INTERNAL CONFLICT OF LAWS *

Introduction

In Nigeria, there is a co-existence of two or more systems of law arising from

the historical antecedent as a nation. Before the advent of the British rule in Nigeria,
the various ethnic groups which later formed the nation, Nigeria had their own
internal system of laws which for all intent and purposes will be referred to as
customary law. These laws couched as native law and customs were operational in
all the various ethnic groups comprising the entity now known as Nigeria. 1 These
laws, which were known or described as mirror of accepted usage, 2 varies from ethnic
group to another. Even within a particular ethnic group, there were possibilities of
divergent rules of customs and practices among the people of that particular ethnic
groups. These customary laws, nevertheless, have contributed immensely to the
development of the Nigerian Legal system. 3 The rationale behind this divergence is
anchored on the concept that customary law is dynamic in nature. 4 The degree of
dynamism depends on a particular ethnic group because some ethnic groups are
homogenous in nature while some are heterogeneous. In a case of homogenous
society, the conflict of law rules is rare in its sphere of operation while in
heterogeneous society the tendencies for conflict of law rules abound.

Nigeria is a multi-lingual country with diverse, varied and various ethnic

groups, cultures and traditions.5 This type of society certainly gave rise to conflict
problems in our laws, particularly when the legal system operates a plurality of laws. 6
1
* Isaac Olutoyin BABATUNDE. LL.B (Hons) Benin, LL.M, M.Phil, Ph.D. (Ife) B.L.
Department of Jurisprudence and International Law, Faculty of Law, Ekiti State University, Ado–
Ekiti.
Before the country was amalgamated by the then Colonial master, Lord Luggard, and named Nigeria
by his wife, the entities which existed then were in the nature of pockets of villages, empires and
kingdoms. Notable among them were the Oyo Empire in the South West, Benin Kingdom in the Mid-
western region, Kanem-Bornu Empire in the Northern part.
2
See Bairamian, F.J in Owoniyin v. Omotosho (1961) I All N.L.R 304. This definition was adopted by
the Supreme Court of Nigeria in Kimdey and Other v. Military Governor of Gongola State and
Others (1988) 2 N,W,L,R (Pt 77), p 445; Zaidan v. Mohssen (1873) 11 S.C.1 at 21.

3
See I.O. Babatunde (2014) “People Perish for Lack of Knowledge: Revisiting the Role of Custom in the
Development of Nigerian Legal System.” EBSU Journal of International Law and Juridical Review,
Abakaliki, Vol.3 pp, 85-94.
4
Lewis v. Bankole (1908) 1.N L R 81.
5
Nigeria has more than 250 ethnic groupings spanning across the entire nation having different
customs, norms and traditions differing from its neighbours. See J.O. Asein, Introduction to Nigerian
Legal System. (2nd ed, Lagos. Ababa Press Ltd, 2005) p 6.
6
When the Europeans conquered Nigeria in 1861, they introduced their Laws ( Principle of Common
Law, Doctrines of Equity and Statutes of General Application) and in the same vein allowed customary

1
In Olowu v. Olowu,7 where an Ijesha man settled in Benin City, married a Benin
Woman, took chieftaincy title in Benin, went through a process of acculturation to
“become” a Benin man, acquired lots of landed properties and died in Benin. Upon
his death intestate, the question for determination was whether his properties will be
devolved in accordance with Yoruba Custom or Benin custom. The Supreme Court
held that although Nigeria is one single nation, the presence of different and diverse
ethno-cultural groupings and consequently multifarious rules of customary laws,
makes the presence of conflict of laws problem inevitable. Oputa, JSC (as he then
was) laconically posited:

Nigeria being one nation, one country, will it not be

contradiction in terms to talk of conflict of laws in the same
country? Our former National anthem supplied the answer;
‘Though tribes and tongues may differ in brotherhood we stand,
Nigerians all.’ 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 laws.8
Internal conflict of law case may occur when a judge is required to choose
between two or more systems of law which ‘apply concurrently…without spatial
separation within a single territorial jurisdiction’. 9 For example, where Jacky Chan
from China entered into the purchase of Land, (lying, being and situate in Erinmope
- Ekiti) from Chief Opeleka, a local chief in accordance with Erinmope native law and
custom. Where there is a dispute on the land in question, the possible problem the
judge handling the matter may likely face is which law will be the applicable law in
the matter. Will it be English Land Law, Customary Land Law or The Law of India?
The commonest type of conflict-of-law problem involving customary law and another
system of law is that concerning English law and customary law as alternatives.

It should be pointed out that by virtue of the abolition of customary criminal

law, internal conflicts involving customary law can arise only in civil proceedings
except in few cases where the penal code defines particular offences by reference to
customary law.

laws to be applied in the Courts subject to certain limitations ( the repugnancy, incompatibility and
public policy tests)
7
(1985) 3 NWLR (Pt 13) 272
8
ibid, at p 402
9
See A . Allott. Essays in African Law (London, Butterworth & Co. Publishers Ltd, 1960) p 154.

2
 CATEGORIES OF INTERNAL CONFLICTS

Generally, different types of conflicts arise according to the parties involved.

Some notable ones are:

a) Where both parties are “natives” (Nigerians)

b) Where one party is a native and the other is not (a Nigerian and a foreigner)
c) Where both parties are non- natives (Non Nigerians)

In respect of the third, English law will apply automatically while the first and
second situations will be discussed one after the other.

Definition and Meaning of Parties Involved in Conflict of Law

Cases

The various laws employ different nomenclatures to refer to the parties likely
to be involved in conflict cases. While the states from the former Western Region
refer to “Nigerians” and “non-Nigerians”. 10 Those from the former Easter Region
refer to "persons of Nigerian descent," 11 while those from the former Northern
Region refer to “Natives”.12 The word native is defined broadly to include persons
whose parent or parents was a member (or members) of a tribe indigenous to any
part of Africa and the descendants of such persons.

A native implies a person of Nigeria whose parents are members of the tribes
indigenous to Nigeria and their descendants while a native foreigner means any
person not being of Nigeria whose parents are members of a tribe or tribes
indigenous to some parts of Africa, a descendant of such persons (this covers
Africans from Gambia, Mali etc.) persons of half - blood, that is, either father or
mother is an African. Can a company or corporation be a native? The answer is in
the negative. Only natural persons can be a native.

CASES BETWEEN NATIVES AND NON- NATIVES

10
Section 12(2) of the High Court Law, Cap 44, Laws of Western Nigeria. The following states broke
out from Western Region. They are: Oyo, Ogun. Osun, Ondo and Ekiti.
11
Section 22(2) of the High Court Law of Eastern Nigeria No 27, of 1955. This now comprises of the
modern day states in the South East and South – South with the exception of Edo and Delta States
12
Section 34(2) of the High Court Law of Northern Region, No 8, of 1955. Norther Nigeria of
yesteryears now comprises of the modern day 19 States in the Northern Nigeria

3
 The law governing transactions between natives and non-natives is contained
in Section 13(2) of the High Court Law of Ekiti State13 which provides that:

Any such customary law shall be deemed applicable in causes and

matters where the parties thereto are Nigerians and also in causes
and matters between Nigerians and non-Nigerians, where it may
appear to the court that substantial injustice would be done to either
party by a strict adherence to any rules of law which would otherwise
be applicable.
From the above provision of the law, the general rule is that in cases between natives
and non- natives, English Law applies. In Koney v. Union Trading Company,14 the
plaintiff was an uneducated African carpenter who ordered for a sewing machine
from a European company. On delivery, a written agreement where the defendant
agreed to sell the machine but to remain the property of the defendant until full
payment was pain was entered The machine was not fit for the purpose for which it
was meant for, so the machine was idle owing to the sickness of the plaintiff. When
the plaintiff got well, he returned the machine but the deposit that he paid was not
refunded. In an action in 1933 for damages and refund of money, the defendant
relied on English Statute of Limitations, because the matter was Statute barred (1924
– 1933) and the plaintiff in reply contended that English law should not govern the
case, relying solely on the ground that he was an illiterate African. The court held
that under the relevant statutes coupled with the fact that the defendant was not an
African made English law applicable. Kingdon, CJ averred as follows:

In cases between natives and non-natives, the onus is upon the

party seeking to apply “such native customary law” to satisfy
the court “that substantial injustice would be done to any party
by a strict adherence to the rules of any laws other than native
“customary law.”15
This general rule is subject to only one exception. The exception is that
English law will be EXCLUDED where its application will occasion substantial
injustice to either of the parties. In Nelson v. Nelson,16 by a death-bed disposition,

13
Cap 113, Vol. 3, Laws of Ekiti State of Nigeria, 2010. Similar provisions are contained in the
various High Court Laws of other States in Nigeria, For example, that of Osun State was
contained in Section 13(2) of the High Court Law, Cap 50, Volume III, Laws of Osun State of Nigeria,
2002.
14
(1934) WACA 23
15
ibid, p 194
16
(1951) 13 WACA 248

4
recognized by native law and custom, the plaintiff’s father left a certain self-acquired
property to the first defendant, his eldest son to take charge on behalf of himself and
all the children of the deceased. A portion of the land was taken by government and
with part of the compensation money, the first defendant purchased the land in
dispute, taking title in his own name by a deed of conveyance in English form. He
then sold the land to the third defendant who leased it to the second defendant. In an
action by the plaintiffs for a declaration of title to the land, and recovery of
possession against the second and third defendants, the issue for determination was
whether it was English law or customary law that governed the relationship of the
parties. The court held that the original disposition of the appellants father clearly
manifested an intention that his children should have a joint but exclusive interest in
the land, and to apply English law to the transaction subsequent to the death of the
father would defeat the intention of the testator and that, although the second and
third defendants were non-natives, native customary law should apply in order to
obviate a substantial miscarriage of justice.

CASES BETWEEN NATIVES

S. 13(1) of the Ekiti State High Court Law 17 provides that the Court is enjoined
to "observe and enforce the observance of every local custom and shall not deprive
any person of the benefit thereof”. The general rule is that cases between natives are
governed by customary law. In Labinjoh v. Abake,18 a girl of 17 years of age was sued
for certain trade debt she raised. The defence of Infant Relief Act 1874, which was an
English Statute of General Application was raised. Under such law, the particular
debt was unenforceable against an infant. Both the trial judge and the divisional
court relied on the Act and gave judgment in favour of the infant. On appeal, the
court held, inter alia, that the nature of the case brought by the appellant was one
which native laws and custom could apply and consequently ordered that the case be
tried again by the lower court.

Similarly, in Alfa v. Arepo,19 the court stated that the mere fact that an
agreement is reduced into writing couldn’t make the transaction outside the scope of
customary law if in actual fact the transaction is otherwise known to and is governed
by customary law. Note that in modern times, different customs apply in Nigeria and
17
Supra
18
(1924) 5 NLR 33
19
(1963) NNLR 95

5
whoever intends to rely on the application of the particular custom must prove that
such customary law principle is widely accepted among the people of that
community. See section 16 of the Evidence Act, 2011, so that where both parties are
of that community such rule and custom may be applicable to determine the dispute
between them. But where one of the parties does not belong to that community, such
a custom or principle will not be binding on him.

EXCEPTIONS TO THE RULE

Ordinarily, natives are enjoined to honour and obey customary law and where
it will not occasion ‘miscarriage of justice’. It will be automatically applicable to
dispute between the two parties, but there are some exceptions to the rule. Section
13(3) of the High Court Law of Ekiti State20 provides that:

No party shall be entitled to claim the benefit of any customary law, if

it shall appear either from express contract or from the nature
of the transactions out of which any suit or question may have
arisen, that such party agreed that his obligations in connection with
such transactions should be exclusively regulated otherwise than by
customary law or such transactions are transactions unknown
to customary law
From the above enactment, three clear situations could be discerned as
circumstances under which, despite the fact that the parties are natives; their
transactions will not be governed by customary law. The scenarios are; (i) from
express contract, (ii) from the nature of the transaction; and (iii) transactions that
are unknown to customary law. These exceptions shall be discussed one after the
other but for the purpose of clarity, the first and the second exceptions will be
discussed together while the third will be discussed separately.

(1) Express Contract or Nature of the Transactions

The first and second exceptions are lumped together in a sentence which
stipulates that "if it appears either from express contract or from the nature of
the transaction…that a party agreed that his obligations... should be exclusively
regulated otherwise than by customary law, customary law is not applicable. From
the simple interpretation of the above statutory provision, customary law will not
apply where the parties so agreed and where from the nature of the transaction it can

20
Cap 113, Vol.3.Laws of Ekiti State of Nigeria, 2010.
6
be inferred that English law will apply, customary law will not apply. Thus, if a party
contending that customary law applies had agreed that the transactions were to be
governed by English law, customary law is not applicable. Even where there is no
such express agreement, the court can infer from the nature of the transaction that
the party had agreed that customary law would not apply.

Where a party had agreed to be bound by English law in relation to a

transaction, he cannot claim the benefit of customary law in a dispute concerning the
transaction between him and another person who was not a party to that particular
transaction. In fact, he will be estopped. In Green v. Owo,21 the plaintiff bought a
piece of land at a public auction, he accepted documents of title prepared in English
conveyance terminology, and it was clear that he intended the whole of the
transaction to be controlled by English law. The defendant had overtly occupied the
land for nearly twenty years, and no one challenged his title. In an action for
possession, the defendant relied on 1833 Real Property Limitation Act. The plaintiff
refused contending that customary law should govern the transaction. The court held
that the plaintiff cannot revert to his customary rights against the defendants.

If a party who is contending that customary law applies to the case had agreed
that the transaction was to be governed by English law, customary law is not
applicable. In Griffin v. Talabi,22 this was a contract relating to sale of land which is
required to be governed either by customary land law or English land law but the
seller issued a receipt in favour of the buyer in this format:

We shall be ready to convey unto the said purchaser the

land aforesaid at any time that we may be called upon so
to do and that without delay.
Though, the trial court held that the transaction was to be governed by customary
law system, on appeal, the WACA held that from the nature of the intention as shown
on the written document that both parties had agreed that their transactions should
be governed by the English law.

Also, in Okoli v. Ibo23 where there was a dispute as to the supply of petrol
between two Igbos residing in Jos. While one of the parties owned a petrol station,

21
(1932) 36 NLR 36
22
(1948) 12 WACA 371
23
(1958) NRNLR 89

7
the other party was operating a transport business. While one of the parties
contended that since both of them were Igbos Igbo customary law should govern the
transaction. The other party contended that since both of them were residing in
Northern Nigeria, Islamic law should govern their transaction. The court held that
the nature of the business is better known to English system than customary law
system and therefore neither Islamic law nor Igbo customary law could apply in this
situation. In Apatira v. Akanke,24 this suit was brought by the plaintiff for probate of
the will of the Late Raji Thompson. Although, the testator was a native of Nigeria,
born, lived and died as a Mohammedan, it was contended that the will he made was
invalid having not comply with the provision of the Wills Act. It was held that the will
was intended to be a will according to English law.

Where a party has agreed to be bound by English law in relation to his

property, that agreement necessarily binds his successors in title but it does not bind
any other person who was not a party to the agreement.25

Marriage Cases

It is necessary to examine what one might call "marriage cases" because of

their peculiarities in relation to succession and inheritance. In Cole v. Cole,26 one
Cole, a Lagosian, went to Sierra Leone where he married the defendant (Mary) and
had a child after contracting a Christian marriage. On his death, the younger brother
of the deceased brought an action to oversee his brother’s estate. On appeal it was
held that English law of succession applies. In Savage v. MacFoy,27 the defendant, a
descendant of a rescued slave born in Freetown, a non-native, settled in Lagos and
married the plaintiff, according to native law and custom. After his death, this action
about the inheritance of his property arose between the plaintiff and MacFoy’s
brothers and sisters. The court held that the marriage was invalid on the ground that
the defendant lacked capacity to contract marriage under native law and custom.
Osborne C.J . stated the position of the court that:

… the mere fact of MacFoy having made Lagos his domicile of

choice would not necessarily make him subject to or given the

24
(1944) 17 NLR 149
25
See Villars v. Baffoe (1909) Ren 549; See also Bakare v. Coker (1935) 12 NLR 31.
26
(1898) 1 NLR 15
27
(1909) Ren 504

8
 benefit of native law and custom, and his ordinary relations
would be governed by English and not native law.
He concluded:

… take advantage of a local custom to the benefit of which he

was not entitled, frankly admitting that he preferred
polygamy. I have already stated that I do not consider he was
competent to contract marriage according to native law and
custom, and I therefore hold that the union between him and
the plaintiff is not such a union as can be recognized as valid
by this court.
In Fonseca v. Passman,28 the court was of the opinion that a European domiciled in
the country of his nationality, cannot contract a valid marriage in accordance with
native law and custom in Nigeria.29

Comments

Some learned writers have questioned the rationale for arriving at these
decisions. The criticism stems from the courts pronouncement on the veracity or
otherwise of a non- native to contract customary law marriage in Nigeria. As a matter
of fact, it is not competent for the court to dictate the kind of a marriage a person can
contract. This exercise by the court is considered as stretching their jurisdictional
competence beyond the acceptable limit. While some could be said to be decided per
incuriam, Prof. Niki Tobi said that the decisions of the court in Cole, cannot be
supported on any rational basis and held that the decision in Savage and Fonseca
cases was equally worrisome.30

The rule in Cole’s case was however departed from in some cases and
particularly in Smith v. Smith.31 The court was not prepared to accept the blanket
conclusion in Cole’s case but rather invoked the "position of life" principle. However,
the principle of law in Cole v Cole was never referred to in Olowu v Olowu.32

(2) Transactions Unknown To Customary Law

The third exception to the general rule that customary law governs disputes
between Nigerians is that no party is entitled to claim the benefit of customary law if
28
(1958) WRNLR 41
29
See also Smith v. Smith. (1924) 5 NLR 105
30
N. Tobi, supra at p 160.
31
Supra.
32
Supra.

9
it appears that the transaction involved are unknown to customary law. Where both
parties enter into a transaction that is unknown to customary law, the English law
will automatically apply to determine the dispute between the two parties
irrespective of the desire of the parties or either parties. In such circumstances,
customary law is NOT applicable because customary law has no benefit of its own to
bestow upon any person in relation to the transaction.

The question that may present itself for determination is, when will a
transaction be unknown to customary law? The answer seems not to be
straightforward. Park was of the view that there was indeed a time when the use of
writing was not one recognized by customary law. 33 As a matter of fact, that position
has changed.34 In Apatira v. Akanke,35 where the issue involved for determination
was the validity and interpretation of the provisions of the Wills Act. The court held
inter alia that the making of a will is unknown to customary law and that any
technical point arising from making a will must be interpreted according to the
English Wills Act. The court therefore rejected the request of one of the parties that
Islamic Law on Wills should be applied as the testator was a Muslim. In Salau v.
Aderibigbe ,36 where the subject matter of litigation was the issue involving damages
arising from a Hire-Purchase transaction in a Customary Court, Charles J37 copiously
espoused the position of the law when he posited that Customary law related to and
therefore governed those things:

...which were closely connected with the customary way of life and
which existed or were usually kept in the locality in which their
owners or possessors lived, such as land and simple chattels of a
domestic or agricultural use which were normally confined to the
area in which the customary law was operative...
Continuing, he averred:
… with reference to transactions which appear from their nature to
be unknown to that law should, I think, that the object of the
legislation was to prevent the extension of existing rules of
customary law in respect of familiar transactions by logic and
analogy to transactions which are essentially different either because
of their inherent novelty or of the novelty of their subject matter…

33
A.E.W. Park, The Sources of Nigerian Law ( London, Sweet & Maxwell,1963) p 109
34
See the dictum of Waddington J in Rotibi v. Savage (1944) 17 NLR 77. See also Alfa v. Arepo supra
35
(1944) 17 NLR 149
36
(1963) WNLR 80
37
Ibid at pp 86-87

10
He concluded:
…as a motor vehicle is a chattel of the new kind mentioned, so far as
customary law is concerned, the extension of customary law to
transactions in respect of it is forbidden by the disentitling provision,
in my judgment, and such transaction must remain outside the
cognisance of that law. The result is that the court below had no
jurisdiction over the matter. His judgment is a nullity.
Obilade, who although faulted the reasoning of Charles J in this judgment, 38
submitted that a transaction is unknown to customary law where the transaction is of
such a nature that the members of the community concerned do not consider it to be
subject to any of the existing customs accepted as binding upon them. Thus, where
the essential element of a transaction is a promissory note, the court would hold
that the transaction is unknown to customary law, 39 or where a conveyance in
English law form constitutes an essential part of a transaction, the transaction is
unknown to customary law. Green v. Owo.40

In the same vein, transaction that brothers on browsing on the internet or

service maintenance of GSM mobile telephone, Bill of Exchange, Issuance of Dud
Cheque etc. could be safely categorised as transactions unknown to customary law.

Conflict between English Law and Islamic Law

Prior to the 19th century Jihads in the Northern Nigeria, administration of

justice was based on customary laws of the local inhabitants. With the advent of the
Jihads of Uthman dan Fodio, Massina and that of Alhaji Omar, customary law in the
North gave way and ushered in Islamic religion which took place of Customary Law.
As submitted by Agbede, a practical lawyer of western orientation will not readily
accept Islamic law as ‘law’ stricto sensu for Islam is a complete way of life, a religion,
an ethical and legal system.41

38
He was of the view that the judge failed to consider flexibility as a characteristic of customary law.
He stated further that it is not correct that what determines whether a transaction is known to
customary law is the question whether the chattels to which the transaction relates were of a kind
normally confined in their use to a customary law locality. See Obilade, A.O Nigerian Legal System
(Ibadan, Spectrum Books Limited, 2007) p 153
39
See Bakare v. Coker (1935) 12 NLR 31
40
Supra.
41
I. O. Agbede, Legal Pluralism, op cit, p 158

11
 Islamic law derived its sources from four sources which are, The Qur’an, 42 the
Sunnah,43 the Ijma,44 and the Qujas.45 With the acceptance of Islam as a way of life, it
appears that the way English law affects customary law is the same way it affects
Islamic law.46 In cases between muslims, Islamic law applies. This like its customary
law counterpart has some exceptions.

A party will not be entitled to claim the benefit of Islamic law if it appear
either from express contract or from the nature of the transaction…that such party
agreed that his obligation in connection with such transaction should be exclusively
regulated otherwise than by Islamic law or that such transactions are unknown to
Islamic law. The practical demonstration of this principle came up in Yinusa v
Adesubakan.47 In this case, the testator, a Muslim, though, born in Omu-Aran in
Ilorin Province, was brought up and educated in Lagos. He subsequently moved to
Zaria where he settled with his family, lived and later died. He made a Will in
accordance with the Wills Act 1837. In an action to set aside the probate on the
ground that the testator being a Muslim lack the capacity to make a Will under the
Wills Act 1837, the Supreme Court (on appeal) held that the applicable law was the
Wills Act and not Muslim law.

Conflict between Different Systems of Customary Law

The problems of material conflicts of laws arise in Nigeria whenever there is a

clash between two or three different customary laws and the court is faced with the
task of determining and choosing which of them to apply in the case before it. For
instance, Femi, a Yoruba man, married Ekaete an indigene of Akwa Ibom State, lived
all their lives in Bauchi and died intestate in Bauchi. How would his properties be
distributed on his demise. Is it Yoruba, Efik, or Islamic native law and custom that
will govern the transaction? Where a court of law is faced with this problem, much
depends on the peculiar facts and circumstances of such case. In view of the diversity
of customary law and the different statutory provisions, the positions of the law in
cases of internal conflicts of law is not exactly similar but there is a large measure of
uniformity in most areas which shall be examined as follows.
42
The Holy Book which is a direct Injunction from God
43
The facts of the Life and Teachings of Prophet Muhammed and His sayings
44
The consensus of Islamic Scholars
45
Analogical reasoning’s from the Qur’an and the Sunnah
46
See Tobi N, Sources of Nigerian Law, ( Lagos, MIF Professional Publishers,1996) p164.
47
(1968) N.N.L.R 97

12
1. Succession Matters

In succession matters, the law applicable can be found in Section 20 of the

Customary Courts Law48 of Ekiti State which provides that “ In causes and matters
arising from inheritance the appropriate customary law shall, subject to subsections
(1) and (4) of this section, be the customary law applying to the deceased.” 49 The
general accepted position therefore is that where local statutes and English law do
not apply, the applicable law is that binding on the deceased. In Tapa v. Kuka,50
plaintiff were the cousin and sister of Abdulai Tapa, a Mohammedan and a Nupe of
Bida in Niger State. He died intestate leaving house property in Lagos. He was
survived by the parties and there was no brother. The plaintiffs applied for a grant of
letter of administration but the defendant, who was the widow of the deceased,
entered a caveat. It was held that the law to be applied was the personal law of the
deceased namely Mohammedan law prevailing amongst the Nupe tribe and that,
there being no brother of the deceased, a joint grant appearing unnecessary, his
Sister, the 2nd plaintiff was alone entitled to a grant of letters of administration. 51

Where the personal law of the deceased is unknown or is not established

before the court, the law prevailing in the area of jurisdiction of the court should be
applied.52From the above, the applicable law is said to be either the law binding
between the parties or the law prevailing in the area of jurisdiction of the court. It is
not easy to identify the law prevailing in the area because the expression is vague and
not capable of a precise legal meaning. In R v. Ilorin Native Authority ex Parte
Aremu,53 when the Court was faced with whether the law prevailing in the area was
Muslim law or Yoruba customary law, the court held that the term "prevailing"
meant "predominant."

2. Land Matters

The law applicable in matter concerning land is primarily that of the place
where the land in question is situate. 54 This is in line with the universal preference

48
Cap C 19, Vol. 2 Law of Ekiti State of Nigeria, 2010. Similar provisions were contained in the
Customary Courts Law of the various states in the federation.
49
Section 20(2).
50
(1945) 18 NLR 5
51
See also Ghamson v. Wobill (1947) 12 WACA 181 and Olowu v. Olowu Supra.
52
See Ekem v. Nerba. (1947) 12 WACA 258.
53
(1950) 20 NRNLR 39.
54
See Section 20 (1) of the Customary Court Law of Ekiti State.

13
for the lex Situs. Where, however, the customary law applying to land prohibits,
restricts or regulates the devolution on death to any particular class of persons of the
right to occupy such land, it shall not operate to deprive any person of any beneficial
interest in such land (other than the right to occupy the same) or in proceeds of sale
thereof to which he may be entitled under the rules of inheritance of any other
customary law.55

3. Other Civil Matters

The customary law to the applied in every civil matter is well defined in
Section 20(4) of the Customary Court Law of Ekiti State which provides:

Subject to the provisions of subsections (1) and (2) of this section –

(a) In civil causes or matters where –

(i) both parties are not natives of the area of jurisdiction of the court; or
(ii) the transaction the subject of the cause or matter was not entered into
in the area of the jurisdiction of the court; or
(iii) one of the parties is not a native of the area of the court and the
parties agreed or may be presumed to have agreed that their
obligations should be regulated, wholly or partly by the customary
law applying to the party,
the appropriate customary law shall be the customary law binding between
the parties.
In some states, the applicable law is the customary law agreed to by the
parties or intended to be agreed by the parties. In some other states, the applicable
law is either the law binding between the parties or the law of the area of the
jurisdiction of the court, and yet in some other states the matter is left mostly to the
discretion of the court.

Where both parties are subject to the same customary law, the court will apply
the one in the area of the court’s jurisdiction. Where both parties are subject to a
single law different from the one in the area of the court’s jurisdiction, the court
should apply the law that is common between the parties.

Where both parties are subject to different laws, then the court should apply
the law that the parties agreed or may be presumed to have agreed upon to regulate
their transaction. Where there is no express or implied choice of a particular
customary law, the court should adopt the customary law to which the parties, the

55
See Section 20(4) supra.

14
subject matter and the entire transaction are most significantly connected. In
Osagwu v. Soldier,56 two Ibos from Okigwe in Eastern Nigeria were parties to a civil
proceedings before an Alkali Court in Kaduna. The Court decided the matter based
on Muslim law being the law prevalent within the jurisdiction of the court. On appeal
to the High Court, it was held that in Kaduna State, there is no native law and custom
which prevails in the area of the jurisdiction of the court. It therefore lacks the power
to try the matter by Moslem law. The Court also held that, instead of trying the case,
the option open to the court would have been to transfer it to the Mixed Court under
Section 34 of the Native Courts Law.

REMARKS

It is expedient to note that some of the decided cases based on their facts may not
actually represent the true position in recent times. What is imperative is that where
both parties are natives, i.e., Nigerians, what determines the choice of law that is
applicable to their dispute or transaction is the expression manifested by the two
parties and the court in determining the dispute arising thereof set out to uphold
fairness and justice to every case.

(1) Where the application of customary law will cause miscarriage of justice,
the English law or put more appropriately, the municipal law will apply.
(2) Where one party is a native and the other is not. The general rule is that
English law will apply.
(3) Where both parties are non-natives, the general rule is that English law
will apply.

There are some exceptions for the two categories, where the application of
English law to both categories will result to injustice, the court is at liberty to apply
any principle of law, be it customary or otherwise, to resolve the dispute under the
umbrella of doing justice. The court is empowered by inherent powers provision to
do so, i.e., to apply fairness and justice. Similarly, the court is obliged to apply the
doctrine of public policy to set aside the application of English law which would have
otherwise been applicable to such a dispute.

In the light of the foregoing, it is more appropriate nowadays to classify

parties to disputes as either Nigerians or non-Nigerians of which the above three
stated categories will still be relevant in determining Rights, Duties and Obligations
of the parties in a dispute. Within the operation of laws in Nigeria, conflict of laws
56
(1959) N R N L R 39.

15
arises at all sphere of laws at the customary law level. Conflict arises between pre-
dominant customs and peculiar customs which the customary court of appeal of each
state is empowered to harmonize and resolve.

While under English laws which is better referred to as municipal laws

nowadays comprises of federal and state legislation. The High Courts of the states
and the Federal High Court exercise jurisdiction on their respective capacity in
relation to disputes arising from both sides which eventually gets to Court of Appeal
for stream lining and to the Supreme Court essentially for harmonization and
resolution.

On the international level, the State High Courts are empowered to recognize
and enforce foreign judgment brought before it and where a matter is subject to
municipal and foreign element, the courts are enjoined under private international
law to apply conflict of law rules in determining disputes brought before them, taking
into consideration national laws, foreign laws, treaties and Conventions with the
paramount goal of doing justice to all parties concerned in the order of above stated
categories.

BIBLIOGRAPHY

Agbede, I.O (1991) Legal Pluralism. Ibadan, Shaneson, C.I Limited.

Allott, A. (1960) Essays in African Law. London, Butterworth & Co. Publishers Ltd.

Asein, J.O (2005) Introduction to Nigerian Legal System 2nd ed, Lagos, Ababa Press
Limited.
Beredugo, A. J (2009) Nigerian Legal System: An Introduction Text. 3rd ed. Lagos,
Malthouse Press Limited.
Malemi, E (2009) Nigerian Legal System: Text and Cases. 3rd ed. Lagos, Princeton
Publishing co.
Obilade A. O (2011) The Nigerian Legal System, Lagos, Spectrum Law Series.
Park, A.E.W (1963) Sources of Nigerian Law, London, Sweet & Maxwell
Tobi N (1996) Sources of Nigerian Law, Lagos, MIJ Professional Publishers Limited

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