By Chike H Izuegbu Esq.

 

(1)It is common that Igbos of the Eastern Nigerian enclave are domiciled in Nigeria and in diaspora or elsewhere across the globe arguably more than any other tribe in Nigeria. Sometimes they go as far as acculturating in the jurisdiction where they find themselves. The gravamen that now calls for determination is: What customary Practice will govern the distribution of the estate of the deceased where he dies intestate reading into consideration that such person lived and died outside his indigenous customary jurisdiction. This question has often pumped up conflict of customary laws into Nigeria’s customary legal jurisprudence.

(2)Customary Laws in Nigeria are not only binding but they are potent provided they are not repugnant to the principle of natural justice, good conscience and equity. The Supreme Court (Per Obaseki JSC) in Olowu v. Olowu& Anor.[1985] 12 SC  @ page 85 said:

“The British Government have the duty of enforcing these native laws and customs, so far as they are not barbarous as part of the law of the land. “

It thus follows that native laws in Nigeria are efficacious subject to the extant repugnancy rules.

(3)A communal reading of S.41 (1) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999(as amended) grants every Nigerian citizen right to domicile in any part of the Country of his choice; and S.1 (1) of the Land Use Act 1978 which vests all Lands in the state to be held on trust for the benefit of the People; shows that settlement in a community by any Nigerian Citizen different from his ancestral community is allowed. It however, appears that mare settlement in a location cannot operate as acceptance of the prevailing customary practice in that jurisdiction so as to govern the estate of that settler where he dies intestate. The Supreme Court speaking through the indominitable Bello JSC in Olowu v. Olowu (supra)@page79 retorted, to wit:

“Mere settlement in a place, unless it has been for such a long time that the settler and his descendants have merged with the native of place of settlement, would not render the settler or his descendants subject to the native laws and custom of the place of settlement. This position was further affirmed in Tapa v Kuka 18 NLR 5,wherein a Nupe Moslem of Bida origin died intestate leaving a House in Lagos.It was held that the personal law of the deceased was the Moslem law prevailing among the Nupe tribe and it should apply to his estate.”

(4)It appears where a testator has shown that during his life time that he willingly dumped the customary practice prevailing in his indigenous community for the one in his place of settlement that will govern the distribution of his estate where he dies intestate. Not even his descendant(s) can overrule him. Little wonder the Supreme Court speaking through Coker JSC in Olowu v Olowu (supra) @page 62 said:

“Although A.A Olowu was a Yoruba Man of Ijesha extraction, he resided in Benin of his volition and hence the distribution was made according to Bini customary law, the distribution of his estate on intestate must necessarily be governed by Bini Customary Law.”

(5)In conclusion, the personal law of a deceased governs the distribution of his estate where he dies intestate and not necessarily the indigenous customary practice of the testator’s ancestral home. This write-up is geared at enlightening us on the customary practice we accept outside our ancestral jurisdiction especially to the Igbos in diaspora as it has impact on estate distribution when the deceased dies without a will.

Author: Chike Henry Izuegbu Esq. is a Solicitor and Advocate of the Supreme Court of Nigeria. He graduated Second Class Honors (Upper Division) in Law and Political Science respectively. He holds the Commendation of Nigerian International Model United Nations as the Rapporteur for Economic and Social Council (ECOSOC) for the 2011 Convection year. As a Student Delegate he had an audience with the Swiss Government. He is presently a research consultant and a Law Practitioner with B.S Nwankwo SAN & Co. No 1 Owerri Road Nnewi. Comments on this article can be reached to him through this medium:[email protected] through 07036758285