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LEGAL PLURALISM AND THE LAW OF INTESTATE SUCCESSION IN SOUTH-WEST NIGERIA

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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. niversity Press, 1963) p 214.

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