The Discrimination of Property Inheritance Under the Nigerian Customary Law

INTRODUCTION

The patterns of inheritance and succession, particularly under intestate 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. The 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 courts.Rather than trying to cover all the patterns of succession, I examined a few of the succession patterns, with particular reference to the discriminatory aspects under customary law.

While the law of inheritance and succession under English law is reasonably settled, the aspect dealing with customary law is not, which breeds conflict and acrimony among heirs. Some are accorded rights of inheritance and others are not. Consequently, this customary law falls under the repugnancy doctrine test and, more important, international conventions against discrimination.

‎The law of succession basically deals with testate methods of inheritance, and the rules governing them differs. When a man dies, the devolution of his self-acquired property depends upon whether he has made a will. ‎If he has made a will, the property devolves according to the will. ‎If no will exists—that is, under the condition of intestacy—his property devolves in accordance with the applicable customary law. Discriminations exist in both cases, but especially under intestacy. Discrimination thus exists in the method of distribution under various customary laws.

The discriminatory aspects of property inheritance under customary law in Nigeria manifests in different forms and scope ranging from primogeniture rules, right of spouses, rights of adopted children and rights of illegitimate child; although it is generally agreed rule under customary law of intestate succession and inheritance that succession goes by blood.

PRIMOGENITURE RULE

The general rule of customary law where a land owner dies intestate 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 Bini and Onitsha communities, for instance, the deceased’s property devolves to the eldest son exclusively, in accordance with the rule ofprimogeniture, under which the eldest son is expected to look after younger children ‎and may sell the house over the wishes of other children or treat it as his own property. ‎Among the Markis group of the Verbe of Northern Nigeria, the rule of ultimogeniture applies, whereby inheritance is by the youngest son, which applies to bar other heirs of the deceased landowner.

The rule of primogeniture is plainly unfair to the younger children of the family, hence it 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.

THE RIGHT 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 Caulcrick 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 he plaintiff had no such right. Stricto senso, a widow is not entitled to share in the property of the deceased husband at customary law. ‎An exception is where she had occupied an apartment during her lifetime, except where she has taken another husband (other than the brother of the deceased husband), in which case, she loses her right of occupation and may be asked to leave.‎

Consequently, a wife or widow, not being of the blood, has no claim to any share. ‎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 let part of the house to tenants and use the rent to maintain herself.

Her interest in the house or farmland is merely possessory and not proprietary, so she cannot dispose of it. In one instance, a widow remained with her only daughter in occupation of the late husband’s house at Onitsha, improved it, let part 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 bequest was ruled void against the husband’s relations, on the principle of nemo dat qoud non habet.

This custom offends the principles 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 cleave unto a woman and shall become one flesh.”‎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.

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 nemo 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.‎ (1934) 11 NLR 134.

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As regards ante-nuptial property, the general rule is that such property remains property of the wife unless it is mixed with the property acquired during overture. Property acquired during overture, in a situation where the wife is predeceased by her husband and all her children, will go to the husband’s relatives. The inheritance of wife’s property by her husband in default of issues contradicts the general principle that devolution follows the blood but is explained by the fact that marriage has the effect of transferring the wife to the husband’s patrilineal and subjecting her to the control of her husband and his patrilineal. This principle accords with the customs of Netembe and Kalabari people, where under Iya marriage, the wife and the children have the right of inheritance.

Among the Yorubas, the Idomas, and perhaps a few other communities, a husband cannot inherit (realty) from the wife just as the wife cannot inherit from him. If she dies without issue, her property passes to her siblings. It is also the law that a husband cannot inherit property acquired by the wife during separation.‎A point which requires clarification and justice is the position of customary law that inheritance follows the blood (general rule) and the issue of property (realty) acquired through concerted efforts of both husband and wife. Should the wife not be accorded a right of inheritance here? It is submitted that this should be an exception to the rule; for to do otherwise amounts to injustice and contravenes the Biblical injunction that “husband and wife are but one flesh.”

It also violates section 42(1), which bars discrimination and deprivation on grounds of sex, and section 43, which stipulates that subject to the provisions of this constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.

THE RIGHTS OF THE ADOPTED CHILD

Adoption of children is rare and known mostly in English Law. The position of an adopted child as regards succession is not very clear. It has, however, been established that the right of an adopted child is inferior to that of the legitimate child of the blood.

Among the Efiks of Nigeria, the procedure for adoption requires the presence of members of the adopter’s family, to whom the adopter formerly nominates his/her adoptee. An adoption which fails to conform to this procedure confers no right upon the adopted child. Therefore an adopted child’s right to succeed to any property depends on the validity of the procedure. ‎For the Yorubas, it has been stated that an adopted child cannot inherit from his/her adoptive parent. However, in the case of Administrator General v. Tuwase,27 1946) 18 NLR at 88. the estate of a Yoruba woman from Ijebu who had died without issues, was claimed by her husband, from whom she had been separated for 44 years before her death; by her adopted child, who had predeceased her, through the child’s descendants; and by a number of collaterals descended from her maternal grandfather, including an adopted daughter of an aunt. The claim of the husband was rejected. It was ordered that the descendants, including the adopted children of the deceased grandfather, should take one share each, while her direct descendants–i.e., the surviving adopted child–should share per stirpes. This suggests that the right of an adopted child is inferior to that of a legitimate child of the blood, for the direct descendants, were they of that blood, would have inherited the estate to the exclusion of all these other collaterals. Why this discrimination? . Furthermore, since such inferior position or status is accorded the adopted child, he or she is discriminated against, which violates the constitutional provision of S. 42(2) of the 1999 constitution: “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”‎

THE RIGHTS OF AN ILLEGITIMATE CHILD

An illegitimate child has been referred to as a child born out of wedlock, while a legitimate child is an issue of wedlock. Plainly, a child born out of wedlock whose paternity has been acknowledged by his natural father is as much legitimate as one born in wedlock. That is not the case, however. A child born out of wedlock during a marriage is illegitimate under the Act, whether or not the child is acknowledged by the natural father; unless by custom, someone else has a prior claim to paternity of such a child.

Where a child is born out of wedlock, the first question is who is entitled to the paternity of the child? The question is essential, particularly in a polygamous setting. The controversy as regards paternity has always been between the natural father and the mother’s father or the person who has paid the bride price on the mother. Customs varies, majority of communities favor the claim of the man who had paid the bride price of the mother. This is the position so far as customary practices and principle are concerned.

As for the judicial position, the Supreme Court holds that paternity should go with blood, and that any custom which prefers the provider of the bride price or the mother’s father to the natural father is repugnant to natural justice, equity, and good conscience.

It was so adumbrated in Edet v. Essien. ‎(1982) 2 NLR.But inAmakiri v. Good-Head (1957) 2 ENLRthe custody of an illegitimate child was awarded to the family of the mother’s husband. This is a classic situation where the rule of natural justice altered a repugnant customary practice, or a sharp divergence between judges made law based upon advanced ethical values reflecting the facts of social life, for in almost all communities in Nigeria, it is considered an outrage that a man should be deprived of the paternity of a child from a woman on whom he had paid the bride price.

Among the Yorubas, illegitimate children are accorded equal rights as their legitimate counterparts; the same is true of the Annang, Ibibio, Oron, Aba-Ngwa, and Nsukka, among others. In some other communities, illegitimate children are deprived of succession rights. In Mojekwu v. Mojekwu the Nnewi customary law of Oli-ekpe was struck down under the repugnancy principle by the unanimous judgment of the Enugu Division of the Court of Appeals. The basis of the decision was that the customary law in question which “permits the son of the brother of the deceased person to inherit the property of the deceased to the exclusion of the deceased’s female child” was a clear case of discrimination and hence inapplicable.

By contrast, Onwudinjoh v. Onwudinjoh ‎(1957) 1 ENLR 1.

In effect holds that any custom according a right of legitimacy to an illegitimate child may be repugnant to natural justice or contrary to public policy. The morality behind this reasoning is questionable, to say the least. Although sexual promiscuity may be frowned upon, there is no justification in punishing an innocent offspring.

RECOMMENDATIONS

Since the law of inheritance touches every individual in the society and indeed the community at large, it merits close attention. The law must be reformed to redress the loopholes, the inadequacies, and the harsh consequences of some customary law applications. A society can be socially engineered in an effective way only if the law is fair, just, and humane. Indeed, operation of the rule of law respects the aspirations of all and consequently maximizes the happiness of all. In the spirit of utilitarianism, the greatest happiness for the greatest number, any law that pursues this end is an instrument of social engineering.

In Nigeria, customary law lacks the above-mentioned ingredients of a virile legal system. Moreover, many uncertainties exist in succession and inheritance law, which create conflict and acrimony among contending interests.

The following recommendations are submitted.

1. Codification of Customary Law

Codification is essential for a reliable legal system, especially in a developing country such as Nigeria, where less regard is paid to the rule of law, even where the law is adequately enshrined (the constitution). Consider the human rights abuses by both states and groups.

Codification of the customary law will bring about certainty. A society’s law commands respect and obedience where the individual knows the governing law, his rights and obligations, and the punishment for violating it. Our customary law, especially in the area of inheritance, is uncertain as demonstrated by Dawodu v. Danmole (1958) 3 FSC 46 (1962) 1 All NLR 702.‎where the unsuccessful application of one method of distribution, per stirpes (Idigi), will lead to another method (Ori Ojori). This law leaves room for abuse, oppression, and exploitation of the weak, because in most cases, the head of the family as a last resort will be asked to choose a more convenient system of distribution. He will often decide the option that will be more beneficial to his own interest. In this process, he would have breached one of the demands of natural justice: “a man must not judge in his own case.” ‎In such a situation, fair judgment cannot be obtained (nemo judex incausa sua).

Codification will weed out all irrelevant areas and uncertainties in the law, leaving certainty behind. Codification respects moral and legal considerations. It is essential for a reliable legal system.

2. Unification of Customary Laws

The unification of customary laws will apply a single set of laws to all major tribes in Nigeria, eliminating the problems of uncertainty and inconsistency that multiple sets of law imposes.

3. Harmonization

Harmonization of the laws is desirable, as with the Land Use Act Section 5, which recognizes statutory right and customary right of occupancy. This system has successfully been implemented in Ghana.

4. Harmonization of the Principles of Natural Justice with Customary Law

Harmonization of the principles of natural justice with the customary laws is also recommended. This is analogous to the role of equitable principles in the common law, so that natural justice applies where there is a lacuna in the customary law application. Equitable principles and common law can flow in the same channel though their waters do not mix, contrary to the predictions that they would invariably create rancor. Like common law and equity, customary law and principles of natural justice can be harmonized into a single legal system and be applied side by side where necessary, the objective being to supplement the customary law and not to supplant it.