NORTHERN SUCCESSION IN NIGERIA
INTRODUCTION
The rights humans enjoy over his property (real or personal) extends the period of death and survives the owner while devolving on his personal representatives by operation of law. These personal representatives may either be executors or administrators. The legal strata governing succession in Nigeria can be best be described as a combination of Nigerian legislation, English law, customary law (including Islamic law) and judicial precedents and this comes because of a plural-legal system.
Succession law deals with how to distribute a deceased individual’s property. A proper succession must determine which individuals or groups are the appropriate heirs and summon them to the succession. Once the succession is arranged, all heirs must decide how to best distribute the inheritance and must manage the inheritance appropriately according to law.
The laws governing succession in Nigeria can be divided into two broad categories namely Testate and Intestate succession. This classification can be further divided into intestate succession (Non customary) and succession under customary law.
In the Northern part of Nigeria, three systems of Native Law and Customs and Legislative Inheritance laws are in Operation, that is, Indigenous Native Law and Custom, Islamic Law and statutes.
Under the indigenous system, the Male children inherit their late father and or Mothers property, and after them, the brothers of the deceased. Females do not have inheritance right. However, under Islamic law there is no discrimination as to sex. The rules of inheritance are to be found in
Chapter 4 verses 7, 11 and 12 of the Quran. Chapter 4 verse 7 says:
“Men shall have a share in what their parents and near relatives leave and women shall have a share in what their parents and near relations leave; whether it be little or much, it is legally theirs" wives inherit 1/4 ,if no child and 1/8 if there are children”.
INDIGENOUS GROUPS IN NORTHERN NIGERIA
Some of these indigenous groups are Hausa's, Fulani's, Tivs, Idoma, gwari, Yauri, Nupe people amongst many others.
DICHOTOMIES AMONG THE NORTHERNS WITH RESPECT TO INHERITANCE
HAUSA
The Hausa ethnic group is one of the largest ethnic group in Nigeria. Under the succession system of this ethnic group, only the male members of the family are entitled to succession in the family. The sons in the family are the only ones entitled to succession of family property, and where there are no sons, the brothers of the deceased are entitled to the succession.
Its however important and of a major significance, to note that under the Hausa ethnic group, Islam is a major religion peculiar to them and also makes provision in its holy book the Quran, for succession of property of a deceased person.
Firstly, the number of wives and children would determine how the estate of the deceased would be shared. It will be shared 8times, 1 out of the 8 will be shared amongst the wives in respective of their numbers. The remaining estates would be mixed together and shared amongst the children.
Anything inherited by the girls, is half of what the boy or boys inherits. According to an interview with Mr. Hussein Ali from Kano a staff of the Nigerian Institute of Advanced Legal Studies (NIALS) Librarian. “In Hausa land we follow Islamic method. Inheritance in Islam is done by God. God himself made the division, we follow whatever is in the Quran. Sometimes we do the division ourselves if it’s complex. For instance were the man has up to four wives and they are not united, when he dies and there are some misunderstanding in sharing the property, we involve the sharia court. Mr. Hussein gave an experience of his brother that died and left behind fifteen children seven female children and eight male children. And also left behind various property of which generates very huge amount of money to the children. He stated that he is the one in custody of the sharing to the children. About 500,000 Naira is being transferred to him from Kano, and he shares it to the children. He stated that the children are grown and should take over the property but they have refused to and plead that he continues to hold the property for them. He stated that the first child can have the property and continue the distribution to the family. But were such child is insane or not responsible, the second can take over. In relation to title, he stated that the first son can inherit his father’s title however subject to the set down rules. He cited the example of the Emir of Kano Aldobiro that wanted his son to take over the chieftaincy title. After his death, his son was however not given, the chieftaincy title was given to His Uncle. He also stated that the wives are entitled to inherit if she has a child even if it is one. She takes 1/8 of the property and if she has no child, she takes ¼ of the property and the remaining ¾ goes to the husband family. The wife cannot take everything at all he said. He also added that were a man however dies leaving a will, if in his will he gives 1/3 of his property to outsiders, Islam will ask that it be quantify and redistributed for the benefit of the family.
Gombe State
Is a multi-ethnic society which comprises of the dominant Fulani tribe that inhabits the Northern part of the Gombe State and Tangale which occupies the southern part of the State.
FULANI
If one lives up to the palaaku code and obeys Allah's laws, there will be rewards in the afterlife. The Fulani, in common with other Muslims, believe in an afterlife of material rewards for the followers of Allah.
In the North, the Moslem rules of succession, under the Maliki code, have been largely absorbed into their indigenous system of property inheritance. Among the Fulani for example, the eldest son inherits his deceased father's cattle, the main asset in those days, out of which he makes presents of some of them to his younger brothers according to their needs. The females are not entitled to inherit cattle's under the fulbe customary system of the Fulani's.
The advent of the English into Nigeria changed and displaced, to a large extent, the local rules on inheritance. Of course, our Nigerian Courts have always made an effort to preserve and ensure that where possible, our fundamental local rules, which are equitable and not repugnant to natural justice and good conscience, are not totally displaced by the English rules of making a Will or establishing a private trust.
An example of the protection of some of our customs is the principle that a deceased person can only devise by his/her Will, his/her real property, which he/her has absolute title to and or, can freely dispose of under native law and custom.
Customary law on inheritance can also be displaced by necessary implication by the kind of marriage that the deceased contracted. One of the incidents of monogamous marriage under Common Law is the ouster of the rules of customary law on inheritance. See Section 49 (5) of the Administration of Estate Law, Cap 3, Laws of Lagos State; Cole v. Cole [1898] 1 NLR 15.
TANGALE ETHNIC GROUP.
An Interview with Dr. Fatima Olaleru Department of zoology faculty of science university of Lagos. She hails from North east Gombe Tangale ethnic group. She explains that the people of tangale lives in clans, their property basically is their land, farmland, domestic animals and livestock. She stated that inheritance goes to the children. She however emphasized that religion precedes more on the inheritance system than the custom in the north especially the Islam religion. Under the Tangale succession system however, the lady is not entitled to inherit from her father’s property as she is believed to have been sold off to her husband and everything she has is the man’s once he pays her dowry, and when she dies she is not to be brought home, but buried in her husband’s house. Only the boys inherit. The female children however can take the movables of their mother for instance her clothes.
In relation to Title, only the boys are allowed to inherit the title however based on certain norms and rules. She shared with us an experience of her uncle who after his death had his first son inherit the title. The firstborn however had no children and died. His other brothers were not allowed to inherit the title, another family lineage laid claim to it and stated that it had reverted back to their lineage. She also gave instance of her mother death. According to her, her mother died as a Christian however married to a Muslim before conversion, her siblings who are still in the practice of Islam, were not interested in their mother’s property and asked her to take over them. The livestock and some moveable’s given to the mom by her senior sister were all inherited by her has she has also been converted to Christianity.
She added that the married women as a part of their culture, are not allowed to do anything. The husband goes to the market, buy food stuffs, fetch fire wood, and allows the woman stay home to teach the children the Quran and may be do little domestic chores, so that another man would not snatch her for himself if she goes out. The young girls hawk, fetch water and do other works. When a girl is about to wed, a particular song is sang for her, stating that “she is free from going to the market, fetching water, and her status is changed”, as the man takes over this responsibilities. However due to various challenges of life, you find them hawking Kunus, selling food at motor parks, just to make ends meet.
TIV
The Tiv people belong to a minor ethnic group in Nigeria numbering about six million. They have a rich history associated with their existence. The culture and tradition of the Tiv people is one that is envied by many who come in contact with them. The people of Tiv have some of the most unique cultures in Nigeria. Their traditions have been passed from one generation to another.
Every married woman has her own hut, at least after the birth of her first child. The husband's reception hut is surrounded by the huts of his wives. Each married woman has her own store of food; she cooks and takes food to her husband every day, and he shares it with all the children present. The children also eat with their mothers. Several such polygamous families, linked by the agnatic links of the husband/fathers, live in the same compound. Land is not, properly speaking, inherited. It is a right of lineage membership. Ritual positions are not inherited. A man's personal property is taken over by his sons and grandsons, a woman's personal property by her daughters-in-law.
Tiv people are not levirate but often in the case of widows, they will go to a brother of the deceased. The person who inherits the widow is almost always within the same compound as the late husband. Some customs there allows some to inherit their father’s wives, others admit brothers only. Some prefer that the widow goes to half-brothers while some full brothers and it is felt full brothers would take better care of the children.
MARKIS & VERBE
Among the Markis group of the Verbe of Northern Nigeria, the rule of ultimogeniture applies, whereby inheritance is by the youngest son, which applies to brother heirs of the deceased landowner. Ultimogeniture also known as postremogeniture or junior right, is the tradition of inheritance by the last-born of a privileged position in parent’s wealth or office. The tradition has been far rarer historically than primogeniture (sole inheritance by the first-born) or partible inheritance (division of the estate among the children).Ultimogeniture is considered appropriate especially in circumstances where the youngest child had been assigned the role of "keeping the hearth, taking care of the parents and continuing at home, whereas elder children had had time and opportunity to succeed in the world and provide for themselves. In variation on the system, elder children might have received as hare of land and moveable property at a younger age, for example when marrying, and founding their own family. Ultimogeniture is also being considered appropriate for the estates of elderly rulers and property-owners, whose children were likely to be mature adults.
YAURI
This ethnic group is one of the smallest groups who inhabit the tropical savannah region of Northern Nigeria. Noted for its ethnic heterogeneity, the group is currently found in more than one State. Today, the Dukawa and Kamberi as well as the Shangawa, Gungava, Lopawa, and so on consider themselves native of the Yauri group. A brief discussion of the inheritance system of the Dukawa and Kamberi would hereby be done to bring into greater focus the succession rules which underpinned the Yauri culture
DUKAWA
The Dukawa are acephalous, having no distinct leader or head chief. They value egalitarianism, believing in economic, political and social equality of mankind. Land ownership is communal and the people live in compounds of the extended family known as "dengi". Land is freely shared among each member of the “dengi" to farm and feed his nuclear family.
The rules of inheritance is patrilineal. The eldest son inherits the father's property as well as his familial authorities. With the absence of sons, a deceased man's inheritance devolves to the "dengi", the extended family. Widows are inherited, with their consent, by the deceased's younger brothers, and never to an elder brother. This is so because sexual relations with the latter is tantamount to having intimacy with the woman's father-in-law, which is incestuous.
The mode of inheritance stresses the unity of the people, their togetherness and how interwoven the society is.
KAMBERI
Like the Dukawa, the Kamberi place high premium on land, for their subsistence lifestyle. The people have a bride service "gormu" system which requires a young man along with his companions to work on his father-in-law's land for seven years before having marital rights to his prospective wife.
Kamberi children born before marriage are entitled to the man's inheritance since culturally the people such "illegitimate" children as a good omen, a blessing for the oncoming marriage. Where a woman is caught in adultery, she is divorced by her husband and she forfeit all her property to him including the children. Such action emphasizes the sharp distinction between male and female. Also, while men carry loads on their heads, women are only permitted to carry load on their back, as a sign of male dominance and superiority.
Like the Dukawa, the Kamberi also have strong patrilineal bias. All property belongs to men. A woman only has the use of property including any that she brought to the marriage. She is given land on which she grows "woman's crops" such as Sheanuts, vegetables, etc. and women also brew local alcoholic beverages including giya and burukutu. Unlike land belonging to men, those farmed by women do not pass to their heirs but devolves on their husbands.
Moreover, children are also deemed to belong to the husband. At a man's death, the levirate system exist with the woman having refusal rights. A man was free to divorce his wife, for sins of infidelity. A divorced woman was considered an outcast in her immediate village and denied of all rights. She could afterwards only marry men in other villages.
Citation: Frank A. Salamone. The Hausa of Nigeria, Maryland, University Press of America, 2010
Idoma
Marriage in Idoma land is considered a lifelong affair, although divorce is possible on the grounds of adultery or other concrete reasons. When an Idoma man is at least twenty-five years old and has the financial and physical capacity to raise and maintain a family, he searches for and finds a woman of his choice, who is at least eighteen years old. He reports his findings to his family which may choose a go-between that is a person who know the girl's family to do some findings.
The Idoma lives in compact villages or in relatively dispersed family homesteads. Political ties exist primarily on the community level with a headman, or chief, who inherits his position along patrilineal lines.
Royal succession among the Idoma often alternates between two patrilineal lines, to some extent weakening the power of the ruler. The chief usually consults a council of elders before making any important decisions. In the past, age-grade societies and the related masking traditions contributed to social control.
A widow with young children does not have right to inheritance under the Idoma custom. She is only entitled if her children are grown up. A husband cannot inherit from his wife under the Idoma custom just as the wife cannot inherit from him. If she dies without issue, her property passes to her sibling. It is also the law that a husband cannot inherit property acquired by the wife during separation.
NUPE
Nupe people are Nupoid-speaking people living near the confluence of the Niger and Kaduna rivers in west-central Nigeria. The Nupe people live in the heart of Nigeria, spread over the low basin formed by the two rivers, Niger and Kaduna where Nupe people popularly refer to Niger as "Edu" and Kaduna as "Lavun."
The Nupe people have historical links with the Hausas of Katsina, Kano and Borno people. This is evident with few examples. Both the towns of Abaji and Eggan have traditions which confirm that they were founded by men from Katsina.
The Nupe live in large villages or towns called ezi. Small settlements are called tunga or kangi, words that signify a "daughter-settlement" of a village or town. The local arrangement of Nupe settlements is consistent, with clusters of compounds consisting of a number of walled compounds, or "houses," forming a ward, or efu. The wards are separated by stretches of open land and farms. A Nupe settlement with its scattered wards used to be encircled by a large town wall, whose remains can still be found in many places.
LAND TENURE
Under traditional conditions only men can hold or claim land. Lands were apportioned by the village head among the heads of families. The family head granted the right of occupancy to members of his family. Land cannot be sold, but it may be redistributed after the migration of the holder or the extinction of the family.
KINSHIP
Kin Groups and Descent. The Nupe have only one word for kinship, dengi, which defines relationship in the widest terms as well as in a more restricted sense. The basic structure of kinship is the extended family, which entails living together in the same "house" and recognizing a common family head, emitso.
Kinship and the access to political and religious rights vested in it are determined by paternal descent.
Within the kinship group generation, older brothers are distinguished from younger brothers, and the father's older brothers from his younger brothers. The older brothers, who represent the potential family heads senior to one's biological father, are called "father"; the younger brothers, who may be placed as junior relations under one's father, are called "little father."
The deceased's property is divided between his oldest son, other sons, full brothers, and daughter in decreasing proportions. The daughters are most times allowed in the succession system when it is divided in accordance to the Islam mode of inheritance. Islam is now the predominant religion in Nupeland. Traditional religion was however practiced before the introduction of Islam. Where such practices still occur, there is no societal recognition and practitioners are in secrecy due to shame, isolation and degrading status and the condemnation which practitioners are likely to face. Therefore, Islam is undoubtedly the predominant religion in the entire Nupeland with Christianity as the other religion practiced by a lower proportion of the population. Hence, the majority of Nupe people have their culture altered with the introduction and acceptance of Islam.
If the children are very young, the money is held in trust for them. If the marriage produce no children, a woman may inherit from her husband or the deceased's brothers may forgo their right in her favor if they feel she has been a very good wife. A Nupe woman's obligations as a wife however is to prepare meals for the family, perform child care, wash clothes, and bring firewood and water. Women spin, weave, cook food for sale at the market, or practice hairdressing. Men perform the primary productive activity, such as cultivating or transplanting crops; women occasionally assist in the harvesting. Women are in charge of preparing and marketing agricultural produce. The division of labour is flexible, and couples generally help each other when necessary.
INHERITANCE OF DECEASED WIFE ESTATE
The Estate of the deceased woman would be shared into 3. The husband takes 1 and the children 2. The children share the 2, the girls also get half of what the son or sons inherits. It must be noted however, that the estate of the deceased is usually shared by the Imam or King only if it's a peaceful family. However, if it is not a peaceful family, resort to the court will be employed.
All these modes are related to the Islam religion. Furthermore, in a situation where the deceased has no children, the wife or wives, and brothers of the deceased inherits. Also, where the deceased has no son, the brothers are also allowed to inherit. It must also be noted that adopted sons can inherit by provision of the Islam. Although some people might decide not to give.
Finally, if the deceased father is still alive, the wife or wives and children might not be able to inherit anything from the deceased.
THE RIGHTS OF THE ADOPTED CHILD
Adoption of children is rare and known mostly in English Law. The position of an adopted child as regards succession under the succession system is not very clear. It has, however, been established that the right of an adopted child is inferior to that of the legitimate child of the blood.
THE RIGHTS OF AN ILLEGITIMATE CHILD
An illegitimate child has been referred to as a child born out of wedlock, while a legitimate child is an issue of wedlock. Plainly, a child born out of wedlock whose paternity has been acknowledged by his natural father is as much legitimate as one born in wedlock. That is not the case, however. A child born out of wedlock during a marriage is not recognized under this system. Whether or not the child is acknowledged by the natural father; unless by custom, someone else has a prior claim to paternity of such a child. According to Dr Olaleru, under the Tangale ethnic group, children born out of wedlock most times stays with their maternal grandparents, and have no business with the immediate family of the deceased even if he takes responsibilities of them during his life time.
Rights of the children with DISABILITIES.
No discrimination to inheritance of children with disabilities. Dr. Olaleru gave an example of her cousin who is crippled and was never discriminated against. She stated that disability is quite common to the Northern as many of them are sometimes affected by polio and that it is not their making to be disabled.
According to Mr. Hussein, the disabled child is given his property equally and he/she can choose to use the proceeds to treat his/her disability.
CRITICISM
Section 42(1) of the 1999 Constitution provides that:
“A citizen of Nigeria of particular community, ethnic group, place or 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 forces in Nigeria or any executive 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”.
Section 42(2) 1999 Constitution equally provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
Article 2 of the African Charter on Human and People’s Right also guarantees similar rights in the following terms:
“Every individual shall be entitled to the enjoyment of the rights and freedom recognized and guaranteed in the present charter without discrimination of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion national or social origin, fortune, birth or other status”.
Article 1 of 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”. It further defines discrimination against women as “anything that can bring about unequal treatment between men and women in the course of their livelihood”. This article groups married and unmarried women together.
Article 13 stipulates in part 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 relates to business contracts. Under Article 16, women are empowered to own and give away their property.
Nigeria having ratified CEDAW Treaty is bound by its provisions hence anything contrary must be declared null and void.
CONCLUSION
Although, the mode of succession under the indigenous native laws and customs vary depending on the ethnic group or tribe, it is generally accepted that the first in line as heirs to a deceased persons property are his sons and the next his brothers. Females are excluded from inheriting a deceased man property. Although they inherit their mother’s entire moveable property. Land, whether owned by a man or woman is inherited by the males of the family.
RECOMMENDATIONS.
Since the mode of inheritance touches every individual in the society and indeed the community at large, it merits close attention. It thus must be reformed to redress the loopholes, the inadequacies, and the harsh consequences of some customary law applications. A society can be socially engineered in an effective way only if the law is fair, just, and humane. Indeed, operation of the rule of law respects the aspirations of all and consequently maximizes the happiness of all. In the spirit of utilitarianism, the greatest happiness for the greatest number, any law that pursues this end is an instrument of social engineering.
Thus as recommended by DR Fatima Olaleru, property should be inherited by the immediate family of the decease and not to the extended family, so as to help the family continue to survive from what is left behind by the bread winner of the house.
We also recommend that there be
- Harmonization of the Principles of Natural Justice with Customary Law and Religious Sentiment and Belief in Relation to Inheritance.
- Promoting the Role of Non-Governmental Organizations (NGOs).
The current changes in the law and practice in some of the Eastern States thus as resulted from the efforts of NGOs such as WACOL. We thus propose that this is also done in the Northern states.
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