INTERNAL CONFLICTS RESOLUTION IN RELATION TO INTESTATE SUCCESSION IN NIGERIA: PERSONAL LAW OR LEX SITUS?

INTRODUCTION 

 

          Although Nigeria is one single nation, the presence of different and diverse ethnocultural groupings and consequently multifarious rules of customary law, makes the presence of conflict of laws problems.  Problems of internal conflict of laws arise in Nigeria whenever there is a clash between two or more different systems of customary law and the court is faced with the task of determining and choosing which of them to apply in the case before it. 

This article explains which law Nigerian courts would apply in resolving internal conflicts of matters relating to inheritance or succession matters.

INHERITANCE OR SUCCESSION MATTERS

           To resolve conflicts related to inheritance or succession matters, the courts do this in two different ways:

1. Inheritance relating to movable properties.

2. Inheritance relating to landed or immovable properties.

1. Inheritance relating to movable property [ Personal property]

           Generally, the law which should be applied In the case of intestate succession to movable and immovable property is the personal law of the deceased as against English law, Lex situs, or any other law. This will operate to the exclusion of the customary law prevailing in the area of the court's jurisdiction. In Tapa V. Kuka [1], Nupe Law, being the personal law of the deceased was applied in respect of his estate and not the Yoruba customary law although the property was in Lagos. 

By “Personal law”, according to Prof. Niki Tobi in the context of this succession case, would appear to mean the law the deceased was normally subject to when he was alive. The Personal law is not necessarily the law he was born with.

In Mojekwu V. Mojekwu [2], Personal law in the context of succession cases was explained to mean the law the deceased was normally subject to when he was alive. 

 It must be noted that a person may change his personal law either by choice or by the process of assimilation or acculturation. In Olowu and 2 ors V. Olowu and Anor [3], the interstate deceased was Ijesha by birth but applied to the traditional ruler of Benin “naturalized” as a Benin citizen as he lived there. The court held that the succession of his properties would be according to Benin law not Ijesha customary law.

There are however exceptions to this rule:

 It was held in Ekom V. Nerba [4] that where the personal law of the deceased cannot be easily ascertained, “Lex Situs” (law of the place ) will apply.

A distinction has been made between succession to personal property and succession to real and immovable property. Succession to real and immovable property is based on “Lex Situs”. The case of Olowu and 2 ors V. Olowu and Anor provided that the “lex Situs” rule cannot deprive any person of any beneficial interest to which he is entitled under the personal law of the deceased apart from the occupation of the said land.

Another exception to the general principle is that when a person previously subject to customary law undergoes a marriage celebration either by Christian writes or according to the English law, or by the provision of the Marriage Act, he is deemed to have rendered himself subject to English law for the distribution of his estate upon intestacy.

In the 2018 case of Nebuwa V. Nnenna [5], on the position of the law on the intestate succession of a deceased who had contracted Christian marriage, the deceased is deemed to have intended the succession to his estate under the English law and not under customary law.

Also, in the 2019 case of Ugolo v. Odiama [6], the Court of Appeal held that the law is that even if a couple got married under native law and custom, once they embraced Christianity and subsequently marry under the Act, the traditional marriage gives way for the latter. Therefore, the deceased's intestate would be governed by English Law.

In the case of Islamic Personal Law, the rule is that whether in any particular case, Moslem Law should be regarded as the personal law of the party is to be decided on the fact of his faith alone, but whether he regarded or so conducted himself as subject to Islamic law; instead, English law will be applied. 

In Mariyama V. Sadiku Ejo [7], a divorced husband claimed custody of his wife's child. The parties were Moslems of the Igbira tribe. It was suggested that because of their religion, Islamic law should be applied, but it was clear from the general conduct and statements of the parties that they thought themselves as bound only by the Igbira law. It was held that Igbira customary law and not Islamic law will apply.

 Finally, as held in Chukwu v. Okoh [8], apart from these instances, in internal conflicts relating to inheritance or succession of movable properties, it will be treated as entirely intestate and according to the law, the deceased was subject to when he was alive.

INHERITANCE RELATING TO LANDED/IMMOVABLE PROPERTIES (REAL PROPERTY) 

            The law applicable in matters concerning land is primarily that of the place where the land in question is situated (Lex situs). In other words, it may not necessarily be the law prevailing in the area of the court.

In Zaidan v. Mohssen [9], Section 20 of the Customary Courts Law was rephrased. In Sub-section 1, it provides that:

"In land matters, the appropriate customary law shall be the customary law of the place where the land is situated".

             In Mojekwu v. Iwuchukwu, reported as Mojekwu v. Mojekwu [10], the Supreme Court held that it was the " Lex situs" that governs succession to landed property in Onitsha, Anambra State.

There are instances where the personal law of the deceased and the lex situs are the same. That will occur when the deceased is a native of the same locality where the land is situated.

The exception to this general rule is if the application of the lex situs to matters of succession to land does not operate to deprive a person of any beneficial interest he is entitled to in the land under any law of inheritance, save the right to occupy the land.

CONCLUSION

         This article explains which law Nigerian courts would apply in resolving internal disputes of matters relating to inheritance or succession matters.

In the absence of any of the exceptions listed above, the general rule is that in resolving internal conflicts in an intestate succession of movable properties, the personal law of the deceased will apply while in immovable properties, the lex situs will apply.

END NOTES

[1] - 18 NLR 5

[2] - [1997] 7 NWLR (pt. 512) 283

[3] - [1985] 12 SC (pg. 85)

[4] - [1947] 12 N.A.C.A 258

[5] - [2018] LPELR - CA/E/447/2017

[6] - [2019] LPELR- CA/E/478/2005

[7] - [1962] N.R.N.L.R 81

[8] - [2016] LPELR - CA/E/379/2009

[9] - [1973] LPELR- SC 52/1973

[10] - [1997] 7 NWLR (pt. 512) 283

REFERENCES

- J.O ASIEN "Introduction to Nigerian Legal System"

- OSITA NNAMANI OGBU "Modern Nigerian Legal System"

AUTHOR:

OGO GLADYS AMARACHI