DELTA STATE SUCCESSION
ABSTRACT
The issue of mode of inheritance in Nigeria is very prevalent and controversial. These days, people go out of their way to make sure that their Will is prepared so as to prevent family squabbles and to show the true intention of the deceased in respect to his property. However, this does not rule out the many who die intestate. This paper therefore analyzes the mode of inheritance among the Ijaw, Isoko, Itsekiri and Urhobo people of Delta state. It will also consider the discrimination which is rampant among the selected ethnic groups and suggest recommendations as to how this discrimination can be curtailed.
INTRODUCTION:
The word ‘inheritance’ has been defined as the act of inheriting property. It has also been defined as the acquisition of a possession, condition, or trait from past generations.[1]
Black’s Law Dictionary[2] defines inheritance as an estate in things real, descending to the heir.
Prior to the introduction of Wills in English form, intestacy was the norm, except in the occasional instances where a person indicated how his property was to be distributed after his death.[3] Nor it seems, has the introduction of written wills given rise to increased testamentary dispositions. The reasons for this have been variously stated. Woodman[4] opined that the reluctance to make a will may be due to personal disinclination, calculated approval of what is likely to happen on death intestate, or an actual or assumed lack of power to make a will under customary law. Okoro also stated: “that most people do not like to face up to the fact that they will die someday. Testamentary disposition of property, it is feared, may attract death.”[5]
The purpose of succession is to ensure the continuance of the property of the deceased and to provide a machinery for the proper distribution of property among those beneficially entitled thereto. Succession provides a pattern for the devolution of the deceased estate. According to Nwabueze, inheritance and succession under customary law is done according to lines of lineal descent i.e., the patrilineal succession, the matrilineal succession and the bilineal succession.
Unlike the position under the Marriage Act[6], the rules of succession on intestacy under customary law vary according to the different ethnic groups and therefore present a wide picture of pluralism.
The focus of this paper is on four ethnic groups; Ijaw, Isoko, Urhobo and Itsekiri of Delta State and their respective modes of distribution of a deceased intestate’s estate.
These ethnic groups have similar modes of inheritance as both male and female children are entitled to inherit from their deceased father’s estate. However, there are a few differences among them.
The ethnic groups mentioned above shall now be separately examined, after which relevant points, criticisms and conclusions will be drawn.
In matters of succession and inheritance, the Bride price paid during marriage is of extreme importance. Where a man fails to pay the bride price of the woman, the children are considered illegitimate. They are called Emowse and are not acknowledged by the family and as such are not involved in the sharing of the property.
Amongst the Isoko, the first son inherits exclusively the Ughen (this is where the deceased father lived and died), this is because the first son, in traditional lifestyle is used as the replacement for his father and bears the risk and punishment where the father cannot be found, but his other siblings inherit the remaining assets of the deceased including the female children. If the deceased inherited the Ughen from his father, as an eldest son, he has no right to give such a property to his widow simply because he has exclusive possession of the house and has expended his money to refurbish the house, it is a family property and must remain as such, it is irrelevant that the house is not located in the hometown of the deceased, the customary laws of the Isoko people would still apply.
In the sharing of assets, the brothers of the deceased will call for a meeting with the children. They would first bring out the clothes of the deceased, then share to various members of the family. The first son however gets the lion share. Ordinarily, in a situation where the children are living in unity, once the distant relations have gotten something, the brothers can then leave the children to share the remaining property by themselves.
In the case of real property, land or estate of the man, where he is married to more than one wife, houses are shared accordingly to each wife and not to children. On the other hand, where a wife has no children and she dies (here, her husband is also late or in the case of a divorced woman, with property) the property will then go to the children of her brothers (her nephews).
There have been cases where a man’s first wife has no son and junior wife has the eldest son. This usually brings rivalry. It is therefore important to note at this point that, modernity has come in. There have been clamours for female liberation, various people go on and on about human rights especially in relation to women.
In respect to widows, they ordinarily are not allowed inheritance. They usually face oppression from the rest of the family. They go through various forms e.g. use of charms, force and crude methods to collect the man’s property. A man can however decide that he wants his wife to inherit from him. There is no rule against double inheritance.
Also, in respect to widows, in some villages such as Iyede, women are seen as property/chattel to be inherited, as is similar in the Yoruba custom. In Suberu v. Sunmonu[7] , the deceased died intestate without an issue and his widow contested her discrimination from inheriting her late husband’s property. The court held that “it was settled rule of native law and custom of the Yoruba people that a wife could not inherit her husband’s property” and since she did not have an issue, his property goes to his uterine brothers and not his wife. Certain people are designated to inherit the woman. She however has the option to reject their offers es pecially if she is still very young. She would then be expected to return her bride price and leave her husband’s house. If she does not want to leave but does not like or want any of the offers made to her, she can decide to be married to her son. If she has no son, she can pick any underage in the family.
Mr. Ekoko of Uzere in Isoko-South, Delta State, informed us that his step-mother was designated to him while his mother was given to his older cousin, upon the death of his father. It is pertinent to note that, as much as they obviously did not sleep with the women, earlier on, men did not care. Once the widow picks them, they were always ready to go into her. It is the woman’s discretion to make her choice.
As a general Isoko custom, a woman is married to the family and not just to her husband. Where a widow sleeps with any other person outside the family, it is sacrilege. It should also be noted that when a woman is divorced, she is not entitled to anything. Also, where a widow decides to remarry, the children tend to suffer because nobody will want them in the family, as extra responsibility.
Illegitimate Child:
Such a child is said to have equal rights as the biological child of the man although the women do not like the idea. As Ademola C.J.N stated, “In Nigeria, a child is legitimate if born in wedlock according to the marriage ordinance. There are also legitimate children born in marriage under native law and custom. Children not born in wedlock or who are not issues of a marriage are under custom, but are issues born without marriage can also be regarded as legitimate children for certain purposes, if paternity has been acknowledged by the putative father.
In some Delta communities, up till today, children born by widows belong to their deceased husbands, hence, according to an elder in Idumuje-Unor in Aniocha North Local Government Area of Delta State, “If a widow wants to free herself from bearing children for her late husband, the option left for her is to formally seek the dissolution of the marriage under the native law and custom of the people and get married to another man”. In accordance with the native law and custom of most tribes, including the Itsekiri, Ijaws and Urhobos of Delta State, a natural child could be legitimated by acknowledgement.
Another elder who spoke in the position of anonymity in Issele-Uku, Aniocha-North Local Government Area, Delta State, stated that, “If a man had impregnated a young girl in her prime, denied her woefully and denied paternity of the child, and later come back to claim the child through acknowledgement, it may not be acceptable in some cases”. He added that under the circumstances, therefore, the customary principle of “where the palm tree falls, is where the palm front will face”. This means that when the woman gets married, the husband inherits her and the child in line with the age long custom. However, where the issue of an illegitimate child has been settled through acknowledgement, the child has equal rights of succession on his father’s interests as the other children of the deceased who were born legitimately.[8]
According to Tonwe & Edu, “And in Re Edu Dien, Alexandar J. (as he then was) accepted the view that under Nigerian law, a natural child could be legitimated by acknowledgement. The Itsekiris, Ijaws, Isokos and Urhobos of Delta State have similar rule of customary law”
Adoption: As close as ten (10) years ago, adoption was very rare. People would rather die childless than to adopt. In the Isoko tribe, the child would not be accepted and will be treated as an outcast.
These customs and tradition are no longer as rigid and static as they used to be due to religion and the import of modernization.
The succession rights among the Ijaws depend on the type of marriage contracted by the person’s parents. Where a man has married by the Iya (i.e., big marriage symbol) system, his estate devolves on his sons in gradation, in the sense that the eldest son receives the largest share while the smallest share is given to the youngest son.[9] This is the case even where the son was conceived by another man during a period of separation between the deceased and his wife.[10] If the deceased is not survived by any sons, his brothers of the full blood inherit.
On the other hand, if the deceased had celebrated an Igwa (i.e. small marriage symbol) customary marriage, the inheritance of his estate will be similar to that in the matrilineal communities of the Igbo, in that people inherit the estate of their maternal relatives. Thus, his nephews and not his children would inherit his property. But if an Igwa wife dies intestate, her children will inherit her estate. If she is not survived by any child, her estate devolves on her full brothers and sisters.[11]
The rationale behind these dichotomous rules of succession in Kalabari (Ijaw) lies, according to Okoro[12] in the fact that the Iya marriage is more expensive and operates to transfer the wife and therefore her children to her husband’s family so that inheritance is patrilineal. The much less expensive Igwa marriage has the converse effect of leaving customary succession rights of the wife and her children in the wife’s maiden family.
Another interesting aspect is that of the traditional rite inheritance among the Mein Clan (Delta/Bayelsa) Ijaws of Delta State. The rite of inheritance is traditionally done three days after the burial of a man and four days for women. But in modern times, it is done any day after the burial. The immediate family, the quarter and representatives of the community all gather together to perform the ceremony. Representatives of the community must be present for rite to be valid. Traditionally, the first son, (Kone) dressed in the best clothes of the deceased father, takes his seat. A bottle of hot drink is used to pray and call on the spirit of the dead man or woman to be present and witness the sharing of his properties among his/her kinsmen. It is believed that the right of inheritance appeases the spirit of the dead.
After the prayer, the community asks the family to present the properties of the deceased. Questions are asked whether anybody is indebted to him, also whether he has lands elsewhere. These probing questions are done to ascertain all the dead man’s assets and liabilities. When these are confirmed, the first son is asked to pick any item of his choice and the items are laid on the floor. Then the leaders of the community and the leaders of the quarter of the dead person share his properties to his immediate family and the extended family.
In the case where the man has a building (house) and many wives, the parlour is usually given to the first son, while the rooms are shared according to the number of wives that he had, particularly those who have children with the man. Even when the man has a child outside wedlock, such a child is entitled to have a room in the house. Farming lands and tapping bushes (i.e. bushes of raffia palm) are also shared among the children according to the number of women who have children with him. For instance, if a woman has six children with the man,
and the man has four wives, the land will be shared into four parts with each set of children from a particular woman, given a portion of the land. A woman who has no child is not entitled to any land. The wives of the dead man are also given out to his close family members. This is done to ensure that the widow and her children are properly taken care of by close family members.
As regards the royal lineage in Ijaw Clan, the traditional titles for the king of the Ijaws are called Pere or Amananaowei. It is the title of the highest traditional ruler in the Ijaw ethnic nationality all over Nigeria. It is a respectable position. A son usually takes over from the father. Young or old, he is expected to the take over the throne if his father dies.
When asked about the consequences a person might face if they refused the title, the Secretary of the Ijaw National Congress claimed that “In most cases, it is inherited by the eldest son of the Pere. If he refuses, “he is hunted by the elders and which might lead most times to family disgrace, and in most cases, death”. According to the Secretary of the Ijaw National Congress, USA, “title of Pere is conferred on paramount chief/ruler/leader and chief priest of selected Ijaw Clans. It can connote king, leader or priest. Individual is held in high regard within his clan or town and conferred privileges commensurate with his responsibilities. Refusal of individual so honoured could attract the wrath of the gods, spirit of our ancestors and disfavor of the community” (2 May, 2001).[13] As regards the Kalabaris, Williamson K.[14] noted that the distinction between the Igwa and Iya systems of marriage is rapidly breaking down. The effect is to blur the distinction between the bride price payable in respect of Iya and Igwa marriages.
The basic mode of inheritance here is primogeniture which involves the total non-negotiable handing over of power of attorney over properties, titles or positions to the eldest son with the exclusion of the eldest daughter.
The reason behind adopting this primogeniture mode of inheritance is that it is seen to be a way of preserving peace, continuity and upholding traditional values. It was looked upon as sacrilegious. In practice, all the children are entitled to inherit from their deceased father’s estate. The first son inherits the house where the father lived absolutely. The right of the eldest son to inherit the house of his deceased father is his major right. Other personal effects are shared amongst the children. There is however no discrimination as to the sexes as both male and female children can inherit.
In Omonuekanrin (on Itsekiri Law an Custom [1942] pg 73-75), it was stated that, the chief mourner{the eldest son} calls a meeting, divides property between the children born in and
those born out of wedlock, they all have equal rights. The legitimate children however insist on a better share and where the property is small, higher consideration is given to the legitimate children. The eldest son who is generally the next-of-kin by custom has the largest claim. He could use the family lands held in trust by him provided he gave a portion of the fruits derived therefrom to his brothers and sisters. He cannot alienate but can only sell part of the family land with the consent of all principal family members. There is a popular saying among the Itsekiri “e ne biro omoparan tse oronokun” meaning “be what it may, the heir must receive the coral bead and necklace” ;this was a sign of authority or the delegation of the powers of the deceased to the next of kin.
Generally, the children have three major options which have been posited by Dr. Odje in sharing the property. They include:
The home of the deceased becomes his children’s family house the eldest male child may move into it to take his father’s position as head of the house/home but this does not make it his property. It is jointly owned by him and his siblings and family activities are held here. The eldest child, eldest son and sometimes the last child have some special consideration during the distribution, and if the deceased had grandchildren, the oldest among them has a gift. The same formula goes for the distribution of a woman’s estate, the only difference is that it is never distributed by stripes (i.e. fathers). If the deceased did not have children or grandchildren who survived him, then his estate goes to his larger family or siblings.
As a matter of emphasis, the Urhobos’ adopt the practice of primogeniture. This concept of inheritance places critical importance on the idea or concept of first born males. Thus, the demise of the family head in the person of the father puts the first born male in immediate contention for the property and estate of the demised family head. This practice even extends to the succession to the crown or throne of the Monarch in Urhobo Kingdom.
The eldest son must as of right inherit the house in which the deceased father
lived while he was alive.If a man had many wives whilst he was live, the per-stripes (per gate) method is often preferred.
In Thompson Oke v. Robinson Oke[17], a testator died on December 1960 having devised to the first defendant a house in which he lived and died. The plaintiffs, the eldest son and daughter of the testator whose mother, permitted her husband, an Urhobo, to build a house and some adjoining apartments on a parcel on her family land. The husband (testator) lived therein during his lifetime. The defendants are the younger sons of the testator.
The plaintiffs with the consent of the family took out letters of administration in the belief that their father had died intestate. No sooner had the plaintiffs taken out letters of administration than the first defendant deposited a disputed Will with the probate registry at Ibadan and he was the principal beneficiary under the Will. The question then arose as to whether the testator, who was an Urhobo man could devise the house by Will to the first defendant, who was the testator’s son by another woman or whether the Itsekiri Customary Law of the plaintiff’s mother which is the same as the Urhobo Law of succession should govern the distribution of the estate so that the eldest son of the testator should alone inherit the house in which the testator lived and died. The plaintiffs called eight (8) witnesses, whilst the defendants called five (5). The plaintiffs witnesses gave evidence as to the Urhobo Customary Law of inheritance, according to which a house in which the deceased father lived during his lifetime must be inherited by the eldest son, if any, and added that the personal effects of the deceased would then be distributed per stripes among all the children of the deceased father. The trial court believed the evidence of the witnesses and held that the first plaintiff is entitled to the house as the eldest son of the testator under Itsekiri/Urhobo Customary Law. The Supreme Court upheld the judgement of the High Court. The court held that the testator in the instant case, could devise the property as he purported to have done to his first son in accordance with the Urhobo/Itsekiri Customary Law of succession.
Again, the wife or wives of a deceased Urhobo man are part of his property to be inherited. However, the widow has a right of choice whether to re-marry or not to re-marry. Where she
refused to re-marry, she cannot be compelled by the family of her deceased husband. There is no such thing as “a child born out of wedlock” in some places in Urhobo. All children of the man are legitimate and the first son of the man will inherit the home he lived in during his lifetime.
In the absence of the first male born, any other male descendant, regardless of age, functions in that capacity. In Okpe, no female can play the role regarded for the male child in accordance with the tradition, yet female descendants are never diminished in Okpe, not even after years of marriage to other families.
If an Urhobo man dies without a Will, it is axiomatic for his legacies to be scattered by his wives, children, brothers, uncles, etc. There is always a big fight to cart away his properties. Some even come for his wives. It should be noted that among the Urhobos, a reliable, loving and kind wife or mother can also be bestowed as the family Head and the administrator of the family estate. She becomes the Oni Emo (mother of children) in the family and not just her biological children.
For the eldest son to inherit from his father, it is a condition that he must play some specific roles either at the death of the father, their mothers or some rituals at home.
The mode of inheritance is strikingly similar to that of Benin. Hence in relation to the principle of primogeniture where the eldest son takes over/inherits the house where his father lived, the following cases can be considered;
In Ogiamen v. Ogiamen[18], it was stated that the eldest surviving son’s right extends not only to Igi Obe (house/houses where the deceased lived, died and was buried) but also to all the properties and he, as the sole heir is entitled to all the properties without the consent of the other children. According to the Supreme Court, this right is only subject to any gift of his property which the father may have made during his lifetime to other children or to outsiders. In fact, when this was challenged as being repugnant to natural justice, equity and good conscience, the Supreme Court said “we see nothing wrong in this custom, we can only say that it is not unknown in some other highly civilized countries of the world”.
This view was followed in Ehigie v. Ehigie[19]. In Idehen v. Idehen[20], the court held that the eldest son is entitled to the principal personal effects of the deceased including all his hereditary titles and what is left is distributed among the other children. Here, the eldest surviving son retains the property in the trust for himself and other children except the Igi Obe which he holds exclusively. But it must be noted that unlike in Benin, where the eldest son has to complete the second burial of the deceased (marked by the ceremony called Ukpomwan), such rule does not exist in Urhobo land.
CRITIQUE AND COMMENTS:
Section 42(1) of the 1999 Constitution provides that: A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion, political opinion shall not, by reason only
that he is such a person: (a) be subjected, either expressly by or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places or origin, sex, religion or political opinion are not made subject. The section also provides that no citizen shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
Article 1 of the UN Convention on the Elimination of ALL forms of Discrimination Against Women (CEDAW) defines discrimination as “any distinction, exclusion or restriction made on the basis of sex in the political economic, social, cultural, civic or any other field”.
Article 13 stipulates that women have the right to obtain family benefits, while Article 15 states inter alia that women have equal rights with men in matters of law that relate to business contracts. Under Article 16, women are empowered to own and give away their property.
Nigeria ratified the (CEDAW) treaty in 1985. She is therefore bound by its provisions and any contrary application must be declared null and void.
In spite of the above provisions which prohibit discrimination on the basis of sex, there is still a myriad of laws and customary practices in Nigeria which discriminate against women, and this is more evident in cases of inheritance. However, our focus lies not only on the discrimination against women, but also on the way the deceased intestate’s estate is distributed among his children, male and female.
Under the Isoko, Urhobo, Ijaw and Itsekiri ethnic groups of Delta State Customary Law, widows cannot inherit her deceased husband’s property. This is the rule under Customary Law generally. Only Islamic Law does not follow this seemingly unfair practice. The rule has however been justified by some scholars in the sense that under native law and custom, devolution of property follows the blood, therefore a wife not being of the blood has no claim to any share.
In Sogunro-Davies v. Sogunro-Davies[21] ,Beckley J stated that Yoruba Native Law and Custom deprived the wife of inheritance rights in her deceased husband’s estate because devolution of property follows the blood.
The only exception to this repugnant customary practice is in a situation in which a widow chooses to remain in her husband’s house and retain his name, she is to that extent, entitled, notwithstanding that she has no children. This is to ensure her maintenance but she cannot transfer any of the husband’s property outright.[22]
The widow only has possessory interest in the house or farmland so she cannot dispose of it. Dr. Oni, in his article submitted that this custom is repugnant and offends the principle of natural justice, equity and good conscience. This is based on the consideration that the wife, during the existence of her marriage and during the deceased husband’s life might have labored and toiled to bring about the acquisition of such property together with the deceased husband. It is therefore morally repulsive to deprive her ownership of such property.
It should be noted that husbands are equally not allowed to inherit his deceased’s wife share of her family property as he is regarded as a stranger. If the wife had no issues, her property goes to her relatives. But the husband has a right over personal property. Also, her ante-nuptial property remains the property of the wife and goes to her children jointly upon her death. If she had no children, same goes to her relatives. But when her ante nuptial property is mixed with the property acquired during overture and where she is predeceased by her husband and all her children, the property will go to her husband’s relatives. This is because inheritance of the wife’s property by her husband in default of issues contradicts the general principle that devolution follows the blood but is explainable by the fact that marriage has the effect of transferring the wife to the husband’s patrilineal. This is practiced in Kalabari Clan of the Ijaws where, under Iya (big) marriage, the wife & children have right of inheritance.
The fact that a husband is deprived of inheritance in his deceased wife’s share of her family property is justified as seen in the case of Nwugege v. Adigwe[23] where the court explained that “it is unheard of that a man marries a woman and lives with her in her house, which is equivalent to accepting the custom that a woman should marry a man and not otherwise” . Under the Ijaw customary Law, the Kalabari Clan undertakes either the Iya (big Marriage) or Igwa (Small Marriage). The Iya marriage is seen as more favourable than the Igwa marriage due to the way either of them determine the inheritance of the wife and the children.
Dr. Seinye O. B. Lulu-Briggs, wife of the Paramount Head of the Opuwari Briggs compound of Abonema; High Chief (Dr. O. B. Lulu-Briggs; also the Iniikeiroari v. of the Kalabari Kingdom) was a Guest Speaker at the 8th Edition of the Annual King Kariboye-Abbi Amachree IV Lecture, which took place in Busuma, the “Kalabari Kingdom”, she gave her view on the Kalabari marriage system as it relates to inheritance:
“For the Kalabaris, she said, the Iya marriage is considered as the highest, most legally binding type of marriage. An Iya wife is accorded the highest of rights in her husband’s home as well as in the community. Also, the offsprings of an Iya marriage have full rights of inheritance in their father’s family”.
She noted that there is a disenfranchisement of women married under the Igwa marriage. An Igwa wife, according to her, cannot exercise any right in her husband’s homestead and she and her children are often treated as second-class “property” that may or may not be upgraded to Iya marriage, which in turn breeds frustration and hatred and pain. This has led to the situation where today’s Kalabari women tend to be indifferent, expect nothing and make little or no demands of their husbands. This in turn has made the average Kalabari man to lose sense of responsibility toward his wife and children.
The second area, according to Dr. Briggs, relates to the Iya marriage, since the ceremony is so elaborate and expensive, many young couples tend to either cohabit informally or stop at the Igwa state of marriage. All of these, place tension on marriages and robs families and even communities of peace, love and stability, which should thrive within our homes and society. The consequence of all these is that the Kalabari kingdom has majority of women bearing children who grow up only to be shocked when informed of their status (or the lack thereof) in their fathers’s house. They are usually disinherited, not by their loving fathers but by the Kalabari tradition itself.
When asked what she considered the solution to the situation, Dr. Briggs replied that, in her opinion “the dichotomy between the Iya and Igwa forms of marriage has outlived its usefulness and it is high time this division is eradicated in Kalabari land. Hanging on to a cultural norm that does not contribute to the betterment of the society is very detrimental. Societies evolve and progress with time, carrying along with it, all its mores and values. When certain aspects of tradition become retrogressive, (such as killing of twins, etc) it is usually discarded. The acceptance and even promotion of a marriage system that push our young women into promiscuity and our young men into irresponsible moral behaviour should not be allowed to continue. We should review and even question the relevance and utility of some of our non-progressive traditional ways of doing things, while upholding the values that make a Kalabari person unique. I therefore strongly recommend that the Igwa marriage be totally discarded and replaced with Iya marriage, which should be reformed in order to accommodate the rich and the poor.
Also a situation may exist where the man marries one wife under the Iya marriage and another wife under the Igwa marriage. She will no doubt feel sad about the situation of things and the fact that her children will inherit less than the children of the first wife.
Also, for the Mein Clan in Ijaw, Delta State, it is commendable that even when a child is born outside wedlock, he can have a room in the house. Although the eldest son gets the parlour. A woman who has no child is not entitled to any land. In our opinion this is just. But the fact that widows are given out to the deceased’s close family members for “their care” may be unfair if the women have no say whether they want to be given out or not and to whom.
Among the Itsekiris and Urhobos where the primogeniture rule fully applies, the property devolves in the eldest son exclusively. This mode of operation has been subjected to a lot of disadvantages.
One of the problems associated with this is that, like most polygamous homes, there is always anarchy and destructive behaviour even to the extent of consulting diabolical means. In this instance, the first son who is in the position to inherit becomes hated by all members of the family including his own father because of these hereditary rights because these traditions must be followed irrespective of whether the father has a different alternative to inherit his properties.
Secondly, one of the disadvantages attached to this mode is that the eldest son’s life begins to revolve round carrying out duties attached to his position as the first son. All his actions and inactions must be geared towards protecting the family property and legacy which in turn deprives him of certain opportunities e.g. he cannot aspire to do anything that will jeopardize his position as a first son of the family.
A question may be asked whether the first son can refuse to take up responsibilities or duties attached to being a first son. The answer to this is that nobody can take up the position as the first son, although another could carry out the responsibilities attached to that position, however this must be done on behalf of the first son or in his stead but never as a replacement.
Also, the rule of primogeniture is unfair to the youngest children of the family who are barred, hence it is repugnant to natural justice, equity and good conscience, it is unconstitutional, unfair and unjust.
Another disadvantage is that the eldest son is not strictly accountable to his younger siblings for his use and enjoyment of the property.[24] Although the eldest son, as the head of the family holds no legal estate in the property, chances are that he might use the estate in such a way as to make it empty before he is succeeded by his next brother on his death. At times, the eldest son for the purpose of maintaining peace and harmony gives at his discretion part of the estate to his younger brothers.[25] It must, however be borne in mind that, this discretion exercised at the whims, and caprices of the eldest son is not enough to cure that evil inherent in such a custom.
One may say that the reason widows are not allowed to inherit is because they are allowed to inherit from their fathers so it would be unfair for her to inherit in her father’s house and also inherit in her husband’s house as equity leans against double portion, and besides, any property the woman brings to her husband’s house goes back to her family when she dies as her husband cannot inherit from her. However, one may argue that in a situation where a woman buys a property in conjunction with her husband but allows his name to be on the document of the property, does it mean she has no right to the property because it is not in her name also? African women tend to believe that the head of the (nuclear family), the man, has the right to have the property purchased in his name. But under customary law, it would not be tenable by the woman that she and her late husband bought or built the property together except she has evidence to prove it or witnesses and besides she is a chattel to be inherited so it makes no difference.
Another reason why widows are not allowed to inherit from their late husbands is because they have the tendency to remarry especially if she is still young and if she is allowed to inherit, she would take such property to her new husband’s house (a new management), thus the property leaves her deceased husband’s family. Isoko and Itsekiri group are patriarchal and male dominance is present in every sphere of the society including succession, this is also a reason why women are not allowed to inherit. Women in traditional Isoko were expected to be subservient to their husbands, so allowing a woman inherit would be an act of making her feel superior in her capacity as a woman.
RECOMMENDATIONS
Since the law of inheritance touches every individual in the society, it merits close attention. The law must be reformed to redress the inadequacies and harsh consequences of some customary law applications. In this regard, the following recommendations are suggested:
CONCLUSION
We have considered the Isoko, Urhobo, Ijaw and Itsekiri ethnic groups of Delta state. One can deduce from the above that although both male and female children are allowed to inherit from their deceased father’s estate, there is still inherent discrimination against the wives and widows in some cases. This is clearly repugnant to natural justice, equity and good conscience and is also contrary to constitutional provisions.
They go against Article 18(3) of the African Charter on Human Rights which stipulates that the state shall ensure the elimination of every discriminatory practice against women and ensure the protection of their rights as well as Article 13 of the CEDAW, which provides that women have the right to obtain family benefits.
From the foregoing, it is suggested that there be enlightenment programmes available to all persons to enable them discover their constitutional rights which they are entitled to. They should be educated so as to consider other favourable modes of inheritance rather than rely only on customary law.
The courts should also ensure that efforts are made to eliminate discriminatory practices as this would yield positive results.
[1] Merriam Webster.
[2] Black’s Law Dictionary (BLD).
[3] Nwabueze B. O. Nigerian Land Law.
[4] Woodman G. R. op.cit 1990. The Budapest Conference Paper 1-27.
[5] Okoro N. “Integration of the Customary and the General (English) Laws of Succession” in Integration of
Customary and Modern Law Systems in Africa 1964 at p. 251.
[6] Section 36.
[7] (1957) 2 FSC 33.
[8] Article: The Pointer: “Who is a legitimate child under Native Law and Custom?”
[9] Nwogugu E. I. op .cit. p.315.
[10] Per Holden C. J. in Solomon v. Gbobo (1974) E. S. C. N. L. R. 457.
[11] Okoro N. op.cit. pp.149-150; also Nwogugu E. I(. op.cit. p. 315
[12] Ibid.
[13] Article; Nigeria: Inheritance of the Ijaw title “Pere” and consequences to an only son if he refused the title;
whether human sacrifices are practiced in conjunction to this title. Author: Research directorate, Immigration and Refugee Board, Canada.
[14] “Changes in the marriage system of Okrika Ijo” Africa. Vol. XXXII (1962) 53 58-60.
[15] (1974) 1 ALL NLR (pt 1) 443.
[16] “A Royal History of the Okpe-Urhobo of Nigeria by Prince Joseph Asagba”.
[17] 1974 1 ALL NLR (pt. 1) 443.
[18] (1967) N.M.L.R 245 at 247.
[19] (1961) ALL N.L.R 871.
[20] (1991) 6 N.W.L.R 687.
[21] (1929) 2 NLR 79 at 80
[22] “Discriminatory Property Inheritance Right Under the Yoruba and Igbo Customary Law in Nigeria: The Need
for Reforms”: Dr. Babatunde Adetunji Oni.
[23] (1934) 11 NLR 134.
[24] Taiwo v. Dosunmu (1966) NMLR 94
[25] Nwogugu E. I. op.cit at 412.
The issue of mode of inheritance in Nigeria is very prevalent and controversial. These days, people go out of their way to make sure that their Will is prepared so as to prevent family squabbles and to show the true intention of the deceased in respect to his property. However, this does not rule out the many who die intestate. This paper therefore analyzes the mode of inheritance among the Ijaw, Isoko, Itsekiri and Urhobo people of Delta state. It will also consider the discrimination which is rampant among the selected ethnic groups and suggest recommendations as to how this discrimination can be curtailed.
INTRODUCTION:
The word ‘inheritance’ has been defined as the act of inheriting property. It has also been defined as the acquisition of a possession, condition, or trait from past generations.[1]
Black’s Law Dictionary[2] defines inheritance as an estate in things real, descending to the heir.
Prior to the introduction of Wills in English form, intestacy was the norm, except in the occasional instances where a person indicated how his property was to be distributed after his death.[3] Nor it seems, has the introduction of written wills given rise to increased testamentary dispositions. The reasons for this have been variously stated. Woodman[4] opined that the reluctance to make a will may be due to personal disinclination, calculated approval of what is likely to happen on death intestate, or an actual or assumed lack of power to make a will under customary law. Okoro also stated: “that most people do not like to face up to the fact that they will die someday. Testamentary disposition of property, it is feared, may attract death.”[5]
The purpose of succession is to ensure the continuance of the property of the deceased and to provide a machinery for the proper distribution of property among those beneficially entitled thereto. Succession provides a pattern for the devolution of the deceased estate. According to Nwabueze, inheritance and succession under customary law is done according to lines of lineal descent i.e., the patrilineal succession, the matrilineal succession and the bilineal succession.
Unlike the position under the Marriage Act[6], the rules of succession on intestacy under customary law vary according to the different ethnic groups and therefore present a wide picture of pluralism.
The focus of this paper is on four ethnic groups; Ijaw, Isoko, Urhobo and Itsekiri of Delta State and their respective modes of distribution of a deceased intestate’s estate.
These ethnic groups have similar modes of inheritance as both male and female children are entitled to inherit from their deceased father’s estate. However, there are a few differences among them.
The ethnic groups mentioned above shall now be separately examined, after which relevant points, criticisms and conclusions will be drawn.
- ISOKO OF DELTA STATE:
In matters of succession and inheritance, the Bride price paid during marriage is of extreme importance. Where a man fails to pay the bride price of the woman, the children are considered illegitimate. They are called Emowse and are not acknowledged by the family and as such are not involved in the sharing of the property.
Amongst the Isoko, the first son inherits exclusively the Ughen (this is where the deceased father lived and died), this is because the first son, in traditional lifestyle is used as the replacement for his father and bears the risk and punishment where the father cannot be found, but his other siblings inherit the remaining assets of the deceased including the female children. If the deceased inherited the Ughen from his father, as an eldest son, he has no right to give such a property to his widow simply because he has exclusive possession of the house and has expended his money to refurbish the house, it is a family property and must remain as such, it is irrelevant that the house is not located in the hometown of the deceased, the customary laws of the Isoko people would still apply.
In the sharing of assets, the brothers of the deceased will call for a meeting with the children. They would first bring out the clothes of the deceased, then share to various members of the family. The first son however gets the lion share. Ordinarily, in a situation where the children are living in unity, once the distant relations have gotten something, the brothers can then leave the children to share the remaining property by themselves.
In the case of real property, land or estate of the man, where he is married to more than one wife, houses are shared accordingly to each wife and not to children. On the other hand, where a wife has no children and she dies (here, her husband is also late or in the case of a divorced woman, with property) the property will then go to the children of her brothers (her nephews).
There have been cases where a man’s first wife has no son and junior wife has the eldest son. This usually brings rivalry. It is therefore important to note at this point that, modernity has come in. There have been clamours for female liberation, various people go on and on about human rights especially in relation to women.
In respect to widows, they ordinarily are not allowed inheritance. They usually face oppression from the rest of the family. They go through various forms e.g. use of charms, force and crude methods to collect the man’s property. A man can however decide that he wants his wife to inherit from him. There is no rule against double inheritance.
Also, in respect to widows, in some villages such as Iyede, women are seen as property/chattel to be inherited, as is similar in the Yoruba custom. In Suberu v. Sunmonu[7] , the deceased died intestate without an issue and his widow contested her discrimination from inheriting her late husband’s property. The court held that “it was settled rule of native law and custom of the Yoruba people that a wife could not inherit her husband’s property” and since she did not have an issue, his property goes to his uterine brothers and not his wife. Certain people are designated to inherit the woman. She however has the option to reject their offers es pecially if she is still very young. She would then be expected to return her bride price and leave her husband’s house. If she does not want to leave but does not like or want any of the offers made to her, she can decide to be married to her son. If she has no son, she can pick any underage in the family.
Mr. Ekoko of Uzere in Isoko-South, Delta State, informed us that his step-mother was designated to him while his mother was given to his older cousin, upon the death of his father. It is pertinent to note that, as much as they obviously did not sleep with the women, earlier on, men did not care. Once the widow picks them, they were always ready to go into her. It is the woman’s discretion to make her choice.
As a general Isoko custom, a woman is married to the family and not just to her husband. Where a widow sleeps with any other person outside the family, it is sacrilege. It should also be noted that when a woman is divorced, she is not entitled to anything. Also, where a widow decides to remarry, the children tend to suffer because nobody will want them in the family, as extra responsibility.
Illegitimate Child:
Such a child is said to have equal rights as the biological child of the man although the women do not like the idea. As Ademola C.J.N stated, “In Nigeria, a child is legitimate if born in wedlock according to the marriage ordinance. There are also legitimate children born in marriage under native law and custom. Children not born in wedlock or who are not issues of a marriage are under custom, but are issues born without marriage can also be regarded as legitimate children for certain purposes, if paternity has been acknowledged by the putative father.
In some Delta communities, up till today, children born by widows belong to their deceased husbands, hence, according to an elder in Idumuje-Unor in Aniocha North Local Government Area of Delta State, “If a widow wants to free herself from bearing children for her late husband, the option left for her is to formally seek the dissolution of the marriage under the native law and custom of the people and get married to another man”. In accordance with the native law and custom of most tribes, including the Itsekiri, Ijaws and Urhobos of Delta State, a natural child could be legitimated by acknowledgement.
Another elder who spoke in the position of anonymity in Issele-Uku, Aniocha-North Local Government Area, Delta State, stated that, “If a man had impregnated a young girl in her prime, denied her woefully and denied paternity of the child, and later come back to claim the child through acknowledgement, it may not be acceptable in some cases”. He added that under the circumstances, therefore, the customary principle of “where the palm tree falls, is where the palm front will face”. This means that when the woman gets married, the husband inherits her and the child in line with the age long custom. However, where the issue of an illegitimate child has been settled through acknowledgement, the child has equal rights of succession on his father’s interests as the other children of the deceased who were born legitimately.[8]
According to Tonwe & Edu, “And in Re Edu Dien, Alexandar J. (as he then was) accepted the view that under Nigerian law, a natural child could be legitimated by acknowledgement. The Itsekiris, Ijaws, Isokos and Urhobos of Delta State have similar rule of customary law”
Adoption: As close as ten (10) years ago, adoption was very rare. People would rather die childless than to adopt. In the Isoko tribe, the child would not be accepted and will be treated as an outcast.
These customs and tradition are no longer as rigid and static as they used to be due to religion and the import of modernization.
- IJAW OF DELTA STATE:
The succession rights among the Ijaws depend on the type of marriage contracted by the person’s parents. Where a man has married by the Iya (i.e., big marriage symbol) system, his estate devolves on his sons in gradation, in the sense that the eldest son receives the largest share while the smallest share is given to the youngest son.[9] This is the case even where the son was conceived by another man during a period of separation between the deceased and his wife.[10] If the deceased is not survived by any sons, his brothers of the full blood inherit.
On the other hand, if the deceased had celebrated an Igwa (i.e. small marriage symbol) customary marriage, the inheritance of his estate will be similar to that in the matrilineal communities of the Igbo, in that people inherit the estate of their maternal relatives. Thus, his nephews and not his children would inherit his property. But if an Igwa wife dies intestate, her children will inherit her estate. If she is not survived by any child, her estate devolves on her full brothers and sisters.[11]
The rationale behind these dichotomous rules of succession in Kalabari (Ijaw) lies, according to Okoro[12] in the fact that the Iya marriage is more expensive and operates to transfer the wife and therefore her children to her husband’s family so that inheritance is patrilineal. The much less expensive Igwa marriage has the converse effect of leaving customary succession rights of the wife and her children in the wife’s maiden family.
Another interesting aspect is that of the traditional rite inheritance among the Mein Clan (Delta/Bayelsa) Ijaws of Delta State. The rite of inheritance is traditionally done three days after the burial of a man and four days for women. But in modern times, it is done any day after the burial. The immediate family, the quarter and representatives of the community all gather together to perform the ceremony. Representatives of the community must be present for rite to be valid. Traditionally, the first son, (Kone) dressed in the best clothes of the deceased father, takes his seat. A bottle of hot drink is used to pray and call on the spirit of the dead man or woman to be present and witness the sharing of his properties among his/her kinsmen. It is believed that the right of inheritance appeases the spirit of the dead.
After the prayer, the community asks the family to present the properties of the deceased. Questions are asked whether anybody is indebted to him, also whether he has lands elsewhere. These probing questions are done to ascertain all the dead man’s assets and liabilities. When these are confirmed, the first son is asked to pick any item of his choice and the items are laid on the floor. Then the leaders of the community and the leaders of the quarter of the dead person share his properties to his immediate family and the extended family.
In the case where the man has a building (house) and many wives, the parlour is usually given to the first son, while the rooms are shared according to the number of wives that he had, particularly those who have children with the man. Even when the man has a child outside wedlock, such a child is entitled to have a room in the house. Farming lands and tapping bushes (i.e. bushes of raffia palm) are also shared among the children according to the number of women who have children with him. For instance, if a woman has six children with the man,
and the man has four wives, the land will be shared into four parts with each set of children from a particular woman, given a portion of the land. A woman who has no child is not entitled to any land. The wives of the dead man are also given out to his close family members. This is done to ensure that the widow and her children are properly taken care of by close family members.
As regards the royal lineage in Ijaw Clan, the traditional titles for the king of the Ijaws are called Pere or Amananaowei. It is the title of the highest traditional ruler in the Ijaw ethnic nationality all over Nigeria. It is a respectable position. A son usually takes over from the father. Young or old, he is expected to the take over the throne if his father dies.
When asked about the consequences a person might face if they refused the title, the Secretary of the Ijaw National Congress claimed that “In most cases, it is inherited by the eldest son of the Pere. If he refuses, “he is hunted by the elders and which might lead most times to family disgrace, and in most cases, death”. According to the Secretary of the Ijaw National Congress, USA, “title of Pere is conferred on paramount chief/ruler/leader and chief priest of selected Ijaw Clans. It can connote king, leader or priest. Individual is held in high regard within his clan or town and conferred privileges commensurate with his responsibilities. Refusal of individual so honoured could attract the wrath of the gods, spirit of our ancestors and disfavor of the community” (2 May, 2001).[13] As regards the Kalabaris, Williamson K.[14] noted that the distinction between the Igwa and Iya systems of marriage is rapidly breaking down. The effect is to blur the distinction between the bride price payable in respect of Iya and Igwa marriages.
- ITSEKIRI OF DELTA STATE:
The basic mode of inheritance here is primogeniture which involves the total non-negotiable handing over of power of attorney over properties, titles or positions to the eldest son with the exclusion of the eldest daughter.
The reason behind adopting this primogeniture mode of inheritance is that it is seen to be a way of preserving peace, continuity and upholding traditional values. It was looked upon as sacrilegious. In practice, all the children are entitled to inherit from their deceased father’s estate. The first son inherits the house where the father lived absolutely. The right of the eldest son to inherit the house of his deceased father is his major right. Other personal effects are shared amongst the children. There is however no discrimination as to the sexes as both male and female children can inherit.
In Omonuekanrin (on Itsekiri Law an Custom [1942] pg 73-75), it was stated that, the chief mourner{the eldest son} calls a meeting, divides property between the children born in and
those born out of wedlock, they all have equal rights. The legitimate children however insist on a better share and where the property is small, higher consideration is given to the legitimate children. The eldest son who is generally the next-of-kin by custom has the largest claim. He could use the family lands held in trust by him provided he gave a portion of the fruits derived therefrom to his brothers and sisters. He cannot alienate but can only sell part of the family land with the consent of all principal family members. There is a popular saying among the Itsekiri “e ne biro omoparan tse oronokun” meaning “be what it may, the heir must receive the coral bead and necklace” ;this was a sign of authority or the delegation of the powers of the deceased to the next of kin.
Generally, the children have three major options which have been posited by Dr. Odje in sharing the property. They include:
- Sharing equally without any distinction.
- The male children get larger shares against the female children yet within the same sex, they share equally. This is akin to the Islamic mode of inheritance.
- Sharing the estate in the order of seniority whereby older ones get larger shares, that is, in descending order.
The home of the deceased becomes his children’s family house the eldest male child may move into it to take his father’s position as head of the house/home but this does not make it his property. It is jointly owned by him and his siblings and family activities are held here. The eldest child, eldest son and sometimes the last child have some special consideration during the distribution, and if the deceased had grandchildren, the oldest among them has a gift. The same formula goes for the distribution of a woman’s estate, the only difference is that it is never distributed by stripes (i.e. fathers). If the deceased did not have children or grandchildren who survived him, then his estate goes to his larger family or siblings.
- URHOBO OF DELTA STATE:
As a matter of emphasis, the Urhobos’ adopt the practice of primogeniture. This concept of inheritance places critical importance on the idea or concept of first born males. Thus, the demise of the family head in the person of the father puts the first born male in immediate contention for the property and estate of the demised family head. This practice even extends to the succession to the crown or throne of the Monarch in Urhobo Kingdom.
The eldest son must as of right inherit the house in which the deceased father
lived while he was alive.If a man had many wives whilst he was live, the per-stripes (per gate) method is often preferred.
In Thompson Oke v. Robinson Oke[17], a testator died on December 1960 having devised to the first defendant a house in which he lived and died. The plaintiffs, the eldest son and daughter of the testator whose mother, permitted her husband, an Urhobo, to build a house and some adjoining apartments on a parcel on her family land. The husband (testator) lived therein during his lifetime. The defendants are the younger sons of the testator.
The plaintiffs with the consent of the family took out letters of administration in the belief that their father had died intestate. No sooner had the plaintiffs taken out letters of administration than the first defendant deposited a disputed Will with the probate registry at Ibadan and he was the principal beneficiary under the Will. The question then arose as to whether the testator, who was an Urhobo man could devise the house by Will to the first defendant, who was the testator’s son by another woman or whether the Itsekiri Customary Law of the plaintiff’s mother which is the same as the Urhobo Law of succession should govern the distribution of the estate so that the eldest son of the testator should alone inherit the house in which the testator lived and died. The plaintiffs called eight (8) witnesses, whilst the defendants called five (5). The plaintiffs witnesses gave evidence as to the Urhobo Customary Law of inheritance, according to which a house in which the deceased father lived during his lifetime must be inherited by the eldest son, if any, and added that the personal effects of the deceased would then be distributed per stripes among all the children of the deceased father. The trial court believed the evidence of the witnesses and held that the first plaintiff is entitled to the house as the eldest son of the testator under Itsekiri/Urhobo Customary Law. The Supreme Court upheld the judgement of the High Court. The court held that the testator in the instant case, could devise the property as he purported to have done to his first son in accordance with the Urhobo/Itsekiri Customary Law of succession.
Again, the wife or wives of a deceased Urhobo man are part of his property to be inherited. However, the widow has a right of choice whether to re-marry or not to re-marry. Where she
refused to re-marry, she cannot be compelled by the family of her deceased husband. There is no such thing as “a child born out of wedlock” in some places in Urhobo. All children of the man are legitimate and the first son of the man will inherit the home he lived in during his lifetime.
In the absence of the first male born, any other male descendant, regardless of age, functions in that capacity. In Okpe, no female can play the role regarded for the male child in accordance with the tradition, yet female descendants are never diminished in Okpe, not even after years of marriage to other families.
If an Urhobo man dies without a Will, it is axiomatic for his legacies to be scattered by his wives, children, brothers, uncles, etc. There is always a big fight to cart away his properties. Some even come for his wives. It should be noted that among the Urhobos, a reliable, loving and kind wife or mother can also be bestowed as the family Head and the administrator of the family estate. She becomes the Oni Emo (mother of children) in the family and not just her biological children.
For the eldest son to inherit from his father, it is a condition that he must play some specific roles either at the death of the father, their mothers or some rituals at home.
The mode of inheritance is strikingly similar to that of Benin. Hence in relation to the principle of primogeniture where the eldest son takes over/inherits the house where his father lived, the following cases can be considered;
In Ogiamen v. Ogiamen[18], it was stated that the eldest surviving son’s right extends not only to Igi Obe (house/houses where the deceased lived, died and was buried) but also to all the properties and he, as the sole heir is entitled to all the properties without the consent of the other children. According to the Supreme Court, this right is only subject to any gift of his property which the father may have made during his lifetime to other children or to outsiders. In fact, when this was challenged as being repugnant to natural justice, equity and good conscience, the Supreme Court said “we see nothing wrong in this custom, we can only say that it is not unknown in some other highly civilized countries of the world”.
This view was followed in Ehigie v. Ehigie[19]. In Idehen v. Idehen[20], the court held that the eldest son is entitled to the principal personal effects of the deceased including all his hereditary titles and what is left is distributed among the other children. Here, the eldest surviving son retains the property in the trust for himself and other children except the Igi Obe which he holds exclusively. But it must be noted that unlike in Benin, where the eldest son has to complete the second burial of the deceased (marked by the ceremony called Ukpomwan), such rule does not exist in Urhobo land.
CRITIQUE AND COMMENTS:
Section 42(1) of the 1999 Constitution provides that: A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion, political opinion shall not, by reason only
that he is such a person: (a) be subjected, either expressly by or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places or origin, sex, religion or political opinion are not made subject. The section also provides that no citizen shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
Article 1 of the UN Convention on the Elimination of ALL forms of Discrimination Against Women (CEDAW) defines discrimination as “any distinction, exclusion or restriction made on the basis of sex in the political economic, social, cultural, civic or any other field”.
Article 13 stipulates that women have the right to obtain family benefits, while Article 15 states inter alia that women have equal rights with men in matters of law that relate to business contracts. Under Article 16, women are empowered to own and give away their property.
Nigeria ratified the (CEDAW) treaty in 1985. She is therefore bound by its provisions and any contrary application must be declared null and void.
In spite of the above provisions which prohibit discrimination on the basis of sex, there is still a myriad of laws and customary practices in Nigeria which discriminate against women, and this is more evident in cases of inheritance. However, our focus lies not only on the discrimination against women, but also on the way the deceased intestate’s estate is distributed among his children, male and female.
Under the Isoko, Urhobo, Ijaw and Itsekiri ethnic groups of Delta State Customary Law, widows cannot inherit her deceased husband’s property. This is the rule under Customary Law generally. Only Islamic Law does not follow this seemingly unfair practice. The rule has however been justified by some scholars in the sense that under native law and custom, devolution of property follows the blood, therefore a wife not being of the blood has no claim to any share.
In Sogunro-Davies v. Sogunro-Davies[21] ,Beckley J stated that Yoruba Native Law and Custom deprived the wife of inheritance rights in her deceased husband’s estate because devolution of property follows the blood.
The only exception to this repugnant customary practice is in a situation in which a widow chooses to remain in her husband’s house and retain his name, she is to that extent, entitled, notwithstanding that she has no children. This is to ensure her maintenance but she cannot transfer any of the husband’s property outright.[22]
The widow only has possessory interest in the house or farmland so she cannot dispose of it. Dr. Oni, in his article submitted that this custom is repugnant and offends the principle of natural justice, equity and good conscience. This is based on the consideration that the wife, during the existence of her marriage and during the deceased husband’s life might have labored and toiled to bring about the acquisition of such property together with the deceased husband. It is therefore morally repulsive to deprive her ownership of such property.
It should be noted that husbands are equally not allowed to inherit his deceased’s wife share of her family property as he is regarded as a stranger. If the wife had no issues, her property goes to her relatives. But the husband has a right over personal property. Also, her ante-nuptial property remains the property of the wife and goes to her children jointly upon her death. If she had no children, same goes to her relatives. But when her ante nuptial property is mixed with the property acquired during overture and where she is predeceased by her husband and all her children, the property will go to her husband’s relatives. This is because inheritance of the wife’s property by her husband in default of issues contradicts the general principle that devolution follows the blood but is explainable by the fact that marriage has the effect of transferring the wife to the husband’s patrilineal. This is practiced in Kalabari Clan of the Ijaws where, under Iya (big) marriage, the wife & children have right of inheritance.
The fact that a husband is deprived of inheritance in his deceased wife’s share of her family property is justified as seen in the case of Nwugege v. Adigwe[23] where the court explained that “it is unheard of that a man marries a woman and lives with her in her house, which is equivalent to accepting the custom that a woman should marry a man and not otherwise” . Under the Ijaw customary Law, the Kalabari Clan undertakes either the Iya (big Marriage) or Igwa (Small Marriage). The Iya marriage is seen as more favourable than the Igwa marriage due to the way either of them determine the inheritance of the wife and the children.
Dr. Seinye O. B. Lulu-Briggs, wife of the Paramount Head of the Opuwari Briggs compound of Abonema; High Chief (Dr. O. B. Lulu-Briggs; also the Iniikeiroari v. of the Kalabari Kingdom) was a Guest Speaker at the 8th Edition of the Annual King Kariboye-Abbi Amachree IV Lecture, which took place in Busuma, the “Kalabari Kingdom”, she gave her view on the Kalabari marriage system as it relates to inheritance:
“For the Kalabaris, she said, the Iya marriage is considered as the highest, most legally binding type of marriage. An Iya wife is accorded the highest of rights in her husband’s home as well as in the community. Also, the offsprings of an Iya marriage have full rights of inheritance in their father’s family”.
She noted that there is a disenfranchisement of women married under the Igwa marriage. An Igwa wife, according to her, cannot exercise any right in her husband’s homestead and she and her children are often treated as second-class “property” that may or may not be upgraded to Iya marriage, which in turn breeds frustration and hatred and pain. This has led to the situation where today’s Kalabari women tend to be indifferent, expect nothing and make little or no demands of their husbands. This in turn has made the average Kalabari man to lose sense of responsibility toward his wife and children.
The second area, according to Dr. Briggs, relates to the Iya marriage, since the ceremony is so elaborate and expensive, many young couples tend to either cohabit informally or stop at the Igwa state of marriage. All of these, place tension on marriages and robs families and even communities of peace, love and stability, which should thrive within our homes and society. The consequence of all these is that the Kalabari kingdom has majority of women bearing children who grow up only to be shocked when informed of their status (or the lack thereof) in their fathers’s house. They are usually disinherited, not by their loving fathers but by the Kalabari tradition itself.
When asked what she considered the solution to the situation, Dr. Briggs replied that, in her opinion “the dichotomy between the Iya and Igwa forms of marriage has outlived its usefulness and it is high time this division is eradicated in Kalabari land. Hanging on to a cultural norm that does not contribute to the betterment of the society is very detrimental. Societies evolve and progress with time, carrying along with it, all its mores and values. When certain aspects of tradition become retrogressive, (such as killing of twins, etc) it is usually discarded. The acceptance and even promotion of a marriage system that push our young women into promiscuity and our young men into irresponsible moral behaviour should not be allowed to continue. We should review and even question the relevance and utility of some of our non-progressive traditional ways of doing things, while upholding the values that make a Kalabari person unique. I therefore strongly recommend that the Igwa marriage be totally discarded and replaced with Iya marriage, which should be reformed in order to accommodate the rich and the poor.
Also a situation may exist where the man marries one wife under the Iya marriage and another wife under the Igwa marriage. She will no doubt feel sad about the situation of things and the fact that her children will inherit less than the children of the first wife.
Also, for the Mein Clan in Ijaw, Delta State, it is commendable that even when a child is born outside wedlock, he can have a room in the house. Although the eldest son gets the parlour. A woman who has no child is not entitled to any land. In our opinion this is just. But the fact that widows are given out to the deceased’s close family members for “their care” may be unfair if the women have no say whether they want to be given out or not and to whom.
Among the Itsekiris and Urhobos where the primogeniture rule fully applies, the property devolves in the eldest son exclusively. This mode of operation has been subjected to a lot of disadvantages.
One of the problems associated with this is that, like most polygamous homes, there is always anarchy and destructive behaviour even to the extent of consulting diabolical means. In this instance, the first son who is in the position to inherit becomes hated by all members of the family including his own father because of these hereditary rights because these traditions must be followed irrespective of whether the father has a different alternative to inherit his properties.
Secondly, one of the disadvantages attached to this mode is that the eldest son’s life begins to revolve round carrying out duties attached to his position as the first son. All his actions and inactions must be geared towards protecting the family property and legacy which in turn deprives him of certain opportunities e.g. he cannot aspire to do anything that will jeopardize his position as a first son of the family.
A question may be asked whether the first son can refuse to take up responsibilities or duties attached to being a first son. The answer to this is that nobody can take up the position as the first son, although another could carry out the responsibilities attached to that position, however this must be done on behalf of the first son or in his stead but never as a replacement.
Also, the rule of primogeniture is unfair to the youngest children of the family who are barred, hence it is repugnant to natural justice, equity and good conscience, it is unconstitutional, unfair and unjust.
Another disadvantage is that the eldest son is not strictly accountable to his younger siblings for his use and enjoyment of the property.[24] Although the eldest son, as the head of the family holds no legal estate in the property, chances are that he might use the estate in such a way as to make it empty before he is succeeded by his next brother on his death. At times, the eldest son for the purpose of maintaining peace and harmony gives at his discretion part of the estate to his younger brothers.[25] It must, however be borne in mind that, this discretion exercised at the whims, and caprices of the eldest son is not enough to cure that evil inherent in such a custom.
One may say that the reason widows are not allowed to inherit is because they are allowed to inherit from their fathers so it would be unfair for her to inherit in her father’s house and also inherit in her husband’s house as equity leans against double portion, and besides, any property the woman brings to her husband’s house goes back to her family when she dies as her husband cannot inherit from her. However, one may argue that in a situation where a woman buys a property in conjunction with her husband but allows his name to be on the document of the property, does it mean she has no right to the property because it is not in her name also? African women tend to believe that the head of the (nuclear family), the man, has the right to have the property purchased in his name. But under customary law, it would not be tenable by the woman that she and her late husband bought or built the property together except she has evidence to prove it or witnesses and besides she is a chattel to be inherited so it makes no difference.
Another reason why widows are not allowed to inherit from their late husbands is because they have the tendency to remarry especially if she is still young and if she is allowed to inherit, she would take such property to her new husband’s house (a new management), thus the property leaves her deceased husband’s family. Isoko and Itsekiri group are patriarchal and male dominance is present in every sphere of the society including succession, this is also a reason why women are not allowed to inherit. Women in traditional Isoko were expected to be subservient to their husbands, so allowing a woman inherit would be an act of making her feel superior in her capacity as a woman.
RECOMMENDATIONS
Since the law of inheritance touches every individual in the society, it merits close attention. The law must be reformed to redress the inadequacies and harsh consequences of some customary law applications. In this regard, the following recommendations are suggested:
- Unification of customary laws: this will apply a single set of law to all major tribes in Nigeria, eliminating the problems of uncertainty and inconsistency that multiple sets of law impose.
- Application of the principles of natural justice: to cushion the harsh effect of some of the customary laws and to fill the lacuna created by them, the agencies that implement the law should apply the principles of natural justice, where injustice would result.
- Promoting the role of Non-Governmental Organizations: Nigeria should promote and encourage the role of NGO’s to educate, enlighten and inform women and the society at large on the need to recognize and eliminate discriminatory gender practices in our customary law.
- Option of will: It is imperative for people to make wills so as to avoid situations whereby their estates will be governed by customary rules of inheritance. A person can dispose of his property in the way and manner he deems fit and proper to any person of his choice and in any proportion as long as it is stipulated in his will.
- Women’s movements should intensify efforts that will bring about legal literacy. Mass literacy and legal education of the public should accompany reforms in law. This will enable women to become aware of channels of legal assistance and action. Women should learn to take matters that concern them to the Courts, and refuse any kind of pressure to withdraw the matter from court for adjudication at home. This is because, any kind of adjudication out of court would be according to tradition.
CONCLUSION
We have considered the Isoko, Urhobo, Ijaw and Itsekiri ethnic groups of Delta state. One can deduce from the above that although both male and female children are allowed to inherit from their deceased father’s estate, there is still inherent discrimination against the wives and widows in some cases. This is clearly repugnant to natural justice, equity and good conscience and is also contrary to constitutional provisions.
They go against Article 18(3) of the African Charter on Human Rights which stipulates that the state shall ensure the elimination of every discriminatory practice against women and ensure the protection of their rights as well as Article 13 of the CEDAW, which provides that women have the right to obtain family benefits.
From the foregoing, it is suggested that there be enlightenment programmes available to all persons to enable them discover their constitutional rights which they are entitled to. They should be educated so as to consider other favourable modes of inheritance rather than rely only on customary law.
The courts should also ensure that efforts are made to eliminate discriminatory practices as this would yield positive results.
[1] Merriam Webster.
[2] Black’s Law Dictionary (BLD).
[3] Nwabueze B. O. Nigerian Land Law.
[4] Woodman G. R. op.cit 1990. The Budapest Conference Paper 1-27.
[5] Okoro N. “Integration of the Customary and the General (English) Laws of Succession” in Integration of
Customary and Modern Law Systems in Africa 1964 at p. 251.
[6] Section 36.
[7] (1957) 2 FSC 33.
[8] Article: The Pointer: “Who is a legitimate child under Native Law and Custom?”
[9] Nwogugu E. I. op .cit. p.315.
[10] Per Holden C. J. in Solomon v. Gbobo (1974) E. S. C. N. L. R. 457.
[11] Okoro N. op.cit. pp.149-150; also Nwogugu E. I(. op.cit. p. 315
[12] Ibid.
[13] Article; Nigeria: Inheritance of the Ijaw title “Pere” and consequences to an only son if he refused the title;
whether human sacrifices are practiced in conjunction to this title. Author: Research directorate, Immigration and Refugee Board, Canada.
[14] “Changes in the marriage system of Okrika Ijo” Africa. Vol. XXXII (1962) 53 58-60.
[15] (1974) 1 ALL NLR (pt 1) 443.
[16] “A Royal History of the Okpe-Urhobo of Nigeria by Prince Joseph Asagba”.
[17] 1974 1 ALL NLR (pt. 1) 443.
[18] (1967) N.M.L.R 245 at 247.
[19] (1961) ALL N.L.R 871.
[20] (1991) 6 N.W.L.R 687.
[21] (1929) 2 NLR 79 at 80
[22] “Discriminatory Property Inheritance Right Under the Yoruba and Igbo Customary Law in Nigeria: The Need
for Reforms”: Dr. Babatunde Adetunji Oni.
[23] (1934) 11 NLR 134.
[24] Taiwo v. Dosunmu (1966) NMLR 94
[25] Nwogugu E. I. op.cit at 412.
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