Nigeria: Cultural And Legal Considerations In Family Land And Property Inheritance In Nigeria

CULTURAL AND LEGAL CONSIDERATIONS IN FAMILY

LAND AND PROPERTY INHERITANCE IN NIGERIA¹

1. Introduction

In pre-colonial times, customary law was the prevalent system of land tenure in the Southern part of Nigeria while a feudal land tenure system coupled with Islamic law operated in the North. With the advent of colonialism, a codified mode of land tenure was introduced into the country with the introduction of the Native Lands Acquisition Ordinance of 1900² and the Lands & Native Lands Rights Ordinance of 1916.³

However, the Land Tenure Law of 1962⁴ later vested all land in the North in the Governor of the Region while land tenure in the South remained predominantly customary law, coupled with the principles of English Common Law.⁵ In essence, the Northern and Southern parts of the country practiced a dual land tenure system until the promulgation of the Land Use Act in 1978 which now operates throughout the country, although the customary law still operates in the Southern part while Islamic Law operates in the Northern part.

Historically, individual land ownership was not a prominent feature of Nigerian Customary Law as was decided in the case of Amodu Tijani v. Secretary Southern Nigeria,⁶ except in places where there was proven evidence that the prevalent native law and custom permitted individual land ownership. Communal and family land ownerships were the two prominent and undisputed land holding concepts in most parts of Nigeria.

The Supreme Court also held in Huebner v. Aeronautical Industrial Engineering & Project Management Co. Ltd as follows:⁷

Family land refers to land which is collectively owned, managed, and enjoyed by members of a family, and usually passed down through generations with all individual members having the right to enjoy it. In a multicultural society like Nigeria, family land holds significant cultural, social, and economic value as it represents identity, history, community bonds and wealth.

It is crucial to recognise the cultural and legal implications of transfer of family land across generations. In this paper, we examine the relationship between customary laws and statutory laws of inheritance and succession in Nigeria as well as their application to inheritance of family land.

2. Creation of Family Land/Property

Family property can be created by either acts of the parties or by operation of law.⁸ The ways by which family land can be created as outlined in Usiobaifo & Anor v. Usiobaifo & Anor⁹ are:

1. By way of declaration (by an individual) of an intention to create family land inter vivos:¹⁰ For instance, where the land is purchased with money belonging to the family, or where an individual landowner expresses an intention to convert a land from individually owned to family land whilst still alive. This is an example of family property created by acts of the parties.
2. By way of declaration in a Will: This is where a testator declares in his will that a land be owned and held jointly by members of the family. This is another example of family property created by acts of the parties.
3. By way of Intestacy: Where a landowner whose estate is governed by customary law dies intestate, his land devolves on his heirs in perpetuity as family land. This is a general rule of customary law and an example of family property created by operation of law.

3. Rights of Individual Members to Family Property

Members of a family have property rights that arise from the family's ownership of a land. These rights can be enforced against even the family head and other principal members of the family who have or seek to deprive the family member of such rights. These rights include:

1. The right to make physical use of the property: This includes the right to occupy or use any portion of the family property allotted to a family member. Here, the family member has exclusive possessory rights only and does not acquire a legal estate in the property. A member who is deprived of the right to use the family property may go to court to seek redress.
   
   A member has no general right to occupy or use any portion of the family property except the portion allotted to him for use. But he has exclusive possession of the portion allocated to him and can in appropriate cases maintain an action in trespass against other members of the family for interfering with possession.
   
   
2. Right to have a say in the management of the property: Family Land is managed principally by the family head, in conjunction with the principal members of the family. However, each member has the right to be fully involved (and not to be alienated) from contributing to decisions made regarding the family property.
   
   
3. Right to have a share in any surplus income derived from the family property: Income could come from rents, mesne profit,¹¹ proceeds of sale, or compensation from government upon compulsory acquisition.
   
   
4. Right to seek partition or sale of the family property: Family members have the right to ask that the family property be divided up and a portion be allocated to them.
   
   
5. Right to protect the family property from unlawful alienation (right to sue): This right is vested in every individual member. Any form of unlawful alienation can be contested by an aggrieved member of the family. The court will not deprive a beneficiary from claiming his right in family land if senior family members neglect or refuse to assert them.¹² Family members can, for themselves and on behalf of other members or through their Attorney(s), institute an action in court to protect family property or to enforce their rights.
   
   
6. Right to transfer interest in the family property to heirs or successors: Family property can be transferred to heirs only upon the death of the first beneficiary of such property.¹³
   
   The ownership of family property is similar to the concept of 'tenancy in common'. When a tenant in common dies, his/her interest in the family property passes to his/her heirs or successors. This is so because the tenant in common's share of the family property is his to dispose as he wishes. Conversely, the joint tenancy concept involves a right of survivorship; if one of the joint tenants dies, his/her interest passes to the surviving tenant.
   
   However, ownership of family property is different from a tenancy in common in that no individual member of the family can dispose of the family property in his/her will until the property is partitioned.¹⁴

4. Alienation of Family Property

Alienation means the conveyance or transfer of property to another. Neither the family head alone nor the principal members of the family by themselves can validly alienate the family land or give a good title to any person with respect to family land. Any conveyance or transfer of the family property to a third-party purchaser must be done with the consent of family head and principal members, representing the rest of the members. The conveyance is simply effected by payment of purchase price and giving possessory rights in the land to the buyer in the presence of witnesses. A purchase receipt, which confers only an equitable title rather than legal title on the purchaser is issued at the instance or with the consent of the community or family under the alienation of family property.

Although family property may be allocated to members of the family, such family members cannot alienate or part with possession of family property without the consent of the family.
Alienation of family property without the consent of the family head is void ab initio. Where the family head alienates family land without the concurrence of the principal members, such conveyance is voidable at the instance of the family members.

5. Yoruba Customary Law of Succession and Inheritance

The system of customary land tenure in Nigeria is as old as the Nigerian society itself. Customary Law recognizes both absolute and possessory rights in land, which may be in the form of communal, family, stool and to some extent, individual rights depending on the particular community concerned. Given the ethno-cultural diversity of Nigeria, applicable customary laws relating to land holding, differ from place to place.

In Nigeria, where a person dies without a valid will (i.e., intestacy), the customary law of the deceased is applied to distribute the assets of the deceased.¹⁵ Under most customary law systems, the eldest male child is usually appointed family head and tasked with the day-to-day management of the property (i.e., primogeniture). This includes allocation/allotment of portions of family land to members for use, and where the property is let out to tenants, collection of rents and rendering of account.

Generally, when a Yoruba person dies intestate, title to his property devolves on all his surviving children in equal share. The eldest son (the Dawodu) assumes the position of family head, moves into the owner's residence and manages the family property for and on behalf of the other siblings.¹⁶ Where the eldest child is a female who has a strong and influential character or there are no male members of the family who are old and influential enough to assert a claim to the family headship, a female head might be made family head. It must be emphasized that there is no law or custom in Yoruba land that bars females from becoming family heads.

If any significant transaction involving family property is anticipated, all the family branches¹⁷ must be consulted and there must be proper representation of each branch in the family council according to the number of wives and children within each branch. The division of the family property will be in equal shares among the different branches, taking into consideration any property already received by any of the founder's children while the founder was alive. Additionally, the founder's compound is usually regarded as the 'family house' and is meant to be conserved for future generations.¹⁸

There are two basic ways of sharing a deceased man's estate under the Yoruba Native Law and Custom, namely, per stirpes (or Idi Igi) and per capita (or Ori Ojori).¹⁹ Under the Idi Igi method, the property is shared according to the number of wives of the deceased while under the Ori Ojori method, the property is shared equally among the children irrespective of the number of wives. The idi-igi is the general method of sharing, and vital part of the Yoruba customary law on inheritance. Where there is a dispute amongst the offspring of the intestate deceased as to the extent to which the estate should be divided, then the family head will decide if the ori-ojori method should be used instead of the Idi-Igi method.²⁰

The ori-ojori method is a comparatively modern method of allocation used in times of expediency to avoid litigation.

6. Igbo Customary Law of Succession and Inheritance²¹

There may be slight variations in the rules of inheritance and succession amongst Igbo ethnic nationalities. Nonetheless, the first male child commonly succeeds his deceased father and assumes the position of the head of the family. He inherits his deceased father's dwelling house or "obi" and the immediate surrounding compound, in addition to one distinct piece of land known as "ani isi obi".²²

Previously, all other sons (to the exclusion of female siblings) inherit the other lands and houses as a family unit. Females, whether daughters or widows had no right of inheritance or succession under the Igbo Customary Law. A customary law exception was created in the Idemili Local Government Area of Anambra State – where a deceased is survived by no sons, daughters on whom the Nrachi Ceremony²³ had been performed could inherit their deceased's father's property.

Though daughters were generally precluded from inheritance of properties, they had a right of maintenance from proceeds of the property as well as a farmland to meet their farming needs until they marry, leave the family, or die. This was the Oli-Ekpe custom.

However, this customary practice was declared repugnant to natural justice, equity and good conscience; void and unenforceable to the extent as highlighted below:²⁴

1. The custom directing that a widow with no male child may deal with the property of her deceased husband but with the concurrence of her late husband's family is equitable.
2. The widow cannot by passage of time assert the property as her own, even though she has the right to dwell in a building or part of it, but however, based on her good conduct.
3. The custom which grants the first male child (Okpala) the right to divide the property of his deceased father in the lifetime of the widow is barbaric and repugnant to natural justice, equity, and good conscience.

Similarly, the Supreme Court has declared customs which dispossess a daughter from her father's property or a wife from her husband's possessions are invalid.²⁵

7. Efik Customary Law of Succession and Inheritance

Under this Native Law & Custom, female children not only inherit their parent's property but are also appointed as family heads. However, such females are not expected to marry but can beget children outside wedlock. Her male children are expected to perpetuate the lineage, provided that the paternity of such male children is not acknowledged by their biological fathers.

A dominant feature here is the democratic will of surviving family members which overrides primogeniture. However, a widow has no right of succession but can be allowed at best, to stay in the family house (if she had children for her deceased husband) and will be taken care of as long as she remains of good behaviour.

Children born out of wedlock but whose paternity was acknowledged by their fathers before his demise are entitled to inheritance. However, legitimate children disowned by their fathers while alive for grievous offences, and those whose fathers returned the dowries paid for their mothers after divorce could be disentitled to inherit.²⁶

By some experiences, step children and children under guardianship (but not related by blood to the family head) who display good conduct while he was alive may inherit. Child adoption inheritance is unknown to Efik customary law.²⁷

8. Islamic Law of Inheritance

Islamic law provides for limitations to the testamentary freedom of persons subject to Islamic law, i.e., Muslims. Under Islamic Law, a testator can only dispose of one-third of his property; the remainder must be disposed of according to the Islamic rules of inheritance stipulated in the Quran.²⁸ The property of a Muslim that dies intestate will be fully administered in line with Islamic Law.

This custom is reinforced by similar provisions in the Wills Laws of various states such as Oyo, Kaduna, Kwara, Jigawa etc. For instance, Section 2 of the Wills Law of Kaduna State provides that a testator can freely devise his properties in a will except the testator is subject to Islamic law immediately before his death.²⁹

The Nuzriah or Nazar is a vow that a Muslim can make whilst alive to dedicate part or all of their wealth to another party. A Muslim may use this opportunity to pass property to the family, to be held jointly.³⁰

9. Order of Priority of Entitlement Under Testate and Intestate Succession³¹

The Administration of Estates Laws of various jurisdictions provide guidance on the order of priority of persons who are entitled to be granted probate or Letter of Administration.

9.1 Persons Entitled to Letter of Administration on Intestate Succession

Section 49(1) of Administration of Estates Law, Lagos State³² provides the order of priority of persons to be granted Letters of Administration. Accordingly, they are:

1. Husband or wife of the deceased.
2. Children of the deceased or the surviving issue of a child who died in the lifetime of the deceased.
3. Father or mother of the deceased.
4. Brothers and sisters of the deceased of full blood and the children of such brothers or sisters who died in the lifetime of the deceased.
5. Brothers and sisters of half-blood of the deceased or the children of any such half-brother or sister who died in the lifetime of the deceased.
6. Grandfather or grandmother of the deceased.
7. Uncles and aunts of full blood or their children.
8. Creditors of the deceased.
9. Administrator General, in a situation where all the preceding persons are unavailable.

9.2 Persons Entitled to Probate on Testate Succession

Order 62 Rule 22 of the Lagos State High Court Civil Procedure Rules 2019 states the order of priority of persons to be granted probate as follows:

1. The executor of the Will.
2. A residuary beneficiary holding in trust for other persons.
3. A residuary beneficiary for life (these include people who take the residue/reminder of the estate of the testator after the payment of other legacies specifically listed in the will).
4. A beneficiary whose legacy is vested in interest.
5. The ultimate residuary beneficiary including one entitled on the happening of any contingency. In a situation where the residue is not wholly disposed of by Will, then any person entitled to share in the residue not so disposed of, or the personal representative of any such person.
6. Any beneficiary of a specific legacy or devise or any creditor or the personal representative of any such specific beneficiary or any creditor.
7. Any beneficiary of specific legacy or devise entitled on the happening of any contingency, or any person having no interest under the Will who would have been entitled to a grant if the deceased had died wholly intestate.

10. Determining Family Property deriving from Inheritance: Possible Requisitions

1. What is the history of the property? This and other physical inspection factors must be checked before legal due diligence is undertaken.
2. Are there floodings, negative-information signages (such as caveat emptor), pipelines, powerlines, high tension cables, or other indicators of future government interest and acquisition over the land?
3. Engage a competent legal practitioner in property practice, tax, succession, and related legal aspects.
4. Is there a Will in the title transfer chain? If so, was there grant of probate or letter of administration?
5. Do the sellers have sufficient legal authority to sell? Who are the principal members? Was there an allotment or a mere allocation of land? Is there a power of attorney?
6. What disputes and litigations have transpired on the property?
7. Is there a break in the chain of perfection?
8. What are some outstanding liabilities of the property (land use charge, capital gains tax, etc.)
9. Are these existing charges/encumbrances, such as undischarged mortgages?
10. Are there building approval documentation?

11. Conclusion

The inheritance of family land in Nigeria involves various customary and statutory considerations. These include whether or not the deceased died testate or intestate (with or without a will), what customary law the deceased was subject to when he/she was alive and whether the deceased contracted a valid marriage under the Marriage Act. The relevant customary laws and statutory regulations shapes the framework for the creation, inheritance and succession of family land/property and underlines the rights and obligations of individual family members with respect to family property. It is advisable for individuals to be mindful of these considerations and their application to existing situations.

Footnotes

1. Adesola Olanrewaju-Kadri, Olukolade Ehinmosan and Oluwabusayo Ayinde, Real Estate & Succession S.P.A. Ajibade & Co., Lagos, Nigeria.

2. Ordinance [1908] No. 16.

3. Ordinance No. 1, 1916.

4. Northern Nigeria, No. 25 of 1962.

5. See, Olayimika Olasewere and Oghenekevwe Odima "An Appraisal of Selected Real Estate Laws in Nigeria" in A Review of Contemporary Legal Trends in Nigerian Law, Babatunde Ajibade et al (eds.), LexisNexis South Africa, 2017, p. 232.

6. (1921) 3 N.L.R p. 56.

7. (2017) 14 NWLR (Pt. 1586) 397, per Aka'ahs JSC.

8. Chaman Law Firm, 'Family Property and the Rights of Individual Member' (23^rd May 2022) available at https://www.chamanlawfirm.com/family-property-and-right-of-individual-member-in-family-property, last accessed 14^th August 2023.

9. (2000) LPELR-11975(CA), per Saka Adeyemi Ibiyeye, JCA (pp. 25 - 26 paras F - D).

10. "Inter vivos" refers to an occurrence during the lifetime of an individual.

11. Mesne profits are sums of money paid for the occupation of land, to a person with right of immediate occupation, where no permission has been given for that occupation.

12. Ibid.

13. See also, Thomas v. Thomas (1932) 16 NLR 5.

14. Emmanuel Bassey (2022), 'Co-Ownership of Property and the Right of Survivorship', available at https://www.mondaq.com/nigeria/landlord--tenant---leases/1184360/co-ownership-of-property-and-the-right-of-survivorship last accessed 15^th August 2023.

15. See, Leadway Capital, 'Inheritance And Customary Laws In Nigeria' (31^st October 2018) available at https://www.leadwaycapital.com/inheritance-and-customary-laws-in-nigeria/#:~:text=In%20Nigeria%2C%20when%20a%20person,or%20the%20ministry%20of%20justicelast accessed 14^th August 2023.

16. Davies v. Rahman-Davies & Anor, per Joseph Shagbaor Ikyegh, JCA (pp. 9 – 9 paras A – C) (2018) LPELR-46557(CA).

17. Yoruba families are customarily patrilineal. In the extended family system, many nuclear families live within the same compound and are headed by the 'Baale' who is the family head. Each nuclear family is considered a family branch. See 'Apejuwe Ebi (Family description) at http://africa.uga.edu/Yoruba/unit_03/cultureunit.html last accessed 15th August 2023.

18. Olatunji V. Akingbasote & Ors (2015) LPELR-24275(CA), per JAMES SHEHU ABIRIYI, JCA (pp 15 - 16 paras A - A).

19. Ibid 7.

20. Dawodu v. Danmole (1958) 3 F.S.C p. 46, Adeniji v. Adeniji (1972) 1 ALL N.L.R (Pt 1) p. 298.

21. See, Michael Takim Otu & Miebaka Nabiebu, 'Succession to, and Inheritance of Property under Nigerian Laws: A Comparative Analysis' European Journal of Social Sciences Vol. 62 No 2 (ISSN 1450-2267) pp. 50-63 available at https://www.europeauunjournalofsocialsciences.com/issues/PDF/EJSS_62_2_05.pdf last accessed 14^th August 2023.

22. Ani isi obi means the land for the head of the family.

23. The Nrachi ceremony features the practice of a man who could not procreate a male child, keeping one of his daughters perpetually unmarried under his roof, to raise children, especially males, to succeed him. See Ukeje v. Ukeje (2021) LPELR-54875(CA).

24. See, Mojekwu v Mojekwu (1997) LPELR-13777(CA), per Niki Tobi JCA (pp. 28 – 35 paras D - B).

25. Anekwe v. Nweke (2014) LPELR-22697(SC).

26. Cobham v. Cobham (1944) Calabar Native Court Suit No. 492/44; cited in B. E. Kooffreh, 'A Review of the Customary Law of Inheritance and Succession amongst the Efik and Qua Communities in Cross River State, Nigeria', International Journal of Research (May 2018), available on ResearchGate at https://www.researchgate.net/publication/325746871_A_Review_of_the_Customary_Law_of_Inheritance_and_Succession_amongst_the_Efik_and_Qua_Communities_in_Cross_River_State_Nigeria, last accessed 24^th August 2023 at 11:03 am.

27. Ibid.

28. O. M. Atoyebi, 'The Administration of Wills Under the Islamic Law System in Nigeria' (Omaplex, 12^th April 2023) available at https://omaplex.com.ng/the-administration-of-wills-under-the-islamic-law-system-in-nigeria/#:~:text=The%20reform%20introduced%20by%20Islam,done%20by%20the%20law%20 of last accessed 14^th August 2023.

29. Ibid.

30. Majlis Ugama Islam Singapura, 'Nuzriah in Islam', Office of the Mufti, available at https://www.muis.gov.sg/officeofthemufti/Irsyad/English-Nuzriah, last accessed 24^th August 2023.

31. Chaman Law Firm, 'Order of Priority of Entitlement Under Testate and Intestate Succession in Nigeria' (20^th May 2022) https://www.chamanlawfirm.com/order-of-priority-of-entitlement-under-testate-and-intestate-succession-in-nigeria- last accessed 14^th August 2023.

32. W.N. 1959, Cap L.S.L.N. 16 of 1972.

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