Conflict of law is set to be a set of rules of procedural laws which determine the legal system and the law of jurisdiction applying to a given legal dispute. Also, it is regarded as a term used in the consideration of the “challenge of having several laws applying” in a given legal issue, that affect two different nation state. This is otherwise known as private international law. (Conflict of law generally)
Therefore, conflict of laws narrowly under the Nigerian legal system is termed “internal conflict of law”. Having known that Nigeria has various sources of law under it legal system, there bound to be conflicts of these various laws. The following are the predictions of the conflict of laws;
The general rule with regard to disputes between persons who are Nigerians is that customary law should apply. The various high court laws enjoin the courts to observe and enforce the observance of customary laws. Section 26 of Lagos State High Court Laws CapH3 Laws of Lagos State 2003 provides;
Sub 1
The high court shall observe and enforce the observance of customary law which is applicable and is not repugnant to natural justice, equity and good conscience, nor incompatible either directly or by implication with any law for the time being in force, and noting in this law shall deprive any person of the benefit of customary law
Sub 2
Customary law shall be deemed applicable in causes and matters where parties thereto are natives…
Therefore in resolving conflict of laws when parties are natives, the general rule is that if there is a native law and custom applicable to the matter in controversy, and if such law and custom is not repugnant to natural justice, equity and good conscience or incompatible with any local ordinance and if it shall not appear that it was intended by the parties that the obligation under the transaction should be regulated by English law, the matter in controversy shall be determined in accordance with such native law and custom. This position has been reinforced by the following cases;
As against the general that transactions or disputes between Nigerians should be governed by customary law, there are at least two situations in which courts may refuse the applicability of the customary law. These are:
Chief Owonikoko, a high chief in Ile-Ife, contracted to sell a parcel of land at Omidudu Village, Ile-Ife, to Mr Akpan who was an Indigene of Enugu state. However there was a Caveat, inclined to, by the two parties, that they should be regulated by the English law as far as the transaction was concerned. After the sale of the land, Chief Owonikoko went ahead to lease the same parcel of land to Chief Ojalaye. The claim of Chief Owonikoko was that there was no contract between him and Mr. Akpan, as such transaction should have been regulated by the custom and traditions of the people of Ile-Ife.
With the aid of judicial authorities and sound principles of law, advise the parties.
Section 26 (3) of high court law of Lagos state provides
No party shall be entitled to claim the benefits of any customary law if it appears from either Express contract or from the nature of the transaction out of which any suit or question may have arisen that such party agreed that his obligation in connection with such transaction should be exclusively regulated otherwise than by customary law or that such transactions are transactions unknown to customary law.
Section 26 (2)
As between a native and non native, any dispute that may arise in the light of transaction between them shall as a matter of general rule be regulated by English law.
In Savage v Macfoy 1909 ren 504, the deceased husband of the defendant was a non Nigerian, he conducted a marriage under native law and custom with the defendant. The court held that the deceased husband being a Sierra Leonean lacked capacity to contract a marriage in Nigeria under native law and custom and therefore the marriage was consequently void.
The only exception to this, in which English law will not apply but rather customary law is where substantial injustice would resort if there is strict adherence to any other rules of law.
Section 26 (2) of the high court laws of Lagos state provides that
Customary law shall be deemed applicable in causes and matters where the parties thereto are natives and also in causes and matters between natives and non natives where it may appear that substantial injustice may be done to either party by a strict adherence to any rule of law which will otherwise be applicable
The rationale behind this position is to protect natives who would enter into transactions that are ponderous and transaction that have failed in its technical forms which the non native is attempting to take advantage of.
As earlier on noted, matters between natives shall be regulated by customary law and also when it appears that substantial injustice would arise if any other law is used for matters between natives and non natives customary law is to be used. However, the court is faced usually with the problem of “which customary law” is to be applied. The pointer to this problem is the multicultural, multilingual and multi-ethnic nature of Nigeria. For instance, in the absence of an Express agreement between a Yoruba man and then an Efik man, it may be difficult to know the customary law that should be applicable for transaction between them. But it should be stressed that the nature of the transaction is a determinant of the custom that would apply.
In the issue of taking over the property of the deceased upon his demise where he had never written a will (intestate) the law that applies for the succession of both movable and immovable properties is the personal law of the deceased. Personal law means the law that the deceased subjected himself to in his lifetime and of course in determining days, evidence must be adduced to the satisfaction of the court that the person was in his lifetime bound by that law. In Olowu v. Olowu 3NWLR pr3 pg. 372. The Supreme Court noted that under the Nigerian law, a person is free to change his personal law from customary to English law or vice versa and also from one cultural group to another and so forth. With this what matters is the customary law of the deceased at the time of his or her death.
Meanwhile where the personal law of the deceased cannot be ascertained or establish then the law where the land is situated if it is land will be applied as far as the issue is succession in land. In Ekem v. Nerba 1947 12WACA 258. The deceased an owner of property in question was a Nigerian but no evidence was adduced to show what part of Nigeria he belongs. The court settled for the law of the land situation i.e. for the law where the land is situated – Lex situs
The customary law applicable in the land matter that are not based on succession is the law where the land is situated otherwise known as lex situs. That is issues of sale of land, mortgage (pledge) tenancy and other related disputes …where the land is situated. As an illustration, if a Yoruba man and Igbo man has a dispute in Lagos, the customary law of Lagos would apply and the parties cannot decide that the customary law of either of them should apply though they can decide that English law should apply.
In Ukeje v. Ukeje 2001 27WRN 142 CA. The two parties were Igbos and the land in question was in Lagos, the court restated the lex situs principle and upheld the Yoruba customary law as applicable.
In other civil cases apart from succession and land matters, the customary law applicable is dependent on the circumstances of each case and this often takes in so much permutations by the court.
