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PROJECT TOPIC AND MATERIAL ON LEGAL PLURALISM AND THE LAW OF INTESTATE SUCCESSION IN SOUTH-WEST NIGERIA

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ABSTRACT

Legal pluralism is the co-existence of two or more laws, norms, values, and practices within one legal district that determine the decisions of courts in intestate succession. This has complicated the uncertainty that exists in intestate succession in Nigeria particularly among the Yorubas of South-West Nigeria. Intestate succession which under customary law governs issues of personal relation such as marriage and divorce, legitimacy and legitimation, validity of wills, adoption of children and succession but legal pluralism creates an atmosphere of legal confusion, whereas, there is expectation of a single codified law guiding intestate succession under customary law. This study examined the dilemma and complexity of legal pluralism as it affects intestate succession under customary law in South-West Nigeria.

 

The research adopted doctrinal methodology, historical and comparative approaches that examined theories, laws and decisions of both inferior and superior courts based on choice of law rules. Sources of data included statutes, subsidiary legislations, rules of customs obtained from case law, journals, books, Internet sources and law reports. The study was interpretative in nature and provided normative content evaluation of legal reasoning in case law on intestate succession.

 

Findings revealed that Nigeria has not adopted appropriate mechanisms to harmonize the multiplicity of intestate laws. It was found that there were two broad modes of inheritance under the Yoruba customary law, viz Idi-igi (per capita) and Ori-ojori (per stirpes). Furthermore, the rule of inheritance is not equitable particularly where  Dawodu, the head of the family doubles as beneficiary and a trustee of the estate on behalf of other beneficiaries.   On the contrary, Islamic law spells out the quantum of assets (ogun-inheritance) to be inherited without undue advantage to the beneficiaries. The study found that the complication emanated from the various choice of law rules contained in High Court law, Marriage Act, Administration of Estate law, Customary Court Law on one hand and decisions of courts on the other hand.

 

The study concluded that the lack of unification of intestate succession rules in Nigeria is largely responsible for the series of contradictory decisions of various levels of courts. The study recommended the reform of customary law in Yoruba land to correct existing inequalities, enlightenment campaign through mass media on equity of apportionment as proposed in the distribution of intestate estate. The establishment of Law Reform Commission at the State and Federal levels is imperative to permit women to inherit their husband’s estates, while the judiciary should be proactive in implementing Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended.

 

Keywords: Pluralism, Legal, Intestate Succession, Estate, Conflict

 

Word Count: 421

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                                  

  • Background to the Study                                                                               1
  • Statement of the  Problem                                                                              5
  • Objective of the Study                                                                                   8
  • Research Questions                                                                                         8
  • Methodology                                                                                                  8
  • Significance of the Study                                                                               9
  • 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

Content                                                                                                                       Page

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

Content                                                                                                                      Page

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

Content                                                                                                                      Page

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

Content                                                                                                                       Page

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

Bibliography                                                                                                                    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 [1] (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 [email protected] ……………………………….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 WACA…………………………………………..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[1] 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[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 Yoruba land 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 means embracing three parts or aspects. That is, existing in three parts, made up of three aspects as against one or two. The concept employed by the researcher to illustrate a condition where three legal systems co-exist under an umbrella of a legal system. Legal pluralism refers to a situation where there are more than two legal systems co-existing within a locality without spatial separation. The essence is that it covers unspecified number of such courts.[28]

 

1.8.4    The Yoruba States of South-West  Nigeria

Yoruba has dual connotations. That is, it is the name of a nationality of certain people / race and also the language of the people. The major ethnic group in the South Western part of Nigeria is the Yoruba which is the major concern of this research work. Some proportion of them are found in Edo, Delta, Kwara and Kogi states, Benin Republic, Togo and also in Brazil. The states concerned are: Ekiti, Ogun, Osun, Oyo, Ondo and Lagos.9

1.8.5    Geographical Territory and Population

The Yoruba land presently consists as earlier stated of six states. This is an area of about 120,000,000 square kilometers,[29]with a current population of about 33,500,000 constituting about a quarter of total population of Nigeria[30]

1.9 Synopsis of Chapters

A synopsis of the chapters for this thesis is as follows:

Chapter one contains introduction to the entire study and it is divided into background of the study, statement of problem, objectives of the study, research questions, research methodology, significance, scope of the study, gap to fill, synopsis of the chapters and conceptual clarifications. Chapter two deals with literature review and the theoretical framework. Chapter three focuses on the sources of Nigerian law: Historical perspective. Chapter Four deals with the Post British development of law of Succession.  Chapter five is concerned with discussion of intestate succession under the Customary and Islamic law. This chapter also covered, nature, origin, scope, practice and the mode of distribution of intestate estate under customary and Muslim law. Chapter six deals with choice of law processes. Chapter seven focuses on the way forward in legal development in intestate succession. Chapter eight contains the summary, conclusion, recommendations, findings, contribution to knowledge and recommendations for further studies.

 

[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.

[28] Agbede  supra pp 14-16; See Brian Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global (in Sydney Law Review Vol. 30: 2008) pp 375-380

[29]  Atanda J A, an Introduction to Yoruba History, (Ibadan: Ibadan University Press (IUP), 1980) pp. 36-8; See also Fadipe, Sociology of the Yorubas, (Ibadan: Ibadan University Press (IUP) 1978) p 56.

[30] Ibid

 

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