ABSTRACT
Legal pluralism is the co-existence of two or more laws, norms, values, and practices within one legal district that determine the decisions of courts in intestate succession. This has complicated the uncertainty that exists in intestate succession in Nigeria particularly among the Yorubas of South-West Nigeria. Intestate succession which under customary law governs issues of personal relation such as marriage and divorce, legitimacy and legitimation, validity of wills, adoption of children and succession but legal pluralism creates an atmosphere of legal confusion, whereas, there is expectation of a single codified law guiding intestate succession under customary law. This study examined the dilemma and complexity of legal pluralism as it affects intestate succession under customary law in South-West Nigeria.
The research adopted doctrinal methodology, historical and comparative approaches that examined theories, laws and decisions of both inferior and superior courts based on choice of law rules. Sources of data included statutes, subsidiary legislations, rules of customs obtained from case law, journals, books, Internet sources and law reports. The study was interpretative in nature and provided normative content evaluation of legal reasoning in case law on intestate succession.
Findings revealed that Nigeria has not adopted appropriate mechanisms to harmonize the multiplicity of intestate laws. It was found that there were two broad modes of inheritance under the Yoruba customary law, viz Idi-igi (per capita) and Ori-ojori (per stirpes). Furthermore, the rule of inheritance is not equitable particularly where Dawodu, the head of the family doubles as beneficiary and a trustee of the estate on behalf of other beneficiaries. On the contrary, Islamic law spells out the quantum of assets (ogun-inheritance) to be inherited without undue advantage to the beneficiaries. The study found that the complication emanated from the various choice of law rules contained in High Court law, Marriage Act, Administration of Estate law, Customary Court Law on one hand and decisions of courts on the other hand.
The study concluded that the lack of unification of intestate succession rules in Nigeria is largely responsible for the series of contradictory decisions of various levels of courts. The study recommended the reform of customary law in Yoruba land to correct existing inequalities, enlightment campaign through mass media on equity of apportionment as proposed in the distribution of intestate estate. The establishment of Law Reform Commission at the State and Federal levels is imperative to permit women to inherit their husband’s estates, while the judiciary should be proactive in implementing Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
CHAPTER ONE
GENERAL
INTRODUCTION
1.1
Background to the Study
A
person may make an outright gift of his property, movables or unmovables when
still alive, that is, inter-vivo. He may choose to make a gift of all or part
of his estate by will which would take effect on his death. However, should he
decide to die without distributing all or part of his property, he is said to
have died intestate in respect of his entire estate or part of the estate left
undistributed. In such a situation, the estate concerned will be distributed in
accordance with the provision of the law governing intestate succession. This
work seeks inter alia ascertain the
applicable law of intestate succession under the Yoruba Customary Law of South-West
Nigeria. It is obviously not sufficient to identify the rule of succession, as such,
it is of paramount important to know when such rules will apply within the
context of pluralism of laws in these states[1].
The techniques of choosing one of several potentially applicable laws in any
given situation is one of the main functions of science of conflict of laws.
Usually, this choice is between territorially- based systems of law. However,
the imposition of European Metropolitan laws on many countries in Africa and
Asia has resulted in the co-existence of two or more systems of law in a single
jurisdiction without spatial separation[2].
Such a situation has come to be known as legal pluralism[3].
Customary
law is connected to distinct ethnic or cultural groups when the legal system in
such diversified society operates a plurality of laws.[4]
Islamic law, on the other hand, is a product of Islamic thought, a system of
law in which legal rules, ethics, religion, rituals and politics are closely
intertwined.[5] In
contrast to customary law, which is unwritten but additionally regarded as
divine[6],
Islamic law is written. English law was introduced to Nigeria after the signing
of the Pact ceding Lagos and its Island to the British Crown.[7]
Since then, English law has been part of Nigerian laws.
The
concern in this study is that legal pluralism has become a challenge to the
existing customary laws. Prior to the introduction of foreign laws, the Yoruba
people depended on customary laws to resolve their disputes. However, the
application of the rules of customary law has been subjected to a good deal of restraints
under the prevailing plurality of law. It is as stated by Agbede[8]that:
this pluralism of law is by no
means a particularity of Nigerian legal system. It is a common faeture of legal systems in nearly all
countries in Africa. The problem of resolving conflict between general law and
the local laws has aroused considerable interest for the reform and integration
of laws in the various countries[9].
It
must be noted further that, no effort has been directed so far in Nigeria
towards the unification of internal civil law unlike criminal law which has
been codified in the Southern and Northern Nigeria.
Although,
Yoruba people are located in the western part of Nigeria,[10]
there are substantial indigenous Yoruba communities in other parts of Nigeria,
such as: Kogi, Kwara, Edo states and indeed outside the shores of Nigeria such
as Republic of Benin, Togo, Burkina Faso, the Caribbeans Island, and
Brazil.
In
the pre-colonial era, communities within the African Continent had rules and
regulations guiding human conduct and activities which sustained them. Some of
these activities covered the social- cultural, economic cum political well-
being of the people at all levels of administration[11].
These rules and regulations are known as native law and custom but statutorily
called “customary law” in many jurisdictions. The Yoruba people from the outset
had their own system of cultural norm and lived by its prescriptions[12].
These norms sustained their day-to-day activities long before the establishment
of the colony and protectorate of Lagos with the conclusion of a treaty of
cession between the Oba, King Dosumu and the British Government in 1861[13].
It is note-worthy to point out that some European writers were of the view that
African customary law could not properly be strictly described as law
so-called. Although, their comments
derived largely from their own understanding of European laws which had a clear
separation between civil and criminal laws.
In
Africa, certain cultures, traditions, norms, attitudes, values and other
observable rules in various societies evolved from the people’s ways of life
and are therefore peculiar to each community. However, interactions between
communities are bound to induce conflicts both in social relations[14]
and in legal transactions[15].
Such areas include marriage, inheritance-succession, legitimacy, divorce,
business transactions, guardianship and custody of children among others.
The
European colonialists came with their own metropolitan laws which were employed
in the process of governance of the colonial territories in Africa and in some
climes supplanted the indigenous laws. In spite of all these challenges, the
indigenous law, continue to exist and survive resulting in dualism of law.
Added to this is the Islamic legal system long received into northern parts of
Nigeria[16]. Thus, further resulting in the pluralism
(tripartite) of the legal system in Nigeria.
Aside
the foregoing, rules of Common Law, Doctrine of Equity and Statutes of General
Application were introduced into the British colonial territories in Africa
generally. The conflict of laws arising from the application of both the
imported Islamic law and English law which co-existed with customary laws
applicable to the same group of people without spatial separation, complicated
matters of legal administration. Islamic law was initially treated as an aspect
of Native law and custom until 1959 when it was regarded as an autonomous law
and applied as an independent legal system.[17]
1.2 Statement of the Problem
The
dilemma of legal pluralism in issues of succession in Yoruba customary law is
apparent where a native who marries under customary law dies as a practicing
Muslim without a child or will. His estate will be distributed according to his
personal law, that is, Yoruba customary law and the estate will be shared based
on Ori Ojori or the Idi igi system in contradiction to the
Islamic Law system of devolution of property[18].
The same rule will apply to a Muslim who has inheritable property and dies
without a child or where a “native”[19]
who married under the Marriage Act, dies without a child and a will.[20].
Where a couple who married under the Marriage Act built on a piece of land
inherited by the wife from her father and the wife predeceased her husband
without a successor, the land will revert to her father’s family estate.
Ordinarily where the demised was married under customary law, his personal
estate will be distributed among his children in accordance with the Yoruba
Customary law of inheritance, either Idi
Igi (per capita) or Ori Ojori (per stirpes), where the intestate marries
more than one wives. However, where the demised was in occupation of family
land that was not partitioned before his death, he cannot pass on family
property to his own children through any inheritance formula, Ori Ojori or Idi igi. Such land automatically reverts as family estate.
The foregoing scenarios trigger the question
for determination as to which law will determine the distribution of the estate
of such persons amidst conflicting legal systems in Yorubaland. Furthermore one
will ask whether the rule of intestate succession under Yoruba customary law
has been finally settled. The Customary laws of inheritance in Nigeria are as
diverse as there are cultures with only a few incidental similarities which
Allot[21]
calls “unity in diversity”. Even
within the Yoruba monolithic
lingua-franca, there are some variations in dialects and customs from one
ethnic group to another such as Oyo,
Ekiti, Akoko, Ijebu, Egba, Ikale, Ondo, Owo just to mention a few. Inheritance
means taking over by the living, the possession of a dead person’s property
where the institution of private ownership of property (as oppose to communal ownership)
is recognized as the basis of the social and economic system[22].
Strictly
speaking therefore, it does not apply to the rights on land held jointly or
in common by the family or community
because an individual has no personal or private right which may devolve on his
heirs in those circumstances where joint family holding, joint tenancy and
tenancy-in-common apply.
The
legal position is that the title to the family land rests in the members of the
family as a corporate group. It is joint and indivisible, as no part of it is
capable of being alienated absolutely by an individual member of the family[23]
although, where Dawodu[24],
as head of family, deposes without the knowledge of other members such
disposition is voidable. He has no express authority to partition the property
because he is only a trustee of the family property.[25]
On
the other hand, succession in a sense means the passing of all aspects of the
judicial personality of the deceased. That is his status as husband, father,
chief, and head of family and property holder, creditor, and debtor and also
includes all pending law suits, other personal ones such as suit for defamation.
Thus, it can be seen that succession is used to denote the passing of the
property and status from deceased to the beneficiaries. It should be stressed
that there is a thin difference between succession and inheritance as a result
of the fact that one extends in coverage than the other, suffice it to state
that they differ in the area of coverage only. But in substance, they mean the
same thing as the passing over of the property possessed or owned by the
deceased.
Therefore,
this study examines the indigenous system of succession among the Yoruba people
of the South--West Nigeria. It explores the rules of indigenous system of
succession as it operates today within the diverse legal system. It also
investigates whether these laws apply in the face of the problems created by
the plural legal systems among the Yoruba people of western part of Nigeria.
There is no doubt that owing to the diversity of cultures, ethnic and religious
affiliations, we are subject to a variety of laws and customs. The imposed
English Common law and the customary law on the other hand. The introduction of
Islamic law to part of Western Nigeria has gone further to complicate the
matter of intestate succession.
The
Yoruba Customary Law is broadly uniform. The choice of law rules as between
customary and the received English Law, between one system of customary law and
the other and customary law and Islamic law are contained in a number of
legislation. What is more worrisome, is that these rules are not only different
in some cases they are contradictory.
These
are a few of the problems created by the legal pluralism among the
Yorubas. These and many more questions
constitute problems investigated in this study. It should be noted that the law
of succession (both testate and intestate) in England differs substantially
from the African (Yoruba) customary rules of succession yet both are applicable
within the states in Nigeria at any rate by judicial decisions.
1.3 Aims Objectives of the Study
The
general objective of this study is to eliminate the uncertainty and
inconsistency brought about by the diverse choice of law rules and
contradictory decisions of various courts in the determination of applicable
rule in intestate succession cases in the six states of western Nigeria. The
specific objectives are to:
1
ascertain the Yoruba customary rule of
intestate succession in South- West;
2
examine whether the ascertained rule of intestate succession has been modified
by social practice or by judicial application of the repugnancy doctrine;
3
determine the effect of different choice of law rules contained in the High
Court Laws, Administration of Estate Laws and customary court laws;.
4
consider the effect of judicial interpretations of these diverse laws on the
application of rule of intestate succession; and
5
determine the way and means of overcoming the resultant confusion arising from
diversity of substantive law, choice of law rules and contradictory decisions
of courts as it affects the rule of intestate succession.
1.4 Research Questions
The research questions in line with the
identified objective of the study are as follow:
1)
What is the rule (or rules) of
Yoruba customary law of intestate succession?
2)
Has the rule (or rules) been
modified by social practice or judicial decisions?
3)
What are the statutory provisions
for determining the application of the rule?
4)
How has the court interpreted the
different provisions?
5)
Is there any way or means of
overcoming the resulting problems?
1.5 Research
Methodology
This
study is descriptive in nature, but the methodology is primarily doctrinal,
with a blend of historical and comparative approach. The research explained the
relevant theories of choice of law in the intestate succession matters
particularly under the customary law in South-West Nigeria.
The
Primary sources of materials include statutory provisions, decisions of courts
and subsidiary legislation while secondary sources of materials include books, scholarly peer review journals,
articles, internet materials, law reports, daily newspapers and magazines. In
gathering the data, the researcher visited the Customary Courts in the six
states constituting the territory of Yorubaland and the only functioning Ondo
State Customary Court of Appeal at Oke-Eda in Akure, capital of Ondo State to gather selected relevant judgments
of the courts on matters relating directly to intestate succession. These judgments were the primary data for the
research.
The
researcher was able to analyse the judgments and consider the differences and
similarities where there is need for clarification. The researcher took the
step to discuss with the Heads of the customary courts. However, in the
analysis of the data collected, the researcher identified the differences in
the judgments with similar facts and draw conclusion therefrom as a form of
comparative analysis. Prior to the collection of data (judgements) the
researcher had carried out well- structured literature review of previous works
relating to the research in order to formulate a standard checklist for the
analysis of each judgement.
Apart
from gathering the judgments, the researcher obtained the respective Customary
Law Rules and laws establishing them in the six states of South West Nigeria.
[1] Nigeria is no doubt a multi-lingual state with
diverse, varied and various ethnic groups, cultures and traditions. The
sociology of the country-Nigeria is not only complex but highly diversified and
heterogeneous.
[2] Edward Hooker; Legal Pluralism: An Introduction to
Colonial and Neo-Colonial Laws (Oxford University Press, 1979) p 2. Brian Z.
Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’,(
Sydney, 2008) p.375 Niki Tobi, Sources of Nigerian Law, (Lagos: MIJ Publishers
Limited,, 2006) p 153
[3] Epiphany Azinge and Animi Awah (edited); Legal
Pluralism in Africa: A Compendium of an African Customary Law, (Lagos: Nigeria
Institute of Advance Legal Studies,2012) p 3.
[4]See Brian Z Tamanaha, supra p.375. In addition,
Pluralism occurs in a legal system due to a number of reasons but it occurs
mostly due to legal transplantation. This is very common in former colonies,
where the law of a former colonial authority exists alongside those of the
independent colony even after independence has been achieved. Azinge et al
stated further that, it is a situation where the indigenous laws and the
foreign laws of the colonial authorities form the legal system of such
countries. The reality of legal pluralism according to the duo authors is that
the legal system is fashioned out in such a way that the colonial laws will govern
commercial and corporate matters while the indigenous-customary laws will
govern traditional and customary matters such as Succession, Marriage and
divorce.
[5] It is regarded as sacred law, on all- embracing
body of religious duties and obligations. It is the totality of life of
Muslims. It is Allah’s commands that regulate the life of Muslim in all its
aspects. Its analogical deductions cover myriads of situations that arise in
the normal course of human life. Sharia is the ideal code of conduct.
[6] Sharia or Islamic Law is the law of Allah given to
His messenger Prophet Mohammed to guide his people (Muslims). Allah commands
Justice and it is administered in the name of Allah-Al Adii meaning ‘the just
and Giver of Justice ‘to judge justly’.
[7] As far as Nigeria is concern and South-west
particularly, Received Law implies Common Law of England, doctrine of Equity,
Statute of General Application in Force in England as at July 24th,
1874 ( later varied and) referred to 1st January 1900 or other enactments of Westminster Abbey which
were received into Nigeria by local statutes. Generally refers to Ordinance No
3 of 1863, Supreme Court Ordinance of 1914 and High Court laws of each state.
[8] The problem of internal conflict of laws in Nigeria
does not only arise between the general law and customary laws. ‘General’ law
in the sense that it has overriding effect on inconsistent rules of customary
law. The federation of Nigeria has an area of 356.6 thousand square meters, and
a population of over one hundred and forty million, is the most populous nation
in Africa. Its people are made up of 250 ethnic groups, each with its own
variety of customary law. See Obafemi Awolowo, Thought on Nigerian
Constitution, (Ibadan: Fagbamigbe Publishers, 1966) p 24; Agbede , supra. p 34.
[9] Agbede, Legal Pluralism in Nigeria, (a PHD thesis,
submitted to University of London, 1970) p 48.
[10] See Samuel Johnson, The History of the Yorubas:
Beginning of the British Protectorate, (Lagos: CSS Bookshops, published in 1921
reprinted 1976) p 16.
[11] The country, Nigeria is the largest in West Africa and Africa as a whole, comprises three
large ethnic groups- the Yorubas, the Ibos and the Hausas. For the purpose of
geography these three groups constitutes one single country, but a journey
through the country easily demonstrates the diversities of culture and
languages.
[12] The customary law of the Yorubas relating to family
property is still very much alive today. See Coker’s case supra p vii
[13] Agbede supra
p 19.
[14] Azinge Epiphany and Anini Awah, Legal Pluralism in
Africa: A Compedium on African Customary Law, eds (Lagos: Nigeria Institute of
Advanced Legal Studies, 2012) p 446. It
was stated that, African legal system is
no doubt pluralistic and complex in nature, having diverse legal regimes
existing side by side.
[15] There exists a regime of customary laws and those
received from the colonialists- English law and Islamic law.
[16]Since the Islamic law is an integral part of the
religion of Islam, the practice of Islamic law dates back to the arrival of
Islam in Nigeria. The practice of Islamic law in Nigeria is therefore of great
antiquity. It begins with the advent of Mai Hume Jilmi. As early as 14th
century, Ibn Batuta confirmed the existence of Sharih in some parts of Northern
Nigeria, this legal code was reinforced during the reign of Mai Idris Alooma,
he reigned between 1570 and 1602 and set up a Sharia court Also, Mohammed Runfa
who reigned from 1493 to 1499 set up Sharia courts in Kano. When the royal
Niger Company came to explore Northern Nigeria in the last quarter of the 19th
century, it met Shariah as a way of life of the Northern people. In the remark
of Omoniyi Adewoye in his work titled, The Legal Profession in Nigeria from
1865-1962, in the Chapter ; “Justice Without Wig or Gown”, that Muslim
Judges also known as “ alkali”were
administering Shariah law on the African natives just as the “wigs and robes”
lawyers did in Europe. See Omoniyi Adewoye, The Legal Profession in Nigeria
from 1865-1962, p 112.
[17] Obilade, The Nigerian Legal System (Ibadan:
Spectrum Books Limited, 1998) p 37; Asein, Introduction to Nigerian Legal
System, (Ibadan: Sam Bookman, 1998) p 137; Niki Tobi, Sources of Nigerian Law,
(Ebute-Meta, Lagos: MIJ Professional Publishers Ltd, 1985); Park. The Sources
of Nigerian Law (London: Sweet & Maxwell, 1963) pp 15-16; See Abiola Sanni
Introduction to Nigerian Legal Methods (Ile-Ife: OAU Ltd. Second Edition 2012,
First published 2006,) pp 252-254.
[18] See particularly the decision in Re-Estate of
Aminatu Alayo, A.G v Tunkwase 18 NLR 88, the deceased an Ijebu Mohammedan died
intestate. She was married according to Muslim rites and there was no divorce
up to the time of her death. The parties were sharply divided as to whether the
residuary estate should be distributed in accordance with Mohammedan law or
Ijebu Native Law and Custom. The Court
held that, the latter was the applicable law. Such was the unsettled state of
the law when the Supreme Court decided the case of Olowu v Olowu (1985)3 NWLR (pt 13) 372.
[19] See Section 3 of the Interpretation Act (though
repealed in 1964); Cap 89, Laws of the Federation and Lagos 1958; See also The
Interpretation Law, Cap 51, Laws of Western Region, 1959 defines
‘native’ according to repealed section 3 as include the native of Nigeria and a
“native foreigner”. Native of Nigeria “means any people whose parents were
members of any tribe or tribes indigenous to Nigeria and the descendants of
such persons and includes any person one of whose parents was a member of such
tribe. While “Native foreigner” means any person (not being a native of
Nigeria) whose parents were members of a tribe or tribes indigenous to same
part of99 Africa and the descendants of such persons, and includes any person
one of whose parents was a member of such a tribe. See also Kolapo Omodire,
‘Change of Personal Law under Customary law in Nigeria,’ in The International
Law Quarterly, (Cambridge University Press: British Institute of International
and Combative Law; Volume 39, Number 3, July 1990) pp 671-675..
[20] Under Yoruba Customary Law, a residuary estate or
estate of a person who died without a child cannot be declared bona vacantia,
such estate will be shared among the next of kin and other blood relations.
[21] Alott, The Future of Law in Africa, (ed) (London:,
Butterworth & co. Publishers Ltd. 1960) p 23.
[22]Azinge
Epiphany (Project Director) Restatement of Customary Law of Nigeria (Abuja:
Nigeria Institute of Advanced Legal Studies 2013) p 104. See also, Pack, The
Sources of Nigerian Law (London: Sweet & Maxwell, 1966) p 65.
[23] See cases like Coker v Coker (1943) 17 NLR 55;
Ogunmefun v Ogunmefun (1931)10 NLR 82; Couladrick v Harding (1926) 7 NLR 48;
Miler Brus v Ayeni (1924)5 NLR 42; Adagun v Fagbola (1932) 11 NLR110; and
Onisiwo v Fagbenro (1954) 21 NLR 3.
[24] Dawodu is the head of the family, usually, the
first son of the deceased. He iis regarded as the trutee of his father’s
estate. He manages the estate on behalf of himself and all the beneficiaries of
the estate.
[25] See Abudu v Equakun (2003) 14 NWLR ( pt 840) at 313-314,
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