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A Critical Analysis of the Laws of Inheritance in the Southern States of Nigeria

Published online by Cambridge University Press:  02 July 2015

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Abstract

This article critically examines the customary laws of inheritance in the communities of southern Nigeria. It argues that the rules are skewed against female beneficiaries, both wives and children. It also argues that courts faced with such customs should subject them to the repugnancy test contained in the Evidence Act 2004, the Constitution of the Federal Republic of Nigeria 1999 and other international conventions to which Nigeria is party, as do the courts in Ghana, South Africa and Botswana.

Type
Research Article
Information
Journal of African Law , Volume 60 , Issue 1 , February 2016 , pp. 141 - 155
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Copyright
Copyright © SOAS, University of London 2015 

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References

1 Obusez v Obusez (2001) FWLR (pt 73) 25. In this case, Aderemi J.C.A (as he then was) opined (at 40) that “where however, a person who is subject to customary law went on to transact a marriage under the Act this raises a presumption that the distribution of his estate shall be regulated by the Marriage Act. This presumption can be rebutted by the manner of life of the deceased suggestive that the deceased wanted customary law to apply.” See also Cole v Cole (1898) 1 NLR 15.

2 Obusez, ibid, Coleman v Shang (1961) AC 481.

3 Oyewale v Oyewale (1987) 2 NWLR (pt 56) 238.

4 Ugbomai v Ibeneme (1067) FNLR 257.

5 SNC Obi The Law of Property (1963, Butterworth) at 153; EI Nwogugu Family Law in Nigeria (revised ed, 1977, Heinemann Educational Books) at 412; E Akintunde The Principles of African Customary Law (1997, Emiola Press) at 141.

6 CG Okojie Ishan Native Law and Custom (1960, John Okwesa & Co) at 90.

7 Kharie Zaidan v Fatima Khali Mehsseh (1873) All NLR 740 at 753.

8 For instance, in Thompson Oke and Others v Robinson Oke and Other (1974) 1 All NLR (pt 1) 443, the Supreme Court of Nigeria held that, with regard to succession, the Itsekiri customary law and that of the Urhobo are the same.

9 Shang v Coleman (1961) AC 481.

10 Cap M6 Laws of the Federation of Nigeria 2004.

11 In Obusez, above at note 1, the Court of Appeal, Lagos Division, held that, prima facie, customary law governs the distribution of the deceased's estate if the deceased was subject to customary law and married under native law and custom, or if he died without having gone through any form of marriage. See also Tapa v Kuka (1945)18 NLR 5 and Olowu v Olowu (1985) 3NWLR (pt 13) 372.

12 Mariyama v Sadiku Ejo (1961) WRNLR 81; Re Alayo 18 NLR 5; Asiata v Gancello (1900) 1 NLR 41.

13 Jadesimi v Okotie Eboh (1996) 2 SC NJI; Cole v Cole, above at note 1.

14 Nezianya v Okoagbue (1963) ALL NLR 358.

15 Ofo is the central symbol of Igbo spirituality. It is a sacred staff of authority, and an emblem symbolizing the links between Chukwu Okike [the Creator of all] and man, the dead and the living, the living and the unborn.

16 Nwogugu Family Law in Nigeria, above at note 5 at 401.

17 Id at 136.

18 Ibid.

19 Ugbomia v Ibeneme (1967) FWLR 257.

20 Ejiamike v Ejiamike (1972) 2 ESLR 11; see also Ngwo and Nwojei v Onyejana (1964) 1 ALL NLR 3326.

21 Arase v Arase (1981) 5 SC 36.

22 (1967) NMLR  245 at 247.

23 Okojie Ishan Native Law, above at note 6 at 90.

24 Ibid.

25 Hon Justice (DE) Dorubor “Relevance of customary courts system in the administration of justice in Delta State” (paper presented at the Nigerian Bar Association, Warri Branch, 1997). See Thompson Oke and Another v Robinson Oke and Another (1974) 3 SC 11.

26 MP Okumagba History of Urhobo (1934, Ikorodu) at 88.

27 GBA Coker Family Property Among the Yorubas (2nd ed, 1966, Sweet & Maxwell) at 364.

28 Nezianya v Okagbue (1963) ALL NLR 358.

29 AB Kasumu and JW Salacuse Nigerian Family Law (1966, Butterworth) at 291.

30 Babalola Adisa v Yesufu Ladokun (1973) 9–10 SC 35; Adesye v Tawio (1956) 1 FSC 84.

31 Sogbesanv Adebiyi (1941) 19 NLR 26.

32 Thompson Oke, above at note 25. Akintunde The Principles, above at note 5, Amodu v Obayomi (1992) 5 NWLR (pt 242) 503. See also Lopez v Lopez (1924) 5 NLR 50.

33 (1958) 3 FSC 46.

34 Akintunde, id at 103. See Taiwo v Lowani (1961) ANLR 733, in which it was held that neither igikankan nor idi-igi is repugnant to natural justice, equity and good conscience.

35 Awobobu v Awobodu and Others (1979) 2 LRN 339; Suberu v Sunmonu (1957) 2 FSC 53. See also Dosumo v Dosumu (1954) 14 WACA 527.

36 Cap 103 Laws of Delta State 2007.

37 See for instance sec 24 of the Delta State Customary Court Edict 1997 and sec 44(1) of the Customary Court of Appeal law of Delta State, 1992.

38 (1997) 7 NWLR (pt 512) 283 at 304–05.

39 Id at 305.

40 A Reis Monteiro Ethics of Human Rights (2014, Springer Science & Business Media) at 333.

41 African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, cap 10 Laws of the Federation of Nigeria, 1990, cap A9 Law of the Federation of Nigeria 2014.

42 (2004) ALL FWLR (pt 211) 1406.

43 Id at 1423–24.

44 (2014) 234 LRCN I.

45 Nwogugu Family Law in Nigeria, above at note 5 at 407, Akintunde The Principles, above at note 5 at 106–07.

46 Nwugege v Adigwe and Others (1934) 11 NLR 134.

47 TO Elias Nigerian Land Law and Custom (3rd ed, 1962, Routledge & Paul) at 244.

48 (1949) 19 NLR 38.

49 ENU Uzodike “Women's rights in law and practice: Property rights” in AO Obilade (ed) Women in Law (1993, Southern University Law Centre and Faculty of Law, University of Lagos) 300 at 326–29.

50 Ibid.

51 (1997) 2 NWLR (pt 486) 144.

52 (1965) GLR 13.

53 Id at 16.

54 (2007–08) SC GLR 1135.

55 2005 (1) SA 580.

56 Id, para 91.

57 Unreported MAHLB-000836-10) (2012) BWHC (12 October 2012).

58 Id, para 205.

59 This system is a practice among the Igbos in Nigeria, under which people are sacrificed to the gods in the Igbo community and they assist the high priest of the traditional religion in serving the deities or the gods in their shrine. Thereafter, such people and their descendants become outcasts forever.

60 Abolition of Osu Caste System Law, 1956, cap 1, Laws of Eastern Nigeria, 1963.

61 (1967) NMLR 247.

62 Above at note 51.

63 Above at note 44.