Internal Conflicts of Laws

Since Nigeria is a country which has different sources of law where only local legislation is expressly stated to be above the others, it is almost impossible that there would be no conflict of laws. If a couple who had gotten married under customary law suddenly realize that they do not enjoy the same status of husband and wife under general law, it may be cause for panic. The different other situations like this one which could arise calls for special rules to know when customary law is applicable and which customary law is applicable with the existence of more than one.

While it is true that customary law in invalid if it contradicts a local legislation, in some cases a local legislation may provide for customary law as an alternative. The conflict is therefore more often with English laws and between two customary laws.

Different laws use different wordings to refer to parties likely to be involved in conflict cases. While the former Western region uses “Nigerians”, the former eastern region uses “descendants of Nigerians”, while the former northern region uses “natives” which has been broadly defined as persons who parent or parents was a member or were members of a tribe or tribes indigenous to any part of Africa and the descendants of such persons. Since it is not our concern the advantages or the disadvantages of the wide or narrow definition, the use of Nigerians and Non-Nigerians shall be adopted.

Cases between Nigerians.

In section 20(1) of the Cross River State High Court Law, 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 Supreme Court has interpreted this provision to mean that no person should be denied the benefit of customary law once it has passed the test of validity as long as that person is not a foreigner.

The general rule in matters involving only Nigerians is that customary law is applicable in matters involving only Nigerians as indicated by the Full Court in Labinjoh v. Abake. However, there are two exceptions which shall be discussed.

Exceptions.

The exceptions to the general rule are contained the High Court Laws of the states. Section 20(3) of the Cross River High Court Law states as follows.

(3) No party shall be entitled to claim the benefit of any local custom if it shall appear either from express contract or from the nature of the transaction out of which any civil cause of matter shall have arisen, that such party agreed or must be taken to have agreed that his obligations in connection with any such transactions should be regulated exclusively by some law or laws other than local custom, or that such transaction is one which is unknown to local custom.

From the above, it can be seen that the two exceptions are when there is an implied or express agreement to not be governed by customary law or when the transaction being carried out is unknown to customary law.

Implied or Express agreement: It might be stated expressly in a case involving a contract that the parties wish to be governed by English law and not customary law. However, parties rarely expect that there would be conflict while making contracts and so do not think about such. The court may infer such an intention to be judged by English law from the nature of the transaction.

In Griffith v. Talabi, the court decided that it was English law that was applicable since it was for the sale of land for which a document was given. In Okolie v. Ibo, a contract for the sale of petrol was held to be covered by English law. In Nelson v. Nelson, the eldest of three brothers purchased a land with money gotten from the sale of part of a land jointly owned by all three brothers under customary law. It was argued that the other two brothers had agreed through their acquiescence that the new land should be governed by English law. The West African Court of Appeal held that the transaction alone could not turn their rights under customary law to rights under English law.

Nelson's case shows that a single transaction in English law cannot make subsequent transactions which should ordinarily be governed by customary law fall under English law. Also, third parties cannot have their rights under customary law denied because of an agreement between two parties. In Villars v. Baffoe, the plaintiff obtained a letter of administration and it still could not affect the family of the deceased exercising their rights under customary law because only the plaintiff had agreed to be bound by English law.

Customary law shall not be applied when it has been shown that the parties either expressly or through their conduct agreed to not be governed by customary law.

Transactions unknown to customary law: There have been questions over which transactions are known to customary and which transactions are not. It has been stated earlier that customary law is flexible, easily adapting to society as it changes. The alienation of rights in land by one party to another used to be unknown to customary law, and now customary law covers it. Also is the use of writing, which was previously thought to be outside the scope of customary law. So a transaction unknown to customary law has to be something more alien.

Charles, J., stated in Salau v. Aderibigbe that there should be an attempt to prevent the use of analogical reasoning to decide cases with customary law which are essentially different either because of an inherent novelty or the novelty of the subject matter. This statement may be found inadequate as it does not explain the extent of difference before two kinds of transactions may be regarded as essentially different. Can the normal customary laws regarding trading cover a spice which is imported and not local? The statement does not satisfy such questions.

The position which has been taken by the courts is to consider the facts of each case with its own surrounding circumstances, while abstaining from creating any general rule. Such was the situation in Cole v. Cole and Bakare v. Coker.

Cases between Nigerians and Non-Nigerians.

The general rule is that customary law is not to be applied in cases between Nigerians and Non-Nigerians as stated in Koney v. Union Trading Co. However, where injustice would be done through the application of English law, customary law shall be applied as in Nelson v. Nelson.

Choice of customary law.

Nigeria has never been homogeneous in nature, having so many ethnic groups. However, conflicts used to be a lot fewer since there was less interaction between members of different tribes. Some persons spent their entire lives within their own kinsmen. In the event that people moved to another community, the laws were territorial and so the new community's law was binding on everyone despite their ethnic background.

With the introduction of the modern structure, people are a lot more mobile and interact with each other more. And yet they are sometimes ignorant of the laws of the new community and it may even be better in the interest of justice to apply their own customary laws to them. Therefore, it is necessary that there are rules to resolve conflicts between laws.

The personal law of a person is usually either their ethnic law or religious law if such a person is a Muslim. However, a person might not always have his ethnic law as his personal law in some situations. A Muslim who is also Yoruba and has gotten married to more than four wives may have Yoruba customary law applied to him as his personal law since the Muslim religion prescribes a maximum of four wives while the Yoruba custom allows as many wives has possible. An Edo man who has migrated to Ogun state and has lived his life like a Yoruba man may have Yoruba applied as his personal law. The customary law of a person is also affected by how he has lived his life.

The rules guiding the customary law applicable shall be considered presently. The general rule, however, is that it is the customary law of the court’s jurisdiction or the law binding between the two parties.

Succession to Property.

When a person dies intestate, i.e. without leaving a will, the law which would be applicable in succession of both moveable and immoveable property is the personal law of the deceased. In Tapa v. Kuka, the Nupe law which was the personal law of the deceased was applied in respect of his estate in place of Lagos Yoruba law although the property was in Lagos. As in Ekem v. Nerba, the law of the court's jurisdiction may be applied if the personal law of the deceased cannot be established.

Land matters other than succession.

In the case of dispute over land when it is not a succession case, the lex situs is to be applied. The lex situs is the law of the place where the land is. The court in which the action shall be brought is most likely to have the land within its jurisdiction. This would make application easier since the judges in the customary court should know the customary law applicable in their jurisdiction. The use of the law of where the land is situated when there is conflict over the customary law to get applied was stated by the Court of Appeal in Ukeje v. Ukeje.

Other civil matters.

Where both parties are subject to the same customary law as that applied by the court, then there shall be no dispute and that will be the customary law applicable. When both parties are subject to the same customary law which is different from the law applicable in the court’s jurisdiction, then the law binding on both of the parties and not the law of the court’s jurisdiction shall be applicable. This was stated by the High Court in Osuagwu v. Soldier, and also by Brown C.J. during a retrial of the case.

The real conflict shall arise when the parties have different customary laws. In such a case, the applicable customary law shall be the one which the parties agreed upon or may be presumed to have agreed upon based on the circumstances. If there is no express or implied agreement as to the customary law to be binding, then the court should adopt the customary law to which the parties, the subject matter and the entire transaction are most significantly connected.