TABLE OF CONTENTS
Content Page
Title Page i
Certification ii
Dedication iii
Acknowledgements iv
Abstract vi
Table of Contents vii
Acronyms xii
List of Statutes xiii
List of Cases xv
CHAPTER ONE: INTRODUCTION
1.1 Background to the Study 1
1.2 Statement of the Problem 5
1.3 Objective of the Study 8
1.4 Research Questions 8
1.5 Methodology 8
1.6 Significance of the Study 9
1.7 Scope of the Study 10
1.8 Conceptual Clarifications 11
1.9 Synopsis of the Chapters 12
CHAPTER TWO: REVIEW OF LITERATURE
2.0 Introduction 13
2.1 The Concept of Succession 14
2.2 Nature of Plural Legal System 14
2.3 Concept of Customary Law 22
2.3.1 African Customary Law 24
2.4 Customary Law of the Yorubas 26
2.4.1 Succession 27
2.5 Theoretical Framework 27
2.5.1 The Historical Descriptive Theory 27
2.5.2 The Comparative Theory 28
2.5.3 Cultural Theory 29
2.5.4 Judicial Justice Theory 31
CHAPTER THREE: HISTORICAL PERSPECTIVE OF
SOURCES OF NIGERIAN LAW
3.0. Introduction 34
3.1 meaning of Sources of Law 34
3.2. Classes of Sources of Law 38
3.2.1 Formal Sources of Law in Africa 38
3.3 Recognition of English Law in South-West Nigeria 39
3.3.1. Recognition of Rules of Common law, Doctrines of Equity and
Statute of General Application in Force in England on January 1st, 1900 40
3.3.2 The Statutes 42
3.3.3 Statute of General Application in England 43
3.3.4 Reception of English Law in South-West Nigeria 46
3.4. The Main Basis of Construction of Statutes in Nigeria 49
3.4.1 Doctrine of Equity 49
3.4.2 Rivalry and Fusion of common law and equity 52
3.4.3 Nigerian legislation and Case law 53
3 4.4 Case Law 55
3.5 Customary Law as the fons et origo (source) in Southwest 59
3.5.1 Customary Law is the FonsEtOrigo (source) 60
3.6 Advent of Islamic Law in Southwest 63
3.6.1 Introduction 63
3.6.2 Conclusion 66
CHAPTER FOUR: DEVELOPMENT OF LAW
OF SUCCESSION
4.0 Introduction 67
4.1 Development of Law of Succession under the General Law 67
4.2 Application of Received English Statute Governing the Distribution
of Intestate Estate 68
4.3. Applicable Laws 69
4.4 Intestate Succession under the General-English Law among Yoruba People of the South-West Nigeria 70
4.5 Historical Posture of the Development of Intestate Succession 72
4.5.1 Common Law 72
4.5.2 Nature of intestacy in Nigeria particularly in South-West Nigeria 72
4.6 Intestate Succession under the English Law 75
4,7 Intestate Succession and the Marriage Act 76
4.8 Judicial Interpretation of Section 35 of the Marriage Act 77
4.9 Effect of Nature of Marriage 78
4.10 Rules Guiding the Distribution of Intestate Estate in Nigeria 81
4.11 Statutory Law Governing Intestacy Estate Administration 82
4.12 Exception to the General Notion of Statutory Rules of Administration
of Estate 84
4.13 Summary 85
CHAPTER FIVE: LAW OF INTESTATE SUCCESSION
UNDER THE CUSTOMARY AND
ISLAMIC LAWS IN SOUTH-WEST
NIGERIA
5.0 Introduction 86
5.1. Rights of succession under Customary Law of Yoruba People 86
5.1.1 The Essential Features of Customary Law 88
5.1.2 Customs and the Law 88
5.1.3 Bases of Distribution of Estate among Yorubas of South-West 90
5.1.4 The Role of Babansinku (Administrator) in South-West Nigeria 93
5.1.5 Modes of Distribution of Intestate Estate in South-West Nigeria 94
5.1.5.1 Nature of Property 95
5.1.5.2 Succession to Family Immobile Property 95
5.1.5.3 Self- Acquired Movable Property 96
5.1.5.4 Succession to Titles 97
5.2 Law Intestate Succession under Islamic Law 97
5.2.1 Historical Perspective of Islamic Law of Succession 98
5.2.2 Conditions in Pre-Islamic Arabia System of Devolution of Estate 98
5.2.3 Advent of Islam and Islamic Law of Succession 101 5.2.3,1 Daughter’s Share 102
5.2.3.2 Wife’s Share 104
5.2.3.3 Mother’s Share 104
5.2.3.4 Grandmother’s Share 105
5.2.3.5 Sister’s Share 105
5.2.3.6 Consanguine Sisters (same father but different mothers) 106
5.2.3.7 Uterine Sisters (same mother but different fathers) 106
5.2.4 Islamic Law of Succession in Nigeria 108
5.2.5 Nature and Content 109
5.2.6 Right of Succession by Muslim Faithful 109
5.2.7 The Arkanul – Mirath (The Key Ingredients of Succession) 110
5.2.8 Classes of Heirs under Islamic Law 111
5.2.9 Conditions for Disqualification 112
5.2.10 Inequality of Shares of Women and Men 115
5.3 Repugnancy Test and Validity of Yoruba Customary Law of Distribution
of Estate 119
5.3.1 Repugnancy Test 119
5.3.2 Repugnancy to Natural Justice, Equity and Good Conscience 120
5.3.3 Some Decisions of the Courts Enforcing the Concept 122
5.3.4 Misapplication of the Concept by the Court 123
5.3.5 Conclusion 129
CHAPTER SIX: CHOICE OF LAW PROCESS IN
INTSESTATE SUCCESSION
6.0 Introduction 131
6.1 Technique of Choice of Law 131
6.2 Rules of Decision 133
6.3 Statutory Choice of Law Rules 133
6.3.1 Intendment of the Choice of Law Rules 133
6.3.2 Subjection to Customary Law 134
6.3.3 Areas of Influence of Customary / Islamic Law 136
6.3.4 Scope of the Rule 137
6.4 Consideration of the Statutory Choice of Law Rules 138
6.4.1 The High Court Rules 138
6.4.2 Intestate Succession under the High Court Choice of Law Rules: 139
6.5 Irrebuttable Presumption against the Application of Customary Law 141
6.6 Consequences of Contracting “Christian” Marriages Abroad 142
6.7 Implication of Marrying under the Marriage Act; Cap 115 LN 1958 144
6.8 Rebuttable Presumption in favour of Non-customary Law 146
6.9 Choice of law Rules in Intestate Succession under the Customary
Court Laws 148
6.10 Distribution under the Administration of Estate Laws 151
6.11 Conclusion 153
CHAPTER SEVEN: NEW DIRECTIVES ON LEGAL
DEVELOPMENT
7.0 Introduction 155
7.1 Way Forward in Legal Development 155
7.2 Techniques of Unification of Laws 157
7.3 Ways and Means of Integrating of Laws by Legislation 158
7.3.1 Integration by Fusion 158
7.4 Reception of a foreign system of Law 160
7.4.1 Fusion by “cut and paste” approach: 160
7.4.2 Fusion by Harmonization 161
7.4.3 Theory of Equity of Apportionment 162
7.5 Conclusion 163
CHAPTER EIGHT: SUMMARY, CONCLUSION, AND RECOMMENDATIONS
8.1 Summary 165
8.2 Conclusion 168
8.3 Recommendations 169
8.4 Contributions to Knowledge 173
8.5 Limitation of the Study 174
8.6 Suggestion for Further Studies 175
Biblioggaphy 176
Appendices 183
ACRONYMS
AG Attorney General
AC Appeal Court
All NLR All Nigeria Law Report
CCA Customary Court of Appeal
Ch.D Chancery Division
CJN Chief Justice of Nigeria
CJS Chief Justice of a State
ERN Eastern Region Nigeria
ENLR Eastern Nigeria Law Report
FCT Federal Capital Territory
FSC Federal Supreme Court Cases
H.C.A High Court Act
HCL High Court Law
HCLNR High Court Law of Northern Nigeria.
JCA Justice of Court of Appeal
JCLIL Journal of Corporate Legislature and International Law
KSL Kaduna State Law
LLR Lagos Law Report
LNR Laws of Northern Region
LWR Laws of Western Region
MUP Manchester University Press
NLR Nigeria Law Report
NNLR Northern Nigeria Law Report
NRN Northern Region Nigeria
NWLR Nigeria Weekly Law Report
RLAN Revised Laws of Anambra State, Nigeria.
SC Supreme Court of Nigeria Judgments
SALRC South African Law Region Commission
UPL University Press Limited
WACA West African Court of Appeal
WLR Weekly Law Report
WNLR Western Nigeria Law Report
WRN Western Region of Nigeria
STATUTES
Administration of Estates Law, Western Region, Nigeria 1958, Cap1, 1959
Administration of Estates Law, No 62, Laws of Lagos State, 1972
Administration of Estates Law, Cap1, Laws of Kwara State, 1991
Administration of Estates Law, Cap3, Laws of Lagos State, 1994
Administration of Estates Law, Cap1, Laws of Ondo State, 1978
Administration of Estates Law, Cap1, Laws of Ogun State, 1978
Administration of Estates Law, Cap1, Laws of Oyo State, 1978
1999 Constitution of the Federal Republic of Nigeria and Fundamental Rights(Enforcement Procedure) Rules 2009 with 2011 Amendments.
S24 of the Land Use Act (LUA)
Evidence Act (as amended in 2012).
German law of Inheritance: Interstate Succession 1/8/13.
Inheritance Law in Greece – Legal Information 1/8/13.
Interstate Succession Act 2009, Federal Republic of Ghana
Interstate Succession Bill, Republic of Ghana 2006,
Interstate Succession Act 2009, Federal Republic of Ghana
Republic of South Africa: Reform of Customary Law of Succession and Regulation of Related Matters Bill (2008)
The Married Women Property Act 1982
The Succession Law Edict, 1987 in Anambra and Enugu
The Matrimonial Causes Act, Cap220 LFN
Administration of Estate Law 1991, Cap 1 Law
Interpretation Act (repealed in 1964)
Laws of Federation and Lagos 1958, Cap 89
Interpretation Law, Cap 51, Laws of Northern Region 1959
Evidence Act, (as amended) 2011
Customary Court Law of Anambra State, Cap 49
Revised Law of Anambra, Nigeria 1979 No. 51
Order VII, Rule 36, Supreme Court Law Rules 1961
State Courts (Federal Jurisdiction) Act, Regional Courts
High Court Act (Lagos HCA) 2000
High Court Law (Northern Region) 1959
High Court Law (Eastern Nigeria) 1958
Sales of Goods Edict No. 15, 1990 KSL
Judicator Act 1873 to 1875
Nigerian Independence Constitution Act 1960
Nigerian (Constitution) Order-in-Council 1960
Section 13 Supreme Court Ordinance 1900
Manual of Anambra State Law (as reviewed in 1988)
Anambra State Succession Law Edict 1987
Customary Courts Manual, Lagos State
Customary Courts Manual, Oyo State
Customary Courts Manual, Ondo State
Customary Court of Appeal Manual, Ondo State.
Wills Act 1837
Wills (Amendment) Act 1852
Inheritance (Family Provision) Act 1938
Inheritance (Provision for Family and Dependent Act 1975
Interstate Estates Act 1952
Interstate Succession Act No. 5, Zambia 1989
LIST OF CASES
Absi & ors v Absi Suit No. M/170/72 of 26/1/73Lag / CCHCJ/1/73, (unreported)
Lagos High Court @ p39………………………………………………………………….80
Abibatu Folahanmi v Flora Cole (1990) All NLR 310……………………96
Abeje v Ogundairo (1967) LLR9………………………………………………………….94
Abudu v Equakun (2003) 14 NWLR ( pt 840) at 313-314…………………9
Abibatu Folahanmi v Flora Cole (1990) All NLR 310 …………………….. 96
Adebusokun v Yinusa (1971) 1 All NLR. 225……………………..70, 125
Administration-General v. Egbunna & ors 18 NLR 1……………………..…69, 80
Adagun v Fagbola (1932) 11 NLR110………………………………………………………6
Adeoye v Adeoye (1961) I ALL NLR 792…………………………………………………48
Adegbola v Folaranmi (1921) 3 NLR 8……………………………….143, 162
Adeniji v Adeniji (1972)1 ALL NLR (pt 1) 298………………………..93, 156
Afrotech Technical Services Nigeria Limited v M.I.A Sons Ltd (2000) 15
NWLR (Pt 692) 220…………………………………………………………………..48, 49
Agidigbi v Agidigbi (1996) 6 NWLR pt 45 p300………………………..85
Agbai v Okagbue ( 1991)7 NWLR (Part 204) 391 @416……………21, 60, 123, 13,1 126 A.G v Tunkwase 18 NLR 88………………………..5
Ahmadu Sidi v Abdulahi Sha’aban (1992) 4 NWLR 113………….105
Ajoke v. Fagbemi (1961) 1 ALL NLR 400……………………………………………….126
Ajayi v White (1946) 18 NLR 41…. ……………………………………………………145
Akinwale v Thomas Suit No M/178/81 of 14/7/88 (unreported Lagos High Court)……94
Akinnubi v Akinnubi (1997)2 NWLR pt 486@144. ……………………………….91, 170
Aku v. Aneku (1991) 18 NWLR (pt. 209) 280 ………………………………………60
Alake v Pratt (1995) 15 WACA 20…………………………………………………32, 129
Alao & Another v Ajani & Another ( 1989) 4 NWLR 1(pt 113)………………………….97
Alfa & others v Arepo (1963) NWLR 95 …………………………………………………63
Allied Bank Nigeria Ltd v Regal Nigeria Ltd Suit No.PHC/204/86
delivered on 17/12/87………………………………………………………………………52
Amakwe v Anya 1936) 3 WACA 22……………………………………………………..142
Anekwe v Nwekwe2014 LPELR – 22724 SC…………………………….165, 166
Arinze v Arinze (1966) NMLR 155………………………………………………………..48
Asiata v Goncallo (1900) 1 NLR 41……………………………………………………….81
Attorney General v John Holt & Co. (1910) 2 NLR1……………………46, 55
Attorney v John Holt & Co (1940) AC 231…………………………………………..45, 46
Attorney General v Egbuna (1945) 18 NLR 1………………………………..146
Bamgbose v Daniel (1954) 14 WACA 116 / 1955) AC 107…………..32, 145, 146
Bello v Attorney General of Oyo State (1986) 5 NWLR (pt 45) 828……………………..58
Braihwaite V Folarin (1938) 4 WACA 76………………………………………..…46
Bue & others v Magistrate, Khajeltsha & Ors, Commissioner for Gender (equally refers to as amicus currier) Mrs.Louis Chulborn Ukeje & others v Mrs. Gladys Ada Ukeje (unreported) 2014 LPELR 227 24 (SC) …………………………………………166, 173
Coker v Coker (1943) 17 NLR 55 ……………………………………………3, 6, 84, 144
Coodings Blessed v Martins (1942) 8 ACA…………………………………………..144
Couladrick v Harding (1926) 7 NLR 48 ……………………………………………………6
Cole v. Akinyele (1960) 5 FSC 84……………………………………………………….129
Coker v Coker unreported; Suit No M/135/69…………………………………………6
Cole v Cole (1898)1NLR………………………………………69, 76, 81, 82, 83, 146, 162
Danmole &others v Dawodu &others (1958) 3 FSC 46; (1962)1 WLR 1058 Privy Council Dawodu v Damonle (1962) 1 All NLR 702…………………………………………..92, 124
Dede v. African Association Ltd. (1910) I ALL NLR 130…….……………45
Donoghue v Stephenson (1932) AC 562…………………………………………………..58
Dung Pan v Sale Daney (wom) 1 WRN 51 @ 63…………………………………………..61
Earl of Oxford’s case (1615) 1 Re-Chancery……………………….…..53
Eleke v Government of Nigeria (1931) AC 662 @67…………………………..90
Esther Morolake v Oyelabi & Olopade Ake “A” Native Court 5/1943; Egba Court of Appeal 3/1944………………………………………………………..…….95
Falohun v Falohun (1944) 17 NLR 108…………………………………………48
Godwin v Crowder (1934) 2 WACA 109………………………………………………….48
Global Transport Oceanic S.A. v Free Enterprises Nig. Ltd. (2001) WRN 136 (SC) 153..56
Hendersons Manchester v Jolaosho and others (1926) 6 NLR 19 @ 22 ………………….53
Joseph Osemweaite & Ors V. Otuti Idehen & Ors (1999) 6 NWLR (pt 198) 382 418……90
Johnson v Macauley (1961) ALL NLR 773……………………………………………….97
Kediri Adigun v Fagbile (1932) 11 NLR 110……………………………..97
Kharie Zaidan v Khalil Molisen (1973) ANLR 8……………………….10, 150
Kidney v Military Government of Plateau State(1988) 2 NWLR (pt 17) 145…………….62
Koney v United Trading Co Ltd (1934) 2 WACA 188 at page 196……………62, 136, 141
Labinjoh v Abake (1924) 5 NLR 33…………………………………………………46, 140
Lewis v Bankole (1909) 1 NLR at 100 – 101 ………………………….62, 91, 94, 120, 122
Laoye & Others v Oyetunde (1944) AC 170………………………………………….63, 130
Mariyamu v. Sadiku Ejo 1961 NLNLR 81……………………………………………123
Malomo v Olusola (1954) 21 NLR 1………………………………………………………46
Meribe v. Egwu (1976) 3 SC 50…………………………………………………….124, 128
Miler Brus v Ayeni (1924) 5 NLR 42………………………………………….……………6
Mojekwu v Mojekwu (1997)7 NWLR (pt 572) 283 / (2000) 5 NWLR (part 657) 402…………………………………………………………………………………21, 96, 120
National Electric Power Authority v Onab (1997) 1 NWLR 680 @ 688…………………57
Mensah v Atkins Ben 167…………………………………………………………………143
Nagle v. Feilden (1966) 2 QB 633………………………………………………………..128
Nofisatu Idumota & Ors v Sanusi Sanni Ijebu Ode Native Court 979/1948;
Judicial Council 15/1948…………………………………………………………..………95
Nzekwu v Nzekwu(1989) 2 NWLR (pt 104) 373; ………………………………………170
Obuzez v Obuzez (2001) 15 NWLR 377/ (2007) 10 NWLR pt 1043 p 430 ………84, 170
Obiekwe v Obiekwe (1963) VII ERNLR 196…………………………………………….170
Oduak v Ekong (2011) LPELR- 4209 (CA)………………………………………………..21
Ogiamien v Ogiamien (1967) NMLR 245 @ page 247……………………………………95
Ogunmefun v Ogunmefun (1931)10 NLR 82 …………………………6
Oguigo v Oguigo (1999) 14 NWLR (pt 638) 283 SC ………………….21
Ojisua v Aiyebelehin (2001) 11 NWLR (pr 923) 44 at 52 …………61, 62
Okon v Administrator-General (1992) 6 NWLR 248 @ 473……………………………88
Olowu v Olowu (1985) 3 NWLR pt 13 p 372………………….5, 15, 19, 91, 150
Omolade Adelae v Sunday Adelae, Suit No AKCC1/309/2012; Appeal
No CCA / 5A /2014…………………………………………….………143, 148, 157, 167
Omole v Omole (1960) NR NLR 19 …………………………………………………….48
Omo-Ogunkoya v Omo- Ogunkoya and Another, (unreported Suit No LD/444/84 of 16/1/87), Lagos High Court…………………………………………..94
Onisiwo v Fagbenro (1954) 21 NLR 3………………………..…………………………….6
Omoniyi v Omotosho (1961) All NLR 304 ……………………………………..87, 90
Onyibor Anakwe & another v Mrs. Maria Nweke (2014) (PELR 22697(SC) …….165, 166
Osanwonyi v. Osanwonyi Suit No B/22/1968 (unreported)……………………………..123.
Oyewumi Agunbiade III v Ogunsesan (1990) 3 NWLR 182 @207. ………..….24, 25, .62
Panseca v Passman (1958) WNLR 41; 504………………………………..158
Rasaki v Adesubokun (1968) NNLR 97 at 100……………………………………113
Re Shadu (1932) II NLR 37………………………………………………………….44, 45
Re Adadewoh (1955) 15 WACA 20……………………………………………………129
Re Subulade Williams (1940) 7 WACA 156…………………………………….146
Re-Public Land Ordinance, Lamani Bole, Claimant-Exparte Joseph (1910) NLR 1…….46
Ribeiro v Chahin (1954) 14 WACA 476…………………………………………………..47
Rotimi v Savage (1944) 17 NLR 77……………….……………………………………125
R v Coker (1927) 8 NLR 7………………………………………………..…………..43, 44
Rylandws v Fletcher (1886) LR, 3 HL 330…………………………..…………56
Salubi v Nwariaku (1997) NWLR 505, (pt 247) p 442………………….….77, 87
Savage v Macfoy 1909 Reners Gold Coast (Ghana) pt 304………………136, 141, 156,158
Savage vMcfoy (Rem 504) ………………………………………………………………..34
Shelle v Asajoh (1957) 2 FSC 65………………………………………………………….97
Smith v Smith (1924) 5 NLR 41…………………………………….….32, 76, 81, 145, 149
Sogunro Davies v Sogunro & Ors (1829) 8 NLR79……………………….………………97
Southern Pacific Co. v Jensen (1917) 244 US: 205…………………………………….…58
Sule v Ajisegiri (1937) 13NLR 146)…………………………………….…………..93, 169
Suberu v Sumonu (1951)2 FSC 33 / (1957) SC NLR 45…………………………..…19, 91
Tapa v Kuka (1945) 18 WLR 5……………………………………………………………19
Thomas v De Soniaza (1929) 9 NLR 81……………………………………………….46,70
Taylor v Taylor (1934) 2 WACA 126 /(1935) 2 WACA 48………….…………46, 48, 85
Uke & Alajiofor v Iro (2001) 17 WLR 172 ……………………………………………….21
Ukeje v Ukeje (2000) 5 WLR 142………………………………………………………..166
Vincent v Vincent (2008) 11 NWLR pt 1097 p 35 – 49……………………………………22
Ward v Lady Dudley (1705) Prec Chancery 241…………………………………….…….52
Williams v Ogundipe (2006)11 NWLR pt 990 p 157 ………………………………….…83.
Williams v Facode (1971)2 All NLR 194………………………………………………….86
Young and Anor v Abina and Ors (19400) 6 WACA 180 ………………………………180
Yakter v Government of Plateau (1997) 4 NWLR……………………………………….61
Zaidan v Molisa (1973)11 SC 1/ (1974) 4 UILR 283……………………………..…19, 150
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 . 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 . Such a situation has come to be known as legal pluralism .
Customary law is connected to distinct ethnic or cultural groups when the legal system in such diversified society operates a plurality of laws. 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. In contrast to customary law, which is unwritten but additionally regarded as divine , 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. 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 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 .
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, 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 . 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 . 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 . 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 and in legal transactions . 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 . 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.
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 . The same rule will apply to a Muslim who has inheritable property and dies without a child or where a “native” who married under the Marriage Act, dies without a child and a will. . 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 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 .
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 although, where Dawodu , as head of family, deposes without the knowledge of other members such disposition is voidable. He has no ex
