AJIBAIYE v. AJIBAIYE (2007) 18 LRLR Vol 8 911

(2007) 18 LRLR Vol 8 911

Alternative Citation
(2007) All FWLR (Pt. 359) 1321
The deceased Testator, One Alhaji Disu Ajibaiye from Kwara State in Central Nigeria, made a Will dated 30 September 2002. The Testator died on 29 January, 2004. Only the third and youngest wife of the deceased (appellant) had knowledge and information of the Will.
The appellant relied on the dispositions made in the Will, which the respondents objected to, contending that the Testator, being a Muslim could not make a Will. On trial at the High Court, the learned judge found that the Will dated 30th September, 2002 purporting to be the Will of a Muslim, Alhaji Disu Ajibaiye, governed by Muslim personal law, disposing by will all his property in accordance with the Wills Act 1837 of England having regards to section 4(1) of the Wills Law of Kwara State is invalid, null and void…
The appellant had attempted at the trial to establish by evidence that the deceased could not have been subject to Islamic law because of his lifestyle. This was dismissed by the learned judge and affirmed on appeal; the Court of Appeal held that despite the allegation, the Testator was a Muslim and had not renounced his faith. Further, that even if the Testator had children out of wedlock and had sold and consumed alcohol as alleged, “there is no controversy” about his faith. To say otherwise, is “merely splitting hairs” and making a “distinction without a difference”. That assuming “…the deceased...committed any wrong when he was alive…he can only be sanctioned by the law of his faith. It is not for the appellant or anyone to judge.” The court found evidence of the faith of the testator (that he was subject to Islamic law) because of the text of the Will, where the Testator directed that “My burial should be done in accordance with Muslim rites without drinking of alcohol either on the date of my death, burial or the days prayer.”
The Court of Appeal answered held that the Will is ab initio void for being contrary to the Wills Law of Kwara State; and thus “the Testator could not have validly made a Will under the Wills Act 1837, a statute of general application which is no longer applicable in Kwara State.”
Secondly the Court held that the properties of a Nigerian Muslim in Kwara State after his death are ‘subject to the dictates of Islamic law of inheritance which does not allow a Moslem to dispose of his properties any how… The properties must be distributed strictly in accordance with Islamic law after the lawful heirs were identified.’
Thirdly the Court declared that the testator was a Muslim, and therefore subject to the application of Islamic law of Kwara State, notwithstanding his erroneous belief that he could still, while being a Muslim, elect to be governed by English Law in this regard.

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