CHANGE OF PERSONAL LAW UNDER CUSTOMARY LAW IN NIGERIA

THE personal law of a propositus follows him wherever he happens to be , for it has
extraterritorial effect . But by his independent act , a person could acquire a new domicile ,
if he has capacity . "

A Nigerian may find his personal status governed variously by one or more of federal law ,
State law , customary or Islamic law . It is insufficient to establish

that a person has a Nigerian domicile ; it must further be ascertained what law the court
would apply to determine his status depending on his religion or the customary law of the
community to which he belongs , or the law of the State he has chosen as his domicile . Thus
, it is difficult to regulate personal status under one system of law .

Subjection to Customary Law

To be automatically subjected to a system of customary law , a person must belong to the

group to which that system of law is applicable at birth . The cus tomary law imposed upon
a child at birth applies to him throughout his life , but the situation may arise where the
child is disowned by his father ( where custom ary law so permits ) ; or the person may be
ostracised from the community to which he belongs . Does he in such a situation become a
wanderer not subject to any customary legal system ?

With contemporary technological development and better communications networks ,

constant movement of persons from rural areas to urban centres is now a common
phenomenon . It is no longer strange to find a person in a part of the country other than
that of his ethnic origin . The person might eventually develop a sense of belonging to the
new community in which he finds himself . To deny him the benefit of the legal rules of his
chosen community if he desires to be subject to them is to frustrate his justified
expectations .

It could be assumed that since Nigerian law permits the acquisition of a new domicile of
choice , it should be possible for a person to subject himself to a dif ferent customary law
from that of his origin . This argument has statutory sup port . The law does not forbid " any
person " from deriving benefit from the application of native law and custom . " But the
statutes stop short of making express provisions on how this could be done .
In Yinusa v . Adesubokan Bello J ( as he then was ) held , inter alia , that :

subject to any statutory provision to the contrary mere settlement in a place , unless it has
been for such a long time that the settler and his descendants have merged with the natives
of the place of settlement and have adopted the ways of life and customs , would not
render the settler or his descendants subject to the native law and custom of the place of
settlement .

A lengthy residence in a place without more , is not conclusive as to whether the propositus
would want his affairs to be governed by the law of the place in ques tion . Neither is a short
residence conclusive of a contrary intention . The resi dence may in fact be for a few days ,
yet still be operative , if the propositus has an intention to be subjected to the law of the
place .

However , the cases have failed to provide the indices for measuring the level of assimilation
which could subject a propositus to the customary law of a com munity other than that of
his origin .

In Tapa v. Kuka' a Nupe Muslim of Bida origin dicd intestate, leaving prop-

erty in Lagos. The court held that the personal law of the deceased was Islamic

law prevailing among the Nupe tribe and it should apply to his estate despite his

Also, in Re Estate of Aminatu Alayo, A.-G. v. Tunkwasel the deceased, an

ljebu Mohammedan, died intestate. She was married according to Muslim rites

and there was no divorce up to the time of her death. The parties were divided

sto whether the residuary estate should be distributed in accordance with

Mohammedan law or jebu natve la and custom, ne cour held that the latter

Supreme Court decided the case of Olowu v. Olowu. !

. The Olowu Case

The issue before the court in Olowu was the determination of the deceased's

personal law at the time of his death. The deceascd, Adeyinka Ayinde Olowu,
was the father of the parties in the case. He was a Yoruba of lijesha origin by

Before his death he acquired considerable business interests in Benin City and

he married Benin wives, who bore him children. During his lifetime he applied

to the Oba of Benin (the traditional ruler) to be "naturalised" as a Benin sub-

ject, that is, to be conferred with a Bini status under the Benin native law and

custom. The Oba consented and, in the presence of Benin Chiefs, the deceased

The question before the court was whether succesion to the deceased's intes

tate estate should be governed by the Benin native law and custom or its ljesha

counterpart. The trial judge found that the deceased had become a Bini by

"naturalisation"; thus his personal law had become Benin customary law, which

should govern the distribution. The Court of Appeal affirmed the decision.

would make an expres declaration on the possibility of acquiring a new custom-

ary law, and how this could be done.

The Court, in a unanimous judgment, held that the deceased had properly

become a Benin subject by "'naturalisation" and that the succession to his

intestate estate should be governed by Benin customary law. In giving judicial

that: "this simply means that a person of one tribe or of one cultural group my

adopt the culture of another and entirely different group"4

The Supreme Court's decision in Olowu is significant in that it laid down for

the first time a method by which a person could voluntarily change the custom-

ary law applicable to him for the determination of his personal affairs

However, if we accept the decision as it is, a question must necessarily follow.

Is the mere declaration by a propositus of his intention to change his personal law coupled
with a positive act of " naturalisation " sufficient to establish a change , or is there any need
to go behind the positive act to determine whether the propositus was motivated by any
selfish interest ?

Though motive may be immaterial , it goes a long way in proving intention . The deceased in
Olowu could not have acquired properties in Benin as a non native . At the trial the parties
contended that their father ( the deceased ) always applied Yoruba ( Ijesha ) custom at
home . This contention could be sup ported by the fact that the deceased's children did not
have Benin names ; rather , they have typical Yoruba names.17 All these factors may
indicate how far the deceased had " acculturised " to warrant his intestate succession being
gov erned by Benin native law and custom .

In order to effect a change of personal customary law , it has been suggested that we apply
analogously the rules of the common law concept of domicile to the customary law of origin
of the propositus . Thus , it will be assumed that to change the customary law of origin ,
overwhelming evidence is required . This proposition has the advantage of not subjecting
any person to a customary law other than that which he wishes to govern his affairs . A
Yoruba man may reside in Igboland for a long time yet may not wish that his personal affairs
be made subject to Igbo customary law prevalent in his area of settlement . Thus over
whelming evidence is required to establish that a Yoruba man has acquired the 19
customary law of the Igbo people .

In the Supreme Court's judgment in Olowu , Obaseki JSC reviewed situations where people
have become part of a community other than that of their origin without any ceremony of "
culturalisation " . According to his Lordship , " they settled and become assimilated into the
community " If his Lordship was con tending that a change of personal law can arise only
after the propositus had become assimilated into his new community , he should have
provided the indices for measuring the level of assimilation .

Conclusion

The overriding consideration in establishing a change of customary law should be the

intention of the propositus . This could be established by a consideration of all the
circumstances of a case , rather than whether the propositus had been assimilated through
long residence or had acquired a new status through a posi tive act of " naturalisation " . As
an Indian court pointed out : ²

a court can and does find the true intention of men lying behind their acts , and can
certainly find from the circumstances of a case whether a pretended conversion was really a
means to some further end .

References

1. Personal law is that which determines the issues affecting a person as an dividual ; e.g.
capacity , marriage , divorce , legitimacy , succession , etc. See E. Rabel , The Conflict of Laws
: A Comparative Study ( 1958 ) , p.109 .

2. At common law , a person's domicile connects him to a given legal district , the law of
which regulates his personal status . See Udny v . Udny ( 1869 ) L.R. I Sc . & D. 441 .

3. Ibid .

4. See e.g. s.13 of the High Court Law , Cap.80 , 1973 Laws of Lagos State ; s.13 , Cap . 44 ,
1978 Laws of Ogun State .

5. [ 1966-69 N.N.L.R. 97 , 99 .

6. See Ramsey v . Liverpool Royal Infirmary [ 1930 ] A.C. 588 .

7. See Bell v . Kenedy ( 1868 ) L.R. 1 Se . & Div . 307 , 319 .

8. See Fabbender v . A.-G. [ 1922 ] 2 Ch . 850 ; also Whise v . Tenant 31 W. Va . 792 , 8 S.E.
596 .

9. Hendry and Wood , op . cfr . supra n.7 , at Chap.10 .

10. Selected Documents , supra n.8 , at p . 137 and see Mann ( Studies ) , op . cit . supra n.4 .
at p.683 11. See Mann , idem , p.690 .

12. There is no reported precedent of a similar act of "naturalisation".

13. Also referred to interchangeahly as "culturalisation" or "'acculturation by the

14. [1985] 12 S.C. 84, 155.

15. See G. W. Bartholomew , " Private Interpersonal Law " ( 1952 ) 1 1.C.L.Q. 325 , 340 .
16. [ 1985 ] 12 S.C. 84 , 155-156 .

17. Idem . pp.126 and 132 .

18. L. 0. Agbede , " Personal Law and Personal System of Law : Synthesis on Sym biosis " , in
Omotolla and Adeogun ( Eds . ) , Law and Development , p . 125 at p.139 .

19. See Casdagli v . Casdagli [ 1919 ] A.C. 145 .

20. [ 1985 12 S.C. 84 , 101 .

21. Rayeka Bibi v . Anil Kumar , cited by Bartholomew , op . cit . supra n.15 .