“The love that once bound these two people and got frosted. Can be likened to verse xxxv of Shakespeare “Sonnets a sort of Lamentation”. And also verse 1 of “Passionate Pilgrim” Thus we have in this case” so much love.  And then so much pain”. It is the way of the World.”

PATS – ACHOLONU, JSC

Fellow compatriots, heartbreaks seem to have a never-ending trend season. A few months back, news of breakups, dumping, eloping and jilting were very common. As you would expect, each ‘jilt or breakup’ episode had different story lines and plot twists but all had a common summary. That summary as you also know is this; one romantic partner refused fulfilling his or her promise to marry.

This is what one may call – ‘a very annoying I no do again situation’. And it often leaves the disappointed partner heartbroken and sometimes doing a mental cover of Toni Braxton’s un-break my heart or Adele’s someone like you. This is a sad reality, I know and you might ask; is the law silent on heartbreaks? The answer is a ‘technical’ No, the law actually offers the heart broken some succor in selected situations. The Law also affects couples when they are dating as you can remember by this previous article of ours.

To commence our explanation, it is important to know that a romantic relationship remains unrecognized or unprotected by the law until a promise of marriage is made. Once this promise is made, the status of the relationship is lifted to a legally binding contract.

What is a Promise to Marry?

A “promise to marry” is simply an agreement between two people to be married. This agreement can be made orally, in writing or otherwise. No matter how the agreement is made, it must be made with mutual understanding by both parties to each other. Note the word ‘mutual’ please. Interestingly too, in some cases, a promise to marry can be inferred from the conduct or action of the party making the promise.

Where a party calls off the engagement by any means, other than by an agreement with the other party, he/she is in breach of a promise of marriage and can be sued (put differently, he or she is liable).

But after the heart break comes this news Flash: if the heartbroken partner engages in acts of violence to hurt the eloped or jilting partner, criminal charges could come knocking. And the heart broken partner may console himself or herself in prison after being prosecuted. It is therefore advisable that a hurt partner seeks redress in court and not inflict violence on the heart breaker.

In suing for breach of promise to marry, it would be necessary to prove that:

1. there was a promise of marriage (recognizable in Law) and this does not need to be in writing. The promise of marriage must be clear. No one should be in doubt of the real intentions of the parties into enter into a marriage. A mere romantic relationship, wishful thinking and futuristic talks won’t sustain a suit in Court.
2. the other party has failed or refused to honour their obligation (in this case, the promise of marriage)

Once these elements are sufficiently proven, the party is entitled to and may be granted a measure of monetary compensation (damages). However, the proof of these elements is not an automatic lottery ticket to monetary compensation. That is because of Section 197 of the Evidence Act (which I have reproduced below).

Very importantly too, never forget that the Court will not force an unwilling partner into marrying a willing and ready partner. Therefore, you will not get an order from the Court forcing the ‘heartbreaker’ to fulfill his or her promise of marriage. Rather, the court will convert whatever loss suffered into monetary and material value. Such may be loss of marriage/consortium, injured feelings, wounded pride and money spent in contemplation of the promise to marry.

Other Compensations may include: 

1. Recovery of engagement ring: where the lady breaks off the engagement without just cause, she is bound to return the ring. On the other hand, where the man breaks off the engagement without just cause, he loses his right to reclaim the ring.
2. Recovery of Gifts: this is the most sort after compensation. Just for the records, it is noteworthy that the law makes a distinction between gifts made in contemplation of marriage on the one hand, and those that are absolute and free on the other hand. The former include the ring, money and items directly meant for the wedding day and matrimonial home. These are recoverable. While absolute and given gifts given freely out of love, and not on the ‘business’ or contract of marriage are not recoverable. Putting it more practically, all those recharge cards, hair money, sit-out expenses, valentine’s day gifts and iPhone money are irrecoverable because they were given out of love as could happen between friends, and are therefore not proof of a promise to marry.

The ‘Heartbreaker/Defendant’ may have a sufficient defence in Court if: 

1. he or she proves that the agreement to marry was made under fraud, duress or misrepresentation.
2. the plaintiff/heartbroken party (or Ex) possesses certain moral, physical or mental infirmity or incapacities which makes he or she unfit for marriage. Some instances here include: bad character, violence and ungovernable temper, lady is pregnant for another man, or where the plaintiff had an illegitimate child without the knowledge of the defendant before the agreement was made.

On the whole, the law frowns on heartbreaks after there has been a promise of marriage. Also in appropriate cases, the law provides monetary compensation to the heartbroken when there is an unfulfilled promise of marriage.

Next time you or someone you know suffers a breach of promise to marry, please do not try to physically harm anybody. Get mad by consulting a lawyer!

Sources:

MISS CHINYE A.M. EZEANAH V. ALHAJI MAHMOUD I. ATTA (2004) LPELR-1198(SC)

Lambe v. Jolayemi (2002) 13 NWLR (Pt. 784) Pg. 356 Paras. E – G

Section 197 of the Evidence Act 2011 states that No Plaintiff in any action for breach of promise of marriage can recover a verdict unless his or her testimony is corroborated by some other material evidence in support of such promise, and the fact that the defendant did not answer letters affirming that he had promised to marry the Plaintiff is not such corroboration.

You may also want to read this article by Alliance Law Firm

Aniekan Imeh LLB

The information above is only provided for general information purposes and does not amount to legal advice or soliciting. Also, No Lawyer-client relationship has been created and neither can such a relationship be implied. This information is not intended to substitute the services of a lawyer, if you need legal advice, kindly consult a lawyer for your specific needs. For any further information, you could send us a mail via contact@ls-ng.com.

A few months back, the trending lyrics were; “valentine is coming, where is your boyfriend…”. At the time of this writing, valentine has passed and we must admit for most cases, labor room manifestations may have shown up 8 months later. 

I admit that falling in love may sometimes seem like some tricky business. The law seems to identify this too. Thus, the law does not give you substantial regulations on when to “shoot your shot”, who to “chyke” as well as the hot strike or toasting lines that you must use on a prospective boo. The major restrictions by Nigerian Law on who you could think of entering into a marriage relationship with are; 

1. You cannot marry a minor or child that is a person below 18 years¹
2. You cannot marry a person of the same sex or gender ²
3. You cannot marry within the prohibited degrees of consanguinity³. If you and your intended spouse, are within the prohibited degree of affinity you can only lawfully get married after applying to a Judge for permission to do so⁴. Sounds strange right? I know.

Just to explain further, the prohibited degrees of consanguinity and affinity are actually classes of relationships either by marriage or blood which render it unlawful for two persons to get married. Blood relationships are called consanguinity and marriage relationships are called affinity. By the law, the prohibited degrees of consanguinity include – a blood Sister or brother, Uncles, Aunties, Nephews, and Nieces. So as a man or woman, the law prohibits your getting married to any of the persons on that list (the consanguinity list).

For the affinity list (or the prohibited degrees of affinity) here we go; your mother-in-law, your wife’s grandmother, stepdaughter or son, Step Mom or Dad. Don’t ask why anyone would want to get married to someone on this list.

4. You cannot marry a person who is already lawfully married to another person under the Marriage Act. This is called the offense of bigamy. Interestingly, it is important to know that Lagos State has decriminalized bigamy. Hurray? There are still some arguments about this in some law circles.

Before I continue, pls note: in this article, we use bae and boo as conventional slang terms for girlfriend or boyfriend. 

In continuation, don’t forget that the law in this realm is rather protective of boo’s interest and so, doing the work of ‘Johnny’ in Yemi Alade’s hit song may just land you a lawsuit. Put differently; don’t follow Cynthia, don’t give Uche belle, and don’t promise Nene marriage when you don’t intend to marry Nene. If you do, Nene can sue you for breach of promise to marry and may get monetary compensation for your toiling with her heart. This is because, under Nigerian law, an agreement to marry is seen as a binding legal contract. It is however important to note that the Court will not force an unwilling party into getting married to a boo that he or she now considers an ex-boo. 

Having said the above, here are some specific things to note;

What if I physically abuse my Partner while dating?

It is common to overhear shouts from most couples in a dating relationship. Scratch that. Let us get a bit more specific; in most dating relationships, it is common to hear “You will kill me today” from the lady while the man pounds at her as if he is another heavyweight boxer (it could be the reverse mind you). Note that, being in a relationship does not give you the right to physically abuse your partner.

Doing this may make you guilty of criminal assault and make you enjoy the solitary confines of a jail cell⁵

In Lagos State, there is also the Protection Against Domestic Violence Law of 2007 that prohibits all forms of domestic violence. Also, an abused partner could maintain or file a civil action and if successful may be given (or awarded) monetary compensation by the Court. 

Does My Girlfriend or Boyfriend Legally Owe me Sex?

As a boyfriend, your boo does not legally owe you any duty to satisfy your sexual demands (consortium). This duty is only legally owed by validly married couples to each other. Also, don’t forget that having sex with your girlfriend where she is below 18 is a criminal offense⁶ 

Put differently, if by any strange occurrence, your boo is below 18 and you are caught having sexual intercourse (even when it is with her consent) you will be prosecuted for having committed an offense. This is because since boo is less than 18 years, she has not reached ‘the age of consent’. The age of consent in Nigeria is 18 years old. The ‘age of consent’ is the minimum age at which an individual is considered legally old enough to consent (or agree) to participate in sexual activity.

Where boo is above 18 but withholds consent and you forcefully carry out sexual activity with her, it is termed rape and this is also punishable by law. It is also important to say that Men can now also be raped by women under Nigerian Law. This position of the law does not apply throughout Nigeria and you could find out why in this previous article of ours.  

Can I sue My darling for gifts and unfulfilled promises?

Strange as it may sound, Boo is not “legally bound” to give you a birthday gift, valentine’s day gift, women’s day money, Friday evening money, hair money, shoe money, etc. As a general rule, whatever your partners gives you or fails to give you cannot be adjudicated upon. This is because the law presupposes that your partner didn’t make the promise or give the gift with the intention of being sued where he/she fails. Whatever material benefit you enjoy is solely at the romantic discretion of your partner. Don’t tell Boo I told you. This doesn’t mean that people dating cannot enter into a valid contract. One exception to this general rule is the promise to get married (or promise of marriage). This is one promise that can lead to a lawsuit if broken. You can equally confirm this through this article of ours.  

Remember Also:

Under Nigerian law, where adult you have lived with your adult girlfriend as man and wife for a reasonable length of time, there’s the rebuttable presumption of marriage. This means that the law presumes that you’re presumed married until otherwise proven.

Nkobowo Frederick BL 

The information above is only provided for general information purposes and does not amount to legal advice or soliciting. Also, No Lawyer-client relationship has been created, and neither can such a relationship be implied. This information is not intended to substitute the services of a lawyer, if you need legal advice, kindly consult a lawyer for your specific needs. For any further information, you could send us a mail via contact@ls-ng.com

CITATIONS

1. Sections 21, 22, and 23 of the Childs Rights Act 2003
2. Sections 1 and 2 of the Same-Sex (Prohibition) Act 2013
3. Citation – Section 3 of the Matrimonial Causes Act 1970
4. Section 4 of the Matrimonial Causes Act
5. Section 252 of the Criminal Code Act, Section 170 of the Criminal Code Law of Lagos State
6. Sections 221 and 357 of the Criminal Code Act, Section 31 of the Child’s Right Act 2003
7. the Violence Against Persons (Prohibition) Act, the Criminal Code Act, the Penal Code

Sometimes, getting legal services may require that you have enough money to pay the professional fees that would be charged by a lawyer. In most cases, this can be demanding because it is not common to find Nigerians who save money in preparation for ‘legal trouble’. At other times, the professional fees charged by your preferred lawyer maybe well above your current financial means and therefore difficult for you to pay.

Organizations that offer free Legal Services In Nigeria

Do not worry, there are organizations that offer free legal services to Nigerians who would otherwise not have access to legal help or services.

These organizations include;

LEDAP (Legal Defence and Assistance Project)

LEDAP is a non-governmental organization (NGO) comprising of Lawyers and law professionals. The primary aim of LEDAP is to promote and protect human rights, rule of law and good governance in Nigeria. The organization majors in providing free legal services to poor Nigerians who are victims of human rights abuses, women who are victims of domestic violence amongst others.  

You can visit their website at http://ledapnigeria.org/ or send them an email via info@ledapnigeria.org. You could equally follow their facebook page at  https://www.facebook.com/ledap.nigeria

and twitter handle @ledapnigeria to keep up with their activities and reach out to them.

LEDAP currently has offices in Lagos, Abuja, Port Harcourt and Osogbo. Some contact phone numbers for the organization are +234 9 290 1589, 0813 846 0703 (Abuja office), +234 803 302 4914 (Port Harcourt office), +234 1 291 4123, 08036913264 (general phone lines), 07030000014 (toll free number).

Legal Aid Council, Nigeria

The Legal Aid Council, Nigeria (LAC) is a governmental body established by the Legal Aid Act of 2011. The LAC provides legal services in selected criminal cases and civil cases.

The criminal cases the LAC provides legal representation for include stealing, rape, armed robbery, murder, common assault etc. The civil cases include; fundamental rights enforcement cases, a case filed by an employee for compensation for injury or accident suffered during his employment etc (for the complete list of services offered by the LAC see the Second Schedule of the Legal Aid Act 2011)

You can visit the LAC’s website at https://legalaidcouncil.gov.ng/  For correspondences, you could send an email to the LAC via info@legalaidcouncil.gov.ng

FIDA Nigeria

FIDA Nigeria is a Non-Governmental Organization that focuses on protecting women and children’s rights in Nigeria. It provides free legal services to poor or indigent women and children as well as counselling services. Currently FIDA has branches in 32 states of the Federation including the FCT.

To reach FIDA Nigeria, you can visit their website at https://fida.org.ng/ or send an email to fidanigeria@yahoo.com or call +234 708 849 6115 for inquiries.

You can equally reach out to the organization through its Facebook page. To access the services of FIDA Nigeria, you could also choose to fill a complaint form via this link https://fida.org.ng/how-to-access-our-services/

Apart from the organizations listed above, these organizations in the list below equally offer free legal services. For ease, their contact details include;

Office of the Public Defender, Lagos state

Contact Information

Head Office: – 2/8, Iyun Road, Stadium/Barrack Busstop by Funsho Williams Avenue, Surulere, Lagos.

Ikorodu Office: The Combined High/Magistrate Court, Ita-Elewa, Ikorodu Lagos.

Ogba Office: Samuel Ilori Court, Ogba, Agege, Lagos

Epe Offie: Ligali Ayorinde Combined Magistrate/HighCourt Complex, Epe, Lagos

Toll Free: 070 80 60 10 80

Email: opdlagos@yahoo.com, opdlagos@facebook.com Twitter: @opdlagos

Care for Legal Assistance and Human Rights Protection

Abuja, Nigeria

Contact Information

+2347061016859, +2347050413395

clahrpnigeria@gmail.com

Probono Clearing House

(An Initiative of the Justice Research Institute Ltd. Gte)

Contact Information

Abuja: No. 817B (Twin House) Behind GT Bank, Off EbituUkiwe Street, Jabi, Abuja FCT

Lagos: 4a Ademola Street, South West Ikoyi, Ikoyi, Lagos State.

Telephone: +234 8148922270

Email: support@probono.ng Website: https://www.probono.ng/

Women’s Rights Advancement and Protection Alternative (WRAPA)

Front Page

Contact Information

19, Monrovia Street, Off Aminu Kano Way, Wuse II, Abuja

Phone :08188699961, 08172125692, 07063807887

Email:Wrapa399@gmail.com, wrapa399@yahoo.com

Justice Development and Peace Center (JDPC) of the Catholic Secretariat of Nigeria

Contact Information

Lagos: 19, Maye Street, Yaba, Lagos jdpcarchlag@yahoo.co.uk, +(234)8102580516

Ibadan: http://www.jdpcibadan.org/, Inside St. Patrick’s Catholic Church Compound, Bashorun, Ibadan, Nigeria, jdpcibd@gmail.com, +234 (2) 7519315

Sokoto: https://catholicdiocese-sokoto.org/jdpc, Catholic Diocese of Sokoto, St. Bakhita Secretariat, No 1 Aliyu Jodi Road, +234(0) 8060934550, admin@catholicdiocese-sokoto.org

Abuja: https://jdpcabuja.org.ng/, Flat 1, Block 6, No 2, Oba Close Off Mokwa Street, Off Bendel Street, Area 2, FCT Abuja, jdpcabuja@yahoo.com, +234 807609825, +234 8038765410

Pro bono Services by Lawyers

It is also worthy of note that most lawyers offer free legal services (also called pro-bono services) to indigent persons out of their own volition or free will. These services are usually provided by lawyers without anticipation of financial remuneration or payment of legal fees. To help further, we started the LAWgically Speaking Blog to offer free legal information for every Nigerian.

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The information above is only provided for general information purposes and does not amount to legal advice or soliciting. Also, No Lawyer-client relationship has been created and neither can such a relationship be implied. This information is not intended to substitute the services of a lawyer, if you need legal advice, kindly consult a lawyer for your specific needs. For any further information, you could send us a mail via contact@ls-ng.com.

As a young child, were you ever caught by your Dad with a hot piece of meat? Like, caught ‘red-handed’. Right before you could toss the attractive piece of meat into your mouth and say nothing happened?

Or maybe Dad never caught or saw you but little Sis always did and threatened to tell Dad what she caught you doing. Now, did it happen that Daddy never allowed you to explain what you were really doing since little sis “caught” you red-handed and He often began to flog the living heaven into you?

But wait a minute, it could have been that you had a proper explanation for why you were caught in the ‘compromising situation’

• For instance, WHAT IF you were only returning the meat to the pot, and not removing that meat found in your hand?
• WHAT IF big brother had forgotten to give you meat and asked you to go and remove a piece of meat from the pot?

When Little Sis told on you, Daddy may not have had the patience to listen to your proper explanation before handing down the cane treatment (a.k.a flogging). Unlike Dad, the law actually considers things differently. So, the law places a duty on a Judge to exercise patience enough to listen to that explanation of yours. In fact, the law gives you a right to make your explanation. This is where your right to fair hearing comes in!

So for the records, remember that even with a lump of stolen meat in hand, the law gives you a right to a fair hearing. We will explain how it all fits in.

What Does the Right to Fair Hearing Basically Mean?

The right to Fair hearing is a Constitutional right granted to everyone who goes before or is brought before a court or an administrative tribunal. Section 36 of the 1999 Constitution of the Federal Republic of Nigeria contains the relevant provisions for the right to fair hearing.

The Two Pillars of the Right to Fair Hearing

The right to fair hearing has two major ambits, parts or pillars.

The first pillar of the right is that ‘both parties must be heard’. In Latin we say it this way; ‘Audi Alteram partem’ which means – hear the other side.

Usually, there are two sides to every case or dispute. These sides are what we have just called ‘parties’. Therefore in our illustration, Little Sis (the accuser) is a party and you (the accused pot opener) are ‘another’ party while Dad is certainly the Judge.

This pillar of your right to fair hearing implies that you as well as your opponent or accuser should be given equal opportunity to present your respective cases. Also, each party is entitled to know what are the allegations being made against him or her and be allowed to be heard before a verdict (or judgment) is given. A Judge is therefore at all times expected to allow both parties to present their cases and should listen to the case of each party.

Applying this to our illustration, it simply means that Dad is to allow you and little sis to explain what happened before he decides to punish or applaud you.

A Justice of the Supreme Court once explained it this way; “It is the duty of anyone in control of proceedings to allow both parties to be heard and should listen to the point of view of each. Even God saw Adam eat the forbidden fruit which he warned him never to eat but the Lord still gave Adam a fair hearing when the Lord asked “Did you eat the fruit I told you not to eat”? See Genesis 3:11. It was after Adam was unable to give a satisfactory answer that punishment followed. That was the beginning of fair hearing.”; JUDICIAL SERVICE COMMISSION OF CROSS RIVER STATE & ANOR. v. YOUNG (2013) LPELR-20592(SC)

Let us emphasize also here that as a part of the right to fair hearing, when anyone is accused of committing a crime and charged to court, by Section 36(5) of the 1999 Nigerian constitution that person is presumed to be innocent until his or her guilt is proven. This is why even persons accused of the most heinous crimes are allowed to defend themselves in court either by themselves or through a lawyer of their choice.

Got the picture right?

The second pillar of the right to fair hearing is “a person should not be a judge in his own cause”. There is a Latin phrase for this too – ‘Nemo Judex in causa sua’. This pillar really implies that no judge should preside over a matter in which he has a personal interest or involvement. Every judge is to be an independent umpire or referee called upon to settle the dispute without bias or even the likelihood of bias. Anyone can only imagine or expect that if the judge was even ‘remotely’ interested in the result of the dispute or case, he would not be fair in his judgment.

In summary, both pillars of the right to fair hearing are mainly to the effect that; no person shall be a judge in his own cause and that both sides to a dispute have an equal opportunity to present their case.

A Short Graphical Illustration of the Right to Fair Hearing

The graphical illustration in this article is meant strictly for explanation purposes. Kindly swipe to view them.

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How Does Your Right to Fair Hearing Play out in Court?

1. You must be informed of the case against you and given adequate opportunity to prepare for your defense;
2. All important materials of evidence, including documentary and ‘real’ evidence unfavorable to you (and which your accuser intends to use) are to be given to you to enable you to prepare your defense;
3. You’re to be present during the Proceedings and hear the evidence against you. There are actually instances where the proceedings may continue if you knowingly and persistently absent yourself from Court.
4. You are to be allowed to cross-examine all the witnesses that testify against you. Cross-examination simply means asking the witnesses some questions in other to challenge their evidence. Where you are represented by a lawyer, he or she would carry out the cross-examination;
5. You are allowed to give evidence for yourself, call witnesses, if you choose to, and make oral submissions, whether personally or through a lawyer of your choice.

If you do not have the necessary financial resources to get the services of a lawyer, there are organizations that offer free legal services. You could find out about them and get their contact details here.

So now you know about your right to fair hearing.

Aniekan Imeh LLB.

The information above is only provided for general information purposes and does not amount to legal advice or soliciting. Also, No Lawyer-client relationship has been created and neither can such a relationship be implied. This information is not intended to substitute the services of a lawyer, if you need legal advice, kindly consult a lawyer for your specific needs. For any further information, you could send us a mail via contact@ls-ng.com

What happens when a person dies without a will? Is there still a way of protecting his or her family’s interests in his/her assets and ensuring that family members are not cheated out or deprived of inheriting their late predecessor’s assets? First off, to commence my narration and place issues in perspective, kindly permit me to tell a short fictional story. Thank you. Permission accepted.

Chief Iwuezim OFR is a prominent titleholder in Nigeria and he is absolutely rich. In fact, simply saying that ‘Chief is rich’ is almost demeaning. The ‘length of his wealth’ is best described in these words of his native tongue- ‘Chief bu onya ego’ which is translated as – Chief is the trap of money. This native description does not encapsulate the entirety of Chief’s eminence; a board member of some prominent multinationals in the United States, owner of choice properties around the globe, business interests in many oil blocs and of course father to a community of children (both known and yet to be discovered) from his hamlet of ‘wives’, female companions and secretaries.

Rings a bell? Don’t worry, this is not a remix or retelling of the Chief DADDY movie. That is because this our dear Chief Iwuezim did not write a will before his untimely death last night[1]. Chief simply slept and has not blinked his eyelids as we speak. Now as you may have expected, the family is agog. As the news filters around town – Chief’s family, associates, and others are all gearing up.

Rita Iwuezim was the Chief’s only wife ‘within’ the house. The remaining ‘wives’ were actually the ceremonial sharers of her husband- the now late Chief Iwuezim. Rita knew these women were around though she was never had time to bother about catching them. Subconsciously, she had come to treat them as anyone would treat the secret service – you watch them in movies knowing that they surely exist somewhere but you never make it your business to look for a secret service agent as long as your life is going well. What shall Rita now do? Surely Chief’s younger brothers would be visiting with their individual sharing formulas for his properties. His previously unknown concubines will also want a portion of Chief’s wealth.

Thanks for reading my blockbuster story. I now resume my actual gist by mentioning two key points.

My first point is, you don’t want to be Chief Iwuezim by not making your will and I will explain why.

My second point is even where a will is not written or prepared, there is still a provision in the law that can safeguard the interests of your immediate family and loved ones. But for this safeguard to apply, there is one condition you must comply with (while alive). This condition will be addressed subsequently.

Before, going further into our discussion, I would love to explain some words you will meet as you read along;

When a person dies ‘testate’ – this means he made a will before he died

When a person dies ‘intestate’ – this means he died without making a will

A testator – is a person (male or female) who makes a will

Estate (as used in law) – this means all of someone’s money or property.

With those terms out of the way, I continue with my first point earlier raised –

Make your will while alive (put differently – die testate)

I know that this point should sound obvious. The truth is that many persons downplay the need to make a will. In fact, to some people, the suggestion to make a will means one is wishing them ill will or untimely death. I will kindly advise that you discard the thought if you are in either of these categories.

The truth is the advantages of making a will are so numerous that ‘not making a will’ is particularly risky. For the records, let me state very clearly that making a will is the most concrete way of protecting your assets and interests after death. This is because by making a will, you have done some ‘basic home-keeping’ and can dictate what should be carried out as your last wishes when you are no more. You also get to determine who should carry out your last wishes in the will.

In fact, to demonstrate the importance of making a will, I will borrow the words of the Supreme Court.  In Idehen v Idehen, the Court said a lot including this – ‘the Chief if not the only aim of making wills is to allow owners of property or rights to indicate how their affairs on their death could be arranged. This involves the person to whom their property could be given or those to succeed them otherwise. For instance… the testator can appoint as head of his family a person other than his eldest son, or extend the category of the beneficiaries beyond his nuclear family”

There are other advantages of making a will and we will address this in a fuller blog post.

Also, I must mention that there are still some restrictions on your ‘will-making superpower’. If I were to state that as a lawyer I would say- there are restrictions on your testamentary freedom. That really means, that in some cases, you might not be able to share all of your property using a will. For example, a person who is an adherent of the Islamic faith (in some states such as Kaduna, Oyo, Plateau, Jigawa, Kwara, and Bauchi States) cannot share his properties anyhow he desires but must comply with the tenets of Islamic law when making his will.

That said, in the unlikely event that you do not make a will after my brief TED talk above, I will go on to the second point I’ve already mentioned in passing. The point about the provision of the law that could still substantially safeguard the interest of your immediate family and loved ones where no will was made before death. For this provision of the law to apply, there is a fundamental condition that must be fulfilled which is – get married under the Marriage Act.

Get Married ‘under the Marriage Act’

Getting married under the Marriage Act is really not rocket science. To marry under the Marriage Act, the intending couple is expected to comply with the conditions provided by the law and they will be issued a certificate of marriage. To safely illustrate it, what is usually referred to as ‘Court Marriage’ is really an instance of marriage under the Marriage Act.

At this point, permit me to drop a shocker or spoiler alert. Here we go – did you know that most church weddings are not marriages under the Marriage Act? This in effect means that the protection offered by the Law to married couples does not apply to most marriages conducted in churches these days. But why is that so you ask? For a church to properly conduct a marriage under the Marriage Act, it must be a ‘licensed place of worship’ and there should be compliance with other requirements stated by the law especially Sections 7 to 17 of the Marriage Act. In practice, this is not done by most churches.

You can confirm churches that are licensed to conduct marriages in your local government area by visiting this portal created by the Ministry of Interior. https://ecitibiz.interior.gov.ng/worship/Placeofworshipsearch

Let’s proceed from our exposition above. Our focus now is – How does getting married under the Marriage Act help where someone dies without making a will. 

Where a person dies without making a will, if he was married under the Marriage Act, by operation of law, the interest of his family (especially his nuclear family) would be substantially protected. This is because his estate will be distributed according to the Administration of Estates Law and not his custom. This law provides a priority list of persons who can apply for ‘letters of administration’.

Let me give a foundational explanation at this point before I go further. Remember we mentioned earlier that when making a will you have (as the testator or maker of the will) the opportunity to appoint persons to carry on your last wishes. These persons are referred to as personal representatives. When a person dies testate, his personal representatives can easily be identified because they will be mentioned in the will and then they can take relevant steps to take control and administer the testator’s estate. Where the person dies intestate, persons who consider themselves as personal representatives are to apply for ‘letters of administration’. Until these letters of administration are granted, the law is that the deceased’s estate is ‘vested in the Court’. This means that survivors and family members of a man or woman who died without a Will have no power over his or her estate until letters of administration have been granted by the Court[2]. These letters of administration give authority to the personal representatives to take over, control, and distribute the deceased’s estate.

Like I mentioned previously, the Administration of Estates law gives a priority list of persons who are entitled to apply for letters of administration where a person dies intestate (Section 49 of the Administration of Estates Law of Lagos State).

Here is the priority list;

1. Surviving Spouse

2. Children of the Deceased or the issues of the children of the deceased (who died before the deceased)

3. Parents of the deceased

4. Brothers and sisters of the deceased of full blood and their surviving children

5. Brothers and Sisters of the deceased of half-blood and their surviving children that are sui juris

6. Grandparents of the deceased

7. Uncles and Aunties of whole blood or their surviving children

8. Creditors of the intestate estate[3]

You may ask – what effect does this list really have?

Because of the priority list, it is not any person that can or will just wake up and want to run affairs of the money or properties of a deceased person by applying to Court to given letters of administration.

A real example can be seen in the case of Obusez v Obusez; a case that got to the Supreme Court.

The long and short of what we have explained so far is –

1. Make a will to cater to the needs of your loved ones upon your death.
2. Where you haven’t made a will yet, ensure you are married under the Marriage Act.

Thanks for going through this long read.

Oh and kindly forgive me, I will keep you up to date with the current state of commotion at the Late Chief Iwuezim’s residence soon. In the meanwhile –

Nkobowo Nkobowo BL (Reporting)

As Usual, we have taken care to ensure the information above is correct but it is only provided for general information purposes and does not amount to legal advice or soliciting. This information is not intended to substitute the services of a lawyer, if you need legal advice, we advise that you consult your lawyer for your specific needs and peculiar circumstances. For any further information, you could send us a mail via contact@ls-ng.com

[1] In law, we would say, Chief died intestate.

[2] See the article by Ebun-Olu Adegboruwa SAN. It also makes for an interesting read on this issue- https://thenigerialawyer.com/administration-of-estates-law/.

[3] Sections 26 and 49(1) of the Administration of Estates Law of Lagos State have been the focus of this article.

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