LAW OF SUCCESSION TOWARDS A SINGLE SYSTEM OF LAW IN WESTERN-NIGERIA

1. T. Q. C. Elias; The Nigerian Legal system, (London: Rout-ledge & Kingan Paul Ltd., 1963) pp. 121-123
2. Ibid
3. I. O. Agbede; Legal Pluralism (Ibadan, Shaneson C. I. Ltd., 1991) pp 272 – 278
4. Ibid
5. J. P. Platteau, and J. M. Beland, 'Impartible inheritance versus Equal Division: A Comparative Perspective Centred on Europe and Sub-Saharan African Namur; 'Centre de Recherche en Economic du Development (CRED); (Belgium, Faculty of Economics, University of Namur, 2020). Available at: www.fundp.ac.be/eco/cahiers/filepdf/c2020.pdf.
6. L. Rose: 'Children’s Property and Inheritance Rights and their Livelihoods: Food and Agricultural Organization of the United Nations'; (New York, Institute of Food Nutrition and Agriculture, 2000). Available at www.oxfam.org.uk/resources/learning/landarights/downloads/children_property_and_inheritance_rights_and+livelihoods.pdf
7. Taiwo, Adetayo Ademola: Legal Pluralism and the Law of Intestate Succession in Western Nigeria (Babcock University Ph.D thesis) (2007) P 1-2.
8. Ibid
9. The Systems of law governing succession matters in Nigeria: Being a prevailing situation and classical type of legal pluralism, most especially in Western Nigeria.
10. (2003) All NLR 548
11. (2001) 15 NWLR (pt 736( 377 CA.
12. Allots, Methods of Legal Research into Customary Laws: Journal of African Administration; Ibadan, University Press, volumes no. 4, (October, 1953), pp 175-176.
13. Azinge Epiphany: Restatement of Customary laws of Nigeria, (Journal of Nigeria Institute of Advance Legal Studies, Abuja:, 2013) pp 104 – 106.
14. Ibid
15. Ibid
16. That is the reason why it is very rare to see female king/queen in Western Nigeria.
17. Yoruba customary law of inheritance applicable in all six states of Western Nigeria.
18. Suberu V Sunmonu, (1957 (SC NLR 45 Ologunleko v Ikuomelo
19. Suberu V Sunmonu (Supra)
20. Smith (Supra)
21. (1945) 18 WLR5
22. (Supra)
23. (1957) SC NLR 45
24. Section 36(1) of the Marriage Act (1958)
25. (2003) All NLR 548
26. (2001) 15 NWLR (pt 736) 377 CA
27.  (1909) 1 NLR 82; Tijani v. Secretary Southern Nigeria (1921) AC 399; Falomo v. Onakanmi (2005) 11 NWLR (pt 935) 126.
28. Adesanya v. Otuenu&Ors (1993)1NWLR (pt 270) 414, Yissuf v. Dada &Ors (1990)4 NWLR (pt 146) 657.
29. Amusan&Ors v. Olawumi (2002) 12 NWLR (pt 78) 31, Ologunleko v. Ikuomelo (1993)2 NWLR (pt 273)16.
30. Amodu v. Abayomi (1992) 5 NWLR (pt. 242)503 at p512, Ologunleko v. Ikumelo(Ibid)
31. (1962)1All NLR 702
32. Ibid
33. Ibid
34. Ibid
35. Akinnubi v. Akinnubi (supra)
36. Suberu v. Sunmonu (supra)
37. Nezianya v. Okagbue (1963) 1 All NLR 358. In Johnsonn v. Macauley (1961) 2 All NLR 743, it was held that under Yoruba law, the estate of an intestate mother devolves on her children as joint heirs.
38.  (1939) 15 NLR 31; Dosunmu v. Dosunmu (1954) 14 WACA 527.
39. See Lewis v. Bankole (Supra). See also the case of S. J. Adeseye (supra) S. F. Taiwo
40. See the case of Olowu v. Olowu (2002) 46 WRN 102
41. (1956) 1 FSC 84
42. (1937) 13 NLR 146
43. The jurisdiction of the individual customary courts is generally specified in the warrant of each of these courts.
44. This is the declared policy of the Government of Western Nigeria.
45. Particularly in the Northern States.
46. See B. O. Nwabueze: Machinery of Justice in Nigeria (Ibadan, Revised edition; Interprint Ltd; 1982) pp. 125-129. For arguments in favour of preserving the present system of native courts.
47. Five out of seven judges of the customary courts (with legal education) questioned on whether they would dissolve a customary marriage contracted in another Region stated that they would decline jurisdiction. Clearly there is no support for this view in the law of the western state which judges apply.
48. Native Courts Commission of inquiry (Gold coast) 1951 p.3.
49. Ibid.
50. Lewis v Bankole (1909) INLR 82: see also the cases of Tijani V Secretary, Southern Nigeria (1921) AC 399, Falomo v Onakanmi (2005) II NWLR (Pt. 935) 126.
51. Salubi v Nwariaku (2003) AII NLR 548.
52. Adesubokan v Yinusa (1971) NWLR 77; (1971) 1 AIINLR 225
53. (1962) 1 AII NLR 702
54. Ibid
55. Ondo State Ministry of Justice, structure of Courts vis a vis Administration of Customary Court in the State 2017.
56. Ibid
57. The customary law of inheritance of south-western Nigeria regards widows of customary law marriage as property to be inherited by male relative of the deceased husband see the cases of Suburu v Sunmanu (1957) 12, F.S.C. 33, Akinnubi v Akinnubi (1977) 2 N.W.L.R, 144, Ologunleko v Ikuomelo (1993)  NWLR (PT 273). Also, unless otherwise stated in Administration of Estate laws of states in administration of estate laws of states in south-western Region in recent times, where Western Region in recent times, where a man deed intestate leaving behind a man deed intestate leaving behind his wife or wives, customary law of the his wife or wives, customary law of the deceased which contained no provision as regard widows inheritance will be resorted to address the plight of such widows. See also section 36(1) of marriage act and Islamic law also contained 1/8 of the deceased properties to be given to the wider or widow of the deceased husband while relatives and distant cousins who does not know how such properties were acquired would be allowed to participate in the sharing of the deceased husband’s properties. (As contained in Qur’an 33:6; Dasuki, M, Hastiy):- at Dasuki, Vol. 4, p. 267-268, Qur’an 2:18, 4:11, 12 and 174, 2: 240 …. The instructions provided in this Holy Book is a divine instructions since its exercise is regulated by the Holy Qu’ran and the Sunnah of prophet (S.A.W): It is prescribed when death approaches any of you, if he leaves any goods that he makes a bequest to parents, and next of kin according to reasonable usage; this is due from the God-fearing).
58. Ibid
59. See Native Courts Commission of Inquiry (Gold Coast) 1951, p.3
60. I. O. Agbede, Legal Pluralism (Ibadan, Shanneson Ltd, 1991) pp 272, 273
61. The Sharia Court of Appeal could only be described as being at the apex of the Area courts only in relation to Muslim personal law. Particularly in Norther Nigeria, see for example section 20 (3) of Old Area Court Edict (Kwara State) No 2 of 1967
62. What is applicable south-western in Nigeria as indicated by I. O. Agbede, 273
63. Adeniji v Adeniji (1972) 1ALL NLR (Pt 1) 298 where the lower court accepted the application of Idi-Igi as appropriate formula for distribution of property under the customary law of the deceased person, but on appeal to the Supreme Court, the court found ori-ojori as most appropriate formula. Since there have been a conflicting decision on the issue of succession.
64. Currently, private ownership and outright alienation of land through sales and gifts in a will, formerly unknown to customary law and custom is now receiving the benefit of the general law.
65. South Africa Government enacted customary law Act to be part of her constitution in 1996 in the same way, customary laws in Nigeria should be enacted to be part of our national constitution as stipulated in our sister (South Africa) 1996 constitution as constituted in its section 30, 31 and 185. Section 211 (3) of south Africa, further stipulated that the court must apply customary law when that law is applicable, subject to constitution and legislation.
66. Decision of court in Omolade Adelae v Sunday Adelae (2015) where the deceased who married three wives underwent marriage restitution and settled with the second wife after he had become a Jehovah witness Christian, died in 1988 without a will, his estate was distributed according to his personal law; (customary law of the deceased husband)
67. See Panseca v Passman (1958) WNLR 41, also, Savage v Macfoy (1909) Rem. 504
68. See Paolo Contini: Integration of Legal Systems in the Somali Republic in Integration of Customary and Modern Legal Systems in Africa; (Dantiri, Abidabai Press, 1971) pp. 112-113
69. Cap 89 Penal Code with Sharia Penal Code
70. Formerly punishment by maiming, stoning and mutilation of all kinds were rampant under customary and
70. Islamic laws respectively.
71. See Marriage Act, Law of Federation of Nigeria 2004
72. See Future of Law in Africa (1960) Supra p 45-60, unlike Ethiopia that adopted two foreign laws, English and Swish (South Africa also followed suit).
73. See decisions of the courts in Cole v Cole, Adegbola’s case, See also I. O. Agbede, Legal Pluralism, pp145
74. Ibid
75. The extended family should approximate the concept of ‘dependents” elections as contained in Fatal Accident Law of the continent states with some medications; for instance, under the right of the beneficiary; fatal Accident Act allows for claims to be made by the defendants of the deceased in their own right. This will include losses arising after the date of death. The beneficiary of the estate are often dependents. When a person is killed a claim can be brought on behalf of his or on behalf of their dependants. The person suing as of right are called the “claimant” who are the beneficiaries according the act particularly Section 2 states that: Every such action shall be for the benefit of the dependants of the person (die deceased) whose has been so caused; the “dependant means:

The wife or husband of the deceased,

Any person who is a parent or grandparent of the deceased

Any person who is a child or grandchild of the deceased and

Any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

 

In addition, section 4 provides:

Any relationship by affinity shall be treated as a relationship by consanguinity, any relationship of the half blood as a relationship of the whole blood and the step child of any person as his child, and illegitimate person shall be treated as the legitimate child of his mother and reputed father, see, Gordon Exhale “the law relating to fatal Accidents”, An Introduction https://fataaccidentlaw.wordpress.com/2013/07/22/the-law-relating-to-fatal-accidents-an-introduction. Accessed 30^th November, 2016. See, fatal Accidents Act (1976) 1976 CAP 30.

Definition of wife should include childless wife which customary law excludes

A child or children should include illegitimate children as prescribed by the 1999 constitution of FRN sections 42(2). Also as contained in the Northern state Fatal Accident law, laws of Federation.

76. Cap 89 Penal Code with Sharia Penal Code
77. Formerly punishment by maiming, stoning and mutilation of all kinds were rampant under customary a
77. Islamic laws respectively.
78. See Marriage Act, Law of Federation of Nigeria 2004
79. Ibid
80. Despite the fact that South African practice a mixed legal system, comprises of indigenous laws and law inherited from Dutch and British. The 1996 Constitution gives customary law equal standings with the received laws.
81. See Section 42 (1) & (2), 1999 Constitution of Federal Republic of Nigeria as amended.
82. Widow inheritance by the male relations of their late husband. See Nzekwu v Nzekwu (1989) 2 NWLR (Pt. 104) 373; Akinnubi vAkinnubi (1997) 2 NWLR (pt 486) 144; Obuzez v Obuzez(2001) 15 NWLR 377
83. This is corollary recommendation to the above point. Although most states particularly in the southern part of Nigeria have been playing active role in customary law related reforms. The development in these states is very recent, apart from Wills Law, Law of Estate Administration enacted by the defunct old Western Region Government and re- enacted by the states devolved from the defunct region. In this respect, some states that set up Law Reform Commission are Lagos, Abia, Bayelsa, Akwa Ibom and Edo .Ekiti signed into law, a Law Reform Commission Bill in 2014. The state need to come out with legislation that will eliminate primogeniture and a law that will put men and women on equal level under customary law of inheritance.

http://www.punchnh.com/news/ekiti-signs-criminal-law-acuses-ff-g-neglect retired 30/6/2015 Jigawa State Justice Law Reforms Commission, Akwa Ibom State Law Reform Commission presented its first annual report in 2010, Abia State is collecting data for a Customary law Manual.

84. The states are Imo, Bayelsa, Enugu, Cross Rivers and Kaduna states; that is gender and Equal Opportunity Law no 7 of Imo State 2007; the Prohibition of Infringement of a Widow’s and Widower’s Fundamental Human Right Law of Enugu state 2011; Cross River Female Person’s Inheritance of Property Law 2007
85. Cap L9 law of the federal government of Nigeria 2004, on legal aid council.
86. Uganda, South - Africa and Zimbabwe.
87. Cap 4, section 33-46 of 1999 Constitution of Federal Republic of Nigeria. See particular section 32 constitution of Republic of Uganda 1995; Also, Section 8 Constitution of Republic of South Africa, 1996
88. See particular section 32 constitution of Republic of Uganda 1995; Also Section 38 Constitution of Republic of South Africa, 1996 prohibits laws, culture, centenary, and tradition which are against the dignity or interest of women and also ensure outright repeal/abolition of all under customary laws that allows denial and promote discrimination against women as widows or widower (whose applicable) in respect of right of inheritance succession.