Succession matters. Where there is a dispute as to which customary law will apply, the applicable law is:
- 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 – Succession matters
The general and first rule regarding land is that, the lex situs, that is, the law of the place where it is located applies.
OTHER CIVIL MATTERS
The parameters that the courts apply to decide the applicable law are:
a. 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.
b. 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.
ENGLISH LAW AND ISLAMIC LAW
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:
- 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.
- English law also applies where the transaction is unknown to Islamic law.
DIFFERENT SCHOOLS OF 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.
THE CONSTITUTION AND OTHER LAWS
In a democracy, the constitution is supreme. Whenever, there is supremacy of the constitution, it means that:
- 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.