Author: O. M. Atoyebi S.A.N FCIArb. (U.K.)., Contributor: LILIAN EKU
The Nigerian customary law can be said to be a ‘sui generis’ system of law because it is a combination of several customs and traditions in the various states in Nigeria. This however means that the customary law is not general but has several customs that guide the people associated with such customs.
The Islamic culture/law is quite different from the other customary law practices, as it reflects not only the customs of the people in such community, but also give special reverence to the Islamic Religion. As most of these procedures are actually gotten from the Quran, they practice the sharia law system.
The Sharia law is a very unique system under the Nigerian legal system. By virtue of Section 277 of the 1999 constitution, especially Section 277 (2)(a),(b),(c) and (d), a claim of inheritance of property subject to Islamic personal law is not within the jurisdiction of the High Court. Only the Sharia Court of a state has powers or jurisdiction to entertain matters falling within the adversarial ambit of the Islamic personal law. However, it is pertinent to note that if a person dies leaving a will and such will does not conform to the dictates of the Islamic law, it would be rendered void to the extent of its inconsistency.
This article would simply look into the practice and procedures by which a deceased property is being devised in Islam.
Definition Of A Will
What is a Will?
It is simply a testamentary document or instrument voluntarily made and executed according to law by a Testator with testamentary capacity (i.e. a sound disposing mind), wherein he disposes of his properties to a beneficiary and gives further instructions to be carried out as he deems fit.
A Will according to the Wills Act 1837, is a testamentary document voluntarily made and executed according to law by a testator with a sound mind, where he disposes of his properties (real or personal) to beneficiaries to take effect after his death. Simply put, it is a document written by a person wherein he/she gives detailed instructions on how all properties acquired during his lifetime should be distributed to persons of his choosing and who should administer such distribution.
Features Of A Will
THE ADMINISTRATION OF THE ISLAMIC LAW SYSTEM IN NIGERIA.
There are several statutory authorities guiding the construction and operation of wills in Nigeria. They are the Wills Act, 1837, and the Wills Laws of several states e.g. the Wills Law of Edo State, Abia, Lagos & Kaduna, and the Islamic law system.
Similarly, the customs and traditions regarding succession and inheritance vary S.3 Wills Act 1837 gives freedom for Testators to transfer their real and personal property as they see fit to whomever they choose in their Will from state to state around the country. Therefore, this article would focus on the administration of the Islamic law system in Nigeria.
However, the Wills’ laws domesticated by several states recognize the existence of customary law and state that the Testator’s freedom to dispose of their property in a Will is subject to the custom/customary/ religious laws of the land.
THE PROVISIONS OF THE ISLAMIC LAW
The Islamic law reform has changed the general practice of the Islamic succession system. The reform introduced by Islam into the rules relating to inheritance is twofold: It makes the female a co-sharer with the male (whether young or old) and also divides the property of the deceased person among his heirs on a democratic basis, instead of handing it all over to the eldest son, as is done by the law of other climes.
Islamic law and custom also provide that when a person is subject to Islamic law (i. e. he is a Muslim), he cannot will out more than 1/3 of his properties to persons other than his heirs.
This custom is recognized in S.2 of the Wills Law of Kaduna State which provides that a Testator can freely devise properties in a will, except the Testator is subject to Islamic Law immediately before his death. This provision is also recognized in the Wills Laws of Oyo, Kwara, Jigawa & Plateau States.
In the case of Ajibaiye v. Ajibaiye, the Court of Appeal upheld the decision of the Trial Court and held that the Testator’s Will was void for being contrary to the dictates of the Islamic law of inheritance. His properties were therefore ordered to be distributed strictly in accordance with Islamic law after his lawful heirs were identified.
THE PECULIAR METHOD OF INHERITANCE UNDER THE ISLAMIC LAW
i. Shares as a daughter.
Where the deceased leaves behind sons and daughters both, each daughter gets equal to half (1/2) of the share of each son. If the deceased leaves only one daughter and no son, the daughter is entitled to half (1/2) of the inheritance. In the case of two or more daughters but no son, the daughter would get two-thirds (2/3) of the inheritance and share it equally among themselves.
ii. Shares of mother(s).
If the deceased leaves a child and parents, each of the parents, mother and father, would inherit one-sixth (1/6) share of the net estate. If the deceased leaves no children and no brothers or sisters and his parents are the only heirs, the mother would get one-third (1/3) and the father the remaining (2/3) of the estate. In the case where the deceased leaves no child but leaves mother, brothers and sisters, the mother would get one-sixth (1/6) share of the estate.
iii. Share as a wife:
Where the husband dies leaving no child but his wife, the wife would get one-fourth (1/4) of his estate. If he leaves a child or children along with a wife, the wife would get one-eight (1/8). In the case of wives more than one, they would share equally from the one-eighth (1/8).
iv. Share as a sister
If the deceased is not survived by parents and children but leaves behind uterine brother and sister (brother and sister on mother’s side), each would get one-sixth (1/6) and in the case of more such brother and sisters, they would share from one-third (1/3).
In conclusion, it is clear from the customs earlier discussed that a Testator’s freedom to divide property in his Will can be restricted. It is also pertinent to note that the Islamic customary law system is a very peculiar and unique one as it specifically and mathematically shared the properties of the deceased distinctively amongst the family members, leaving no family member untouched. It is however a very commendable one as it is clearly seen that such a system of sharing would have little or no controversies even when the deceased dies without a Will.
However, the decisions of the Superior Courts in the cases mentioned seem to show that the customs will be upheld to the extent that they do not go contrary to the validity test of customary law in Nigeria (i.e. repugnancy, incompatibility and public policy).
 Y.Y Dadem, Property law in Nigeria
(2007) 18 LRLR Vol. 8911
 AL-Qur’an 4:11
 AL-Qur’an 4: 12
 Al-Qur’an 4:12
 Salihu O. Ahmed; Principles and Practice of Succession under Islamic Law