ABSTRACT
This study examined the law of succession under the Nigerian customary law under Igbo, Yoruba and Hausa customary law. 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. 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. With respect to lands and houses, under the Igbo customary law practice, the study found out that the eldest son inherits his father’s compound (known as the Obi) exclusively in some Igbo Communities. A man’s land and houses other than his compound are inherited by his son or sons as a corporate body. The rule of the customary law of succession of the Yoruba is that the property of a person who died intestate is inherited by his surviving children. The Yoruba customary law rules of intestate succession are well settled and have been applied on several occasions by the courts. In some areas of the northern Nigeria, there still exist indigenous native laws and customs that are not Islamic law. However, the general rule is that where a man dies, his sons will inherit his property first, and the brothers are next in line. Females do not inherit a deceased man’s property but may inherit their mother’s entire moveable property. Only the males inherit land whether owned by a man or a woman. The study recommended that Establishment of Law Reform Commission at States and Federal Levels to reform the Customary Law in Igbo, Yoruba and Hausa culture should be adopted.
TABLE OF CONTENTS
Abstract
CHAPTER ONE: INTRODUCTION
1.1 Background of the study
1.2 Statement of the problem
1.3 Aim and Objectives of the study
1.4 Contribution to knowledge
1.5 Research Methodology
1.6 Scope of the study
1.7 Limitations
1.8 Literature review
CHAPTER TWO: CONCEPT OF SUCCESSION AND INHERITANCE
2.1 The Concept of Succession
2.2 Testate and intestate succession to properties
2.3. Intestate inheritance to properties; What law will be applied?
2.3.1. Common Law:
2.3.2. Statutes:
2.3.3. Customary law:
2.3.4 Customary law/Islamic law
CHAPTER THREE: SPECIFIC MODES OF SUCCESSION AMONG THE VARIOUS TRIBES IN NIGERIA
3.1 Intestacy under Igbo Customary law
3.2 Intestacy under Yoruba Customary Law
3.3 Intestacy under Hausa Customary Law
3.3.1 The Indigenous Native Laws and Customs of Succession
3.3.2 Islamic law of Succession
CHAPTER FOUR: CUSTOMARY LAWS, CULTURAL DIFFERENCES AND THE DISTRIBUTION OF PROPERTIES
4.1 Customary succession and inheritance law of the Hausa
4.2 Customary succession and inheritance law of the Igbo
4.3 Customary succession and inheritance law of the Yoruba
CHAPTER FIVE: SUMMARY, CONCLUSION AND RECOMMENDATION
5.1 Summary of the study
5.2 Conclusion
5.3 Recommendations
References
CHAPTER ONE
INTRODUCTION
1.1 Background of the study
Ordinarily, every mortal that passes through this earthly terrain strives to acquire some properties and chattels of his own, and values the manner and to whom these properties would be distributed under law after his death. This art of distributing the properties and chattels of a deceased person to the living is referred to as succeeding to the rights of the deceased. “Succession”, therefore, is the process of transmitting the rights and duties of a deceased person pertaining to his estate, office and dignity to persons who succeed him, such as his heirs, children, spouse or relatives, in a manner sanctioned by the law. Once this is done, those properties are deemed to belong to the beneficiary, that is the successor to whom they have been given. It is then said that the properties have been inherited by the said beneficiary. Hence, it is hardly possible to use the word “succession” without accompanying it with its twin concept, “inheritance”. According to Emiola,[1]however, the two words, though similar in meaning, are in no way like Siamese twins. Inheritance, in his view, is an estate or property that a man acquired by descent and can be transmitted to his heir in the same way on his death in intestacy, while succession includes the devolution of title to land by will as well as accession to office and dignity.
Moreover, giving another view of succession, Oni[2]was of the opinion that the law of succession involves the transmission of the rights and obligations of the deceased person in respect of his estate to his heirs and successors. He believes that it equally deals with the rules governing the administration of the estate by the personal representatives of the deceased person, including state participation in respect of the real estate situated within its territory and the personal estate of the deceased person, subject to its jurisdiction. It is, however, necessary to add here that the state will usually come into the matter if there is difficulty in ascertaining the heir or next-of-kin of the deceased who could succeed him, or if the successors are not agreed on what should be given to each of them.
Succession in a sense means the passing of all aspects of the judicial personality of the deceased. That is his status as husband, father, chief, and head of family and property holder, creditor, and debtor and also includes all pending law suits, other personal ones such as suit for defamation. Thus, it can be seen that succession is used to denote the passing of the property and status from deceased to the beneficiaries. It should be stressed that there is a thin difference between succession and inheritance as a result of the fact that one extends in coverage than the other, suffice it to state that they differ in the area of coverage only. But in substance, they mean the same thing as the passing over of the property possessed or owned by the deceased.
Suffice it to say from the onset that succession may either be testate or intestate, depending on the circumstances or the state of affairs of each deceased person. While testate succession refers to the affairs of a deceased person who made a will before his demise, intestate succession, on the other hand, is what obtains when a deceased person did not make any will before his death. The estate of a person who made a will before his death will normally be distributed according to the dictates of his will, but the person who died intestate would have his estate distributed in line with one of the options that are usually available. There are different systems by which the successors of a deceased may be determined. Basically, both customary and statutory laws govern this aspect of succession. However, the factor which determines which system is to apply in a particular case, according to Sagay[3], is the type of marriage contracted by the intestate. He states that:
Finally, if the intestate person was an indigenous Nigerian and he did not contract a Christian or Act marriage, or even if he did, and no issue or spouse of such a marriage survived him, his estate will be distributed in accordance with the relevant customary law. If the intestate was a Muslim, then Islamic law would govern. Also, where a person who is subject to customary law or Islamic law dies intestate, it is his personal law that will apply to the distribution of his property and not the lex situs.[4]
Three options clearly emerge from the above quotation:
1. a person who marries under the Matrimonial Causes Act (NGA) or contracts a Christian marriage would normally have his property distributed in accordance with the Act;
2. a person whose marriage is contracted in accordance with customary law would have his property distributed in line with customary law; and
3. a person who contracts his marriage according to Islamic injunction would have his property distribution governed by Islamic law.
If a person dies intestate, therefore, any of these options may apply to his state of affairs depending on the type of marriage he contracts, ie it is the type of marriage that one contracts that dictates the law to apply in the distribution of his estate.
Customary law is connected to distinct ethnic or cultural groups when the legal system in such diversified society operates a plurality of laws.[5] 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.[6] In contrast to customary law, which is unwritten but additionally regarded as divine[7], 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.[8] Since then, English law has been part of Nigerian laws.
The patterns of inheritance and succession,[9] particularly under intestate estate under customary law in Nigeria, have almost as many variations as there are ethnic groups in the country, and many of the variations are discriminatory in authority practice. The law of succession and inheritance reflects Nigeria's plural legal system. Indigenous customary law developed rules of inheritance for intestacy through the traditional canon of descent, as adapted over the years to changes in the society[10] and the rule of natural justice as applied by the courts.[11] Rather than trying to cover all the patterns of succession, this work examines a few of the succession patterns,[12] with particular reference to the Hausa, Igbo and Yoruba customary law and propose reforms in line with the provisions of the constitution.
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