Customary Succession Law In Modern Ibo Land; Judicial And Legislative Dimension In Focus

Customary Succession Law In Modern Ibo Land; Judicial And Legislative Dimension In Focus

Abstract

Right from the beginning there has always been a transition from one generation to another generation and whatever assets or liabilities that were owned or used by one generation is usually passed or transferred to the succeeding generation.

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.

This seminar paper therefore is aimed at examining customary succession among the Ibo speaking peoples of Nigeria

Chapter One

Introduction

1.1 Background of the Study

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. 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. 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.

From the beginning of time, transition from one generation to another has been one of the characteristic of human existence. Such transition includes assets and in some cases, liabilities which are handed down to succeeding generations. It is imperative to note from the onset that African communities had their own laid down rules and established culture and customs governing their affairs, succession inclusive. In other words, despite the absence of legislations for the regulation of successions in those early communities, for any such act of succession to be valid, there must have been some sort of assent by the natives. Such successions are what today are known as Customary Succession and it is the focus of this paper presentation i.e. Succession under Customary Law.

1.2 What is Succession?

The Oxford Advanced Learner’s Dictionary , defines succession in the context of this topic to mean the act of taking over an official position or title. According to Kerry R., succession is concerned with the transfer or devolution of property on death . Succession therefore can be loosely defined to mean inheritance, the right to inherit, the order in which inheritance is bequeathed and the condition precedent under which one can succeed another. The law of succession therefore is all about the transfer or devolution of property on the death of an owner to another, his heir . The law is the rule by which such devolution occurs.

The law governing succession in Nigeria is generally headed under two broad headings, namely: Testate and Intestate Successions. While Testate Succession is primarily governed by Wills and the applicable Wills Law, Intestate Succession on the other hand is that condition where a man dies without leaving behind a valid Will. Intestate Succession can be divided into Intestate Succession (Non Customary) and Intestate Succession under Customary Law. For the purpose of this study, this study will deals on customary succession law in modern ibo land; judicial and legislative dimension in focus.

1.3 Succession Under Customary Law

Customary Law embodies customs as practiced by the people which they regard as binding on them . It is any system of law different from Common Law and a Law enacted by legislation, but which is enforceable and binding within Nigeria as between the parties subject to its way . Customary succession therefore, is succession that is not in accordance with the common law or statute, 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 . Customary succession therefore, being succession that is according to customs, beliefs and traditions of the people, is mainly intestate (without a Will).

The patterns of intestate inheritance and succession under Customary Law in Nigeria have almost as many variations as there are ethnic groups in the country. In fact it could be said that the law of succession and inheritance reflects Nigeria’s plural legal system. The resultant effect of this state of affairs therefore is the absence of a uniformity of rules of succession under Customary Law.

The question that therefore comes to mind flowing from the above realization is: How does one determine the correct law to apply in the case of intestate succession under Customary Law?

Essentially, the deceased’s Customary Law is the appropriate law to be applied in such situation. The law, that is, the deceased’s Customary Law will be applicable even though the deceased died outside his ethnic locality or leaves properties outside his hometown. It is important to note that while it is true that with respect to land matters generally, the Customary Law of the place where the land is situate (lex situs) is applicable, with respect to inheritance, the appropriate Customary Law is the Customary Law of the deceased .

The general principle of law is that a person carries his Customary Law with him, hence regardless of the Customary Law of the place of his residence or abode, his personal law shall prevail . However, our customary jurisprudence arrived at a departure from this position when in the case of Adeniyi Oluwo & Ors v. Olabowale Oluwo & Ors the Supreme Court was invited to determine whether a man can give up his own personal law and acquire the Customary Law of his place of abode. The facts of the case are as follows:

One Adeyinka Olowu, a Yoruba man from Ijesha, having lived most of his life in Benin City, married Benin women and birthed his children in Benin, applied to the Oba of Benin to be naturalized as a Benin citizen. His application was granted and he attained the status of a Benin man and he lived his life as such, enjoying all the privileges of a Benin citizen and acquired landed properties as a result. He died intestate and his estate was distributed in accordance with his acquired Benin native law and custom but some of his children were dissatisfied and challenged the distribution. It was their contention that his original Ijesha Customary Law should be applicable in the distribution. The trial High Court held in favour of the Benin Native Law and Custom on the grounds that the deceased though a Yoruba man by extraction, his naturalization conferred on him, the rights of a Bini man, which rights he enjoyed considerably. This position was upheld by the Court of Appeal, prompting the plaintiffs to approach the Supreme Court for a determination on the matter.

1.4 Purpose of the Study

The purpose of this study is to investigate customary succession law in modern Ibo land; judicial and legislative dimension in focus.

1.5 Significance of the Study

There is no doubt now that customary succession law in modern Ibo land; judicial and legislative dimension in focus has become phenomenon. The various sections dealing with the intestate succession will be considered. Customary succession therefore, is succession that is not in accordance with the common law or statute, 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.

It will also be of great benefit to tertiary institutions such as universities and polytechnics in their attempt to know the need for intestate succession.

Finally, it will also serve as a building block to researchers in the areas of customary succession law in modern Ibo land; judicial and legislative dimension in focus.

1.6 Scope of the Study

This study is to investigate customary succession law in modern Ibo land; judicial and legislative dimension in focus.

1.7 Limitation of the Study

There is no study undertaken by a researcher that is perfect. The imperfection of any research is always due to some factors negatively affecting a researcher in the course of carrying out research. Therefore, time constraint has shown no mercy to the researcher. The limited time has to be shared among many alternative uses, which includes reading, attending lectures and writing of this research, also distance and its attendant costs of travelling to obtain information which may enhance the writing of this study was a major limitation.

1.8 Research Methodology

In order to successfully do a research of this magnitude and in relation to the underlying purpose of this study, this project intend to make use of library based materials, desktop statute books, and Nigeria Customary Law Act as well as information from both journals, articles and textbooks.

Chapter Five

Conclusion and Recommendations

5.1 Conclusion

As stated in the introductory part of this paper, African traditional institutions have had their own way of devolving property since the beginning of time. This study is an attempt to highlight some of the practices of the Nigerian traditional communities with respect to succession. While it is imperative to note that customary succession is an important tool for resolution of disputes which inevitably arise from issues of inheritance, it will not shy away from the fact that some of these practices are indeed not in tune with contemporary practices. On this note it must pay tributes to the judiciary for their role in nullifying some of these discriminatory practices.

5.2 Recommendations

Reform, families and members of the entire citizenry should be sensitized and enlightened on the notion that women are not chattel and therefore not like property that can be distributed after the passing away of their husbands. This traditional concept should be eliminated from the mindset of all and sundry. This sensitization campaign should not be undertaken by the government alone but should be collectively handled by the traditional rulers, chiefs, religious leaders, community leaders, and family heads. They are stakeholders in the field of culture and its sustenance in their various communities. These set of people can be regarded as necessary parties because they promote and enforce customary laws that are deeply enshrined in the culture of the people. The involvement of the stakeholders as mentioned here is inevitable for the effectiveness of the proposed reforms.

It seems that states are more pro-active than the federal government in the area of reform of customary law. Federal government has been paying ‘lip service’ to this very important issue. Indeed a particular Federal Military Government appointed a Customary Court Committee with the mandate to examine the continued existence of Customary courts, their structure, enabling laws, jurisdiction, composition, the role of traditional chiefs, and the extent to which customary laws can be modified . Since then nothing significant about customary law from the Federal government level was heard. Similarly, these laws are archaic and cannot stand the test of modern times in the global world. Conferences, seminar and workshop should be organized by N.G.Os, tiers of governments and Religious and social groups.

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