CHAPTER ONE

INTRODUCTION

1. BACKGROUND OF THE STUDY

The law of succession involves the transmission of the rights and obligations of the deceased person in respect of this estate to his heirs and successors[1]. It equally deals with the rules governing the administration of the estate by the personal representatives of the deceased person including state participation in respect of the real estate situate within its territory and personal estate of the deceased person subject to its jurisdiction. Succession may be testate or intestate. Where a deceased person made a will, he is said to have died testate. Where a deceased’s person did not make a will, he is said to have died intestate. In customary law, this distinction is of marginal importance because under customary law, intestacy is the rule. The only consideration of a testate succession under customary law is a nun-cupative will, also known as death bed declaration. Inheritance issues are varied across the length and breadth of Nigeria. The law of succession and inheritance is a reflection of the legal pluralism inherent in Nigeria. In general, in cases of inheritance of property of a person who dies intestate in |Nigeria, the personal customary law of the deceased that is, customary law to which the deceased was subject, governs the distribution of his estate[2]. The system of customary inheritance varies from one ethnic group to the other. The class of people who should benefit from intestate succession and the share of such beneficiary is not free from problems. The aim of this paper is to critically analyse the problems generated as a result of discrimination of property inheritance rights under the various customary law with particular reference to the customary laws of the Yoruba and the Igbo in Nigeria and its effects on the rights of women, daughter, illegitimate children and adopted children. The paper discussed the various discriminatory practices and proffer solutions and possible reforms.

        In all Western systems of law, succession or inheritance (terms which is often used interchangeably) forms part of private law and is concerned with the principles which determine the distribution of a deceased’s estate after his or her death. In customary law, however, the terms “succession” and “inheritance” are ascribed distinctive meanings. The mere division of a deceased’s assets among his or her heirs would be regarded as inheritance in African customary law. Inheritance can either take place  according to the provisions of a will, i.e, testate inheritance – or “in accordance with the rules of the common law where no will exists, ie, intestate inheritance”[3]. Succession on the other hand, is mainly concerned with succeeding to the “status of the deceased”, ie, assuming the role of the deceased or taking his position and obtaining authority over the people and property over which the deceased exercised authority. The customary law of succession therefore outlines the principles to be followed at the death of a deceased (ie, usually the family head).

1. STATEMENT OF THE PROBLEM

Amongst all tribes in Africa, succession to status in African customary law is based on the principle of primogeniture. According to that principle, the eldest or oldest son is the only person eligible to succeed the deceased. This means that women and younger siblings are excluded from succeeding to important positions of status purely on the basis of their gender or birth. This is not the case in Western law, as all persons are entitled to inherit the property of a deceased person irrespective of their gender or birth. The fact that women and younger children are still discriminated against in this day and age on the basis of an age old customary practice can no longer be tolerated. This is especially relevant in the context of the fact that it has become a current trend in most African states to adopt Constitutions which guarantee numerous fundamental and human rights, including such rights as the rights to culture and equality[4]. To this end, this study therefore generally considers the impact of the family law of intestate succession on the rights of women in tribal communities in the countries of South Africa, Ghana and Swaziland. The basic objectives of the study are to: (a) determine the elements of both the customary and common laws of intestate succession applicable in each of the countries mentioned above; (b) to determine the role of the courts and other institutions in resolving disputes related to succession but more importantly; the ability of courts to initiate change to the existing rules of family law affecting intestate succession; (c) an evaluation of the impact of the provisions of the Constitutions of each of the afore-mentioned countries on the family law of intestate succession; and (d) an assessment of whether the laws currently in place are able to effectively eradicate discrimination in this contentious field of the law.

1.3 AIM AND OBJECTIVES OF THE STUDY

The main aim of the research is to carry out a legal discourse on the concept of succession in family law. The objectives of the study are:

1. to examine succession in family law in Nigeria
2. to determine the causes of succession in family law
3. to investigate the factors affecting succession in family law

1.4 RESEARCH QUESTIONS

The study came up with research questions so as to ascertain the above stated objectives. The following research questions guide the objectives of the study:

1. What is succession in family law in Nigeria?
2. What are the causes of succession in family law?
3. What are the factors affecting succession in family law?

1.5 SIGNIFICANCE OF THE STUDY

The study on legal discourse on the concept of succession in family law will be of immense benefit to the Nigeria judicial system, families and the society at large. The study will look at the structure of Nigeria family law and how it affects inheritance, marriages and child right. The study will also serve as a repository of information to other researchers that desire to carry out similar research on the above topic. Finally the study will contribute to the body of the existing literature on the concept of succession in family law

1.6 SCOPE OF THE STUDY

 The study on legal discourse on the concept of succession in family law will cover on the structure of Nigeria family law and how it affects inheritance, marriages and child right.

1.7 DEFINITION OF TERMS

Succession: In legal parlance it means succeeding to the rights of another, as where a new corporation which is a reorganization of another corporation takes the rights of the old corporation.

[1] Rautenbach C, Du Plessis W and Venter AM “Law of succession and inheritance” in Bekker JC, 1 Rautenbach C and Goolam NMI Introduction to legal pluralism in South Africa (2006) 93.

[2] Rautenbach C, Mojela K, du Plessis W and Vorster LP “Law of succession and inheritance” in Bekker 2 JC, Labuschange JMT and Vorster LP Introduction to legal pluralism in South Africa Part 1 Customary Law (2002) 109

[3] Maithufi IP “The effect of the 1996 Constitution on the customary law of succession and marriage in 4 South Africa: Some observations” (1998) De Jure 288.

[4] Kerr AJ The customary law of immovable property and of succession (1990) 99. See also Sonti v Sonti 6 1929 NAC (C&O) 23 at 24