YORUBA LAW OF SUCCESSION

 

SUCCESSION UNDER THE YORUBA CUSTOMARY LAW

ABSTRACT

This paper deals with succession under the Yoruba customary law. It as well considers issues of inheritance among the various states in Yoruba land. It espouses the right of spouses, legitimate and illegitimate children, adopted children and collaterals with respect to Yoruba customary law of inheritance. It examines some judicial decisions backing these cultural practices. This research work exposes the injustice and discriminative nature of inheritance through evidence gathered from selected Yorubas across the Western region of Nigeria most emphatically as it violates some provisions of the 1999 Constitution of the Federal Republic of Nigeria, CEDAW and the African Charter.

 

INTRODUCTION

The law of succession involves the transmission of the rights and obligations of the deceased person in respect of his estate to his heirs and successors. It equally deals with the rules governing the administration of the estate by the personal representatives of the deceased person including state participation in respect of the real estate situate within its territory and personal estate of the deceased subject to its jurisdiction. Succession and inheritance are relative terms in every legal system. While succession is the acquisition of rights or property by inheritance under the laws of descent and distribution, inheritance strictly refers to the property received from an ancestor under the laws of intestacy. The first part of the law of inheritance guiding who is to receive the property left by a deceased is in the aspect of the rule governing testate and intestate succession and inheritance. The other part of how the property is to be distributed is the aspect of rules governing the administration of estate, this is where inheritance or succession under the general law or statutory law are being discussed. Apart from the general law, it is common knowledge that customary law is part of the Nigerian law and as such, we have some rules governing inheritance under native law and customs as well.

DEFINITION OF SUCCESSION

Succession is the passing of property to persons upon the death of the owner of the property[1]. The law of succession involves the transmission of the rights and obligations of the deceased person in respect of his estate to his heirs and successors. It governs the order of succession to various monarchies. Succession may be testate or intestate. Where a deceased person made a Will, he is said to have died testate. Where a deceased person did not make a Will, he is said to have died intestate. Intestacy rule is the rule under customary law.

WHO ARE THE YORUBAS?

The Yoruba people (IRAN YORUBA) also known as Awon Omo kaaro Ojire (children of Yoruba) is one of the main ethnic groups of Nigeria, located in South West, North-Central as well as Southern and Central Benin[2], making up 21% of the country’s population. The Yoruba homeland is roughly the size of England and comprises a number of sub-ethno cultural groups which include; Ife, Igbomina, Ebga, Ondo, Ilaje, Abeokuta, Ikale, Idare, Ekiti, Ibadan, Owo Oyo, Ijebu, Ijesha, Egbado, Ifonyin, etc. The Yoruba are usually thought to be unique in number and size of their towns because of their tendency to form into a large city groups instead of small village groups. The Yoruba customary law of inheritance and succession appears to be general among the sub-ethno cultural groups. For example, among the Ijesha people, mode of inheritance is bilineal, among the Ijebus it is patrilineal (although women can inherit) and for the Ilaje and Idanre people of Ondo State, it is bilineal[3].

MODE OF INHERITANCE IN YORUBALAND

The rule of inheritance among the Yorubas are similar, however, there are some minor differences. The method of inheritance in Yoruba land is dependent upon whether the property is a family property or personal property. The method of inheritance under these two sub-heads will be examined.

Family property is property that devolves on the descendants to be used for the benefit and enjoyment of the whole family as a body corporate[4]. Upon the death of the deceased, the Dawodu who is the eldest surviving son succeeds as head of the family[5] as seen in the case of Lewis v. Bankole[6]. Family property is usually under the control of the head of the family who holds it for the beneficial interest of the members of the family, no member of the family can alienate or dispose of the family property, and this is evident in the case of Kadiri Adagun v. Fagbola[7]. Each member may be given an allotment of the family property for use if necessary but this does not confer a right of ownership to the allottee as his interest is limited to his lifetime.

Self-acquired property is property a person acquires during his lifetime through a conveyance or any other formal method of alienation, English or customary. A deceased’s self-acquired property is distributed among his children upon his death. There are two methods of distributing the deceased’s self-acquired property, namely:

1. IDI-IGI (per stripes)
2. ORI OJORI (per capita)

MODE OF DISTRIBUTION

Our various interviews revealed that the two modes of distributions are mostly used in the distribution of a father’s property. We were informed that the mother’s property does not need much deliberation, it is only in some exceptional cases where the mother has a lot of properties (real and personal)[8]. The mother’s property is usually shared by the eldest child among his younger ones.

ORI OJORI

Under the Ori Ojori method of distribution (per capita), there is a direct distribution of the property among the children of the deceased equally. This method of distribution is usually used in monogamous families where the deceased has only one wife or in polygamous families where the deceased has enough property to go round among the children of all his wives[9]. However, during our course of interview, we were informed that this method of distribution is no longer preferred for use in polygamous families. The reason being that it works injustice. For instance, where the first wife started from the scratch with the deceased, built the estate with him, and she had a child or two, and the third wife who came after the establishment of the estate gives birth to five or six children, it will be unfair on the part of the first wife to inherit less than the other wives based on the number of children had by each.[10].

IDI-IGI

The second method of distribution is known as idi-igi (per stripes). In a situation where the deceased have more than one wife, the idi-igi method is usually used as each wife representing one Igi meaning BRANCH.

Nigerian courts have had cases to state their opinion on the validity of this mode of distribution. In the famous case of Dawodu v. Danmole[11], the supreme court held that, in a case where the deceased died and was survived by nine children from four wives and some grandchildren, the estate should be distributed per capita (idi-igi) which simply means it will be divided into four parts representing the number of wives and not per stripes i.e. the number of children.

POWER TO VETO A PARTICULAR MODE OF INHERITANCE/ DISTRIBUTION

The Supreme Court deemed it expedient to vest a family member usually the head of the family with the power to supplant a particular rule of customary law regardless of whether the exercise of such power jeopardizes the interests of the members concerned. The uncertainty which will result from the continued vesting in the family head of the power to veto a particular mode of distribution may gleaned from the just mentioned cases of Reisio v Mosanya and Akinyede v. Opere where the court re-affirmed the decision of the family head for ori-ojori

In Akerele v. Balogun&ors 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. Again in Adeniji v. Adeniji, the court held that ori-ojori was an alternative custom applicable on the matter and in the case of Philip&ors v. Attorney General&Lawanson 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.

The state of the law on the Yoruba mode of the intestate estate calls to mind the statement by Aguda in 1971 that “in this field the court courts have not completed working out the detailed rules but a start has been made”.

QUALIFICATION FOR INHERITANCE

The qualification for inheritance is generally traced or dependent on blood relationship. A person cannot qualify to inherit from a deceased on any basis outside being of the same blood, whether full or half. In practically all system of customary law in Nigeria, marriage is not a benchmark for inheritance, at least as far as women are the issue, as wives. Jibowu FJ observed in Suberu v Sunmonu, that it is a well-established principle of native law and custom of the Yoruba people that a wife cannot inherit her husband’s property since she herself is a chattel to be inherited by a relative of her deceased husband. One of the reasons for this was stated by Beckley J in Sogunro-Davies V Sogunro-Davies, that Yoruba native and custom deprived the wife of inheritance right in her deceased husband estate because devolution follows the blood. On this same reason the widow in the case of Fakoya v. Ilori was disinherited. The contributions of the wife to the property are not recognized, as the case of Rabiu v Absi illustrates; in this case, it was held that improvement of family property by another member does not divest the property of its original character. It is submitted that this lack of recognition of contribution is significant to the cause of inheritance right of women, as widows may lose rights to jointly owned property in which they have invested.

In Yoruba culture the primary heirs to a man’s estate are his children. In Amusan v Olawunmi the claim was between the children of a female child of the deceased and the relatives of the deceased. The court of appeal held that under Yoruba customary law, both male and female children in Yoruba custom emerges from the fact that in some situations, women can be family head. The trial court was therefore wrong to have denied inheritance rights to the deceased’s daughter and her successors.

SUCCESSION RIGHT OF SPOUSE

Generally, under the Nigerian customary law, spouses have no right in each other’s property whether during or after marriage. Neither spouse had the right to control the other’s enjoyment or disposal of his or her property acquired before, during or after marriage. The husband’s blood relations inherit the property of the husband if he dies without any issue and the property of the wife is inherited by her family if she has no issue[12].

As Dr. Elias put it, “rule of inheritance apart, local sentiments would frown upon the idea of a scapegrace husband aspiring to share in his deceased wife’s family property’’.[13] For his own part, Okunola states that the idea of a husband inheriting from his wife is repugnant to Yoruba custom and such a husband will be ridiculed in the society.[14]  The cases themselves are replete with confirmations of this principle. Thus in Oloko v. Giwa,[15] the defendant’s mother had been allotted a room in his father’s compound during her lifetime. The defendant argued that on her death he and her other children inherited the room from their mother, under Yoruba customary law. It was held that no such custom existed in Yoruba customary law and that an allotment of a house or room by a man to each of his wives did not vest the house or room so allotted the wife as her separate property, and that on his death such houses or room becomes part of the real property left by him. In Dosunmu v. Dosunmu[16] whose facts were similar to Oloko v. Giwa the West African Court of Appeal rejected a claim of inheritance through a woman who had been allotted the rooms, subject matter of the dispute, by her husband’s family. According to the court, to uphold such a claim would mean that on the death of the childless women, not of the husband’s family; but such method of devolution had become entitled to it to the wife’s family; but such method of devolution had never been accepted by the courts as part of customary, law.[17]

Among the Yoruba, wife cannot inherit her husband’s property. This is because, where a man dies intestate under customary law, devolution of his property is by blood. Therefore, a wife or widow not being a blood relation of the husband has no claim to any share. In Ogunbowale v Layiwola[18] the deceased was survived by three wives and three children one from each wife. The 2^nd defendant who was the mother of one of the children sold and conveyed in fee simple one of the two houses left by the deceased claiming that she sold the property under the authority of a paper signed by two daughters of the deceased and another relation of the latter. The court held, setting aside the sale of the property: that nothing by way of property devolves on the wife/wives of a Yoruba man under customary law.

The wives who had children for the deceased could continue to live in the home of the deceased with their children. A wife without issue for the deceased if she desires to stay on with the family of the deceased, would appear to have right of occupation only. In Bolaji v Akapo[19] Sowemimo J. (as he then was) held as follows: “the only person entitled to grant of letter of administration under Yoruba native law and custom which would be applicable by virtue of section27 of the High court of Lagos Act, were the plaintiffs, four of the children of the deceased, but not the wives who are regarded as part of his estate”.[20]

Joint Ownership of Property by the Deceased Husband and the Spouse

In recent years, Yoruba customary marriage law tends to be more liberal on the issue of joint ownership of property by the deceased man and the surviving spouse(s). In Oshilaja v. Oshilaja, a widow had married her deceased husband under the Yoruba customary law. He had built up a business with the active help of his wife, and with their joint funds purchased several properties which were conveyed in his name. On his death, his widow was inherited by his uterine brother who later pre-deceased his widow. Then the relatives of the original husband sought to administer the estate to the exclusion of the widow. The court held that the widow had been validly granted the letters of administration in respect of the estate of her deceased intestate husband upon revelation of joint efforts toward the establishment of the property.

SUCCESSION RIGHT OF ILLEGITIMATE CHILDREN

An illegitimate child is one born to parents who are unmarried at the time of his birth (born out of wedlock). In the past, such a child was legally known as “child of no one” or “filius nullius”.[21] Plainly, a child born out of wedlock whose paternity has been acknowledged by his natural father is as much legitimate as one born in wedlock. Where a child is born out of wedlock in Yoruba land, as long as such child has been acknowledged by the father is considered legitimate. The legitimation of an illegitimate child gives him the rights he would have ordinarily had if he were born into wedlock e.g. he would become the Dawudu if he is the first son and would inherit the throne in a royal family where kingship isn’t rotational. In Olulode v Oviosu[22], the learned judge confirmed the principle enunciated in Bamgbose v Daniel that there is no issue of illegitimacy in Yoruba land once the father has accepted the paternity of the child.

SUCCESSION RIGHT OF ADOPTED CHILDREN

Adoption arises either where a couple could not have children of their blood or where they have such children but the condition of the adopted child arouses their sympathy, as when a child is predeceased by his or her parents. In the case of Administrator General v. Tuwase[23] the estate of a Yoruba woman from Ijebu who had died without issue, was claimed by her husband, from whom she had been separated for 44years before her death; by her adopted child, who had predeceased her, through the child’s descendants; and by a number of collaterals descended from her maternal grandfather, including an adopted daughter of an aunt. The claim of the husband was rejected. It was ordered that the descendants, including the adopted children of the deceased grandfather, should take one share each, while her direct descendants, i.e., surviving adopted child, should share per stripes. It has, however, been established that the right of an adopted child is inferior to that of the legitimate child of the blood.[24]

 

 

SUCCESSION RIGHT OF COLLATERALS

Collaterals include the other relatives of a man excluding his wife and children and in the case of a woman, other relatives excluding her husbands and children. As earlier discussed where a man dies without issues, his wife has no right of inheritance. The property would therefore devolve automatically to his brothers, sisters and other members of his extended family upon his death. The situation is the same in the case of a woman who dies without issues since he husband cannot inherit. This was seen in the case of Administrator General v. Tuwase.

DICHOTOMIES AMONG THE YORUBAS WITH RESPECT TO INHERITANCE

THE IDERE PEOPLE IN OYO STATE

Among the Idere people, the deceased property is distributed using the idi-igi method. Certain people called ‘’Baba Isinku’’ or an ‘alfa’ in the case the deceased is a Muslim. Collaterals also have inheritance right in the property of that deceased. The widow has no inheritance right in the estate of the late husband. The reason adduced for this is that since the children are entitled to the property, they will then take care of their mother

In the case of an illegitimate child, if there is evidence that the deceased is the real father of the child, for instance where the deceased informed one or two of the family member or where the child resemble the deceased, the child is entitle to inherit. Where the child is absent, his portion if the property will be preserved by the family members.

In the case of adopted child, he or she has the same right to inherit as those born by the deceased. The reason is that he had already accepted him and had taken responsibility over the adopted child during his lifetime.

The discriminatory nature of this practice in respect of the widow vis a vis our constitution was irrelevant to these people as they claim it to be the practice of their forefathers.

THE EKITI PEOPLE

The Ipole Iloro people in Ekiti state do not distribute their property. The deceased’s property devolves on the first child be it male or female. The first can then share with his/her siblings. Generally, in Ekiti State, all the children of the deceased can inherit from the deceased’s property, though preference is place on the male children, taking a larger portion, because it is believed that the female children will end up marrying and thus be satisfied with what will accrued to them in their husbands’ houses. If the deceased married more than a wife, the children of the first wife takes premium with the other children sharing the rest.

With regard to succession to title, it is restricted to the male descent of the succeeding family. It is always restricted to the male linage, i.e. when a female who is from a royal family gives birth to a male child, that male child cannot lay claim to any title.

In a monogamous home, the property is shared by the eldest surviving male child of the deceased while the family head plays a supervisory role to ensure equal distribution of the property in a polygamous family. If the matter is beyond the adjudication of the immediate family and the extended family, the matter will be taken to the Oba for fair judgment.

Inheritance by an adopted child is discretional, it depends on the discretion of the family members, the biological children of the deceased (if any) and most importantly it depends on the behavior or character of the adopted child i.e. it is subject to good behavior. He does not have a real right to the property of the deceased.

The collaterals i.e. the relatives of the deceased are entitled to inheritance is some part of Ekiti State although it is just ¼ percentage of the property they are entitled to.

In addition, under the customary law of the Ilawe people in Ekiti, females are the only candidates for the Arimobinrin title. The deceased, where there is no female child of his own, before his death, selects a respected female from his relatives to preside over his property in the advent of his death to share amongst his male children to prevent disputes.

THE IJESHA PEOPLE IN OSUN STATE

The Ijesha people adopt both the ori ojori and idi igi methods of inheritance but in different circumstances. The ori ojori methods is used in monogamous family where the eldest child whether, male or female who is of age is responsible for distributing the property between him or herself and the siblings. Where irresponsible or underage, the extended members of the deceased family are invited to take charge of the property distribution.

The Idi-igi method is mostly used in the distribution of property in polygamous family. The custom is to gather people and members of the family including the Collaterals, all of whom must be present before the distribution of property can begin. However, these cannot purport to disinherit the deceased’s children on any ground whatsoever.

With regard to illegitimate children, where such child have been accepted by either spouse, the child is entitled to inherit from either spouse. However, the spouse who had given his consent previously can later withdraw such acceptance of the child especially where that child is not of good behavior, although usually with great difficulty.

Although a woman or widow cannot inherit from her husband’s family and neither from her husband’s property based on the belief that the woman is also a part of her husband’s property and that her children who inherits from the deceased will take care of her. However, the husband can inherit from his wife; he can also inherit from his deceased wife’s family subject to her family’s perceived care of the wife by the husband and his personal relationship with his in-laws.

THE EGBAS IN OGUN STATE

The Idi-igi method of distribution is preferred under the Ogun customary law of inheritance because the ori ojori method is seen as a form of injustice. The widow under this state is regarded as chattel to be inherited, the children of the deceased who inherit can give part or all of the property to their mother after the distribution. Collaterals inherit the deceased’s wife in other to have the properties left by the deceased, they are however entitled to 1/3 (one third) of the deceased persons property whether or not there are issues to the marriage. An illegitimate child have no right to the deceased’s property except the partiality of the child has been acknowledge by the father during his lifetime.

THE ISALE EKO PEOPLE OF LAGOS STATE

The property of a deceased is shared by the elders of the family amongst the legitimate children. An illegitimate child is not entitled to inherit from the deceased’s property. The idi-igi mode of inheritance is commonly used under Lagos customary law, it is rare to see properties being distributed on the ori ojori basis because the family is predominantly polygamous. The interviewee buttressed this statement with the fact that most houses on Lagos Island are family compounds and those that have been shared have joint ownership. However, due to civilization, lately, some of this properties are farmed out to developers for specific number of years and the proceeds shared amongst the children and after the expiration of the period of lease, the ownership returns to status quo i.e. joint ownership by the siblings. Under the Lagos State customary law of inheritance, discrimination against female only arises when it is a matter of title. Female children are entitled to inherit any other property from their deceased father. The widows are allowed to remain in the family compound for as long as they wish (till death).it is also important to include that the widows and female children are allowed to partake in the traditional rite of passage even in the royal families.

INHERITANCE WITH RESPECT TO TITLE

THE OBA OF LAGOS

In some part of Lagos State it is sacrosanct and unbeatable that the Oba title is inherited by the eldest surviving male child of the deceased. This is also the case where it is a polygamous family and it does not matter if the child is born outside a formal marriage, the most important thing is that the deceased most have acknowledge the paternity of the child when he was alive. The palace will remain under the custodian of the surviving son who will emerge as the new Oba, this surviving son most continue to accommodate the widows and other children of his deceased father.

THE OLUGBO OF UGBO

The Olugbo of Ugbo kingdom is a paramount Yoruba king of Ugbo kingdom, in Ilaje local government area of Ondo State. The king is generally called “Olugbo” or “Oghone”, an heir to the throne from the royal families is often appointed by the council of chiefs and the king maker called the Afobaje following the Ifa consultations[25]. Ugbo kingdom is ruled by heirs appointed from the ruling families and the current Olugbo of Ugbo kingdom is Oba Fedrick Obateru Akinruntan, a Nigerian billionaire, oil magnate and founder of Obat oil, one of the Nigeria’s largest and leading oil privately held company[26]. He was installed in 2009, after Oba Banjo Mafimisebi was dethroned following a suit by another royal family who nominated and endorsed Obateru as their candidate.

THE OLUBADAN OF IBADAN

Ibadan is a town in Oyo State, the olubadan (olubadan means lord of Ibadan) is the royal title of the king of Ibadan land in Nigeria.  The mode of inheriting this title is quite different compared with other traditional Yoruba rulers in that it alternates between two lines. It usually take decades to groom an Olubadan for the stool through stages of chieftaincy promotion, thus meaning that just about any male born title holder of a metropolitan center is a potential king. There are two ruling lines to the throne of olubadan, Egbe Agba (civil) and Balogun (military), from where Olubadans are appointed on rotational basis to occupy the stool on the death of a monarch.

 

INHERITANCE IN YORUBALAND – DISCRIMINATIVE IN NATURE

Section 42(1) of the 1999 Constitution provides that:

“A citizen of Nigeria of a particular community, ethnic group, place or origin, SEX, religion, 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 forces 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 or origin, sex, religion or political opinion are not made subject”.

 

Section 42(2) 1999 Constitution equally provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

A similar right is guaranteed under Article 2 of the African Charter on Human and Peoples‟ rights in the following terms:

“Every individual shall be entitled to the enjoyment of the rights and freedom recognized and guaranteed in the present charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion national or social origin, fortune, birth or other status”.

 

Article 1 of the UN Convention on the Elimination of ALL forms of Discrimination Against Women (CEDAW) defines discrimination as “any distinction, exclusion or restriction made on the basis of sex in the political, economic, social, cultural civic or any other field”. Article 1 further defines discrimination against women as anything that can bring about unequal treatment between men and women in the course of their livelihood. This article groups married and unmarried women together. Article 13 stipulates in part that women have the right to obtain family benefits, while Article 15 states inter alia that women have equal rights with men in matters of law that relate to business contracts. Under Article 16, women are empowered to own and give away their property.

 

Nigeria having ratified CEDAW treaty is bound by its provisions hence anything to the contrary must be declared null and void.

Spouse

Under the Yoruba customary law, a widow is equally entitled to share in the property of the deceased husband, notwithstanding the facts of combined effort in acquiring the property. Also, 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 the family property of which he is not a member. In Caulcrick v Harding[27] the deceased landowner life property for his three daughters one of whom was the plaintiff’s deceased wife. The plaintiff’s husband claimed a third share of the property by virtue of his deceased wife’s right to such one-third estate. It was held that he had no such right as the property devolved on the wife’s family as family property. This seemingly unfair practice exists by virtue of an intestacy, in that under native law and custom, devolution of property allows the blood, therefore a wife not being of the blood has no claim to any share. This was the decision in Sogunro Davies V Sogunro Davies[28] Exception to this repugnant customary practice is in a situation in which a widow chooses to remain in her husband’s house and retain his name, she is to that extent, entitled, notwithstanding that she has no children. This is to ensure her maintenance but she cannot transfer any of the husband’s property outright.

Her interest in the house or farmland is merely possessory and not proprietary so that she cannot dispose of it. It is submitted that this custom is repugnant and offends the principle of natural justice, equity and good conscience. This submission is based on the consideration that the wife, during the existence of her marriage and during the deceased husband’s life might have labored and toiled to bring about the acquisition of such property together with the deceased husband. It is therefore not only repugnant to natural justice, but also morally repulsive to deprive her ownership of such property.

For even the Holy Bible has written thus: a man shall leave his parents and cleave unto a woman and shall become one flesh”.[29] Why and how can a mortal being dare alter the creation of God. Truly speaking, husband and wife are one body and same blood hence there is the moral need for them to share what belongs to them equally and freely too.

On the other hand, a husband’s deprivation of inheritance in his deceased wife’s share of her family property is justified. The principle of nemo dat quod non habet aptly applies here. Same condition exists as regards deceased wife’s ante nuptial property. Nonetheless, his right of inheritance in his deceased wife’s real property depends on whether the wife left any surviving issues, and two, whether the property was acquired before or during overture: but certainly, wife’s ante-nuptial property goes to her children jointly and in default of her children goes to her relatives never to the husband, though he has a right over personal property[30]

Adopted children.

Adoption of children is rare and known mostly in English Law. The position of an adopted child as regards succession is not very clear. It has, however, been established that the right of an adopted child is inferior to that of the legitimate child of the blood. The procedure for adoption requires the presence of members of the adopter’s family, to whom the adopter formerly nominates his/her adoptee. An adoption which fails to conform to this procedure confers no right upon the adopted child. Therefore an adopted child’s right to succeed to any property depends on the validity of the procedure. ‎For the Yorubas, it has been stated that an adopted child cannot inherit from his/her adoptive parent. However, in the case of Administrator General v. Tuwase the estate of a Yoruba woman from Ijebu who had died without issues, was claimed by her husband, from whom she had been separated for 44 years before her death; by her adopted child, who had predeceased her, through the child’s descendants; and by a number of collaterals descended from her maternal grandfather, including an adopted daughter of an aunt. The claim of the husband was rejected. It was ordered that the descendants, including the adopted children of the deceased grandfather, should take one share each, while her direct descendants–i.e., the surviving adopted child–should share per stripes. This suggests that the right of an adopted child is inferior to that of a legitimate child of the blood, for the direct descendants, were they of that blood, and would have inherited the estate to the exclusion of all these other collaterals. Why this discrimination? Furthermore, since such inferior position or status is accorded the adopted child, he or she is discriminated against, which violates the constitutional provision of S. 42(2) of the 1999 constitution.[31]

RECOMMENDATIONS

Since the law of inheritance touches every individual in the society and indeed the community at large, it merits close attention. The law must be reformed to redress the loopholes, the inadequacies, and the harsh consequences of some customary law applications. A society can be socially engineered in an effective way only if the law is fair, just, and humane. Indeed, operation of the rule of law respects the aspirations of all and consequently maximizes the happiness of all. In the spirit of utilitarianism, the greatest happiness for the greatest number, any law that pursues this end is an instrument of social engineering.

In Nigeria, customary law lacks the above-mentioned ingredients of a virile legal system. Moreover, many uncertainties exist in succession and inheritance law, which create conflict and acrimony among contending interests.

The following recommendations are submitted.

1. Codification of Customary Law

Codification is essential for a reliable legal system, especially in a developing country such as Nigeria, where less regard is paid to the rule of law, even where the law is adequately enshrined (the constitution). Consider the human rights abuses by both states and groups.

Codification of the customary law will bring about certainty. A society’s law commands respect and obedience where the individual knows the governing law, his rights and obligations, and the punishment for violating it. Our customary law, especially in the area of inheritance, is uncertain as demonstrated by Dawodu v. Danmole[32] where the unsuccessful application of one method of distribution, per stripes (Idi-igi), will lead to another method (Ori Ojori). This law leaves room for abuse, oppression, and exploitation of the weak, because in most cases, the head of the family as a last resort will be asked to choose a more convenient system of distribution. He will often decide the option that will be more beneficial to his own interest. In this process, he would have breached one of the demands of natural justice: “a man must not judge in his own case.” ‎In such a situation, fair judgment cannot be obtained (nemo judex incausa sua). Codification will weed out all irrelevant areas and uncertainties in the law, leaving certainty behind. Codification respects moral and legal considerations. It is essential for a reliable legal system.

2. Unification of Customary Laws

The unification of customary laws will apply a single set of laws to all major tribes in Nigeria, eliminating the problems of uncertainty and inconsistency that multiple sets of law imposes.

3. Harmonization of the Principles of Natural Justice with Customary Law

Harmonization of the principles of natural justice with the customary laws is also recommended. This is analogous to the role of equitable principles in the common law, so that natural justice applies where there is a lacuna in the customary law application. Equitable principles and common law can flow in the same channel though their waters do not mix, contrary to the predictions that they would invariably create rancor. Like common law and equity, customary law and principles of natural justice can be harmonized into a single legal system and be applied side by side where necessary, the objective being to supplement the customary law and not to supplant it.

 

 

 

 

 

 

 

 

 

 

 

[1] Law of succession, wills and probate in Nigeria. T.O.G Animashaun and A.B Oyeneyin. MIJ Professional publishers limited.

[2] En.m. Wikipedia.org

[3] Dr. B. A. Oni- Discriminatory property inheritance rights under the Yoruba and igbo customary law in Nigeria.

[4] The deceased person is called the founder since he creates or founds a new line of descent. T.O.G Animashaun and A.B Oyeneyin.

[5] Ibid.1

[6] (1909)1NLR 82

[7] (1932)11 NLR 110 Where the court held that a member of a family cannot alienate part of the family property without prior consent of the family head and other members of the family.

[8] Interview – Ase gbede bi ogun’ya, ale koko bi ogun Baba

[9] From interview

[10] Report from interviews

[11] Ibid.8

[12] Article on women’s inheritance right under Yoruba customary law by OLUGBEMI FATULA.

[13] T.O.Elias: Nigerian land law and custom (1962) p. 234

[14] Okunola, ibid, p 255.

[15] 15 N.L.R. 31, below, p.

[16] (1954) 14 WACA 527

[17] Sagay; Nigerian law of succession, Malthouse press ltd.

[18] (1975) 3 CCHCJ/HC 327 of 19^th march, 1975

[19] (1968) NMLR 203

[20] Women’s inheritance rights under Yoruba customary law by Olugbemi Fatula.

[21] The right of illegitimate children to inherit estates of their deceased father by Erika Johansen

[22] Unreported High Court of Lagos State, Ikeja Division 27/11/1981. Suit No M/133/81

[23] (1946) 18 NLR at 88

 

[24] Discriminatory property inheritance under customary law in Nigeria: NGOs to the rescue by Reginald Akujob onuoha

[25] http://www.punchng.com/feature/lifetime/my-wife-considered-me-an-unserious-suitor-akinruntan/

[26] https://www.forbes.com/sites/mfonobongnsehe/2014/06/03/the-5-richest-kings-in-africa/

[27]  Nwogugu E.I. op. cit at 412.

 

[28] (1923)9 NLR 79/80

[29] Genesis chapter2 verse 24, see also Mark 10: 6-9, “What God has joined together, let no man put asunder”

[30] Dr. B.A Oni, discriminatory property inheritance rights under the Yoruba and Igbo customary law: the need for reform.

[31] Unini Chioma; The discrimination of property inheritance under the Nigerian customary law.

[32] supra