An Analysis of the Principles and Implication of Intestacy Under Nigerian Customary Law

CONTRIBUTOR: OBY UMEH Esq.

INTRODUCTION

The concepts of intestacy are fundamental to understanding inheritance law, particularly under Nigerian Customary Law. Testacy refers to a situation where a person dies leaving a valid will, thereby dictating the distribution of their estate^[1]. Conversely, intestacy arises when a person dies without a will, resulting in the distribution of their estate according to statutory or customary rules^[2]. These concepts serve as pivotal determinants in delineating the legal procedures for property transfer and safeguarding the rights of beneficiaries.

A comprehensive grasp of testacy and intestacy under Nigerian Customary Law is imperative due to the nation’s multifaceted legal environment, encompassing statutory legislation, common law principles, and diverse customary practices. Nigerian Customary Law varies significantly among different ethnic groups, each with its own set of rules and traditions governing inheritance. As such, the principles of testacy and intestacy under Nigerian Customary Law must be examined within the context of these diverse customs to appreciate their implications fully.

The significance of comprehending these concepts under Nigerian Customary Law cannot be overstated. Firstly, it furnishes a structured framework for the orderly transfer of property subsequent to demise, thereby mitigating the likelihood of disputes among heirs and beneficiaries. Secondly, it ensures adherence to the wishes of the deceased, facilitating the equitable distribution of their assets in consonance with their intentions, in cases where a valid will exists. Moreover, it affords protection to vulnerable family members, including widows and children, who may otherwise face disadvantageous circumstances under certain customary practices.^[3]

This article aims to provide a comprehensive analysis of the principles and implications of intestacy under Nigerian Customary Law. It will examine the rules of inheritance in the absence of a will and the potential disputes and challenges that may arise. Through the use of case law and scholarly references, this article seeks to illuminate the complexities of inheritance under Nigerian Customary Law and underscore the importance of seeking legal advice in these matters.

DISTRIBUTION OF PROPERTY UNDER NIGERIA CUSTOMARY LAW.

The diversity of Nigerian Customary Law pertaining to the transfer of a deceased person’s property upon their death is undoubtedly explained by ethnic distinctions, just as they do by other areas of customary law. This indicates that there are as many variations in Nigeria’s succession law as there are ethnic groupings living within the country. Nonetheless, several ethnic groups have such a well-known and distinct succession law that it is impossible to avoid mentioning them in any significant study on that area of the law. Consequently, an individual analysis of the Benin and Igbo succession laws is warranted.

The Benin Customary Law

The Benin customary rule of succession stands as a distinctive feature within legal customs. It can be characterized as sui generis, unique in its essence. Specifically, the customs of Benin are distinguished from those of other ethnic groups in Nigeria, albeit sharing certain similarities. Notably, Benin’s customs uniquely incorporate the primogeniture rule, which holds significance in connection to the father’s second burial rites.

Under the customary Law of succession among the Benin people, inheritance follows the bloodline, with the children of the deceased inheriting their father’s property upon his demise. While this customary practice typically adheres to patrilineal inheritance, it introduces a variation through the principle of primogeniture. This principle dictates that only the surviving male children of the deceased can inherit his property, with the eldest son inheriting the primary residence, known as the Igiogbe, following the father’s final burial rites. Any remaining properties are then shared among the other children of the deceased.

According to Ogbobine,^[4] this customary law, which allows the eldest son to inherit the house where the father lived and died is called Igiogbe. To the exclusion of the other children, this law cannot be regarded as unfair or unjust because the eldest son is supposed to play his traditional role as the guardian of his younger brothers and sisters, and the custodian of the family, which is of great significance in other aspects of Benin custom. If, as the eldest son, he is to carry out the responsibilities attached to that position properly, the social and family duties should be coupled with the proprietary right to meet the obligations. Therefore, on the demise of a deceased and after the performance of the final burial ceremonies, an inventory of all his properties is taken and the okaegbe (head of the extended family), together with other senior members of the family, will share the properties among the deceased’s children as prescribed by the custom. The Supreme Court in Imaruaheru& Anor V. Aiguokunrughian & Ors^[5]  held that

“By the Customary Law in Benin, the eldest son, upon the death of his father takes over his estate as a trustee for all the deceased’s children and the moment he performs the final burial rites, he inherits the Igiogbe of his father.” (Pp. 45 paras. C)

The Igiogbe, however, is the house that the deceased lived and died in. Under the Benin Customary Law, the deceased may be offended by the actions of the first son and decide to punish him by giving the giogbe to a younger brother, such a device would be invalid under the customary law.^[6]

The Benin customary law accords little or no acknowledgement to the widow of a deceased person. Only her children, particularly the male children, are considered beneficiaries of her late husband’s estate. Egharevba^[7] even asserts that the wives of the deceased are regarded as gates and in strict customary law, a broach is given as a share of that gate to the eldest son and if there is no male issue, to the eldest female child of that gate, with the result that every gate should get something from the property of their deceased husband. In other words, nothing is given to the wife at all and she is not given any consideration in the scheme of distribution of the property of a deceased person.^[8] She is merely regarded as a gate for the benefit of her children. This system of distribution is also known as the urho, which literally translates to per-stirpes, i.e. the property of a deceased Benin man will be distributed according to the number of wives he had while he was alive.^[9]

The Benin Oba, who maintains significant influence as the keeper, protector, and arbiter of the Benin ethnic group’s customs and practices despite competing forces of borrowed English law and statutory enactments operating in the Nigerian legal system, has recently modified the custom regarding succession to the igiogbe in order to reflect contemporary realities and to ensure equity among the deceased’s children^[10].

The Igbo Customary Law

The Igbo customary law on inheritance traditionally favoured male offspring over female offspring, particularly in the distribution of individually owned land, following the principle of primogeniture. In the absence of a will, the eldest son typically inherited the largest share of his father’s land, with other sons sharing the remainder equally. If the deceased had no sons, his land would devolve to his brothers, to be shared based on seniority.^[11]

The male child of the Igbo family is reckoned with in the distribution of property for the purpose of inheritance^[12]. This custom, rooted in the belief that female offspring would marry and move to their husbands’ homes, thereby relinquishing claim to their father’s property, was challenged in the case of Mojekwu v Mojekwu.^[13] The Court of Appeal rejected the notion that Nnewi customary law governed the case, asserting that any customary law discriminating against women would contravene principles of natural justice, equity, and good conscience. However, the Supreme Court, on further appeal, upheld the iri ekpe custom of property distribution, emphasizing its legitimacy.

An exception to this customary practice is recognized for daughters who consent to remain single and reside in their father’s home to perpetuate the family lineage. This practice known as nrachi or idigbe, allows daughters to inherit their father’s estate and continue the family legacy in the absence of a living male heir.

Despite longstanding customary practices, recent legal developments have brought about a shift in the Igbo customary law regarding inheritance. Section 42 of the 1999 Constitution prohibits discrimination based on sex or circumstances of birth. In the case of Ukeje v Ukeje^[14], the Supreme Court affirmed that female children are entitled to inherit their late father’s estate, regardless of the circumstances of their birth. The court declared any customary law that denies female children their inheritance rights as void and unconstitutional, as it contradicts the provisions of section 42(1) and (2) of the Constitution, which safeguard fundamental rights for all Nigerians.

IMPLICATIONS OF INTESTACY UNDER NIGERIAN CUSTOMARY LAW

When a person dies intestate under Nigerian Customary Law, the distribution of their estate follows the customary rules specific to their ethnic group. These rules often prioritize the interests of the extended family and may involve traditional practices such as primogeniture, where the eldest male child inherits the majority of the estate. This customary approach can sometimes lead to inequitable outcomes, particularly for female heirs and younger children.^[15]

Rights of Heirs

Under Nigerian Customary Law, the rights of heirs in intestate succession can vary significantly based on the specific customs of the ethnic group involved. Generally, the following principles may apply:

1. Male Heirs: In many ethnic groups, male heirs, particularly the eldest son, have preferential rights to inherit the estate. This practice is rooted in the principle of primogeniture, which is prevalent among the Igbo and Yoruba communities.

2. Female Heirs: The rights of female heirs can be limited under certain customary laws. In some cases, daughters may not inherit at all, or their inheritance may be significantly less than that of their male counterparts. However, recent legal developments have begun to address these inequalities.^[16]

3. Widows: The rights of widows vary among different ethnic groups. In some communities, widows may have limited inheritance rights and may only be entitled to a portion of the estate or specific assets. In other cases, widows may be excluded from inheritance altogether, depending on the customary laws in place.^[17]

POTENTIAL DISPUTES AND CHALLENGES UNDER INTESTACY

Intestate succession under Nigerian Customary Law can give rise to various disputes and challenges, including:

1. Gender Discrimination: One of the most significant challenges is the issue of gender discrimination. Traditional customary laws that prioritize male heirs over female heirs can lead to legal disputes and challenges based on constitutional principles of equality and non-discrimination.

2. Extended Family Claims: The involvement of the extended family in the distribution of the estate can lead to disputes, particularly when family members have conflicting interests or interpretations of customary practices. These disputes can be exacerbated by the lack of written documentation and the reliance on oral traditions.^[18]

3. Conflicts with Statutory Law: Customary inheritance practices may sometimes conflict with statutory laws, leading to legal challenges. For example, statutory laws that promote gender equality may be at odds with customary practices that discriminate against female heirs.

4. Executor Misconduct: Executors appointed to manage the estate may sometimes engage in misconduct or fail to perform their duties diligently. This can result in legal disputes and challenges from beneficiaries who feel their rights have been violated.

CONCLUSION

The analysis of the principles and implications of intestacy under Nigerian customary law reveals a delicate balance between traditional norms and modern legal systems. Central to this framework is the concept of family and lineage, which customary law prioritizes over individual preferences. In the absence of a valid will, the customary rules govern the distribution of the deceased person’s estate among surviving family members, adhering to established customs and traditions.

The implications of intestacy extend beyond mere property distribution. They impact inheritance rights, family dynamics, and social cohesion within communities. Disputes often arise in cases of intestacy, necessitating resolution through either traditional dispute resolution mechanisms or the formal legal system.

However, it’s essential to recognize that the application of customary law principles regarding intestacy can vary significantly across different regions and communities within Nigeria. While customary law remains a vital source of legal authority, its implementation is subject to the overarching framework of statutory law and the Nigerian Constitution.

1. Cornell Law School, Testacy available at https://www.law.cornell.edu/wex/testacy accessed 22^nd May, 2024 ↑
2. Julia Kagan, Intestate: Definition and State Rules. Available at https://www.investopedia.com/terms/i/intestate.asp accessed 22nd May 2024 ↑
3. Femi Atoyebi, An Overview of the Law of succession in Nigeria. Available accessed 22^nd May 2024 ↑
4. RAI Ogbobine, Materials and Cases on Benin Land Law (Midwest Newspaper Corporation, Benin City, 1974) 39 ↑
5. (2021) LPELR-58405 (P p. 45 paras. C) ↑
6. Okeaya-Inneh K. S., Benin Native Law and Custom at a Glance, (Gift-prints Associate, Benin, Nigeria, 2007), p. 48 ↑
7. O. Y. Aigbovo., ‘The Principal House in Benin Customary Law’, Published in University of Benin Law Journal, Volume 8(1), 2005 ↑
8. Egharevba J.U., A Short History of Benin, (Fifth Edition, Fortune and Temperance Publishing Co. Benin–City, 2005), p. ↑
9. D.Osemwowa U. I., The Customary Law of the Binis, (Myke Commercial Press, Benin–City, 2000), p. 28. ↑
10. PO Itua, Succession under Benin Customary Law in Nigeria: Igiogbe Matters Arising 3(7) Journal of Law and Conflict Resolution 117. ↑
11. EI Nwogugu, Family Law in Nigeria (HEBN Publishers, Ibadan, Nigeria, 2014) 416. ↑
12. African Customary and Religious Law; AN EVALUATION OF THE NIGERIAN JUDICIAL ATTITUDE TO THE IGBO CUSTOMARY LAW OF SUCCESSION available athttps://nigerianjournalsonline.com/index.php/ACARELAR/article/viewFile/2257/2201 accessed 22nd may 2024 ↑
13. (1997) LPELR-13777(CA) ↑
14. (2014) LPELR 22724 ↑
15. Usman. M. Brain, An Appraisal of Women’s Rights to Inheritance Under the Bini Custom in theLight of the Legal Framework for Testate and Intestate Successions in Nigeria available at https://nigerianjournalsonline.com/index.php/LASJURE/article/viewFile/2577/2502 accessed 22nd May 2024 ↑
16. Mujibat Oshodi, The inheritance rights of women in Nigeria. Available at: https://www.iawj.org/content.aspx?page_id=2507&club_id=882224&item_id=4986#:~:text=Another%20Yoruba%20practice%2C%20’Ori%20Ojori,from%20their%20deceased%20father’s%20estate accessed 6^th June 2024 ↑
17. Ibid ↑
18. Reginald Akujobi Onuoha Discriminatory Property Inheritance Under Customary Law in Nigeria: NGOs to the Rescue available at https://www.icnl.org/resources/research/ijnl/discriminatory-property-inheritance-under-customary-law-in-nigeria-ngos-to-the-rescue Accessed 22nd may 2024 ↑