This study was carried out as a comparative analysis of the intestate rules of succession and the testate rules of succession in Nigeria. Intestate succession which under customary law governs issues of personal relation such as marriage and divorce, legitimacy and legitimation, validity of wills, adoption of children and succession but legal pluralism creates an atmosphere of legal confusion, whereas, there is expectation of a single codified law guiding intestate succession under customary law. This study examined the dilemma and complexity of legal pluralism as it affects intestate succession under customary law in South-West Nigeria. The research adopted doctrinal methodology, historical and comparative approaches that examined theories, laws and decisions of both inferior and superior courts based on choice of law rules. Sources of data included statutes, subsidiary legislations, rules of customs obtained from case law, journals, books, Internet sources and law reports. The study was interpretative in nature and provided normative content evaluation of legal reasoning in case law on intestate succession. Findings revealed that Nigeria has not adopted appropriate mechanisms to harmonize the multiplicity of intestate laws. It was found that there were two broad modes of inheritance under the Yoruba customary law, vizIdi-igi(per capita) and Ori-ojori (per stirpes). Furthermore, the rule of inheritance is not equitable particularly where Dawodu, the head of the family doubles as beneficiary and a trustee of the estate on behalf of other beneficiaries. On the contrary, Islamic law spells out the quantum of assets (ogun-inheritance) to be inherited without undue advantage to the beneficiaries. The study found that the complication emanated from the various choice of law rules contained in High Court law, Marriage Act, Administration of Estate law, Customary Court Law on one hand and decisions of courts on the other hand. The study concluded that the lack of unification of intestate succession rules in Nigeria is largely responsible for the series of contradictory decisions of various levels of courts. The study recommended the reform of customary law in Yoruba land to correct existing inequalities, enlightenment campaign through mass media on equity of apportionment as proposed in the distribution of intestate estate. The establishment of Law Reform Commission at the State and Federal levels is imperative to permit women to inherit their husband’s estates, while the judiciary should be proactive in implementing Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
1.1 Background to the Study
A person may make an outright gift of his property, movables or unmovables when still alive, that is, inter-vivo. He may choose to make a gift of all or part of his estate by will which would take effect on his death. However, should he decide to die without distributing all or part of his property, he is said to have died intestate in respect of his entire estate or part of the estate left undistributed. In such a situation, the estate concerned will be distributed in accordance with the provision of the law governing intestate succession. This work seeks inter alia ascertain the applicable law of intestate succession under the Yoruba Customary Law of South-West Nigeria. It is obviously not sufficient to identify the rule of succession, as such, it is of paramount important to know when such rules will apply within the context of pluralism of laws in these states. The techniques of choosing one of several potentially applicable laws in any given situation is one of the main functions of science of conflict of laws. Usually, this choice is between territorially- based systems of law. However, the imposition of European Metropolitan laws on many countries in Africa and Asia has resulted in the co-existence of two or more systems of law in a single jurisdiction without spatial separation. Such a situation has come to be known as legal pluralism.
Customary law is connected to distinct ethnic or cultural groups when the legal system in such diversified society operates a plurality of laws. Islamic law, on the other hand, is a product of Islamic thought, a system of law in which legal rules, ethics, religion, rituals and politics are closely intertwined. In contrast to customary law, which is unwritten but additionally regarded as divine, Islamic law is written. English law was introduced to Nigeria after the signing of the Pact ceding Lagos and its Island to the British Crown. Since then, English law has been part of Nigerian laws.
The concern in this study is that legal pluralism has become a challenge to the existing customary laws. Prior to the introduction of foreign laws, the Yoruba people depended on customary laws to resolve their disputes. However, the application of the rules of customary law has been subjected to a good deal of restraints under the prevailing plurality of law. It is as stated by Agbedethat:
this pluralism of law is by no means a particularity of Nigerian legal system. It is a common faeture of legal systems in nearly all countries in Africa. The problem of resolving conflict between general law and the local laws has aroused considerable interest for the reform and integration of laws in the various countries.
 Nigeria is no doubt a multi-lingual state with diverse, varied and various ethnic groups, cultures and traditions. The sociology of the country-Nigeria is not only complex but highly diversified and heterogeneous.
 Edward Hooker; Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford University Press, 1979) p 2. Brian Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’,( Sydney, 2008) p.375 Niki Tobi, Sources of Nigerian Law, (Lagos: MIJ Publishers Limited,, 2006) p 153
 Epiphany Azinge and Animi Awah (edited); Legal Pluralism in Africa: A Compendium of an African Customary Law, (Lagos: Nigeria Institute of Advance Legal Studies,2012) p 3.
See Brian Z Tamanaha, supra p.375. In addition, Pluralism occurs in a legal system due to a number of reasons but it occurs mostly due to legal transplantation. This is very common in former colonies, where the law of a former colonial authority exists alongside those of the independent colony even after independence has been achieved. Azinge et al stated further that, it is a situation where the indigenous laws and the foreign laws of the colonial authorities form the legal system of such countries. The reality of legal pluralism according to the duo authors is that the legal system is fashioned out in such a way that the colonial laws will govern commercial and corporate matters while the indigenous-customary laws will govern traditional and customary matters such as Succession, Marriage and divorce.
 It is regarded as sacred law, on all- embracing body of religious duties and obligations. It is the totality of life of Muslims. It is Allah’s commands that regulate the life of Muslim in all its aspects. Its analogical deductions cover myriads of situations that arise in the normal course of human life. Sharia is the ideal code of conduct.
 Sharia or Islamic Law is the law of Allah given to His messenger Prophet Mohammed to guide his people (Muslims). Allah commands Justice and it is administered in the name of Allah-Al Adii meaning ‘the just and Giver of Justice ‘to judge justly’.
 As far as Nigeria is concern and South-west particularly, Received Law implies Common Law of England, doctrine of Equity, Statute of General Application in Force in England as at July 24th, 1874 ( later varied and) referred to 1st January 1900 or other enactments of Westminster Abbey which were received into Nigeria by local statutes. Generally refers to Ordinance No 3 of 1863, Supreme Court Ordinance of 1914 and High Court laws of each state.
 The problem of internal conflict of laws in Nigeria does not only arise between the general law and customary laws. ‘General’ law in the sense that it has overriding effect on inconsistent rules of customary law. The federation of Nigeria has an area of 356.6 thousand square meters, and a population of over one hundred and forty million, is the most populous nation in Africa. Its people are made up of 250 ethnic groups, each with its own variety of customary law. See Obafemi Awolowo, Thought on Nigerian Constitution, (Ibadan: Fagbamigbe Publishers, 1966) p 24; Agbede , supra. p 34.
Agbede, Legal Pluralism in Nigeria, (a PHD thesis, submitted to University of London, 1970) p 48.