Background:
Recently, specifically on the 23rd day of August, 2024, the Court of Appeal of Nigeria, Ilorin Judicial Division, set aside the decision of the Sharia Court of Appeal, Kwara State, in the Court of Appeal case of MOHAMMED & 5 ORDS. V MOHAMMED & ANOTHER ON SUCCESSION UNDER ISLAMIC PERSONAL LAW. This paper is to proffer my legal opinion on the subject matter.
Introduction:
In the Sharia Court of Appeal, the suit was marked ‘APPEAL NO: KWS/SCA/CV/AP/IL/14/2022, BETWEEN: NIKE MOHAMMED, EVANG. (MRS.) OLABISI MOHAMMED (AS APPELLANTS) AND 1. MAIMUNA MOHAMMED 2. INNA FATIMOH MOHAMMED (who are the 2nd and 3rd wives who survived Major Mohammed, suing for themselves and as mothers and guardians of) 3. ALMUSTAPHA MOHAMMED 4. ABUBAKAR MOHAMMED 5. SARAT MOHAMMED 6. SALAMOTU HASSAN, delivered on 3rd August, 2022 (unreported).
One major issue on jurisdiction that is of interest to this paper is ‘the applicable law that is applicable to the estate of the deceased- whether it is not Customary Law or Islamic Law, but Statutory Provisions/English law; especially, the Administration of Estates Law of Kwara State?
Issue to be determined by this paper:
The applicable law that is applicable to the estate of the deceased- whether it is not Customary Law or Islamic Law, but Statutory Provisions/English law; especially, the Administration of Estates Law of Kwara State?
It is worthy of note (as observed by the Sharia Court of Appeal) that ‘The contention of the appellants essentially is that while the deceased chose to marry his 1st wife under the Marriage Act, he had voluntarily chosen the Statutory Provisions/English Law and not Islamic law as the law to regulate the administration of his estate after intestate death. On the other hand, the contention of the respondents is that it is the Islamic Law that regulates the estate of the deceased who was born, bred, died and buried as a Muslim and even subsequently after his marriage to the 2nd appellant under the Marriage Act, contracted other marriages under Islamic faith/Law. The court below found in favour of the respondents’ position that it has jurisdiction over the suit because Islamic Law should regulate the administration of estate of the deceased. The holding of the court below was hinged on its agreement that the deceased was born as a Muslim and his subsequent conduct before death which was in accordance to Islam, as well as the burial arrangements after his demise which were according to Islamic rites. See: specifically, page 178 of the record of appeal’.
Therefore, the Sharia Court of Appeal observed and held that on the following reasoning and decision which I humbly approve and adopt as mine thus
‘In the resolution of this issue, our first point of call is the Administration of Estate Law which generally is the statutory provisions that govern the administration of property left behind by a person who died intestate (that is without leaving a will) or the undisposed property of a person who died testate (that is leaving a will). The precursor to this law was the English Law of Administration of Estates which had given way to the Administration of Estates Laws of the various States. In Kwara State, the applicable law is Administration of Estates Law, Cap. Al, Laws of Kwara State (hereinafter referred to as “the law”). That law provides for how estate of deceased persons should be administered after his or her death. See the title of the Law’.
However, the application of the law is specifically exempted on deceased persons whose estates are governed by Islamic Law. Section 1(1)(a) and (b) of the Law provides
”(1) This Law shall not apply-
(a) to deaths occurring before its commencement-unless otherwise provided; or
(b) to the estate of deceased persons, the administration of which is governed by Islamic Law.” (underline supplied for emphasis).
The purport of the above exemption clause, no doubt, is that statutory provisions on administration of estate shall not apply to a person whose estate is governed by Islamic Law.
But as earlier found above, there is no dispute that the deceased in the case at hand, although died as a Muslim, got married to his 1st wife under the Marriage Act. It is also undisputed that he subsequently married to other women under Islamic Law. It is his marriage under the Act that the appellants claim has robbed the administration of his estate of the benefit of being governed by Islamic Law, which would have ordinarily applied.
That argument takes us back to the same Law: which exempted administration of estates governed by Islamic Law. Section 1(2) of the said Law provides –
”(2) The provisions of the estate Law relating to the administration of the estate of a person who died intestate or the undisposed part of the estate of a testator shall apply only to persons who contracted a monogamous marriage and are survived by a spouse or issue of such marriage: ….’.
What the above provision purports to say is that once a person chose to have a valid monogamous marriage under the Act, it is the Administration estate Law that will apply to his or her intestate estate or the undisposed part of his/her testate estate. So, it is a deceased or a testator that will in his life time, make a choice of which law should govern the administration of his/her estate.
It is therefore trite law that where of own volition, a person opted for a monogamous marriage under the Marriage Act, the person had made a choice of the statute (Administration of Estates Law) to regulate the administration of his/her estate after death. But where of own volition a person married under Islamic Law, the estate of the person will be exempted from the application of the Administration of estates Law and will be governed by the principles of Islamic Law.
Judicial authorities that fortify the above trite position of the law are legion and plethora. For example, in Obusez V. Obusez {2007} All FWLR {Pt. 374} 227 at 252, per Onnoghen JSC (as he then was) held that-
‘The deceased by contracting marriage under the Act opted out of the system of customary law of succession in case of intestacy. Also in Nebuwa V. Nebuwa {2018} LPELR – 45097 (CA} it was held that-
”For by contracting a monogamous marriage under the Act; as correctly held by the trial Judge, the deceased is deemed to have intended the succession to his estate under the English Law and not under Customary Law. Cole V. Cole {1898} 1 FNLR p. 15 and Obusez & Anr. V. Obusez & Anr. {2007} 10 NWLR {Pt 1043}.
Other authorities along the same line · would -include Cole V. Akinyele (1960} FSC 84; Olowu V. Olowu {1985)3 NWLR {Pt 13} at 390, Sarki V. Sarki & Ors. {2021} LPELR – 52659 {CA), Motoh V. Motoh (2010} LCM/4160 {CA}; Osho V. Philips & Ors. {1972) All NLR 279 and so many others.
Thus, the irresistible conclusion we have come to, based on the above-espoused authorities, is that the estate of late Major Muhammed Adeniyi would ordinarily have been governed by Islamic Law if he had not, by own choice, contracted a valid and subsisting marriage under the Act with the 2nd appellant. Dissolution of a subsisting marriage under the Act cannot be presumed, speculated or conjectured as erroneously done by the trial court.
Definitely, the conduct of a marriage under the Act (which is also Christian marriage) is an act that conflicts which the Islamic religion which the deceased professed. Certainly too, the subsequent Islamic conducts of the deceased including marrying other wives, dying and being buried as a Muslim etc could not, by the state of the Nigerian Law, legalize the illegality or change the law that should govern his intestate succession- his chosen Administration of Estates Law.
It is not the law that the 2nd appellant must complain or take out an action against the subsequent marriages. The conduct of subsequent marriage(s) is an infraction of the law (the Marriage Act) which take ordinary effect. As argued by the appellant, no waiver or acquiescence is capable of relieving the infraction.
In the Book ‘The Status of Registry and Islamic Law Marriages in Nigeria: (2021) by S. A. Giwa, the learned author at page 70 states that –
“Where a Muslim man contracts a registry marriage as his first marriage under the Marriage Act and wishes to take a second wife for any reason or change his wife/he has to first divorce his first wife …. ”
In law, the deceased by opting for the registry marriage has changed his “factory setting” religion of Islam and the only way he could legally unbundle himself and return back to the “factory setting” from the status he WILLINGLY put himself, is by legally repudiating the -statutory marital relationship he had with the 2nd appellant, through a legal divorce.
In other words, the Administration of Estates Law would not have been the applicable to his estate and Islamic Law would have, had the deceased Major Muhammed Adeniyi taken legal steps in his life time to dissolve the statutory marriage he had with the 2nd appellant and a valid decree nisi of divorce had been made absolute. That is the only thing that can legally undo the choice of Administration of Estates Law voluntarily made by the deceased by the fact of his 1st marriage under the Act. See R V. Princewill {1963} All NLR 54. In that case, Princewill who was married under the Marriage Act of 1950 subsequently in 1960 changed his religion and became a Muslim. He then purported to marry another wife under Islamic Law, without dissolving his previous marriage contracted under the Marriage Act. The Court held he was wrong. See also Oshodi v. Oshodi (1963) All NLR ‘647.
At page 72 of S. A. Giwa (supra) the learned author stated the position correctly in our view thus –
‘The Muslim man who has contracted the registry marriage is already against the laws of Islam as his property will not be shared in accordance with Sharia when he is deceased. ”
Towing the same line of reasoning, the learned jurist and author, His Lordship, M. A. Ambali (retired Grand Kadi) in his book: The Practice of Muslim Family Law in Nigeria, 3rd Edition, page 389, under the heading: ”The Legal Implication of Muslims Contracting Marriage Under the Marriage Act”, says –
”Muslims who contract their marriage under the Marriage Act have unconsciously created some complications.’.
It is therefore quite unfortunate that many Muslims, due to ignorance and for regrettable reasons, plunge their head into Marriage under the Act, also known as statutory marriage or registry/court marriage, thereby unconsciously creating such kind of problems like the present one.
Perhaps it may serve as useful digression and admonition to harp on some among others of the inherent implications of Muslims contracting statutory, court or registry marriage or marriage under the Act. Once contracted:
– such marriage does not permit of any other marriage (customary or Islamic) after it (in fact, it is bigamy to do so);
– such marriage is dissolvable only through court proceedings (first, by a decree nisi and then, decree absolute);
– such marriage is a marriage officiated in islamic but Christian ways and most times by Christian clergies;
Such marriage offends Islamic, customary, Nigerian and African customs which allow polygamy; and above all,
Such marriage denies the right to have Islamic Law govern the administration of estate left after death by the couple.
Coming back to the present appeal, it is our firm considered view that the court below was in grave error to have held that Islamic Law governs the estate of late Major Muhammed Adeniyi, who was still in a valid and subsisting marriage under the Marriage Act till his death. The applicable law to the administration of estate of the deceased is therefore the Administration of Estates Law of Kwara State and not Islamic Personal Law, over which the court below, being a sole Judge Court applying Islamic Personal Law, has jurisdiction.
We conclude this issue with Qur’an chapter 5 verse 8 that warns that
‘ … Stand out firmly for Allah and be Just witnesses and let not the enmity and hatred of others make you avoid Justice. Be just; that is nearer to piety.”
Issue one is accordingly resolved in favour of the appellants.’.
I must emphatically state here that I entirely agree with the above holding of the Sharia Court of Appeal on the subject matter.
In my humble submission, this issue is of importance on ‘whether a Muslim could waive his right to have Islamic Personal Law applied to him upon his death having contracted the English Marriage Law marriage during his life time?’ I humbly answer this question in the affirmative ‘YES’! In my humble submission, Islamic Personal Law in Nigeria is a ‘legal right’ which can be waived by a Muslim while he was alive. For instance, such a Muslim could, by his conduct, waive his right to have his estates distributed in accordance with Islamic Personal Law upon his death where he chooses to contract marriage with a woman under or pursuant to the Marriage Act while he was alive. In this instance, his matrimonial causes shall be conducted pursuant to the Matrimonial Causes Act, the Administration of Estates Law, etc., but not Islamic Personal Law. This is because, the law is clear that a legal right can be waived by the person upon whom the legal right is conferred. For instance, in the case of Ariori v. Elemo (1983) 1 SC 13 @ 18, Idigbe, JSC, defined “waiver” thus:
“By way of a general definition, waiver—the intentional and voluntary surrender or relinquishment of a known privilege and a right; it therefore implies a dispensation or abandonment by a party waiving of a right or privilege which, at his option, he could have insisted upon.” Tobi, JCA, (as he then was) in the case of Carribean Trad. & Fidelity Corp. v. NNPC (1992) 7 NWLR (252) 161 @ 185, enunciated on the concept of waiver when he said: “Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not do so at all. But once his conduct shows the trend, a court of law will hold that he has waived his right.”
The appeal against the decision of the Sharia Court of Appeal was made in the name: 1. MAIMUNA MOHAMMED 2. INNA FATIMOH MOHAMMED (who are the 2nd and 3rd wives who survived Major Mohammed, suing for themselves and as mothers and guardians of) 3. ALMUSTAPHA MOHAMMED 4. ABUBAKAR MOHAMMED 5. SARAT MOHAMMED 6. SALAMOTU HASSAN (AS APPELLANTS) AND NIKE MOHAMMED, EVANG. (MRS.) OLABISI MOHAMMED (AS RESPONDENTS) IN APPEAL NO.: CA/IL/SH/1/2022 (now unreported), delivered on 23rd August, 2024.
The Court of Appeal relied on the provisions of section 1(1)(a) and (b) of the Administration of Estates Law of Kwara State, which provides thus
”(1) This Law shall not apply-
(a) to deaths occurring before its commencement-unless otherwise provided; or
(b) to the estate of deceased persons, the administration of which is governed by Islamic Law.” (underline supplied for emphasis).
However, with due respect to the Court of Appeal, the Court ought to have averted its mind to the provision of section 1(2) of the same Law, which provides thus
‘(2) The provisions of the estate Law relating to the administration of the estate of a person who died intestate or the undisposed part of the estate of a testator shall apply only to persons who contracted a monogamous marriage and are survived by a spouse or issue of such marriage:…’.
Therefore, it is my humble submission (I wish to borrow from the decision and reasoning of the Sharia Court of Appeal on the subject, which I adopt as mine) as follows:
‘What the above provision purports to say is that once a person chose to have a valid monogamous marriage under the Act, it is the Administration estate Law that will apply to his or her intestate estate or the undisposed part of his/her testate estate. So, it is a deceased person or a testator that will, in his/her lifetime, make a choice of which law should govern the administration of his/her estate.
It is therefore trite law that where, of own volition, a person opted for a monogamous marriage under the Marriage Act, the person had made a choice of the statute (Administration of Estates Law) to regulate the administration of his/her estate after death. But where, of own volition, a person married under Islamic Law, the estate of the person will be exempt from the application of the Administration of estates Law and will be governed by the principles of Islamic Law.
Judicial authorities that fortify the above-trite position of the law are legion and plethora. For example, in Obusez v. Obusez {2007} All FWLR {Pt. 374} 227 at 252, per Onnoghen JSC (as he then was) held that-
‘The deceased, by contracting marriage under the Act, opted out of the system of customary law of succession in cases of intestacy. Also in Nebuwa v. Nebuwa {2018} LPELR – 45097 (CA} it was held that
”For by contracting a monogamous marriage under the Act, as correctly held by the trial Judge, the deceased is deemed to have intended the succession to his estate under the English Law and not under Customary Law. Cole v. Cole {1898} 1 FNLR p. 15 and Obusez & Anr. v. Obusez & Anr. {2007} 10 NWLR {Pt 1043}.
Other authorities along the same line · would -include Cole v. Akinyele (1960} FSC 84; Olowu v. Olowu {1985)3 NWLR {Pt 13} at 390, Sarki v. Sarki & Ors. {2021} LPELR – 52659 {CA), Motoh v. Motoh (2010} LCM/4160 {CA}; Osho v. Philips & Ors. {1972) All NLR 279 and so many others.
Thus, the irresistible conclusion we have come to, based on the above-espoused authorities, is that the estate of the late Major Muhammed Adeniyi would ordinarily have been governed by Islamic law if he had not, by his own choice, contracted a valid and subsisting marriage under the Act with the 2nd appellant. Dissolution of a subsisting marriage under the Act cannot be presumed, speculated or conjectured as erroneously done by the trial court.
Definitely, the conduct of a marriage under the Act (which is also Christian marriage) is an act that conflicts with the Islamic religion that the deceased professed. Certainly too, the subsequent Islamic conducts of the deceased, including marrying other wives, dying and being buried as a Muslim, etc., could not, by the state of the Nigerian Law, legalize the illegality or change the law that should govern his intestate succession—his chosen Administration of Estates Law.’.
Furthermore, the Court of Appeal, in setting aside the decision of the Sharia Court of Appeal in this regard, held that Marriage Act is not binding (in that circumstance of the appeal) because one cannot change Islamic religion. I wish to also observe that in the appeal at the Court of Appeal, the Court observed that
‘The Respondents did not file process and not appear.’
Though, with due respect, I do not know why the Respondents (who had contested the decision of the Upper Area Court to the Sharia Court of Appeal) chose not to file a defence to the appeal at the Court of Appeal in that respect and I hope that it was not on the basis of something fishy or cohesion or threat or intimidation or influence?! In any case, I humbly recommend to the Respondents to challenge this decision of the Court of Appeal to the Supreme Court of Nigeria for reversal because it is already setting a bad precedent in respect of Islamic Personal Law and Marriage under the Marriage Act where there is conflict, especially as such concern Succession. I also encourage them to speak out if they have been intimidated or threatened not to have put up a defence to the appeal with the consequences of such non-representation. I humbly advise and recommend similar and subsequent cases to be challenged to the Supreme Court of Nigeria to set the precedent correctly. This is similar to doing ‘justice’ no matter who is involved or concerned in the case. See: Qur’an chapter 5 verse 8 that warns that
‘… Stand out firmly for Allah and be just witnesses, and let not the enmity and hatred of others make you avoid justice. Be just; that is nearer to piety.”
Therefore, I humbly disagree with the decision of the Court of Appeal in this regard. I therefore further recommend that there should be an appeal against this Court of Appeal decision to the Supreme Court of Nigeria to set the decision of the Court of Appeal in this regard aside as the same is with due respect, not based on law but possible’ miscarriage of justice’ against the Respondents in the case. This is my final conclusion on the subject matter.
Email: hameed_ajibola@yahoo.com
08168292549.
Source: theloyalnigerialawyer
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