CHAPTER FOUR
4.1 INTRODUCTION
The patterns of inheritance and
succession particularly under intestate estate under customary law in Nigeria,
have almost as many variations as there are ethnic groups in the country, and
many of the variations are discriminatory in practice. The law of succession
and inheritance reflects Nigeria’s plural legal system. Indigenous customary
law developed rules of inheritance for intestacy through the traditional canon
of descent, as adapted over the years to changes in the society and the rule of
natural justice as applied by the court. Fortunately, nongovernmental
organizations have been active in attempting to rectify the problems of
discrimination.
Rather than trying in futility to
cover all the patterns of succession, we shall examine a few of the succession
patterns in this chapter four with particular reference to the discriminatory
aspects under customary law. We also shall propose reforms in the next chapter.
Finally on this chapter, we shall recognize the important work done by
non-governmental organizations in Nigeria.
4.2 PRIMOGENITURE
RULE
The general rule of customary law
where a land owner dies instate is that his self-acquired property devolves on
his children as family property. The head of the family is the eldest male
child of the deceased who occupies the family house and holds same as a trustee
of the other children, male or female. However, the rule is different in
certain localities.
In Benin and Onitsha communities,
for instance, the deceased’s property devolves to the eldest son exclusively,
in accordance with the rule of primogeniture, under which the eldest son is
expected to look after younger children and may dispose the house over the
wishes of other children or treat it as his own property. Among the mark is
group of the verbe of Northern Nigeria, the rule of primogeniture applies,
whereby inheritance is by the youngest son, which applies to bar other heirs of
the deceased land owner.
The rule of primogeniture is plainly
unfair to the younger children of the family, hence is repugnant to natural
justice, equity, and good conscience. Nonetheless, it has been argued that the
system accords with native ideas, particularly the role of the eldest son as
the “father of the family” who has a legally binding obligation towards the
children.
The right of the eldest surviving
son to succeed his father in the headship of the family is automatic and arises
from the fact of seniority. Only the father, as the owner and creator of the
family property can deprive the eldest son of this right, by a valid direction
made with the aim of ensuring that the affairs of the family are properly
managed by a person qualified on the grounds of intelligence and education to
do so. In the absence of any such direction by the father, the right of the
eldest son cannot be taken away without his consent. But a right that arised by
the operation of the law is liable to be abrogated or modified by a change in
customs. An example of such right is the right to Igiogbe house, which exists
in Benin Kingdom.
4.3 THE RIGHTS OF SPOUSES
In customary law generally, 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 property
of the family of which he is not a member. In Canterick V. Harding, the
deceased landowner left 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. It was held that the plaintiff
had no such right. Strict Senso, a widow is not entitled to share in the
property of the deceased husband at customary law!! An exception is where she
has taken another husband (other than the brother of the deceased husband), in
which case, she loses her right of occupation and maybe asked to leave12.
This seemingly unfair practice exit
by virtue of intestacy, for under native law and custom, the devolution of
property follows the blood. Consequently, a wife or widow, not being of the
blood, has no claim to any share13. An exception to this practice
does exist: when a widow chooses to remain in her husband’s house and in his
name, she can do so even if she has no children. This is to ensure her
maintenance. Although she cannot transfer any of the husband’s property
outright, if the husband’s family fails to maintain her, then she has a
qualified right to be let part of the house to tenants and use the rent to
maintain herself 14.
Her interest in the house of
farmland is merely possessory and not proprietary, so she cannot dispose of it.
In one instance, a widow remained with the only daughter in occupation of the
late husband house at Onitsha, improved it, let part of it to tenants from whom
she collected rent, and in all other respects treated the house as her own for
44 years. Upon her death, she devised it by will. The banquest was ruled void against the
husband’s relations, on the principles of memo dat guod non habet.
This custom offends the principle of
natural justice, equity and good conscience. Why? The widow, during their
marriage and during the deceased husband’s life, might have toiled to bring
about the acquisition of such property. It is therefore not only repugnant to
natural justice, but also morally repulsive to deprive her of ownership of such
property. Even the Holy Bible states that “a man shall leave his parents and
leave unto a woman and shall become one flesh”!15 How can a mortal
alter the creation of God? Husband and wife are truly one body and one blood,
hence they should share what belongs to them equally, and should be free to
exercise their rights via devise 16.
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 memo dat quod non habet aptly applies here. The
same condition exists as regards deceased wife’s ante-nuptial property.
Nonetheless, his right of inheritance in his deceased wife’s real property
depends (conditional), first, on whether the wife left any surviving issues;
and, second, 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 and never to the husband, though
he has a right over personal property. This customary principle was affirmed in
the case of Nwugege V. Adigwe 17.
This is an administrative suit from
Onitsha in which the claim by the head of the family of a deceased widow for a
letter of administration of her estate was opposed by her husband’s son by
another wife. The letter was held to be the proper person to administer the
estate. The court rejected another proposition of the customary law of Onitsha
laid down by six redcap chiefs who gave evidence in the case; that where a man
marries a woman who has a house and lives with her as a husband and wife there,
the house goes to the wife’s family on her death. The court gave as a reason
for rejecting this proposition that in laying it down, the chiefs explained
that under their custom, it was unheard of that a man marries a woman and lives
with her in her house, which is equivalent to accepting the custom that a woman
should marry a man and not otherwise.
But since there is no express rules
of customary law covering the specific point, the court was free to arrive at a
decision in accordance with the principle of natural justice, equity