ISLAMIC PROPERTY LAW LECTURE NOTE

By
Amana Mohammed Yusuf
Department of International Law & Jurisprudence
Faculty of Law
Bayero University Kano
+2348033340192
myamana.ilj@buk.edu.ng

DEFINITION: AL-MAL- (LITERALLY MEANS PROPERTY)

Al-mal the plural of which is Amwal like most Western term or
concept has different meaning. The word Al-mal and its derivatives
have been mentioned well over 90 times in the Holy Quran. For
instance: 4 (Al-Nisa) :5 & 29, 2 (Al- Baqara) :188 and 59 (Al-Hashr)
:7-9
ARABIC LANGUAGE
Mal in the Arabic Language signifies whatever in effect a man may
acquire and possess; whether it is corporeal „ayn‟ (a thing that is
physical in nature, that is fixed and individually perceptible) such
as gold, silver, animal, plant or usufruct „manfa‟ah‟ (the benefit
derived from the use of a thing) such as driving of vehicles and
residing in houses etc. from the above definition, whatever a man
cannot possess, cannot linguistically be regarded as mal. For
instance, birds in the sky, fish in the water, trees in the forest, and
mines in the secret depth of the earth.
LAY MEANING
Al-mal means all things capable of being owned “capable” in this
context depends partly on customs and usuage.
TECHNICAL MEANING
Technically, mal is viewed as things capable of being owned and
capable of being made subject of legal relations, transaction or
valuable (muntaqawam). The proponents of this definition went
further to state that forbidden things in Islam are excluded from
this class of things.
DEFINITION BY THE JURISTS
Mainly the point of divergence in the definition of Al-mal by the
various Schools of thought lies in the categorization of Al-mal to
either be ayn or manfaah or both.
According to the Hanafi School of thoughts, Al-mal consists of
something desired by human nature and which can be put aside for
future use or in times of necessity. According to them mal
comprises of movable and immovable property.
A broader Hanafi definition view al-mal as non-human things
created for the interest of human beings capable of possession and
transaction therein by free will.
Thus from the view point of the Hanafi‟s Al-mal is directly tied to
ayn only i.e ownership or proprietary rights in what can be touched
and possessed and not use rights.
The other schools of thoughts take a rather different view.
Shafi’i schools use the idea of capability of exchange for valuable
benefit as the basis of defining al-mal. Thus they see al-mal as
anything which is capable of being exchange for valuable benefit.
Hanbali School defines mal by reference to the existence of benefit.
Therefore according to them, mal is anything from which existence
benefit is capable of being derived therefrom.
Maliki jurist adopted a Western type definition of the exclusion of
others from interfering with it. Thus according to them, anything
which one can possess and excludes others from use or interference
with it is al-mal.
The majority of the jurists Maliki, Shafi‟i and Hanbali contrary to
Hanafi view Al-mal to be both ayn and manfaah. Thus according to
them, mal should be anything of value and from which benefit
could be capable of being derived therefrom.
Contemporary scholars agree with the expanded definition of
property given by the majority of the jurist. They agree that if
manfaah is related to a property it can be considered as Al-mal.
This is because according to them the definition of Al-mal should be
left elastic so as to accommodate relatively new rights that are not
tangible but beneficial in nature; like: the rights to future benefit
from a concluded contract, rights to license and concession,
chooses in action and intellectual property rights.
A collation or summation of the various views noted above will show
as follows:
1) In order for a thing to qualify as mal- it must have commercial
value
2) It must be capable of being owned or possessed
3) It must be capable of being stored
4) It must be beneficial in the eye of Islamic law
5) The ownership of the thing must be assignable and or
transferable.
WORKABLE DEFINITION
Al-mal is one of the most necessary elements of livelihood from
which a human being cannot be detached. It is also naturally a
subject matter of ownership and from which benefit is derived. More
empathically, it is a subject matter of numerous civil transactions
such as sale and purchase, rent and lease, partnership, bequest,
gift, waqf, succession and so on.
MANFA’AH (USUFRUCT) AND HUQUQ (RIGHT)
Manfa’ah
It refers to the benefit or interest derives from the use of a thing. It
could take the form of services, price or fees paid in return for the
rent or lease.
The three major schools of Islamic law, namely the Maliki,
Shafi’i and Hanbali are of the opinion that manfa‟ah or usufructs
are properties or mal and could therefore, be subjected to
contractual exchange or inheritance similar to physical property
(ayn). Thus according them, the beneficial use and benefit inherent
in a property is a treated or regarded as property. This position of
these school of thought flows from their definition of property
above.
Equally, from our earlier definition of mal, we said that one of the
attribute of mal is “value”. Thus anything that has value is
beneficial and within the context of definition of mal could be
possessed. This is also the unanimous view of the 3 schools
mentioned above.
However, Hanafi jurist differs in their opinion; this is because from
their definition of mal, physical possession and tangibility is one of
the basic attributes of mal. They argued therefore that, manfa‟ah
cannot be regarded as mal.
Thus in a tenancy agreement for instance, the benefit the landlord
derives from letting out his property is the tenancy fee and
according to the views of Maliki, Shafi’i and Hanbali above that
tenancy fee qualify as mal because he can use it as a subject of
contract. He can buy someone else goods or service with that
tenancy fee. Because tangibility or physical possession is basic
attribute of property amongst the Hanafi jurists, the tenancy fee is
not mal.
Also in the same tenancy agreement, the interest or benefit
derivable by the tenant is the leasehood or tenancy (shelter from
rain and sun). From the majority view of the jurist that also
qualifies as mal. This is because, the tenant though not the owner
of the property, he/she can sublet part of his tenancy term or
leasehood to another person for a fee or price. This however would
not be possible within the context of the view held by Hanafi jurist.
Interestingly too, in the instances above, the unanimous view of the
jurists with the exception of Hanafi is that benefit/interest inherent
in the contract above is inheritable by either of the heirs of the
parties to the contract.
ATTRIBUTES OF MANFA’A
1) According to the majority of the school of thoughts it is
property in the abstract.
2) It has value
3) It is beneficial
4) It can be made is subject of contract
5) It is inheritable
HUQUQ
Literally it means right.
The Muslim jurists are unanimous in their views that, huquq is the
right or entitlement related to the benefit in a property. It also
connotes something that can be justly claimed-either as of right or
by operation of the law.
The three major school of Islamic law, namely Maliki, Hambali and
shafi’i consider huquq as mal capable of being made subject of a
contract or inheritance.
Hanafi School on the other hand do no considers it as mal.
Example of huquq are, the right of easement (huquq al-iritifaq),
option (khiyar al-shart) and pre-emption (shuf‟ah)
Thus, Huqul al-irtifaq is a right guaranteed for the benefit of a
house by the neighboring house or by the owner of a house to the
owner of the adjacent house to pass though the latter for access, to
flow water through the latter for access, to flow water through it or
to build a second story on top of the first house.
Majority of the Muslim jurist are of the opinion that the rights of
easement are rights related to property and therefore, they could be
sold.
However, Hanafi is of the opinion that the right cannot be sold
independent of the property.
Equally, while the majority of the Muslim jurists are of the opinion
that the right of option (khyaral-shart) stipulated in a contract can
be inherited, because it is a right related to benefit in the property.
Hanafi jurist on the other hand held otherwise.
Thus, if a man enters into a contract of sales of his house with an
option to rescind the contract if the buyer does not pay the
purchase price within 2 years, such option according to the
majority of the jurists can be inherited by his hears if he dies before
the completion of the contract

CLASSIFICATION OF PROPERTY
Islamic jurist have classified property in terms of their basic needs,
permissibility and non permissibility, in relation to ownership and
transfer of possession via any of the known means of barter.
The Muslim jurist therefore classified property into 3 broad heads.
1) Mutaqwam (valuable) and Ghayr Mutaqawam (in-valuable)
2) Aqar (immoveable) and Manqul (movable )
3) Mithli (homogenous, generic or similar in nature) and Qimi
(heterogeneous, not specific or not similar in nature)
Mutaqwam
Loosely it can be translated to mean goods with proper authority,
having economic and monetary value.
Literally, it means goods with proper standing and legally
recognized and permitted under the Sharia.
Mal-Mutaqawam enjoys protection in Islam as evidence in several
verses of the Holy Qur‟an.
Quran 2:188
“Do not usurp one another‟s property by unjust means, nor
bribe with it the judges in that you may knowingly and
wrongfully deprive other of a part of their possessions.”
Quran 4:2
 Give orphans the property which belongs to them. Do not
exchange their valuable for worthless things or devour their
possessions adding them to yours; for this would surely be
a great sin.
Quran 4:29
Believers do not consume your wealth (property) among
your selves illegally, but rather trade with it by mutual
consent.
Hence, the owner of a mal-mutaqawam which is destroyed is
entitled to compensation.
Equally where a mal-mutaqawam is stolen it would attract a hadd
punishment for the person who stole.
The attributes of mal-mutaqawam are:
1) It is valuable
2) It a permitted subject of legal transaction in Islam
3) It is capable of being compensated for if damaged.
4) The theft of it attracts hadd punishment
5) It enjoys protection in Islam.

Ghayr Mutaqawam
Its definition is the converse mal-mutaqawam. It is goods without
proper authority, having no economic and monetary value in the
eye of Islam. It is equally of no standing and do not enjoy any
protection in Islam.
Therefore, mal ghayr mutaqawam are those classes of goods or
properties which are prohibited in Islam as stated in some verses of
the Holy Qur‟an.
Quran 5:3
You are forbidden to eat that which dies of
itself, blood and flesh of swine … flesh of
strangled animals and those beaten or gored to
death.
Fore example liquor is not permitted (haram) to Muslims. So a
Muslim is not authorized to posses it. For a Muslim, liquor has no
economic or monetary value and if a bottle of liquor available in a
Muslims belonging is broken, their will not be any compensation
payable by the person who broke same because the commodity
liquor is ghayr mutaqawam.
Therefore, there cannot be any lawful business transaction of mal-
ghayr mutaqawam as it would be illegal and void ab-initio.
In essence mal-Ghayr mutaqawam lacks all the basic attribute of
mal-mutaqawam.
According the Maliki and Hanafi jurist mal-ghayr mutaqawam can
be used by non Muslim.
Thus in the example given above, if the broken liquor was the
belonging of a non Muslim, compensation will be payable even if it
was a Muslim that broke same.
However Hanbali and Shafii differs to the view stated above,
because according to them, mal-ghayr mutaqawam is not
permissible in an Islamic state, thus the possession of same by a
non Muslim would amount to a breach of the principle of Sharia by
a non Muslim living in an Islamic state.
Legal consequences of the classification
The legal consequences of the classification is that, it distinguishes
between
1) Goods or properties that are valuable and those that is not
valuable.
2) Property protected by the Sharia and those not protected by
the Sharia.
3) Those subject of legal transaction and not subject of legal
transaction
4) Those capable of being compensated for if destroyed and
otherwise
5) Those in respect of which punishment for hadd can be
imposed if stolen and otherwise.
AQAR AND MANQUL
Aqar:
Aqar is defined by the jurist as properties that are fixed or static in
nature. These classes of property by their nature are immoveable.
Example of which is land.
Manqul:
These are properties that are not fixed or static. They are capable of
being moved form one place to anther because of their non
permanent nature. Examples are animals and merchandise.
It is the overwhelming view of Hanafi, Shafii and Hanbali that a
property could attain the form of both Aqar and Manqul.
They argued that a property though manqul could become aqar if it
is affixed to the ground in a particular position. An example could
be a heavy duty generator affixed to the ground for it to operate.
This same generator can be uprooted and moved to another
location.
Maliki jurist however differ in their opinion for according to them
any object attached to land cannot successfully be moved with out
substantial change in its form. Thus once such object is affixed to
the ground, it becomes aqar.
LEGAL CONSEQUENCES OF THE CLASSIFICATION
1) Right of pre-emption (shaf‟ah) is available only in relation to
aqar and not in manqul
2) Right of easement (Haq al-irtifaq) exist only in relation to aqar
3) Aqar need not be in physical possession of the owner before
same can be sold. The same cannot be said of manqul whose
physical possession is a pre-condition.
4) The aqar of a bankrupt person cannot be sold/auctioned
unless the manqul has been exhausted. The same goes for a
judgment debtor.
Mithli: this refers to goods/items whose similar kinds are generally
available in the market. It also connotes properties which can be
measured by weight, volume, length or number of homogenous
units.
One unique attribute of Mithli is that if it perishes, it can be
replaced by an equal quantity of a similar property/goods/item
without any difference in the constituting units. Example of this
properties includes but not limited to eggs, money, rice, wheat,
corn, barley, etc. thus one piece of egg available in shop A is Akin to
another piece of egg available in shop B.
In any barter system generic goods shall have to be transacted
without any different of quality or weight as the case may be. Any
excess in quantity and weight will be riba (interest). However, non
specific goods can be bartered with unequal quantities. If a person
borrows 3 eggs from his neigbour, he will have to return 3 eggs in
lieu of that. One cannot take the plea that the eggs borrowed were
bigger, so the eggs refunded should be more in number.
The difference in size if any shall be ignored. Refunding of 2 eggs in
lieu of 3 will be unjust and demanding of more eggs above the
number borrowed will be riba which is forbidden in Islam.
Another attribute of mithli is the availability of same kind of
property in the market.
Muslim jurist are unanimous in their views that Mithli can be made
a subject of a loan contract because of the possibility of finding the
equivalent at the time of repayment.
Qimi: these are properties the like of which can not be found in the
market or even of it is found, dissimilarities would still exist. Thus
Qimi includes all those properties which cannot be exchanged by
weight or measurement. They include but not limited to land,
houses, animal, trees, etc.
Consider the case of an animal, one goat owned by one person is
not like another goat with another person. This is because the 2
goats may attract different price. Equally, every house may be
unique with regard to its construction or locality and there may
justifiable difference in their respective values.
LEGAL CONSEQUENCES
 1. In loans transaction for mithli there is no difficulty in
repayment
2. In the event of destruction of mithli where an action is
maintained in tort, it is capable of being refunded.

THE CONCEPT OF OWNERSHIP

FROM THE QUR’AN
The term ownership is rooted from the Arabic word mulk
(sovereignty) and it derivatives. In Arabic the world malaka (verb) of
mulk means to take possession of something. Malik, the personal
noun form of mulk indicates that which one owns or has taken
possession of. Mamluk, the object form of mulk refers to the object
which is possessed and milikiya which signifies authority over often
refer to the exclusive form of mulk. The evidence of the use of the
words and its derivatives can be seen in the following verses of the
Holy Qur‟an. See Quran 7:158, 25:2, 35:13, 42:49, 67:1, 85:9, 3:26
and 57:7. In all these verses, sovereignty and ownership of all that
the heaven and earth contains is attributed to Allah.
TRADITION OF THE HOLY PROPHET (SAW)
The concept of ownership is said to be deducible from 3 prophetic
traditions.
1) The tradition of the Holy Prophet narrated by Bukhari on the
message given to Mu‟ath Bin Jabal who was sent on a mission
to Yemen:
… Tell them Allah has made zakah compulsory on them
to be taken from the rich, payable to those amongst them
that are poor if they obey this, beware of their properties.
It is should be noted that the key words used in the above
quoted hadith is (Amwal) which may signify: wealth,
possession, fortune, estate, assets, property or chattels.
2) The second is the tradition of the Holy Prophet narrated by
Bukhari and others from Jabir Bin Abdallah. The Prophet was
reported to have said that „he who brings to life land that is
barren/virgin/uncultivated is the owner of the land‟.
 3) The third tradition is the one narrated by Abu Daud from a
companion of the holy prophet, where the prophet was
reported to have said that Muslims have common ownership
or share in three things: grass, water and fire.

The first tradition it is argued, warn against intrusion into

properties that belongs to believers who heed to Allah‟s instruction.
Private ownership of property is guarantee here.
From the second tradition we saw, acquisition and ownership of
land vest on the person who made effort to bring it to life. This
hadith also justify private ownership.
While the last Hadith we saw recognized communal ownership in
certain property.
OWNERSHIP FROM THE JURIST STAND POINT
The jurists are unanimous in their views on the definition of
ownership. They view ownership as the legal authority to dispose off
property in any form and for what ever purpose the owner deems
appropriate. According to them, one outstanding attribute of
ownership is the ability to exclude others from posting claims to
similar ownership or use right on specific property. This bring to
mind private ownership
The explanation of ownership by the jurist is rooted in the
interrelationship that exists between the milikiya, mamaluk,
malaka and malik. The jurists are unanimous in their views that
ownership could be acquired through search and capture, transfer
via contract, inheritance and compensation amongst others. Islam
however prohibits or forbids acquisition of ownership by means of
any unjust or inequitable method. Example includes usury,
gambling and theft.
CLASSIFICATION OF OWNERSHIP
Ownership is basically classified into 3. i.e
1. Individual ownership
2. Communal ownership
 3. State ownership
Individual Ownership:
Individual ownership as stipulated in the Sharia refers to that legal
condition in which the individual has the priority relative to others
over things upon which claim is held. The exclusionary rights
exercised by the owner forbid others from invoking ownership or
use rights to properties already sanctioned to the owner by the
Sharia. The jurists are unanimous in their views that an individual
may legally own both proprietary and use rights over a property.
The exclusionary ownership in a property expressed in individual
ownership was adequately expressed in the provision of sura 24:27
O ye who believe enter not houses other than your
own, until ye have asked permission and salute those
in them.
Also from the prophetic tradition, it was narrated from Abu
Hurayrah that the Prophet (SAW) said “every Muslim is
forbidden/prohibited to commit transgression on to other
Muslim’s life, blood, property and honour”.
Bukhari, Muslim and others also narrated from a group of
companions that the prophet (SAW) said in his farewell Friday
sermon that “Transgressions onto your lives, properties and
honor amongst your selves are forbidden”.
Equally, it was reported that when Umar Bin Al-Khattab decided to
expand the Masjid Haram, he bought the land adjacent to the
mosque from their owners and even when some people refused to
sell, he used the authority of the state to compulsorily acquire their
land but paid the market value for the land and when the owners
refused to accept the money, he deposited the money in the public
treasury where it remains until the owners of the property collected
the money.
Communal Ownership: Two standard methods apply to the rules
on communal, common or community ownership in Islam. i.e,
1. The rules relating to booty
 2. The rules relating abandoned property by enemies or taken
from them without a formal war.
In the above 2 instances, ownership to the property is communal
until subdivided. There is equal access and the right of use is
guaranteed.
Booty according to the rules of Sharia are shared or divided after
the war. However, a part of it remains for the common benefit of all
the Muslim ummah, this part is physically defined by the size of the
share that is allotted to Allah, His prophet (PBUA) and other
stipulated beneficiary via the provision of the surah 8:41 (Al-awfal)
the sura that dwelt on the spoils of war.
And know that out of all the booty that ye may
acquire (in war) a fifth share is assigned to Allah and
to his apostle and to the near relatives, orphans, the
needy and the wayfarer (traveler, wanderer or nomad).
In the case of property abandoned by or taken from the enemy
without a formal war, the Qur‟an indicates that such property
belongs to Allah, the prophet (PBUH) and the same beneficiary
stipulated in the distribution of booty. Except that, in this case, the
division of the property is left to the discretion or the judgment of
the leader. See Qur‟an Sura 59:7 the sura that dwelts on the exile.
What Allah has bestowed on his Apostle (and taken)
away from the people of the township, belongs to
Allah, to His apostles, and the kindred and orphans,
the needy and the wayfarer, in order that it may not
(merely) make a circuit between the wealthy) among
you.
Least we forget, the hadith on communal ownership of grass,
fire and water by all Muslims also apply here.

STATE OWNERSHIP
State here is in the context of an Islamic state. Any land that
has no owner belongs to the Islamic state. Implicit in this
principle on which all the jurist are in agreement, is the
hierarchy/categorization of ownership beginning with Allah,
then His prophet (PBUH), then the leader of the state.
The authority of the Islamic state lies in the Imam. Under the
Imam, comes the institution referred to as the Baytul mal”
which is the public treasury as well as the authority over
revenue generating policies.
It is worthy to note that, the classification of ownership into
community ownership and state ownership has been argued to
be for the sake of convenience as only a line separates the 2 if
any at all. This is because; the community is part of the state.
And common to the two is the fact that proprietary/ownership
rights are vested in the state/community. It is the right of use
that is common to all.
CONCEPT OF LAND
Land in Arabic means Al-ard. It is also connotes earth. The
use of the word al-ard is common in several verses of the Holy
Qur‟an. In those verses, the creation of land is attributed to
Allah, it sole ownership is also shown to be vested in Allah and
its entrustment as a property into man for the benefit of all
has also been shown to be guaranteed by the Qur‟an. See the
following verses of the Holy Qur‟an.
 All that is in heavens and on the earth belong to Allah
4:126 & 134
 To him belongs whatever is in the heavens and earth.
16:52
 His is the kingdom of the heavens and the earth and all
that lies between them 43:85
 The earth belong to Allah, He gives to his servant as the
pleases 7:128
 And he it is who made you to inherit the earth 6:165.
 Then we made you vicegerents in the land after them to
see how you would act 10:14
 To him is due the primal origin of the heavens and earth.
. 2:117
  Do you see what he has spent since he crated the
heavens and the earth 14:32 and 13:3-4.
It is the unanimous views of the jurist that land is an
immoveable property.
In islam, land has two basic components i.e land itself which
is propriety in nature. And manfa‟ah, which is the use and
benefit derivable from it.
Division of Land:
As for as the division of land is concerned under the Sharia
the Muslim jurist have classified land based on the mode of
acquisition. Land therefore has be classified or divided into
1. Unoccupied land
2. Occupied land
3. State land.

1. UNOCCUPIED LAND
As the name suggest, it is a land without an owner. Muslim
jurists have classified unoccupied land into 2
1. Mawat land (virgin or barren land)
2. Waqf land (Abandoned land)
Mawat Land: It is derived from the concept ihya al-mawat
which literally means revival or bringing to life. It is a principle
of Islamic law which recognized acquisition of land by the state
or individual through revival, rehabilitation or bringing back to
life a dead land. It is a known medium of land acquisition that
was practiced and prevalent during the time of the Holy
Prophet (PBUH) and continued up till the time calipha Umar
(who was well known in Islamic history for his various land
reform programs and up to the present day).
Mawat land actually refer to land that is left fallow, barren and
uncultivated. It has been neglected and with lapse of time
become dead or waste land. It becomes dry and not fit for
yielding any crops or vegetation in that state. Mawat land has
also been held by the jurist to include flooded areas.
In other words, mawat land is an uncultivated waste land that
has no owner. The ownership of which it has been maintained
is vested in the state and acquisition by an individual through
rehabilitation either with or without the permission of the
state, by cultivation, occupation, or construction is permitted
pursuant to the requirements laid down in the Sharia.
Jurists are unanimous on the definition of Mawat land, their
only point of disagreement is on the location of the land.
Maliki, shafii and Hanbali jurist define Mawat land as lands
which are not the property of anyone, the location of which are
far from the distant part of the village or town, that the sound
of a person who has a loud voice cannot be heard from the
houses which are in the extreme limit of the town or village.
Hanafi jurist on the other hand agreed with them on the
definition of mawat land as lands which are not the property
of anyone but gave important emphasis on the location of
mawat land and insist that it should be far away from any
human settlements to be considered mawat land.
From the foregoing definitions, it is clear that mawat land has
no owner, is uncultivated and has been left barren, fallow and
neglected and with passage of time turned to become a waste
land.
Jurists not withstanding the definition of mawat land advance
by the schools of thought, as being a territory belonging to
nobody has categorized mawat land into 2 distinct categories
1. LAND NOT OWNED BY ANY BODY: The jurists are
unanimous in their view that land which has never been
owned by any body can be acquired through the process
of rehabilitation, cultivation and occupation.

2. LAND PREVIOUSLY OWNED AND ABANDONED:

Jurists are of the view that a land previously owned if abandoned
and left unrehabilitated by the owner for 3 years and it reverts
back to its mawat state can be acquired subsequently by another
person who revives it and put it to use. This is based on well
known traditions of the Holy Prophet (saw) where he was reported
to have said that:
1. He who brings dead land back to life shall himself
possess it and he who by force wants to make use of it
has no right or title to it at all.

2. Who so ever cultivates and inhabit a land which is

nobody’s shall have the best right to it.
While jurist are in agreement that land could be acquired in any of
the above mentioned state, they however are in disagreement as to
the consent/authority of the state (iqta) as a pre-requisite for
acquiring the land and the nature of ownership acquired via the
consent.
JURISTIC VIEWS ON CONSENT OF STATE AS A PRE-REQUISTE
FOR ACQUISITION
Shafii School holds the view that the consent of the state
authority is not necessary to revive a dead land (Mawat land).
Hanafi School on the other hand hold a contrary view as they
insist the consent and authority of the state must be sought for
and obtained before a mawat land can be revived. They based their
opinion on the tradition of the Holy Prophet (PBUH) where he said:
Nothing is lawful to any person except what is permitted
by the Imam.
The rationale behind their view they argued is to avoid any future
dispute or conflicting claims amongst rival cultivators or between
ilya al mawat and iqta owner.
Maliki School on the other hand qualifies the necessity of
obtaining consent. According to them, if the land is situated nearby
any human settlement, consent of the state is required, if however,
the land is isolated and far away form the town or village, the
authority of the state or consent is not required.
Hanbali School also qualifies the necessity of obtaining consent.
They opined that if the mawat land is previously alienated or
owned by a Muslim or Dhimi, consent is necessary, if on the hand
no body had previously owned the land, then consent is not
necessary.

JURISTIC OPINION ON NATURE OF TITLE ACQUIRED VIA THE

CONSENT
Shafii School though consent of the state is not a requirement by
this school, maintained that where such consent is sought for and
obtained, the consent granted by the state only confers conditional
ownership on the grantee. Full ownership according to them will be
obtained upon continued and complete revival of the mawat land
within the period of 3 years.
Maliki School on the other hand holds the view that consent and
authority by the state confers unquestionable ownership
irrespective of the period of revival and cultivation.
Hanafi School on the other hand favours full ownership with a
proviso that such right could diminish and be extinguished or lost
should the grantee fail to cultivate the land within the time element
stipulated therein. The grantee here has a qualified right.

WAQF LAND:
These are land acquired through conquest or abandoned by people
out of fear of conquest or for other reasons.
Under the waqf institution, a land declared as waqf land becomes
the common property of the whole Muslim community under the
headship of the Imam or an Emir. such land is held in trust for the
common benefit all.
Jurists appear to be in disagreement as to whether such land
should be treated as unoccupied land or not.
Shafii, Hanbali and Hanafi, are of the view that it cannot be
treated as unoccupied land where ownership of same can be traced
to a well known community or tribes. The proprietary right remains
in those people, though abandoned, by them, the land will be held
as waqf land until the people come back to reclaim same. The
rationale for their views is that such people may come back to
embrace Islam and if the land is treated as unoccupied, individual
acquisition of same will deprive them land for settlement and
sustenance when they choose to come back.
Hanbali and Shafii further maintained the view that the land
cannot be treated as unoccupied even if the people who abandoned
the land are unknown. They maintained that the land does not
allow individual ownership; it remains a waqf land held in trust for
the benefit of all.
Maliki jurists on the other treat such land as unoccupied capable
of individual ownership, unless expressly declare by the
Imam/Emir as waqf land in which case such land is held in trust
for the benefit of all. The first leg of their view is based on the
prophetic tradition.
He how revives a barren land owns its
Maliki and Hanafi on the other hand further maintained that
where the people who abandoned the land are unknown, it is
treated as unoccupied, capable of being revived by any body.
The conflicting views noted above is based on the perceived
interpretation of the provision of Sura 59:7 by the jurists.
OCCUPIED LAND
These are lands of the territories whose people or inhabitants are
Muslims or dhimi (non Muslim in an Islamic state). These lands
are considered automatically owned by the Muslims or dhimi. The
Muslim jurists agreed unanimously that its ownership remains
intact in the Muslims and the dhimi. They further agreed that
nobody can take it away from them. The owners of the lands are
vested with the power of sale and the land is capable of being
inherited upon the death of the owners. The jurists support their
views with the prophetic tradition that says:
A nation which embraces Islam secures its life and property.
The sign of sanctity of the right over occupied land against
infringement by others and abuse by the state is guaranteed by the
Qur‟an and prophetic traditions.
Surah An Nisaa 4:21
O you who believe! Eat not up your property among
yourself in vanities but let there be amongst you traffic
and trade by mutual goodwill
Sura Al Baqarah 2:118
And do not eat up your property among yourselves
in vanities, nor use it is bait for the judges with
intent that you may eat up wrongly and knowing
other people property
Prophetic Traditions
It was narrated by Muaz bn Jabal that the Prophet said:
No person’s property is lawful to be taken except by his
consent.
In another tradition narrated by Said bn Zaid, the Prophet was
reported to have said:
That if anyone takes a span of land unjustly, its extent taken
from seven earths will be tied around his neck on the day of
Resurrection. If he took span of land without his right he
would be made to wear around his neck seven earths on the
day of resurrection.
Thus, the Quran and Hadith clearly prohibit encroachment upon
land lawfully held by another save through legal means to wit.
Lawful trade, mutual consent and inheritance etc.
Question: can an Islamic state compulsorily acquire an occupied
land from its owner without his consent and without adequate
payment of compensation?
The Holy Prophet (PBUH) was reported to have acquired land of
some of the people of Madinah for the construction of mosques
with their consent and he paid compensation to the owners in
accordance with the prevailing price although the owners did not
demand any price. Similar acquisition of land and payment of
compensation was undertaken by Caliph supra.
Muslim jurist are therefore unanimous in their view that a land
occupied by a subject in an Islamic state cannot be acquired
unlawfully without the payment of compensation.
It should be noted that the amount of compensation envisage in
islam covers not only the loss of ownership of the land but also to
indemnify the owner of the expenses incurred on developments on
the land and the loss of income arising from the loss of use of the
land.
Muslim jurists are unanimous is their views that occupation that
grant title over the land must be active and constructive. Physical
holding in the form of farming on land, construction of building
and erection of other structures is required.
In relation to annexed land, jurist maintained that annexed land
attached to a village or town though treated as occupied land
belongs to the state and no individual can own it. However, they
argued that annexed land detached from a village or town may be
privately own by a person who put to use part of it continuously.
They however differ as to the distance of the land from the village
or town.
Shaffi School put it at a day distance to and from the village to
fetch firewood.
Hanafi School put is at 300 to 400 feet from the village.
Maliki and Hanbali leaves the distance to the custom of the people
STATE LAND
As the name implies, it is land owned by the state and held in trust
by the al-amir (leader) or the iman for the common benefit of the
Muslims.
This land is sometimes referred to as Amiriyah land. Although the
use or benefit right of such land may, in conformity with state
regulations be acquired by an individual or group, the proprietary
right rest with the state. Other lands classified as state lands are
1. Himma Land: It is often referred to as grazing reserve. Its
history date back pre-islamic era and with the coming of
islam it was retained and transformed into one of the mode of
acquisition of land. It is acquired upon the proclamation of a
given area as public reserve by the imam. Once that it done,
such land come under the institution of the state and held in
trust for the common use of all.
2. Sulh Land: it is land acquired through compromise or treaty.
although the proprietary right reverts to the Islamic state, the
original owners continue to use the land upon the payment
kharaj (tax)
3. Conquered agricultural land: It is also referred to as fay land
land. The word is derived from afa‟a which occurred in verses
6-7 of sura 59 (Al-Hashr). These verses reinforce the concept
of common ownership over conquered land. It thus falls under
the institution of baytul mal.

OWNERSHIP OF LAND
Ownership of lands in an Islamic state has been classified into 4
1. Private ownership of land
2. Communal ownership of land
3. State ownership of land
4. Co-ownership
PRIVATE OWNERSHIP
Every individual, man and woman, Muslim and non Muslim are
entitled under the sharing law to the ownership, possession,
enjoyment and transfer of land. Private ownership of and as
enjoined by the Holy Qur‟an and prophetic tradition must be
respected and safeguarded by fellowmen and the state. In deed the
Quran and prophet tradition provides guide line for its acquisition,
protection and proper utilization.
Private ownership of land is acquired when an individual revives a
virgin, or barren or unoccupied land. This form of land ownership
is justified by the prophetic tradition „he who revives a barren
land owns it’. And the also the tradition „whosoever cultivates
and inhabit a land which is nobody’s shall have the best right
to it’.
The prescribed nature of revival or rehabilitation to be carried out
on the occupied land is in accordance with the prevailing condition
and nature of the land itself.
If the land falls under the category of building, the nature of work
to be undertaken naturally relates to that purpose. i.e the
construction of building, dwelling houses and other structures. If it
falls under agriculture, then agricultural work is to be carried out
there such as clearing of the land, irrigation works etc.
Shafii School pointed out that planting of fruit trees is not a
condition of revival unless it is classified as orchard land.
Maliki School on the other hand view revival or rehabilitation to
include cultivation of the land through irrigation works by creating
water channels, planting trees, digging of wells, ploughing the land
and construction works such as building of dwelling house.
The Muslim jurists however are divided on the efficacy of
ownership based on Tahjir.
Tahjir denotes preliminary measures or works towards reviving of
unoccupied land. It includes such acts as making of boundary
walls with stones or wooden stakes, the clearing or burning of
grass, enclosing the land and other related activities.
Shafii School believes that Tahjir does not create any right of
ownership. According them, the steps towards acquisition only
begins with Tahjir and will bloom to ownership if rehabilitation
work has been completed within the specified period of three (3)
years.
Hanafi School on the hand believes that Tahjir serves as a notice
to other. Therefore, it would serve as a point of reference for
claiming priority if conflicting claim of ownership arise.
Maliki and Hanbali on the other hand hold the views that Tahjir
creates ownership but it ceases or extinguish if the cultivator fails
rehabilitates the land completely within the period of 3 years and
abandons it.
The principle of acquisition of land through revival was given
judicial affirmation in the case of Alhaji Ishaku Vs Hadejia N.A
Reported in Sharia law Report by Yahaya Mahmood p.1 in that
case on Abbas first cleared a forest land with the permission of the
village head father who was the then Bulama (ward head). After
cultivating the land (two in numbered, he left it and went to live in
another village. The appellant Ishaku claimed possession of the
land left behind by his brother and continued to farm on it. The
ward head did not agree and sought to take over the land. At the
Emirs court judgment was entered in favour of the Bulama and the
appellant and his brother were asked to leave the land for the ward
head. On appeal the decision of the trial court was set aside and
the court of appeal held as followers:
According to Islamic law, if a person brings into
cultivation any uncultivated land, that place belongs to
him and even an Emir cannot take it from him. A forest
belongs to no one, therefore any person who improves it
has the full control over it and no one can challenge that
authority even if he is a ruler.
Private ownership can also be acquired through Al-iqta (grant,
assignment, allotment or alienation by the state).
The Prophet (PBUH) as the head of the Islamic state and his
immediate successors known in history the caliphs made grants of
land to people. The Prophet (PBUH) was reported to have granted
Hadrat Zubair a tract of land in Khyber which contained date-
palms and other trees. The Prophet said to Zubair Race your
horse and the point where it stops shall be the boundary of
your estate. Zubair raced his horse and when it stopped at a spot,
he cast forward his lash. The Holy Prophet (PUBH) then said “All
right, give him the land up to where his lash has fallen”.
Private ownership through state grant can take either of the
following form:
1. IQTA TAMLI: this is a concession of ownership where both
proprietary right and manfaah right is vested on the person to
whom the grant is made. It automatically becomes his private
estate, thereby conferring on him the power of sale, lease or
any other use right on the land.
2. IQTA ISTIQLAL: Here only the right of exploitation or use
right is granted. Thus only the right to the benefit from the
land is given without the right of ownership or sale. Under
this form of grant, tax or rent are often imposed.
3. IQTA IRFAQ: it is a grant of a temporary nature and for a
specified purpose. Under this grant, the length and conditions
of use are for the state to determine from time to time.
Examples are market shops and road side stores.

Private ownership of land can also be acquired by way of gift

from the owner. In the case of Alhaji Aminu Garba Safeti &
Zors Vs Mujitaba Garba Safeti & Ior (2007)3 SLR PT.IV
p.43 the Court of Appeal Kaduna Division confirmed the gift
of the landed property by a father to his sons when they held
relying on Ihkamul Ahkami as follow:
If a father makes a gratuitous gift of a thing to his
sons big and small…and the big son takes
practical/actual possession of the thing given, the
gift is complete. But if no possession is taken and
the father dies, the gift becomes void.
Other means of private ownership of land is through purchase
and inheritance.
DOCTRINE OF HAUZI (PRESCRIPTION)
The general law of Hauzi on landed properties as means of private
acquisition/ownership of land is well stated by several authorities.
The Prophet (PBUH) was reported to have said that:
He who takes possession of a thing for ten years, that
thing becomes his.
The jurists interpreted the Hadith to mean that if a person sees
another making use of a thing that belongs to him for a long period
of time and does nothing to stop him from using it and the person
using the thing does not terrorize the owner and that person later
claims ownership to the thing, the owner shall not be heard and
his evidence shall not be received to claim to the thing except
where circumstances exist which make it impossible for him to talk
such as where there is blood relationship or fear of something that
will harm him from the person in possession of the thing.
In the case of Hunare Vs Nana & Anor (2013) 1 SQLR Pt. III p.1
@ 19 it was judicially affirmed that the minimum period of Hauzi is
ten years where the parties are not blood related. The Supreme
Court stated thus:
Ten years peaceful enjoyment of possession of a landed
property without let or hindrance bars all action against
an un-blood related possession.
Therefore the general principle of Islamic law is that where a
person has been in peaceful enjoyment or possession of land
without challenge for 10 years, he thereby acquires a title by the
Islamic doctrine of Hauzi (prescription) against any person who
claims to be the true or original owner of such land and who stood
by without taking any action to reclaim his land during that period,
in other words, the law is that a person who see somebody in
possession of his or her property and claiming and using the same
as his own over a long period of time without any objection from
his loses his ownership and that other person in possession
becomes the owner.
The above principle of Hauzi received succinct judicial affirmation
in the case of Gidan Kada Vs Gidan Yawa (1993) Sharia Law
Report p.156 where Maidama JCA held thus:
Therefore, if the owner as in this case has full knowledge of
the adverse possession and did nothing, his claim is
extinguished. It would be otherwise if the appellant is away
to another far away place which is equivalent to a minimum
distance of 2 days journey or where the property is situated
within enemy territory or where the person in possession is
a blood relation, in which case, the period extends to 40
years or where the property is on loan or was for life
tenancy only. In the instant case the respondent stated that
the appellant were there and saw him farming in the farm
and did not raise any objection. His statement was not
contradicted. In my view, there is ample evidence to hold
that the respondent acquired title by prescription.
The appellant in the above case was not satisfied with the above
stated position of the Court of Appeal, hence he appealed to the
Supreme Court. Reaffirming the judgment of the court of appeal,
the Supreme Court more recently, in Gidan Kada Vs Gidan Yawa
(2013) 1 SQLR Pt. II p.22 @ 31per Mohammed JSC restated the
principle thus:
Under Islamic Law of Hauzi (prescription) ten years peaceful
enjoyment of possession of property without its being called
in question bars all action against the possessor unless he
be claimant’s relative, partner or co-proprietor or unless in
the case of a house, the possessor was in permissive
occupancy only.
Concurring, per Belgore JSC @ p. 36 held thus:
Whoever takes possession of land without force, without let
or without secrecy and has so remained for not less that
twenty years as in this case and he is not by any means
related by blood to whoever ultimately show up to make
claim a claim of remote right over the same land has in his
favour the operation of the Islamic law of Hauzi.
See also the cases of:
- Gabro Vs Gwabro (1998) 4 NWLR pt. 544 p.60
- HADA Vs Malumfashi (1993)7 NWLR PT. 303 P.1@ 19-20
There are however some exception to the Islamic doctrine of Hauzi.
In the case of Tela & Anor Vs Kwarago (2013) 1 SQLR Pt. III
p.22, the Court of Appeal at P.26 stated thus:
There are certain factors which defeats Hauzi such as
infancy/minority, loan, inheritance, deposit, trust, pledge,
prolong justifiable absence of claimant e.g claimant serving
jail term for sometime or in hospital bed, marital tie, fear of
powerful relation or ruler etc.
The following therefore are exceptions to the general principle of
Hauzi.
1. There is a cogent reason for not complaining in good time
2. The claimant is a minor
3. The person is possession was put there by the claimant either
as free or rent paying tenant.
4. The person in possession is put on the land as a trustee
5. The claimant is a partner or co-proprietor to person in
possession
6. In the case of a house the possessor is in permissive
occupancy. See the cases of:

 Hada Vs Malumfashi (supra)

 Hakimi Boyi Umaru Vs Aisa Bakoshi (2000) 2 NWLR
PT. 646 p.690.
7. Also, where there is evidence that during the said prescription
period (10 years) or part of it, the claimant was married to a
person who adhered to the principle of pudar (seclusion) and
will not allow the claimant, that is, his wife, to institute an
action against the occupier directly or through his
representative, wakil or her waliy, then the claim of the
person in possession through the process of Hanzi will fail.
See the case of: Alu Danfagachi & Ors Vs LAMi Ahmadu
Suit No : CA/K/49/S/94 delivered on 6th December 1999
 and reported in the selected judgment of justice Coomassie
JCA as he then was p.54.
8. The Islamic doctrine of Hauzi (prescription) does not apply to
undistributed property. See the case of Gewayu Vs Dushi
(1997)8 NWLR PT. 517 p.522
9. Also under Islamic law, the Doctrine of Hanzi (prescription)
does not affect a property in possession of another, no matter
how long the property is in his possession if it is on loan,
pledge or for safe-keeping. In such situation, the defence of
Hanzi is not open to the defendant. See the cases of:
- Nasi Vs Haruna (2002) 2 NWLR PT 750 p.240
- Tela & Anor Vs Kwarago (supra)
10. Where the property is a house and a kindred resides in it for
a period 40 years, the kindred will be declared the owner of
the said house, otherwise the claim of Hauzi by the claimant
will abate. Muhammadu Ibrahim Vs Alh. Garba & Anor
(1993) Sharia law Report p.211.

COMMUNAL OWNERSHIP:
Communal ownership of land contemplate land, the ownership of
which is vested in the community as a whole and which is held in
trust by the Imam for the common benefit of the people. The
justification of this form of ownership of land is traced to the
prophetic tradition that Grass, water and fire is the common
property of all people.
STATE OWNERSHIP:
The ownership of these lands is vested in the state and held in
trust by the Imam or Amir for the common benefit of all. No single
individual can lay claim to these land unless granted same by the
state.
CO-OWNERSHIP:
It is sometimes referred to as join tenancy. It is the common
interest or title held in respect of a land undistributed or interest
held in a land to the extent of the obligation created against the
owner and right created in favour of the other person. Examples in
the interest held by heirs to an estate over an undistributed landed
estate. Another example is the interest of the mortgagee in the land
or landed property used as security for a „loan‟ the mortgagee has a
lien in the property to the extent of the money loaned. By the
mortgage agreement and during the pendency of the mortgage,
joint tenancy or co-ownership in the property is created.

HAQ AL-IRTIFAQ
Scholars have defined Haq al-irtifaq severally. The following are
some of the definitions. According to some it denotes the reduction
of property ownership benefit for the purpose of benefiting another
property. Other see it as the right of the different benefit of one
property over the others regardless of the owner. On the other
hand, it is defined as the right to derive benefit gratis from the
immoveable property of someone else.
Thus easement right in general means the benefit an individual or
group people derived from property publicity or privately owned.
In public owned properties, the cause of the easement right are the
individual or group share in its ownership, as in the case of rivers
and main thorough or street or road. In individually owned
properties, the individual as well as the general public may have
easement rights because of the attachment and geographical
topographical relationship between the properties. For example,
difference in ground or flow levels may cause some properties to
drain their rain water into another property or properties.
The right of Haq al-irtifaq has been recognized by the Sharia in the
spirit of generosity which members of the community should
display about each other.
Haq al intifaq (benefit right) is sometimes equated with Haq-al
irtifaq because it also involves the use or benefit derived from other
people‟s property. However there are some differences between the
easement right (Haq al irtifaq) and right of benefit (haq al-intifaq).
 1. Easement rights are always specific for immovable property
i.e land or a house, while the right of benefit is general for any
object moveable, immoveable or human.
2. Easement rights cannot be abandoned and it is mandatory
upon the eased property, and the owner is compelled to give
the other these rights, while the right of benefit may be
elective. The owner of the object including properties can
abandon the right of benefit when he wishes as in the case of
land borrowing.
3. In most cases Easement right have a negative return nature
upon the eased property; while in majority of cases, the right
to benefit may have positive returns such as getting back
favours or money for the use.
4. The easement right exist as long as the eased upon property
exists, regardless of it owners existence or death. While the
right of benefit may be conditional for a time defined by its
owners.
TYPES OF EASEMENT RIGHTS
1. Haq al-shurb- Right to irrigation water.
2. Haq al-Shafah- Right of domestic use of water
3. Haq al-majra- Right to channel water
4. Haq al-musli- Right of drainage
5. Haq al murur-Right of passage on roads
6. Haq al Ta‟ali- Right of upstairs
7. Haq al-Jiwar- Neighboring right

1) Haq al-shrub, haq al shafah and haq al majra:

All these right relates to access to water and use of water. The
right of thirst is legally the right to water to quench one‟s thirst
or to water one‟s animal or farm. This right is recognized and
guaranteed to both Muslims and non Muslims; private
individual and the public at large.
Jurists are of the view that these right flows from the Holy
Qur‟an. They argued that sura 21:30 in particular laid the
general formula on use of water when it provides that: “we made
from water every living thing”
Equally, they also made reference to the prophetic traditions
wherein Muslims are said to have common share in three things:
grass, water and fire.
They were also specific on the tradition of the Holy Prophet
where it was reported that: The prophet PBUH forbids the sale
of excess water.
The Prophet was also reported to have proclaimed that High-
lying areas should be irrigated first before lowly-lying areas.
Jurists therefore have classified easement over water under the
following heads:
1. Water of public river beds: Jurists are of the view that these
waters are owned in common by the community as a whole.
Therefore no individual can lay exclusive claim to use.
Examples of these waters are lake, rivers and sea.
2. Water of private river beds or springs: this includes natural
spring on a mawat land revived or rehabilitated by an
individual in the community, well dug on a land by the owner
of the land and in modern times bore holes. Maliki jurist are
of the view that no one other than the proprietor is entitled to
their use and whoever takes of this water save an indigent
person must pay for it or return an equivalent amount. The
other jurists are of the view that there is community of right
of use even though the proprietary right resides in the owner
of the land housing the water.
3. Preserved Water: This includes waters in reservoirs,
underground tanks and the likes. Jurists are of the view that
because these waters are collected from other sources by the
owner; ownership of same is exclusive and its use by any
other person is subject to the consent of the owner.
4. Channel Water: the right to channel water is both public and
private. Where the channel was jointly built by persons with
lands around the water bed, they alone are entitled to
exercise the right of irrigation. However, where such channel
emanates from lake water or other big rivers, it is at the
disposal of every one to irrigate with it. If the topography of
the land is uneven, the owners of the nearest cultivated plot
 have first priority. If the topography of the land in the area is
even, and there are several plots near the water, no order of
priority is observed; however the owner whose crops are most
urgently in need of water takes first.

There is however difference in opinion by the jurist on the

amount of water to be used for irrigation when water is
scarce/limited/insufficient. Hanafi and Hanbali, one of the
view that upriver pieces of land should be irrigated first, but
the quantity of water to be retained should not reach above
the ankle.

Shaffi on the other hand is of the opinion that only the

surplus water which remains standing in the upriver pieces of
land after the ground is saturated should be returned to the
downstream pieces of land.

Maliki holds the view that an upstream owner should not

artificially hold back any water after he has irrigated his land
but should allow the water to flow down to lower-laying lands
without waiting for the water to completely saturate his field.
if as a result of the scarcity of water, the law-lying plots are in
undated with water, he is not required to pay damages,
provided that it was not done out of spite or carelessness.
2) Haw al-Musli: it is the right to drainage of waste or unwanted
water through public or private drainage. Jurists are of the
view that upstream lands have the right of drainage of their
water though downstream lands.
3) Haq al-Murur: This is the right of access to one‟s own
property across the property of someone else alone or with his
herds. It is referred to as the right of way or passage. This
right can be publicly owned by all Muslim collectively or
owned by a private individual. Everybody has the right to
passage. The owners of property attached to public easement
can keep their animals on it; open doors and windows, and
keep some of their property on it as long as it does not harm
others.
 However, if the owner of an attach property to public
easement wants to erect or build a projection that will harm
the public from the use of the public way, all the Muslim
jurist are of the view that he should be prevented from doing
so. If on the other hand there is no harm in such proposed
building or projection Hanafi insist the permission of the
imam is sought for and obtained before such project is
embarked up. Shaffi on the other hand is of the view that no
permission is required where no harm is occasioned by such
projected building. Maliki leaves it to the custom of the area.

In the case of passage owned privately by an individual or

group of individuals, the owners have the right to open doors,
window, build projection and gates if they all agree. The other
passerby has the right to use the private passage when the
main passages are crowded.

4) Haq al-Ta’ali: this is referred to as the right to upstairs. This

is also an aspect of neighboring right. The right is enjoyed
vertically. It concerns the relationship between the ownership
of lower and upper floors as in the case of multi story houses.
Naturally, the upper floor owners are less dominant on the
ground floor owners. Therefore, the easement right vertical
gives some right to the upper floor owner upon the lower floor
owners.

The owner of the ground floor cannot demolish his property in

such a way as to put to damage the structure of the upper
floor building. If that is done, the owner of the upper floor has
the right to re-erect /rebuild such demolished structure down
floor. Haq al taali is to the effect that the owners of lower and
upper floor in a build must not use their property in a way
that will cause harm to the other person‟s structure or hinder
vertical passage right. Thus opening of windows, door or
placing of objects to prevent vertical access is prohibited by
all the jurists.
5) Haq al- jiwar: it is referred to as neighboring right. This right
is enjoyed horizontally. This is the right of a neighbour over
 the use by his neighbour of his adjacent property. (as in the
case of side by side houses).

As a general rule, every owner of a house has the right to

freely manipulate his ownership right over his/her property
the way he/she wishes. All the jurists are unanimous on this
right. They however differ in their opinion where such use
occasions harm to be neighbours. Their divergence of opinion
is based on their interpretation and understanding of the
following prophetic traditions
1. There should be no harming or reciprocation of harm
2. Believers are those who respect their neigbour.
3. He whom his neighbour is not safe from his mischief is
not a believer.
Thus according to Hanafi and Shafii, the use of his house by the
owner cannot be conditioned by his neighbors‟ benefit. Therefore,
neighbours have no right to condition their neighbour‟s action in
relation to the use of his house. This is because according to them,
the prophet traditions referred to above only crates religious and
moral obligation. The sanction for refusal to comply is with Allah.
The Maliki and Hanbali jurists on the other hand are of view that,
the use of a house by its owner can be conditioned by the neigbour‟
benefit if such use is occasioning or causing unusual harm to the
neighbours. They agree that law can intervene to prevent such
harm in favour of the neighbours.

SHUF’AH – RIGHT TO PRE-EMPTION

The right of pre-emption or Shuf‟ah is a preferential right or priority
right to become the buyer of an immovable property. The principle
was developed to restrain and prevent a stranger from coming in
between or among co-sharers, co-owners or neighbours which could
cause inconvenience or harm. By this principle a co-owner, co-
share or neighbour desirous of selling his property obliged to offer
same to his co-owners or co-shares or neighbor first before selling
same to a stranger. It is the refusal to do so that gives rise to the
right or claim of Shuf‟ah against the purchaser of the property.
The jurists unanimously defined Shuf‟ah or pre-emption as the
right by which a co-owner in an immoveable property may redeem
from a stranger, in consideration of compensating him, that part of
the property which has been sold to him by another of the co-
owners.
The above definition was adopted by the supreme court, per Wali
JSC in the celebrated case of ALKAMAWA VS BELLO (1998)6 SCNJ
P. 127 at 135-136, (1998)8 NWLR PT 561 P.173 SC, the same
definition was adopted per Jega JCA in the of YARLIYA VS ILIYA
SHARIFAI (2007)3 SLR PT. IV P. 124 at 135.
Therefore, where a co-owner sells his house or landed property to
another person (a stranger), rather than his fellow co-owner first,
that co-owner would be entitled under the Sharia to re-acquire or
repurchase such house or landed property from the stranger to
whom it was sold by refunding the purchase price and other
expenses incurred on the property.
LEGAL VALIDITY OF SHUF’AH
The legal validity of Shuf‟ah can be traced to several prophetic
traditions amongst which are the following:

1. Jabir Bin Abdallah reported that the messenger of Allah (PBUH)

was report to have issued a verdict in the case of co-owners
before partition. However, when boundaries have been
demarcated between them, (their properties), they have no
(mutual) right of pre-emption.
2. Abu Rafi reported that, the Prophet (PBUH) said the
(immediate) neighbor has a prior right to that which is
adjacent to him. This hadith was related by Bukhari and
Muslim.
3. Al-Tirmidhi and Abu Dawud also declared as authentic
the tradition of the Prophet (PBUH) which says the neighbor of
a house has a prior right to the house of his neighbor.
ELEMENTS OF AL-SHUF’AH
Shuf‟ah has four elements:
 1. The pre-emptor (shafi)
2. The property (Mashfu‟fih)
3. The buyer (Mashfu‟alayh)
4. The mode of acquisition through Shuf‟ah.

The Pre-emptor (Shafi)

There is divergence of opinion of the jurist based on the above
Prophetic traditions on who qualifies as a shafi.
Maliki, Shafii, and Hanbali schools are unanimous in their views
that there is no right of pre-emption for anyone except the joint
owner, as long as partition has not taken place. The strict position
taken by these schools of thought is based on the first Hadith
mentioned above. And on the authority of the case of ALKAMAWA
VS BELLO (Supra), this is the preventing position in Nigeria. The
Supreme Court settled finally in this case that the applicable
Muslim law in Area courts and all other hierarchy of court dealing
in Islamic law is the Islamic law of the Maliki School. Thus, the
Supreme Court applying the Maliki law held in the case that the
appellant being a neighbor to and not a partner in the ownership of
the house in dispute has no right of pre-emption.
Hanafi jurists on the other hand are of the view that the right to
pre-emption is not limited to co-owners alone. Therefore according
to Hanafi, the first priority is for the co-owner before partition,
followed by the joint owner after partition as long as a joint
ownership exists in (common) street, drive way, or in the courtyard.
The next order of priority is for the adjacent neighbor. According to
the school this, the right of Shuf‟ah can be exercised by the
following
1. Co-owners before partition
2. Joint owners after partition
3. Adjacent neighbor.
The Hanafi jurist rely strictly on the second and third prophetic
traditions mentioned above for their position. The rationale for
their view they argued is to repel harm inherent in co-ownership
and by extension, the owner of an adjacent property.
The property (Mashfu’ fh)
The Muslim jurists agreed that Shuf‟ah applies to real estate
properties such as house and land. The reliance of the majority in
restricting shuf‟ah to real estate is what is related in the confirmed
tradition of the Prophet (PBUH) that Shuf’ah is valid in what has
not been partitioned but once boundaries have been drawn and
driveway made, there is no Shuf’ah.

The jurists however differ about the application of the right of

Shuf‟ah over other property. The summary of views in Maliki
School is that Shuf‟ah applies to three (3) kinds of property. The
first is the primary property, namely, real estate such as land,
house, shop and orchards and the likes. The second is what is
attached to the real estate and is fixed, neither transferable nor
moveable like springs (private). This right extends only when the
original property, (real estate) is jointly owned. The third is what
relates to these things, like fruits. According to the Maliki apart
from the above mentioned there is no Shuf‟ah in all other things.
They specifically mentioned goods, animals.
Hanafi, disagree with Maliki on the right of Shuf‟ah in springs. The
school permits the right of shuf‟ah in female animals but disagree
with Maliki on the application of shuf‟ ah in fruits.
Shafii agreed with Maliki on all the property mentioned with the
exception of fruits.
In relation to partition or divided property, only Hanafi School
allows the application of Shuf‟ah in respect of thereof. The other
jurists disagree and restrict the right to only undivided property.
The Buyer (Mashful’ Alayh)
The jurist unanimous on the Mashfu‟ alayh, that he is one to whom
the property was transferred to through purchase from a co-owner
of an undivided property or from a neighbor, according to those who
view the validity of Shuf‟ah for a neighbor.
They however disagree on the person to whom the property is
transferred to through other means of exchange but not purchase.
Maliki and Shafii Schools are of the view that there is Shuf‟ah in
any exchange of the property made for a consideration or
compensation. They therefore agreed that there is Shuf‟ah on any
transfer of ownership made on the basis sale, settlement, dower,
(Mahr), damages for torts (arsh) and so on. They also unanimously
agreed that there is no shuf‟ah in charitable gift and inheritance.
According to them, compensation and consideration comes within
the meaning of sale as used in the prophetic tradition.
Hanafi on the other hand insist that shuf‟ah applies to sales alone.
According to them sale as use in the Hadith must be given its strict
meaning.
The Mode of Acquisition through Pre-Emption
This element relates to issues such as to the time of
refund/payment of the purchase price by the pre-emptor, the
determination of value of the exchanged property where it is not by
outright purchase, how much of the property the pre-emptor
acquires, the exercise of the right where some pre-emptor are
present and other absent and when among other connected issues
which are herein under discussed under the following heads:-
a. Immediate Or Delayed Payment
The jurists are unanimous in their news that when the payment is
immediate the pre-emptor reacquires the property at the immediate
sales price.
Where however payment it delayed the jurists differs in their views.
Maliki’s are of the view that the pre-emptor acquires the property
on the basis of a delayed price if he is well to do or he comes up
with a rich guarantor.
Shafii on the other hand are of the opinion even of payment is
delayed, the pre-emptor acquires at the immediate purchase price.
This is because according to them the pre-emptor has the option if
he likes to go through with the payment immediately or he can
delay it to the end of the period allowed by the sharia.
b. The value to be paid for Property Exchange Other Than Sale
Jurist who permit shuf‟ah in other exchange other sale are of the
opinion that pre-emptor in the exercise of his right of pre-emption is
to pay the estimated value of the property if it can be easily
estimated. If on the other hand the value cannot be easily
determine, they are of the view that the pre –emptor is liable to pay
compensation to be determined in the form Khul.
c. How Much Of The Property Is Acquired
If the pre-emptor is one, the either takes the entire property or
leaves it.
If the pre-emptors are more than one, that is, the co-owners, if
some of them decides to exercise their right of Shuf‟ah and some
others decides to surrender the right the majority of jurists are of
the opinion that the pre-emptors must acquire the whole property
or relinquish their right. This is because there is no pre-emption to
the extent of ones share, unless the buyer permits it.
A minority view in the Maliki School (Asbagh) one of Maliki disciples
in of the view that if some of them surrender their right out of
concern for the buyer, the preemptor who disagrees can only
exercise his right to the extent of his share.
d. Extent Of The Right When Some Pre-Emptor Are Present
And Others Absent
Maliki School maintained that when some of the pre-emptors are
absent and some are present and those present wishing to exercise
the right of Shuf‟ah, can do so. They must however take the whole
property or relinquish it. When those absent returned they have the
right to exercise the right against the other co-owner to the extent of
their share.
e. Buyers Two Or More:
If the buyers are two or more, and a pre-emptor desires to exercise
the right against one of them and not the other, Maliki School are
of the opinion that he either acquires the whole property or
relinquish the right. Hanafi and Shaffi on the other hand grants
the pre-emptor the option to exercise the right against any of them
he pleases.
f. Time to exercise the right
Jurist are unanimous in their views that if a long time passes there
is no Shuf‟ah but if such time has not pass, there is Shuf‟ah.
The jurists however disagree as to the exact duration or time.
Maliki himself put the time at one year. His disciples however
hold the view that the right remains valid up to 5 years. Shaffi put
the duration of the right at 3 years.
Jurists have difference of opinion in the case of the exercise of the
right by 2 persons one of them absent and the other of them
present.
The jurists are in agreement, about the person absent, they are of
the view that his right subsists as long he is not aware of the sale
by his co-owner or joint owner.
They disagreed when he is absent, but aware of the sale of the
property sale by his co-owner or joint owner. Maliki is of the view
that his right of pre-emption is annulled. This is because according
to them his silence after being aware of the sale is circumstantial
proof of his consent to the relinquishment of the right.
In the case of a person present, jurists hold the following divergent
views:
Shafii and Hanafi are of the view that the right is valid immediately
he become aware of it and is able to make the demand or exercise
the right. If he knows and is able to make the demand but still does
not, his right to Shuf‟ah is terminated. Hanafi however gave a
proviso that, if he makes his intention known to witnesses, the right
is not annulled even if delayed.
Maliki on the other hand is of the opinion that the right has an
extended duration of one year if no substantial change or
improvement or addition is made to the property, where however
the buyer after one year make substantial change or improvement
or addition on the property and the pre-emptor kept silence, the
right become annulled.
g. Inheritance Of The Right Of Shuf’ah
 Maliki and Shaffi are of the view that the right is inheritable like
all other kind of wealth. While the kufis maintained that it is not
inheritable.

h. Demolition or destruction of structure of the buyer before

declaration of Shuf’ah.
In the case where the buyer undertakes construction or plantation
work or what resembles it, on the land before the demand of the
pre-emptor and the pre-emptor makes the demand later after
destroying such improvements on the land, Maliki said that there
is no Shuf‟ah unless the buyer is given the value of what he has
constructed or planted.
Hanafi and Shaffi on the other hand holds the view that there is
pre-emption because the buyer in a trespasser. They however agree
with Maliki that the pre-emptor must return back the value of the
destroyed construction or what was planted.
i. Disagreement between the pre-emptor and the buyer over
the price paid by the buyer to the co-owner for the property
When the buyer and the pre-emptor differs about the price paid to
the co-owner for the property, the buyer saying that the bought the
land for a certain sum, price or amount, and the pre-emptor saying
that he bought it for less, without any of them having evidence
majority of the jurist say that the admissible statement is that of
the buyer, as the pre-emptor is the claimant and the buyer is the
defendant. Therefore the majority view of which Maliki is part of it,
agree that the statement of the buyer along with his Oath is a more
stronger claim.
Where both of them come up with equally reliable evidence as
accepted in Islam Maliki is of the view that both evidence will be set
aside and the buyer will be required to take an Oath and if he does
his claim is accepted.
RAHN-MORTGAGE
Definition
Al-rahn literally means to pledge, pawn, retain, detain, deposit,
mortgage, charge security, and collateral. Modern writer, both
muslim and Western are in agreement on these terms.
It refers to a contract of pledging or depositing a property as a
security for a debt so that the debt may be taken from the property
should the debtor failed to settle the debt.
According to Syara, rahn connotes “to make an object with
economic value in Islamic perspective as a trust for the payment of
debts, so as to enable the mortgagee to get all or a part of the debt
from the object.”
Ibn Qudamah on the other hand defines rahn as “an object made
as trust for the payment of debt, by which debts are met if the
debtor could not pay to the creditor.
Imam Abu Zakaria Al Anshary defines rahn as “to make an
economic object as a trust for the payment of debts, from which
unsettled debts are paid.
In summary therefore, Rahn means to pledge or lodge a real or
corporeal property of marital value, in accordance with the law, as
security for a debt or pecuniary obligation so as to make it possible
for the creditor to recover the debt, or some portion of the goods or
property.
Legal Basis for Al-Rahn In Islam
The legal basis for al-rahn can be found in the Qur‟an, Sunnah
(hadith) and the consensus of the jurist.
The Qur’an
The legal basis for Rahn in the Holy Qur‟an can be fund in Al-
Baqarah 2:282 and 283.
Verse 282 is the Quranic provision on debt creation and
documentation of the debt as a form of security. It provides thus:
 O believes, when you contract a debt for a fixed period,
put it in writing, let a scribe write it down for you with
fairness; no scribe should refuse to write as Allah has
taught him. Therefore, let him write; and let the debtor
dictate, fearing Allah, His lord and not diminishing the
sum he owes. If the debtor be a feebleminded or ignorant
person, or one who cannot dictate, let his guardian
dictate for him in fairness. Call in 2 male witnesses from
among you, but if there are not 2 men, then a man and 2
women whom you judge fit to act as wittiness. So that if
either of them forget, the other will remember. Witnesses
must not refuse to give evidence if called upon to do so.
So do not fail put your debt in writing, be they small or
big, together with the date of payment. This is more just
in the sight of Allah. It ensures accuracy in testifying but
if the transaction in hand be a bargain concluded on the
spot, it is no offence for you if you do not commit it to
writing…
While verse 283 is the Quranic provision on creation of Rahn using
collateral and it also deals with the security aspect of evidence and
proof: it provides thus:
And if you are travelling the road and a scribe cannot
be found, then let pledges be taken. If anyone of you
entrusts another with a pledge, let the trustee
restore the pledge to its owner; and let him fear
Allah his lord. And withhold not testimony, for
whoever withholds his heart is tainted with sins.
Allah knows all that you do.
Hadiths
The history of mortgage or rahn date back the time of the Holy
Prophet (PBUH) as of reported in the following Hadiths.
1. Aisha (RA) reported that the Prophet (PBUH) bought some
foodstuff from a Jew and mortgaged his armor to him.
 2. It was also reported by Anas that the Prophet (PBUH)
mortgaged his armor to a Jew in Madinah and bought barley
bread from the Jew for his family.
Jurist
Based on the above textual authorities, majority of the jurists
agreed that al-Rahn is permissible in Islam even not on a journey
and it is also permissible to do rahn with non-muslim provided
that there is no element of riba involved.
ELEMENTS OF MORTGAGE/RAHN
1. Rahin- (mortgagor or pledgor)
2. Multahin – (Mortgagee or pledgee)
3. Marhin – (the mortgage property)
4. Sighah- (How offer and acceptance one made)
RAHN-MORTGAGOR OR PLEDGOR: He must possess legal
capacity to enter into a contract and must not be under any
disability. He is the one who pledge, deposit or mortgage his
property as security for the debt. Maliki and Shaffii allow a minor
to pledge or enter into a mortgage through his guardian or executor
for his intrest in cases of necessity. Maliki and Shaffii do not allow
an insolvent person (muflis) to enter in to a mortgage transaction.
Hanafi on the other hand does allow him.
MURTHIN (MORTGAGEE OR PLEDGEE): he is the person in
whose favour the security is created. Any person who is qualified to
be a mortgagor or pledgor is also qualified to be a mortgagee or
pledgee.
MARHUN (THE MORTGAGED OR PLEDGED PROPERTY: jurists
are of the view that in order to achieve the objective of al-rahn, the
pledged or mortgaged property must fulfill all the condition of a
subject matter of a contract of sale. meaning that any property that
can be sold, can be pledged. The reason is that the pledge or
mortgaged property may be sold if the debtor is in default in order
to settle the debt. Thus, the pledged or mortgage property must be
something that is legal, permissible, valuable, in existent and
owned/possessed by the mortgagor at the time of the contract.
Maliki permits property whose sale is not permitted or immediate
at the time of the pledge or mortgage like crops or fruit that have
not ripened. Shaffi also agrees with Maliki. Shafii allows borrowed
property with the consent of the owner to be used as subject of
security in mortgage contract.
The jurists are unanimous in their views that the mortgagor must
deliver possession of the property to the mortgagee. They however
differ in their views as to whether delivery of possession is a
condition for validity or completion.
Hanafi and Shafii are of the view that the contract is not valid
until the mortgagor delivers possession of the property to the
mortgagee. (Immediate)
Maliki on the other hand holds the view that delivery of possession
of the property by the mortgagor to the mortgagee is only a
condition for completion and that the contract is valid in itself once
offer and acceptance of the pledge is made.

WHETHER THE MORTGAGEE CAN USE THE PLEDGED

PROPERTY
Hanafi jurists allowed the use of the mortgage property by the
mortgagee relying on the prophetic tradition reported by Abu
Hurairah that
The prophet (PBUH) said, the mortgaged animal can be
used for riding as long as it is fed and the milk of the
animal can be drunk according to what one spend on it.
The one who rides the animal or drinks its milk should
provide the expenditure.”
The rationale for the Hanafi view in that, expenditure for the
mortgaged object is the mortgagee responsibility and that since the
mortgage object is under the mortgagee authority and he pays the
expenditure for it, then he may derive benefits from the object.
Maliki jurist on the other hand maintained that the mortgaged
property or object is a trust for the payment of the debt and no a
means for profit making. Thus allowing the mortgagee to use the
property would mean allowing him to take benefit from the debt.
The rely on the prophetic tradition that:
Whoever takes benefit from lending is riba.
Maliki school however gave a proviso that the mortgagee could use
property or object if the mortgagor consent to it upon request by
the mortgagee or where it is an earlier stipulation in the agreement
that the property can be used after a particular period.
The rationale for the Maliki school position is that the mortgagee‟s
right in the mortgage agreement is only to detain the mortgage
property or object until the mortgage settles or liquidates his
obligation or debt.
Shaffi on the other hand holds the view that the benefit in the
mortgaged property or object resides in the mortgagor and not in
the mortgagee. This is because according to them, the mortgagor of
the property is the one that has the right of benefit over the
mortgage property. Though the mortgage objects is under the
authority of the mortgagee, he is only expected to retain it as
security for the debt. They rely on the prophetic tradition where the
prophet (PBUH) said,
Mortgage does not avoid the mortgagor‟s right from the benefit of
mortgage property, they benefit is his and he has responsibility on
every possible risk.
They also rely on the prophetic tradition that:
One’s animal should not be squeezed except by its
owner permission.
Maliki and Shaffi jurist together argued that the tradition relied
upon by Hanafi is limited in application as it applies to animals
alone, so it cannot be used as a general basis for use of mortgaged
property by the mortgagee.
Hambali jurist on the other hand agrees with Hanafi where the
object or property as an animal, in which case, he maintained the
consent of the mortgagor is not required. But where the mortgaged
property is not an animal, the consent of the mortgagor is required.
All the jurists are unanimous that the mortgagee cannot sell the
pledged or mortgaged property until the time agreed upon has
lapsed.
Sighah- offer and acceptance: the terms of al-rahn must satisfy the
general conditions of the terms of contract. The phrases must be
clear, concise and free from any ambiguity. The offer and
acceptance of the pledge or mortgage is in the words being spoken
which are evidence of agreement, as by the mortgagor saying “I
have made this thing/property a pledge security against my debt to
you. For the deaf, jurist agreed the offer and acceptance may be in
the form of sign language.