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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.

 

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.

1.6       Significance of the Study

This study is unique and germane as it enriches the sources and understanding of the Nigerian legal system particularly in the area of intestate succession under the customary law in South-West, Nigeria. The customary law in several parts of Yoruba land has not been adequately documented, codified or restated for use under modern judicial system. It has to a large extent indicated the approach to eliminate uncertainty and injustice arising from the application of different choice of law rules and contradictory decisions of courts of various levels. It has also paved the way for legal integration within the area covered.

The study is useful and valuable to the customary court Presidents, members, customary Court of Appeal, High and Appeal Court Judges, lawyers, researchers, teachers of law, scholars and Nigerians, as it addresses and analyses the position of Nigeria law on the main theme of the subject. It is also important for the fact the study has enriched the Nigerian legal armoury. Furthermore, the study reveals the grave injustice that occurs where the personal law of the intestate deceased is not enforced in application of the Law of Intestate by the court The study                                                                                                                                                                                                                                                                                                                                                                                                                 makes recommendations for the enhancement of intestate succession laws in South-West, Nigeria..

The study fills the existing gaps by revealing choice of law rules predicated on “agreement of parties and transactions”- do not provide for the ascertainment of applicable laws in the area of intestate succession. It has also indicated the better method of identifying the applicable law in the area covered. The better method of identifying the applicable law within the area under study was indicated.

The study appears to be the pioneering work within the area covered by this study. Hence, the work has contributed positively to resource material for Nigerian Judicial Council (NJC), National and State Assemblies, scholars, jurists, teachers and lawyers to utilize. It makes useful recommendations for reform of the laws in Nigeria particularly in the means of avoiding conflict of laws in the matter of intestate succession and also serves as a valuable material for further research in intestate succession.

1.7       Scope of the Study

This study focuses basically on the intestate succession under customary law particularly among the Yoruba people of the six states of South-West Nigeria. It has attempted to overcome the problem of legal uncertainty with its narrow scope. Specific emphasis was on the choice of law rule that has been the key issue in the intestate succession under customary law amongst Yoruba people of South-West, Nigeria. The scope of this study was specifically limited at the pre-field presentation to the six states of South-West, Nigeria where Yoruba customary law is practiced.

Although, the Yoruba people are predominantly settled in the area covered by this study, handful of them are found in some other states in Nigeria such as Kwara, Kogi, Edo and in diaspora, such as Benin, Togo, Cuba, Brazil, USA and Canada. Due to time factor and significantly, there are no statutory records of the Yoruba Customary Law being practiced outside the purview of these states as discussed in this work. Therefore, justifying further the essence of limiting the scope of this work to six Yoruba states of South-West Nigeria.

1.8   Conceptual Clarifications

Interpretations of major terms in this study include: Intestate, Legal Pluralism, Succession, the six Yoruba States of South West Nigeria, Population of South-West Nigeria.

1.8.1    Intestate

Intestate refers to a person who died without making a will or a valid will. Such persons are deemed to have died intestate. If the deceased who died intestate is subject to customary law, his estate will be distributed according to the customary law applicable to him.

1.8.2    Succession

Succession can be correctly defined as:

The act of right of legacy or officially taking over a predecessor’s office, rank or duties…The acquisition of rights or property by inheritance under the laws of descent and distribution[26].

 

Derret[27] simplifies it thus: “Property describes a fortune but succession  describes a mere process of tiding up, working out, clearing away and generally administering a propositus ‘estate’, a process which may take a conventional period, such as a year or as many years as are needed to put all the dead person’s dependants on to their feet”

 

1.8.3 Legal pluralism

 

Tripartite is a concept involving three aspects or consisting of three parts: A tripartite

[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,

[26] Brian Garner, Black’s Law Dictionary (9th edition, USA: West, 2006) p 1689. See also Yusuf A & Sheriff Succession under Islamic Law, (Surulere, Lagos: Malthouse Press Limited 2011) p.1.According to Yusuf and Sherif, Succession could be testate or intestate. Succession is called Al-mirath in Arabic terminology in respect of intestate and partial testate succession under the Islamic law which simply means the “successor” in English interpretation. That is, “any property or right, legal or equitable distributable to the legal heir of a person upon the demise of a praepositus

[27] Derret, Studies in the Law of Succession in Nigeria, (London: Oxford University Press, 1963) p 214.

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