Succession Under Customary Law

Succession is an act of taking ones official position or title. It has to do with devolution of property on death. While customary law embodies customs as practiced by the people which they regard as binding on them. The general principle of law is that a person carries his customary law with him regardless of the customary law of the place of his residence. In the case of Adeniyi Oluwo & Ors V. Olabowale Oluwo & Ors (1985) 3 NWLR (pt 13) 572.
Adeyinka Oluwo, a Yoruba man from Ijesha, lived most of his life in Benin City, married from Benin and had his children there. He 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.
When Adeyinka died, his properties were distributed in accordance with Benin native law and custom but some of his children were dissatisfied and challenged the distribution. There contention was that his original Ijesha customary law should be applicable. The high court held in favour of the Benin Native law and custom on the grounds that his naturalisation conferred on him the rights of a Benin man. The court of appeal upheld the decision of the high court. The supreme court held that “.. by virtue of his change, his personal law changed to the Benin customary law, distribution of his estate an intestacy must be governed by Benin customary law…” This judgement shows therefore, that the law applicable for distribution of a deceased estate on intestacy is his preferred personal law and not the persons land of origin.
In most customary succession the oldest son of the deceased succeeds his estate. However it is gratifying to note that our courts have in a plethora of cases upheld the rights of a woman to inherit her father’s estate. In Onyibor Anekwe & Anor. V. Maria Nweke SC. 129/2013, Clara Ogunbiyi, JSC held thus; “I hasten to add that the custom and practices of Akwa people upon which the appellants relined on is hereby out rightly condemned in very strong terms. A custom of this nature in the 21st century societal setting will only tend to depict the absence of the relatives of human civilisation. It is punitive, uncivilised and only intended to protect the selfish perpetuation of male domination which is aimed at suppressing the right of the of the woman following the given society, one would expect that the days of such obvious differential discrimination are over. Any culture that disinherits a daughter from her father’s estate or wife from her husband’s property by reason of God instituted gender differential should be punitively dealt with. The punishment should serve as a deterrent measure and ought to be meted out against the perpetrators of the culture and custom. For a widow of a man to be thrown out of her matrimonial home, which she lived all her life with her late husband and children by her late husband’s brothers on the ground that she had no male child is indeed very barbaric, worrying and flesh skinning”.
Aligning with the learned justice I must say that denying female children of a deceased the right of inheritance is not only discriminatory. It is equally repugnant and unconstitutional, as it conflicts the provision of section 42 (1) and (2) of the constitution of the Federal Republic of Nigeria (as amended). A fundamental right provision guaranteed to every Nigerian.

Nkechi Bright – Ewere