Greystone Law & Risk

09/10/2020

The Joint Legal Action Aid,JLAA is outraged by the pictures and videos emerging from security forces’ attack on protesters across the country.

We demand the immediate arrest and prosecution of all errants officers involved in the excessive use of force against protesters.

We also call on the authorities to immediately end the impunity of SARS which is responsible for these protests in the first place.

A lady shot by the police during today’s in Lagos is currently fighting for her life at a hospital. Nigerians🇳🇬 protesting police atrocities are punished with more callous police brutality.

The organizers of the Lagos have contacted me, and I have given them my full assurances that our law firm, Greystone Solicitors and the entire Legal Team of the Joint Legal Action Aid will offer Pro Bono legal services to anyone/everyone arrested during the protest in Lagos , Ogun, Ondo and PortHarcourt.

Protest is a constitutionally guaranteed right and no one should be arrested or attacked for exercising that right.

To this end, if the Nigeria Police Force or any other security agency decides to violate the Constitution of Nigeria with impunity as they are wont to do, by embarking on illegal arrest and prosecution, Greystone Solicitors and the entire Legal Team of JLAA will defend the protesters in court free of charge.

No government or agency of state is greater than the people.

Feel free to take part in the peaceful protest. Do not be afraid. Nigeria is our country and we will not allow anyone to turn us into slaves in our country.

It is the duty of every patriot to save this nation of ours from rascals masquerading as Law Enforcement agents.

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15/07/2020

Our Senior Partner Kingsley Ughe was recently featured in a webinar conference where he was the guest speaker on the topic; REPOSITIONING THE ROLE OF THE BAR IN A DEMOCRACY UNDER THE NEW POST COVID-19 EMERGING NORMS.

30/05/2020

LOOKING AT THE NEW NORMS IN A POST COVID 19 LEGAL PROFESSION AND THE MARKET PLACE.

The short-term impact of COVID-19 on people, businesses and markets applies across sectors and market segments, and requires a range of immediate actions, while positioning for the strongest possible future.

Consequently, the legal sector, and with that -corporate legal departments - will be affected, too. The legal industry, and the legal function within many businesses, is at an early stage of transformation, as becomes apparent from the study‘Legal Departments in a Digital Era’the European Company Lawyers Association (ECLA) conducted in collaboration with Wolters Kluwer.

Companies are now in survival mode. I believe it will very much depend on how long it takes before we are back to business as usual. At the same time lawyers might now discover the possibilities of digital solutions and working remotely.

This moment does not leave much space to look at the after, as we still struggle to see beyond tomorrow. Yet, we discovered that there is a huge difference between the occasional home-office and setting it as a “new normal.

The COVID-19 crisis is an unprecedented stress test of our processes and organisations. For many legal professionals working 100% remotely and relying only on digital is radically changing the way they work. This unexpected new standard is challenging habits, collaboration practices, and even our competencies.

As much as we are adopting new hygiene standards, we are also progressively being more aware of cybersecurity matters, data accessibility issues or new forms of collaboration. Finding new workarounds for common tasks (signing, reviewing, negotiating, etc.), which required paper and physical presence, inevitably involves more digital solutions in our daily routines.

This situation will no doubt be a wake-up call for the legal industry to challenge their processes and align them with their people, needs and scaled digital solutions. We need to take advantage of this unique opportunity, in modern history, of having the whole legal industry “in-house.

Just as there is a silver lining to every cloud, COVID-19 has brutally forced all companies to operate on a mostly remote basis, yet not all legal departments were fully prepared.

Fortunately, there are myriad collaborative tools readily accessible and easy to operate even for the most recalcitrant lawyers with digital allergy.

COVID-19 is clearly an accelerator insofar as we are required to continue to counsel clients on every day and urgent matters as well as strategic matters, as if we were operating on a business as usual basis.

This forces immediate flexibility and pragmatism, so we are getting the job done.This is not without difficulties, particularly for those confined in small apartments with young children, or with several working professionals simultaneously on videoconference in the same space.

Looking forward, if we wish to increase the numbers of lawyers able to effectively work from home on a fully operational basis without distractions, will require considering options such as remote shared office spaces with individualised high-speed internet and cubicles for privacy and health safety.It goes without saying that this will also require having access to high performing digital tools.

Perhaps, it very much depends on how well the contract management system is managed and how actively a business is able to respond to for example contract alerts generated by the system. What is key is besides digital maturity is the actual management of the data generated by for example a contract management system.

Legal data should be considered as key management information. In our business we see that clients in the current circumstances truly experience the advantages of outsourcing of certain types of legal work and the continuity that this brings.

Clearly the more digitally advanced companies have an advantage during this type of situation, as do those which have already been operating remotely. Remote access to all company data and archives is critical to enable normal operations to continue as usual.

Similarly, the more companies have been able to implement solutions such as contract automation that enable delegation to commercial teams to create contracts without intervention from the legal teams, the more this enables legal teams to focus their time on higher value legal counseling.

The current situation we are in will show what the value is of decent contracting and of legal management data. A good contract that is well managed, can mean the difference between bankruptcy or survival of a company.

At the same time it will be more essential than ever to be cost effective and use your resources as legal department in a smart way.

While COVID-19 will definitely accelerate the digital transformation process for legal departments, legal has always been an essential business function. From its ability to drive revenue, reduce costs, and avoid risks, deals have to get done under any circumstance in an efficient manner, even at distance, as it directly contributes to the bottom line.

I am afraid that many lawyers will fall back in the old habit of simply working more hours instead of making real progress with using the right software solutions and working more efficiently. At the same time, this seems to be the perfect moment for each business to look at their legal costs and how to save on them. If presented in the right business case, this would open up possibilities for more legal software adoption and efficient working.

Software providers have a great responsibility in this context, as they need to empower legal professionals and guide them wisely.The critical situations some organisations are facing generate a sense of hurry and could lead to regrettable rushed decisions.

One of the key aspects of the study Legal Departments in a Digital Era which we conducted together with ECLA, is the misalignment between digital solutions and internal processes.Figures clearly reveal that choices are primarily based on functional aspects before considering organisational consequences. More "digital" is certainly the right answer to avoid another collapse for legal professionals, but only if we take the time to analyse where we fell short with our processes. A successful project will always rely on a balanced combination of people, processes and solutions.

Hopefully, the COVID-19 crisis will be of great impact and will help make a difference between nice-to-have functionalities and essential ones: what we want versus what we need.

The past weeks allowed us to get a glimpse at what legal professionals would be looking for in terms of legal software solutions: Electronic signature has been lagging behind in the priority list of technologies to be implemented and the results of the study confirm it: barely 25% of legal departments currently use electronic signature.

This solution proved itself crucial and will bump to the top of the list along with data repositories. Access to data is another critical point, as it was already on the radar with the consequences of Brexit or the expiration of the Libor index. Legal departments keep looking for "force majeure" clauses with the COVID crisis, and contract lifecycle management tools combined with AI solutions can demonstrate their highest value.

Eventually, both electronic signature and data management solutions will not be sufficient if they are not backed with collaborative tools to organise access to legal information and seamless communication with the rest of the organisation. In the end, software providers will also have to build up their own level of requirements as clients' expectations will strengthen in terms of roadmap visibility, service-level and deep understanding of their clients' business.

Kingsley Ughe,Esq
Principal Counsel
Greystone Solicitors

30/05/2020

Our Lead Consultant-in-charge of the Litigation, Economic Risk and Due Diligence Groups Mr. Kingsley Ughe will be speaking TODAY at the Law Sector Webinar Series as follows;

Topic: Legal Practice Post-COVID-19 Pandemic

Date: 30th of May 2020

Time: 12.00pm. https://t.co/gTkviBTsAe

07/01/2020

THE LEGAL REQUIREMENTS OF MARRIAGE UNDER NIGERIA’S MARRIAGE ACT

In Nigeria, there are basically three types of marriage recognised by the law. These are statutory marriage, customary marriage and Islamic marriage. Our focus in this article is on statutory marriage which is regulated by the Nigerian Marriage Act, cap 218, Laws of the Federation 1990.

The Nigerian Marriage Act, cap 218, Laws of the Federation 1990 lays down certain preliminary requirements which are to be fulfilled before the solemnization of marriage under that statute. Persons wishing to get married pursuant to the Act must thereby comply with the legal requirements under the Act; non-compliance of which will invalidate the marriage.

Before the celebration of the marriage, the Act provides that the parties shall sign and give to the Registrar of the district in which the marriage is intended to take place, a notice in the prescribed form. The Registrar shall then cause the notice to be entered in the Marriage Notice Book in his registry. A copy of this will be displayed in the registry for inspection by the public.

After a period of 21 days has expired, the Registrar shall issue his certificate of notice. But the Registrar must be satisfied that there is no cause why he should not allow the parties to be married.

Any person whose consent to a marriage is required or who may know of any just cause why the marriage should not take place, may enter a caveat against the issue of the Registrar’s certificate by writing at any time before the issue of the Registrar’s certificate the word ‘Forbidden’ opposite the entry of the notice in the marriage notice book and include his name, place of abode and the grounds upon which he claims to forbid the issue of the certificate.

The Registrar shall not issue the certificate until such caveat has been pursued and disposed of – Section 14, Marriage Act.

Parties will be deemed to have the capacity to marry if they satisfy the Registrar of the following requirements:

Age.

The Marriage Act does not specify any minimum age limit. It merely states that unless a party is a widow or widower, there is need to obtain the written consent of either the parents or guardians where such person is under the age of twenty one years. The Act further provides in section 49 that whoever shall marry or assist any person to marry a minor under the age of twenty one years, not being a widow or widower, shall be liable to imprisonment for two years.

Consent.

Under statutory marriage or marriage under the Act, parental consent of both the male and female parties is a legal requirement but only in cases where either or both of the parties are under the age of twenty one years. The Marriage Act is silent in relation to the consent of parties themselves but the Matrimonial Causes Act (MCA), 1970 provides for the ‘real consent’ of the parties, that is, consent obtained without ‘duress or fraud’.

Subsisting Marriage

Parties will lack the capacity to embark on a statutory marriage if either of them is already married under the Act to another person and the marriage has not been dissolved by any court of law. Also, section 33 (1) of the Marriage Act provides that no marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any other person other than the person with whom such marriage is had.

It is therefore clear that unless the Registrar is satisfied that there is no subsisting statutory or customary law marriage on the part of any of the parties wishing to marry under the Act, he shall not issue them with a certificate to marry under the Act.

Kindred and Affinity.

Persons intending to get married must ensure that there is no impediment of kindred or affinity between them. The list of prohibited degrees of consanguinity and affinity applies to statutory marriages and it is provided in Schedule 1 of the MCA.

A Registrar will not issue a certificate to marry unless he is satisfied by reason of a sworn affidavit by the parties that there is no such impediment. A marriage between two persons who are within the prohibited degree of consanguinity or affinity is void.

Under section 4 of the MCA, where persons are within the prohibited degrees of affinity and desire to marry, they may apply in writing to a Judge for permission to do so and if the Judge is satisfied that there are exceptional circumstances, the Judge may by an order permit the parties to marry one another.

The prohibited degrees of consanguinity and affinity are as follows:

Consanguinity
Affinity
Marriage of a man is prohibited if the woman is, or has been his:
1. Ancestress or Wife’s mother
2. Descendant or Wife’s grandmother
3. Sister or Wife’s daughter
4. Father’s sister or Wife’s son’s daughter
5. Mother’s sister or Wife’s daughter’s daughter
6. Brother’s sister or Father’s wife
7. Sister’s daughter or Grandfather’s wife
8. Son’s wife
9. Son’s son’s wife
10. Daughter’s son’s wife.

Marriage of a woman is prohibited if the man is, or has been her:

1. Ancestress or Husband’s father
2. Descendant or Husband’s grandfather
3. Father’s brother or Husband’s son’s son
4. Mother’s brother or Husband’s daughter’s son
5. Brother’s son or Mother’s husband
6. Sister’s son or Grandmother’s husband
7. Son’s daughter’s husband
8. Daughter’s daughter’s husband.

Once the parties satisfy the Registrar that there is no impediment to their marriage, the Registrar will issue them with the certificate to marry. On receipt of the certificate, the parties can celebrate their marriage in a church duly licensed for the celebration of statutory marriages or in a marriage registry.

It should not be presumed that every church is a licensed place for the celebration of marriages in accordance with the Act. Under section 33 (2) of the Marriage Act, a marriage shall be null and void if both parties knowingly and wilfully acquiesce in the celebration of a marriage in:
1. i. A place other than the office of a registrar of marriages or a licensed place of worship, or

2. ii. Under a false name, or

3. iii. Without registrar’s certificate of notice.

The granting of a Registrar’s certificate may be waived by the obtaining of a special licence. Section 22 of the Marriage Act forbids a minister of religion to celebrate any marriage until the parties have delivered to him the Registrar’s certificate or a special license from the governor under section 13.

Section 43 imposes a maximum penalty of five years imprisonment for performing a marriage in defiance of the Act.

The sanctity of marriage is crucial to the moral fabric of every society. The Nigerian Marriage Act has clearly attempted to provide very solid benchmarks and requirements that would ensure that the very essence and sanctity of marriage is not violated or trampled upon. In doing this, the Marriage Act is invariably protecting the moral sanctity of the Nigerian society.

26/09/2019

CAN VICE PRESIDENT YEMI OSINBAJO SUE FOR DEFAMATION AS AN INCUMBENT ?

The Legal issue raised by the controversy of the retraction by Vanguard Newspaper of the alleged defamatory publication against the Vice President is whether having regard to the provisions of Section 308(1)(a) of the 1999 Constitution, the Vice President can maintain a civil action in his private capacity against Vanguard newspapers and Google Global Services Nig.Limited for libel.

My reaction here is spurred more than the stories making the round in the public domain that my former boss , the erudite Femi Falana SAN, and another equally erudite Senior Advocate Of Nigeria , Femi Atoyebi have written letters to Vanguards News paper and Google Global Services Nigeria Limited demanding for retraction of an alleged libelous publications against the person of the Vice President else they would proceed to court to assert the legal rights of the Vice President.

As an individual, the Vice President is entitled to seek legal redress if he thinks he has been defamed and his reputation unfairly maligned. But what I disagree with is the position that the Vice President can institute an action in court as a sitting president for reputational injury.

Section 308 of the Constitution restricts legal proceedings against a person holding the office of President or Vice-President, Governor or Deputy Governor during the period such person holds such office, PROVIDED that such proceedings may be initiated or continued against him during his period of office in his official capacity.

The general principle of law is that when a matter can be disposed of without resort to a strained interpretation of the Constitution, that should be the preferred course.The law governing Interpretations of Section 308 of the Constitution must necessarily accord with the general principle of law in the interpretation of the Constitution which is that such interpretation as would serve the interest of the Constitution and best carry out its object and purpose should be preferred.

It is therefore follows that the relevant provisions of Sections 308 of the Constitution must be read together and not disjointly, and where the words of the section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution.

Base on the settled principles of law above, yIt would appear that from the careful wordings of the provisions of Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that the immunity granted to the incumbent of the office of the Vice President under Section 308(1)(a) of the Constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal, in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds such office.

Applying the above provisions to the Vice President ‘s attorneys letters to these organizations, the proper thing is to state that actions would be maintained against these companies at the end of the current tenure of the Vice Presidential term and no more.

Their client still holds the post of Vice President of the Federal Republic of Nigeria. The purported defamation against him did not arise by virtue of any act executed by him in his official capacity as Vice President of Nigeria.

Thus, applying the mandatory provisions of Section 308(1)(a), no civil proceedings could be instituted or, if already instituted, as in the present action, maintained by him while he holds office.

That was the position of the Supreme Court in the case of ; M. B. SECURITIES PLC V. BOLA TINUBU (SC 32/2001) [2001] 10 (05 OCTOBER 2001). One of the issues for determination before the Supreme Court was whether or not the provisions of Section 308(1)(a) of the 1999 Constitution permits the Governor of a State, as appellant, to continue with the prosecution of his appeal in a suit instituted against him?

And the Supreme Court held that regarding the purpose of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 that reason for the protection of the person given the immunity in Section 308 of the Constitution is to afford him quiet tenure, free from harassment on personal matters rather than matters of office. It is to afford the person complete devotion to the high office which pertains to the welfare and stability of governance.

Further more, with all the respect due to him, the Vice President, Yemi Osinbajo, SAN. was being disingenuous when he said he'd waive his "constitutional immunity" to allow for a fair probe of allegations of corruption against him.

This is because constitutionally speaking, the learned SAN cannot legally waive his immunity while still in office.That would be unconstitutional.
No question of waiver of the relevant immunity by the incumbent of the offices concerned or by the courts may therefore arise. An incumbent who seeks to waive his immunity may do so only be first resigning his position and his office.

Kingsley Ughe , Esq.

06/03/2019

07/08/2018

CAN SARAKI BE IMPEACHED UNDER THE NEW POLITICAL ARRANGEMENT IN LAW?

There is tension brewing in the National Assembly as armed men have barricaded the entrance to the legislative chambers thus preventing law makers and staff from entry.

This is in the wake of Senate President Bukola Saraki dumping the APC for the PDP like everyone expected.

Questions have been asked about whether Saraki will remain senate president even though he now belongs to the PDP—the minority political party in the senate—at least going by the last count.

To me, the question is how many senators do the APC and PDP have now?

After the gale of defections in the Senate and House of Representatives on July 24, 2018, the governing APC maintained a slight majority over the opposition PDP.

There are 109 senators in the upper legislative chamber. After last week’s defections, the APC had 53 senators while the PDP had 50.

ADC has 3 senators and APGA has 2.

With Saraki’s defection, the APC now has 52 senators while the PDP’s ranks have swollen to 51.

What this means is that when the senate resumes plenary in September, the APC will still be the majority party in the upper legislative chamber—albeit a very slim majority.

Will Saraki remain senate president from a minority party?

There is nothing constitutionally wrong with Saraki keeping his position as senate president even though he’ll now belong to the minority party in the red chamber.

According to Section 50 (1) (a) of the 1999 constitution as amended: “A President and Deputy President of the Senate, shall be elected by the members of that House from among themselves.”

The above section doesn’t bar lawmakers from the minority political party in parliament from seeking the position of senate president.

The law also doesn’t say that a senate president who becomes a member of the minority party should relinquish that position.

Section 50 (2) of the Constitution reads that: “The President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office:

a) If he ceases to be a member of the Senate or of the House of Representatives, as the case may be, otherwise than by reason of a dissolution of the Senate or the House of Representatives; or

b) When the House of which he was a member first sits after any dissolution of that House; or

c) If removed from office by a resolution of the Senate or the House of Representatives, as the case may be, by the votes of not less than two-thirds majority of the members of the House.

In simpler language, Saraki can remain president of the senate when the house reconvenes, unless he’s impeached by two thirds majority of lawmakers.

Saraki won’t be the first leader of parliament from the minority party In the 2nd Republic, the Speaker of the House of Representatives was Edwin Ume-Ezeoke of the Nigeria Peoples Party (NPP).

NPP wasn’t the governing party at the time. The governing party was Alhaji Shehu Shagari’s NPN.

In the 7th assembly, Aminu Tambuwal continued to serve as Speaker of the House of Representatives even after dumping the PDP for the APC.

In the 8th assembly, Ike Ekweremadu of the PDP is serving as Deputy Senate President even though that position should have been reserved for the governing APC.

Now back to the main constitutional question;
Can the Senate President be impeached under the current mathematical structure of the senate under the 1999 constitution as Amended?

Section 50(2)(c) of the Constitution is unambiguous on this point as it clearly states that the Senate President can only be removed by two-thirds of the members of the Senate.

Now the total membership of the senate could be gleaned from the provisions of Section 48 of the Constitution and it says ;
“The Senate shall consist of three Senators from each State and the Federal Capital Territory, Abuja.".

By virtue of the above, there are 109 members in the Nigerian Senate. What therefore constitutes two-thirds of 109 is 73.

I therefore submit that the Senate as presently constituted is faced with a burden of constitutional impasse regarding their capacity to form a quorum to impeach the senate president.

And the APC can only attain two thirds majority of lawmakers required to impeach Saraki, if senators from the PDP lend the governing party a chunk of senators.

Any action or moves contrary to the above will be unconstitutional and illegal.

Kingsley Ughe,Esq.
07/08/18

22/06/2018

THE LAW OF INHERITANCE IN NIGERIA

The rights of a person over his property, whether real or personal survives his death and devolves on his personal representatives by operation of law. These personal representatives may either be executors or administrators.

Executors are appointed by the deceased in his Will to execute the terms of his Will while administrators are appointed by the court to administer the deceased’s estate who died intestate or even testate but without leaving able, willing and ready executors to act.

Personal representatives hold the property of the deceased solely for the purpose of administering it for the benefit of the beneficiaries, by collecting the assets, paying the debts and investing what is left.

The Nigerian legal system can best be described as a combination of Nigerian legislation, English law, customary law (including Islamic law) and judicial precedents. Nigerian colonial experience left her with a plural-legal system.

In this regard, all the African States formerly under British administration share a common experience with regard to their legal and judicial systems. Nigerian legislation therefore consists of statutes and subsidiary legislation. Statutes consist of Ordinances, Acts, Laws, Decrees and Edicts.

With respect to inheritance, the question of legitimacy and legitimization are principally connected with the status of the successor of the deceased. According to Kasumu and Salacuse (Nigerian Family law 1966), legitimacy is the status acquired by a person who is born in lawful wedlock and such a person is regarded as been legitimate from birth.

Since lawful wedlock includes marriage under the Act, as well as customary law, which includes Islamic marriage, any child born during the subsistence of either of these aforementioned marriages is legitimate as was held in Lawal v. Younan [1961] 1 All NLR 254.

Also, if the child is born within 280 days after his parents have obtained a decree absolute, the presumption of legitimacy will still apply to the child.

Under Islamic law, a child is presumed to be legitimate once he is conceived during subsistence of the marriage. It is immaterial whether the child is born after the marriage has been dissolved.

In Nigeria, the concept of legitimacy is very important because of the social stigma that is associated with illegitimacy. At common law as was seen in the case of Galloway v. Galloway (1965) A.C. 229-311, an illegitimate child had no right of inheritance whatsoever with regard to his parent. He is described as filius nullius.

The illegitimate child was a stranger in law not only to his father but also to his mother and all other relatives. He thus, had no legal right to succeed to their property, to receive maintenance “or other benefits deriving from the status of parent and child.”

Also, an illegitimate child has no right to participate in the intestacies of either of his parents. Likewise, neither of his parent had a right to inherit on the intestacy of the illegitimate child. He also had no right to take on the intestacy of a grandparent or brother or sister (whether legitimate or not) and vice versa.

The influence of received English law on customary law is very prominent in the area of personal laws (marriage and inheritance). Laws governing the marriage relationship in Nigeria tend to impact dramatically on women’s legal position and status in many respects including domicile, property rights and legal competence.

Invariably, a woman’s right to property depends on the type of marriage she contracted. There are two types that are recognised under the law: statutory marriages and customary marriages, which include marriages under Islamic law. Therefore, any discourse on women’s inheritance rights in Nigeria must be done in the light of diversity of the legal system.

By reason of the pluralistic nature of the Nigerian legal system, different systems of law apply to determine who succeed and inherit property of deceased persons.

In determining which systems of law is applicable to a particular deceased, it is necessary to determine whether he died testate or intestate, that is having written a Will in his life time or not.

If he wrote a Will in his life time, then the terms of his testamentary instrument automatically displace any existing rules of inheritance, whether under any Customary law, Islamic law or marriage under English law. It is only when he died intestate that the questions; was he a Moslem, was he married under the statute or what was his customary law would arise.

Nigerian law on testate inheritance/succession includes: The Wills Amendment Act, 1937 and the Wills Amendment Act, 1852, regarded as statutes of general application, which were in force in England on January 1, 1900 and the Wills (Soldiers and Sailors) Act, 1918 which deals with the formal validity of Wills.

In some states of the federation of Nigeria, the 1958 Wills Law, CAP 133, Laws of Western Nigeria applies. These states include Oyo, Ogun, Ondo, Osun, Ekiti, Edo and Delta.

This law is essentially a re-enactment of the above mentioned laws on Wills. However, section 3(1) of the Wills Law, 1958 contains a provision not contained in the other Laws mentioned above to the effect that: “The real or personal estate which cannot be disposed by the applicable customary law, cannot be disposed by will”.

Testate inheritance in some states in Eastern Nigeria is governed by the Succession Law Edict, 1987. The provisions of part 4 of the 1987 Edict are similar to those in the Wills Act, 1832 and Wills Law, 1958. It is important to note that these laws apply in respect of the spouses of a statutory marriage and their children.

No disability is placed on widows with regard to inheritance under a testamentary disposition. They are not treated differently from other beneficiaries with regard to their general right of inheritance as their counterparts in England.

The provisions of these laws, however, do not extend to widows who contracted customary law marriage which is a marriage governed by customary law which law is a reflection of the popular consciousness of the people who evolved it.

Legitimization is the process by which a child who has not been born legitimate acquires legitimate status. In Nigeria, legitimization can be achieved either by the subsequent statutory marriage of the parent of the illegitimate child or through the process of acknowledgement under customary law.

Legitimacy by subsequent marriage was first made possible under the provisions of the Legitimacy Act 1929 which applied throughout the whole country at that time. Under the aforementioned statute, where the parents of an illegitimate child marry after the birth of the child, the child becomes legitimate from the date of the marriage.

But if the marriage took place before the date the legislation that is, Ordinance came into effect, then the date of legitimization, will be the date the Act came into effect. The legal effect of legitimization is that the legitimated child acquires the same status with children born in lawful wedlock.

He can effectively participate in the administration of the estate of his parents and also be entitled to inheritance.

However, when an illegitimate person died after the commencement of the Act, and before the marriage of his parents, his spouse, children and remoter issue living at the date of the marriage of his parent will inherit property and take any interest as if the person had been legitimized before his death.

On the other hand, under customary law, a child though born out of wedlock can be legitimized by acts of acknowledgement by his putative father.

The legal effect of acknowledgement was aptly described by Cole, J in Taylor v. Taylor (1960) L.L.R. 286, when he held that “the acknowledgement of paternity by the father ipso facto legitimizes the children and there could not for the purpose of succession be different degrees of legitimacy”.

Testate succession consists primarily of wills. In Nigeria, there is no uniformity of applicable laws relating to wills. Consequently, among the states that were created out of the former western region, the applicable law is the Wills Law.

By virtue of the provisions of the Lagos State (Applicable Laws) Edict of 1972, Lagos State adopted the Western Nigerian Law. On the other hand, the rest of the country consisting of the states from the Northern and the Eastern part, still apply the English Wills Act 1837 and the Wills Amendment Act 1852.

A critical analysis of the provisions of the Wills Law shows that the legislation basically re-enacted the provisions of the Wills Act 1837 and the Wills Amendment Act 1852 together with the provisions of the Wills (Soldiers and Sailors) Act 1918, but with inclusion of some provisions that took into consideration the prevailing customary laws and principles that regulate succession under customary law in the affected states.

Also, Section 15 of the Wills Law provides that every Will made by a man or woman shall be revoked by his/her subsequent marriage. However, the Wills Law exempts a marriage in accordance with customary law from having this effect.

On the other hand, intestate succession basically involves the applications of three systems of laws, like the position with legitimacy and legitimization. These are (a) the common law (b) the Administration of Estate Laws of the various States and (c) customary law.

The crucial question is how does one determine the applicable laws to be applied in cases of intestates’ succession non-customary?

According to Prof. Itse Sagay (SAN) “the factor, which determines which system is to apply in every case, is the type of marriage contracted by the intestate person. In the case of Muslims, the religion practised by the deceased is also relevant”.

Commenting further, the learned Professor stated the principles of law as follows: Thus, if a person contracts a Christian (monogamous) marriage outside Nigeria, the common law of England governs the distribution of his estate.

If he contracts a statutory (Act) marriage in Nigeria, then if he dies domiciled in Lagos or any of the states comprising the old Western Region, then the Administration of Estate Law will govern.

If he contracts a statutory marriage, but dies domiciled in any of the states comprising the former Northern or Eastern Regions, which are yet to enact their own law on non-customary succession, then the common law will also govern the distribution of his estate.

Finally if the intestate person was an indigenous Nigerian and he did not contract a Christian or Act marriage, or even if he did, and no issue or spouse of such a marriage survived him, his estate will be distributed in accordance with the relevant customary law. If the intestate was a Muslim, then Islamic law would govern.

It is imperative to bear in mind that the above stated position of the law is subject to many qualifications. For instance, in cases involving the distribution of immovable properties of intestate persons, the applicable law is the lex situs, in other words, the law of the place where the land is situated.

Therefore, the above generalisation is only correct with respect to movables. Also, where a person who is subject to customary law or Islamic law dies intestate, it is his personal law that will apply to the distribution of his immovable property and not the lex situs