Internal Conflicts of Laws

Internal Conflicts of Laws. Introduction
When two different countries or jurisdictions have their laws necessary for application in favour of a subject or a situation from one of those countries or jurisdictions, there is bound to be a conflict of laws. This area of law is otherwise known as Private International Law. On the other hand, where there is a clash between two laws in a country, there is a situation of internal conflict of laws.

In Nigeria, due to the factor of pluralism or diversity within the polity, these clashes between laws are seen often. An example can be seen in the existence of Customary and English law operating side by side. Also, the High Court exists alongside the Sharia court. Generally, in Nigeria Conflicts occur between the various state laws, giving rise to inter-state conflict situations. Interstate conflict situations arise whenever a court is faced with the problem of recognizing, applying or enforcing the law of another state or when it is required to exercise jurisdiction over persons or property located in another state.

See also:- Judicial Precedent; False Imprisonment; Trespass to the person; Malicious Prosecution; Defences to Trespass.

Reasons for Conflict of Laws

  1. Nigeria is a multi-ethnic, multi-lingual and multi-cultural nation, and each of the groups operate different customs, which may or may not have similarities. In a situation where people from two different cultural or customary backgrounds are involved in a transaction, which is subject to customary law, a situation of conflict is likely to be created. When there is a clear case of conflict between two different customary law systems, the next issue that will follow will be: which one is applicable, and this has to be determined by members of the communities involved or by a court, as the case may be.
  2. In examining the position of conflict situations in Nigeria between laws, the Supreme Court, per Oputa, JSC in the case of Olowu V. Olowu (1985) 3 NWLR pt. 13, p. 372 SC had this to say “Nigeria being one nation, one country, will it not be contradiction in terms to talk of conflict of laws in the country? Our formal National Anthem supplied the answer; “though tribes and tongues may differ in brotherhood we stand”. There are different tribes and tongues in Nigeria. Different customary laws dealing with devolution of property on intestacy. Where there is a clash between two or three of these different customary laws and the court has to choose which one should apply, we have an issue of conflict of law”.
  3. Nigeria operates an integrated legal system, which is made up of a plurality of laws, or different system of laws, such as customary law, English law, Muslim law and Statute law thereby leading to conflict of laws as the case maybe.
  4. When parties enter into transactions, they may have at the back of their mind which law should be applicable. They may want to rely and enforce on different systems of law. For example, where one party relies on English law, while the other looks at the customary law as applicable law to determine the dispute. Thus, where parties rely on different systems of laws, there is always the issue of conflict of laws to be determined, especially, where it is an arguable point of law as to which system of law should regulate the transaction – see the case of Koney V. Union Trading Company Ltd (1934) 2 WACA 118.
  5. Where parties who have been involved in a transaction governed by one system of law, go into another transaction governed by a different system of law, you often have a problem of conflict of laws. For instance, where a couple celebrated marriage according to Church rites and then revert back to live a traditional life. Upon intestacy, conflict of laws is often an issue.
  6. A relevant law maker may ultra vires and enact a law which is beyond his powers, thereby bringing such ultra-vires law into conflict with a superior law. This situation was seen in the case of Council of the University of Ibadan V. Adamolekun (1967) All NLR 225 and Doherty V. Balewa (1961) All NLR 630 and many other cases.
  7. The federal, state and Local Government may all have concurrent legislative power over certain matters at the same time and each may enact a law thereon, thereby creating the problem of conflicting laws and regulations which has to be resolved by court.

Conflict Situations – Internal Conflicts of Laws

The conflict of laws situations which usually come up for determination by courts in Nigeria may be:

  1. When is customary law applicable?
  2. Between English law and common law;
  3. Between English law and Islamic law;
  4. Between different systems of customary law;
  5. Between customary law and Islamic law;
  6. Between different schools of Islamic law;
  7. Between Federal and State laws or Local Government bye-laws;
  8. Between the constitution and other laws.

When is customary law applicable

Customary law will usually apply to regulate a transaction or parties in the following broad instances:

  1. Where the parties are natives and or the transaction is subject to customary law, as in Lewis V. Bankole (1908) 1 NLR 81; Edet V. Essien (1932) 11 NLR 47; Aghenghen V. Waghoreghor (1974) All NLR 74.
  2. Where the transaction involves a native and a non-native, but substantial injustice will be occasioned to either party if customary law is not applied – see Nelson V. Nelson (1951) 13 WACA 248.
  3. Where a statute provides that customary law should apply- see the case of Agidigbi V. Agidigbi (1992) 12 NWLR pt. 221. P.98 SC

On the other hand, customary law will not apply if:

  1. Where the parties expressly contract that customary law should not apply;
  2. If from the nature of the transaction the parties could not have intended that customary law should apply – koney V. Union Trading Co. Ltd (1934) 2 WACA 188; Salau V. Aderibigbe (1963) WNLR 80; Okoli V. Ibo (1958) NRNLR 89.
  3. Sometimes, if the transaction is not covered by customary law or it is unknown to customary law – see Salau V. Aderibigbe supra; Green V. owo (1936) 13 NLR 43.

To be able to really know when customary law shall apply, the need for understanding who a native is comes to the question. The various statutory provisions in High Court rules of state define native(s) as follows:

  1. Section 26 High Court of Lagos State provides for the application of customary law based on the “nativity test”, that is, the natives test – this principle was applied in the following cases: Lewis V. Bankole (1908) 1 NLR 81; Dawodu V. Danmole (1958) 3 FSC 46; (1962) 1 WLR 105.
  2. Section 34(2) High Court laws of Northern Nigeria as applicable in all the Northern States provides for the application of custom based on the nativity test; – See the case of Maryama V. Ejo (1961) NRNLR 81.
  3. Section 22(2) High Court Law of Eastern Nigeria, as applicable in all the Eastern States provides for the application of customary law based on the “Nigeria descent test”, that is, customary law is applicable, if the parties are of Nigerian descent-this was applied in Nzekwu V. Nzekwu (1989) 2 NWLR pt. 104 p.373 SC.
  4. Section 12(2) High Court of Western Nigeria as applicable in all Western States, except Edo and Delta states, provides for Nigeria and non-Nigerians – see the case of Alfa V. Arepo (1963) WNLR 95.

However, each of the states of the federation have their separate High Court Laws which have made provision for the application of customary law in appropriate circumstances based on tests similar to those mentioned above.

As a general rule, English law applies to transactions between Nigerians on the one hand, and also between Nigerians and non-Nigerians on the other hand, in the following instances:

  1. Where the parties specifically agreed that English law should govern the transaction;
  2. Where the party relying on customary law will be deemed to have agreed that English law should apply to the transaction;

Where the transaction is unknown to customary law.
The following cases support the application of English law in the circumstances:

Koney V. Union Trading Company Limited supra.
In this case, the plaintiff, a Nigerian, placed an order for the supply of a portable sewing machine from the defendant European company. A dispute arose. It was held that English law and the Statute of Limitation applied.

The marriage cases
Marriage cases and dispute over succession or inheritance:

  1. There is no clear or conclusive guiding principle, as to which law should apply.
  2. This is so because court decisions on this are conflicting thereby leaving unresolved issues.

The Mode of Marriage Decisions
In Cole V. Cole (1898) 1 NLR 15, Jogn William Cole, a native of Lagos, domiciled in Lagos, left for Sierra Leone in 1864 and the same year married the defendant named Mary J. Cole. They returned to Lagos and in 1866 Alfred Cole was born. In 1897 John William Cole died leaving his wife and son as survivors.

In 1898, A. B. Cole, his brother sued the defendant widow, for a declaration that he was the customary heir of his deceased brother, being born of the same father and that he was the trustee of the lunatic nephew, Alfred Cole.

On Appeal, the court held that where a Christian native married according to Christian rites, on his death intestate, succession to his property is governed by English law of succession, and which law should therefore prevail over the customary law of the community.

In Savage V. Mcfoy (1909) Ren. 504 Claudius Mcfoy born in Freetown, Sierra Leone settled in Lagos as a non-native and married the plaintiff under native law and custom. The court held that Claudius Mcfoy, a non-Nigerian lacked capacity to contract marriage in Nigeria according to native law and custom and consequently that the marriage was invalid. It is submitted that this case was wrongly decided, because the court is not in a position to dictate the form of marriage couple should contract.

In Fonseca V. Passman (1958) WRNLR 41, the court held that a European could not contract a valid marriage according to native law and custom in Nigeria and consequently that the plaintiff was not a lawful widow of the deceased for the purpose of administering his intestate estate.

“The manner of life” decision
In Smith V. Smith (1924) 5 NLR 105, a widow claimed the right to intestate estate of the deceased husband. The court upheld her claim and stated that though marriage according to Christian rites raises the presumption that the couple intended their lives and properties to be governed by English law and standards, however, the form of marriage was not conclusive evidence of the intention of the deceased, and that in deciding the law that is applicable, “the manner of life”, that is, the life style, lived by the deceased and his conduct with regard to the property in dispute.

In Ajayi V. White (1946) 18 NLR 41, the court followed the decision in Smith V. Smith supra and applied the manner of life style principle. Similarly, in Onwudinjoh V. Onwudinjoh the court followed Smith V. Smith while rejecting the decision in Cole V. Cole

The court had this to say:
“In an even more recent case in the Supreme Court, (Coker V. Coker(1943) 17 NLR 55) the case of Cole V. Cole was followed. I do not decide this case upon the principles laid down in that case, for I think that the case itself and the whole line of cases decided by reference to it, may one day be called to question”.

Reappraisal of marriage decided cases
The more popular view adopted has been that in the case of Cole V. Cole and the case following it;

  1. Decision in Cole V. Cole is meritorious and right on the ground that, where marriage is contracted under marriage Act, succession to property and other issues affecting the couple should necessarily be decided according to English Law.
  2. Where a person who is either subject to one system of law contracts a marriage according to another system of law, he is deemed to subject himself to the law regulating his mode of marriage and accordingly such law should regulate the succession or distribution of his estate upon intestacy.
  3. Furthermore, the decision in Cole V. Cole represents the social welfare principle or welfarist approach.
  4. It’s objective is to keep the intestate estate for the widow and children, to empower them to meet their needs.
  5. For while members of the extended family may want to claim a right to the intestate estate, no one or very few persons may want to shoulder the corresponding responsibility of taking care of the deceased’s immediate dependents and liabilities.
  6. The decision in Cole V. Cole represents the government and non-governmental organizations policy on the need to assist widows and their children.
  7. If this is born in mind, the decision in Cole V. Cole will continue to be followed in other cases in the future.
  8. Consequently, the rule in Smith V. Smith and the cases which follow it, do not have much merit. This is so, for it is not proper to contract marriage according to Church rites or English law and turn round to say that customary law should regulate the lives of the couple.
  9. The “manner of life” theory, and the decision in Smith V. smith and the cases following them are equivocal. The “manner of life” principle is usually applied by court, in instances where a man who married under the marriage Act had other children outside of wedlock.
  10. Court usually apply the manner of life principle to accommodate the children born outside of wedlock in the distribution of an intestate estate.
  11. More so, the Nigerian Constitution has confirmed legitimacy on such children under the fundamental right to freedom from discrimination.
  12. Unfortunately, people go through one form of marriage and live another lifestyle. When a couple goes through marriage according to native law and custom and then according to Christian rights or under marriage act, English Law then take precedence over customary law.
  13. People should not take with one hand and reject with another hand, that amounts to approbating and reprobating, it is shady and misleading.
  14. The law and the courts should not help people to equivocate (use unclear language especially to deceive or mislead someone.)
  15. To solve the problem, if a person goes through a particular form of marriage, but does not want the requisite law of that marriage to regulate his estate, then he should make a Will; spelling out the distribution of his estate or distribute all part of his estate he wishes to give out to his beneficiaries in his own life time instead of living it to court to begin the difficult work of probing the manner of life after his death intestate.
  16. Similarly, the decision in Savage V. Mcfoy and Fonseca V. Passman are disturbing. Consenting adults, whether or not they are Nigerians, should be free to celebrate a valid marriage under any of the systems of laws in the country where they are living.
  17. If the marriage in Savage V. Mcfoy and Fonseca V. Passman were not valid in Nigeria, where the couples lived and got married, they cannot be valid in any other country.

In any case, there is no provision of customary law or of any other system of law in Nigeria prohibiting a spouse who is not a Nigeria from marrying under such law.

  1. If any person choses to subject himself or herself to any system of law in Nigeria, by way of marriage, that is a personal choice and it should be respected.
  2. Niki Tobi, JSC had this to say in his book “Sources of Nigerian Law”. “The decision in Savage and Fonseca are equally worrying. Marriage is a voluntary contract or association between two consenting adults. One would have thought in the two cases, the parties were free to contract, notwithstanding their monogamous background. By the decision, the courts have dictated to the parties the type of marriage they ought to have contracted in the first place. It is submitted that the courts lacked the jurisdiction to so hold”.

When does customary law apply?
Customary law applies to a matter when there is a clash between English Law and Customary Law as a general rule, customary law will apply in the following situations:

  1. Where a transaction is subject to customary law, the rule of customary law will apply between natives as decided in Ogiamen V. Ogiamen (1967) NMLR 245, Iwuchukwu V. Anyanwu (1993) 8 NWLR pt. 311 p. 307; Agheghen V. Waghoreghor (1974) All NLR 74.

In Labinjo V. Abake (1924) 5 NLR 33 both parties were natives. The defendant who was a young girl and a minor under 21 years of age living with her parents was sued in a magistrate court for the price of goods sold and delivered to her for trading purposes in 1922 when the defendant was seventeen (17) or eighteen (18) years of age. The magistrate held that the Infant Relief Act 1874 which is in force in Nigeria Applied to the case, the girl being a minor, and dismissed the action on that ground.

On appeal by the plaintiff to the Divisional court, that is High Court, the decision was reversed. The defendant appealed to the WACA, which held that, the Infant Relief Act applied in Nigeria without modification in meaning. And also, that the trial court should find out the liability of a minor if any, under native law and custom for the price of goods supplied to her for trading purposes without the consent of her parent or guardian, and the lower court should apply such customary law, instead of English Common Law.

The case was therefore remitted to the Magistrate to take evidence and decide the case according to the liability or otherwise of an infant debtor under native law and custom.
In this case, Labinjo V. Abake supra, Combe CJ stating the general rule of law that:

“the general rule is that, if there is a native law and custom applicable to the matter in controversy, and if such law and custom is not repugnant to natural justice, equity and good conscience or incompatible with any local ordinance, and if it shall not appear that it was intended by the parties that the obligations under the transaction should be regulated by English law, the matter in controversy shall be determined in accordance with such native law and custom”.

As a general rule, where customary law is applicable to a transaction, the mere fact that the agreement is reduced into writing will not render customary law inapplicable to the transaction.


Where a native and non-native are involved in a transaction, and it appears that substantial injustice will be occasioned if customary law was not applied, the court will proceed and apply customary law. See the case of Alfa & Ors V. Arepo (1963) WNLR 95.

On the other hand, where a transaction is subject to customary law, and both parties are natives, the court does not need to refer to the substantial justice rule before it can apply customary law.

In Ajayi V. white (1946) NLR 41, the court refused to apply English law in determining succession to property, on the ground that substantial injustice would be occasioned. The court, applying native law and custom held that in default of a mutual agreement for partition being reached, the property should be sold, the proceeds paid into court and a scheme drawn up for its distribution among the parties entitled to share under customary law.

This case involved natives and so there was no basis for invoking the substantial injustice rule to justify the application of customary law. However, the application of customary law did not affect the merit of the case.

In Neleson V. Nelson (supra), two of the defendants were non-natives, the WACA relied on the substantial injustice rule and applied customary law in order to avoid a substantial miscarriage of justice, which in the view of the court would be occasioned by the application of English law.

The application of customary law instead of English law in order to avoid the miscarriage of justice is not totally free from criticism. The basis for criticism is that if a court applies customary law instead of English law in order to avoid the miscarriage of justice to one party; the argument will be: whether injustice is not thereby occasioned to the other party who lost the case?


Customary law also governs a transaction where law such as a statute stipulates that customary law should be applicable law. An example of a statute stipulating customary law as the applicable law is Section 3(1) OF THE wills Law Cap. 172, Bendel State as applicable in Edo and Delta States, which provides that all properties may be disposed of by Will subject to customary law. This provision was upheld in Idehen V. Idehen (1991) 6 NWLR pt. 198 p.382 SC; Agidigbi V. Agidigbi (1992) 2 NWLR pt. 221 p. 98 SC.
The areas where we have had clash of different systems of customary laws may be broadly divided into succession matters, land matters and other civil matters.

Succession matters – Internal Conflicts of Laws

Where there is a dispute as to which customary law will apply, the applicable law is:

  1. The customary law that is binding on the deceased during his lifetime. This means “personal law” of the deceased and his family unit, as the case may be. See Tapa V. Kuka (1945) 18 NLR 5. It is proper and fair that it should be the applicable law, for if the deceased were to give away his property inter vivos, that is, in his lifetime, he would most probably have done as according to his personal law. In many cases, the personal law of the deceased is the same law that is predominant in the locality.

In the absence of personal law applying, the law of the place where the property is situated applies, as was the case in Ekem V. Nerba (1947) 12 WACA 256, where it was held that under Nigeria law a person is free to change his personal law from customary to English law or vice versa and also from one culture group to another.

The issue of the personal law of a person is a question of fact to be resolved by evidence in each case. Read the following cases on this point: GBAMSON & ORS V. WOBIL (1947) WACA 181; UKEJE V. UKEJE (2001) 27 WRN 142 CA; OLOWU V. OLOWU (1985) 3 NWLR PT. 13 P. 372 SC

LAND MATTERS – Internal Conflicts of Laws

The general and first rule regarding land is that, the lex situs, that is, the law of the place where it is located applies.

The parameters that the courts apply to decide the applicable law are:

  1. Usually the law that will apply depends on the great extent on the nature of the civil matter as was decided in the case of Okoriko V. Otobo (1961) WNLR 48 and Re Effiong Okon Ata (1930) 10 NLR 65; Edet V. Essien (1932) 11 NLR 47.

The applicable law may be the law which was agreed to by the parties, or the law which is binding between them.
c. The law prevailing in the jurisdiction of the court, that is the lex situs – Amachree V. Goodhead (1932) 4 NLR 101.


As a general rule, where Islamic law is the law applicable to the transaction, then Islamic law applies as between Muslims – Tapa V. Kuka (supra).

On the other hand, English law will apply:
a. There from the express terms of a contract or from the nature of the transaction, it should be regulated by a law other than Islamic law, as in Adesubokan V. Yinusa (1971) All NLR 97.
b. English law also applies where the transaction is unknown to Islamic law.

The final authority in Islam is the Quran. So, in the event of any conflict between the Qiyas, Ijma and the Unna, the Quran prevails.
In succession matters, the applicable law is the personal law of the deceased which in most cases is the law binding between the parties. The applicable law may also be the predominant or prevailing law in the jurisdiction of the court – lex situs.


In a democracy, the constitution is supreme. Whenever, there is supremacy of the constitution, it means that:

  1. The constitution is the supreme law of the land. It is superior to all other laws and legislations in the country.

The constitution overrides every other law, decision or conduct, any law or act contrary to the provision of the constitution is null and void and of no effect whatsoever.
Section 1(1) of the CFRN, 1999 as amended stated that:
“This constitution is supreme and its provision shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

And Section 1(3) provides:
“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”.
See the celebrated case of Doherty V. Balewa (1961) All NLR 637; AG Bendel State V. A.G. Federation & 22 Ors (1982) 3 NCLR 1 SC.

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