Internal Conflicts of Law in Nigeria’s Plural Legal System

Abstract

This article explores the conflicts of laws that occur in the Nigerian legal system. The Nigerian legal system is based on a plurality of laws emanating from different sources due to the country’s multicultural and multi-ethnic composition. This resulted in the coexistence of English law, Customary law and Islamic law. Although this legal pluralism is intended to accommodate Nigeria’s cultural and historical diversity, conflict arises particularly in transactions that are capable of being governed by more than one law or transaction between individuals subject to different laws.

Such conflicts are not confined to land and succession alone. It arises also in inheritance matters and other simple contracts or civil proceedings.

Introduction

Nigeria comprises 250 ethnic groups, each with its own distinct language, culture and values. This diversity resulted in the plurality of legal systems, as customary law developed within communities long before the colonial period. With the advent of British colonialism, English law was introduced and formally entrenched into the Nigerian legal system. In addition, Islamic law particularly in the northern region also functions along these other systems. Despite the fact this pluralism allows different communities to preserve their legal traditions, conflicts often manifest when two or more systems prescribe different rules to govern the same legal issue, raising complex questions about which one should prevail.

Oputa JSC in Olowu v Olowu (1985) 3 NWLR Pt. 13 272 stated that the tribe and tongue that differ, as alluded to in our national anthem, makes the problem of internal conflict inevitable. When such matters arise, the court has to determine which law ought to be applied in the specific situation based on the peculiar facts of each case and in the interest of justice.

Sources of Law in Nigeria

The three dominant sources of law in Nigeria are:

1. Customary law
2. English law
3. Islamic law

Customary law refers to the laws which are derived from the customs of the people. It is the oldest source which exists, existing before Nigeria was formed and even before the British arrived. For centuries, customary law was applicable across the various territories that made up Nigeria. Customary law continues to be applicable, although with some limitations, and it is only applicable in civil matters as section 36(12) of the constitution states that all criminal laws are mostly written and customary laws are mostly unwritten.

English law was introduced during colonial rule through the doctrine of reception in 1863, English law encompasses common law, doctrine of equity, and statute of general application in force in England as of January 1,1900.

Islamic law is a divine legal system derived from the Qur’an and Sunnah, regulating both spiritual duties and social relations of Muslims.

Conflict often arise due to the coexistence of these laws and they arise in different forms which includes:

– Conflict between English law and Customary law

– Conflict between Nigerians and non-Nigerians

– Conflict between native and non-native

– Conflict in land matters

– Conflicts between different systems or choices of customary law

– Conflict between English law and Islamic law

– Conflict between the constitution and other laws

CONFLICT BETWEEN ENGLISH LAW AND CUSTOMARY LAW

In general transactions, English law would apply either expressly or by implication: –

Express application occurs where the parties themselves have agreed that English law should govern their transactions irrespective of their personal law.

Implied application arises where, even without express agreement, the parties seeking to rely on customary law agreed that English law apply. To arrive at this conclusion, the court will consider the nature of the transaction, product involved and lifestyle and occupation of the parties.

Furthermore, English law will apply in transactions that are unknown to customary law. In the case of Salau v Aderibigbe (1963) WRNLR 80 which was about a hire purchase agreement, the court held that such a transaction was unknown to customary law, and therefore English law governed.

Conflict between Nigerian and non-Nigerian

English law will apply in transactions between Nigerian and non-Nigerian except where its application would result in injustice to any of the parties. In Koney v Union trading company (1934) WACA 33, the plaintiff was an educated African carpenter and the defendants were a European company. The defendant supplied the plaintiff with a portable sawing machine which they obtained from Switzerland to his order in October, 1924. On delivery, a written agreement under seal was entered into by the parties bearing the date 3rd November, 1924. By that agreement the defendant agreed to sell the machine to the plaintiff, but it was expressly provided that the machine should remain the property of the defendant until the full amount of the purchase price was paid. The machine turned out to be useless for the purpose for which it was intended in spite of the genuine attempt by both parties to make it work satisfactorily. The machine was lying idle for some months due to the plaintiff’s illness and when he found out that the machine was useless he reached out to the defendants and requested for the deposit which he made previously. The defendants took the machine back, but failed to return the deposit back to the plaintiff. The court took note of the facts of the case and decided that English law would apply because the application of customary law would cause injustice.

However, In Nelson v Nelson 13 W.A.C.A. 23 which involved a transaction between a native and non-native, the court refused to apply English law because its application would result in injustice.

When Customary Law will apply

Customary law would apply in some cases too, but only on the condition that it has passed the test of validity (repugnancy, incompatibility, and public policy) otherwise the court will not enforce it.

Cases where customary law will apply includes:

1. Customary law will apply in succession cases, if the deceased personal law was customary law. If, during the lifetime of the deceased, he lived in accordance with the native customs. For instance, he actively participated in cultural festivals and traditional practices of his community, the court will look at these facts and decide that the deceased personal law will govern. Conversely, where the deceased during his lifetime had migrated to another state or city and had assimilated into the lifestyle and the culture of that place and have enjoyed benefits under the system, the court will apply the customary law of the new domicile.

The question of what constitutes a person’s personal law is therefore, one of fact, determined based on available evidence.

The case of Babatunde O. Olowu v Olabowale A. Olowu (1985) 3NWLR Pt 13 372 centered on a dispute between two brothers over their late father’s house at No. 4 Wire Lane, Benin City. Their father, a Yoruba man who had naturalized as a Benin man, died intestate in 1960, leaving several children. His estate was distributed according to the Bini customary law and the distribution was upheld by the Supreme Court. The respondent, as the eldest surviving son, claimed exclusive ownership of the Wire lane property under the Bini customary law. He argued that as the first son he was entitled to inherit the house where his father lived and died. The appellant opposed, contending that the respondent, his brother, did not carry out the burial rites properly as required under the Bini custom and the property was not specifically listed in the distribution endorsed by the Supreme Court.

The trial court held that under the Bini customary law, the eldest son was entitled to the exclusive ownership of the house where the deceased had lived and died. The court awarded the property to the respondent and ordered the appellant (his younger brother) to vacate the house.

Where the deceased’s personal law cannot be determined, the court will apply the law applicable in that jurisdiction of the court.

2. Customary law will apply where a statute is made subject to a customary law or the statute provides that customary law will apply.
3. Transaction between natives: In transactions between natives, the general rule is that the customary law of that community will apply provided it has been subjected to the test of validity.

Exceptions

There are also exceptions to the instances where customary law will apply. They include: – where the parties have expressly excluded the application of customary law in their transaction.

– Where it can be inferred from the nature of the transaction that customary cannot apply. In Okolie v Ibo (1958) NRNLR 89, a contract for the sale of petrol was held to be covered by English law.

– Where a person has already taken benefit from English law, he cannot then rely on customary law.

– Where the transaction is unknown to customary law, English law will apply as seen in Salau v Aderibigbe (1963) WRNLR 80 (Supra).

CONFLICT IN LAND MATTERS

Disputes involving land matters carry peculiar rules under Nigerian law. The general rule is the lex situs rule which provides that the law applicable is the law of where the land is situated. This was also established in the case of Ukeje v Ukeje (2001) 27 WRN 142.

CONFLICT BETWEEN DIFFERENT SYSTEMS OF CUSTOMARY LAW Conflict may also arise when resolving disputes between two individuals subject to different customary laws. Where both parties are subject to the same customary law, the general rule is to apply the law common to the parties.

However, in cases where the parties are subject to different customs, the court will apply the law which the parties have expressly agreed to govern their transaction or the law that can be implied from the agreement to govern their transaction. If the court finds no express or implied choice of law in the transaction, the court will apply the law prevailing in the jurisdiction of the courts. In Osuagwu v Soldier (1959) NRLRN 39, both parties are Igbos who were residents in Kaduna, the court applied Islamic law which was the law prevailing in the jurisdiction of the court but on appeal, the court presumed that Igbo law ought to apply being that the parties are native of Igbo.

In all other cases the court will exercise discretion to determine which law is most appropriate in resolving the dispute.

CONFLICT BETWEEN ENGLISH LAW AND ISLAMIC LAW

In Nigeria, conflicts often arise between English law and Islamic law, particularly in personal matters such as marriage, succession, and inheritance.

Generally, in cases between Muslims who have accepted Islam as a way of life, Islamic law will apply. Where there are conflicts between different schools of Islamic law, the court will resolve such conflict by reference to the Qur’an .

However, where it can be proved by evidence that the person either by his conduct or lifestyle has taken benefit from English law, the court will not allow him to take benefit from Islamic law.

English law will apply only where there is express agreement or where it can be implied from the nature of the transaction or conduct of the parties.

Also, English law will apply where the transaction is one that is unknown to Islamic law.

CONFLICT BETWEEN THE CONSTITUTION AND OTHER LAWS

The Nigerian Constitution occupies the highest position in the legal hierarchy. Whenever a conflict arises between the constitution and any other law, the Constitution of the federal republic of Nigeria 1999 shall prevail by virtue of the doctrine of the supremacy of the Constitution.

This position is clearly provided in Section 1 (1), (2) and (3) of the 1999 Constitution of the federal republic of Nigeria:

Subsection 1: This constitution is supreme and its provisions shall have binding forces on the authorities and persons throughout the federal Republic of Nigeria.

Subsection 2: The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution.

Subsection 3: 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.

This supremacy clause ensures that all other laws derive their validity from the Constitution which is known as the Grundnorm.

In A.G. Ondo State v A.G. Federation (2002) 9 NWLR (Pt. 772) 222, the Supreme Court emphasized that no law or action may override the Constitution.

An exception to this doctrine is under a military system of government where the Constitution is fully or partially suspended and replaced with Decrees as the supreme law of the land.

Nigeria’s mix of English, Customary and Islamic laws shows our diversity, but it also brings confusion when the systems clash. People often face uncertainty in cases like land, inheritance,or contract because the rules don’t always align. While the courts have laid down guiding rules for resolving these conflicts, some issues are left purely to judicial discretion, and this can sometimes lead to inconsistency and even injustice. There’s a need for clear boundaries and reforms so justice is consistent and fair.

Conclusion

The Nigerian legal system, being pluralistic, inevitably gives rise to conflicts between English law, customary law, and Islamic law. While the courts have developed rules and principles to address these conflicts, their application is not always straightforward and often depends on the peculiar facts of each case. This reliance on judicial discretion, though sometimes necessary, can also create uncertainty and the risk of injustice. Ultimately, achieving fairness requires a careful balance between respecting cultural diversity and ensuring consistency in the administration of justice.

Reference(S):

– Osuagwu v Soldier (1959) NRNLR 39

– Ukeje v Ukeje (2001) 27 WRN 142

– Salau v Aderibigbe (1967) NMLR 349

– A.G. Ondo state v A.G. Federation (2002) 9 NWLR (Pt. 772) 222

– Olowu v Olowu (1985) 3 NWLR Pt 13 372

– Koney v Union trading company (1934) WACA 33

– Constitution of the Federal Republic of Nigeria (1999), s1(1)–(3)

– Nelson v Nelson, (1951) 13 W.A.C.A. 23

– Constitution of the Federal Republic of Nigeria (1999), s 36 (12)

– Okolie v Ibo (1958) NRNLR 89