AN ANALYSIS OF THE NATURE OF ESTATES OF DECEASED PERSONS UNDER THE COMMON LAW AND THE SHARI’AH (ISLAMIC LAW)

ABSTRACT

Administration of estates and probate is to ensure the passing of properties of deceased persons as well as the administration of the remaining properties collated as estates. The Common Law, Customary Law and Islamic Law are some of the laws that regulate the disposition of deceased person’s estates in Nigeria. There are however obstacles to the successful disposition of properties of deceased persons under the Common law and the Shari’ah (Islamic law), especially in the context of discrimination and misconceptions about the distribution of estate under the Shari’ah. It is in the light of the foregoing that this research analysed the disposition of estate of deceased persons under the Common Law and the Shari’ah, with a view to highlighting the similarities and differences between both laws. The doctrinal methodology of research is adopted, where reference has been made to the primary and secondary sources of law. It is observed that the Islamic Law of Succession, although complex, represents the wishes and aspirations of Muslims in Northern Nigeria as the law derives its validity from the Qur’an and the Sunnah. This research recommends drafting the rules of succession in clear and simple language.

 

 

 

 

 

CHAPTER ONE

GENERAL INTRODUCTION

The distribution of the estate of a deceased person, especially if he was the head of a family, has implications for the persistence of family solidarity and by extension social stability. However, to protect the family as the basic unit of social organizations, under the common law and the Shari’ah in Nigeria, rules of succession for the devolution of property of a dead person have overtime evolved regardless of whether he/she died estate or intestate.

A person dies intestate, when he dies without leaving a valid Will or when the Will he left is invalid due to noncompliance with the law. In such a situation, the right of succession to the estate is determined according to laws. The relevant law to be applied, whether statutory, customary, or Islamic, would largely depend on the personal law of the deceased. This in turn is largely ascertainable from the kind of marriage the deceased contracted during his/her lifetime^[1]

1.1 Background to the Research

There is no questioning to the fact that some family members become vulnerable and powerless while others become hostile the moment the question of whether the deceased died testate, or intestate arises. The Administration of Estates Law and the Rules of Procedure on probate are made with the intent to forestall the properties left behind by deceased persons from getting into the hands of persons the deceased will not ordinarily wish to inherit his or her properties. The essence of the administration of estate and probate is to ensure the passing of the properties of the deceased to the beneficiaries and the proper administration of the remaining collated as an Estate.

Probate administration can be broadly defined as the procedure for the granting and revoking the instrument of the grant of Probate or Letters of Administration in respect of the estate of the deceased who died testate or intestate. The importance of making a valid Will cannot be

 

underestimated regarding testamentary intention and the capacity to make a Will under Common law and the Shar’iah. The effort has been made by scholars to critically analyze the testamentary freedom and the limitations to testamentary freedom of a testator under Common law and Shari’ah of testate succession.

1.2 Statement of the Research Problem

Violation of the rights of family members of the deceased who died testate, or intestate has become a common occurrence in many states in Nigeria where the beneficiaries are deprived of their right to acquire the estate of the deceased. As a response to the violation, an effort has been made to establish diverse laws to protect the rights of family members. The conflict of laws started as a result of the establishment of Common law (which is made up of received English law, doctrines of equity, and statute of general application), and customary law. The consistent of these three types of laws gave rise to conflict between them on the applicability of one type of law or the other.  This research will generally address the need for sensitization on the importance of making a valid will during a lifetime.

This research, therefore, raises the following questions:

1. What are the Islamic Law principles that regulate and protect the rights of beneficiaries of a deceased estate?
2. What are the Common Law principles that regulate and protect the rights of beneficiaries of a deceased estate?
3. What are the Common Law and Islamic Law implications in the disposition of a deceased estate where the deceased died intestate?

This is in view of the fact that it is only when a valid Will is made that the disposition of estates of a deceased will become easier than when the deceased died without making a Will or a valid Will.

1.3 Aim and Objectives of the Research

The purpose of this study is to examine the importance of making a valid Will (disposition of a deceased person’s estate) under both Common law and the Shari’ah, with a particular emphasis on the attitude of Nigerian courts towards conflict of laws, which contributes to the jurisdictions’ divergent nature. Additionally, the objective of this research are:

1. To examine the nature and concept of estate disposition under Shari’ah and Common law.
2. To analyse the testamentary capacity and limitations in the disposition of the deceased estate.
3. To examine the conditions necessary for the creation of a valid Will, the revocation and revival of a Will under the Wills Act.

1.4 Scope and Limitations of the Research

This research focuses on the preservation of deceased family members’ rights in relation to the disposition of the deceased persons’ estates under both Common law and the Shari’ah. Additionally, the research evaluates the legal rights of family members who are beneficiaries of the deceased’s estates, as well as the numerous enactments that allow for beneficiary rights. This study is centred on the discussion of the protection of the rights of family members as regards the disposition of the estates of the deceased persons under Common law and Shari’ah. The study will also examine the general overview of the rights of family members who are beneficiaries of the estates of the deceased under the law, the various enactments that provide for the rights of beneficiaries.

1.5 Significance of the Research

The significance of this work is to enhance a better understanding of the disposition of estates of a deceased person under Common law and Shari’ah and, comparing both laws. The protection of the rights of the beneficiaries of the deceased estates under the law against fraudulent misrepresentations by unscrupulous family members who ordinarily are not supposed to benefit from the estates of the deceased. The essence of the administration of Estates and Probate is to ensure the passing of the property of the deceased to the beneficiaries and the proper administration of the remaining properties collated as an Estate.

1.6 Research Methodology

The research method adopted is the doctrinal approach, that is, library oriented as in the case with most legal researchers.

This research, therefore, would be accomplished through the collection of data from statutes, case laws, and administrative regulations as primary authorities. Whereas textbooks and articles from eminent legal scholars on the subject matter will constitute the secondary authority of this study.

 

1.7 Literature Review

Testate succession in Nigeria is governed by both Common law and the Shari’ah. The Shari’ah and the Wills law (Wills Act 1837, Kaduna State Wills Law, Cap 163 Laws of Kaduna State of 1999) are two bodies of laws, which have evolved from radically different backgrounds.  The Islamic law of succession is based on the Divine principles of Islam, which govern Muslims all over the world. The Wills law evolved from the English Wills Act, 1837, which is a statute of general application reflecting the values of the English society with their prescriptions of the Christian religion.

In a situation where such two radically different laws operate side by side and citizens are given the right to choose under which one, they want their lives to be regulated (expressly or impliedly) it is inevitable that situations of conflict of interpretation will arise in applying the laws. The two laws may be compared at six levels, viz: validity of wills, testamentary intention, capacity, limits to testamentary freedom, alteration and revocation of Wills, the lapse of gift, and conflict between the two laws. More so, the Administration of Estates law and the Rules of Procedure on Probate are made for the disposition of the deceased estates. Many legal luminaries both under the Common law and Shari’ah have tried to analyze the comparison between the two laws on the disposition of the estate of deceased persons, such as.

In his paper “An Examination of the Nature and Operations of Islamic and Statutory Laws of

Testate Succession in Kaduna State, Nigeria,” Ahmadu Seidu Maliki, Ph.D.; Department of Sociology, Ahmadu Bello University, Zaria,^[2] Nigeria” he investigated and analyzed the nature, content, character, scope of operation, and relationship, between Islamic and statutory laws of testate succession with His research looks on Muslim people’ awareness, perceptions, preferences, and satisfaction with the two laws in Zaria, Nigeria (Kaduna State). The study subject focuses around the link between the two bodies of law, what occurs in the event of a disagreement, and the preferences of citizens in succession problems. The research relies primarily on doctrinal (examination of legislative and case law) procedures, which are

 

reinforced with an empirical survey (interviews). Among the key conclusions is that respondents prefer Islamic succession laws and would like that they take precedence over statute law. His study advises, among other things, that the government launch a huge public awareness campaign to educate individuals about succession regulations, while also retraining lower court judges to properly use judicial discretion in succession situations.

In his article, he suggested that a committee comprised of distinguished Islamic jurists and academics be formed to formulate the laws of succession in plain and straightforward language. This committee might be formed at the request of the northern governors as a group or, alternatively, by the separate governors. He ignored, however, that not all northern governors are Muslims, nor are the northern states administered solely by Shari’ah.  He also suggested that the draft code be endorsed and put into law by the different State Assemblies in Muslimmajority states in northern Nigeria. Many Asian countries have previously done something similar, and it is working well for them. He stated that there is no reason why it should not work in Nigeria, but he overlooked that Nigeria, unlike many Asian nations, is not an Islamic country

Paul Okhaide Itua Department of Commercial and Industrial Law, Ambrose Alli University,

1. M. B. 14, Ekpoma, Edo State, Nigeria, published the study “Legitimacy, Legitimation, and

Succession in Nigeria: An appraisal of Section 42(2) of the Constitution of the Federal Republic of Nigeria 1999^[3] as amended on the rights of inheritance.” He went into great length on the Nigerian concepts of legitimacy, legitimation, and succession. It looked at the impact of Section 42(2) of the 1999 Constitution on inheritance rights. According to the findings, if a father recognizes his kid’s paternity, the child becomes legitimate, regardless of whether the child was born out of wedlock. However, the situation becomes more problematic if the father refuses to recognise the child’s paternity during his lifetime. When his purported father dies, the kid will be unable to participate in the division of his putative father’s inheritance since he will be seen as a total stranger by the deceased’s other children or family members. For all intents and purposes, such a kid will remain illegitimate. As a result, it is argued that Section

 

42(2) of the 1999 Constitution only removes the status of illegitimacy from our law books to the degree that the putative father admits the child’s paternity. However, if such recognition is rejected, the kid remains an illegitimate child, which limits the opinions of those who feel that illegitimacy has not been totally eradicated from our society.

However, his research focused solely on the Nigerian constitution, ignoring the Sharia constitution’s succession rule. As a result, even if Nigerians amend the legislation, Shari’ah, which is extensively practiced in many regions of the nation, will still be a barrier to the law’s successful implementation

Abdulmumini A. Oba’s multi–disciplinary study “Lawyers , Legal Education, and the Shari’ah Courts in Nigeria” examines the issue of Shari’ah education in Nigeria in both traditional and modern conducts, the role of lawyers in the administration of Shari’ah^[4] the differences between the Shari’ah and common law systems, and the Shari’ah perspective on the role of legal practitioners, He also looked at the challenges from the perspectives of common law and the Shari’ah. On the concerns, the religious judgments of the Shari’ah were also looked at.

His report indicated that Shari’ah legal education has received insufficient attention within the established legal education system. The current Shari’ah education system is likewise far from perfect. He advocated for immediate reforms to prevent society from being burdened with impractical and uneducated “Islamic experts.” It has also been established that matters involving Shari’ah law are handled by judges who may not be properly trained for the job, and he believes that urgent improvements are required in this area as well.

He stated that the presence of attorneys in Shari’ah courts has been proven to be of dubious legal legitimacy. Lawyers may have a right of audience in these courts, but this is far from definite. The central subject of attorneys’ role in Shari’ah courts has also been challenged. He said that Shari’ah courts can and should accept attorneys, but not common law lawyers who are unfamiliar with Shari’ah courts. To him, Kadis is even stranger to these kinds of attorneys. “The enormous chasm of ignorance about Islamic law among legal practitioners is terrifying

 

and does not bode well for the nation’s future,” he said. It is critical to create opportunities for open and honest debate on the problems. “Ignorance of Islamic law is no longer an excuse for a Nigerian lawyer nowadays.”

The requirement for the government to provide the enabling environment in terms of funding and logistics to organize such policy review seminars was not discussed in length in the research. He also failed to provide a clear implementation methodology as well as the expected outcomes of such sessions.⁵

1.8 Synopsis of Chapters

This research work is divided into five chapters.

Chapter one (1) provides a general introduction to the research work. It also states the background to the research, Statement of the research problem, aim and objective of the research, scope, and limitations of the research, significance of the research, research methodology, literature review, and synopsis of chapters.

Chapter two (2) gives a conceptual review of the historical background of disposition of estates under Common law, components of disposition of estates under Common law, historical background of the disposition of estates under the Shari’ah and components of disposition of estates the under Shari’ah.

Chapter three (3) discusses the legal framework of disposition of estates under Common law and Shari’ah, administration of estate law under common law, administration of estate law in Nigeria, and administration of the estate under the Shari’ah.

Chapter four (4) gives a comparative analysis of administration under Common law and the Shari’ah, challenges of the disposition of estates under Common law, challenges of disposition of estates under the Shari’ah, convergence of the Shari’ah and Common law on the disposition of estates and need for reforms on local laws on the disposition of estates.

Chapter five (5) has the summary, conclusion, and recommendations.

[1] Ahmadi S. M, ‘An Examination of the Nature and Operations of Islamic and Statutory Laws of Testate Succession in Kaduna State Nigeria. 2012   https://eujournal.org/index.php/esj/article/download/205/247 accessed on 12th November 2021.

 

[2] Ahmadi S. M, ‘An Examination of the Nature and Operations of Islamic and Statutory Laws of Testate Succession in Kaduna State Nigeria. 2012   https://eujournal.org/index.php/esj/article/download/205/247 accessed on 12th November 2021.

[3] Paul O. I, ‘Legitimacy, Legitimation, and Succession in Nigeria: An appraisal of Section 42(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended on the rights of inheritance 2012 https://academicjournals.org/journal/JLCR/article–full–textpdf/AD1C9C47702 accessed on 12th November 2021.

[4] Abdulmumini A, ‘LAWYERS, LEGAL EDUCATION AND THE SHARI’AH COURTS

IN NIGERIA 2004 https://commission–on–legal–pluralism.com/system/commission–on–legalpluralism/volumes/49/oba–art.pdf accessed 31^st October 2021.

 

AN ANALYSIS OF THE NATURE OF ESTATES OF DECEASED PERSONS UNDER THE COMMON LAW AND THE SHARI’AH (ISLAMIC LAW)

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