَبِينَ بِالْمَعْ رُوفِ حَقِّا عَلَى الْمُتَّقِينَ فَمَن بَدَّلَهُ ب عَْدَمَا
سََِعَهُ فَإِنَََّّآ إِثُْْهُ عَلَى الَّذِينَ ي بَُدِّلُونَهُ إِنَّ اللَََّّ سََِيعٌ عَلِيمٌ فَمَنْ خَافَ -
مِن مُّوصٍ جَنَ فًا أَوْ إِثًْْا فَأَصْلَحَ ب يَْ نَ هُمْ فَلاَ إِثَْْ عَلَيْهِ إِنَّ اللَََّّ غَفُورٌ
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
Oft-Forgiving, Most Merciful (Q2:180). Also in another verse of the Holy
Qur‟an in Surah Al-Baqarah (Q2:240),
﴿وَانَّرِ هٌَ تٌَُىَفَّىْنَ مِىكُمْ وَ رٌََزُونَ أَشْوَجًا وَصِ تًٍَّ لاشْوَاجِهِم مَّتَعًا إِنَى انْحَىْلِ غَ سٍَْ إِخْسَاجٍ﴾
“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, All-Wise”.
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 one-eighth 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
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
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
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 “"لاوص تٍ نهىازث “there is no will for the heirs”.12
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
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
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
will access some official Wills prepared by Muslims with the
Professional legal backing in the court of Federal high Court Isabo,
Interview will be conducted among selected Muslims in Abeokuta.
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
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
Ascertain the extent of Muslim awareness on the usefulness of some
Islamic materials scholars as regard getting adequate information on the
7. Prepare a roadmap to the proper implementation of Allah‟s Will.
1.4 SCOPE OF THE STUDY
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:
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
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
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
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.
1. Gbadamosi in saitama‟ project
2. Ogunwolu, 1995, History of Egba, 10
4. Ogunwolu, 1995, History of Egba, 10
6. Muhsin, K. 2008, Noble Qur‟an,
7. Ibn Kahtir, tafsirul Qur‟an,
8. Fathul bahri,
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