THE GOVENORS' FORUM AND THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA CANNOT E

 RIOK NIGERIA LIMITED VS. INCORPORATED TRUSTEES OF NIGERIAN GOVERNORS' FORUM & ORS (2022) LPELR-58087(SC) Per AGIM, JSC (Pp. 37-39, para D)

The Supreme Court in the above cited suit resolved the issue as to whether the Governors Forum and the Association of Local Governments of Nigeria can perform the duty of Government. The apex Court held decisively (per Agim, JSC) thus:

I cannot help wondering about the Constitutional or statutory basis for the exercise of the powers of States and Local Governments by non-governmental associations such as Governors Forum and Association of Local Governments of Nigeria. 

My impression is that the two bodies collected London and Paris Club refunds from the Federal Government on behalf of the States and Local Governments, engaged consultants, awarded contracts on behalf of the said governments and made payments from the said funds on behalf of the said governments. 

The fact that Governors Forum consist of Governors of States, does not automatically vest it or delegate to it the power of each State government in Nigeria. The governor of a state is not the State or the State Government. He is merely the head of the executive arm of the State government. The government of the State is vested by the Constitution on the State Government to be exercised in the manner prescribed by the Constitution. The Nigeria Governors Forum is not part of a State Government. There is nothing in the 1999 Constitution creating it or allowing it to function as the State government or part of it. 

Equally, ALGON is not part of a Local Government Council or Area Council. There is nothing in the 1999 Constitution or any Act or Local Government Law making it part of the Local Government. The fact that ALGON is made of Chairman of Local Governments does not vest it or donate to it the power of each Local Government in Nigeria. As the Chairman of the Local Government Area or Council, he is merely the head of the Local Government.

 The funds belonging to a state or Local Government must be kept in an account belonging to the State or Local Government as the case may be, and disbursed or expended by the State strictly in the manner and for the purposes prescribed in the Constitution and an Appropriation Law or as prescribed by the House of Assembly of the State and in the manner and for purposes prescribed in the Constitution, a Local Government Law or as prescribed by the Council of the Local Government. 

The collection and use of funds belonging to the State Governments and Local Governments by the Nigeria Governors Forum and ALGON subverts the Constitution and the rule of law. It is a democratic governance aberration.

EFFECT OF COURT MARRIAGE ON ESTATE DEVOLUTION/SUCCESSION

Marriage under the Act, what we call Court Marriage today, upholds the system that marriage is strictly between the duo involved (husband and wife) to the exclusion of any other. This form of marriage, unlike its customary marriage counterpart, leans heavily on the protection of marriage contracted under it, even up until/after the death of one of the spouses. How a deceased married man or woman's estate will be administered/distributed where he/she dies without leaving a valid Will depends wholly on the nature of marriage he/she contracted while alive.

Yes. When a person who was married with children dies intestate (without a will) then the following questions arise for determination- Who are the beneficiaries entitled to the deceased’s property? Should the estate devolve according to Customary Law or the received English Law? What happens to the deceased children born outside wedlock, are they entitled to partake in the deceased estate? Resolution of these questions sometimes causes the members of the family to engage in bitter dispute which has resulted into litigations/lawsuits.  

 One of such lawsuits is the case of Salubi v Nwariaku (2003) 7 NWLR (Pt. 819) 426, where the Supreme Court held that the applicable law to the succession and distribution of the estate of the deceased who died intestate without a Will but married under the Marriage Act was the Administration of Estates Law and not the Marriage Act. The Court further held that both laws have similar provisions and apply the English law on the subject.

Section 49 of the Administration of Estates Law deals with succession to real and personal estate on intestacy. Section 49(5) states that, “Where any person who is subject to Customary law contracts a marriage in accordance with the provisions of the Marriage Act and such person dies intestate after the commencement of this Law leaving a widow or husband or any issue of such marriage, any property of which the said intestate might have disposed by Will shall be distributed in accordance with the provisions of this Law, any customary law to the contrary notwithstanding.” Section 36(1) of the Marriage Act states that, “where any person who is subject to customary law contracts a marriage in accordance with the provisions of this Act and such person dies intestate leaving a widow or husband or any children of the marriage, the real and personal property of such person which might have been disposed off by a Will, shall be distributed in accordance with the provisions of the Laws of England relating to succession of estates, notwithstanding any contrary customary law.” The difference between the provisions of both laws is that, while section 36(1) of the Marriage Act incorporates by reference the English law into our law of intestate succession, section 49(1) of the Administration of Estate Law directly enacts the provisions of the English law on the subject into Nigerian law.

The Supreme Court also decided on the issue of the estate succession of children born out of wedlock. The Supreme Court held that such children were legal beneficiaries and therefore entitled to share in the estate of their father because the provisions of section 42(2) of the 1999 Constitution prohibits any form of discrimination by reason of the circumstances of birth.

 Another of such cases is Obusez v Obusez (2007) 10 NWLR (pt. 1043) 430 S.C, wherein the Supreme Court followed its decision in Salubi v Nwariaku and held (per Onnoghen JSC) as follows: “It is not disputed that the deceased and the 1st respondent were married under the Marriage Act in 1972 but that prior to that marriage both parties were subject to customary law with the deceased being particularly subject to Agbor Customary Law. It follows, therefore, that by virtue of the said marriage and upon the death of the deceased intestate, the provisions of the Administration of Estate Law of Lagos State becomes applicable particularly as the deceased and 1st respondent together with the children of the marriage resided in Lagos State at the time of the death of the deceased intestate.”

 From the above, we can authoritatively drive home the point that those entitled to the estate of a deceased person are determined by the law under which the deceased contracted his marriage at the time of his death. If the deceased was married under the customary law, the customary law of his native land on succession/devolution applies. If the deceased, on the other hand, was married under the Marriage Act, the Administration of Estate Law applies. However, the best bet to circumvent the headaches that come with  dying intestate is for all Men to write their Wills while still breathing especially persons who own substantial properties as well as those with children out of wedlock. Writing a Will is the only solution to posthumous family feuds.