CUSTOMARY SUCCESSION LAW IN MODERN IBO LAND; JUDICIAL AND LEGISLATIVE DIMENSION IN FOCUS

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Department of Law

The law of succession is all about the transfer or devolution of property on the death of the owner[1]. It is the manner or form by which property devolves. Though there may not have been any law or statute enacted by a legislature for this purpose, yet each community have had their own beliefs and practices regulating same. Thus, it was held,[2] that it is the assent of the natives of a particular community to practices and customs in that community that makes such practices and customs valid[3]. Customary law embodies customs as practiced by the people which they regard as binding on them[4]. Customary succession therefore, is concerned with the way and manner recognized and accepted by the people in which properties are transferred locally according to the customs, traditions and practices of the people.

INTRODUCTION Haven noted above the fact that succession have been since the existence of man upon the earth, it therefore means that succession in Africa and in particular among the Ibo speaking peoples of Nigeria did not begin with colonization. Thus even before the colonization of Africa, her indigenous people had their own established culture, customs, practices and way of life which regulated relationships between of these communities, including succession[5]. Customary law is any system of law different from common law and a law enacted by a competent legislature in Nigeria, but which is enforceable and binding within Nigeria as between the parties subject to its way[6]. Customary succession therefore, is succession that is not in accordance with the common law or a statute enacted, but in accordance with the traditions, customs and practices of the local people which are enforceable and binding between the parties which are subject to it. This paper therefore the examines nature of succession as practiced according to the customs, traditions and practices of the Ibos of Anambra, Enugu, Ebonyi, Imo and Abia states, (South-Eastern states) of Nigeria, legislative and judicial interventions and their impact on these customary practices, advantages and disadvantages of customary practices if any, recommendations and conclusion. WHAT IS SUCCESSION? Succession is the assumption of position or title, the right to take up position or little, or the order in which a position is taken up[7]. According to Kerridge R[8], it is concerned with the transfer or devolution of property on death[9]. Succession has been defined as "the order in which or the condition under which one person after another succeeds to a property, dignity, title or throne; the act or process of a person becoming beneficially entitled to a property or property interest of a deceased person[10]". Succession can either be testate or intestate. Testate succession is based on the provision of a will, while intestate succession is that which is without a will. In this paper however, we are concerned with intestate succession INTESTATE SUCCESSION Intestacy is a condition in which one dies without a valid will[11]. It refers to the laws of the state which provides for the inheritance of property from a person who dies without leaving a will[12]. It is the body of law that determines who is entitled to property in the absence of a valid last will and testament or other binding declarations[13]. Intestacy could be total or partial. It can be said to be total where there is no will at all or even if there was, it has been invalidated. On the other hand intestacy can be said to be partial in either of the following circumstances. First, where a particular gift or gifts lapse, secondly where the entire estate is not fully covered by the will or thirdly some aspects of the will have been invalidated. LAWS GOVERNING INTESTACY IN NIGERIA There is no one general law on intestacy applicable throughout Nigeria. Intestate succession therefore in Nigeria is governed by different rules and laws as a result of the pluralism of family law[14]. Besides, since the issue of succession, is not on the exclusive legislative list but residual[15] it therefore means that each state of the federation apart from the customs and traditions of the different tribes and ethnic groups in Nigeria are at liberty to enact laws regulating succession. Thus is as provided by the 1999 Constitution of the Federal Republic of Nigeria (as amended)[16], only the formations, annulment and dissolution other than Islamic and customary manages that the Federal Government has legislative competence[17]. The first Regional Instrument on succession was enacted by the old Western Region in 1959[18]comprising of the present day Oyo, Ogun, Ondo, Osun, Ekiti, Edo and Delta States. Today, there are other laws governing intestate succession in Nigeria which includes: Constitution of the Federal Republic of Nigeria 1999[19] Administration of Estates Law 1959 which is applicable to states of the old Western Region[20] Administration of Estates Law, Lagos State[21] Administration and succession (Estates of Deceased Persons) Law, 1987[22] applicable to Anambra, Enugu and Ebonyi States Case law[23] Islamic Law[24] Customary Law[25] From the above, it is clear that succession in Nigeria is governed by statute, case law and customary/Islamic law. However in this paper, we are concerned with customary succession as affected by statutes and judicial decisions with particular reference to the Ibos occupying Anambra, Ebonyi, Enugu, Imo and Abia states, the South-Eastern Geopolitical Zone of Nigeria. THE NATURE OF CUSTOMARY LAW SUCCESSION Customary law succession is the succession that is governed by the customs, beliefs, traditions and practices of the indigenous people. Customary laws are "customs that are acceptable as legal requirements or obligatory rules of conduct, practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they are laws"[26]. Accordingly, the customary law of an area or a community encapsulates all the beliefs, social institutions and religion that characterizes and are unique to that particular society[27]. Customary laws therefore, are the body of rules governing a particular group of people[28]. Customary succession therefore, being succession that is according to the customs, beliefs and traditions (customary laws) of the people is mainly intestate, i.e. without a will[29]. There are however very few instances where customary oral wills are made and where such declarations fulfils certain conditions they are valid and binding[30]. Apart from the fact that customary succession is basically intestate, another characteristic feature of customary succession is that there is no one general rule of customary succession among the different communities. Customary succession rule or law like customs, traditions and beliefs, it differs from community to community[31]. Therefore, we shall in this paper consider customary law succession among the Ibos of the South-Eastern Region of Nigeria. THE IBO CUSTOMARY LAW OF SUCCESSION Customary succession among the Ibos is predominantly patrilineal[32]. Inheritance is therefore governed by the principle of primogeniture in the sense that the eldest son of the deceased succeeds to his estate[33]. This is known as "Okpala" or "Diokpa"[34]. The Okpala who is the eldest son automatically on the death of his father steps into the shoes of the father as the head of the family[35]. In a situation where the deceased had more than one wife, the eldest sons of each of the wives take part in the sharing of the deceased estate[36]. There are however a few communities where succession is matrilineal[37]. For instance, in Ohafia division, according to the customary law manual[38] a man’s intestate estate is inherited by his maternal relatives, their sons and daughters[39]. In other parts of Ibo land where succession is patrilineal and by primogeniture, the deceased eldest sons stepping into the father’s shoes as the head of the family is entitled to the compound or the immediate surroundings and any other special property/privilege the father enjoyed why he was still alive[40]. This right includes occupation of his deceased father’s dwelling house, though in practice, he may chose to live in his own house and decide which of his brothers should occupy the building or get a share of land for erecting a building[41]. It should however be noted and understood that although the eldest son inherits his deceased father’s real and personal property, he holds the landed property as trustee-beneficiary for his other brothers and for himself[42]. Thus he has the right of control over his deceased father’s land and must use them for the benefit of his younger brothers[43]. However, where the deceased is not survived by any male issues his estate is inherited by his surviving brothers of full blood, and where there is no brothers of full blood, the deceased father inherits[44]. In Imo State, among the Awo- Idemili people where succession is referred to as "ekpe", land can be inherited from both lineage and non lineage source[45]. It is lineage source where the property in issue is that which had passed from proceeding generations and non-lineage source when it is otherwise[46]. The customary inheritance procedures in this community is that, while the decease eldest son inherits the deceased father’s dwelling house and compound, the youngest son inherits the mother’s hut and the backyard[47]. But these customary practices have undergone changes as a result of factors like population, literacy, civilization etc[48]. It should however be noted that wives and daughters does not have any right of inheritance under the Ibo Customary Succession Law to their deceased father’s movable and immovable properties[49]. According to the learned author, "personal property including wives and slaves descends to the eldest son as heir, or failing a son, to the oldest brother or male relative"[50]. This principle was affirmed by the Supreme Court in Nezianya v. Okagbue[51] where it was held that "under the native law and custom of Onitsha, a widow’s possession of her deceased husband’s property… however long it is… does not make her owner, she cannot by efflusion of time claim the property as her own…she has however the right to occupy the building or part of it, but this is subject to good behaviour". This position was further affirmed by the Supreme Court in Nzekwu v Nzekwu[52] where the court maintained that a widow’s interest in the deceased husband property/house is possessory and not proprietary and as such, she cannot dispose of it. The only ground in which females can inherit under the Ibo customary law of succession is under the "Nrachi" or "Idegbe" institution[53]. Under this practice, where a man dies without a male child to inherit his estate, the daughter will remain unmarried in her father’s house with the intent of raising children in her father’s home[54]. The legal interest in the decreased father’s estate vests in her until she gives birth, and only her male children can succeed him according to the rule of primogeniture[55]. However, where a female dies being unmarried and not a "Idegbe" her estate is inherited by her full blood brothers or father by default; and where there is no surviving father or brothers, the half brothers will inherit her. The sisters can never inherit her[56]. Where the female is married and she has properties which she acquired before marriage, such reverts back to the maiden family; but movable properties acquired by the wife before manage if taken by her to her husband’s house, goes to the husband or his family on her death[57]. Properties acquired by a married woman after her marriage goes to her husband and his family on her death[58]personalities like pots, cloths etc of a deceased wife, goes to the daughters. LEGISLATIVE INTERVENTION AS REGARDS IBO CUSTOMARY LAW OF SUCCESSION 1. THE CONSTITUTION In Nigeria, the Constitution[59] being the GRUNDNORM of all other laws has provided for inheritance/succession in the Residual List. The Constitution provides that[60] the constitution is supreme and its provision binding on all authorities and persons throughout the Federal Republic of Nigeria, and any other law inconsistent with the provisions of the constitution, shall to the extent of the inconsistency be void[61]. Besides, section 42 of the Constitution[62] (as amended) provides for the right from freedom from discrimination. Sub-section (2)[63] of the above section confers on children born outside wedlock, freedom from discrimination and the right of inheritance under intestacy whether under statute or customary law. Thus in Salubi v Nwariakwa[64] where the decease Chief T.E.A Salubi was married to Mrs. Angela Salubi under the Marriage Act in 1939 in which two children were born, namely to Appellant, Dr. T.E.A Salubi and the Respondent, Mrs. B. Nwariakwu. The deceased had two other children out of wedlock by two other women. On his death intestate in 1982 the appellant (his son) and his widow were granted Letters of Administration over the estate in 1985. Due to the age and poor health of the widow, the appellant became the sole administrator of the estate. The respondent not being satisfied with the way the estate was being administered by the appellant instituted this action. The appellant had contended that the two sons born to the deceased outside wedlock cannot be considered as legitimate for the purpose of inheritance. But the Supreme Court applying the provisions of section 39(2) of the 1979 Constitution