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Attitudes Towards Succession Law in Nigeria During the Colonial Period

Published online by Cambridge University Press:  01 April 1970

H. F. Morris
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Extract

The interesting case of Yinusa v. Adesubokan, reported in this issue of the Journal, provides us with an authoritative answer to a question which has long perplexed students of succession law in Nigeria: can a person whose personal law is that of Islam, by electing to make a will under the Wills Act, 1837, thereby deprive his heirs of what they would be entitled to receive were Islamic law to apply to the distribution of the estate? The answer given is that he cannot. This question, which, as is indicated in the judgment, has not been the subject of previous judicial decisions, may not be one which in recent years has aroused any very great passions. Nevertheless, it is one which some thirty years ago was argued among members of the Colonial Service—administrative officers and legal officers—with a surprising fervour and intensity.

Type
Research Article
Information
Journal of African Law , Volume 14 , Issue 1 , Spring 1970 , pp. 5 - 16
Copyright
Copyright © School of Oriental and African Studies 1970

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References

1 Suit No. Z23/67 in the High Court of Justice of the North Central State.

2 Pp. 56–64, infra.

3 Presumably, therefore, a person whose personal law is customary law is equally unable to deprive his customary heirs of their expectations, except in so far as the customary law concerned recognises the right to dispose of property by will.

4 Outside the Colony of Lagos; within the Colony there was no question but that English law applied under the terms of the Marriage Ordinance.

5 In the Nigerian National Archives, Ibadan. The files quoted from are C.S.O. 26/31069 and 26/33105.

page 6 note 1 Opposing points of view on such matters were fully ventilated, in respect of East Africa, in the evidence given to the Bushe Commission; see Report of the Commission of Inquiry into the Administration of Justice in Kenya, Uganda and Tanganyika Territory in Criminal Matters, 1933, Cmd. 4623, 1934.

page 7 note 1 In fact the only important Bill of this batch which saw the light of day in the form of an Ordinance was the Evidence Bill, eventually enacted in 1945, despite earlier bitter opposition from the Chief Justice and the judges who considered the codification of evidence law to be an unnecessary, and even retrograde, step.

page 9 note 1 The provision also applied to the estates of the issue of an Ordinance marriage.

page 9 note 2 (1898) 1 N.L.R. 15.

page 10 note 1 Emphasis in original.

page 14 note 1 See, for example, , Kasunmu and , Salacuse, Nigerian family law, London, 1966, pp. 269 et seq.Google Scholar

page 14 note 2 On the formation of the Mid-Western Region, the Law also applied to that Region.

page 14 note 3 [1925] A.C. 377.