CUSTOMARY
SUCCESSION LAW IN MODERN
IBO LAND;
JUDICIAL AND LEGISLATIVE DIMENSION IN FOCUS*
ABSTRACT
Right from the beginning there
has always been a transition from one generation to another generation and
whatever assets or liabilities that were owned or used by one generation is
usually passed or transferred to the succeeding generation.
The law of
succession is all about the transfer or devolution of property on the death of
the owner[1].
It is the manner or form by which property devolves. Though there may not have
been any law or statute enacted by a legislature for this purpose, yet each
community have had their own beliefs and practices regulating same. Thus, it
was held,[2]
that it is the assent of the natives of a particular community to practices and
customs in that community that makes such practices and customs valid[3].
Customary law embodies customs as practiced by the people which they regard as
binding on them[4].
Customary succession therefore, is concerned with the way and manner recognized
and accepted by the people in which properties are transferred locally
according to the customs, traditions and practices of the people.
This seminar paper therefore is aimed
at examining customary succession among the Ibo speaking peoples of Nigeria
INTRODUCTION
Haven noted above the fact that
succession have been since the existence of man upon the earth, it therefore
means that succession in Africa and in particular among the Ibo speaking
peoples of Nigeria did not begin with colonization. Thus even before the
colonization of Africa, her indigenous people
had their own established culture, customs, practices and way of life which
regulated relationships between of these communities, including succession[5].
Customary law is any system of law
different from common law and a law enacted by a competent legislature in Nigeria, but which is enforceable and binding
within Nigeria
as between the parties subject to its way[6].
Customary succession therefore, is succession that is not in accordance with
the common law or a statute enacted, but in accordance with the traditions,
customs and practices of the local people which are enforceable and binding
between the parties which are subject to it.
This paper therefore the examines
nature of succession as practiced according to the customs, traditions and
practices of the Ibos of Anambra, Enugu, Ebonyi, Imo and Abia states, (South-Eastern
states) of Nigeria, legislative and judicial interventions and their impact on
these customary practices, advantages and disadvantages of customary practices
if any, recommendations and conclusion.
WHAT
IS SUCCESSION?
Succession is the assumption of
position or title, the right to take up position or little, or the order in
which a position is taken up[7].
According to Kerridge R[8],
it is concerned with the transfer or devolution of property on death[9].
Succession has been defined as “the order in which or the condition under
which one person after another succeeds to a property, dignity, title or
throne; the act or process of a person becoming beneficially entitled to a
property or property interest of a deceased person[10]”.
Succession can either be testate or intestate. Testate succession is based on
the provision of a will, while intestate succession is that which is without a
will. In this paper however, we are concerned with intestate succession
INTESTATE
SUCCESSION
Intestacy is a condition in which one
dies without a valid will[11].
It refers to the laws of the state which provides for the inheritance of
property from a person who dies without leaving a will[12].
It is the body of law that determines who is entitled to property in the
absence of a valid last will and testament or other binding declarations[13].
Intestacy could be total or partial.
It can be said to be total where there is no will at all or even if there was,
it has been invalidated. On the other hand intestacy can be said to be partial
in either of the following circumstances. First, where a particular gift or
gifts lapse, secondly where the entire estate is not fully covered by the will
or thirdly some aspects of the will have been invalidated.
LAWS
GOVERNING INTESTACY IN NIGERIA
There is no one general law on
intestacy applicable throughout Nigeria.
Intestate succession therefore in Nigeria is governed by different
rules and laws as a result of the pluralism of family law[14].
Besides, since the issue of succession, is not on the exclusive legislative
list but residual[15]
it therefore means that each state of the federation apart from the customs and
traditions of the different tribes and ethnic groups in Nigeria are at
liberty to enact laws regulating succession. Thus is as provided by the 1999
Constitution of the Federal Republic of Nigeria (as amended)[16],
only the formations, annulment and dissolution other than Islamic and customary
manages that the Federal Government has legislative competence[17].
The first Regional Instrument on
succession was enacted by the old Western Region in 1959[18]
comprising of the present day Oyo, Ogun, Ondo, Osun, Ekiti, Edo and Delta States.
Today, there are other laws governing
intestate succession in Nigeria
which includes:
- Constitution of the Federal Republic of Nigeria 1999[19]
- Administration of Estates Law 1959 which is applicable to states of the old Western Region[20]
- Administration of Estates Law, Lagos State[21]
- Administration and succession (Estates of Deceased Persons) Law, 1987[22] applicable to Anambra, Enugu and Ebonyi States
- Case law[23]
- Islamic Law[24]
- Customary Law[25]
From the
above, it is clear that succession in Nigeria is governed by statute,
case law and customary/Islamic law. However in this paper, we are concerned
with customary succession as affected by statutes and judicial decisions with
particular reference to the Ibos occupying Anambra, Ebonyi, Enugu, Imo and Abia states, the South-Eastern
Geopolitical Zone of Nigeria.
THE
NATURE OF CUSTOMARY LAW SUCCESSION
Customary law succession is the
succession that is governed by the customs, beliefs, traditions and practices
of the indigenous people. Customary laws are “customs that are acceptable as
legal requirements or obligatory rules of conduct, practices and beliefs that
are so vital and intrinsic a part of a social and economic system that they are
treated as if they are laws”[26].
Accordingly, the customary law of an
area or a community encapsulates all the beliefs, social institutions and
religion that characterizes and are unique to that particular society[27].
Customary laws therefore, are the body of rules governing a particular group of
people[28].
Customary succession therefore, being
succession that is according to the customs, beliefs and traditions (customary
laws) of the people is mainly intestate, i.e. without a will[29].
There are however very few instances where customary oral wills are made and
where such declarations fulfils certain conditions they are valid and binding[30].
Apart from the fact that customary succession is basically intestate, another
characteristic feature of customary succession is that there is no one general
rule of customary succession among the different communities. Customary
succession rule or law like customs, traditions and beliefs, it differs from
community to community[31].
Therefore, we shall in this paper consider customary law succession among the
Ibos of the South-Eastern Region of Nigeria.
THE
IBO CUSTOMARY LAW OF SUCCESSION
Customary succession among the Ibos is
predominantly patrilineal[32].
Inheritance is therefore governed by the principle of primogeniture in the
sense that the eldest son of the deceased succeeds to his estate[33].
This is known as “Okpala” or “Diokpa”[34].
The Okpala who is the eldest son automatically on the death of his father steps
into the shoes of the father as the head of the family[35].
In a situation where the deceased had more than one wife, the eldest sons of
each of the wives take part in the sharing of the deceased estate[36].
There are however a few communities where succession is matrilineal[37].
For instance, in Ohafia division, according to the customary law manual[38] a
man’s intestate estate is inherited by his maternal relatives, their sons and
daughters[39].
In other parts of Ibo land where
succession is patrilineal and by primogeniture, the deceased eldest sons
stepping into the father’s shoes as the head of the family is entitled to the
compound or the immediate surroundings and any other special property/privilege
the father enjoyed why he was still alive[40].
This right includes occupation of his deceased father’s dwelling house, though
in practice, he may chose to live in his own house and decide which of his
brothers should occupy the building or get a share of land for erecting a
building[41].
It should however be noted and
understood that although the eldest son inherits his deceased father’s real and
personal property, he holds the landed property as trustee-beneficiary for his
other brothers and for himself[42].
Thus he has the right of control over his deceased father’s land and must use
them for the benefit of his younger brothers[43].
However, where the deceased is not
survived by any male issues his estate is inherited by his surviving brothers
of full blood, and where there is no brothers of full blood, the deceased
father inherits[44].
In Imo State,
among the Awo- Idemili people where succession is referred to as “ekpe”, land
can be inherited from both lineage and non lineage source[45].
It is lineage source where the property in issue is that which had passed from
proceeding generations and non-lineage source when it is otherwise[46].
The customary inheritance procedures in this community is that, while the
decease eldest son inherits the deceased father’s dwelling house and compound,
the youngest son inherits the mother’s hut and the backyard[47].
But these customary practices have undergone changes as a result of factors
like population, literacy, civilization etc[48].
It should however be noted that wives
and daughters does not have any right of inheritance under the Ibo Customary
Succession Law to their deceased father’s movable and immovable properties[49].
According to the learned author, “personal property including wives and slaves
descends to the eldest son as heir, or failing a son, to the oldest brother or
male relative”[50].
This principle was affirmed by the
Supreme Court in Nezianya v. Okagbue[51]
where it was held that “under the native law and custom of Onitsha, a widow’s
possession of her deceased husband’s property… however long it is… does not
make her owner, she cannot by efflusion of time claim the property as her
own…she has however the right to occupy the building or part of it, but this is
subject to good behaviour”.
This position was further affirmed by
the Supreme Court in Nzekwu v Nzekwu[52]
where the court maintained that a widow’s interest in the deceased husband
property/house is possessory and not proprietary and as such, she cannot
dispose of it.
The only ground in which females can
inherit under the Ibo customary law of succession is under the “Nrachi” or
“Idegbe” institution[53].
Under this practice, where a man dies without a male child to inherit his
estate, the daughter will remain unmarried in her father’s house with the intent
of raising children in her father’s home[54].
The legal interest in the decreased father’s estate vests in her until she
gives birth, and only her male children can succeed him according to the rule
of primogeniture[55].
However, where a female dies being
unmarried and not a “Idegbe” her estate is inherited by her full blood brothers
or father by default; and where there is no surviving father or brothers, the
half brothers will inherit her. The sisters can never inherit her[56].
Where the female is married and she
has properties which she acquired before marriage, such reverts back to the
maiden family; but movable properties acquired by the wife before manage if
taken by her to her husband’s house, goes to the husband or his family on her
death[57].
Properties acquired by a married woman after her marriage goes to her husband
and his family on her death[58]
personalities like pots, cloths etc of a deceased wife, goes to the daughters.
LEGISLATIVE
INTERVENTION AS REGARDS IBO CUSTOMARY LAW OF SUCCESSION
1.
THE CONSTITUTION
In Nigeria, the Constitution[59]
being the GRUNDNORM of all other
laws has provided for inheritance/succession in the Residual List. The Constitution
provides that[60]
the constitution is supreme and its provision binding on all authorities and
persons throughout the Federal Republic of Nigeria, and any other law
inconsistent with the provisions of the constitution, shall to the extent of
the inconsistency be void[61].
Besides, section 42 of the Constitution[62]
(as amended) provides for the right from freedom from discrimination. Sub-section
(2)[63]
of the above section confers on children born outside wedlock, freedom from
discrimination and the right of inheritance under intestacy whether under
statute or customary law. Thus in Salubi
v Nwariakwa[64]
where the decease Chief T.E.A Salubi was married to Mrs. Angela Salubi under
the Marriage Act in 1939 in which two children were born, namely to Appellant,
Dr. T.E.A Salubi and the Respondent, Mrs. B. Nwariakwu. The deceased had two
other children out of wedlock by two other women. On his death intestate in
1982 the appellant (his son) and his widow were granted Letters of Administration
over the estate in 1985. Due to the age and poor health of the widow, the
appellant became the sole administrator of the estate. The respondent not being
satisfied with the way the estate was being administered by the appellant
instituted this action. The appellant had contended that the two sons born to
the deceased outside wedlock cannot be considered as legitimate for the purpose
of inheritance. But the Supreme Court applying the provisions of section 39(2)
of the 1979 Constitution[65] which
is pari materia with section 42(2) of 1999 Constitution (as amended) held that[66] “The
two issues of the deceased born out of wedlock during the subsistence of the
marriage, were entitled to share in the estate of the deceased equally with the
two issues of the lawful marriage”.
Furthermore, the Court of Appeal,
Eungu Division, referring to the same section[67],
pronounced against any customary law or practice that discriminates any one on
the grounds of sex in the case of Mojekwu
v Mojekwu[68].
The Appeal Court in this case held that “Nigeria is an egalitarian society where
civilized sociology does to discriminate against the woman folk, which regard
them as inferior to the men folk… thus any form of social discrimination on the
grounds of sex apart from being unconstitutional, is antithesis to a society
built on the tenants of democracy. The… custom which permits the son of the deceased
person’s brother to inherit his property to the exclusion of his female children
is discriminatory and therefore inconsistent with the doctrine of equity”.
2.
ADMINISTRATION AND SUCCESSION (ESTATE OF DECEASED PERSONS) LAW, 1987
This law applies to the Eastern states
of Nigeria, namely, Anambra,
Enugu and Ebonyi States,
to the estates of persons who are married under the Act. It covers issues of
inheritance and succession to both real and personal estates of persons who
dies intestate. This law[69]
prescribed detailed rules for the distribution of real and personal property of
an intestate thus:
Section
120
a.
If
the intestate leaves a husband or wife but no children, parents or brothers or
sisters of the whole blood, the residuary estate shall be held in trust for the
surviving spouse absolutely. However, where the surviving spouse is the wife
and the intestate leaves brothers or sisters of the half blood, the wife’s
interest will be for her life or until she remarries which ever first occurs.
Thereafter the residue of her interest shall go to the intestate’s brothers and
sisters absolutely in equal shares. The children of a deceased brother or
sister will take the share to which his parent would have been entitled if
alive.
b.
Where
the intestate leaves a husband or wife as well as children’s children (whether
or not he also leaves parents or brothers or children of brothers and sisters),
the residuary estate shall be held on trust as to the value of one-third
thereof for the surviving spouse. The interest of such spouse shall be absolute
in the case of a husband, and in respect of a wife, for her life or until
re-marriage, whichever first occurs. The remainder of the estate together with
any residue on the cesser of the wife’s interest shall be held on trust for the
children of the intestates’ children in equal shares absolutely
c.
If
the intestate leaves a husband or wife as well as one or more of the following-
a parent, a brother or sister of the whole blood or children of a brother or
sister of the whole blood, but does not leave a child, two thirds of the
residuary estate shall be held on trust for the surviving spouse. In the case
of a husband, the interest shall be absolute while for a wife, it will last for
her life or until her re-marriage which ever first occurs. The remaining one
third of the estate together with any residue on cesser of the wife’s interest
shall be held on trust for the brothers of the whole blood in equal shares absolutely.
In the absence of brothers of the whole blood or their children, the portion
will be for parents absolutely.
d.
Where
the intestate leaves children or children of deceased children, but no husband
or wife, two-thirds of the residue of the intestate’s estate shall be held on trust
for the children of the intestate equally. Of the remaining one third, one
sixth shall be held in trust for the parents and the other one-sixth for
brothers and sisters.
e.
If
the intestate leaves no husband or wife and no children or children of deceased
children, but leaves both parents, two-thirds of the residuary estate of the
intestate shall be held on trust for the parents in equal shares absolutely.
The other one-third shall be held in trust for brothers and sisters, if any, in
equal shares absolutely. If no brothers and sisters survive, their share shall
go to the parents.
f.
Where
the intestate leaves no husband or wife and no issue, but leaves one parent,
two-thirds of the residuary of the intestate estate shall be held on trust for
the surviving father or mother. One-third of the value of the estate will be
held on trust for brothers and sisters in equal share absolutely. If there are
no brothers and sisters, their shares will go to the surviving father or
mother.
g.
If
the intestate leaves no husband or wife and no issue and no parent, the residuary
estate of the intestate shall be held on trust for the following persons living
at the death of the intestate and in the following order and manner.
i.
First,
upon trust for the full brothers and sister of the intestate. But if no person
takes an absolutely vested interest under such trusts then.
ii.
Secondly,
on trust for the half brothers and half sisters of the intestate. If no person
takes an absolutely vested interest under such trusts, then
iii.
Thirdly,
on trust for the grandparents of the intestate, in equal shares. If there is no
member of this class, then
iv.
Fourthly,
on trust for the uncles and aunts of the intestate. But if no person takes an
absolutely vested interest under such trust, then
v.
Fifthly,
on trust for the uncles and aunts of the intestate parents.
h. In default of any
person taking an absolute interest under the forgoing provisions, the residuary
estate shall belong to the head of the family of which the deceased was a
member. Such a head of family shall, out of the whole of the property devolving
on him, provide for the dependants, whether kindred or not, of the intestate,
and other persons for whom the intestate might reasonably have been expected to
make provision.
It
should be noted that this provisions considered above is applicable to the
estates of intestates who were married under the provisions of the Marriage Act.
This provision automatically excludes the application of obnoxious customary
laws or any statute of General Application to the estates of person who died
intestate, save the exceptions known to law. Besides, as seen under this
provision, widows who are married under the Act are now entitled to inherit a
part of their deceased husband’s estate for life or until she re-marries which
were never accorded them under customary law. Thus, the 1987 law[70]
is a welcome development in ameliorating the harshness of the Ibo Customary
Succession Law particularly as it relates to widows.
However since this law[71] applies
only to Enugu, Anambra and Ebonyi States
to the estates of deceased intestate married under the Act. then the remainder states
of Abia and Imo States who have not enacted any
succession law, the Rule in Cole v Cole[72]
and Onwudinjo v Onwudinjo[73]
will apply. These Rules/Principles thought to bring succour or respite to the
people came with their own harshness as persons who would have ordinarily inherited
from the deceased estate are deprived inheritance. For instance in Onwudinjo’s[74]
case where the decreased who was married under the Act, out of which children
were born later had an affair with one Chinelo in which two children were born.
The court held that those children born out of wedlock were not entitled to
inherit. It is clear from the above that none of these rules have in any way
solved the discriminatory and obnoxious practices or customary law succession,
but rather have contributed to it.
THE
PROHIBITION OF INFRINGEMENT OF A WIDOW’S AND WIDOWER’S FUNDAMENTAL RIGHT LAW[75]
This law enacted by the Enugu State
House of Assembly is meant to criminalize the subjection of the spouse of decease
to humiliating and dehumanising treatment, or forcefully evicting them from
their matrimonial homes. But the law did not however make any civil remedies
where the spouse, of a deceased, usually the widow is still victimized.
The law also provides that “A
widow shall not be deprived upon the death of the husband of any property
acquired by the deceased husband/wife during the deceased husband’s/wife’s life
without his/her consent[76].
JUDICIAL
INTERVENTION AS REGARDS IBO CUSTOMARY LAW OF SUCCESSION
As seen above, widows and daughters do
not have any right of inheritance under the Ibo customary law of succession. Cases
like Nezianya v Okagbue[77]
have supported this customary law rule. However recent cases have to a very
large extent reduced this discrimination by pronouncing against customs that
are discriminating with regards to succession and inheritance. Though several
cases like Nezianya v Okagbua[78],
Nzekwu v Nzekwu[79]
etc had only established the right of a widow to dwell in her matrimonial home
subject to good behaviour, they have not in anyway considered the rights of
daughters. But cases like Mojekwu v
Mojekwu[80]
and others have pronounced against the customary succession law practices that
deny females the right of inheritance.
Thus, in the above case[81]
the nephews of the deceased contended that according to the Nnewi customary law
of succession which is based on primogeniture, he was the one entitled to
inherit the decreased estate since the deceased had no male issue except his
two wives and daughters. The Appeal
Court gave judgment for the daughters and held
that such customs that discriminates is unconstitutional and repugnant to
natural justice, equity and good conscience.
In the above case, Niki Tobi JCA as he
then was, delivering the lead judgment, held[82] “All
human beings male and female are born freely without any inhibition on the
ground of sex and that is constitutional. Any form of societal discrimination
on the ground of sex, apart from being unconstitutional, it is antithetic to a
civil society built on the tenants of democracy, which we have freely chosen as
a people. We need not travel all the way to Benjing to know that some of our
customs including the Nnewi “Oli-ekpe” custom relied upon by the appellant are
not consistent with our civilized world in which we all live today, including
the appellant. In may humble view, it is the monopoly of God to determine the
sex of a baby and no the parents… I believe that God, the creator of human begins
is also the final authority of who should be male or female. Accordingly, for a
customary to discriminate a particular sex is to say the least an affront to
the Almighty God himself…. On my part, I have no difficulty holding that
“Oli-ekpe” custom of Nnewi is repugnant to national justice, equity and good conscience”.
Also, in Mojekwu v Ejikeme[83]
where the appellants, grand children of the deceased daughter Virginia who had
performed the “Nrachi”[84]
custom claimed that they are entitled to inherit the deceased estate. The
respondents being five members of the deceased brother’s family claimed inter alia
that they are entitled to the deceased property based on the “Ili-ekpe” custom[85]
but the Court of Appeal, (Enugu Division) by a majority decision, held that the
“Nrachi” custom which is designed to oppress and cheat woman and compromise the
basic tenets of family life, was inequitable and judicially unenforceable.
Accordingly, a female child does not need to perform such custom in order to
inherit her deceased father’s estate. It further held that the custom was
repugnant to natural justice because the children born in respect of such
customs are denied the paternity of their natural father. Besides, the custom
is inconsistent with public policy as it encourages promiscuity and
prostitution. A female child is generally entitled to inherit her deceased
father estate and does not need to perform any customary ceremony such as
“Nrachi” in order to exercise that right.
Similarly in Obusez v Obusez[86]
under the Agbor customary law, a custom similar to that of the Ibos, the
brothers of the deceased claimed that they are entitled to administer the
estate of the deceased as against the widow and his infant children. Their claim
was based on the customary law which deemed the widow as a chattel to be
inherited. But the court held that the widow is not a chattel and that since
she applied for the Letters of Administration as next friend to the infant
children, she is entitled.
Flowing from these decisions and a
host of other cases, it is obvious that customary law succession is gradually being
removed from practices that are discriminatory in nature to more friendly
practices. Though there are still a number of practices that are still
unfriendly, it is hoped that our legislatures and the judiciary will rise up
and do that which needs to be done.
BASIS
FOR THE APPLICATION OF CUSTOMARY SUCCESSION LAWS
According to a researcher, the
majority of Nigerians are governed by customary laws and about 80% of
disposition of property are settled under customary law[87].
This is because customs have been described as a rule of conduct, obligatory on
those within its scope, established by long usage[88]. Customary
law on the other hand have been defined in Oyewumi
v Ogunesan[89]
as the “organic and living law of the indigenous people of Nigeria
regulating their lives and transactions; it is organic and not static. It is
regulatory in that it controls the lives and transactions of the communities
subject to it”.
Thus, whereas estates of persons
married under the Act are governed by statute the estates of those married
under customary law are governed by customary law.
Besides by the provisions of the Wills Law, 1959[90]
which is similar to the Wills Act of 1837[91],
a testator can only dispose off by will that which he has the capacity to
dispose off under customary law[92].
The Law provides in part as follows[93]:
Subject to any
customary law relating thereto, it shall be lawful for every person to devise, bequeath
or dispose off, by this will executed in manner hereinafter required all real
estate and all personal estate which he shall be entitled to, either in law or
in equity…
Thus, in Oke v Oke[94]
where the deceased had by will devised his dwelling house, it was held that
under the Urhobo or Itsekiri (Warri) customary law, such property cannot
lawfully be inherited by or given to any other issue of the deceased other than
the eldest son. In the words of the court such an estate “does not form part of
the distributable estate”. Therefore, estates or properties that are not
devisable by will still have to be distributed according to customary law of
succession even though there is a valid will[95].
Another basis for the applicability of
customary succession law is the provision of the High Court Laws of the various
states. For instance section 13 (1) High
Court Law, 1964[96]
provide that:
The High Court shall
observe and enforce the observance of every customary law which is applicable
and is not repugnant to natural justice, equity and good conscience nor
incompatible either directly or by necessary implication with any written law
for the time being in force and nothing in this law shall deprive any person of
the benefit of any such customary law.
Thus, High Courts are enjoined to
enforce customary laws which are not repugnant to natural justice, equity and
good conscience or incompatible either directly or indirectly with any law for
the time being in force.
The High Court Law[97]
further provides:
Where the High Court determines that
customary law is applicable in any cause or matter, it shall apply the
particular customary law which is appropriate in that cause or matter having
regard to the following rules-
(b) In causes and
maters arising from inheritance, the appropriate customary law shall subject to
paragraphs (a) and (d) of this subsection, be the customary law applying to the
deceased;
Particularly regarding the issue of succession
and inheritance, the High Courts are enjoined to enforce customary law, as long
as they comply with the validity test. This is what gives basis for the
application of customary succession law in succession matter, though sometimes
such customary laws might appear harsh and offensive.
Besides, as put by Joy Ezeilo39
succinctly, “with respect to intestate succession in Nigeria, there is a wide gap
between law and practice… existing laws with regards to intestacy of persons
married under the Act are hardly enforced… In practice when a man dies
intestate, the tendency or the usual practice in most Igbo speaking states of
Eastern Region is to subject all his estate- both reality and personality to customary
laws of intestate succession”.
Therefore succession is mainly settled
under customary law.
RECOMMENDATIONS
AND CONCLUSIONS
From the foregoing, it is hereby
recommended that:
1. That our laws particularly
those dealing with succession be urgently reformed and updated to meet up with
acceptable practices around the world.
2. That awareness and literacy
campaign should be carried out to enable persons who are aggrieved seek for the
enforcement of their fundamental human rights as it is guaranteed under the
constitutional of the Federal Republic of Nigeria, 1999.
Besides, mass enlightenment and
education should be carried out as to the importance of making wills. This will
on the long run help to reduce the number of persons who are dying intestate. This
is because testate succession reduces the incidence of customary succession.
3. It also recommended that our
customary laws be codified as this is essential for a reliable legal system and
will bring about certainty[98].
It is not enough to codify without unifying these laws. For instance, the Nnewi
and the Onitsha
customs as pertaining to female inheritance differ and yet they are neighbours.
Unification will therefore bring together in one a central and acceptable
customary law practices for communities that have common heritage and ties.
4. It is also recommended that
courts should be proactive in handling customs that are repugnant to natural
justice, equity and good conscience. This is because the courts as often
called, is “the last hope of the common man”.
5. It is also recommended that the Convention
For The Elimination of All Forms of Discrimination Against Women (CEDAW), be
domesticated in Nigeria as this will also help the women folk that are being
discriminated against to fight for their rights.
CONLUSION
Nigeria as a nation must
join the comity of nations to stand against the oppression of its citizens
especially the female folk. Thus laws should be enacted that will not only
secure the rights and freedom of women but also that bans practices that
discriminate and victimises the female folk.
It is on this note I
want to salute the courage of the Judiciary in recent times by standing against
the Nnewi customs of Oli-ekpe and Nrachi that denies the rights of females to
inherit their fathers.
[1] Kerridge R. Parry & Kerridge: The Law of Succession, 12 ed (London, Sweet &
Maxwell 2009) pg 1.
[2] Eleko v Officer Administering the Government of Nigeria (1931) AC 662
[3] Supra at pg 673
[4] Onokah, M.C, Family Law (Ibadan-Nigeria, Spectrum Books Ltd 2003)
pg 54.
[5] Crabbe S.A, Law of Wills,
Ghana (Accra,
Vieso Universal Ltd, 1998) xxix
[6] Kharie Zaiden v Fatima K. Mohssen (1974) UILR 283 at 284
[7] Encarta English Dictionary Premium DVD 2009
[8] Footnote 1 supra
[9] Ibid
[10] http://www.merriam-webster.com/dictionary/
(Accessed 07/07/2011)
[11] Intestacy Law & Legal Definition http://definitions.uselegal.com (Accessed
12/07/2011)
[12] Intestate Succession, Lectric Law Library’s Lexicon http://www.lectlaw.com/def/ (Accessed
07/07/2011)
[13] http://www.wordiq.com/definition/intestacy/
(Accessed 07/07/2011)
[14] Footnote 4 supra at pg 317
[15] The constitution of the federal republic of Nigeria
1999
[16] Ibid, second schedule, exclusive legislative list item 61.
[17] Until 1954 succession was within the legislative competence of the
Federal Government when it was included in the concurrent legislative list by
the constitution order-in-council 1954. Under the current constitution, it is
now on the Residual List
[18] The administration of Estates Law, cap 1 Laws of Western Region of Nigeria,
1959
[19] The Constitution of the Federal
Republic of Nigeria, 1999 as Amended
[20] E.g Administration of Estates Law, cap 2, law of Bendel State
1976, applicable to Edo
State: Administration of
estates law, cap AI Laws of Delta state, 20007
[21] Administration of Estates Law, Cap A3, Laws Lagos State 2004
[22] Formally know as succession Law Edict 1987
[23] Cole v Cole (1898) INLR 15
[24] Kharie Zaiden v. Fatiman K. Mohssen (1974) UILR
[25] Olowo v Olowo (1985) 2 NWLR (pt13)
[26] Blacks Law Dictionary 7th Ed
[27] Customary Law practices and violence against woman: the position
under the Nigerian legal system. http://www.vanuatu.usp.ac
(Accessed 08/07/2011
[28] Ibid
[29] Onokah, M.C op. cit at pg 340
[30] Ibid at pg 300-301
[31] Ibid op cit at page 341
[32] Ibid
[33] Ibid
[34] Ezeilo Joy, Law and practice relating to woman’s inheritance rights
in Nigeria:
An overview http:/www.google.com/ or http://www.muclimpersonallaw.com.2a/inheritancedocs/
(Accessed 07/07/2011 and 12/07/2011)
[35] Onokah, M.C op cit at pg 341
[36] Ezeilo Joy, supra
[37] Onokah M.C, op cit pg 343
[38] Manual of Customary Law of Anambra and Imo States,
1977. The laws stated in the manual were compiled by a team of lawyers appointed
by the then Government of East Central state. These laws were ascertained
during a five year period of field research
[39] Onokha M.C op. cit at pg 343
[40] Ibid at pg 341
[41] Ibid
[42] Ibid at pg 341-342
[43] Ibid. Thus it was held in Uboma v Ibeneme (1967) ENLR 251, per
Egbuna J. that among the Ibos, land is inherited by all the sons of the
decreased as family property, and the eldest son as the new head of the family
is only a caretaker
[44] Ibid. It should be noted that there is no one uniform practice
among all the Ibos because according to customary law manual, in some places
the deceased father take priority to the full blood brothers, which interest he
holds only for life.
[45] Emeka E. Obioha, “Change in Tenure Pattern and Customary Land
Practices Among Igbo Community in South Eastern Nigeria; www.krepublishers.com/02-journal/
(Accessed 12/07/2011)
[46] Ibid
[47] Ibid
[48] Ibid
[49] Joy Ezeilo, Supra
[50] Obi, SNC, the Ibo Law of Property 1963, cited in Joy Ezeilo supra
[51] (1963) All NLR 358 SC
[52] (1989) 2 NNLR 373
[53] Joy Ezeilo supra
[54] Ibid
[55] Ibid
[56] Ibid
[57] Ibid
[58] Ibid
[59] The Constitution of the Federal Republic of Nigeria 1999 (as
amended)
[60] Ibid chapter 1
[61] Ibid Section (1) and (3)
[62] Ibid section 42 (2) provides no citizen of Nigeria shall be subjected to any
disability or deprivation merely by reason of the circumstances of his birth
[63] Ibid
[64] (2003) All NLR 548
[65] Constitution of the Federal Republic of Nigeria 1979 (Repealed and
replaced with 1999 Constitution)
[66] Salubi v Nwariakwu (supra) at pg 554
[67] Section 42, Constitution of the Federal Republic of Nigeria, 1999
(as amended)
[68] (1997) 7 NWLR (pt 512) pg 283
[69] Administration and Succession (Estate of Deceased Persons) Law 1987
[70] Administration and Succession (Estate of Deceased Persons) Law 1987
applicable to Anambra, Enugu and Ebonyi States
[71] Ibid
[72] (1898) 1NLR 15
[73] (1958) 11 ERNLR 12
[75] The Prohibition of Infringement of a Widows and Widower’s
Fundamental Rights Law E.S.N Law No 3 of 2001
[76] Ibid section 2
[77] (1963) All NLR 358 SC
[78] Ibid
[79] (1989) 2 NWLR 373
[80] (1997) 7 NWLR (p + 512) p 283
[81] Ibid
[82] Mojekwu v Mojekwu (supra)
[83] (2000) 5 NWLR ( p+ 02)
[84] By this custom a deceased who had no male issue, but daughters, one
of the daughters remains unmarried in the deceased’ house, giving birth to
children in order to preserve the deceased name or that the lineage of the
deceased will not go into extinction
[85] This custom provides that where a deceased does not have any male
issue, his brother or his brothers male issue are entitled to inherit
[86] (2001) 15 NWLR (Pt 736) pg 377
[87] Joy Ezeilo (supra)
[88] Orshborn concise law dictionary 9th ed
[89] (1990) 3 NWLR (pt 37) 182 at 207
[90] Laws of old Western Region, applicable to Oyo, Ogun, Ondo, Osun,
Ekiti, Edo & Delta
States
[91] Received English law, applicable to the rest of the country
[92] Oke v Oke (1970) M.W.S. NLR 132
[93] Section 3, Wills Law, 1959
[94] Supra
[95] Osula v Osula (1995) 6 NNLR (pt 453) 300
[96] No 9 of 1964, laws of Mid-Western state of Nigeria, 1964 applicable
to Edo & Delta States, and the same with the provisions of the High Court
Laws of the various states of the federation
[97] Section 17(1) (b) High Court Law of Delta State,
2007 which provision is the same with the High Courts Laws of the various
states of the federation
[98] Reginald Akujobi Onuoha (Supra)
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