OUTLINE OF SUCCESSION RIGHTS

CONTENTS

1.0         Introduction

2.0         Objectives

3.0         Main Content

3:1     Distinction between Testate and Intestate Succession in Customary Law

• Intestacy and Customary Rules of Succession
• Succession by all Surviving Issue Jointly
• Mode of Distribution

1. Parental Rights
2. Right of Spouses
3. Succession by Relatives
4. Succession by Sole heir
5. Marriage Under the Act

• Testate Succession
• 4:0 Conclusion

5:0         Summary

6:0       Tutor Marked Assignment

7:0      Reference/Further Reading

INTRODUCTION

Succession to land is an important aspect of customary land law, and it regulates how land devolves and is inherited by heirs of the original owner of the property. The customary law has evolved rules and customs that are applicable under  various  circumstances.  These  rules of customary law on succession like every other rule of customary law vary from one area to the other. There are also external interventions that will  render  the  rules  of customs inapplicable.

OBJECTIVES

At the end of this unit the student must have a good understanding of the basic rules of customary law on succession in African communities.

MAIN CONTENT

• Distinction between Testate and intestate succession

Upon the death of a man, the devolution of his property depends on whether or not  he has made a will. Where he made a will before his death, the properties are shared according to the directions in the will, and he is therefore known to have died “testate”. Where, he died without a will, then he is said to have died  “intestate”.  In  the latter, situation, the properties will be governed by the appropriate customary law. Succession under customary law is treated as being entirely intestate. Though one may argue that, if the owner of the property gives instructions as to how his properties are to be shared amongst his children and relatives this may be regarded as testate disposition. However, the point is that under customary law,  there  are rules of customary law guiding the sharing of inheritance and it is only where the testator decided to go out of this known rule, that exception is taken to the general rule, even then, the elders may disregard or modify the wishes of the deceased depending on the circumstances of the case, and they are not obliged to follow his wishes though it may be persuasive (See Lloyd, 1965, Yoruba inheritance and Succession, in Derret ed. Studies in the laws of succession in Nigeria, O.U.P. 155)

• Intestacy and customary rules of succession

The fundamental rule is that the personal law of the deceased land  owner  will be the  law applicable to his estate. In the case of Tapa v Kuka (1945) 18 NLR 5, where the deceased from Nupe land, left property in Lagos, the question for determination was whether it is the law of where the property is situated (lex situs) that should be made applicable or the personal law i.e. law of Nupe, the court held that it was the customary law of Nupe that will be applicable. In the western and mid western  states  of Nigeria,  it is the lex situs that will be applicable law when the issue of succession to his real  property is concerned.

See S20(2) customary courts law cap 3 LWN 1959). The  personal  law  may  not necessarily be the law of his native community, but he may have adopted to live as the member of another community and agreed to be subject to the customary law of that community, in which case, upon his death, his personal law will be that of his adopted community, (see Olowu v Olowu (1985) 3NWLR (pt 13 372).

PATRILINEAL SUCCESSION

There are two basic systems of succession under customary  law;  we have the patrilineal  and the matrilineal. The patrilineal succession is one that is strictly through the fathers’ lineage, while the matrilineal is strictly through the mothers’ lineage.

Patrilineal though there are pockets of matrilineal types in various parts of the country. There are also what is known as primogeniture type of inheritance, in which the eldest son takes and inherits the properties of his late father to the exclusion of others, while in some communities, ultimogeniture system is used, where the youngest child inherits all  the fathers properties exclusively. There two types, offshoots of the patrilineal type of succession. An example of the patrilineal society is the Igbo society, Benin society is strictly primogeniture. The Yoruba custom permits both male  and female children  to inherit  land  to the exclusion of other relatives.

The general rule of customary law is that upon death of a land owner, his property is inherited by his children under native law and custom.

MODE OF DISTRIBUTION OF ESTATE

The Yoruba customary law allows only the children to inherit the father’s property exclusively, relatives and other collaterals are therefore excluded. Male and female children share equally. A widow does not have a right of succession under  customary  law.  In the  case of Lewis v Bankole (1909) 1 NLR 18. The court laid down the following  rules in respect  of succession among the Yorubas.;

1. When the founder of a family dies, the eldest surviving son called  “Dawodu”  succeeds to the headship of the family with all that implies, including residence and the giving orders in his father’s house or compound
2. On the death of the eldest surviving son, the next eldest child of  the  founder, whether male or female, is the proper person to succeed as head of family.
3. The division into equal shares between the respective branches, regard being had to any property already received by any of the founder’s children during his life-time.
4. The founders grand children only succeeded to such rights as their immediate parents had in the family

When it comes to the sharing proper, the Yoruba custom recognize two modes of sharing, either per stripes or Idi igi or per capita or ori Ojori. In the case of Dawodu amd other v Dannole and others the court explained the position when it was held, (1) “Idi Igi” is the Yoruba Native Law and custom whereby the estate of an intestate whose wives have pre-deceased him, is distributed according to the number of the mother’s (wives of intestate) of the children of such intestate. (2) “Idi-Igi” is an integral part of Yoruba Native Law and custom relating to the distribution of intestates ‘estate, and is in full force and observance, and has not been abrogated. (3) “Ori – Ojori a Yoruba Native Law and Custom, whereby the estate of such an intestate is distributed according to the number of his children, is a relatively modern method of distribution, and may be adopted only at the discretion of the head of the family for the avoidance of litigation.

Some have argued that it is contrary to natural justice equity and good conscience to allow sharing by the Idi-Igi system, as it will deny many of their equal share.  In cases  where  a  wife has more children than others, to share by Idi-Igi and not Ori-Ojori is  totally  inequitable. (See Niki Tobi, op. cit p. 80). The Supreme Court however put the rule beyond doubt when the court held in the case of  Olowu v Olowu (1985)  3 NWLR  (pt 13) 372, that it  is the eldest child who takes over the management of the estate of the deceased for himself and other children, and also decides which system of distribution should be adopted  be it “Idi – Igi” or “Ori – Ojori”.

Where the intestate left no issue,  the court in the  case of Adedoyin v Simeon (1928)  9 NLR  76, laid down the following based on the evidence of customary law adduced before the court,

1. If the deceased left brothers and sisters by the same mother, they have the right of succession to the exclusion of other relations
2. Where there is no brother or sister by the same mother, the parents are together entitled but more usually the father would leave everything to the mother
3. If the deceased is survived by only one parent, that parent takes everything.
4. Brothers and sisters of the half blood by the same father have no right of  inheritance, notwithstanding that the property was inherited from their father.

You may note however, that, where the property, in dispute was inherited from the father’s family, inheritance is by his paternal relations, and, where the property was inherited through the mother, the maternal relations have the right of possession. See Suberu v Sunmonu (1931) 10 NLR 79 at 80.

Grand children take their deceased parents share pier stripes irrespective of whether such parent survives the intestate.

Ibo Rules of Inheritance

The Supreme Court had recognized the Igbo custom that the eldest son takes over all the properties of the intestate father, and becomes the head of family, and upon his death, his eldest son becomes the head of family see Ngwo v Onyejera (1964)1 All NLR 352.

The succession here is strictly patrilineal. The house of the deceased belongs exclusively to his eldest son to the exclusion of all other children. All the other properties of the land owner belong to all the family to be managed by the eldest son for the benefit of all. The female members of the family have no right to inherit land. But where anyone was living in the family house, before the death of the land owner, she may not be turned out during her lifetime.

A widow cannot inherit the husband’s property, but she may be allowed to live in the house for her life. In case of woman’s property, her land is inherited by her sons, where she is married in the absence of sons, the property acquired by her before marriage goes to her own family and not to her husband, and property acquired by her after marriage belongs to her husband or his next of Kin. See Nwugege v Adigwe (1934) II NLR 134.

VARIATIONS OF CUSTOMARY LAW BY MARRIAGE

Section 36 of the Marriage Act 1914 provides that where: (i) a person who is subject to customary law contracts a marriage in accordance with the provisions of the Act and dies intestate after the commencement of the Act leaving a widow or husband or any issue  of such marriage. (ii) any person who is an issue of a marriage under the Act dies intestate subsequent to the commencement of the Act. Real and personal property left  by  the intestate which might have been disposed of by will shall be distributed in accordance with the law of England relating to the distribution of the personal estates of the intestates. Any customary law to the contrary notwithstanding. All the states of the western states and mid-western states have adopted the Section 36 in their Administration of Estate Law.g. see Section 49(5)Aadministration of Estate law of Bendel State (now Edo and Delta states) 1976.

Cole v Cole.

The rule laid down in cole v cole (1898) 1 NLR 15 is to the effect that the provisions of customary law or the marriage Act does not affect succession  of persons married outside   the country under a monogamous marriage. It was held in the case that on the death intestate, of a Christian native outside the colony and protectorate, the succession to his property is not governed by the marriage ordinance which applies solely to marriage contracted locally, and the English law of succession will prevail over the native customary law.

Testate succession

The owner of land who executes a will directing how his land and other properties may be shared is said to have died testate. Where there is a written will, then the entire rules of customary law is excluded. No special words may be used, but it must be in writing, and signed by the testator and in the presence of two witnesses who must also sign in his presence. Where the will is not properly attested, the gift will fail  and the customary  law  will apply.

The testator may create a family property under customary law where he directs that his property be held as family property. See Jacobs v Oladuni Bros. (1935)  12 NLR 1. Note that  the provisions  of the  Wills Act 1837 applies to testate succession. But, it will not apply where the testator attempts to give in his will family property. Because it does not belong to him but to  the  family.  See Abeje v Ogundairo (1967) LLR 9

CONCLUSION

The customary law on succession in African societies varied from  community  to community and is influenced by the English received laws, marriage, and Islamic law.

SUMMARY

The succession to property of a deceased depends on the customary law of the person, the type of marriage contracted by him and his choice, whether he wants his property to be administered under customary law or under the English law.

TUTOR MARKED ASSIGNMENT

Discuss the customary law of succession in African communities

REFERENCES/FURTHER READING

B .O.NWABUEZE, 1972, Nigerian Land Law,Nwamife Publishers Limited Enugu

 Coker, Family Property among the Yorubas,(2nd ed)

Lloyd, (1962) Yoruba Land Law

Lloyd, 1965, Yoruba Inheritance andSuccession  in Derret,ed.  Studies in Law of Succession in Nigeria

Elias, British Colonial Law

Elias, Nigerian Land Law and Custom Elias,Nature of African Customary Law

Pollock, 1961, Jurisprudence and Legal Essays, London.

Omotola, 1984, Essays on the Land Use Act , Lagos University Press

Olawoye ,1970, Meaning of family property,NJCL vol 2 p300

Oluyede, 1989,Modern Nigerian Law, Evans Bros,(Nigerian publication)Ltd

Olawoye, Title to Land in Nigeria, Obi, 1963, The Ibo Law of Property.