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Judicial and Legislative Interventions in the

Indigenous Laws of Intestacy in Nigeria.

By

Unwana E. Udo

unwana.e.udo@gmail.com

AUGUST, 2014

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CHAPTER ONE

GENERAL INTRODUCTION

1.1. Introduction

Succession forms part of private and property law and is concerned with the principles which

determine the distribution of a deceased’s estate after his/her death. This chapter seeks to lay

a sound background to the study by considering preliminary issues which understanding is

key to appreciating the subject matter of the study.

1.2. Conceptual Discourse

This study contains some technical words and terminologies. For a proper understanding, it is

germane to define these terminologies in the context they are used in the study. This section

explores lexical, judicial and statutory meanings of these words. These terminologies are

defined below:

Succession

Succession is the devolution or transfer or passing down of property to living persons upon

the death of the owner of the property.1 It has also been defined as the acquisition of rights or

property by inheritance under the laws of descent and distribution.2 Succession may be testate

or intestate.

a. Testate Succession: Testate succession arises when a deceased person leaves a Will

stating how part of or the whole of his estate should be shared on his death.3 It is the passing

of rights or property by Will.4

b. Intestate Succession: Intestate succession arises where a deceased person fails to dispose

of the whole or part of his estate by Will.5 It is the method used to distribute property owned

by a person who dies without a valid Will.6 An intestate is one who has died without a valid

1 I. P. Enemo, Basic Principles of Family law in Nigeria (Ibadan: Spectrum Books ltd., 2008) p.375. 2 Bryan A. Garner, ed., Black’s Law Dictionary, 9th ed., (U.S.A.: West Publishing co) p. 1569. 3 I. P. Enemo, op. cit. p. 375. 4 Bryan A. Garner, op. Cit. p. 1569; Mudasiru v. Abdullahi (2011) 16 N.W.L.R. (pt.1274) 253 CA. 5 I. P. Enemo, op. Cit. p. 375. 6Motoh v. Motoh (2011) 16 N.W.L.R. (pt. 1274) 474 CA.

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Will. 7 Intestacy includes a person who leaves a Will but dies intestate as to some beneficial

interest in his real or personal estate.8

Will

According to the court in Ozomaro v. Ozomaro9, basically or essentially a Will is a written

instrument or document executed in accordance with the requirements or formalities put in

place by relevant statutes or laws whereby a person makes a disposition of his property (real

and/or personal) and which takes effect after the death of the maker.10

Estate

Estate denotes the whole properties acquired by a person during his lifetime; real property

(realty) and personal property (personalty).11 It means the property that one leaves after

death; the collective assets and liabilities of a dead person.12 The term connotes all debts and

liabilities of the deceased person prior to his death.13

a. Personal property: These are all the property owned by a person excluding land or any

interest in land, for example, money, goods, shares, etc.14

b. Real property: denotes land and whatever is affixed or attached thereon.15

Administration of Estate

Administration of estate means the manner or process by which the estate of a deceased

person is acquired, managed and distributed amongst the beneficiaries or disposed of by those

appointed either by the deceased or the court.16 Administration is the management and

settlement of the estate of an intestate decedent, or of a testator who has no executor, by a

person legally appointed and supervised by the court. 17 Administration of an estate involves

realizing the immovable and movable assets and paying out of them any debts and other

7 Ibid. p. 898. 8 S. 2(1), Administration of Estate Law, Cap. 1, Laws of Western Nigeria, 1959; S.2(1) Legitimacy Act, Cap. 519, Laws of Federation of Nigeria (LFN), 1990. 9 (2014) LPELR-22663(CA). 10 Kwentoh v. Kwentoh (2010) 5 N.W.L.R. (pt. 1188) 543 CA. 11 Bryan A. Garner, op. cit., p. 628. 12 Carew v. Oguntokun (2011) 5 N.W.L.R. (pt. 1240) 376 SC. 13 T. Animashaun and A. Oyeneyin, Law of Succession, Wills and Probate in Nigeria (Lagos: MIJ, 2002) p.3. 14 See section 2, Wills Law, Cap. 133, Laws of Western Nigeria, 1959. 15 Ohiaeri v. Yussuf (2009) 6 N.W.L.R. (pt.1137) 207 SC; ibid. 16 Duke v. Admin. Gen. (2010) 15 N.W.L.R. (pt.1217) 442 CA. 17 Ibid. p. 50.

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claims against the estate. It also involves the division and distribution of the residuary

estate.18

Personal Representatives

Personal representatives are persons appointed either by a testator under a Will or by the

court to manage the estate of a deceased person.19 Personal representative is a person who

manages the legal affairs of another because of incapacity or death.20 There are two types of

personal representatives: executors and administrators.21

a. Executor: An executor is a person appointed to administer the estate of a person who dies

leaving a Will whereby such appointee is nominated as a personal representative22 and to

carry into effect the provisions of the Will.23

b. Administrator: An administrator is a personal representative not named in a Will but is

appointed by the Court to manage and take charge of the estate of a person who has died

without making a valid Will, whose Will has no nominated executor or whose executor

nominated in the Will cannot act because such executor has been removed, does not desire to

act or for any other reason wherefore probate cannot be granted to the executor.24

Beneficiary

A person for whose benefit property is held on trust, especially one designated to benefit

from an appointment, disposition, or assignment (as in a Will, insurance policy, etc.), or to

receive something as a result of a legal arrangement or instrument. 25

Indigenous Law (Customary Law)

Okany26 describes the customary law of a community as a body of customs and traditions

which regulate the various kinds of relationship between members of the community.27

18 Ibid. 19 Duke v. Admin. Gen. supra. 20 Bryan A. Garner, op. cit., p. 1417. 21 Ibid. 22 The Free Legal Dictionary, Executor, (accessed April 14, 2014); available from http://legal-dictionary.thefreedictionary.com/_/dict.aspx/word=executor 23 Mudasiru v. Abdullahi (2011) 16 N.W.L.R. (pt.1274) 253 CA. 24 The Gale Group Inc., “Administrator,” in Encyclopedia of American Law, 2008, 2nd ed. 25 Ibid. at p. 176.

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Customary law has also been described by Park28 to be “used rather as a blanket description

covering very many different systems”. He goes further to state that “these systems are

largely tribal in origin, and usually operate only within the area occupied by the tribe”. Elias29

defines it as ‘the body of rules, which are recognized as obligatory by its members’. Obaseki,

J.S.C. (as he then was) in Oyewumi v. Ogunsesan30 defined customary law as follows:

The organic or living law of the indigenous people of Nigeria regulating their lives and

transactions. It is organic in that it is not static. It is regulatory in that it controls the lives

and transaction of the community subject to it. It is said that custom is a mirror of the

culture of the people. I would say that customary law goes further and imports justice to the

lives of all those subject to it.

The above definition has been given imprimatur in a plethora of subsequent judicial

decisions.31

1.3. Sources of Nigerian Law of Succession

The phrase ‘source of law’ means the original documentary source of information concerning

the existence of a rule of law. It also means the legal source, the origin from which a rule

derives its validity as a rule of law.32 It is the means through which a rule of law forms part of

the body of law (corpus juris). 33 Thus, the “sources of Nigerian law of succession” denotes

the documentary, historical and legal sources from which our succession laws emanate.

The sources of Nigerian law of succession may be categorised as follows34:

1. Received English Law

These are the English laws which have been received into Nigeria by local enactment35 and

consist of the common law, the doctrines of equity and statutes of general application in force

26 M. C. Okany, The Role of Customary Courts in Nigeria (Enugu: Fourth Dimension Publishers, 1984) p.39. 27 Olagbaju v. Abass (2011) 16 N.W.L.R. (pt.1274) 453CA. 28 Andrew Edward Wilson Park, Sources of Nigerian Law (London: Sweet & Maxwell, 1966) p. 65. 29 T. O. Elias, The Nature of Africa Customary Law (Manchester: Manchester University Press, 1956) p.55. 30 (1990) 3 N.W.L.R. (pt. 137) 182 at 207 followed in White v. Jack (1996) 2 N.W.L.R. (pt. 431) 407 at 412; Nwagbogu v. Abadom (1994) 7 N.W.L.R. (pt. 356) 357 at 363. 31 Ogwuegbu, J.S.C. in Dang Pam v. Sale Dang Gwom (2001) 1 W.R.N. 51 at 63; and Edozie, J.C.A. in Yaktor v. Govenor of Plateau State (1997) 4 N.W.L.R. (pt. 498) 216 at 228. 32 R. Cross, Precedent in English Law (Oxford: Clarendon Press, 1961) p. 147. 33 J. M. Bolaji, “A Comparative Study of Women’s Rights of Inheritance in Nigeria under Islamic Law and some Customary Laws” (Ph. D. Thes., University of Ilorin, Nigeria, 2011), pp. 26 – 105. 34 Ibid. 35 S. 32, Interpretation Act, cap. 123, Laws of the Federation of Nigeria (L.F.N.) 2004.

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in England on the 1st day of January, 1900.36 Examples of statutes of general application vis-

à-vis the Nigerian law of succession include Statute of Distribution37, Intestates’ Estate Act38,

Wills Act39 inter alia.

2. Nigerian Legislation

These are local statutes enacted by the relevant lawmaking authority i.e. the legislature.40

Examples of these with respect to the Nigerian law of succession include the Constitution of

the Federal Republic of Nigeria, the Administration of Estate Laws of various states and the

Wills Laws of various states.

3. Nigerian Case Law

This is law found in judicial decisions. It comprises the judicial pronouncements made by the

Courts in Nigeria in relation to matters of succession and inheritance in Nigeria.

4. Nigerian Customary Law/Islamic Law

As already stated, customary law of succession is derived from the established or common

practices of inheritance among the various ethnic groups in Nigeria. Though the Supreme

Court has pronounced that Islamic law is different from customary law,41 customary law as a

source of Nigerian law includes Islamic law. The Holy Quran is the first and primary source

from which all the teachings and laws of Islam are derived.42

1.4. Intestate Succession under the Statutes

It is appropriate to examine the mode of distribution of the estates of an intestate under the

local statutes on intestate, that is to say, the Administration of Estate Laws of those states that

have such laws. In view of the fact that the detailed rules distribution of estate on intestacy in

36 Osita N. Ogbu, Modern Nigerian Legal System (Enugu: CIDJAP Press, 2007) p. 53. 371670 (22 & 23 Car. 2 C.10) 38 1890 (53 7 54 Vict. C. 29) 39 1837 (1 Vict. C. 26) 40 Osita N. Ogbu, op. cit., p. 77. 41 Alkamawa v. Bello (1998) 6 S.C.N.J. 127 at 128. 42 I. N. Sada, ‘The Nature of Islamic Law; A Rigid or Dynamic System? A Critique,’ Ahmadu Bello University Journal of Islamic Law, vol. 11 No. 11(2000).

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the local statutes on Administration of Estates Law are lengthy, a summary of persons

entitled to share in the distribution of the estates as provided in the statutes is discussed.

The Administration of Estates laws of Oyo, Ondo, Ogun and Lagos States43 provide for a

wife, a husband, issue, parents, brothers and sisters of full blood, grandparents, uncles and

aunts (being brothers of full blood or half blood or sisters of full blood or half blood or a

parent of the intestate) brothers or sisters of half blood, as persons entitled to share in the

property of an intestate depending on who survives the intestate.

The Administration and Succession (Estate of Deceased Persons) Law of Anambra State44

provides for a spouse, issue, parents, brothers or sisters of whole blood, grandparents, grand

children, uncles and aunts (being full brothers or half brothers of full sisters or half sisters of

a parent of the intestate), half brothers and half sisters of the intestate, as persons who are

entitled to share in the estates of an intestate, depending on who survives the intestate.

The aforementioned Administration of Estates Laws also provides that the children of the

intestate have equal shares to the estates irrespective of their sex45 i.e. male and female

children share equally.

1.5. Testate Succession under Customary Law

Although the primary focus of this study is intestate inheritance under customary law, the

position with regard to testate inheritance under customary laws will be briefly stated.

Customary law Wills could be nuncupative (oral) or written. Most customary law Wills are

oral declarations made voluntarily by the testator during his lifetime.46 Disposition of

property by oral Will is recognised under customary law,47 for example, it is known as Ike

Ekpe under Igbo customary law.48 The Yorubas also recognise the disposition of property by

43 S.49(1), Administration of Estates Law (AEL), Cap. 1, Laws of Oyo, Ondo, Ogun States of Nigeria, 1978; S.49(1), Administration of Estates Law, Cap. 3, Laws of Lagos State of Nigeria, 1994. 44 S. 120, Administration and Succession (Estate of the Deceased Persons) Law, Cap. 4, Laws of Anambra State of Nigeria, 1987. 45 S.50(1)(a) AEL, Oyo, Ondo, Ogun and Kwara States; S. 121(1)(a) Administration and Succession (Estates of Deceased Persons) Laws of Anambra State, 1987. 46E. I. Nwogugu, Family Law in Nigeria, 3rd ed. (Ibadan, Nigeria: HEBN Publishers, 2014) p. 404. 47 Bankole v. Tapo (1961) All N.L.R. 140; Okon v. Ana (Unreported) Native Court, suit No. 43/61. 48 Ibid.

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Will. 49 Amongst the Hausas of Northern Nigeria, under the Maliki school of Moslem law,

only up to one third of property is devisable by written document known as Wasiyya.50

It has to be made by a person with full mental capacity at the time the Will is made. Such

declarations may be made while the testator is in good health or in expectation of death.51

The subject of the Will must be specified so as to be easily identified and the beneficiary

must be clearly identified.52 Also, the subject matter of the Will must be that which is

disposable by the testator. Thus, undivided interest in family or communal land cannot be

disposed of by Will.53

The general principles that govern testacy under customary law are the same among the

various tribes. It has been suggested that for a nuncupative Will to be valid, it must be made

in the presence of disinterested witnesses. While the presence of witnesses is necessary, they

do not have to be disinterested. It has been noted that the presence of disinterested witnesses

is not for purposes of validity but for proof of declaration.54 The specific number of witnesses

is not laid down, but the Will is likely to be established by evidence of more than one witness

especially if those witnesses are not beneficiaries.

The Nigerian courts have repeatedly held that the reduction into writing of a transaction,

essentially of customary law, does not alter its nature. Writing is no more than mere evidence

of the transaction.55 Thus, the reduction of customary law into writing should not affect the

nature of the disposition. Moreover, writing per se is not conclusive evidence that the English

form is intended by the testator. If it is written but does not comply with the requirements of

the Wills Act,56 it could be treated as valid under customary law.

49 Ibid. 50 Y. Mahmood, Sharia Law Reports of Nigeria (1961-1989) (Ibadan: Spectrum Books ltd., 1993) cited in Kasumu and Salacuse, Nigerian Family Law (London: Butterworths, 1966), p. 289. 51 Ajoke v. Olateju (1962) L.L.R. 137. 52 S. N. Obi, Ibo Law of Property (London: Butterworth, 1963) p. 206. 53 Sogunro Davies v Edward Sogunro (1936) 13 N.L.R. 15. 54 Ayinke v. Ibidunmi (1959) 4 F.S.C. 280. 55 Kano v. Makaji (2011) 17 N.W.L.R. (1275) 139 CA; Rotibi v.Savage (1984) 17 N.L.R. 77; Nwabuoku v. Ottih (1961) 1 ALL N.L.R. 487. 56Wills Act, 1837 (1 Vict. C.26); Administration and Succession (Estate of Deceased Persons) Law, Cap. 4, Laws of Anambra State of Nigeria, 1987; Wills law Cap. 133, Laws of Western Region of Nigeria, 1959; Wills Law of Lagos State, Cap. W2, Laws of Lagos State of Nigeria, 2003; Kwara State Wills Edict. Cap. 168, Laws of Kwara State of Nigeria, 1991; Kaduna State Wills Edict, Cap. 163, Laws of Kaduna State of Nigeria, 1991; Administration and Succession (Estate of Deceased Persons), Cap. 4, Laws of Anambra State of Nigeria, 1986.

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1.6. Administration of Estate on Intestate Succession

There are two types of rules for distribution of a person’s estate if he dies intestate. These

rules of distribution are applicable depending on whether the deceased was subject to

customary law or statutory law during his lifetime. Where a person subject to customary law

dies intestate, his estate will be distributed according to his native law and custom or Islamic

law where the intestate is a Muslim. On the other hand, where a person is subject to statutory

law and dies intestate, his estate will be distributed according to the provisions of any local

enactment relating to administration of estate, and where none exists, the common law

intestacy rules will apply.

Thus, there are basically three systems of law governing intestate succession in Nigeria viz:

the common law, the Administration of Estates Laws of various states and customary law

(including Muslim law). 57 The factor, which determines which of the systems to be applied

in any given case, is the type of marriage contracted by the intestate person.58 In the case of

Muslims, the religion practised by the intestate person is also considered.59

Where a person contracts a Christian Marriage outside Nigeria, the common law of England

governs the distribution of his estate;60 where he contracts a statutory marriage (under the

Marriage Act61) in Nigeria, then dies intestate domiciled in Lagos or in any of the states

comprising the old western, mid-western or eastern regions, the Administration of Estates

law62 of such State will govern;63 where he contracts a statutory marriage but dies domiciled

in any of the States comprising the old Northern region, which are yet to enact their own law

on non-customary succession, the common law will govern the distribution of his estate;64

and where an intestate person is a Nigerian and he did not contract a Christian marriage or a

marriage under the Marriage Act, or even if he did, no issue or spouse of such a marriage

57 Zaidan v. Zaidan (1974) 4 U.I.L.R. 283. 58 Obusez v. Obusez (2007) 10 N.W.L.R. (pt. 1043) 430 SC; I.E. Sagay, Nigerian Law of Succession: Principles, Cases, Statutes and Commentaries, 1st ed (Nigeria: Malthouse Press Limited, 2006), p. 75. 59 Ibid. 60 Ibid. 61 Cap. M6 L.F.N., 2004. 62 Administration and Succession (Estates of Deceased Persons) Law, Cap. 4, Laws of Anambra State, 1986; Administration of Estates Law, cap. 1, Laws of Western Nigeria, 1959; Administration of Estates Law, cap. 3, Laws of Lagos State, 1994; Administration (Real Estate) Act, Cap. 2, Laws of Lagos State, 1994. 63 I. P. Enemo, op. cit. p. 409. 64 Administrator General v. Egbuna (1945) 18 N.L.R. 1; ibid. p. 417.

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survived him, his estate will be distributed in accordance with the relevant customary law.65

If the intestate was a Muslim, the Islamic law will 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 immovable property and not the lex situs (the law of the place where

property is situated).66

1.7. Forms of intestacy

Intestacy occurs when the whole or part of the estate of a deceased person is not disposed of

by Will. Thus, there are two forms of intestacy:

1.7.1. Whole intestacy

Total or whole intestacy arises in circumstances where the whole of the estate of a deceased

person is not disposed of by Will, for example, where the deceased fails to make a Will; fails

to make a valid Will; or makes a valid Will but all beneficiaries die before the deceased.67

1.7.2. Partial intestacy

Intestacy is said to be partial where part of the estate of a deceased person is not disposed of

effectively by Will, for example, where the deceased fails to dispose of the residue of the

estate (that is, property that has not otherwise been specifically disposed of) either expressly

or impliedly; fails to appoint a substitute in the Will and some beneficiaries repudiate, or for

other reasons cannot take (for example, forfeiture); or makes a gift of the residue and part of

the gift fails to take effect.68

NB: Partially intestate estates are administered, so far as possible, according to the same rules

that apply to wholly intestate estates.69

65 I.E. Sagay, op. cit. p. 75. 66 Zaidan v. Zaidan , Supra; section 13 of the Bendel State High Court Law. 67 New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy (Iss. Paper 26, 2005) p.2. 68 Ibid. 69 Ibid. p. 3.

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1.8. Literature Review

Many scholars have written on customary laws of inheritance of the people of Nigeria. Some

of these scholars whose books are sources for this study are examined hereunder.

According to I. E. Sagay70, succession under customary law is essentially intestate

succession. Sagay exhaustively examines the rules and principles of intestacy under the

various customary laws. A landmark discovery in his text is that succession is generally

based on the concept of family property, primogeniture or a hybrid of both systems.

I. P. Enemo71 carries out a succinct but thorough examination of the various rules governing

intestacy under customary law. The author adopts an analytical approach. In yet another

work72, Enemo critically examines the inheritance rights of the widow under customary law.

The relevance of this work is highlighted by its systematic study of property rights of women

under customary law.

M. Onokah73 acknowledges the dichotomous nature of rules governing intestate succession in

Nigeria and identifies pluralism of family law as the basis for the dichotomy. The author

criticises certain customary practices of intestacy. The milestone of the text is the call for

harmonization of the existing rules of customary marriage law with the provisions of the

statutory marriage law with a view to unifying family law in Nigeria.

In addition to the various rules of intestacy under the customary systems, I. E. Nwogugu74

specifically discusses modes of distribution and persons who lack capacity to succeed. The

text appears to be the most recent comprehensive text amongst all the rest. It is worthy of

note that only Nwogugu,75 Animashaun and Oyeneyin76 have criticised these customary laws

as being inconsistent with the 1999 Constitution.

70 I.E. Sagay, Nigerian Law of Succession Principles, Cases Statutes and Commentaries, 1st ed (Nigeria: Malthouse Press Limited, 2006). 71 I. P. Enemo, Basic Principles of Family law in Nigeria (Ibadan: Spectrum Books ltd., 2008). 72 I. P. Enemo, “Widowhood and Property Inheritance under Customary Law,” Essays on Contemporary Legal Issues, Vol. No., pp. 290 – 311. 73 M. C. Onokah, Family Law (Ibadan: Spectrum Books ltd., 2003). 74 E. I. Nwogugu, Family Law in Nigeria, 3rd ed. (Ibadan, Nigeria: HEBN Publishers, 2014). 75 Ibid. 76 T. O. Animashaun and A. B. Oyeneyin, Law of Succession, Wills and Probate in Nigeria (Nigeria: MIJ Professional Publishers Ltd, 2002).

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J. N. Ezeilo77 observes that the lives of majority of Nigerians are governed by customary

laws. Thus, “…about 80% of disposition of property are settled under customary law.” This

observation brings to bare the all-important role of customary law in the distribution of real

and personal property. The recommendations posited are invaluable to this study.

Paul Itua78 critically examines the issues of legitimacy, legitimation and succession against

the backdrop of the constitutional provisions prohibiting discriminatory practices. In another

work,79 he deals comprehensively with the principles of inheritance under Benin customary

law relating to Igiogbe. Similarly, Donatus Oluya80 “opens up a new area of research on the

shift in Igiogbe.” The author posits that “…the bulk of materials on Igiogbe are in law reports

because cases concerning Igiogbe inheritance have gone up to the Supreme Court”.

Edu81 discusses the customary laws of inheritance of the Igbo, Benin and Yoruba people. He

highlights the shortcomings of these customary laws and criticises same as being not only

biased against female children and widows, but also unconstitutional and repugnant to natural

justice, equity and good conscience.

The Manual of Customary Laws obtaining in the former Anambra and Imo States82 is used

for this study. The manual appears to be the most recent exegetic authority on the customary

law of inheritance of the Igbo people. Also, A Handbook of some Benin Customs and Usage83

is one of the main sources for the Benin customary laws of inheritance discussed in this

study.

77 J. N. Ezeilo, “Laws and Practices relating to Women’s Inheritance Rights in Nigeria: An Overview,” Women’s Aid Collective (WACOL) Nigeria, (2000), pp. 131 – 152. 78 P. O. Itua, “Legitimacy, legitimation and succession in Nigeria: An appraisal of Section 42(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended on the rights of inheritance,” Journal of Law and Conflict Resolution, Vol. 4 No. 3 (2012), pp. 31-44. 79 P. O. Itua, “Succession under Benin customary law in Nigeria: Igiogbe matters arising,” Journal of Law and Conflict Resolution, Vol. 3 No. 7 (2011), pp. 117-129. 80 D. S. Oluya, “Bini Customary Law of Inheritance: Shift in ‘Igiogbe’ as a case study” (Ph.D. thes., Dalarna University, Sweden, 2012). 81 O. K. Edu, “A Review of Laws of Inheritance in the Southern States of Nigeria,” University of Nigeria Journal of Private and Property Law, Vol. 24 (2004). 82 S. N. C. Obi, Manual of Customary Law obtaining in Anambra and Imo States of Nigeria (Enugu, Nigeria: Government Press, 1977). 83 A Handbook of Benin Customs and Usages (Benin City, Nigeria: Eweka Court, The Palace, 1996).

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Sharif84, Muhammed85 and Hammudah86 discuss the various rights of inheritance under

Islamic law. Bolaji87 does a comparison between the rules of inheritance under Islamic law

and those under other ethnic groups.

Isabel Moodley88 focuses on the customary law of intestate succession in the countries of

South Africa, Ghana and Swaziland. However, due to certain similarities between these

countries and Nigeria, recourse is had to the practices in these countries to discern certain

general customary rules and principles of intestacy. Notwithstanding the shortcomings of the

practices in these countries, Nigeria can borrow a leaf from some of such practices to further

enhance development of her customary law of intestate succession.

However, as illuminating as they are, most of these texts, especially our homegrown texts,

appear to be almost entirely narrative and descriptive; and less critical and evaluative.

It is in this aspect that the approach of these scholars differs from this study as most of them

do not suggest any reform. On the other hand, this study has not only criticised the customary

law practices of intestacy but has also made concrete recommendations on how to reform the

laws.

84 C. M. Sharif, Women’s Rights in Islam (India: Adam Publishers and Distributors, 2002). 85 G. A. Muhammed, An Introduction to Islamic Law of Succession (Testate and Intestate) (Nigeria: Jodda Press Ltd., 1998). 86 A. A. Hammudah, The Family Structure in Islam (Nigeria: Islamic Publications Bureau, 1982). 87 J. M. Bolaji, “A Comparative Study of Women’s Rights of Inheritance in Nigeria under Islamic Law and some Customary Laws” (Ph. D. Thes., University of Ilorin, Nigeria, 2011). 88 I. Moodley, “The Customary Law of Intestate Succession” (Ph.D. Thes., University of South Africa, 2012).

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CHAPTER TWO

GENERAL PRINCIPLES AND RULES OF INTESTACY UNDER NIG ERIAN

CUSTOMARY LAW

This chapter examines certain general customary law principles which bear upon intestacy with

some variations amongst certain tribes. Some of these principles are quite discriminatory and are

no longer in tangent with modernity. Thus, it is pertinent to pinpoint these practices to enable

effective understanding of the mechanisms of these principles when examined against the milieu

where they are operative.

2.1. The Principle of Primogeniture

This is the state of being the firstborn child among siblings; the common law right of the

firstborn son to inherit his ancestor's estate, usually to the exclusion of younger siblings.1

Primogeniture is the right, by law or custom, of the firstborn child to inherit the family estate, in

preference to siblings.2 The practice of primogeniture is highly discriminatory both against

female children and younger children.

2.1.1. Male Primogeniture

Amongst most tribes in Africa, succession to status is based on the principle of male

primogeniture.3 On the death of a native, his estate devolves on his eldest son or his eldest son’s

eldest male descendant. If the eldest son has died leaving no male issue, the next son, or his

eldest male descendent inherits, and so on through the sons respectively.4 Primogeniture is the

rule whereby the eldest male in a given group of relatives inherit property to the exclusion of all

1 B. A. Garner, ed., Black’s Law Dictionary, 9th ed., (U.S.A.: West Publishing co) p. 1311. 2 Bhe & Ors v Magistrate, Khayelitsha, & Ors (2005) 1 SA 580 (CC); Mthembu v Letsela (1997) 2 SA 936 (T). 3 I. Moodley, “The Customary Law of Intestate Succession” (Ph.D. Thes., Univ. of South Africa, 2012), p. 19. 4 J. A. Omotola, “Primogeniture and illegitimacy in African customary law: The battle for survival of culture,” Indiana International and Comparative Law Review, Vol. 15, No. 1. (2004) p. 116.

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others.5 The far-reaching effect of the rule of primogeniture is that Nigerian customary law does

not permit women or females to inherit property or to succeed to positions of authority. This

generic definition of male primogeniture is applicable to some parts of Nigeria, especially under

the Igbo and Benin Customary Laws of Inheritance.6

There are other variations of primogeniture, most of which are still discriminatory in one way or

the other. These variations may modify the right of the firstborn son to the entirety of the

family’s inheritance or eliminate the preference for males over females. Such variations include:

2.1.2. Absolute Primogeniture

Absolute, equal or lineal primogeniture is a form of primogeniture where no preference is paid to

either gender for order of preference.7 The estate devolves to the firstborn, irrespective of the

gender. Failing the firstborn, the next issue in a descending order of seniority (from eldest to

youngest) succeeds to the estate. This variation of primogeniture is widely practised amongst the

Yorubas.8 This practice appears not to be discriminatory against female children but against

younger children other than the eldest child.

2.1.3. Male-Preference Primogeniture

Male-preference primogeniture allows a female child to succeed to an estate if she has no living

brothers and no deceased brothers who left surviving legitimate male descendants.9 This practice

is found amongst the Ohafia Division of Abia State where a daughter can inherit her deceased

father’s landed property if the father has no son.10

5 T. O. Elias, Nigerian Land Law and Custom, 4th ed. (London: Sweet and Maxwell, 1971) p. 179. 6 J. M. Bolaji, “A Comparative Study of Women's Rights of Inheritance in Nigeria under Islamic Law and some Customary Laws” (Ph. D Thes., University of Ilorin, Nigeria, 2011), pp. 185-186. 7 C. A. Corcos, “From Agnatic Succession to Absolute Primogeniture: The Shift to Equal Rights of Succession to Thrones and Titles in the Modern European Constitutional Monarchy,” Michigan State Law Review (2012) p.1587 at p. 1604. 8 Lewis v. Bankole (1901) 1 N.L.R. 82; Abibatu v. Cole (1990) All N.L.R. 310. 9 C. A. Corcos, loc. cit. p. 1604. 10 J. M. Bolaji, loc. cit., p. 187.

16

2.1.4. Uterine Primogeniture

Uterine primogeniture allows males to inherit but through the female line. This is a form of

matrilineal succession. A male may also inherit a right of succession through a female ancestor

or spouse, to the exclusion of any female relative. This is practised in certain communities, for

example, the Ohafia, Ihechiowa, Abam in Edde/Afikpo areas in the Eastern parts of Nigeria.11

Also, traces of this form of primogeniture are found amongst the Yoruba.12

2.1.5. Ultimogeniture

In some communities, ultimogeniture system is practised, i.e. where the youngest child inherits

all the father’s properties exclusively.13 It is the tradition of inheritance by the lastborn of the

entirety of the estate. This is also known as postremogeniture. Among the Markis group of the

Verbe of Northern Nigeria, the rule of ultimogeniture applies, whereby inheritance is by the

youngest son, which applies to bar other heirs of the deceased landowner.14

2.2. The Concept of Family Property

Although family property is in the realm of land law, a brief discussion of the concept is

necessary because the concept of family property is a cardinal principle of the customary law of

inheritance in Nigeria, especially amongst the Yorubas.

Family property is property that devolves on the descendants of the deceased and is regarded as

property to be used for the benefit of the whole family.15 The opposite of this is self-acquired

property. Self-acquired property has been described as property a person acquires during his

11 A. Ibidapo- Obe, A Synthesis of African Law (Lagos: Concept Publications Ltd, 2005), p. 162. 12 Oyewole v. Akande (2009) 15 N.W.L.R. (pt. 1163) 119 SC. 13 R. A. Onuoha, “Discriminatory Property Inheritance under Customary Law in Nigeria: NGOs to the Rescue,” International Journal of Not-for-Profit Law, Vol. 10, No. 2, (2008) pp. 79 – 93 at p. 81. 14 Ibid. 15 T. O. Animashaun and A. B. Oyeneyin, Law of Succession, Wills and Probate in Nigeria (Nigeria: MIJ Professional Publishers Ltd, 2002), p. 14.

17

lifetime as a gift, through a conveyance or by any other formal method of alienation whatsoever,

whether under English law or customary law.16

Basically, the property of the family is any type of property, the title to which is vested in the

family as a corporate entity.17 It may consist of both real property and personal property.18 In

Usiobaifo v. Usiobafo19, the Court of Appeal described the concept of family property as original

to our indigenous society and the bedrock of our law.

A landed property which is inherited by all children as family property remains so until it is

partitioned by the consent of all members of the family.20 The title of a family property is vested

in the family of the founder as a corporate entity. The title is joint and indivisible. The individual

member of the family has no separate claim of ownership to any part or whole of it. A family

property is used for the benefit of the whole family. The management of the family property is

under the control of the head of the family. In essence, the head of the family acts as a trustee or

custodian for all the beneficiaries of the family property.21

Individual members of the family do not have any separate rights to the property because all

members have equal rights. Therefore, no member of the family can alienate or dispose of the

family property without the consent of the other members of the family.22 In Coker v. Coker23,

family property or house was described thus:

A residence which the father of a family sets apart for his wives and children to occupy after his

decease… No one has chargeable or alienable interest in the family house. It is only with the consent

of all those entitled to reside in the family house that it can be mortgaged or sold.24

16 Dawodu v. Danmole (1962) All N.L.R. 695; Akinyede v. Opere (1968) 1 All N.L.R. 65. 17 E. I. Nwogugu, Family Law in Nigeria, 3rd ed. (Ibadan, Nigeria: HEBN Publishers, 2014) p. 436. 18 Ibid. 19 (2001) F.W.L.R. (Pt 61) 1784. 20 Alao v. Ajani (1989) 4 N.W.L.R. (part 113) 1 21 Ibid. 22 Kadiri Adagun v. Fagbola (1932) 11 N.L.R. 110. 23. (1938) 14 N.L.R. 83 at 86. 24 Per Carey, J.

18

2.3. The Family Head

The founder of the family is the head of the extended family. Upon his death, the headship

devolves on his eldest surviving son. He does not require to be appointed and succeeds to that

title as of right by virtue of his being the eldest surviving son of the deceased.25 In Yorubaland,

the family head is known as the Dawodu; in Hausa, Mai gida; and in Igbo, Okpala or Diokpa.26

Except in Afikpo, Yako and Yorubaland27, the headship of the family is automatically inherited

by the eldest male member on the death of the last holder of the position.28

Traditionally, the family head held the most power within the family group.29 This did not mean

that he could act capriciously; but was supposed to confer with the other members of the family

group when making important decisions.30 He was solely responsible for the support and

maintenance of the entire family group. The family head is a trustee and manager of the family

property31. He is responsible for the day-to-day administration of the family property.

2.4. Factors Affecting the Order of Succession

There are certain factors that affect the order of succession. These formulae for determining

priority among beneficiaries is indeed premised upon discrimination and inequality as will be

examined below.

2.4.1. Gender and Age

Traditionally, sex played a definitive role in the determination of a person’s status.32 Women

were considered as perpetual minors and either fell under the guardianship of their fathers (if

they were unmarried or single), or husbands (if they were married), or his successor (if they were

25 Phillips and Ors v. Administrator-General and Ors (Unreported) Suit. No. M/24/74, ruling delivered on 17/7/75 by Johnson J. at the High Court of Lagos State. 26 E. I. Nwogugu, op. cit. p. 435. 27 Amusan v. Olawunmi (2002) 12 N.W.L.R. (pt. 780) 30. 28 E. I. Nwogugu, op. cit. p. 435. 29 G. Ezejiofor, “Alienation of Family Property in Nigeria,” African Law Studies, Issue 12, (1975), p.7. 30 Ibid. 31 E. I. Nwogugu, op. cit. p. 435. 32 I. Moodley, loc. cit., p. 21.

19

widows).33 Only male persons were eligible to succeed to positions of status. A woman was

incapable of succeeding to the position of family head or to property,34 on the sole basis of the

fact that she was female. These positions have however changed and these changes will be

extensively discussed in the succeeding chapters of this study. It is also important to state that

age plays an important role in priority of successors as older heirs tend to take priority over their

younger ones.

2.4.2. Rank

Due to the polygynous nature of the customary marriages, Nigerian customary law distinguishes

between “family rank” and “house rank”. Each of these categories of rank will be discussed

individually immediately hereunder.

2.4.2.1 Family rank

Family rank refers to the status of family members within the family group. Under customary

law, a person’s rank was ultimately determined by the principle of primogeniture. On the basis of

that principle, oldest sons always had a higher rank than younger brothers and all sisters. In the

extended family group however, the rank of a child was determined by the rank of their father

within his family of origin. For example, if the father was the first born son in his family group,

that would mean that his children would hold a higher rank than any of the other children born of

his siblings. This may be illustrated as follows:

Figure 1: Family rank

For purposes of simplicity, only males have been represented in this diagram. K, L and M are

three brothers, whereby K is the oldest and M is the youngest. They are all married and they each

have two sons. The sons of K, namely S and T, will have a higher rank than the sons of L and M,

33 Ibid. 34 E. I. Nwogugu, op. cit. p. 435.

K

S T

L

U V

M

W X

20

irrespective of whether they are older or younger than the sons of L and M. We could go further

and say that the sons of L, namely U and V will then rank higher than the sons of M and so on.

2.4.2.2. House rank

House rank simply refers to the hierarchy of the various houses that constitute a family group. In

a polygynous marriage, each marriage creates a separate family or household with the husband

as the common spouse to all the families. Each household or separate family has a particular

rank. This can be explained diagrammatically as follows:

In the diagram above, Family Head K has three wives, namely A, B and C; first, second and third

wives respectively. Each marriage creates a separate house, namely house A, house B and house

C and K is the common spouse in each house. K has two children with A (namely sons D and E),

two children with C (namely sons F and G) and two children with C (namely sons H and I). If K

dies, D will succeed to the status of K and to the property of house A and any allocated property.

Succeeding to the status of K means that D will become the new family head in the place of K.

Son F on the other hand will only succeed to the property of house B and Son H will only

succeed to the property of house C. The relevance of the house rank is highlighted when the

issue of priority vis-à-vis where heirs are to take in order in which their mothers were married

into the family.

Figure 2: House Rank

FAMILY HEAD K

WIFE B

SON F SON G

WIFE A

SON D SON E

WIFE C

SON H SON I

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2.5. Illegitimacy

An illegitimate child is one whose parents were not married at the time of birth or conception.35

In Cole v. Akinyele36, it was held that a child born to a man by a woman during the subsistence of

a valid marriage with another woman is illegitimate. The illegitimate child is known as omo-ale

among the Yorubas.37 In Igbo customary law, the position seems to be that where an unmarried

woman is pregnant, some social stigma attaches to such a pregnancy, which is referred to as ime-

mkpuke or ime-enete which literally means “pregnancy out of the matrimonial home”.38

Under customary law, the status of illegitimacy exists and carries with it certain disabilities, one

of which concerns the right of inheritance and succession to property.39 An illegitimate child had

neither the right to succeed to the estate of the natural father nor the right to move into the

natural father’s house.40 In the law of succession, the status of a child plays a crucial role in the

determination of inheritance rights. In most cultures, the illegitimate child was denied a right of

inheritance in the putative father’s estate, unless he has been legitimated.41 Such legitimation

may exist as a result of the presumption of legitimacy under customary law,42 a subsequent

customary law marriage between the parents of the illegitimate child,43 acknowledgement of

paternity of the child by the putative father.44

35 I. P. Enemo, Basic Principles of Family law in Nigeria (Ibadan: Spectrum Books ltd., 2008) p. 303. 36 (1960) 5 F.S.C. 84. 37 I. P. Enemo, op. cit., p. 304. 38 I. P. Enemo, “The Illegitimate Child and the Right of Inheritance in Nigerian Contemporary Law,” Women’s Aid Collective (WACOL) Nigeria, (2000), pp. 189 – 205 at p. 191. 39 P. O. Itua, “Legitimacy, legitimation and succession in Nigeria: An appraisal of Section 42(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended on the rights of inheritance,” Journal of Law and Conflict Resolution, Vol. 4 No. 3 (2012), pp. 31-44 at p.34. 40 G. G. Ojiako, “Succession under Customary Law,” The Lawyer’s Journal, Vol. 1, No. 2, (1990), p. 19. 41 O. Adekile, “Succession at Customary Law – Addressing the Crossroads of Constitutional Conflicts,” OOU Law Journal, Vol. 1, No. 1 (2009), pp. 21 – 47 at p. 34. 42 Rabiu v. Amadu (2012) LPELR – SC147/2003; Ezekiel v. Alabi (1964) 2 All N.L.R. 43; Amachree v. Goodhead (1923) 4 N.L.R. 101. 43 I. P. Enemo, op. cit., p. 291. 44 Motoh v. Motoh (2011) 16 N.W.L.R. (pt. 1274) 474 CA.; Savage v. Mcfoy (1909) 1 R.G.C.R. 504; Phillip v. Phillip (1946) 18 N.L.R. 102; Jirigho v. Anamali (1958) W.R.N.L.R. 195; Cole v. Akinyele (1960) 5 F.S.C. 84; Taylor v. Taylor (1960) L.L.R. 206; Lawal v. Younan (1961) 1 All N.L.R. 145; Abisogun v. Abisogun (1963) 1 All N.L.R. 237; Akerele v. Balogun (1964) LLR 99; Obidairo v. Adepoju (1975) 10 CCHCJ 1559.

22

The practice varies among various communities. Among the Yorubas, legitimated children are

accorded equal rights as their legitimate counterparts; the same is true of the Annang, Ibibio,

Oron, Aba-Ngwa, and Nsukka, among others.45 In some other communities, illegitimate children

are deprived of succession rights.

In some customary law systems, an illegitimate child may have the right to inherit from the

maternal grandfather and he will exercise that right with the other children of the grandfather.46

It is worthy of note that the Constitution and the Courts have immensely assuaged the disabilities

incidental to illegitimacy. This will be fully appraised in one of the subsequent chapters.

2.6. Choice of Customary Law

Essentially, upon the death of a deceased person, the deceased’s personal customary law is the

appropriate customary law to be applied in the distribution of his estate.47 The principles of

customary law will still be applicable irrespective of whether the deceased died outside his ethnic

group or he leaves properties outside his hometown. It is also important to observe that while it is

true that according to the lex situs rule48 and with respect to land matters generally, the

customary law of the place where the land is situated is the applicable law.49 However, with

respect to causes and matters arising from inheritance, the appropriate customary law is the

personal customary law of the deceased.50

In The Estate of Alayo51, Brooke J.52 stated that on the death intestate of a Muslim from the

Southern part of Nigeria and from the non-muslim parts of the North, the devolution of his estate

will be governed by his customary law and not Muslim law. It was held that Ijebu-ode, which

45 R. A. Onuoha, loc. cit., p. 87. 46 Onwuna v. Ogbodo (unreported) High Court of Makurdi in Suit No. MD/51A/1975, October 26, 1976. 47 I.E. Sagay, Nigerian Law of Succession Principles, Cases, Statutes and Commentaries, 1st ed (Nigeria: Malthouse Press Limited, 2006), p. 257. 48 That real property is governed by the lex situs. 49 P. O. Itua, loc. cit., p.37. 50 Tapa v. Kuka (1945) 18 N.L.R. 5; Zaidan v. Zaidan (1974) 4 U.I.L.R. 283. 51 (1946) 18 N.L.R. 88. 52 Citing Ayoola v. Folawiyo (1942) 8 W.A.C.A. 39; Apatira v. Akanke (1944) 17 N.L.R. 149.

23

inhabitants are predominantly Muslims, is not a Mohammedan country and as such its natives

are subject to their customary law. This has been highly criticised as will be examined

subsequently.

Another area with regard to the deceased’s customary law which posed intractable difficulties

was whether a person could validly change his customary law. The answer is in the affirmative

and the courts appear to fully support this view53 as will be subsequently examined in the course

of this study.

2.7. Provision of a Successor where there is no successor

For succession, the procreation of descendants is very important as it ensures that the deceased

has someone to assume his position upon death and also to maintain and look after the family

and their property. However, situations may arise where either of the parties to the marriage are

unable (for whatever reason) to have children. In customary law, when such situations present

themselves to the families or parties involved in the marriage contract, a successor can be

provided in a number of ways. The purpose of examining this is that these customary practices

are either obsolete or discriminatory. A successor could be provided in any of the following

ways:

2.7.1. Levirate

This is also known as widow inheritance. This is where a family member inherits a married

woman whose husband is dead.54 On the death of a man, his widow may become a wife of his

brother or other close relative. The new relationship becomes effective without the need for a

fresh bride price or formal marriage. Thus, wives are regarded as property of their husband and

53 Olowu v. Olowu (1985)3 N.W.L.R (Pt.13) 372. 54 Canada: Immigration and Refugee Board of Canada, Nigeria: Levirate marriage Practices among the Yoruba, Igbo and Hausa-Fulani; Consequences for man or woman who refuses to participate in the Marriage; availability of State protection (February 2006), (accessed 14 June 2014); available from http://www.refworld.org/docid/45f1478811.html

24

are therefore objects of inheritance themselves.55 Levirate marriage is considered a custom of the

Yoruba, the Igbo,56 the Hausa-Fulani, the Benin and the Idoma and continues to be widely

practised in rural communities.57 Any child from such arrangement is deemed to be a legitimate

child of the deceased husband and as such is entitled to inherit from the estate of the deceased.

2.7.2. Sororate

This is a custom practised in certain communities whereby a widower may marry his late wife’s

sister. Though this practice appears to be uncommon, it is practised in certain areas in

Hausaland.58 Sororate appears to be a direct opposite of the levirate custom and as such has the

same hereditary consequences as the latter.

2.7.3. Seed raisers

This may be described as the devise whereby a sterile woman pays the bride price for a new wife

on behalf of her husband with a view to raising children for her husband by proxy.59 A seed-

raiser is merely an auxiliary wife of the house into which she has been placed, and all her

children belong to that family as if they were the children of the main wife. Another form of this

may arise where a woman who is not married and cannot bear children performs requisite

ceremonies in order to marry another woman who would bear children by any man on the

understanding that the children are hers and would bear her surname.60 The Courts to some

extent recognised this practice in Meribe v. Egwu.61 Another instance of seed-raising occurs

where an unmarried man is deceased and the family makes arrangement for marriage of a wife in

the name of the deceased man. She bears children in the name of the deceased man. This is

55 I. P. Enemo, op. cit., p. 399. 56 The wife is known as Nwunye Nkuchi. 57 O. Bamgbose, Customary Law Practices and Violence against women: The Position under the Nigerian Legal System, Paper presented at 8th International Interdisciplinary Congress on women hosted by Department of Women and Gender Studies, University of Makerere, (July 2002), p. 13. 58 Nigeria - Marriages in Nigeria, (accessed March 1, 2014); available from http://family.jrank.org/pages/1211/Nigeria-marriages-in-Nigeria.html 59 C. A. Obi, “Marriage among the Igbo of Nigeria,” (Ph.D. thes., Pontifical Urban University, Rome, 1970) (accessed February 14, 2014); available from http://www.afrikaworld.net/afrel/igbo-marriage.htm 60 S. N. Obi, Ibo Law of Property (London: Butterworth, 1963) p. 157. 61 (1976) 1 ALL N.L.R. (pt. 1) SC.

25

known as ghost marriage.62 In recent cases, the court has condemned these seed-raising practices

as will be examined subsequently.

2.7.4. Perpetual Spinsterhood

Where a man dies without a male issue, one of his daughters could choose to remain unmarried

in her father’s house with a view to raising children, in the father’s house, who would continue

the father’s lineage.63 She begets such children on behalf of her father. The child, thus raised,

would succeed to her father’s property. This is known as Nrachi or Idegbe among the Igbos and

is called Arewa or Arhewa by the Benin people.64 This practise has been highly condemned by

the courts.

2.7.5. Adoption

Adoption under customary law may be effected either formally or informally.65 In formal

adoption, the formal consent of both families and performance of ceremony is required.66 The

adopted child under customary law usually takes the name of his adopter and is regarded as his

legitimate child. He will succeed to the adopter’s estate along with the other children (if any) of

the adopter.67 This was held in Administrator General v. Tunwase68. However, the extent to

which the adopted child can succeed under customary law is doubtful. This is due to the fact that

adoption under customary law oftentimes does not totally severe the child’s relation with his

biological parents, rather, it is more of a foster parentage kind of arrangement.

62 E. I. Nwogugu, op. cit., p. 428. 63 I. P. Enemo, op. cit., p. 400. 64 C. A. Obi, loc. cit. 65 E. I. Nwogugu, op. cit. p. 343. 66 Martin v. Johnson (1936) 3 W.A.C.A. 91. 66 I. P. Enemo, op. cit., p. 334. 66 (1946) 18 N.L.R. 88 67 I. P. Enemo, op. cit., p. 334. 68 (1946) 18 N.L.R. 88

26

CHAPTER THREE

SPECIFIC MODES OF INHERITANCE AMONG THE VARIOUS TRI BES IN NIGERIA

This chapter examines the customary law practices of inheritance obtainable in Nigeria. The

focus is on the divergent rules of intestacy of the three major tribes in Nigeria viz. the Igbo,

Yoruba and the Hausa/Fulani people, and those of the Benin people. These practices are brought

under heavy scrutiny with regard to their discriminatory/archaic features or lack thereof.

3.1. Intestacy under Igbo Customary law

Customary law inheritance here is predominantly patrilineal and is governed by the principle of

primogeniture. There are slight variations in the prevailing customary law of intestacy, but the

basic principles are the same.1

With respect to lands and houses, under the Igbo customary law practice, the eldest son inherits

his father’s compound (known as the Obi) exclusively in some Igbo Communities.2

A man’s land and houses other than his compound are inherited by his son or sons as a corporate

body. In the absence of any surviving son, the land and house are inherited by the eldest full

brother and, in the absence of full brothers, the land and houses are inherited by the deceased

father.3 Economic plants and trees own by a deceased person are inherited by his sons as a

corporate body.4 All sons as a corporate body inherit the father’s money.5

Where a man is not survived by sons, but by daughters only, the daughters generally do not have

the right to inherit his compound, any of his other lands or houses. An exception to this is the

nrachi custom discussed in chapter two. Also, the widow has no right to inherit any property

belonging to the deceased husband.6 However, she has a right to occupy the house and to farm on

1 E. I. Nwogugu, Family Law in Nigeria, 3rd ed. (Ibadan, Nigeria: HEBN Publishers, 2014) p. 416. 2 Osolu v. Osolu (2003) All N.L.R. 525; Nwafia v. Ububa (1966) 1 All N.L.R. 8; S. N. C. Obi, Manual of Customary Law obtaining in Anambra and Imo States of Nigeria (Enugu, Nigeria: Government Press, 1977), p. 100. 3 Ngwo v. Onyejana (1964) 1 All N.L.R. 352. Ibid. p. 100. 4 S. N. C. Obi, op. cit., p. 110. 5 Ibid. p. 124. 6 Nzekwu v. Nzekwu (1989) 2 N.W.L.R. (pt. 104) 373.

27

farmlands.7 The daughters have a right to be maintained by the person who inherits their father’s

estate until they are married or become financially independent or die.8

If an unmarried daughter is one in respect of whom no idegbe or nrachi ceremony has been

performed dies, her full brothers inherit her property; failing them, her father; and failing him, the

half brothers will inherit. A sister or half sister cannot inherit.9

It is worthy of mention however, that under Igbo customary law generally, a husband cannot

inherit his deceased wife’s share of her family property, for the husband is treated as a stranger

who is not entitled to share in property of the family of which he is not a member.10 Nonetheless,

his right of inheritance in his deceased wife’s real property is dependent, first, on whether the

wife left any surviving issues; and, second, whether the property was acquired before or during

marriage; but certainly, a woman’s ante-nuptial property goes to her children jointly and in

default of her children goes to her relatives and never to the husband, though he has a right over

her personal property. This customary principle was affirmed in the case of Nwugege v.

Adigwe.11

Under Igbo customary law, other persons who cannot inherit include the illegitimate children and

members of the Osu caste system. An Osu is one who was or whose ancestor was sacrificed to a

god. Thus, a male Osu cannot inherit from a deceased ancestor who is not an Osu.12

Two methods of distribution of the property of a deceased person are recognized under Igbo

Customary Law.13 The two methods are per stirpes and per capita. Per stirpes is used where a man

is survived by children of two or more wives. In this case, the property is divided among the

number of wives who have sons for the deceased. The property is then sub-divided per capita

7 Nezianya v. Okagbue (1963) All N.L.R. 358; Odiari v. Odiari (2009) 11 N.W.L.R. (pt. 1151) 26. 8 E. I. Nwogugu, op. cit. , p. 418. 9 S. N. C. Obi, op. cit., pp. 187 – 188. 10 Caulcrick v. Harding (1929) 7 N.L.R. p. 48. 11 (1934) 11 N.L.R. 134. 12 E. I. Nwogugu, op. cit., p. 419. 13 S. N. C. Obi, op. cit., p. 139.

28

among the sons of each wife. Each mother with a child forms one usekwu.14 On the other hand,

per capita is used where a man is survived by children of only one wife. The property is divided

among the number of the children. Where the distribution of the property is done per capita, the

sons take their shares in order of seniority. The eldest son takes first before the younger ones.

As regards the distribution per stirpes, each usekwu takes its shares in order in which the eldest

sons in them were born. This means that the usekwu with the eldest son will take first. The eldest

son in each usekwu receives the share for his usekwu on behalf of himself and his brothers.

In this connection, this customary law of inheritance is not only discriminatory against women

but also against other sons of a man who, due to circumstances beyond their control were not

born first in their families. This discrimination is not only unfair but also unconstitutional as it

violates the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as

amended).15 There is no fixed ratio for the sharing of the property among the heirs. The share of

the eldest son, which is usually larger than that of any of his junior brothers, is determined on the

basis of what the administrators think reasonable considering the size of the estate and the

number of the heirs.16

The reason for giving the eldest son special right of inheritance and other male relations of a

deceased man the right of inheritance as against his wife/wives and female children is that by the

custom, the male heirs are under obligation to cater for the needs of the wife/wives and children

of the deceased. While this reason could be plausible in the past when there were well-

established extended families, it is no longer so in modern times given that the male heirs in

many cases cater for members of their own nuclear families thereby neglecting their duties to the

family of the deceased.

14 J. M. Bolaji, “A Comparative Study of Women’s Rights of Inheritance in Nigeria under Islamic Law and some Customary Laws” (Ph. D. Thes., University of Ilorin, Nigeria, 2011), p. 145. 15 Section 42(1) & (2) of the Constitution provides that no citizen of Nigeria shall be subjected to any disability or restrictions and depravity based on sex, ethnicity and circumstance of his birth. 16 N. Okoro, The Customary Laws of Succession in Eastern Nigeria (London: Sweet and Maxwell, 1966) p.124.

29

3.2. Intestacy under Yoruba Customary Law

The rule of the customary law of inheritance 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. The basic

principles were enunciated in Lewis v. Bankole17and have continued to remain relevant, valid and

applicable. They are that on the death of the founder of family, the eldest son, called the Dawodu

succeeds to the headship of the family.18 The next eldest surviving child of the founder, whether

male or female, succeeds as the head of the family.19 Also, the surviving wives of deceased

persons who died intestate are not entitled to inherit the property of their deceased husbands.

The real property absolutely owned by the founder20 of the family devolves on all his children

regardless of sex, to the exclusion of other blood relations,21 as family property. Before the

family property is dealt with, all branches of the family (the family council) must be consulted.

Representation on the family council is per stirpes i.e. according to the number of wives with

children. The Dawodu is affixed with the responsibility of management of the family property.22

Succession to the estate of the deceased is in equal shares. Two modes of distribution exist viz.

the idi-igi and ori-ojori . Under the idi-igi system,23 the estate is distributed according to the

number of wives (only those with children) of the deceased. This is the well established and

accepted mode of distribution.24 Under the ori-ojori method25, the estate is distributed according

to the number of children.

17 (1909) 1 N.L.R. 82; Falomo v. Onakanmi (2005) 11 N.W.L.R. (pt. 935) 126. 18 Adesanya v. Otuenu (1993) 1 N.L.R. (pt. 270) 414. 19 Amusan v. Olawunmi (2002) 12 N.W.L.R. (pt.78)31; Ologunleko v. Ikumelo (1993) 2 N.W.L.R (pt.273) 16. 20 Okelola v. Adeleke (2004) 13 N.W.L.R. (pt. 890) 307; Ogunmefan v. Ogunmefan (1931) 10 N.L.R. 82. 21 Amodu v. Abayomi (1992) 5 N.W.L.R. (pt. 242) 503; Rabiu v. Abasi (1996) 7 N.W.L.R. (pt.462)505. 22 Lewis v. Bankole, supra. 23 Distribution per stirpes. 24 Dawodu v. Danmole (1962) 1 All N.L.R. 702. 25 Distribution per capita.

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The adoption of any of the two modes of distribution is utterly at the discretion of the head of the

family where dispute arises. The decision of the family head in this regard cannot be challenged

except in a court of law.26

Grandchildren of the founder of the family can only succeed to such rights as their immediate

parents had in the family property.27

With regard to succession by the widow, the Supreme Court in Ologunleko v. Ikuemelo28

reaffirmed the rule of Yoruba customary law that a widow could not inherit her deceased

husband’s properties nor could she be appointed an administrator.

From the above, it is clear that the Yoruba customary law does not discriminate against female

children in the distribution of the estate of their deceased father. However, it appears to be still

deficient in that widows are not allowed to inherit and it allows the family head the monopolistic

discretion of choosing which of the modes of distribution to be applied. These shortcomings will

be fully examined in the next chapter.

3.3. Benin Customary Law

There are two broad rules of inheritance under the Benin customary law depending on whether

the deceased was a hereditary traditional title holder or a non-hereditary traditional title holder

and an ordinary person. According to the Benin customs handbook29, the customary law of

inheritance as regards the estate of a non-hereditary traditional title holder and an ordinary person

is that the Igiogbe i.e. the house in which the deceased lived and died (and sometimes where he

was buried) is inherited by the eldest son.30 However, custom enjoins the eldest son to

accommodate his brothers and sisters provided they are of good behaviour until they are able to

build their own houses and move out or, if women until they get married.

26 Vincent v. Vincent (2008) 11 N.W.L.R. (pt. 1097) 35. 27 Otun v. Otun (2004) 14 N.W.L.R (pt. 893) 381. 28 (1993) N.W.L.R. (pt. 273) 16; Akinnubi v. Akinnubi (1997) 2 N.W.L.R. (pt. 486) 144. 29 A Handbook of Benin Customs and Usages (Benin City, Nigeria: Eweka Court, The Palace, 1996). 30 Uwaifo v. Uwaifo & Ors. (2013) LPELR-20389(SC).

31

Other landed properties of the deceased are distributed among the other children according to

urho31 in order of seniority i.e. according to the number of the wives of the deceased. Each wife

with children forms an urho. Where the property is distributed according to urho, the male

children take precedence over the female children. The eldest son who has inherited the Igiogbe

is still entitled to a share in the other landed properties.

Similarly, all other moveable properties are distributed among all the children starting with the

eldest son. If the eldest child of the deceased person is a female, custom allows her with the

consent of family elders and the other children to be given a reasonable share of the property on

the ground that she is the most senior of the children. Where the deceased has one house with

many rooms, custom allows the rooms to be shared among the children proportionately in order

of seniority with the consent of the eldest son and family elders. This is allowed so as to unite the

children.32

As regards inheritance of the property of a hereditary traditional title holder, the eldest surviving

son is solely responsible for his burial ceremony though the other children may contribute to

assist him. It is the eldest son who performs all the ceremonies. After the eldest son has

performed the final burial ceremony, he succeeds to his father’s traditional title and inherits all

his property to the exclusion of the other children.33 However, it is expected of him to give part

of the property to his brothers and sisters as he holds it in trust for himself and the other children

of the deceased.34 Where there is no male child to succeed to the hereditary title, a brother or any

male paternal relation of the deceased succeeds to the title after due confirmation by the Oba.

Also, where there is no male child to succeed to the deceased’s properties, it will be shared

31 urho literally means per stirpes. 32 Handbook on Some Benin Customs and Usages op. cit., pp. 11-13. 33 Obaro v. Probate Registrar (2002) 12 W.R.N. 180; Ovonseri v. Osagiede (1998) 11 N.W.L.R. (pt. 572) 1; Arase v. Arase (1981) N.S.C.C. 101. 34 Arase v. Arase; Egharevba v. Onuonghae (2001) 11 N.W.L.R. (Pt.724)318; Idehen v. Idehen (1991) 6 N.W.L.R. (Pt.198) 382; Imade v. Otabor (1998) 4 N.W.L.R. (Pt. 549) 20; Lawal - Osula v. Lawal - Osula(1995) 9 N.W.L.R. (Pt. 419) 259.

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amongst his female children.35 Women as wives are not entitled to inherit the property of their

husbands.

Since inheritance is by blood, if a man dies without any male child, his daughters can inherit his

Igiogbe and other properties. However, before a daughter can inherit the Igiogbe, her paternal

uncle will remove the Igiogbe paraphernalia (ancestral shrine and ukhure) to his own house and

erect ancestral altar with it where family members can come to worship their departed

ancestors.36 What this means is that the ancestral home, seat or altar is no longer present in the

house inherited by the deceased’s daughter. It therefore means that the inherited Igiogbe becomes

a mere house without the Igiogbe paraphernalia attached to it.

It is clear from the discussion of Benin customary law of inheritance based on primogeniture and

urho rules that the custom places a premium on male children than female children. The

primogeniture rule of the past which prescribed that the eldest male surviving child of a deceased

Benin man should inherit all his property to the exclusion of other children was very unfair.

Hence, the urho rule evolved to modify the primogeniture rule with its inherent injustice.37 By

the urho rule, the children (both male and female) of a deceased Benin man who had more than

one wife are entitled to share in the estate of their father as the property is shared among the

children of the wives of the man.

Nevertheless, both the primogeniture and urho rules of inheritance are discriminatory against

women. This is because although the urho rule allows female children to share in the property of

their deceased father with the male children, precedence is given to male children of the stirpes.

This sort of discrimination by reason of sex is against the provision of S.42 (1) of the 1999

constitution. The judicial attitude towards this discriminatory custom is fully examined in the

next chapter.

35 Handbook on Some Benin Customs and Usages, op. cit., p. 15. 36 D. S. Oluya, “Bini Customary Law of Inheritance: Shift in ‘Igiogbe’ as a case study” (Ph.D. thes., Dalarna University, Sweden, 2012), p. 45. 37 E. S. Osamuede, The Igiogbe Controversies in the Bini Customary Law of Succession: Judicial Review (Nigeria: Praise Communications Press, 2003).

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3.4. Northern States Customary Law

In the Northern part of Nigeria, the customary law of inheritance may be divided into two; the

indigenous laws and customs of inheritance and the Islamic law of inheritance.

3.4.1. The Indigenous Native Laws and Customs of Inheritance

In some areas of the northern Nigeria, there still exist indigenous native laws and customs that

are not Islamic law.38 This applies to the non-Islams in this area. These indigenous laws and

customs vary from place to place. However, the general rule is that where a man dies, his sons

will inherit his property first, and the brothers are next in line.39 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.40 It seems however that in some parts of

Northern Nigeria, the customary law is moving towards granting spouses succession rights in

each other’s intestate estate.

3.4.2. Islamic law of Inheritance

The rights of succession under the Islamic law are set out in the Koran, and the rules are

applicable to persons who are Moslems and are subject to Sharia Law.41 Succession here is to the

net estate of the estate after the payment of funeral expenses, debts, legacies and other charges.42

The shares inherited are mathematically laid out in the following fractions: ½, ¼, 1/8, 2/3, 1/6 of

the estate.43

Under Islamic law, wives and daughters are to participate in the sharing of the estate of their

deceased husband or father. His male children must have equal shares and his female children

half share each.44 A child who is not a Muslim may be disinherited and if a child kills his parents

38 T. O. Animashaun and A. B. Oyeneyin, Law of Succession, Wills and Probate in Nigeria (Nigeria: MIJ Professional Publishers Ltd, 2002), p. 18. 39 I. P. Enemo, op. cit. p. 406. 40 Opobiyi v. muniru (2011) 18 N.W.L.R. (pt.1278) 378. 41 Chapter 4 of Quran. 42 F. H. Ruxton, Maliki Law (London; Luzoc & Co, 1916) p. 373; Uka v. Dandare (1997) 4 N.W.L.R. (pt. 498) 244. 43 I. P. Enemo, op. cit. p. 407; J. N. Ezeilo, “Laws and Practices relating to Women’s Inheritance Rights in Nigeria: An Overview,” Women’s Aid Collective (WACOL) Nigeria, (2000), pp. 131 – 152 at p. 145. 44 Adesubokan v. Yinusa (1971) 7 N.S.C.C. 36.

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with the intention to inherit their properties, he will again be disinherited. The rules of

inheritance under Islamic law are discussed hereunder.

On the death intestate of an Islam, his widow is entitled to one quarter of the estate, but where

there are children and grandchildren, her share will be reduced to an eighth. If there is more than

one widow, one-quarter or one-eighth is shared equally amongst them. A woman without a child

inherits one-quarter of the deceased husband’s estate.45 If a woman dies intestate, her husband is

entitled to half her net estate and if there are surviving children, to one-quarter.

In respect of children, a single daughter is entitled to inherit half the net estate. If there are two or

more daughters, they get two-thirds, divided equally among them. An only son will be entitled to

succeed to the whole estate or to the remainder after the payment of the shares of any shares of

any ancestor who is entitled to succeed. Where a deceased left a son and father, the father will

take one-sixth of the estate and the son takes the remainder. If there are sons and daughters, they

are entitled to inherit the whole estate, or the remainder, after the shares of the spouses and the

ancestors have been paid in the appropriate portions as set out by the law. It is worthy of note

that under Islamic law, distribution of a man’s estate is done per capita and not per stirpes.

It has often been suggested that the reason why men take double the share of women is not

because Islam considers women as inferior to men.46 Rather, the rationale for the double share of

inheritance given to men under Islamic law is based on the financial/economic responsibilities

which Islam imposes on men. Islam places the responsibility of maintaining the family on men.47

However, this justification for double share of inheritance for men is no longer tenable given that

in the socio-economic circumstances of the present day, many women are no longer

financially/economically dependent on their husbands and male relations.

45 Sidi v. Sha’aban (1992) 4 N.W.L.R. p. 113. 46C. M. Sharif, Women’s Rights in Islam (India: Adam Publishers and Distributors, 2002); G. A. Muhammed, An Introduction to Islamic Law of Succession (Testate and Intestate) (Nigeria: Jodda Press Ltd., 1998); A. A. Hammudah, The Family Structure in Islam (Nigeria: Islamic Publications Bureau, 1982) 47 Quran 4:34.

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CHAPTER FOUR

JUDICIAL AND LEGISLATIVE INTERVENTIONS IN THE CUSTO MARY LAW OF

INTESTATE SUCCESSION IN NIGERIA

4.1. The Impact of the 1999 Constitution on the Customary Law of Intestacy in Nigeria

The discriminatory aspects of property inheritance under customary law in Nigeria manifests in

different forms and scope such as primogeniture rules, Islamic Law rules, discrimination against

female children, female spouses, illegitimate children and indeed children other than the first-

born son.1 The Constitution has, to a large extent, assuaged most of these inequitable

successional praxes. It is pertinent to note that the provisions of the Constitution are sacrosanct

and inviolable because of its supremacy to all other laws of the land.2 Thus, any native law or

custom inconsistent with the provisions of the constitution is null and void to the extent of its

inconsistency.3

The Constitution4 reflects the ideal of the state to protect, preserve and promote Nigerian cultures

which enhance human dignity and are consistent with the fundamental objectives as provided in

the chapter5. Also, the Constitution provides that every citizen shall have equality of rights,

obligations and opportunities before the law.6 Of all the provisions of the Nigerian Constitution,

section 42 plays a crucial role in the formulation and application of the rules of intestate

succession under customary law. This section has a lot to do in the area of family and inheritance

practices because it is in such area that discrimination finds the highest expression at customary

1 R. A. Onuoha, “Discriminatory Property Inheritance under Customary Law in Nigeria: NGOs to the Rescue,” International Journal of Not-for-Profit Law, Vol. 10, No. 2, (2008) pp. 79 – 93 at p. 81. 2 Lafia L.G.A v. Governor of Nasarawa State (2012) 17 N.W.L.R (pt. 1328) 94 SC; Marwa v. INEC (2013) LER-SC/266/2011. 3 Timothy v. Oforka, (2008) 9 N.W.L.R (pt. 1091) 204 CA. 4 S. 21, Constitution of the Federal Republic of Nigeria, 1999 (as amended) (C.F.R.N.), cap. c.23, Laws of the Federation of Nigeria (L.F.N.), 2004. 5 Chapter II, C.F.R.N., 1999. 6 S. 17(2) (a), C.F.R.N., 1999.

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law.7 The provisions of the 1999 Constitution in section 42 form the fundamental premise for the

protection of Nigerians from discriminatory and repugnant customary rules of inheritance.

Section 42 provides as follows:

(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or

political opinion shall not, by reason only that he is such a person:

(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or

any executive or administrative action of the government, to disabilities or restrictions to which

citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political

opinions are not made subject.

(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the

circumstances of his birth.

It is worthy of note that property rights for all are secured by Section 43, which confers upon

every citizen of Nigeria [irrespective of gender, circumstances of birth, etc.8], the right to acquire

and own immoveable property anywhere in Nigeria.

From the above, it is clear that the Constitution has eradicated all forms of discrimination in the

sphere of customary law of inheritance. This has moreso been evident in a plethora of judicial

decisions, the preponderance of which rely on Section 42 to declare null and void any customary

law practice which seeks to extinguish successional rights in a discriminatory manner.

4.2. Judicial developments in the Customary law of intestacy

Customary law is “organic or living” in that it is not static.9 It therefore follows that customary

law should be subject to change from time to time. However, customary laws of intestacy have

for years been largely premised on superfluous notions such as male primogeniture and

inequality.

7 O. Adekile, “Succession at Customary Law – Addressing the Crossroads of Constitutional Conflicts,” OOU Law Journal, Vol. 1, No. 1 (2009), pp. 21 – 47 at p. 34. 8 Words mine. 9 Olagbaju v. Abass (2011) 16 N.W.L.R. (pt.1274)453; Oyewumi v. Ogunsesan (1990) 3 N.W.L.R. (pt.137) 182; Dang Pam v. Sale Dang Gwom (2001) 1 W.R.N. 51; Yaktor v. Govenor of Plateau State (1997) 4 N.W.L.R. (pt.498) 216.

37

Since the inception of the new constitutional democracy, the courts have been the major driving

force in reforming the customary law of intestacy. Thus, we will examine the way in which the

courts have reformed the existing customary laws of intestate succession in order to bring it into

conformity with the Constitution, international law and modern realities.

4.2.1. Judicial Approach to Inheritance Practices affecting Women

4.2.1.1. Widow’s Rights

A widow of a customary law marriage, on the death intestate of her husband, is completely

disinherited under the various customary laws in Nigeria. No system of customary law in Nigeria

confers a beneficial right in a widow in the deceased husband’s estate,10 except indirect benefits

through her children’s rights, if any.11 This is all the more so apparent given that the widow is

property to be inherited.12 As already seen, under Islamic Law, a widow is entitled to a specified

share of her deceased husband’s estate and the right varies depending on the presence of children

and other wives.13

However, the Courts have oftentimes maintained that the nature of a widow’s interest in the

deceased husband’s estate is possessory and not proprietary as held in Odiari v. Odiari.14 In

Nezianya v. Okagbue15, the Supreme Court held that a married woman had no right to succeed to

the estate of her later husband under Onitsha customary law. Also, in Eze v. Okwo16, it was held

that a widow can neither inherit her husband’s compound nor administer it. Similarly, in Suberu

v. Sunmonu17, the court declared that “it is a well settled rule of native law and custom of the

10 M. C. Onokah, Family Law (Ibadan: Spectrum Books ltd., 2003), p. 355. 11 O. Adekile, loc. cit., p. 32. 12 Sogunro-Davis v. Sogunro-Davis (1929) 2 N.L.R. 79; Suberu v. Sunmonu (1957) 2 F.S.C. 31; Ogunkoye v. Ogunkoya (unreported) CA/L/46/88. Folami v. Cole (1990) 2 N.W.L.R. (pt. 133) p. 445; Akinnubi v. Akinnubi (1997) 2 N.W.L.R. (pt. 486) p. 147; Amusan v. Olawumi (2002) 12 N.W.L.R. (pt. 780) p. 30. 13 Opobiyi v. Muniru (2011) 18 N.W.L.R. (pt. 1278) 387. 14 (2009) 11 N.W.L.R. (pt. 1151) 26. 15 (1963) All N L R 352. 16 (Unreported) Obovo District Court and county Court of Appeal, Nsukka in Suit No. 29/1/59, 1959. 17 (1957) 12 F.S.C. 33.

38

Yoruba people that a wife could not inherit her husband’s property.” This was also upheld in

Oshilaja v. Oshilaja18, where it was held that the custom has been judicially noticed.19

This inconsiderable attitude towards the right to inheritance by the widow extends to the

administration of the intestate estate.20 In Ejiamike v. Ejiamike,21 Oputa J. held that a widow of a

deceased person had no right under Onitsha customary law to administer the estate of her late

husband.22 However, with regard to this (administration by widows of their deceased husbands’

estates), the courts tend to adopt a more liberal approach. In Re Joseph Asaboro – Deceased,23

the court appointed a widow one of the two administrators of her deceased husband’s estate.24

It is interesting to note that in recent times, the courts have departed from the rule of customary

law that a widow cannot inherit the estate of her deceased husband. There is an emerging

inclination towards inheritance by widows of their deceased husband’s property.

Interestingly, in Loye v. Loye,25 the court drew attention to modern socio-economic changes in

the relationship of husband and wife and held that the practice of disinheritance of widows is

capable of working great hardship in modern times especially when wives make significant

contributions to the wealth and properties of their husbands. 26 Also, in Nzekwu v. Nzekwu,27 the

Supreme Court held that under the Onitsha custom, the widow is entitled to certain rights in

respect of her late husband’s estate property even where she is childless.

A recent landmark decision of the Supreme Court on the inheritance rights of widows with

respect to their deceased husband’s estate is Anekwe v. Nweke28. The facts are as follows:

18 (1973) C.C.H.C.J. 30/10/73. 19 Bolaji v. Akapo (1968) N.M.L.R. 203; Awobodu v. Awobodu (1979) 2 L.R.N. 339; Dosumu v. Dosumu (1954) 14 W.A.C.A. 527. 20 Eze v. Okwo, supra. 21 (1972) 2 E.C.N.S.L.R. 11. 22 Aileru v. Anibi (1952) 20 N.L.R. 46. 23 (unreported) suit no. Ak/4/70, Akure High Court. 24 Oshilaja v. Oshilaja, Supra. 25 (1981) O.Y.S.H.C, 140 26 Balogun v. Oshodi (1931) 10 N.L.R. 36 at 57. 27 (1989) 2 N.W.L.R. (pt. 104) 373. 28 (2014) LPELR-22697(SC).

39

At the trial court, the respondent averred that the appellants asked her to vacate the house given

to her by her late husband on the ground that she had no male child in the house, notwithstanding

the fact that she had six female children. The Trial Court and the Court of Appeal29 found in

favour of the Plaintiff/respondent, whereupon the defendants/appellants appealed to the Supreme

Court. The Supreme Court condemned such culture in very strong terms:

Any culture that disinherits a wife from her husband's property by reason of God instituted gender

differential should be punitively and decisively dealt with. The punishment should serve as a deterrent

measure and ought to be meted out against the perpetrators of the culture and custom. For a widow of

a man to be thrown out of her matrimonial home, where she had lived all her life with her late

husband and children, by her late husband's brothers on the ground that she had no male child, is

indeed very barbaric, worrying and flesh skinning.30

Also, the Supreme Court held that “…such custom is barbaric and takes the Awka community to

the era of the cave man. It is repugnant to natural justice, equity and good conscience and ought

to be abolished.” The Supreme Court therefore dismissed the appeal.

This decision of the Supreme Court in this case is laudable. It has put an end to such antediluvian

practice and has in turn advanced the customary law of intestacy.

4.2.1.2. Rights of Female Children

As seen in the preceding chapter, under most customary law systems of inheritance in Nigeria,

the children of a deceased person are the principal beneficiaries.

In respect of inheritance rights of female children, the Yoruba system of intestacy is quite

laudable. Under modern Yoruba Customary law, the children are the exclusive beneficiaries, and

most importantly, there is no distinction between male and female for the purposes of

29 Anekwe v. Nweke (2013) LPELR-20386 (CA) 30 Per Ogunbiyi, J.S.C.

40

distribution of the father’s estate.31 Daughters, like sons, share equally in the estate of their

deceased father.32

In Amusan v. Olawunmi,33 the court held that under Yoruba customary law, both male and

female children of a deceased have equal rights to inherit. Likewise, in Folami v. Cole,34 the

court upheld the right of the female child to be family head in Yoruba custom. Also, in Akande v.

Oyewole,35 the court held that a female family member has the right to inherit family land and

bequeath same to her children and it was wrong for the trial court to fail to recognize inheritance

through the maternal line.

In Igbo and Benin culture, a strict application of primogeniture operates to exclude women from

inheriting their father’s property. It is important to note that even the legal interest, which vests

in a daughter in respect of whom the Nrachi/Idegbe ceremony is performed, cannot be

transferred to issues other than male issues. The principle of disinheritance of female children

was highlighted in Ugboma v. Ibeneme.36

There appears to be a change in tide with respect to the property rights of female children

especially under Igbo customary law. The courts have made various pronouncements to the

effect that female children are equally entitled to inherit as their male counterparts. In Mojekwu

v. Mojekwu37, the deceased owner of a real property had two female children surviving him. The

plaintiff (deceased’s nephew) claimed that by virtue of the Nnewi native law and custom, known

as the Oli-ekpe custom, he was entitled to succeed to the estate of his uncle who died without a

male child. The defendant (deceased’s wife) claimed that by the kola tenancy law38 i.e. the lex

situs, under which the deceased held the property before his demise, a female child of a kola

31 Andre v. Agbebi (1931) 5 N.L.R. 47; Sule v. Ajisegiri (1937) 13 N.L.R. 146. 32 Lopez v. Lopez (1924) 5 N.L.R. 105; Ricardo v, Abal (1926) 7 N.L.R. 58. 33 (2002) 12 N.W.L.R. (pt. 780) p. 30; 34 (1990) 2 N.W.L.R. (pt. 133) pp. 445- 457. 35 (2009) 15 N.W.L.R. (pt. 1163) 119 SC. 36 (1967) F.N.L.R. 251. 37 (1997) 7 N.W.L.R. (pt. 512 ) p. 283 38 Kola Tenancies Act, No. 25 of 1935, now Kola Tenancies Law, Cap. 69, Laws of Eastern Nigeria, 1935; Udensi v. Moghoh (1976) 7 SC 1.

41

tenant could inherit the kola tenancy of her deceased father. The trial court held in favour of the

defendant, applying the lex situs and not the Oli-ekpe. On appeal, the Court of Appeal held that a

customary law that allows only male children to exercise a right of inheritance and denied female

children of a deceased the right of inheritance while conferring the right on distant male relatives

is unconscionable and unconstitutional. Thus, Oli-ekpe custom is repugnant to natural justice,

equity and good conscience.39 Upon appeal to the Supreme Court40, it was held that there was no

justification for the Court of Appeal to declare the said custom repugnant to natural justice,

equity and good conscience. This was emphasized given the fact that it was not an issue in this

case. However, the Supreme Court dismissed the appeal upholding the judgment of the trial

court, which basis was on the kola tenancy.

In Mojekwu v. Ejikeme,41 the Court of Appeal, in line with the decision in Mojekwu v. Mojekwu,

held that the custom of Oli-Ekpe also discriminated against women and is repugnant to natural

justice, equity and good conscience.

In recent times, there have been judicial pronouncements of the Supreme Court on the

inheritance rights of female children in respect of their father’s estate. One of the cases is

Anekwe v. Nweke,42 where the Supreme Court stated that any culture that disinherits a daughter

from her father's estate should be punitively and decisively dealt with. Also, in Asika v.

Atuanya,43 the Supreme Court upheld the right of the female children to freedom against gender

discrimination in the distribution of their father’s estate. Another of such case is Ukeje v. Ukeje,44

where the respondent, whom the appellants sought to discriminate against in the distribution of

the deceased father’s estate, filed an action against the appellants claiming to be a daughter of the

deceased and that by virtue of that fact, she had a right to partake in the sharing of her late

39 Per Tobi, J.C.A. 40 Mojekwu v Iwuchukwu (2004) 18 N.S.C.Q.R. 184. Theresa Iwuchukwu was substituted for Caroline Mgbafor Mojekwu (her late mother) as the respondent in this appeal. 41 (2000) 5 N.W.L.R. 402. 42 Supra. 43 (2013) LPELR-20895(SC). 44 (2014) LPELR-22724(SC).

42

father's estate and to be included among those to benefit from the deceased’s estate. The trial

court found that she was indeed a daughter of the deceased and as such was qualified to inherit

from the estate of the deceased. On appeal,45 the Court of Appeal upheld the judgment of the

lower court and ruled that the custom, which sought to disinherit a female child from a share in

her father’s estate, is void on the basis of the constitutional provisions in Chapter 4. On further

appeal to the Supreme Court, the decisions of the lower courts were given imprimatur. The Court

declared that the said discriminatory customary law is void as it conflicts with section 42 (1) and

(2) of the Constitution.

4.2.1.3. The Nrachi Custom

As has been noted previously, the nrachi custom is an offshoot of the denial of the right of

females to inheritance. Thus, it is germane to consider the sentiment of the courts with respect to

the validity or otherwise of this custom.

The Court of Appeal struck down the Nrachi custom on the grounds of repugnancy in Mojekwu

v. Ejikeme46. In this case, the deceased died intestate without any surviving male child. The

respondents claimed that Nrachi was not performed for the deceased’s daughter, and as such the

deceased’s family lineage became extinct upon his death, and that nobody from the lineage of the

daughter could inherit. The Court held that the Nrachi custom, which is designed to oppress and

cheat women and compromises the basic tenets of family life, was inequitable and judicially

unenforceable. Accordingly, a female child is generally entitled to inherit her deceased father’s

estate and does not need to perform any customary ceremony such as Nrachi to exercise that

right. It held, citing Edet v Essien47 that the custom was also repugnant to natural justice because

the children born to a daughter in respect of whom the ceremony is performed are denied the

paternity of their natural father; that the custom was also inconsistent with public policy as it

45 Ukeje v. Ukeje (2001) 27 W.R.N. 14 (C.A.). 46 Supra. 47 (1932) 11 N.L.R. 47.

43

encourages promiscuity and prostitution. Also, in Anode v. Mmeka,48 the Court held that the

custom of keeping a daughter in her father’s house to procreate out of wedlock was repugnant to

natural justice, equity and good conscience.

4.2.1.4. Seed-Raising

In Meribe v. Egwu49, the Supreme Court held that where there was proof that a custom permitted

marriage of a woman to another woman, such custom must be regarded as repugnant. The

Supreme Court however, sanctioned the custom whereby a barren woman had procured another

woman for her husband. This exception appeared to have been created by the Supreme Court is

eroded given its later decision in Okonkwo v. Okagbue.50 In this case, the deceased had sons and

two sisters who survived him. After the demise of the deceased, the sisters purported to marry a

woman for and on behalf of deceased. As a result of the marriage, the purported wife gave birth

to six children who bore the surname of the deceased and paraded themselves as his children.

The sisters sought to hold out the children as the lawful children of the deceased. The Supreme

Court held that marriage is a union between a man and woman and not between woman and

woman; between two living persons and not between a dead person and a living person. The

practice has been rejected and held untenable by the courts and as such any practice of seed-

raising cannot stand the test of repugnancy in the face of these decisions.

4.2.1.5. Levirate

In Yusufu v Okhia,51 the respondent, a brother of a deceased person wanted to inherit the widow.

The widow refused to accept this customary practice. Subsequently, the widow moved out of her

matrimonial home and had a relationship with the appellant. The respondent obtained judgment

48 (2008) 10 N.W.L.R. (pt.1094) 1. 49 (1976) 3 iLAW/SC.48/1975. 50 (1994) 9 N.W.L.R. (pt. 368) 301. 51 (1976) 6 E.C.S.L.R.

44

in the lower court against the appellant for adultery and enticement. On appeal, the Court found

that the customary right of a male relative to inherit the wife of a deceased kinsman was in direct

contradiction with widows' and gender rights. It therefore found in favour of the appellant and

declared widow inheritance repugnant.

4.2.2. Judicial Statements on the Effect of the Constitution on the Status of Illegitimacy

In situations of intestacy, the illegitimate child was without a legal claim. This separate treatment

of people of the same status is discriminatory i.e. as between one illegitimate child to another and

as between the illegitimate child and the legitimate child. Since the enactment of the 1979

Constitution of Nigeria, the attitude of the courts in Nigeria to the issue has been interesting. It is

incontrovertible and unassailable that the Constitution has vitiated the discrimination against

illegitimate children but the question that has generated a lot of controversy is “whether Section

42(2) of the 1999 Constitution (as amended) has abolished the status of illegitimacy in Nigeria.”

Thus, we will examine the true import of that section vis-à-vis the inheritance rights of

illegitimate children as enunciated in judicial decisions.

There are two main viewpoints on this issue. The first view is that section 42(2) has eliminated

all the disadvantages associated with illegitimacy; that for example, an illegitimate child now had

the same rights to succession as a legitimate child. The second view is that section 42(2) was a

mere sop to those calling for the abolition of the status of illegitimacy and as such it was not

meant to have any practical or legal effect on the existing state of the law regarding the status

and consequences of illegitimacy.52

The first view was taken in Olulode v Oviosu53.The court held that the pith and substance of

section 39(2) is to abolish the status of illegitimacy and to treat every Nigerian citizen as a

citizen, whether born within wedlock or outside wedlock; and that the section confirmed the

52 I.E. Sagay, Nigerian Law of Succession Principles, Cases, Statutes and Commentaries, 1st ed (Nigeria: Malthouse Press Limited, 2006), p. 11. 53 (unreported) Suit No. M/1331/81, ruling delivered on 27/11/1981 by Onalaja J. at the High Court of Lagos.

45

principle enunciated in a long line of cases that there is no issue of illegitimacy in Nigeria once

the father has accepted the paternity of the child.54

The second view was amply expressed in Da Costa v. Fasehun55. In this case, the issue was

whether the illegitimate children who had been acknowledged by the deceased intestate in his

lifetime when he was married under the Act could share equally with the children from the

statutory marriage. On his death intestate, the acknowledged children were held not entitled to a

share in the deceased’s estate as they remained illegitimate and this was despite the provisions of

section 39(2) of the 1979 Constitution56. The trial judge relied on a number of cases57, which

prevents acknowledgement where a putative father is in a subsisting statutory marriage, and held

that it would be contrary to public policy to allow them to a claim in the estate and that the

Constitution does not give them a right of inheritance. The above conflicting views by the courts

appeared to have been resolved in Salubi v. Nwariaku,58 where the Court of Appeal held that

since the coming into force of the 1979 Constitution, the term “illegitimate children,” used to

describe children born out of wedlock, has been rendered illegal and unconstitutional. It held that

the trial judge erred in law in holding that children born out of wedlock are not entitled to benefit

from the estate of their acknowledged father who died intestate. To do so would amount to

subjecting them to disability or deprivation merely by reason of the circumstances of their birth

out of wedlock.

It has been argued however, that the proper interpretation of section 42(2) is that it has not

abolished the concept of illegitimacy nor rendered it illegal and unconstitutional, but has merely

removed the disabilities, disadvantages and deprivations suffered by illegitimate children,

thereby, according them the same rights as those born in lawful wedlock.59 This argument

54 Lawal v. Younan (1961) 1 All N.L.R. (pt. 2) p. 243; Bamgbose v. Daniel (1954) 14 W.A.C.A. 116. 55 (Unreported) Suit No M/150 80, ruling delivered on 22nd may, 1981 by Williams J. at Lagos High Court. 56 Now Section 42 of the 1999 Constitution. 57 Cole v. Akinyele (1960) 5 F.S.C. 84; Olympio v. Oluwole (1968) N.M.L.R. 469. 58 (1997) 9 N.W.L.R. (pt 505) p 442 CA; 59 I. E. Sagay, op. cit., p.16; I. P. Enemo, Basic Principles of Family law in Nigeria (Ibadan: Spectrum Books ltd., 2008) p. 311.

46

appears infallible because if an illegitimate child is not acknowledged by its natural father, he

cannot claim to be entitled to share in his father’s intestate estate. However, such a child can

succeed to the property of their mothers alongside the legitimate children of their mothers.60

In Mojekwu v. Ejikeme,61 the Court of Appeal held that the fact that the appellants were born out

of wedlock was immaterial since the Constitution prohibits discrimination on the grounds of

circumstance of birth. In this case, the acceptance into the deceased’s family of the third

appellant and her sister was sufficient acknowledgement of the two daughters by their

grandparents to entitle them to full rights of succession to the estate of their grandfather. Also, in

Motoh v. Motoh,62 the court upheld the inheritance rights of an illegitimate child whose paternity

was acknowledged. In Ukeje v. Ukeje,63 the respondent as plaintiff claimed that she was the

daughter of the deceased; and that as her paternity was acknowledged by the deceased, she was

entitled to share in the estate of the deceased. The trial court and the Court of Appeal held in

favour of the plaintiff. On appeal to the Supreme Court, it was held, upon the authenticity and

proof of her paternity, that she was entitled to inherit from her deceased father’s estate. Thus, the

Igbo native law and custom which deprives children born out of wedlock from sharing the

benefit of their father's estate is conflicting with the Constitution.

It is pertinent to note that the Supreme Court made reference to the findings of the lower courts

with regard to the respondent’s paternity before declaring that she could inherit. This further

buttresses the position that illegitimacy is not abolished neither is it rendered illegal or

unconstitutional and that an illegitimate child can only inherit when he has been legitimated.

It appears fairly settled, at least as far as judicial attitude is concerned, that the provisions of

section 42(2) of the Constitution has removed the discriminatory practice regarding illegitimate

or children born out of wedlock in Nigeria. Such children, provided they have been

60 Section 10, Legitimacy Act, cap. 103, Laws of the Federation of Nigeria, 1958. 61 Supra. 62 (2011) 16 N.W.L.R. (pt.1274) 474 CA. 63 Supra.

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acknowledged by their putative father, are entitled to equal rights in succession to the deceased

father’s estate upon his intestacy.

4.2.3. Judicial Attitude towards the Primogenitary Concept of Igiogbe

As has been discovered in this study, there exists a trace of primogeniture under most customary

law systems in Nigeria. However, primogeniture finds its highest expression in the practice of

Igiogbe by the Benin people.

Primogeniture as practised in Benin is in its purest form. The practice has become even more

crystallised given the judicial imprimatur which the courts at the various levels have accorded

the practice. The controversy appears to have been settled as to whether a testator could devise

the Igiogbe by his Will, given the provisions of section 3(1) of the Wills Law.64 The view of the

courts has been that the Igiogbe is always inherited by the first son of a deceased person

absolutely notwithstanding any instruction, disposition in a Will or family arrangement to the

contrary.65 The purpose of considering this concept is not to delve into the propriety of the

courts’ interpretation of section 3(1) of the Wills law or decisions on the exclusion of the Igiogbe

from testation but to examine the effects and implications of the judicial endorsement of such

primogenitary practice (Igiogbe) on our customary law of intestacy in the face of the

constitutional provisions on equality. In a long line of cases,66 the Supreme Court has held that

Igiogbe, according to Benin customary law of inheritance, has always been the sole entitlement

of the eldest surviving son of the deceased and upon the death of the deceased, automatically

devolves on his eldest son. It is a right vested in the eldest son and which cannot be divested by

64 Cap. 133, Laws of Western Nigeria, 1959. 65 Agidigbi v. Agidigbi (1996) 6 N.W.L.R (pt .454) 300. 66 Ibid.; Arase v. Arase (1981) N.S.C.C. 101; Egharevba v. Onuonghae (2001) 11 N.W.L.R. (Pt.724)318; Idehen v. Idehen (1991) 6 N.W.L.R. (Pt.198) 382; Imade v. Otabor (1998) 4 N.W.L.R. (Pt. 549) 20; Lawal - Osula v. Lawal - Osula (1995) 9 N.W.L.R. (Pt. 419) 259; Oke v. Oke (1974) 3 S.C. 1; Uwaifo v. Uwaifo (2005) 3 N.W.L.R. (Pt.913) 479; Uwaifo v. Uwaifo (2013) LPELR-20389(SC).

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means of disinheritance. This is without prejudice to his entitlement to a share in the other landed

properties.67

The issue as to whether two houses could constitute Igiogbe arose in Idehen .v. Idehen. In that

case, a father gave his first son his two Igiogbes by Will. The court held that under the Benin

customary law of inheritance, the Igiogbe, which is the house where a deceased Benin man lived

in his lifetime, is inherited by his eldest surviving son. The court awarded the two Igiogbes

which were six kilometres apart to the eldest surviving son of the testator at the time of his death.

However, the Supreme Court in Agidigbi .v. Agidigbi68 refused to declare the deceased’s whole

compound comprising of three separate houses in Benin City as Igiogbe, expressing the view

that only one house should be regarded as Igiogbe.

With respect to whether the Igiogbe must be situated in Benin, the court of Appeal in Egharevba

v. Onuonghae69 held that it is settled that Igiogbe must be situate in Benin Kingdom.70 The

Court in Ozomaro v. Ozomaro71 likened the Ughen of an Isoko man to the Igiogbe of a Bini man

and held that the Ughen of an Isoko man need not be in Isoko land, but must be located at a place

territorially contiguous to the ancestral abode, which may be located in the same area, town,

local government or even state of origin of the testator.

As regards the issue “whether a parcel of land can be regarded as an Igiogbe”, the Supreme

Court in Imade v. Otabor72 held that Igiogbe is a principal house and not a piece of land. This has

been echoed by the Supreme Court in Uwaifo v. Uwaifo.73

The issue as to whether Igiogbe can be alienated inter vivos arose in the case of Ugbo v.

Asemota74. In that case, it was held that under Benin Customary law, the father could not deprive

67 Ibrahim v. Osunde (2009) 6 N.W.L.R (pt. 1137) 382 SC. 68 Supra. 69 Supra. 70 Igori v. Igori (Unreported) CA., Benin Division in Suit No. CA/B/195/2009 delivered on 25th June 2013; Eigbe v. Eigbe (unreported) CA, Benin Division in Suit No CA/B/51/2009 delivered on 8th March 2012. 71 (2014) LPELR-22663(CA). 72 Supra. 73 (2013) LPELR-20389(SC) 74 (Unreported) High Court of Justice, Benin in Suit No. B/49/70.

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his eldest son from inheriting his house absolutely by making a gift of the house to another

person

From the above, it is clear that there is no remedy to this. Not even inter vivos or testamentary

disposition can be employed to circumvent this practice. The rule of primogeniture is plainly

unfair to the younger children of the family. Hence, it is repugnant to natural justice, equity, and

good conscience.75 The attitude of the courts with respect to this issue is not only doctrinaire and

intransigent but extremist and activistic. As a matter of fact, the custom has even been held to be

judicially noticed. Even more disheartening is the fact that the Courts have gone further to extend

the scope of the Igiogbe by introducing the concept of multiple Igiogbes.

This practice contravenes the very principles of equality which section 42 represents. The

primogeniture rule, which deprives other male and female children of the right to inherit the

Igiogbe simply because they happened to have been born after the first male child, is unfair and

unconstitutional. Lending credence to its unjustifiability is the fact that the custom cannot be

rationalised other than on folkloric and mythological grounds i.e. on the basis of ancestral

worship. Any practice to the contrary is viewed as being sacrilegious and profane.

It should be noted however, that the issue as to whether the custom is in violation of section 42

was never canvassed by the parties in any of the cases. This could be one of the factors which

bear upon the court’s oversight of this archaic custom. Thus, it remains to be seen whether the

Courts will alter its stance on this practice when faced with a case wherein the custom’s violation

of S. 42(2) of the 1999 Constitution (as amended) is canvassed.

4.2.4. Judicial Enunciation of the Administrative Role of the Family Head

The essence of examining this role of the family head is to ensure that the role is not mistaken to

mean that the eldest son is entitled to inherit the deceased intestate estate wholly to the exclusion

of other siblings. The eldest son, upon assumption of family headship, has an important role to

75 That was the view of the trial court in Ogiamen v. Ogiamen (1967) NMLR p. 245 at p. 247.

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play with regard to his deceased father’s estate other than the family house occupied by him. It is

his duty to manage and administer the estate for the benefit of himself and his brothers and half

brothers. This role of the eldest son has been reverberated by the courts in a number of cases. In

Ejiamike v. Ejiamike,76 the plaintiff was the eldest male issue (okpala) of his late father. The

defendants were members of the deceased’s household. The plaintiff brought an action claiming

that the defendants were jointly managing the estate of their late father in utter disregard of his

rights and duties as the Okpala. The estate included some houses which the defendants let to

tenants and collected rents therefrom. The plaintiff sued the defendants claiming an account for

the management of the estate, payment over to him of his own share of the proceeds and an

injunction to restrain the defendants from further meddling and management of the estate. The

learned trial judge found that the eldest son has the right to administer the real estate of his

deceased father for the benefit of himself and his brothers. In the exercise of this right, he is

accountable to his younger siblings. For instance, the brothers are entitled to information of, and

proceeds from sale of any property from the estate. Also, where he lets house to a third party, the

brothers are entitled to share in proceeds from rent collected therefrom.77 According to the trial

judge, “…the Okpala occupies a position akin to that of a trustee or a manager or at the very

least, a caretaker. I have nothing to show that the subject of trusteeship, managership or

caretakership is repugnant to natural justice, equity and good conscience.” A similar decision

was reached in Ngwo v. Onyejana,78 where the Supreme Court upheld the right of management

by the family head. According to the court in Ozomaro v. Ozomaro79, property belonging to a

man, who was subject to customary law and died intestate, are deemed vested in the deceased's

family as a whole.80

76 (1972) 2 E.C.S.L.R. 11. 77 Onwusike v. Onwusike (1962) 6 E.N.L.R. 10. 78 (1964) 4 All N.L.R. 352. 79 (2014) LPELR-22663(CA). 80 Yesufu v. Adama (2010) 5 N.W.L.R (Pt. 1188) p.552.

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In Lopez v. Lopez,81 it was held that unless the family head is guilty of abuse of powers, the

Courts will not interfere with the general management of family property by the family head.82 In

Onwusike v. Onwusike,83 it was held that a member of the family or even the okpala himself

cannot bring an action in respect of their father’s estate against another member of the family for

trespass because each and every member of the family has an equal interest in using the family

property in a proper manner and accounting for it to the family in accordance with the customary

law.84 However, the family head cannot alienate same without the consent of his siblings.85 The

law also arms any member, whose interest is threatened by wrongful alienation, with the right to

sue the family head to protect his interest.86 This administrative role by the family head was also

highlighted by the Court in Teriba v. Adeyemo.87

The importance of these pronouncements by the courts is that it preserves the rights of the family

head’s siblings. The family head is designated as a mere caretaker and is not vested with the

beneficial interest with respect to the family property. It emphasizes the role of the eldest son as

the “father of the family”88 who has a legally binding obligation towards the children.89

4.2.5. Methods of Distribution

The rationale for idi-igi was considered by the learned Jibowu J. in Danmole v. Dawodu,90 as

being that each wife who had a child was given no cause for jealousy against the others.

Therefore, the number of wives and not children is the determining factor. Since by the ori-ojori

mode each child enjoys an equal share, the argument has emerged that this mode is likely to

81 (1924) 5 N.L.R. 105. 82 Thomas v. Thomas (1932) 16 N.L.R. 5. 83 Supra. 84 Sowunmi v. Ayinde (2011) 1 N.W.L.R (pt.1227) 122. 85 Ageyaye v. Ogbogboyibo (2014) LPELR-22610. 86 Auta v. Liman (2014) LPELR-22570; Ogundipe v. Oduwaiye (2013) LPELR-20474 (CA); Achem v. Edo (2012) 4 N.W.L.R (pt.1290) 310 at 329; Ojukwu v. Ojukwu (2008) 18 N.W.L.R (pt. 1119) 439 SC. 87 (2010) 13 N.W.L.R (pt. 1210) 45 CA. 88 Ehigie v. Ehigie (1961) 1 NMLR p. 307 at p. 309. 89 S. N. C. Obi, Modern Family Law in Southern Nigeria (London: Sweet and Maxwell, 1966) p. 337. 90 (1958) 3 F.S.C. 46.

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produce a fair result, thus, preventing disputes and bickering among family members. This is

moreso where each wife has different number of children. Suppose that wife A has six children,

wife B three children and wife C one only. It would seem unfair that the child of wife C receives

one-third share of his father’s estate while the individual shares of the children of wife B and

wife C will be one-third subdivided into six parts and one-third subdivided into three parts

respectively.

However, the Federal Supreme Court has made it clear that unequal distribution and unfairness is

irrelevant in determining the applicable mode of distribution as between the idi-igi and ori-ojori .

In Danmole v. Dawodu,91 the question before the court was which of the two modes to be

applied to the estate of a deceased intestate who was survived by four wives and nine children.

The trial judge held that the idi-igi mode was contrary to natural justice, equity and good

conscience. The Supreme Court overruled this decision holding that the idi-igi mode was

universally applicable among the Yoruba, that ori-ojori mode was relatively modern; that idi-igi

was not repugnant to natural justice, equity and good conscience; that where there was a dispute

among the claimants and the family head took a decision as to which mode should apply, that

decision will prevail.

According to Onokah,92 “with all due respect to the higher courts, this decision smacked of

unfairness of the children of a deceased intestate who would get comparatively smaller shares of

their deceased father’s estate… it is even more difficult when examined against the well-

established rule of Yoruba customary law that the surviving children share equally regardless of

age and sex.” This is further complicated where a man on the one hand has a child born out of

wedlock and acknowledges paternity of same, and on the other hand has other wives with

children.93 The implication of this is that the child of the concubine ranks as one household and

91 Supra. 92 M. C. Onokah, Family Law (Ibadan: Spectrum Books ltd., 2003), p.348. 93 P. C. Lloyd, Yoruba Land law (London: Oxford University press, 1962) p. 296.

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as such is entitled to the share given to the other households, which share would be subdivided

equally according to the number of children.

In all probability, it appears that it was in an attempt to overcome these difficulties that the

Supreme Court subjected the application of the idi-igi mode to the decision of the family as to

which of the two modes to be applied. However, the Supreme Court failed to establish

parameters regulating how the family head’s power to veto a particular mode of distribution may

be exercised. The result of this has been that the courts have been dancing to whatever tune

played by the whims and caprices of the family head. In Reis v. Mosanya,94 the court reaffirmed

a decision of the family head for the ori-ojori mode. In Akinyede v. Opere,95 distribution had

been by ori-ojori for years. The family head decided to change the method. The Supreme Court

affirmed the decision of the family head and held that there was no question of estoppel

operating against the family head. An interesting decision can be found in Akerele v. Balogun96

where the court held that when a beneficiary (including the family head) has obtained the

benefits of distribution under ori-ojori system, he is barred from later opting for the idi-igi

system. Also in Adeniji v. Adeniji97, the court upheld the family head’s contention that ori-ojori

was an alternative to the idi-igi . In Phillips v. A.G. & Lawanson98, the court held that “the proper

mode of distribution in this case is that decided upon by the third defendant, the head of the

deceased’s family which is the ori-ojori system.” This was also re-echoed by the Court of

Appeal in Vincent v. Vincent.99

Commenting on the above, Nwabueze100 states that:

To leave the matter to the head is to substitute personal discretion for the alteration of law and to

encourage a challenge of the law by those who stand to gain by fomenting dispute. The head is of

94 (1964) L.L.R. 19. 95 (1968) 1 All N.L.R. 65. 96 (1964) L.L.R. 99. 97 (1972) 1 All N.L.R. 298 at pp. 305 – 306. 98 (1972) 7 C.C.H.C.J. 1131. 99 (2008) 11 N.W.L.R. (pt. 1097) 35 CA. 100 B. O. Nwabueze, Nigerian Land Law (Nigeria: Nwamife Publishers, 1972) p. 388.

54

course an interested party, and to make him the final arbiter is to go against the rule of natural justice

that a person should not be a judge in his own cause.101 Human nature is not imbued with so much

altruism that we can expect the head to take a decision prejudicial to his own interest.

It is our humble view that neither the view of the courts that the idi-igi is not repugnant to natural

justice equity and good conscience nor the view upholding the power of the family head to veto

the mode of distribution seems fair. Thus, the courts should resolve this anomalous impasse by

declaring that the idi-igi will apply only where there is equal number of children by each wife

and that in every case where the number of children is unequal in the sub-households, the ori-

ojori mode of distribution will apply. This will preserve the universality of the two systems.

Alternatively, the courts can audaciously declare that the idi-igi mode of distribution is repugnant

to natural justice, equity and good conscience as a result of its unfairness in most circumstances

and its unsuitability with modernity. Whichever line the court toes, the issues of inequitability

arising from these modes of distribution will be resolved and the family head divested of his

arbitrary power to veto in a matter in which he is an interested party.

4.2.6. The Choice of Customary Law Rules

Previously, it was a generally accepted principle of law in Nigeria that a person carries his

customary law with him. Therefore, it was not legally possible for a Nigerian to change his

ethnic group and acquire another ethnic identity, irrespective of the number of years he must

have spent in that “foreign” ethnic group. Thus, in Osuagwu v. Soldier,102 the court was to decide

whether to apply Islamic law, which was the lex situs and lex loci, or to apply Igbo customary

law, which was the personal law of the parties to the resolution of a dispute between two Igbo

men who were living in Kano State. The court resolved in the interest of justice to apply the Igbo

customary law in the resolution of the conflict on the grounds that it was the law binding

between the parties as opposed to the Islamic law.

101 Nemo judex in causa sua 102 (1959) N.R.N.L.R. 39 ; Tapa v. Kuka (1945) 18 N.L.R. 5; Zaidan v. Zaidan (1974) 4 U.I.L.R. 283.

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In Yinusa v. Adesubokan103, it was held that duration is immaterial when considering whether a

settler and his descendants have merged with the natives of the place of settlement. The test is

whether it can be established that as a result of the settlement, the settler has merged with the

natives, and has subsequently adopted their ways of live and custom.

The view expressed by the court in Yinusa’s case above received judicial recognition/

consideration by the Nigerian Supreme Court in the case of Olowu v. Olowu .104 Here, the court

was urged to consider whether it was possible for a person to change his personal customary law

of origin in favour of that of his adopted place of settlement. In this case, the deceased, a Yoruba

man by birth from Ijesha, had lived most of his life in Benin City, had married Benin women

who bore him all his children who were the plaintiffs and defendants and had applied to the

traditional Ruler of Benin and was granted naturalization as a Benin citizen. The trial court and

the Court of Appeal held that Benin Customary Law was the applicable law. On appeal to the

Supreme Court, it was held that although the deceased was a man of Yoruba extraction, he had

spent most of his life in Benin City, “naturalized” as a Benin and acquired considerable

properties in Benin City. On the strength of this evidence, the Supreme Court held that his

personal law and therefore the law governing the distribution of his estate at his death, was Benin

Customary Law, not his personal law of origin, which was Ijesha (Yoruba) Customary Law.

Coker in his lead judgement observed that in the light of the facts of the case, the deceased in

effect relinquished his Yoruba cultural heritage and acquired Benin status.

Unless this finding is reversed, Coker held the view that the trial Judge was right in saying that

the applicable customary law for the distribution of the estate was in line with that of the Benin

Native Law and Custom.105 The legal effect of this judgement is that it makes it possible for any

103 (1968) N.N.L.R. 97. 104 (1985)3 N.W.L.R (Pt.13) 372 105 See I.E. Sagay, “The Dawn of legal Acculturation in Nigeria – A Significant Development in Law and National Integration: Olowu v. Olowu” (Autumn1986) Vol.30, No. 2, Journal of African Law, at179-189. See also I.E. Sagay, Nigerian Law of Succession Principles, Cases Statutes and Commentaries, (1sted, 2006, Malthouse Press Limited) at 260-261.

56

Nigerian to change his personal customary law of origin in preference for another one which he

acquires as a result of acculturation/assimilation.

Another issue allied with choice of customary law is the non-application of Islamic law in the

Southern part of Nigeria. Unlike their northern counterparts, Muslims in southern Nigeria have

not enjoyed the application of the Islamic Personal Law. In a profusion of cases,106 the courts

have continuously denied them the benefit of their law. Thus, a case is being made for the

application of Islamic law as personal law of the Muslims in the southern part of Nigeria.107

The attitude of the courts in respect of the application of Islamic Personal Law in the south has

been borne out of ignorance of the appreciation of the nature of personal law and choice of

personal law in conflict situations. The courts have continued to treat Islamic law as a territorial

rather than a personal system of law. They usually reason that it applies to those who are in the

north and not southern Muslims. Another reason adduced for this non-application is that there

appears to be some prejudice against Islamic law by some judges in respect to the application of

Islamic law in the south as a result of the ‘secular’ nature of the society. Some prefer in anyway,

to apply the customary law over Islamic law even when all the significant connecting factors

points to Islamic Law.

It is opined that personal laws in a diverse society like ours should be determined in line with

peoples’ belief system. Nigeria is a multi-religious society. Virtually all Nigerians are Christian,

Muslim or traditionalist. Our laws too are shaped along religious line. Islamic Law is developed

from Islam. The English law is Christian law108 and no wonder anyone who conducts Christian

marriage is automatically deemed to have adopted English Law as his personal law. The

customary laws too are a product of tradition. Therefore, priority should be given to any of the

106 Asiata v. Goncallo (1915) 1 N.L.R. 41; Anjorin v Anjorin (unreported) Suit no. IG/19/CC/2012; Tapa v. Kuka, supra.; Apatira v Akanke (1944) 17 N.L.R. 149; The Estate of Alayo (Deceased) (1946) 18 N.L.R. 88. 107 A.O. Yekini, “Judicial Imbalance in the Application of Islamic Law As a Personal System of Law in Nigeria: Making a Case for Legislative Reforms,” Lagos State University Journal of Islamic Law & Culture, Vol. 15 No. 1(2014), p.31. 108 Bowman v Secular Society Ltd. (1917) AC 406.

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systems which the deceased or parties had affirmed. This could be identifiable and easily

determined by everyone.

4.3. Legislative Efforts

Due to the fact that customary law is largely unwritten, there are no statutes directly governing

intestacy under customary law. Apart from the Constitution, there are other laws which have

been enacted by the legislature. These laws impact upon the customary law of intestacy either as

regards discrimination or as regards inappositeness due to its passé nature. Some of these laws

will be briefly examined hereunder.

4.3.1. Enactments embodying the Tests for Validity of Customary Law

The various statutes empowering the courts to apply customary law prescribe some criteria for

determining the validity of any particular rule of customary law sought to be applied and

enforced. The Supreme Court Act109 and the High Court Laws of the various states110 direct the

courts to observe and enforce the observance of native law and customs, but only if the particular

rule is not contrary to public policy111 and is neither repugnant to natural justice, equity and good

conscience112 nor incompatible either directly or by implication with any law for the time being

in force.113 Section 18 of the Evidence Act114 provides that in any judicial proceeding, where any

custom is relied upon, it shall not be enforced as law if it is contrary to public policy or is not in

accordance with natural justice, equity and good conscience.

109 S. 17, Supreme Court Act, Cap. S15, L.F.N. 2004. 110 S. 22(1) High Court Law of Eastern Nigeria, Cap. 61, Laws of Eastern Nigeria, 1963; S. 18, High Court Edict No. 16 of the old Anambra State; S.13(1), High Court Law of Bendel State (now Edo and Delta States), cap. 65, Laws of Bendel State(now Edo and Delta States), 1976; Section 24(a) Bendel State Customary Courts Edict no. 2 of 1984; and S.34(1), High Court Law of Northern Nigeria, cap .49, Laws of Northern Nigeria, 1963; S. 26, High court of Lagos Act, Cap. 60, Laws of Lagos state, 1994. 111 Ojiogu v. Ojiogu (2010) 9 N.W.L.R. (pt. 1198) 1 S.C.; Okonkwo v. Okagbue (1994) 9 N.W.L.R. (Pt. 368) 301 at 335, 336; Re Adedevoh (1951) 13 W.A.C.A. 804. 112 Anode v. Mmeka (2008) 10 N.W.L.R. (pt. 1094) 1 C.A. 113 Kopek Construction Ltd. v. Ekisola (2010) 3 N.W.L.R. (pt. 1182) 618 S.C. 114 Act No. 18, 2011.

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4.3.2. Gender and Equal Opportunities Bill

The law seeks to eliminate the discriminatory customary law practices relating to inheritance by

women. It incorporates some aspects of CEDAW and the African Charter on Human and

People’s Rights.

Section 4(c) of the law specifically provides that any existing laws, regulations, customs and

practices which constitute discrimination against any person, shall be null and void and of no

effect whatsoever and shall not be enforceable against any person. Section 21 of the law provides

that women and men shall have the right to inherit their parent’s properties and that a widow

shall have the right to an equitable share in the inheritance of the property of her husband and the

right to live in the matrimonial house provided she does not re-marry.

At this juncture, it is gratifying to state that the Anambra State and Imo state115 have passed the

law.116 Recently, it has been passed in Ekiti State.117 However, the Bill is still pending before

other states.118 It is hoped that this Bill will be passed into law in no distant time.

4.3.3. Prohibition of Infringement of Widows and Widower’s Fundamental Rights Law

The Enugu State House of Assembly enacted a law119 which accords women as wives the right

of inheritance to the husband’s estate and prevents any form of levirate and Sororate practices.

The law provides thus:

Subject to the Marriage Act, Wills Law, Administration of Estates Law or indeed any customary law

(not repugnant to natural justice, equity and good conscience) a widow/widower shall not be

dispossessed upon the death of the husband/wife (of property acquired in the deceased

husband’s/wife’s lifetime) without his/her consent.120

115 Gender and Equal Opportunities Law 2007, No. 7 Imo State of Nigeria. 116 Report of the UN Committee on Elimination of Discrimination against Women, 54th session, (CEDAW/C/NGA/CO/6) 27 Sept. 2012, p. 8. 117 A. Aboluwade, “Ekiti Assembly passes Equal Opportunities Bill,” Punch Nigeria, November 9, 2013 (accessed December 1, 2013);available from http://www.punchng.com/news/Ekiti-Assembly-passes-Equal-Opportunities-Bill 118 Lagos, Ogun, Enugu, Ebonyi, Abia, Taraba, Edo, Kaduna, Plateau, Adamawa, Rivers and Kogi. 119 The Prohibition of Infringement of Widows and Widower’s Fundamental Rights Law, 2001, No. 3 of Enugu State of Nigeria. 120 Section 4 (2).

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The law recognizes a widow under native law and custom.121 This implies that women who

married under both the customary law are entitled to the rights of inheritance provided for under

the law. The law provides that no person for whatever purpose or reason shall compel a

widow/widower to be re-married by a relative of the late husband/wife" 122 Similar law exists in

some other states.123

4.3.4. Abolition of Osu System Law

The Abolition of Osu System Law124 abolished the Osu system and made it an offence

punishable with fine or imprisonment to enforce against any person any disability with respect to

the acquisition of inheritance of any property.125 However, whatever disability or deprivation left

out or omitted by the Abolition of Osu law has now been covered by Section 42(2) of the

Constitution.

4.3.5. International Laws

There are certain international laws that protect human rights internationally. These instruments

ensure that affect the customary law of intestacy complies with internationally prescribed

minimum standards of human rights. Most African nations have also ratified international

treaties that oblige them to ensure equality as well as respect for rights of citizens. These

instruments include:

1. The United Nations Charter (UN Charter)126

2. The Universal Declaration of Human Rights (UDHR)127

121 Section 2. 122 Section 4(1)(d) 123 Anambra State Malpractices against Widows and Widowers (Prohibition) Law, 2004; Edo State Inhuman Treatment of Widows Law, 2004; Oyo State Widows Empowerment Law, 2002; Ekiti State Malpractices against Widows and Widowers (Prohibition) Law, 2005. 124 Cap. 1, Laws of Anambra State, 1991; cap. 1, Laws of Enugu State, 2004. 125 Sections 3 and 6; Ebirinkiru v. Obanyereuwa (1959) 4 F.S.C. 212. 126 Article 55c provides for the universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. 127 Article 2 states that everyone is entitled to the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, …birth or other status.

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3. The African Charter on Human and Peoples’ Rights (ACHPR) which was adopted in 1981 and

domesticated by Nigeria in 1983 pursuant to Section 12(1) of the 1979 Constitution128 as the

African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act No. 2 of

1983.129 Nigeria is said to be the only common law country in Africa to have domesticated the

Charter in its entirety. This was recognised in Nwosu v. Nwosu.130

4. The Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW) is one such international treaty that is relevant to the issues under discussion.

Presently, fifty out of fifty-four African states have ratified CEDAW. Under CEDAW, state

parties condemn discrimination against women in all its forms.131 They also agree to pursue, by

all appropriate means and without delay, a policy of eliminating discrimination against women.

CEDAW imposes a positive obligation on states to do away with customary rules and practices

that discriminate against women.132

128 Equivalent of Section 12 of the 1999 Constitution (as amended). 129 Cap A9, Laws of the Federation of Nigeria, 2004. 130 (2012) 8 N.W.L.R. (pt. 1301) 1. 131 Article 2. 132 Article 5.

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CHAPTER FIVE

PROBLEMS, RECOMMENDATIONS AND CONCLUSION

5.1. Problems Challenging the Development of our Customary Law of Intestacy

The laws passed and the judicial decisions handed down to alleviate the hardships occasioned by

the application of customary law rules on matters of inheritance constitute a radical departure

from customary law and are significant landmarks in reforming our customary law of intestacy.

However, these judicial and legislative interventions have been saluted by quite a number of

hurdles which tend to undermine these efforts. These impediments are outlined hereunder:

1. Attitudinal barriers

Most of these cultural hereditary practices are firmly entrenched and intertwined with religion or

superstition.1 In spite of legislative restrictions and judicial pronouncements on certain

customary norms and practices relating to intestacy, the fact still remains that these customs and

norms have operated within the framework of established patterns of kinship systems and gender

segregated patterns of behaviour and they cannot be done away with by the mere stroke of the

legislative pen and the sheer bawl of judicial reverberations.2Also, the issue of repugnancy

remains at the discretion of the judges whose attitudes may indeed reflect patriarchal

perspectives, being unable to rise above their own experiences and backgrounds.

2. Low Literacy Rate and Poverty

The high illiteracy rate,3 especially among the rural population and the urban poor, means that a

lot of people are ignorant of the existence of these laws and the rights they afford. Even where

they are aware of the existence of such a law, financial considerations hamper any efforts to

enforce any rights they may have under the law. The harsh reality is that legal procedures

1 M. Uwais, “Women, The Constitution and Applicable Laws,” February 14, 2004. Accessed March 10, 2014. Available from http://www.greatbakriver.com/mmf2009/downloads/Women,%20The%20Constitution%20and%20 Applicable%20Laws.pdf 2 A. Kuenyehia, “Women, Marriage, and Intestate Succession in the Context of Legal Pluralism in Africa,” 23rd Brigitte M. Bodenheimer Lecture, University of California, Davis, Vol. 40, (2006), p.385. 3 UNICEF, At a Glance: Nigeria (accessed December 18, 2013); available from http://www.unicef.org/infobycountry/nigeria_statistics.html - (Nigeria’s adult literacy rate is 51%).

62

relating to estate administration are cumbersome and costly. Thus, most people cannot afford to

pursue the rights spelled out under these laws and judicial decisions or challenge certain customs

which they know to be repugnant to natural justice, equity and good conscience.4

3. Non-Justiciability of Chapter 2 of the Constitution

There are certain provisions in our Constitution which promote equality5 and impose a duty on

the State to protect, preserve and promote the Nigerian cultures which enhance human dignity.6

These are all contained in chapter II which covers Fundamental Objectives and Directive

Principles of State Policy. However, these provisions of Chapter II are said to be non-justiciable7

as they constitute mere ideas towards which the States are expected to aim.8

4. Legal Pluralism/Diversity of Customary laws

Boundaries of the three family law systems9 are complex and the customary laws are not unified.

The multiplicity of the applicable legal system has been a problem for the courts that are faced

with determining not only the problem of which system of law to be applied, but which of the

several customary laws is applicable.10

5. Non-domestication of International Laws

A lot of these international instruments have not been domesticated in our laws in order to have

the force of law properly so-called in our country.11 Elsewhere, it has been argued that the use of

reservations by signatories to these instruments inhibits the application of these laws.12

4 F. Waziri, “Critical Analysis of Discriminatory Inheritance Rights of the South Eastern Part of Nigeria (LL.M. Thes., St. Thomas University School of Law, Florida, U.S.A., 2007). 5 Section 17 of the 1999 Constitution (as amended), cap. c.23, L.F.N., 2004. 6 Section 21 of the 1999 Constitution (as amended). 7 Section 6(6)(c) of the 1999 Constitution (as amended). 8 Okojie v. A. G. Lagos State (1981) N.C.L.R. 218. 9 Statutory, Customary and Islamic law sytems. 10 NIALS, Widowhood Practices Project, (accessed September 14, 2013); available from http://www.nials-nigeria.org.projects/widowhooh%20practices%20project.pdf 11 Section 12 of the 1999 Constitution (as amended). 12 O. Adekile, “Succession at Customary Law – Addressing the Crossroads of Constitutional Conflicts,” OOU Law Journal, Vol. 1, No. 1 (2009), pp. 21 – 47 at p. 41.

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6. Declarative Nature of Human rights / Inefficiency of Enforcement Mechanisms

These human rights in the Constitution are more declarative than actual mostly due to the

underdevelopment and inefficiency of the implementation measures. Thus, even when the courts

have declared certain customs to be repugnant to natural justice, equity and good conscience,

there are no enforcement mechanisms to effect these declarations.13

7. Inconsistency by the courts

The roles played by the regular courts have not been consistent.14 There are occasions when the

courts shifted to the side of customs in its decisions in issues of inheritance disregarding the

provisions of the statutes and its decision resulted in unconscionableness. Also, the snail’s pace

at which cases are handled invariably defeats the whole purpose of seeking legal protection from

the courts.15 As a legal maxim aptly states, justice delayed is justice denied.16

8. The Interpretative Scope of Section 42 of the 1999 Constitution

Previously, it appeared that generally, the section did not cover actions of individuals who are

not government officials. However, the Courts have held that fundamental rights are enforceable

against individuals.17 The situation seems to have been resolved on a general basis rather than in

relation to particular provisions, which would have been a more acceptable approach. This is

moreso given that not all human rights provisions are enforceable against individuals.18

9. Unwritten Nature of Customary law

Due to the fact the customary law is largely unwritten, every custom has to be specifically

proved by the asserter or judicially noticed by the courts.19 The rules of customary law are

13 M. G. Chiroma, “Challenges of Enforcement of Fundamental Human Rights under the Constitution of the Federal Republic of Nigeria” (PGDLD Project, NIALS, University Of Lagos Campus, 2010). 14 NIALS, Widowhood Practices Project, (accessed September 14, 2013); available from http://www.nials-nigeria. org.projects/widowhooh%20practices%20project.pdf 15 A. Kuenyehia, loc. cit., p.397. 16 Obajimi v. Adedeji (2008) 3 N.W.L.R. (pt.1073) 1; Emesin v. Nwachukwu (1999) 6 N.W.L.R. (pt. 605) p.169. 17 Madu v. Onuaguluchi (1985) 6 N.C.L.R. 356; Ukwu v. Ezeonu (1991) 6 N.W.L.R. 708; Onwo v. Oko (1996) 6 N.W.L.R. 584. 18 See sections 41 and 44 of the 1999 Constitution (as amended). 19 Ojemen v. Momodu (2001) F.W.L.R. (pt.37) 1138; Giwa v. Erinmilokun (1961) 1 SCNLR 337.

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uncertain and undefined and as such difficult to be determined and enforced. This is further

complicated by the fact that customary law differs from locality to locality and even within each

locality exists further variations.

10. Exemption of Application of Certain Statutory Provisions to Customary Law

Despite the seeming strides made in the reform of customary law of intestacy, there still exists

certain exceptions that tend to make the statutes practically ineffective. An example is section

3(1) Wills Law20 which subjects testamentary disposing power to customary law. Another

example is Section 10(3) Legitimacy Act21 which makes the right of the illegitimate child and

the mother to succeed on intestacy to each other’s estate subject to native law and custom.

11. Non-Litigious Attitude in the North

It has been discovered that Muslims from the Northern part of Nigeria are generally reluctant to

undertake litigation.22 This is obvious from the paucity of relevant cases in the Law reports.

Cases where succession under Muslim Law has been litigated are quite few and far between.

This has to a large extent impeded the development of Islamic law of inheritance.

5.2. Recommendations

Based on the findings made in the course of this study, the study posits the following

recommendations:

� Application of Islamic Law to Muslims in Southern Nigeria

There is need for a legislative intervention to regulate the application of personal systems of law

in Nigeria. The current judicial attitude does not take cognisance of the socio-religious

background of Nigeria. A person who contracts marriage under Islamic law and was buried

under same law should be subjected to that law. Pending the creation of a legislative framework,

20 Cap. 133, Laws of Western Nigeria, 1959. 21 Cap. 519, L.F.N., 1990. 22 A. S. Maliki, “An Examination of the Nature and Operations of Islamic and Statutory Laws of Testate Succession in Kaduna State, Nigeria,” European Scientific Journal June edition, Vol. 8, No.13 (2012).

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the courts need to approach Islamic personal law from the proper perspective as a personal and

not a territorial law. The court should attach more weight to the belief system of the party

especially if deceased.

� Amendment of Section 3(1) Wills Law

The section should be amended to remove the clause which subjects testamentary power of

disposition to customary law. Thus, the testator will have the choice of excluding the

chauvinistic rules of customary law from governing the distribution of his estate.

� Unification of Family Law

What is needed is a system whereby the existing rule of customary marriage law is harmonized

with the provisions of the statutory marriage law with a view to unifying family law.23 Ideally,

there should be a single law on inheritance for marriages contracted under the existing Marriage

Act, as well as for customary law marriages.

� Legislative/Affirmative Intervention

It is imperative for some form of legislative action to be in place both at the Federal and State

levels. Few examples of such laws have been examined in the previous chapter. Such laws must

be specifically enacted against aspects of customary law that cannot stand the repugnancy test

and tests of human/constitutional rights.

� Extension of Legitimacy Act to apply to Customary Law

The Legitimacy Act should apply to children legitimated under customary law to the effect that

once a child is acknowledged, the provisions of the Act will apply. This will eliminate the

uncertainties surrounding the position of a child legitimated under customary law.

� Radical Approach by the Judiciary

The judges should adopt a more radical approach and wear a stern scowl when customs which

are repugnant to natural justice, equity and good conscience are brought before them. They

23 M. C. Onokah, Family Law (Ibadan: Spectrum Books ltd., 2003), p. 360.

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should gallantly and without hesitation declare such customs repugnant irrespective of how long-

standing or established the customs are.

� Award of exemplary and punitive damages

The Courts should take a progressive approach in awarding damages against perpetrators of

these antiquated customs by awarding exemplary and punitive damages. This was aptly stated by

the Court in Anekwe v. Nweke.24

� Legal Literacy Programs

If these laws are to have their desired impact, then it will be expedient to launch extensive

educational programs that target mainly the rural areas where these laws are yet to have any

significant impact. Legal literacy is an invaluable tool because not only will it enable those

wronged to seek redress but may cause those who know of the existence of such laws to refrain

from such prohibited customary practices and educate people on the possibility of circumventing

the limitation of customary law on succession, for example by making a Will or contracting a

Statutory Marriage. Also, the Muslims in the North should be encouraged to engage in litigation

more often.

� Enacting a Sharia Code on Intestate Succession

Since criminal punishments are codified by the Sharia States simply on the basis of their being

existent in the Qur’an and the Hadith, the same principle should be extended for the Islamic Law

of inheritance, since these protections are just as founded on verses in the Qur’an and the

example of the Prophet. This is due to the fact that Islamic law of inheritance is written unlike

customary laws. However, such code would be brought in line with modernity.

� Restatement of Customary Law

The restatement should be in form of record or digest of customary laws prepared in consultation

with the elders of each community so as to ensure they reflect their common opinions.25 The

24 (2014) LPELR-22697(SC). 25 This should not be confused with codification of customary laws.

67

record should not be given statutory form but should be receivable in the courts as public

document admissible without formal proof. However, the digest should be revised as frequently

as necessary so as to ensure that it keeps pace with changing social circumstances of the time.

The Benin Handbook and Igbo Manual on customary law constitute something akin to this, only

that they have no official legal status and are therefore not binding, it is meant to be

authoritative, but displaceable by other evidence.

� Statutory Enactment on the Duties of the Family Head

The family head’s accountability towards the family group for family property entrusted to his

care should be codified as is the case in Ghana.26 This will leave no room for doubt as to the

administrative role of the family head.

� Legal Aid Programs

There is definitely a need for provision of legal aid services to cover a range of civil cases and

public interest litigation for the elimination of gender disparity and obsolete customary practices

which impact negatively on intestacy under customary law.

� Personnel Training

Judges, judicial personnel and members of the Bar need specialised training on family law and

successional issues, together with the principles enshrined in the International laws, especially in

view of the insensitivity demonstrated by most of these personnel in total disregard to principles

of natural justice equity and good conscience.

� Domestication of International Laws

There is an urgent need for the domestication of International instruments in our laws. This will

not only further strengthen the position of beneficiaries who would ordinarily be discriminated

against, but align our customary law system with international best practices.

26 The Head of Family Accountability Law, 1985, Provisional National Defense Council Law (PNDCL), 114.

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� Involvement of Religious and Traditional Leaders

The custodians of culture must be carried along in the move for a change. This is to ensure that

the customs and norms of the people become extinct. Thus, a balance has to be struck between

the need to preserve culture and the need for same to conform to standard required for its

validity.

5.3. Conclusion

In the course of this study, it has been discovered that the various systems of intestacy under

Nigerian customary law are in dire need of urgent reforms as these systems have become

obsolete and are no longer in tangent with the changing society. There are some general rules

which are of dominant applicability amongst the various tribes. These general rules include

primogeniture in its many variations, rules as to decision of mode of distribution by the family

head, rules for determining the order of succession, disinheritance of illegitimate children,

methods of providing a successor in the absence of one, inter alia. Under Igbo customary law,

the major feature is that daughters and wives are not allowed to inherit. Under Yoruba customary

law, daughters can inherit but wives cannot. The major issue for concern however is the

discretion of the family head, being the eldest child, to decide which of the two modes of

distribution to be applied in the distribution of the estate. Under the Benin customary law, the

eldest son inherits the father's main house beneficially to the exclusion of all other siblings. It is

commented that this is the highest expression of primogeniture. Under the indigenous native

laws and customs of the Northern states, evidence points to the fact that females do not inherit

thereunder and the custom is applicable to those northerners who are non-Islams. Under the

Islamic law of inheritance, the major features are that female daughters inherit half the quantum

inherited by their male counter parts and the quantum of inheritance by the wife is half that of the

husband.

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The Constitution has to a large extent assuaged the successional disabilities that exist under

customary law by prohibiting discrimination. It has been pointed out that it is the judiciary that

has been the major agent of development of customary law of intestacy and the driving force for

upholding these sacrosanct provisions of the Constitution. The courts have made giant strides in

reforming our customary law of intestacy especially as it relates to inheritance rights of women,

illegitimate children, family property, family headship and other customary practices relating to

intestacy. This study has shown that the courts have not hesitated to declare any obsolete custom

relating to intestacy repugnant to natural justice, equity and good conscience. However, these

significant developments by the courts are not without shortcomings as there are certain

customary successional practices which the courts have tended to overlook or have wrongfully

upheld. These include the primogenitary rule of Igiogbe and the right of the family head to

determine the mode of distribution under Yoruba customary law. Another important issue which

is bifurcated is that of choice of customary law. Under the first part, it is found that by the

pronouncements of the courts, a person can validly change his ethnicity. The second limb has to

do with the erroneous refusal by the courts to apply Islamic law to Muslims who are resident in

the South. Though customary law is unwritten, there have been efforts by the legislature to

specifically enact laws that seek to invalidate customs which cannot stand the requisite tests for

validity. Also, international laws which affect intestacy under customary law indirectly are

examined. The problems which have stunted the development of our customary law of intestacy

despite the judicial and legislative interventions are outlined and recommendations highly

reflective of modern day realities are posited.

It is submitted that since Customary law is flexible,27 not a frozen or rigid system. The customary

law of intestacy should develop and adapt to reflect the changes in the social, historical and

political conditions of the society in which it operates.

27 Per Obaseki J.S.C. in Oyewunmi v. Ogunesan (1990) 3 N.W.L.R. (pt. 77) 445; Ojisua v. Aiyebelehin (2001) 11 N.W.L.R. (pt. 723) 44.

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ARTICLES

Adekile, O. “Succession at Customary Law – Addressing the Crossroads of Constitutional Conflicts,” OOU Law Journal, Vol. 1, No. 1 (2009), pp. 21 – 47.

Corcos, C. A., “From Agnatic Succession to Absolute Primogeniture: The Shift to Equal Rights of Succession to Thrones and Titles in the Modern European Constitutional Monarchy,” Michigan State Law Review (2012).

Edu, O. K. “A Review of Laws of Inheritance in the Southern States of Nigeria,” University of Nigeria Journal of Private and Property Law, Vol. 24 (2004).

Enemo, I. P., “The Illegitimate Child and the Right of Inheritance in Nigerian Contemporary Law,” Women’s Aid Collective (WACOL) Nigeria, (2000), pp. 189 – 205.

Enemo, I. P., “Widowhood and Property Inheritance under Customary Law,” Essays on Contemporary Legal Issues, Vol. No. 1, pp. 290 – 311.

Ezeilo, J. N., “Laws and Practices relating to Women’s Inheritance Rights in Nigeria: An Overview,” Women’s Aid Collective (WACOL) Nigeria, (2000), pp. 131 – 152.

Ezejiofor, G., “Alienation of Family Property in Nigeria,” African Law Studies, Issue 12, (1975).

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Itua, P. O., “Legitimacy, legitimation and succession in Nigeria: An appraisal of Section 42(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended on the rights of inheritance,” Journal of Law and Conflict Resolution, Vol. 4 No. 3 (2012), pp. 31-44.

Itua, P. O., “Legitimacy, legitimation and succession in Nigeria: An appraisal of Section 42(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended on the rights of inheritance,” Journal of Law and Conflict Resolution, Vol. 4 No. 3 (2012), pp. 31-44.

Itua, P. O., “Succession under Benin customary law in Nigeria: Igiogbe matters arising,” Journal of Law and Conflict Resolution, Vol. 3 No. 7 (2011), pp. 117-129.

Kuenyehia, A., “Women, Marriage, and Intestate Succession in the Context of Legal Pluralism in Africa,” 23rd Brigitte M. Bodenheimer Lecture, University of California, Davis, Vol. 40, (2006).

Maliki, A. S., “An Examination of the Nature and Operations of Islamic and Statutory Laws of Testate Succession in Kaduna State, Nigeria,” European Scientific Journal June edition, Vol. 8, No.13 (2012).

Ojiako, G. G. “Succession under Customary Law,” The Lawyer’s Journal, Vol. 1, No. 2, (1990).

Omotola, J. A., “Primogeniture and Illegitimacy in African customary law: The battle for survival of culture,” Indiana International and Comparative Law Review, Vol. 15, No. 1. (2004) pp. 115 – 145.

Onuoha, R. A., “Discriminatory Property Inheritance under Customary Law in Nigeria: NGOs to the Rescue,” International Journal of Not-for-Profit Law, Vol. 10, No. 2, (2008) pp.79-93.

Sada, I. N., ‘The Nature of Islamic Law; A Rigid or Dynamic System? A Critique,’ Ahmadu Bello University Journal of Islamic Law, vol. 11 No. 11(2000).

Sagay, I.E., “The Dawn of legal Acculturation in Nigeria – A Significant Development in Law and National Integration: Olowu v. Olowu” Journal of African Law, Vol.30, No. 2, (1986) pp. 179-189.

The Gale Group Inc., “Administrator,” in Encyclopedia of American Law, 2008, 2nd ed.

Yekini, A.O., “Judicial Imbalance in the Application of Islamic Law As a Personal System of Law in Nigeria: Making a Case for Legislative Reforms,” Lagos State University Journal of Islamic Law & Culture, Vol. 15 No. 1(2014).

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INTERNET MATERIALS

Canada: Immigration and Refugee Board of Canada, Nigeria: Levirate marriage Practices among the Yoruba, Igbo and Hausa-Fulani (February 2006). Accessed June 14, 2014). Available from http://www.refworld.org/docid/45f1478811.html

NIALS, Widowhood Practices Project. Accessed September 14, 2013. Available from http://www.nials-nigeria.org.projects/widowhooh%20practices%20project.pdf

Nigeria - Marriages in Nigeria. Accessed March 1, 2014). Available from http://family.jrank.org/pages/1211/Nigeria-marriages-in-Nigeria.html

Obi, C. A., “Marriage among the Igbo of Nigeria.” Ph.D. thes., Pontifical Urban University, Rome, 1970. Accessed February 14,2014. Available from http://www.afrikaworld.net/afrel/igbo-marriage.htm

The Free Legal Dictionary, Executor. Accessed April 14, 2014). Available from http://legal-dictionary.thefreedictionary.com/_/dict.aspx/word=executor

UNICEF, At a Glance: Nigeria, Accessed December 18, 2013. Available from http://www.unicef.org/infobycountry/nigeria_statistics.html

Uwais, M., “Women, The Constitution and Applicable Laws,” February 14, 2004. Accessed March 10, 2014. Available from http://www.greatbakriver.com /mmf2009/downloads/Women,%20The%20Constitution%20and%20Applicable%20Laws.pdf

THESES AND DISSERTATIONS

Bolaji, J. M., “A Comparative Study of Women’s Rights of Inheritance in Nigeria under Islamic Law and some Customary Laws.” Ph. D. thes., University of Ilorin, Nigeria, 2011.

Chiroma, M. G., “Challenges of Enforcement of Fundamental Human Rights under the Constitution of the Federal Republic of Nigeria” (PGDLD Project, NIALS, University Of Lagos Campus, 2010).

Moodley, I., “The Customary Law of Intestate Succession.” Ph.D. thes., University of South Africa, 2012.

Oluya, D. S., “Bini Customary Law of Inheritance: Shift in ‘Igiogbe’ as a case study.” Ph.D. thes., Dalarna University, Sweden, 2012.

Waziri, F., “Critical Analysis of Discriminatory Inheritance Rights of the South Eastern Part of Nigeria (LL.M. Thes., St. Thomas University School of Law, Florida, U.S.A., 2007).