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Published online by Cambridge University Press: 28 July 2009
The sole issue of importance in this case was the choice of law for determining entitlement to the estate. The most remarkable of the court's holdings is the proposition that Moslem law governs the estate of an intestate Moslem because it is the customary law to which he was subject. Before discussing this it is necessary to examine the line of reasoning by which it was reached.
2 Reported below, p. 70 Supreme Court of Nigeria, 16th November, 1973.
3 Cap. 1, Laws of the Western Region of Nigeria, 1959 Rev., applicable in the Mid-Western State.
page 64 note 1 Much of the wording of this subsection is taken from the Federal Marriage Act, cap. 115, Laws of the Federation of Nigeria and Lagos, 1958 Rev., s. 36 (1), applicable only to Lagos State.
page 64 note 2 Canfor v. Kpodo, C.A. 5th Aug. 1969, (1970) C.C. 19. The Ghanaian ordinance reads “… contracts a marriage, whether within or without [Ghana] in accordance with the provisions of this Ordinance.…” This made it easier to conclude that the reference was not to formalities, which Ghanaian law could regulate only within Ghana. Nevertheless the main argument went further than a reliance on these extra words, holding that “in accordance with the provisions” of the Ordinance referred to essential validity, not to formalities. This seems preferable, because it avoids drawing a distinction between persons who contract monogamous marriages in different localities, e.g. between a Ghanaian couple who marry in church in Ghana and another who marry in church in England.
page 64 note 3 For further discussion of this, see A. E. W. Park, The sources of Nigerian law (1963), pp. 109–11.
page 65 note 1 See e.g. Kasunmu, A. B. and Salacuse, J. W., Nigerian family law (1966), pp. 267–269.Google Scholar
page 65 note 2 In Coleman v. Shang [1961] G.L.R. 145, [1961] 2 All E.R. 406 (P.C., from Ghana) at pp. 151, 412 respectively, the Privy Council considered that the Statutes of Distribution could be so applied.
page 65 note 3 Interpretation Act, cap. 89, Laws of the Federation of Nigeria and Lagos, 1958 Rev., s. 46.
page 65 note 4 The scope and effect of precedent in customary law are discussed in “Some realism about customary law—the West African experience’, (1969) Wis. L. Rev. 128.
page 65 note 5 See e.g.: Re Alayo (1946) 18 N.L.R. 88; Ollennu, N. A., The law of testate and intestate succession in Ghana (1966), pp. 259, 261, 268–269Google Scholar. The view is fully reported and documented in Anderson, J. N. D., Islamic law in Africa (1954), pp. 3–6 and Part II, passim.Google Scholar
page 66 note 1 The view that certain aspects of common law can be best understood by regarding it as a system of customary law is argued in Simpson, A. W. B., “The common law and legal theory”, Oxford Essays in Jurisprudence (2nd series, 1973), 77.Google Scholar
page 66 note 2 Anderson, op. cit., Part II.
page 66 note 3 Anderson, J. N. D., Islamic law in the modem world (1959), pp. 1–8Google Scholar; Coulson, N. J., A history of Islamic law (1964), pp. 1–5.Google Scholar
page 66 note 4 The assertion that the witnesses of customary law had been experts within the meaning of the Evidence Act, cap. 62, Laws of the Federation of Nigeria and Lagos, 1958 Rev., s. 56, does not seem to clarify the question whether their expert knowledge ought to have been of social practice or of doctrine.
page 67 note 1 This cannot be said of Ghana. There the Interpretation Act, 1960 (C.A. 4), s. 18 (1) defines customary law as “rules of law which by custom are applicable to particular communities in Ghana” (emphasis added).
page 67 note 2 See e.g. Goulson, N. J., Succession in the Muslim family (1971), In trod, et passim.Google Scholar
page 68 note 1 Cf. the Ghanaian cases Whittaker v. Choiteram [1971] 2 G.L.R. 267; King v. Elliot [1972] 1 G.L.R. 54; Youhana v. Abboud [1973] 1 G.L.R. 258, at 266–267. But see Youhana v. Abboud [1974] 2 G.L.R. 201, at 214, 223.
page 68 note 2 It involved the application of the Mid-Western State Customary Courts Edict (No. 38 of 1966), s. 23 (3) (a) (i). This is stated to be subject to subs. (1), which could have been applied to different effect.
page 69 note 1 (1945) 18 N.L.R. 5.
page 69 note 2 Grounds of appeal, 13.
page 69 note 3 (1936) 13 N.L.R. 20.
page 69 note 4 High Court of Lagos State, Selected Judgments, Jan. 1973, p. 39.
page 69 note 5 (1947) 12 W.A.G.A. 258.
page 69 note 6 Ekem v. Nerba (1948) D.C. (Land) '48–'51, 40.
page 69 note 7 A similar development, based on different reasoning, has recently occurred in Ghana: Youhana v. Abboud [1974] 2 G.L.R. 201.
