IS A WOMAN A PROPERTY TO BE INHERITED AND THE RIGHT OF A WOMAN AS REGARDS 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.
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 Supreme Court held that, the law applicable for the distribution of a deceased’s estate on intestacy is his preferred personal law and not his personal law of origin.
The legal effect of this judgment therefore is that any Nigerian can change his personal Customary Law of origin in preference for another one which he acquires as a result of acculturation/assimilation.
THE RIGHTS OF SPOUSES UNDER THE ACT AND CUSTOMARY LAW
It has been established that any Nigerian may make a Will whether married under the Act or under Customary or Islamic Law subject however, to restrictions imposed by law. Where the marriage was celebrated under the Act, both husband and wife may inherit each other’s estate on intestacy. Where however, the marriage was contracted under the Customary Law, a widow, on the intestacy of her husband, is completely disinherited despite any contributions to the man’s success. No system confers on such a widow any beneficial rights of inheritance safe of course for benefits she may enjoy through her children’s right. Such a widow is in fact often times considered as an asset for inheritance.
While it is imperative to note that customary succession is an important tool for resolution of disputes which inevitably arise from issues of inheritance in Nigeria, we will not shy away from the fact that some of these customary practices are indeed not in tune with contemporary practices and the judiciary has played in huge role in nullifying some of these discriminatory practices.
WRITTEN BY: CHAMAN LAW FIRM TEAM
TEL: 08065553671, 08024230080