Types of Succession and Position of
Females in Inheritance of Property under Customary Law
1. Succession to Land Rights
Succession
generally refers to the devolution of a man’s self acquired property after his
death. Where the deceased had made a Will regarding the devolution of his
estate, he is said to have died testate;
but where no Will was made, his death is intestate.
We therefore have testate and intestate succession. However, even
where a man had made a Will, he will still be said to have died intestate if:
i)
In
the Will he did not appoint an executor;
ii)
The
executor appointed by him pre-deceased him;
iii)
The
executor appointed is incapable of acting or refuses to act;
iv)
The
executor appointed dies without even obtaining probate.
Succession to land rights
under customary law is generally intestate because the making of Will is
unknown to customary law. A Will is a common law concept. The nearest to a Will
in customary law is the “death bed declaration” (otherwise known as nuncupative
Wills).
That is where a dying man
orally declares how he wishes his property to be distributed after his death.
Such declarations are normally obeyed and carried out not because they are
valid Wills which should not be breached, but for fear of the perceived spirit
or repercussion of ignoring a dead man’s wish.
On the whole, therefore,
succession to land rights under customary law is intestate and it is governed
by customary law which we know varies from place to place and is largely
unwritten. However, even with the variations, two pattern of customary law of
succession has emerged. These are namely: patrilineal
and matrilineal succession. We shall
briefly discuss them one after the other.
a. Patrilineal Succession
In patrilineal succession
or pattern of succession, the line of inheritance is traced through the father
and all those who descended from the common ancestor. We mostly practice the
patrilineal pattern of succession. Here, the property devolves upon all the
surviving issues or children jointly as family property with the eldest son as
the head. If the children are all minors, the oldest surviving brother usually
acts as care-taker.
b.
Matrilineal Succession
In matrilineal pattern of
inheritance the line of inheritance is traced through the mother and all those
who descended from a common ancestress. Again, the distinction between
patrilineal and matrilineal succession is that in matrilineal succession decent
is traced through the mother. In other words, all those that descended from a common
ancestress forming a matrilineage.
A man’s immediate
matrilineage consists of himself, his mother, his full and uterine brothers and
sisters, his mother’s brothers and sisters, his matrilineal grandmother, and so
on. On a man’s death, therefore, the order of succession is as follows;
i.
His
mother;
ii.
His
full and uterine brothers and sisters;
iii.
The
issue(s) of his full and uterine brothers and sisters;
iv.
The
issue of his mother’s full and uterine brothers and sisters;
v.
His
maternal grandmother.
In certain communities
like the Yorubas and the Efiks, women do have the right to landed property just
as the men do, though it does not extend to the headship of the family. The
major characteristics of this type of succession are;
a. A child cannot inherit from his
father. His succession rights are in his mother’s family, that is to say his
mother’s brothers and sisters.
b. Men and women are treated alike
c. Illegitimacy does not affect the
rights of a successor. Thus, the test of succession is that of origin from one
matrilineal descent.
It is worthy to note that
a child born out of wedlock during the subsistence of a marriage under the Marriage
Act is illegitimate whether or not he has been acknowledged by the father. But,
under customary law the reverse is the case. The child may be acknowledge by
the father – and ipso facto becomes
legitimate.
Please note that the customary law governing succession to land is the “lex
situs” (that is to say, the law of the place where the land is situated). Under customary law, when the intestate has
only one wife and all the children are from that one wife, there is usually no
or little problem. In such a case all the children succeed irrespective of sex:
Adesa v Ladokun (1973) 9-10 SC 55. But, where the intestate has many
wives or more than one wife; problems may arise.
Among the Yoruba’s the
sharing is normally done according to the number of wives (per stripes or idi
igi) or number of children (per capita or ori ojori). In Danmole v Dawodu (1958) 3 FSC 46; (1962) 1 All NLR 702 (PC),
one Suberu died intestate leaving his surviving nine children by four wives
married according to Yoruba customary law. There were also a number of grand
children. At the trial, the plaintiffs failed to prove the existence of a Will,
but adduced evidence of a Yoruba Native Law and Custom of Lagos known as
“Idi-Igi”; whereby the estate of an intestate is distributable according to the
number of mothers of the children of the intestate.
On the other hand, the
defendants claimed that the proper and appropriate native law and custom of
Lagos in the circumstances was known is “Ori-Ojori – distribution according to
the number of children. The Federal Supreme Court held on appeal that the
distribution should not be among all the nine children (per capita); but into
four shares (per stripes) according to the number of wives. This decision was
reluctantly followed by Adefarasin J. (as he then was) in Salako & Others v Salako
(1965) LLR 136.
2.
Position of Females in Inheritance
(a)
Daughters
The general rule is that daughters
occupy the lower position in matters of inheritance to real property as
compared to theirs brothers. It has never been doubted that while they remain
unmarried they are entitled to remain in the family house and to farm in the
family land. But, upon marriage and while the marriage continues and she lives
with the husband, she is deemed to have transferred from her own family to that
of her husband and so she has no temporary or permanent right of occupation on
family property as she had before marriage.
The exception is that upon being
deserted by her husband her rights on the family house and land revives. This is
in tandem with the opinion of Carey J. in Coker
v Coker (1978)1 NNLR 83, to the effect that a daughter who has left the
family house upon marriage has a right to return to it on deserting or being
deserted by her husband.
Also, the fact that traditional
rights of female children to family land is inferior to that of the male
children is brought out in the case of Omoniregun
v Sadatu (1888), where it was held inter alia that “females cannot inherit land, they cannot have the
right to stay in the house”. The court further held that a decision that women
are entitled to the landed property under native law and custom will strike at
the very root of native ideas on the subject of family property. By the same
token, in Lopez v Lopez (1924) 5 NLR 50, it was held that in the native law and
custom of the Yoruba’s in Lagos, a female has no right to inherit the land.
(b)
Widows
The general rule of succession is
that a widow or widows of a deceased man are not included in the term family
and as such they do not therefore acquired right in the real property of the
deceased as per children of the deceased. Such widows have interest in the
family land of the husband’s family house for the rest of their lives and it
does not seem to matter whether they have children or not.
Under Yoruba native law and custom, a
wife cannot inherit her husband’s property because she herself is like a
chattel, to be inherited by a relation of her late husband: per Jibowu FJ. in Suberu v Summonu. By the same token, in
Fakoya v Ilori (1983) 2 FNC 602, the
plaintiff/appellant claimed against the defendants/respondents for a
declaration of title and recovery of possession of a piece of land in Oyo
state. It was held that the widows of a deceased owner are not competent, under
Yoruba customary law to effect a valid sale of a property of the deceased;
because upon intestacy, devolution of property follows the blood and a wife or
widow not being of the blood has no claim to any share of the inheritance.
In
fact, in Akinubi v. Akunubi (1997) 2 NWLR (Pt. 486) 144 at
159; ONU JSC stated thus:
A widow under an intestastacy is regarded as part of
her deceased husband’s estate to be administered or inherited by the deceased’s
family. It is for this reason that under customary law a widow cannot be an
administrator of the estate of her deceased husband.
However,
where a woman marries under the statute, succession to the estate is regulated
by the Marriage Act. Thus, in Johnson
v Macaula (1961) All NLR 743, it was held that the property of a
Yoruba woman devolves as family property on her children in common, even under
native law and custom and that the descendant of such a woman are equally
entitled to the enjoyment of the said property.