3.1 Land
Use Decree in Nigeria
The land use decree (now Land Use Act) was promulgated
on the 29th of March 1978 following the recommendations of a
minority report of a panel appointed by the Federal Military Government of the
time to advise on future land policy. With immediate effect it vested all land
in each state of the Federation in the governor of that state (Fed. Rep. of
Nigeria 1978).
The Act vests all land comprised in
the territory of each state (except land vested in the Federal Government for
its agencies) solely in the hands of the military governors of the state who
would hold such land in trust for the people.
The promulgation of this Act was as
a result of two main factors:
First, was the diversity of
customary laws on land tenure and difficulty in applying the various customs of
different people. The second factor was the rampant practice in southern
Nigeria with regards to fraudulent sales of land. The same land would be sold
to different persons at the same time giving rise to so many litigations.
The Act distinguishes throughout
between urban and non-urban (rural) land.
In urban areas (to be so designated
by the Governor of a state), and was to come under the control and management
of the Governor.
In rural areas, it was to fall under
the appropriate local government. “Land Use and Allocation committees”,
appointed for each state by the Governor, were to advise on the administration
of land in urban areas.
“Land Allocation Advisory
committees” were to exercise equivalent functions with regard to rural land.
The Act envisaged that ‘rights of
occupancy,” which would appear to replace all previous system or rules of
inheritance to land, would form the basis upon which land was to be held. These
rights were of two kinds: statutory and customary.
“Statutory rights of occupancy” were
to be granted by the Governor and related principally to urban areas.
“Customary right of occupancy”,
according to the Act, means the right of a person or community lawfully using
or occupying land in accordance with customary law and includes a customary
right of occupancy granted by Local Government under this Act.
Local governments were empowered to
grant customary rights of occupancy to any person or organization for
agricultural, residential and other purposes with the proviso that grants of
land for agricultural or grazing purposes should not exceed 500 or 5000
hectares respectively without the consent of the state Governor. With the minor
exception of land subject to Federal or State claims, the Act also empowered
the local government to enter upon, use and occupy for public’ purposes any
land within the area of its jurisdiction and to revoke any customary right of
occupancy on any such land. The approval of the Local Government was to be
required for the holder of a customary right of occupancy to alienate that
right.
The Act prohibits the alienation by
assignment, mortgage, transfer or possession sub-lease or otherwise, of
customary right of occupancy without the consent of either the Governor or the
Local Government as the case many be. It also prohibits the alienation of
statutory right of occupancy without the due consent of the Governor (Land Use
Act, 1978: Section 21 subsections ‘a’ and ‘b’).
Governors were empowered to revoke
rights of occupancy for reasons of “overriding public interest”. Such reasons
included alienation by an occupier without requisite consent or approval; a
breach of the conditions governing occupancy; or the requirement of the land by
federal, state or local government for public purposes. Only in the last of
these cases would any compensation be due to the holder, and then only for the
value of unexhausted improvements on the land and not for the land itself.
There are four main objectives
derivable from the act and these are:
(i)
To effect
structural change in the system of land tenure;
(ii)
To achieve fast
economic and social transformation
(iii)
To negate
economic inequality caused by the appropriation of rising land values by land
speculators and land holders; and
(iv)
To make land
available easily and cheaply, to both the government and private individual
developers.
3.2 The
Doctrine of Tenures/Estates
a. English
Land Tenure Systems
Although the doctrine of tenures has minimal
significance today, but for the purpose of this research, it is crucial to
understanding the development of interest in land. The basic idea is that the
crown owns all land and grants rights to individuals. These individuals do not
themselves own land, but instead hold of (are tenants of) the crown. In the
past this was significant because services might be due to the crown and the
crown would have valuable rights (incidents), for example on succession of a
new tenant1. The nature of both the services and the incidents would
vary according to the form of tenure. Tenants could in turn sub-infeudate to
others, crating further link in the feudal chain.
Control over tenures has medieval
origins. As early as 1290, the statute Quia emptores stopped the creation of
new tenuial relationships (save by the crown)2, The most common form
of tenure was socage, in [25]
which the service was a monetary payment. As inflation
reduced the value of these payments, the incident became the most valuable
benefit of the feudal lord, especially the crown. However, the tenure abolition
Act 1660 converted nearly all tenures into socage and abolished most of the
incidents. Thereafter, terminal relationships lost virtually all their
significance. Inevitably, the identity of mesne Lords (those standing between
the crown and the ultimate tenant) became forgotten over the centuries.
Perhaps the greatest enduring
significance of tenures, however, lies in its encouragement of the development
of estates in land. That all land is held, ultimately, of the crown, means that
it is strictly incorrect to talk of owning land. Instead, we should refer to
holding an estate in land when a system recognizes outright ownership it may be
difficult to split that ownership into parts. Because the common law had to
grapple with the concept of estate rather than physical property, it was easier
to develop a far more flexible approach to ownership for whatever reason, the
common law permitted a wide range of estates, often with no one person being regarded
as the owner of the land.
The term “estate” as we have seen,
indicates an interest duration. Because of the feudal basis of the English
concept of tenure, English land had never been regarded as owned by any
individual. The entire land is owned by the crown and person who are commonly
described as land owners are mere tenants of the crown.3 In other
words, all English land is either in the hands of the Queen, or is held of her
by her subjects as tenants whose interests in land are called estates. In
determining the relationship between an occupier of a piece of land and the
land itself, English law has directed its attention to seisin (possession)
rather than ownership. The strength of a man’s title to land in his possession
depends not on whether he is the absolute owner thereof, but on whether there
is anybody who has a better is anybody who has a better right to the possession
of that particular piece of land. That in why it has been remarked by cheshier
that there is in England no law of ownership, but only a law of possession.4
A person who has seisin is said to own an abstract entity called an estate, and
it is the estate that indicates the extent of his right to seisin. For example,
a person who is entitled to immediate seisin of green acre for his life is said
to be seized of Greenace for an estate for life. This entitle him to exercise
all proprietary rights over the land for the duration of his life. From the
point of view of the subject, therefore, possession and not ownership was all
he was allowed to have in land. His interest was based entirely upon that, and [26] whether
it is to last for a term of years or for life or is potentially capable of
perpetual endurance, it has the same intrinsic quality – a possesory right.
However, the view of tenants
interest as implying merely a right in property belonging to another the crown,
although logical and correct, did not appeal to the medieval English lawyer,
because in the conception of an abstract “right”. Thus, the right of the tenant
entitled to the seisin (possession) of land for a duration of time was
concretized into a THING, to which the name “estate” was given5.
Estates recognized by the law vary
in quality. The quantity of an estate depends upon he length of time for which
it may endure, so that if it may last forever it is called one thing, if or
life only, it is given another name. And upon this variation, common law has
classified estates into freehold and leasehold estates.
(a) Freehold
Estate
Black’s law dictionary describes the
word “freehold” as “an estate in land held in fee simple, in fee tail, or for
term of life; any real property interest that is or many become possessory” in
a simpler sense, freehold is the right in a property to hold it with a
perpetual right. In freehold right, [27] there
is no limit of time to hold the property like in cause of leasehold property.
In the earliest days, the factors
which determined the category to which and estate belonged was the quality of
tenure by which the estate owner held his land. If he held the land by one of
the comparatively respectable free tenures like knight service, frankalmoign,
sergeanty and socage, he was said to have a freehold estate because the tenures
were free from servile feudal incidents. But if he held it by the villain
tenure which had servile incidents, he was said to have a non-freehold estate
or an estate less than freehold. The other feature distinguishing a free tenant
was that the period for which he was entitled to hold the land was uncertain
and indefinite. His interest endured either for life or a period longer than a
life time. But the uncertainty and indefiniteness of the duration arises from
the fact that nobody could say when the death would occur of a man and all his
heirs, or a man and all his descendants or a man alone. Therefore, the period
could not be pre-determined at the commencement of the interest. It is this
uncertainty in the duration of the freehold estates rather than the nature of
the tenure by which they are held which has become the cardinal distinguishing
feature between them and non-freehold estates7.
[28]Based
upon this uncertainty of duration, freehold estates are classified as follows:-
(i)
Fee simple;
(ii)
fee tail
(iii)
Life estate;
(iv)
Estate pur autre
vie
(i) Fee
Simple Estate
This is the largest estate in terms of duration (it is
potentially infinite in duration) and is as near to “absolute to achieve under
English land law. The wood “fee” connotes inheritability and “simple” indicates
that right to inherit is unrestricted (i.e it is inheritable by general heirs
whether ascendants or descendants)8. The fee simple is virtually
everlasting in that it continues as long as the person entitled for the time
being has “heirs” left to inherit. The classic words of limitation used to create
such an estate are “to (X) and his heirs”. Thus, a grant of Blackacre to B and
his heirs means that the estate will endure for as long as the person entitled
to it for the time being dies leaving an heir. In other words, the estate
continues as long as he is survived by a near relative on when it devolves.
[29] The
theory survives till today that the owner of a fee simple estate, just as the
owners of the other estates is a mere tenant of the crown. But the fact remains
that such an owner can for all practical purposes be described as the owner of
the land itself both in terms of the period of time the estate is likely to
endure and the extent of the rights it confess on the tenant. While he lives,
he is free to use and enjoy the land as he pleases. Unlike a tenant in fee tail
for example there are no restrictions on the persons to whom the land will pass
on the death of the present tenant. He can alienate it to whomsoever he pleases
either intervivos or by will. If he dies without making a will, the land will
pass to persons entitled on intestacy and these will be close relatives.
The estate comes to an end only if the tenant dies
seized of the land and leaving no near relative which is very unlikely.
Originally, fee simple estate endured so long as the
original tenant or any of his heirs (blood relations, and their heirs and so
on) survived. Thus, at first the estate would terminate if the original tenant died
without leaving any descendants or collateral blood relations (e.g brother or
cousins), even if before his death the land had been conveyed to another tenant
who was still alive. But by 1306, it was settled that a tenant in fee simple
would continue as long as there were heirs of the new tenant and so on,
irrespective of any failure of the original tenant’s heir. It is therefore,
possible for the estate to last for ever, partly because of the wide range of individuals
on whom it could devolve on the death of the tenant, subject only to escheat if
the tenant for the time being dies leaving no heir9.
(ii) Fee
Tail
This is an inheritable estate (lesser in quantum than
the fee simple) which lasts for as long as the original grantee or any of his
lineal descendants lives. The terms “fee tail”, ‘estate tail” “entail” or
‘entailed interest’ are often used to describe the same style of estate10.
A classic method of creation was to use the words “to (X) and the heir of his
body”. A restriction of the line of descendants to the male or female species
only could be created by a “fee tail male” or a “fee tail female”. Following
the Trusts of Land and Appointment of Trustees Act 1996, it is no longer
possible to create an entailed interest. Any attempt to do so will produce a
trust for the grantee absolutely.
There are different classes of
estate tail which depend upon the class of heirs indicated in the original
grant. For instance, a grant of white-acre “to A and the heirs of his body” or “to A in tail” means that “A” would enjoy the land for his life
and on his death, his interest in the [30]land
does not terminate but passes on to his descendants. According to the rule of
primogeniture, it is usually the grantee’s eldest son who succeeds to his
interest, and failing him, some other lineal descendants of his. It many pass
to a female descendant if there is no male descendant. It must not be his
ascendants or collateral descendants. So if A dies without leaving at least a lineal descendant surviving him,
his estate immediately comes to an end and the land reverts to the grantor. But
almost always he is survived by descendants, so that his estate does not end on
his death just as in the case of a life tenant. Rather, if lasts for as long as
a descendant of his lives, and this can continue for hundreds of years. But a
grant ‘to A and the heirs of his
body begotten on his wife Veronica”, creates an estate tail special, because
any heir who claims to inherit the estate must show that he or she is a direct
descendant of A and Veronica. A descendant of A and any other wife has no title. Estate tail will be further restricted
if the instrument of creation specifies that only male or only female
descendants are to inherit, as, for instances, where there is a grant “to A and the heirs male of his body’. As
stated above, this type of estate lasts as long as a descendant of A lives. Thus, almost invariably an
entailed estate lasts longer than a life estate, though both, together with a
fee simple share the character of indefiniteness of duration.
(iii) Life
Estate
The review of this type of estate may have little or
no effect upon this research work since the estate is not inheritable.
Prof. Okany in his book, Nigeria Law
of Property Published in 2000,11 stated that, “Life estate is the
most inferior of all the freehold estates because it is certain to end on the
death of a particular individual”. As its name indicates, this estate lasts for
life only. If white acre is granted to A
for life and thereafter to Leventis
Hospital, A is entitled to use and
enjoy the land for the period of his life which may come to an end a few days
after the grant or many years thereafter. His interest terminates on his death
and the land passes to the hospital. If the grant is just to A for life, the property reverts to the
grantor on A’s death. But, while he
is alive, A is entitled to transfer
the land to another person, but not for a period longer than his life. Thus, if
A transfers the land to Y, the latter is entitled to use it
until the death of the former and not beyond it.
(iv) Estate
pur autre vie
This is similar to life estate, it is a specie of life
estate where the right of the estate exists for the duration of someone else’s
life. For [31]example,
the grant of Blackacre to ‘X’ would create such an estate which terminates
on Y’s death. Similarly, an estate
pur autre vie would arise if X
bought Y’s life interest from Y.
(b) Leasehold
This has little or nothing to contribute to this
research work but for the purpose of better understanding of freehold estate, a
glance needs to be taken on leasehold. Thus, a leasehold is the most important
of the non-freehold estates and is generally referred to as ‘A term of years’.
It comes into being when land is leased or demised to a person for a definite
number of years. It is regarded as less than freehold because of its definiteness as regards
duration. Even if the term is as long as 500 years it is still regarded as
inferior to an estate of an indefinite duration such as the life estate, even
though it is pretty certain that no life can endure for 500 years.
(b) Traditional/
Customary Land Tenure System
Traditionally,
the commonly asserted principle is that land belongs to the community, village,
or lineage and never to the individual. This meant that the traditional land
tenure was communal customary law recognizes that the dominant rights or
absolute interest in communal land is vested in the social group which has it.
Under this system all members of the social group have usufruct right to the
land. In every case the land is held in trust by the oldest male in the family
who in theory has the responsibility of allotting parcels of land to members
who need them for cultivation or for occupation. In fact, it is a collective
responsibility. In principle, land so allotted remained the property of the
group12.
Traditional system of land tenure was appropriate to a
subsistence economy, where people obtained the goods they need almost entirely
by farming and exploiting the resources of their immediate environment. In such
an economy, there was no commodity more valuable than land. In short, land was
so valuable that there were no exchangeable products. There was thus an
ascription to the system an abstract theory of sacredness which inhibited the
recognition of it’s economic potentialities. Traditionally, land to the native
was the property of the living and dead. It was considered the home of ancestor
spirits and the idea of disposing of it was sacrilege. Proverbially it was
often expressed that land must be preserved for the coming generations.13
Hence when circumstances arose in which land could pass out of the hands of the
groups with a traditional claim to it, their reluctance to allow this to happen
was formulated in terms of responsibility towards the dead or the unborn. Yet
it would surely be unrealistic to conceive of these ideas as the primary [32] reason
why the right to alienate land was not commonly found; more fundamentally it
was the absence of any other motive for land’s existence or the mode of
production that dictated the land value.14
Two major factors set limits to the amount
of land which the autochthonous lineage group would seek to utilize. Here the
basic limitation was that imposed by technique where the only implement known
was the hoe, no one could clear much more ground than his neighbours even
though the land was plentiful. On the other hand if he could, there was no
incentive to cultivate more land than was necessary to provide an adequate food
supply and occupation. From the social point of view, every individual has a
right to use the land derived from his status either as a member of a town,
village, lineage, or family.
(a) Town
Land
This is the land which belongs to the entire
community. All the members of the town have right to it and all have a say in
its management. No single individual has the right to alternate it without the
consent of the members of the community. What is practicable in such cases is
that all the lineages have representatives in the management of [33] such
land with the consent of its entrustees15. Examples of town land include major sacred and
common land and in some cases boundaries between one community and another and
any encroachment on the land by members of a neighbouring community would at
once be resisted. Inter-community wars. There are therefore an assertion that
while rights in community/town land are free to its members, they are not free
to stranger.
(b) Village
Land
A town is made up of villages. Village land is the
common land of all the members of a village. Usually these are open lands used
as village squares, which people use for recreation or special activities. In
each village the woman or children sweep and sue these village squares on
stipulated, days of the native calendar week. The custodian of the village
square is usually the village priest or the eldest family member in the
village. It is they who ensure the orderly use of the square by village
members. Any member of the village has the right to use it for any social
activity. The squares are usually centrally situated within the village
residential area and no individual plot is allowed to encroach on it.
[34]
In some villages, a village hall is
built in the squares through the effort of its members. In some cases make
shift houses are found in addition to the main hall. What commonly obtains is
that a settle built of logs is arranged under umbrageous trees to allow the
village folks to amuse themselves. The people spend their leisure time in these
squares.
Market places if located in a
village or town land are the common property of the group. However, an
individual who extends his stall to a person’s private land near the market
square by agreement will be paying rent to the person16.
(c) Lineage
Land
The town is organized into lineages or kinship groups
each of which consists of people who claim descent from a common male ancestor.
Lineage is therefore peritoneal. Lineage land tenure was the most accepted form
of land holding lineage land includes both compound and farm lands.
Traditionally land tenure was based on the lineage group. Each lineage group
claimed or cleared as much virgin land as they could for themselves and their
future generations. The members of a lineage group settle contiguously in a
common territory [35]and
reserved all other acquired land which may be elsewhere, for future use17.
The head or the eldest man of the
group holds the land in trust for others. Every member has right to the land,
even then the rights to use is not the right to own. This implies that no
single member or family within the lineage owns the land or can alienate it
without the consent of all the members.
With the increase in population of
lineage members, some of the members settled on lineage land elsewhere. This is
partly why in some towns today not all the members of a lineage live in the
same village. It is necessary to note that as any lineage group cultivated as
much virgin land as they could, they carefully marked it so that its boundary
could be differentiated from that cultivated by another group.
(d) Family
Land
As time went on and as the population increased, the
lineage land was partitioned into the number of extended families in the
lineage. The extended family is made up of the man, his wife or wives, his
children, his married sons, grad children, and great grandchildren and to as many
generations as is socio culturally delimited. For ownership [36]considerations
what is also applicable to the extended
family land. This land may not be necessarily situated in the same territory
but could be fragmented in different places.
In some Ikwo communities a lineage
may not partition all its land. It could reserve a portion which is held by the
eldest living male member of the group which implies that its trusteeship
rotates among members. In some communities members of the extended family have
a share in the parcel of land which was the first settlement place of their
founders.
On death of the head of the extended
family, right in land devolves to his male children, who now partition it as
family land. Family land has in loose terms been called communal land and
private land. It is communal in the sense that all the sons of the deceased
have right to it. While the eldest son holds it in trust for others, none of
them has the exclusive right to alienate the land or any portion thereof.
Family land is not only crated
through inheritance; it can also be acquired through any acceptable means of
exchange. Such land becomes family property as if it has formed part of the
inheritance. The improvement of family land by a member does not give the
member any special rights simply because he has improved it out of his own
private [37]means.
He merely keeps the place in good state of repair in order to make the house
habitable or more comfortable for him, the occupier.
3.3 Land
Inheritance Under the English Law
In medieval England, how people’s
property were distributed among their heirs after death depended upon what kind
of property they owned, there social status, where they lived, and their sex.
Theoretically, most people did not have testamentary power at all, and those
who did could only exercise it over a small proportion of certain kinds of
assets. Different inheritance and testamentary rules governed realty (land,
buildings, and improvements) and personality (all other kinds of property
including personal effects household goods, livestock, stock-in-trade
equipment, leases, cash, and financial assets such as mortgages and money lent
at interest).
The male elite of England, feudal
lords and those who had derived their lands from them19 had to pass
all realty (land) to the eldest son, a practice known as primogeniture. The
Magna Carta stated only that the wife and children were entitled to their
“reasonable parts”, which in many regions of the country meant one third
available for testamentary [38] disposition.
More regulations followed if a man had only minor children. The monarch had the
right of wardship over the estate of minor heirs, and the crown received great
monetary benefit from this privileged.
The bulk of the population was
governed by other rules, but testamentary freedom did not play much of a role
there either. The villager or villain of medieval England was unfree, that is,
he owed labour services to a manorial lord in exchange for rights to a copyhold
(village land) and the privileges accompanying it. While technical the lord was
the only possible heir of the villain because he had to approve and receive of
fee when a new tenant took over the copyhold, in fact manorial custom regulated
who was to inherit the assets. Manor either had partible or impartible division
of a villain’s copyhold (i.e land). The former provided for all sons to receive
equal portions of land. Impartible succession, prevalent in the regions with
the best arable land, meant that all went to one son. Most often it was the eldest
(primogeniture), but a number of localities practiced Borough English or
ultimogeniture, where the youngest son received the holding. Daughters could
succeed to a copyhold when there were no sons to inherit.20
Inheritance rights also differed by
sex. England had more of a [39]unilateral
or unilineal than a bilateral system when it came to the descent of property.
Children may have been related to the kin groups of both mother and father, but
they inherited primarily from the father. When a woman married, her dowry (the
portion given her by her father or obtained in some other manner) immediately
fell under the control of her husband, as did any property she subsequently
inherited. 21 Married females were feme covert, covered woman, who
no longer had any legal status. A woman’s spouse represented her interests, and
the only thing stopping him from doing as he pleased with the wealth he had
acquired form her was that he could not sell or will her realty. of course,
because of the inheritance customs, women were less likely to have absolute
rights over realty (land).
If a woman with realty predeceased
her husband and they had children, he could keep all of her land for the rest
of his life whether he remarried or not. That was his courtesy. A widow’s
rights in her husband’s estates, known as dower, or for copyholders, free
bench, were different. Dower could be a “reasonable part” of his personalty
(which of course included hers if she has brought any to the marriage). As we
have noted above, this often amounted to one third if there were [40]children,
one half if not. Whatever she might get, however, depended on local custom, and
if her husband was copyholder, the approval of the lord. Her right to realty,
usually a third of it, extended for the life on some manors and only during
widowhood or “as long as she remained chaste” on others. Apparently, the lord
of the manor occasionally allowed a widow to remarry and retain her dower
rights when there was a suitor willing to pay a large entry fee to enjoy the
bride’s property.
The English had a relatively narrow
unilateral system for the descent of property. With primogeniture, the default
under intestacy, and the prevalence of impartible division among copyhold
tenures, one son usually inherited a disproportionately large share of an
estate. In Europe, it seems, partible inheritance more often dominated. The
English system was also narrow because collateral kin had relatively little
claim on the withholders property. Male collateral kin did not take precedence
over daughters in the inheritance of land or personality. Furthermore, there
were no corporate lineage rights or assets as there were in some societies 22.
It was unilateral because as noted
above, when a woman married all of her property went to her husband, and their
children inherited [41]mainly
form him. Even the property that a widowed mother might bequeath had been
derived from the portion that her husband had willed her. The only claim a wife
had to the marital assets she had helped form was a life time or widows third
of realty. Also, paternal relatives were preferred to maternal ones in the
inheritance of land. Under the civil, law when two lineages joined at marriage
them established a community property fund and each had a claim on half. In
addition, the wife’s inherited property was kept separate from the
patrilineage. Thus, chairmen inherited from both father and mother.
3.4 Land
Inheritance Under the General Native Law And Custom
Inheritance in Nigeria is normally determined by the
customary rules of where the deceased person originates from and not by where
he resides, or lives, or, where the property is situated. This of course
presupposes that he or she did not make a will, or made a will before getting
married23.
Nigeria systems on inheritance and
succession are predominately patrilineal (i.e. inheritance through the father)
than matrilineal the mother). Good examples can be seen in the analogy of some
of the [42]rules
of inheritance, relating to some ethnic groups in Nigeria.
In Yoruba land, distribution of an
estate of a deceased person, who dies without will, is per stripe; ie by the
number of wives that the deceased has and not by the number of children. Where
there is a serious dispute, the family head is permitted, in some parts of
Yoruba land, to have a final discretion by recommending the distribution of the
estate, per capital i.e by the number of children and not by the number of
wives.24
In Benin Kingdom the doctrine of
primogeniture applies i.e. the right to succession of the entire estate belongs
exclusively to the eldest son of a deceased person who acts as a sort of
trustee for the other children. Under Benin custom, where there is a will, the
maker of the will cannot devise the houses where he lives and died to any
person other than his eldest son.
The same rules of inheritance that
apply to the Binis also apply to most parts of Igbo land icluding Onitsha,
which by history, originated from the Benin Kingdom. There is also the
interesting custom which requires that the property of a deceased woman which
she acquired before her marriage, go back to her family on her demise26.
[43] In the
general Calabar area, the eldest surviving male member of the deceased person
succeeds as the head of the family and inherits the deceased estate.
In Hausa land, the Moslem rules of
succession, under the Maliki code, have been largely absorbed into been largely
absorbed into their indigenous system of property inheritance. Among the Fulani
for example, the eldest son inherits deceased father’s cattle, the main asset
in those days, out of which he makes presents of some of them to his younger
brothers according to their needs.27
In Igbo land, patrilineal descent
controls the course of land inheritance. thus, when a man dies, what he owns in
the land of his ancestors belongs to his first son. Whatever he owns elsewhere
belongs to his younger children. In the father never owned anything outside of
his village, the first son is still the primary inheritor and gives to the
others as he deems fit28.
Greedy elder brothers are known to
give miserably smaller pieces of land to their younger siblings regardless of
how big the land they inherited. It is the reason why the younger one sometimes
resort to [44]begging
their elder ones, with symbolic wine offered at tiems29.
In contrast to what tradition
demands however, a father has the prerogative to take decision that deviates
from common practice. A father can for instance feel that every son is entitled
to fair share of what he owns. Furthermore, the first son can fell out of favor
with his father for certain reasons. In some situations some fathers are
themselves biased and choose the son they love most as their major heir.
Tradition in Igbo land demands that
female children don’t inherit properties. This is because they are expected to
marry outside the village and cannot take the property of the family to foreign
lands. Extremely rare situations do arise, however, where a man is blessed with
female children only. In that circumstance, his properties go to relations.
Interestingly, the first daughter can decide to sacrifice marriage in view of
so much wealth that would be left to sometimes, undeserving relations. She gets
pregnant out of wed-lock. Her male child now inherits the properties of his
late grandfather. [45]
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