•When It Comes To Sale Of Land Of Family Property
In a previous edition, the Sale of land pertaining to family property was discussed exhaustively. Thus, it is pertinent that the rules pertaining to family membership and rights in intestate succession is also discussed to put the discussion in a proper perspective. It is imperative to state that irrespective of the fact that the Nigerian legal system is substantially influenced by the English law, it is also pluralistic in nature. In essence, the English law coexists with the application of Indigenous customary laws and Islamic law which is reflective of the need to respect the values of diverse multicultural groups and religious affiliations. Despite the pluralism of the legal system, the Constitution occupies a central position as the supreme and fundamental law of the land. Thus, the enforceability of customary laws is anchored on the duality test of repugnancy and incompatibility test. This test demands that customary law must not be repugnant to natural justice, equity and good conscience. In addition, it must not be incompatible with any written law.
The rule of thumb is that the Law of intestacy succession is directly connected to the type of marriage the deceased person contracted during his lifetime. In the absence of a valid will, the estate of an intestate deceased person who married under the Marriage Act will be subjected to the Administration of Estate Law of the state where he resided. On the contrary, the estate of an intestate deceased person who married under customary law will be subject to Customary law of his ethnicity. The focus of this discussion will be on Intestacy succession in accordance to customary law which is very vast and will be considered in series of editions.
Intestacy succession according to Customary law is a very complex area of law owing to the fragmentation and peculiarity of various ethnic groups in Nigeria. Customary intestacy rules are as diverse as the number of ethnic groups. Despite the fragmentation, a common denominator across most of these customary laws is that succession by blood is the benchmark and not marriage ties. A person laying claim to an estate of a deceased person must establish blood ties before his claim can be valid. However, the claims of family members are not equal but determined in accordance to priorities. The first issue which is of prime importance is to consider how a family member is determined for the purpose of succession.
Under the Yoruba customary law, where the deceased person is survived by children, his real property devolves exclusively on them and their descendants. The devolution excludes the deceased’s siblings and his widow. Likewise, a widower cannot inherit his wife’s estate. However, the principle of right of survivorship discussed in an earlier edition will apply if the property was acquired by the deceased and his spouse specifically as joint tenants. Where the property was acquired as tenants in common, the share of the deceased will devolve on his descendants. In a circumstance where the deceased died childless, the parents and the siblings are favoured and not the spouse. The parents take priority over the siblings but where the parents are also deceased; the siblings will take in equal shares. It is also established that where a childless widow dies, on no account can her estate devolve upon her husband’s relatives but her relatives.
A common issue that often arise where the siblings inherit the estate of a deceased person who died childless is whether the inheritance should be on the full blood siblings or half siblings. The law favours the full blooded siblings over the half siblings. Further, where a childless deceased person inherited a given property from either of his parents, the law is that the property will be inherited by relations of where the property came from. In essence, if the property devolved on a childless deceased person through his paternal lineage, the property will be inherited by the paternal relations likewise if it was inherited through maternal relations.
The next issue worthy of consideration is the mode of distribution where the deceased was survived by children under the Yoruba law and customs. The modes of distribution can either be per stirpes (idi igi) or per capita (ori ojori). Per stirpes refers to a mode of distribution according to the number of wives or mothers who bore children for the deceased while per capita refers to equal distribution according to the number of children of the deceased. However, the universal and favoured mode under the Yoruba culture is per stirpe. In essence, the properties of a deceased person who had ten children from three different women would be shared into three parts and not ten parts. In fact, if one of the wives was childless, the property would be shared into two parts without any recourse to the childless widow. In a circumstance where a concubine had a child for the deceased, an equal part will go to that child insofar the deceased or his family members acknowledged existence of the child. Once the estate has been divided per stirpes, the usual mode of internal distribution within the branch is equal distribution.
Despite the fact that the universal mode of distribution favoured is per stripe, a family head may apply his discretion by distributing the estate per capita to forestall an impending dispute in the family but he is not under compulsion to do so. The decision of the family head as to the mode of distribution usually prevails. It is also imperative to state that the inheritance rights of the Yoruba people do not discriminate between the female and the male genders. Their inheritance rights are equal. In some cases, women have been known to emerge as family heads. The per stripe mode of distribution has also been accorded legal backing by Nigeria courts which recognised the mode as a prime and an integral part of the Yoruba culture. The courts have also ruled on numerous occasions that it is not unjust and inequitable and that the decision of the family head on whatever mode of distribution is final and binding.
Regarding the inheritance rights of grandchildren, their rights in their rights in their grandparent’s estate do not arise until the death of their parent. This is so by the principle of representation. In a situation where a man predeceases his father but is survived by children, his share in his father’s estate is not extinguished but will rather pass to his children. It is of no consequence if the child is a minor or the number of children involved. The same mode of per stirpe will apply. Another issue which also generates disputes is the rights of children whose parent died during their age of minority. Under the Yoruba law and custom, the estate of a deceased person does not pass unto his siblings or other family members under any condition once it is proven that he was by survived by children. However, where the children are minors, the question which often arises is who should act as the trustee or caretaker of the estate until the children attain the age of majority. In most cases, the siblings of the deceased person would take over the estate. This position is recognised by the law only in a circumstance where the mother of the children is unavailable, unfit or mentally incapacitated. The law recognises that the mother of the children is in the best position to protect the minor’s interest. A party who is inclined against the mother administering the estate for the benefit of the children would have to establish strong evidence to displace the rights of the mother. Once the children attain the age of majority, the estate must be vested in them. Title of such an estate will not vest on the trustee no matter the number of years of administration of the property.
Under the inheritance rights of the southern people with particular reference to the people of the igbo extraction and the bini people, the rules are at variance with the Yoruba culture. The succession rules of these ethnic groups are firmly anchored on primogeniture and discrimination against female children and widows. In most cultures in the eastern part, it is entrenched in their customs and traditions that female children and widows are barred from exercising any inheritance rights over landed property. Primogeniture is the rule of inheritance where the first male child inherits an estate to the exclusion of the other siblings or holds the estate as a trustee-beneficiary on behalf of his siblings.
Under the Bini culture, after the final funeral rites have been performed, the family distributes the property. The principal properties of the deceased person will be inherited by the eldest son particularly the principal house where the deceased lived in his lifetime commonly referred to as the Igiogbe or obi in the igbo culture. Some personal effects and other real properties may be distributed to other male children. Where the only real property of the deceased person is the igiogbe, the first male child will inherit it but may accommodate his other siblings in the house subject to their good behaviour. If the deceased person has other real property aside the igiogbe, the igiogbe will still devolve on the first son and will also be entitled to share in the other real properties with his siblings. This law of the binis is so potent that the provision of a will cannot vitiate it. In essence, a deceased person by his will cannot bequeath this igiogbe to another person except the first son. The transfer of an igiogbe to another person who is not the first son in a will is invalid and of no effect.
In the igbo culture, the first son inherits the obi exclusively but in practice, he gives part of it to his other male siblings. He has the right to manage and administer other properties of the deceased person for the benefit of himself and his siblings. The estate of a deceased person who dies childless or without a male child will automatically be inherited by his brothers. Where there are no brothers, the estate will pass on to his nephews. However, in a recent decision by the Supreme Court in 2014 ushered in a new era to the igbo customary laws. The court declared that the discriminatory practices against female children are in conflict with the non-discrimination provisions of the constitution. In essence, these practices are unenforceable as they are incompatible with a written law which is the Constitution, repugnant to natural justice, equity and good conscience. In subsequent editions, other areas of customary law and Islamic law of succession will be exhausted in great detail.
Olamide Onifade is a practising lawyer and the founder of Olamide Onifade & Associates.
2nd Floor, 149, Ogudu Road, Ogudu, Lagos
Tel: 09093335636
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Email:barr isterolamideonifade@gmail.com
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