EQUITY AND EQUALITY IN CUSTOMARY MODES OF INHERITANCE AMONG THE YORUBA OF SOUTHWESTERN NIGERIA RY BY RA ADEGBEMI ATANDA ADEWALE (LL.B., BL,I LBL.M (Ife) MATRIC. NO. 162239 L ITY R S A THESIS IN AFRICAN LVAWE SUBMITTED TO THE INSTITUTE OF AFRICAN STUDIES, IN PAIRTIAL FULFILMENT OF THE REQUIREMENT NFOR THE DEGREE OF U N DOCTOR OF PHILOSOPHY DA OF THE BA UNIVERSITY OF IBADAN I FEBRUARY, 2015 CERTIFICATION I certify that this thesis which has been read and approved meets the requirements for the award of the Doctor of Philosophy in African Law, Institute of African Studies, University of Ibadan. This thesis was carried out by Adegbemi Atanda ADEWALE under my supervision at the Institute of African Studies, University of Ibadan, Nigeria. RY RA LI B _____________________ _________I__T___Y_____________ Date T. KehSinde ADEKUNLE LLR.B., BL., M.A., Ph.D (Ib.) EResearch Fellow V Institute of African Studies I University of Ibadan N U DA N A IB ii DEDICATION This work is dedicated to the Almighty God, to my lovely wife Olubunmi Ajoke Ade- Adewale, to the Episcopate of Methodist Church Nigeria, and to all who have shown concern for my academic growth. AR Y LIB R ITY ER S V UN I N DA IB A iii ACKNOWLEDGEMENT I thank the Almighty God for His abiding presence which saw me through this research and provided the resources for the work. I must sincerely show my appreciation to His Eminence Dr. S. Olatunji Makinde CON (former Prelate) & His Eminence (Dr) S. C. Kanu Uche (the present) Prelate of Methodist Church Nigeria, who are part of this success story. To my wife Olubunmi Ajoke, my father, Chief Adejare Adewale, and to all members of my family, you could not have been more supportive. I appreciate Sir (Col) Bola Ogunsanwo KJW (immediate past YLay President), Sir Prof. ‗Tola Atinmo FAS, KJW, (the present Lay PresidenRt) of the Diocese of Ijebu. My sincere thanks go to my unremunerated editor,A Bro. & Sis. ‗Muyiwa Ayodele (former H.O.D. Mass Communication Dept. YaRbaTech., Lagos), and all my staff in the Diocese of Ijebu, especially Mr. TayIoB Efuntade Ogunkoya whose painstaking effort made this work what it is. L To all my friends who stood by me and provided needed logistics and moral support: Sir & Lady James Akintola KJW, Barr & Mrs. EIzeTkieYl Folorunso Ogunjuigbe, Sir Dr. & Lady Akinlolu Oke KJW, Prof. Wole OmikSorede, Sir & Lady Abidoye Ayoola KJW, Sir Bonajo Badejo SAN, Rt Rev & Mrs. Olukayode Ajiboye, Rt Rev. & Mrs. Obafemi. B. Adeleye, Very Rev. Dr ChRarles Obafemi Jegede, Dr Ayo Adedutan, Dr Olufemi B. Olaoba, Dr KayoVde ESamuel, Most Rev. & Mrs. Amos Akinloose Akindeko, Rt Rev. & Mrs. SamIuel Ransford Nortey, Rt Rev. & Mrs Oluwademilade Akpata, Very Rev Felix N& Mrs. Adenike Ogunbisi, Mr & Mrs. Femi Olonilua (Adfemson Motors), aUnd Sir Gbolahan Olayomi KJW. I am eternally grateful. To my amiaAble Nand God fearing supervisor, Dr T. Kehinde Adekunle, and my erudite InternalD/External examiner Dr Aderemi Suleiman Ajala, who gave their time, guidAance, and textbooks for my use, I cannot thank you enough. To the Director IBInstitute of African Studies, Prof. Dele Olayiwola whose concern is to see all excel with his usual probe ―hope it is going on well?‖ I want to report that, ‗it has ended well‖. To the members of the Faculty, Institute of African Studies, I must confess that your support and critique of this work, and others that I have been opportune to listen to you dissect, gave it the quality and outlook it has, for which I owe you all my gratitude. Adegbemi Atanda ADEWALE iv TABLE OF CONTENTS Title Page i Certification ii Dedication iii Acknowledgement iv Table of Contents v-viii Table of Cases ix-xiii Table of Statutes xiv-xvY Abstract AxvRi CHAPTER ONE: INTRODUCTION IB R 1.1 Background to the Study L 1 1.2 Statement of the Problem Y 7 1.3 Research Questions T 10 1.4 Objectives of the Study I 10 1.5 Scope of the Study RS 11 1.6 Justification of the StEudy 12 1.7 Limitation of the Study 13 1.8 Definition oNf TeIrm Vs 14 1.8.1 Equity 14 1.8.2 Equal itUy 16 1.8.3 FNamily 17 1.8.4 AAgnate/agnatic 18 1.8D.5 Cognate/cognatic 18 A1.8.6 {m[ 8yq (maternal siblings) 18 IB 1.8.7 {bzkan (paternal siblings) 18 1.8.8 *d7 igi (per stirpes) 18 1.8.9 Or7 0 jor7 (per capita) 18 1.8.10 Yoruba 19 1.8.11 Cb7 (family) 20 1.8.12 Og5n (twenty or inheritance) 20 1.8.13 Testacy 21 v 1.8.14 Intestacy 21 1.8.15 Ifq 21 CHAPTER TWO: LITERATURE REVIEW AND THEORETICAL FRAMEWORK 2.0 Introduction 22 2.1 Received English Law 22 2.2 Administration of Estate Laws 24 Y 2.3 Customary Law 27R 2.4 Proof of Customary Law A32 2.5 Repugnancy Tests in Customary Law R 39 2.6 Conflict of Laws B 42 2.7 Yoruba Legal System L I 46 2.8 Marriage 54 2.9 Notion of Property among the Yoruba Y 59 2.10 Yoruba Land Tenure System S I T 63 2.11 Creation of Family PropeRrty 64 2.12 Alienation of Family Property 66 2.13 Testate SuccessioVn E 67 2.14 Intestate SuccesIsion 70 2.15 Judicial posNition on Intestate Succession 73 2.16 Perso nhUood and Inheritance 78 2.17 YNoruba kinship and Inheritance Devolution 81 2.18 AInheritance and Religion 85 2.19D Customary Modes of Inheritance and English Testament 88 A2.20 Modernity in Cultural Inheritance Practices 91 IB2.21 Written Wills under Customary Law 92 2.22 Customary Modes of Inheritance: 93 i. Ìdí igi and 93 ii. Orí ò jorí 95 2.23 Knowledge Gap 96 2.24 Theoretical Framework 97 2.25 Ifq 99 vi CHAPTER THREE: RESEARCH METHODOLOGY AND DESIGN 3.0 Introduction 103 3.1 Study Methodology 103 3.2 Fieldwork Location 103 3.3.1 Methods of Data Collection 106 (a) Key Informant Interview 106 (b) Focus Group Discussions 108 (c) In-depth Interviews 108 Y (d) Life Histories 10R8 (e) Observations A109 3.3.2 Other Sources of Data R 109 3.4 Research Instruments B 109 3.5 Methods of Data Analysis L I 110 CHAPTER FOUR: DATA PRESENTATION AYND ANALYSIS 4.0 Introduction IT 111 4.1 Yoruba Customary BeliefR in PSroperty and its Devolution 111 4.2 Equity and Equality iEn Yoruba Customary Modes of Inheritance 116 4.3 Customary DevolVution Practices in Selected Sub-Ethnic Groups of SouthIwestern Nigeria 118 4.4 SimilaritiesN and Differences in Inheritance Practices among Yorub aU Sub-Groups 123 Ni. Devolution Pattern and Beneficiaries 124 Aii. Devolution Panel 126 D iii. Adjudication Options in Cases of Acrimony 128 A4.5 Impact of Yoruba Customary Modes on Access to Property 129 IB CHAPTER FIVE: SUMMARYAND CONCLUSIONS 5.1 Summary 137 5.2 Conclusion 143 5.3 Recommendations 147 Bibliography 152 Appendix I Field Interview Tables 158 Appendix II Field Interview Questions 172 vii Appendix III Field Photographs 174 RYA BR Y LI IT ER S V UN I DA N BAI viii TABLE OF CASES A. Shelle v. Chief Asajon etc. (1957) 2 FSC 65 Abeje v. Ogundairo(1967) L.L.R 9 Abibatu v. Flora Cole (1986) 2 NWLR 369 Abioye v. Yakubu (1991) 5 NWLR (pt 190) p.130 SC. Adegbola v Folaranmi (1921) 3 N.L.R. 89; Y Adejumo v. Ayantegbe (1989) 3 NWLR (pt. 110) p.417 @ 444 R Adeyemi Ogunnaike v. Taiwo Ojayemi (1987) 1N.W.L.R. (pt. 53) 760. A Adeyemo v. Ladipo (1958) W.R.N.L.R 138 R Administrator General v. Egbuka (1945) 18 NLR 1 IB Agaran v. Olushi (1907) 1 NLR 66 L Agbeyegbe v. Ikomi (1953) 12 WACA 383 Y Ahmadusidi v. Abdulahi Shaaban (1992) 4NWLRI.TP 113 Aidan v. Mohssen (1973) LPELR-SC/1973 S Aileru & others v. Anibi (1952) 20 NELR R46 Ajayi v White 18 N.L.R 41 V Akinnubi v. Akinnubi (1997) 2 IWLR 144 Alhaji Ahmadu Alao vU. Alh Naji Oba Alabi (1997) 6 NWLR,pt. 508, 351, 356. Alhaji AlkumawNa v. Alhaji Bello and Alhaji Malami Yaro, (1998) 6 SCNJ 127, 136 Amodu TijanAi v. Sec. Southern Nigeria(1921) A.C. 399 at 405 ApatiraD v. Akanke (1944) 17 N.L.R. 149 AraAse v. Arase (1981) 5 SC 33 IBArum v. Nwobodo (2004) 9 NWLR (pt 878) 411 Ashipa v. Ashipa (2002) LHCR 60-84 A.G. Federation v. A. G. of Abia State, (2002) FWLR (pt.102)1 Awero v Raimi (1983) 11 O.Y.S. H.C. 790 Awobodu v. Awobodu (1979) 2 L. R. N. 339 Awolowo v. West African Pilot (Nigeria) 1962, p.29) ix Bajulaiye v. Akapo (1938) 14 N.L.R. 10. Bakare v. Ishola (1959) WNLR 106 p.107 Balogun v. Balogun (1934) 2. W.A.C.A. 290 Balogun v. Oshodi (1931) 10 NLR 36; (1936) W.A.C.A 1 @ 2 Bamigbose v. Daniel 14 WACA 111 Banks v. Goodfellow (1870) L. R. 5 QB 549 at p.565 Barretto v. Oniga (1961) WNLR 112 BiVerdiana Kyabuje and Ors.v. Gregory Kyabuje (1968) HCD 459 Y Bolaji v. Akapo 2 F.N.R 24, 245 AR Branco v. Johnson (1943) 17 N.L.R. 70 R Brown v. Adebanjo (1986) 1 NWLR 383 IB Cassidy v. Daily Mirror Newspaper (1929) 2KB @ 331 L Caulcrick v. Harding (1926) 7 NLR 48 Y Chief Awara Osu v. Ibor Igiri & 3 Ors. (1988) 1 INTWLR pt. 69, 221. Chinweze v. Masi (1989) 1 NWLR (pt. 97) 2S54, 270 Coker v. Coker (1943) 17 N.L.R. 55 R Cole v. Cole (1989) 1 NLR 15. E Dawodu v. Danmole, (195N8) 3 IF VSC 46; [1962] 1 All NLR 702 (PC) Denloye v. Medical aUnd Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R., 306. Deocres LulabaNna v . Deus Kashaga (1981) TLR 122 Dr Abiola AAkerele v. A. J. Atunrase & Ors (1969) 1 All N.L.R 201 @ 208, Ehigie vD. Ehigie (1961) 1 NMLR BEkpAendu & Ors. v. Erika (1959) 4 F.S.C. 79, at pg. 81. I Emily Fowler v. Frederick Martins 5 N.L.R 45 Emmanuel M.O Chukwuogor v. Richard Obigiabo Obuora (1987) 3 N.W.L.R., Pt. 61, 454, 477 – 478. Ephraim v. Pastory (2001) AHRLR (TZHC) 1990 Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1931) A.C. 662, p.673 Federal Administrator-General v. Johnson (1960) L.L.R. 291 x Folarin v. Durojaiye (1988) 1 NSCC 255 George & Anor. v. Fajore (1939) 15 N.L.R.1 Gooding v. Martins (1942) 8 WACA 108. Groofman v. Groofman (1969 ) 2 All E.R. 108 Haastrurp v. Coker (1927) 18 N.L.R 68; Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382, 386, 388 In the Estate of Randle (Deceased) (1962) 1 ALL N.L.R. 130 Y Jadesimi v. Okotie-Eboh (1996) 2 NWLR 128 R Johnson v. Macaulay (1961) 1 All NLR 743 A Johnson v. United African Company Limited 13 NLR 13 R Kafi v. Kafi (1986) 3 NWLR (Pt.27) P. 175 IB Karimu Akande & Anor v. Joseph Oyewole (2003) ANYLR 3 L58). Kuma v. Kuma (1938) 5 WACA p.4 Lawal-Osula v. Lawal- Osula (1995) 10 SCJN 84I.T Lewis v. Bankole (1909) 1 N.L.R 81@ p 103S Lois Ukeje & Anors v.Cladys Ada EUkeRje (Guardian Newspaper of Wed., April 16, 2014. pg 4) Lopez v. Lopez (1924) 5 NNLR 4I3 V Marques v, WinchesteUr (1958) 6 Co. Rep 23. Mojekwu v. Ejikeme (2001) 1 C.H.R 179 at 209 Mojekwu v. AMojNekwu (1997) 7 NWLR (pt.512) 283 NdewawDiosia Mbeamtzo v. Imanuel Malasi (1968) ndNelAson v. Nelson (1951) at 605, 612-13,237 P.2 396 IBNezianya v. Okagbue & ors (1963) 3 NSCC 277 Nzekwu v. Nzekwu (1989) 2NWLR (pt. 104 ) 373 Obusez v. Obusez (2001) 15 NWLR (pt.736) 377 Odusoga v. Ricketts (1997) 7 NWLR pt 511, p.1SC. Ogiamen v Ogiamen (1967) NMLR 245; (1967) NSCC 189, 192, 193; Ojemem & Ors. v. Momodu II (1983) 3 S.C. 173 Oke & Anor v. Oke & Anor (1974) 9 NSCC 148 xi Okelola v. Boyle (1998) 1 SCJN 63 Okolie v. Ibo (1958) NRNLR. 89. Okonkwo v.Okagbue (1994) 12 SCNJ 89, 102. Okulate v. Awosanya (2001) 1 SCNQR, 149 Ologunleko v. Ijuemelo (1993) 2 NWLR (Pt. 273) pg 16 Olohunkan v. Teniola (1991) 5 NWLR (pt.192) p.501@ 513 Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372) Y Olubunmi Cole & Anor. v. P. A. Akinyele (1960) 5 F.S.C. 84 R Oluwole v. Abubakare (2004) 10 N.W.L.R., Pt. 882, 549. A Onwundijo v. Onwundijo (1959) 11 E.R.N.L.R 1 R Ordor v. Nwosu (1974) 1 ALL NLR (pt. II) p.478 IB Oshodi v. Imoru (1936) 3 W.A.C.A. 93. L Osinjugbebi v. Saibu &Ors, (1982) 9 SC 904 Y Owoniyi v. Omotosho (1961) 1 ALL N.L.R 304 @IT 309 Oyewumi v. Oyewumi (1990) 3 NWLR (Rpt.13S7) 182 @ 202 Parker v. Felgate (1883) 8 P.D.171 E Re Stone & Savile‟s Contract (I19V63) 1 ALL ER p.353 Ricardo v. Abal (1926) 7 NNLR 58 Rufai v. Igbirra N. A . U(1957) NRLR 178 S. J. Adeseye anNd Ors v. S. F. Taiwo and Anor (1956) Vol. 1 FSC 84 Salami v. SaAlami ([1957) WRNLR 10 Savage Dv. McFoy (1909) REN 505, BSmiAth v. Smith (1924) 5 N.L.R 105 I Smith v. Smith (1866) L. R. 1 P&D 143 Shogunro Davies v. Edward Shogunro (1929) 2 NLR 79/80 Suberu v. Sumonu (1957) Vol. II FSC 33; 1 NSCC 4 Alake & Ors v. Pratt (1955) 15 W.A.C.A. 20. Sule v. Ajisegiri (1937) 13 NLR 146 Synge v. Synge (1894) 1 Q.B. 466 xii Taiwo v. Lawani (1961) 1 All NLR 707 Tapa v. Kuka (1945) 18 NLR 5. Taylor v. Williams (1936) 12 NLR 67 Thomas v. Thomas (1932) 16 N.L.R. 5, at p.6 Tobias Epelle v. Ojo (1926) 7 NLR 96 Ugboma v. Ibineme (1967) FNLR 251 Uka v. Ukama (1963) FSC 184 Y Uke v. Iro (2001) 11 NWLR (pt.723) 196 R Ukeje v. Ukeje (2001) 27 WRN 14 A Wardsworth IBC v. Winder (1985) AC 461 R Yinusa v. Adesubokan (1971) 1 All NLR 225 IB Yusuff v. Dada (1990) 4 NWLR (pt.146) 657,669 L Zaidan v. Zaidan (1974) 4 UILR 283. ITY S VE R NI N U A AD IB xiii TABLE OF STATUTES Administration of Estates Law of Western Region of Nigeria 1959 Cap 1 Laws of Western Region of Nigeria. Administration of Estates Law of Ogun State CAP 1 Laws of Ogun State of Nigeria 1978. Administration of Estates Law of Ondo State CAP 1 Laws of Ondo State of Nigeria 1978. Administration of Estates Law of Oyo State; CAP 1 Laws of Oyo State of NiYgeria 1978. R African Charter on Human and Peoples‘ Rights (1981). A Constitution of the Federal Republic of Nigeria, 1999. R Court of Appeal Act. IB Customary Courts Law 1980 (No. 1, 1981) Oyo State. L Customary Courts Law 1980 (No. 14, 1980) Ogun StaYte. Customary Courts Law 1981 (No. 7, 1981) Imo SItTate. Domestic Proceedings and Magistrates CRourtSs Act, 1978. Evidence Act 2004. Evidence Act, Cap. 112, Laws oVf theE Federation of Nigeria, 1990. High Court Law of KwaraN StatIe (1994), Cap. (67), & 34(1). High Court Laws of thUe States. Interpretation Act, 1 964. InterpretatioAn ANct, Cap I. 23, 2004 s.32. Law ReDform (Husband and Wife), Act 1962. LawAs of Western Nigeria, 1959. IBMalawi Wills and Inheritance Act 1998. Marriage Act, Cap 218, Laws of the Federation of Nigeria, 1990. Native Authority (Declaration of Bini Native Marriage Law and Custom) Order 1964. Native Courts Ordinance No. 3 of 1914. Native Courts Ordinance No. 9, 1900. Plateau State Customary Court of Appeal Law 1979. xiv Sharia Penal Code Law (No. 10, 2000, Zamfara State). Soldiers and Sailors Act, 1918. Succession Law/Edict 1987 of Anambra State. Supreme Court Ordinances No. 4 1876, (now Supreme Court Act). The Ghanaian Criminal Code Amendment Law 1984. The Marriage Act, 1914 Cap 218 LFN, 1990. th Will‘s Circumstantial Evidence 7 Edition, 1937. Y Wills (Soldiers and Sailors) Act, 1918. R Wills Amendment Act, 1837. A Wills Amendment Act, 1852. R Wills Edict 1990 of Lagos State. IB Wills Edict No. 13 of Oyo State 1990-1, 46, 284. L Wills Law 1958 Cap. 133 Laws of Western Region ofY Nigeria. Wills Law Cap 133 Laws of the Western RegionI oTf Nigeria. Wills Law Cap 141 Laws of Lagos State 197S3. Wills Law Cap W2 Laws of Lagos StateR 2003. IV E UN N AD A IB xv ABSTRACT Inheritance issues in Yoruba customary law have always been beset by problems of who gets what and how. Previous studies have examined different aspects of Yoruba customary law, but little attention has been paid to equity and equality in customary modes of 8d7 igi (per stirpes) and or7 0 jor7 (per capita). This study, therefore, investigated equity and equality, appraised and compared customary devolution practices, and assessed the impact of Yoruba modes of inheritance with a view to comparing how equity and equality are promoted in the study areas. The study adopted the descriptive research design using William Graham Sumner‘s theory of Social Conflict, which states that competition over resources can trigger inequity and inequality, thus exacerbating violence. This was supported withY the analytical application of 2t- in Ifá divination. Data were collected through six non- participant observations, in-depth interviews of 61 informants, comprising 32R widows, 10 family heads, nine royal fathers and 10 community leaders purposiAvely selected from five States of Ekiti (Omuo), Ogun (Ago Iwoye), Ondo (Okitipupa), Osun (Imesi Ile), and Oyo (Ogbomoso). Five focus group discussions wereR conducted, and interactions made with 108 children of deceased familiLes. ISBecondary data were sourced from Nigerian law reports, journals and book s. Data were qualitatively analysed using descriptive and explanatory methods. The two concepts that promote equity and equaTlity Yin Yoruba customary mode of inheritance are 8d7 igi and or7 0 jor7 but they are against the practice of English testamentary disposition. These customary praIctices are not generally applicable among the various Yoruba sub-groups. RIn ISkaleland, 8d7 igi is modified in such a way that the first male child represeEnts his 8d7 igi and can suggest variation in the sharing mode. Among other Yoruba groups, wives are invited yet they have no say on inheritance devolution issues. Among the Ijebu, in or7 0 jor7 mode, the first female child has the same status and rigVhts as the first son and can inherit estate or any part thereof or make decisions Nas toI who gets what and how in testamentary disposition. In Ekiti, Ijesa, Ikale, andU Oyo, the rule of male primogeniture is dominant. However, there exist manifest ations of inequity and inequality in some families due to male primogeniture. Assertive posture of first wives and first male children often lead to physical struggle and lengthy court cases may disrupt the 8d7 igi and or7 0 jor7 modes of inAheritNance. In cases of conflict, rancour and acrimony, folklores, divination, oath taDking, myths, proverbs and historical experiences are employed in their resolutions. B*d7A igi and or7 0 jor7 are antithesis of discrimination in inheritance devolution. I Inheritance devolution should appropriate a combination of 8d7 igi and or7 0 jor7 on the one hand and the values of English testamentary system on the other. Studies in African law should use positive aspects of customary inheritance practices and adopt same in the formulation of an alternative model for contemporary testamentary disposition. Key words: Yoruba inheritance devolution, Equity and equality in customary inheritance, 8d7 igi and or7 0 jor7, Inheritance modes. Word count: 462 xvi CHAPTER ONE INTRODUCTION 1.1 Background to the Study 1 Death is an inevitable end of earthly life . In almost all societies, when a person dies he leaves something behind which must pass to someone else, and there are rules for this transmission. The rule of transmission in legal parlance is known as inheritance devolution law. Y Issues bothering on inheritance are always beset by problems of who gets Rwhat and how among the people in general and among Yoruba in pAarticular. Acrimonious destructions of family units and dis-affectionate relatiRonships at the end of some testators‘ life on account of conflicts and dIisBagreements over inheritance have taken a new dimension, but where there iLs nothing to share, the likelihood of misgiving among siblings will be at thYe barest minimal level. That is why the Yoruba succinctly puts it thus: ZgbI2T l9 dq jz s7l2, [m[ od9 k0 n7 0un 9 lu 8yq 0un pa (Pestle has no misgiving with mortal, save the farmer who insisted on eating poundeRd yaSm). Since people continue to acquire properties for their comfort and well being, struggle for equitable share in the property of the deceased byI tVhose E entitled to it is inevitable, while greed and cupidity make those whNo are not entitled to the estate find dubious ways and 2means of becoming Upart of the struggle , thereby claiming family relationship that does not exist which makes the Yoruba to summarise such behaviour by saying cni bqN f1 jc og5n k9g5n, ir5 w[n n7 pa 8tzn ki tzn. (Those who want to inhAerit from the estate they are not entitled to, fabricate stories to justify their cDlaims). Conflicts and acrimonies do arise among survivors, wherein homes coAuld be broken and scattered, and children and relations become mortal IBenemies in their struggle to share the properties of a deceased. Oyetunde (2010) observed that a happy family is the one which manages inherently inevitable crisis well and to the delight of all its constituent members. The Yoruba society has laws, rules and regulations and a system of enforcement and sanctions already put in place to guide individuals and bodies in the overall interest of 1 Hebrew 9:27; Eccl. 9:5; Surah 3:9 2 S. J. Adeseye and Ors v. S. F. Taíwo and Anor (1956) 1 F.S.C. 84 1 everyone and the society in general. Therefore, while an individual desires absolute freedom to do or not to do whatever he likes, the society had to put in place checks and balances to absolute freedom in the interest of the general populace. As a result of which every activity is guided by a prescribed basic structure which when it guarantees a right, it creates a corresponding duty and when it imposes a duty it also 3 guarantees a corresponding right . It assures correction of wrongs and aims at equity and equality, it also provides a peaceful and orderly forum for resolution of disputes in devolution matters, so as not to pull down the cherished family system. The YoYruba has a system already developed around folklores, divination, oath takingR, myths, proverbs and historical experiences which are employed in the resolutionA of conflicts arising from inheritance issues. R B While this is fully recognised among the experts of YoLrubIa customary law, the application of Common law which provides for Western m ode of inheritance tends to challenge the equality and equitability which cuIstTomaYry mode entrenches. This is so because the orientation of the people have been distorted to condemning the customary modes as naïve, archaic, gruesomSe and unethical, while the Western one which came to distort it, is acclaimeEd upRright and just. Whereas the Yoruba saying is 2f- k78 l3 2f- l’qwo, (many dVifferent types of vegetables can be eaten in the same plate with none disturbing theI other) should be the style. Each of the legal systems developed from different Nbackgrounds, so using the same yardstick set up by one in measuring the appli caUtion of the other is rather unacceptable as 0fin eg5ng5n k0 m5 cl1hzq, toNr7 lqqdq ju lqqdq l[ (the same set of rules should not be made applicable tAo masquerades and women in harem as they have different spiritual rewardsD). IBSuc Acession affects everyone as all property must pass to someone else on death. 4 English law as received in Nigeria , recognises two kinds of disposition of property on death – testate and intestate inheritance. $kuru 0 p3 m1ta, b7k0 j1 funfun, q 3 Malemi, E.O., 2012.The Nigerian Legal System, Text and Cases, Lagos: Princeton Publishing Co. 4 The Wills Amendment Act, 1837 and the Wills Amendment Act, 1852, regarded as statutes of general application, which were in force in England on January 1, 1900, Wills (Soldiers and Sailors) Act, 1918 which deals with the formal validity of Wills. In some states the Wills Law, CAP 133, Laws of Western Nigeria applies. This 1958 law is essentially a re-enactment of the above mentioned laws on Wills. However, section 3(1) of the Wills Law, 1958 contains a provision not contained in the other Laws mentioned above to the effect that: ―The real or personal estate which cannot be disposed by the applicable customary law, cannot be disposed by Will‖. 2 j1 d5d5, 4y7 t9 bq s4s8 l’3po n7y= y90 di =l2l2 (4kuru a special bean meal) has only two colours, either white or black and if it ever has palm oil and salt added to it, it has turned to =l2l2 (another bean meal delicacy). Testate succession occurs when a person dies and leaves a Will, his estate will be distributed as a bequest in the Will, however legal rights will still have to be satisfied, while intestate succession occurs when someone dies without a Will and the estate is distributed by the dictates of survivors to manipulate as they so wish, either through the use of an existing enactment or through whims and caprices of human ingenuiYty of the survivors. Testate succession is of little concern to this study as YoruRba legal system did not adopt it, therefore, this work will only discuss the topRic inA chapter two where it will be relevant in the review of existing literatures on IthBe study. 5 According to Sagay , intestate succession involves thYe ap p Llications of three systems of laws: (a) the Common Law IT (b) the Administration of Estate Laws of Sthe various States and (c) Customary Law. (These systems Rof law shall be discussed in details in Chapter two of the work). E Among the Yoruba of SouthwIeVstern Nigeria, there is no uniformity of rules under 6 customary law of succUessiNon because there are many sub-ethnic groups , each with 7its own peculiar cha racteristics . The determinants of the appropriate mode that will be best suitableN in the devolution of an intestate Yoruba are: the type of marriage 8 9 10 contracted bAy the intestate , the religion he practised, his personal law, or the kind of propDerty involved. However, with respect to land, the general rule is lex situs reprAesented in the Yoruba saying ibi ajq bq k5 s7 ni 44pa r2 k5 s7 (the dog IBand its body rashes die on the same spot) that is, the customary law of the place where the land is situate will be applicable, while the law in respect of his other 5 Sagay, I. E., 2006. Nigerian Law of Succession, Principles, Cases, Statutes and Commentaries, Malthouse Press Limited 6 Oluyede P.A.O., 1992.Constitutional Law in Nigeria. 7 Young, C., 1976. The Politics of Cultural Pluralism 276-281 8 Cap. 1, 1959 Laws of Western Nigeria 9 Op cit. Sagay 10 Zaidan v. Zaidan (1974) 4 UILR 283 3 11 properties will be his personal law, even if he died outside his ethnic group or leaves properties outside his hometown. Before the early Europeans made their first appearance in Yorubaland, African law, in general, and Yoruba native law and customs in particular had been in existence, deriving their authenticity from African lore and mores, evidenced in the saying cdun d6n l90t-, x6gb-n k0 n7 0k7k7 ob8 (cdun (a particular kind of nut) is sweet indeed, but it does not have the popularity of Kolanut). The facts of its pragmatism and acceptance materialise in the experiences of the people (Allott 1960:86-87). Y The assent of the native community gives Yoruba custom its validity. In the Rwords of 12 Bairamian FJ in Owoniyi v. Omotosho , it is ―a mirror of accepted uAsage‖ and in trying to explain the need for a custom to enjoy the assent of a commRunity, as a valid custom before a court can apply it, Lord Atkin submitted in IthBe case of Eshugbayi 13 Eleko v. Officer Administering the Government of Nigeria Lthus: Their Lordships entertain no doubt that theT moYre barbarous customs of earlier days may under the influences oIf civilization become milder without losing their essential character as custom. It would however appear to be necessary to show that in their milder form they are still recognised in the native communityS as custom, so as in the form to regulate the relation of the nEativeR community inter se… It is the assent of the native communityV that gives a custom its validity, barbarous or mild. It must be showIn to be recognised by the native community 14whose conduct it is supposed to regulate. He further stressed that, wNhether considered barbarous or mild by the outside world, it must be shown to be rUecognised by the native community whose conduct it regulates, ―even the courtN cannot itself transform a barbarous custom into a milder one (for instance, toA kill, and not to banish, a deposed King). If it stands in its barbarous chaAracteDr, it must be rejected as repugnant to natural justice, equity and good Bconscience‖. I The colonialists actually abrogated some norms of customary law that they thought were barbaric and unacceptable to them, and they enforced the remaining norms 15 subject to three tests, generally described as the validity tests, yet the customary law 11 Tapa v. Kuka (1945) 18 NLR 5. 12 (1961) 1 All NLR 304 13 (1931) A. C. 662, p.673 14 Eshugbayi Eleko Ibid 15 Asein, J. O., 1998. Introduction to Nigerian Legal System. Ibadan: Sam Bookman. 4 of the Yoruba still remain acceptable to them. The first validity test of the colonialists is that a customary law norm must not be repugnant to natural justice, equity, and 16 good conscience. The second test is that a customary law norm must not be 17 incompatible, either directly or by implication, with any law presently in force. The last of the validity tests is that a customary law norm must not be contrary to public 18 policy. A further validity test in the post-independence era holds that the 19 constitution is the supreme law of the land, and any other law that is inconsistent with the provisions of the constitution shall to the extent of the inconsistencYy be 20 void . AR Deathbed dispositions and other forms of formal and informal gBivinRg by a progenitor or on his earlier pronouncements were known in customary Ilaw before Europeans came to Yorubaland. There was no question of making WLills or other testamentary instruments as majority of family property had arisen on the intestacy of the founder of the family (Coker, 1966: 247-248). NigerianI cTourYts have held that conformity to the standard of the acceptable English cSommunity should not be the test of 21repugnancy , nor should a rule be declared void because it is inconsistent with the 22 English law principles. The Supreme RCourt made an attempt to define the phrase ‗repugnant to natural justice, equityE and good conscience‘ without much success in 23 the case of Okonkwo v. ONkagIbu Ve . Hence, the meaning and application of the test remain subjective andU inconsistent. Given their lonNg hi story of application, African customary laws and, in particular, Yoruba cusAtoms and practices are deemed to possess the intrinsic variability and adaptiveD possibilities, provided that relevant judicial mechanisms are devised to supAport their application. As noted, the fact that the contemporary world is fast- IBchanging makes this proposition rather timely. As earlier, and aptly, hinted by Ahmed 16 High Court Law of Kwara State (1994), Cap. (67), § 34(1). 17 High Court Law of Kwara State Ibid. 18 Evidence Act (1990) Cap. 112, s. 14(3). 19 Constitution of Nigeria (1999), S. 1(1). 20 Ibid S.1(3). 21 Mojekwu v. Ejikeme (2001) 1 C.H.R 179 at 209 22 Rufai v. Igbirra N. A. (1957) N.R.L.R. 178 23 (1994) 12 SCNJ 89, 102. 5 24 and Shore that, as the twentieth century drew to an end, it became increasingly apparent that the world was truly changing, not just incrementally but also qualitatively. Human societies were moving into a new phase of history: this includes African societies and their customary practices. Many people had thought the values of family system will decline as it has in the Western world, but the opposite is the case among Yoruba because, it is the family institution that still holds together Africans in general and Yoruba in particular and it is the properties belonging to a family whether nuclear or extended that is shared in inheritance. Y In view of the above, this study examined Yoruba customary belief in Rproperty devolution. It also investigated the notion of equity and equality in YorubAa inheritance practices. Appraisal of customary practices of devolution of inheriRtance in selected Yoruba sub-ethnic groups was undertaken; comparative studIieBs of similarities and differences found in the practices among the sub-groups oLf Ekiti, Ijebu, Ijesa, Ikale, and Oyo were noted and an assessment of the impYact of the customary modes of inheritance on private access to property was mIaTde with a view to comparing how equity and equality are promoted through theS use of the customary devolution models in the study areas. This study therefore Rlooked at the customary ways through which such conflicts have been avoided Eor amicably resolved. The study observed that although African customary laIwVs differ slightly from locale to locale (Coker, 1966), yet different forms of dispNositive succession, (the nuncupative Will, the designation of a successor, the earm aUrking of property, and death bed disposition) were known to all, but the institutioNn of Wills as known in Europe was alien. The concepAt of inheritance is embedded in the word og5n which means twenty or inheAritaDnce in Yoruba lexicon. The notion of equity is subsumed in the representation Bof inheritance with this divisible figure. The figure 20 can be equally divided between I 20, 10, 5, 4 and 2 survivors to the estate of an intestate Yoruba without any rancor or acrimony. When the notion is transmitted to inheritance, the modes are believed to foreclose inequity and inequality. 24 Ahmed, A., and Shore C., (Eds.), 1995a. The future of Anthropology: Its relevance in the contemporary 6 1.2 Statement of the Problem Since many societies across Africa practise both customary and statutory laws of inheritance, it is imperative to examine critically the manner in which each type of law impacts on the right of the individual inheritor. This demands that the age-long system be examined to see whether or not it fosters equity and equality among survivors to the estate of an intestate Yoruba. This very fact underscores the need for emergent researchers to identify significant lacuna with respect to inheritance and succession, particularly as they affect not only the progeny of the deceased butY also their widows. This work, therefore, is poised towards bringing further perRspectives into the Yoruba idea of devolution of inheritance and other relatedR areaAs. So that in the end, an independent legal framework will modify and integrate the cultural 25 traditions into the Europeanised African legal system, if it IisB impossible to allow customary courts (Customary Court of Appeal incl uLsive) to have exclusive jurisdiction over all customary matters. TY The Yoruba of Southwestern Nigeria in paSrticuIlar are experiencing culture change which has resulted in attitudinal changRes and the people‘s orientations on certain customary issues have been negativEely affected to the extent that the core values of customary practices have beenI Vrelegated almost to the points of irrelevance (Lloyd, 1974). Inheritance and sucNcession under Yoruba customary law are two of the mostly affected practices, as Uadequate attention has not been given to research on them. To condense the innate problems associated with customary modes of inheritance, it has been subjected Nto the translation and transmutation of the English lexicon of barbarism, Ainjustice, unfairness, and unethical. All these ethnocentric perceptions have prDesented customary devolution practices as discriminatory and repugnant to the prinAciples of equity, fairness and good conscience. Whereas, the English system of IBtestamentary disposition through Wills is not immune to inequality as there are acrimonies and ill-feelings and contestations which have led to physical struggle among siblings that often result to, family feuds, property abandonment, protracted litigation, and disunity in families and thus breed inequality among beneficiaries. 25 th Ademola Popoola‘s oral submission at the 50 Anniversary Roundtable Discussion of University of Ibadan, organised by the Institute of African Studies, African Law Dept. on Lessons of the th Administration of Customary Law in the Nigerian Legal System, on Tuesday, 30 October, 2012 7 Apart from the pressures within, the international human rights regime keeps indicting 26 customary laws generally on gender equality rights in inheritance. However, the human rights, gender equality perspectives, did not realise that customary norms are not simplistic neither do they bring to the fore the underpinning customary reasons upon which these cultural issues are established nor do they have in mind that the philosophy and significance will be lost when customary issues are considered without recourse to its ideals. Acceptable customs continue to exist on a philosophy and its significance in the Ylives of people. An example is why igiogbe (the principal place of residence) of a Rdeceased Bini man should be exclusively inherited by the oldest surviving son. AThe answer, which is unknown to many, is that, in Bini customary tradition theR oldest surviving son should continually discharge the family religious obligLatioInBs at the family shrine which is located in the igiogbe where the ancestral staff (ukhuru) is kept. So, if the igiogbe was given to a female member of theT famYily who would under normal circumstances be, under her husband‘s authorityI, she could not effectively discharge those obligations from her husband‘s homSe. It then means the customary family religious obligations in Bini will suffer nReglect, and later on, go into extinction. To the outside world the rule of maVle Eprimogeniture as practised in Bini custom is discriminatory and repugnantI to justice and equity in the perception of western tradition without any attNempt at allowing equity and justice of Bini customary tradition to hold its swUay. The emergenceN of industrialisation, the imposition of colonial rule and the introductionA of Western education, actually altered the agrarian and communal structurDe of economic and political power in the Yoruba communities visited for this BstudAy. These changes created new opportunities for a small group of educated I Africans in commerce, the colonial service and other professions (Tuden and Plotnicov 1970). This group evolved a distinctive culture, accumulated wealth and other resources, and quickly established itself as new elite group (Aronson 1980, 176- 182). Indeed, it set a future template for new developments in the emerging modern and industrial urban centers of the country. It is observed that while the elite class emerged, it more or less provided a model for the non-elite group to emulate. As such, 26 Heiner. B., 1995. Muslim Voices in the Human Rights Debate, 17 HUM.RTS. Q. 587, 595–597. 8 the elitist culture spread across and then became a ‗general culture‘ whittling down the effect of the customary practices for the imbibed culture. The aforesaid acculturation affected among others things, devolution of estate among the Yoruba, and the pattern of approach to things began to change without respect for institutionalised customary practices. These challenges faced by customary law has almost replaced with the colonialists‘ common law. Even in the Nigerian legal system, it is placed in inferior position when in compared with the common law, and its jurisdictions of the former gradually been eroded in favour of the later. Y It is the opinion of Balonwu (1974) that, since the time when Sir FredrickR Lugard promulgated the Supreme Court Proclamation No.6 of 1900 and puRrsueAd the British Colonial Policy of Indirect Rule, the British established couIrBts have continued to administer the customary laws of the people of NigerLia in utmost clarity and permanence. Sometimes they have unavoidably adYmini stered strict and undiluted customary law, and at other times, they have beTen pragmatic, by refusing to allow themselves to be used as instruments ‗for observIing or enforcing the observance of a customary law, which is repugnant or incomSpatible with the local enactment or the ones which conflicts with rules of equitRy, or where substantial injustice would result, if the customary law, in questionV, weEre to be applied.‘ Unlike the position whereN legiIslative provision excludes the application of customary laws, which are deemUed ‗incompatible, either directly or by necessary implication, with any valid local enactment‘, a declaration by the courts, that a customary law is repugnant to naNtural justice, equity and good conscience, does not necessarily imply that such cuAstomary law is illegal, for, sometimes, the practice still goes on publicly, 27 long aftDer the judge‘s decision . In such a case, all that the courts can legitimately do, BandA have done, is to refuse to enforce the customary law in question. I Among the Yoruba, customs, deep-rooted cultural mores and religious beliefs tend to compete with the received English law with regard to some issues such as inheritance devolution, kinship and family relationships. Today the western world romances gay marriages and even legislates on it, even luring others to follow suit. Gay marriage is 27 Ojemem & Ors. v. Momodu II (1983) 3 S.C. 173 9 now an acceptable western ideal, but it is an abominable thing in African customary 28 practices . This development constitute the gap to which this thesis is responding, since much has hitherto been said and ciphered in relation to the need for relevant change both in the constitution and the practice of customary law in Nigeria as they affect Yoruba customary practices in general and the devolution of estate in particular, because in inheritance issues conflict is inevitable (Farrington & Keith, 1983:374), competition over resources do trigger inequity and inequality thus exacerbating violence as mYany people may desire the same thing and the thing may not be enough. AR 1.3 Research Questions: R Emerging from the study problem are the following researcLh qIuBestions, to which this study responded:  What is the customary belief of the YoTrubYa on property and inheritance issues? I  How are equity and equality ascertaSined among the Yoruba of Southwestern Nigeria? R  Are these customary modVes oEf devolution generic across Yorubaland?  What are the similaritiIes and differences in inheritance devolution practices among sub-ethnic gNroups?  How has Yo ruUba customary modes of inheritance impacted on private access to properNty? 1.4 ObDjectAives of the Study TheA general objective of the study is to examine how customary law of inheritance IBamong the Yoruba of Southwestern Nigeria upholds the principles of equity and equality in property devolution. This study specifically sets out to:  Examine Yoruba customary belief in property and its devolution  Investigate the notion of equity and equality in Yoruba inheritance practices 28 Azinge, E., 2013. ―Lessons of the Administration of Customary Law in the Nigerian Legal System‖ In African Notes, vol. 37 no.3 2013 @ pp.5-6. 10  Appraise customary practices of devolution of inheritance in selected Yoruba sub-ethnic groups of Southwestern Nigeria.  Compare similarities and differences found in the selected sub-groups.  Assess the impact of the customary modes of inheritance on private access to property. 1.5 Scope of the Study The larger frame of this work is located within African law. Yet, considering the Ylegal and cultural basis of this research, the scope is restricted to the field ofR African customary law in general and Yoruba customary rule of inheritanRce Ain particular. Thus, the study is inter-disciplinary as it draws on African studies, Law and Anthropology. According to Ajala (2013:12), the Yoruba maIkBe up about 77.8% of Yorubaland in Southwestern Nigeria where they are thLickly concentrated, their culture, with regard to inheritance law described in thYis study, is still thriving, but as this study has shown, it is being affected by accuIlTturation, incursion and loss of some historical values in various aspects. S The 22 Yoruba sub-ethnic groups E(AjaRla 2013:30) share some common and broad cultural identities, yet customIarVy practices vary (Ewelukwa May 2002, 434). This makes a general rule or assumption, with regard to cultural practices, difficult. Underlying this, a coUmpaNrative study of the customary practices of devolution of inheritance in the su b-groups is imperative. The study covered, 5 (five) States from Southwestern NNigeria, namely; Ekiti, Ogun, Ondo, Osun, and Oyo, with particular focus on selAected sub-ethnic groups of Ekiti, Ekiti State; Ijebu in Ago Iwoye, Ogun StatAe; IDkale in Okitipupa, Ondo State; Ijesa in Imesi Ile, Osun State; and Oyo in BOgbomoso, Oyo State. Although there may be a range of options available in I devolving a deceased‘s estate, conceptually, the scope of this study is define around, and restricted to the two main modes of devolution of inheritance among the Yoruba of Southwestern Nigeria, namely, 8d7 igi and or7 0 jor7. With consideration for possible temporal changes, there may also be the need to make comparison between what the practice of estate sharing was among the Yoruba, in both pre-colonial and post-colonial times, as well as review some legislative and judicial incursions that have impacted customary devolution practices of the people. 11 1.6 Justification of the Study This study is significant because, as legal-anthropological research documentation which explored the generational changes of Yoruba customary law. It can be considered a legal-historical record to be referred to for the purpose of retaining or modifying customary practices to suit modern day realities and requirements as well as a veritable material in legal-anthropological discourse. The study is a response to specific contribution to testamentary substantiation within the context of African customary law. It also holds the assumption that the dearth or lack of adeqYuate discourse, and indeed, judicial precedents, which sufficiently accommodate trRaditional African thought on devolution of estate should be of concern to Amodern day researches in view of emergent changes and development in AfricaRns‘ adjustment to cultural realities around the world as these implicate testamentaIryB disposition. The intensive, holistic and comparative analysis of cLulture, together with its dynamics, and the influence of cultures upon each otYher is basically the discipline of anthropology. Therefore, it can only be expectedI tThat anthropologists should continue exploring, examining, evaluating and documSenting the gradual changes, both obvious 29 and not so obvious, that appear over tiRme (Belshaw, 1972) . As a result, it can be better understood now why studies, Esuch as this, can enrich knowledge on inheritance matters in such a way as to fIurVther aid the development and integration of Yoruba customary law into moderNn day inheritance devolution practices. 30 Customary law regu laUtes the lives of about 80% Nigerians . The lives of majority of Nigerians are goNverned by customary laws, hence disposition of property are settled under custoAmary law and many states do not have appropriate laws to deal with intestateD succession. This has made the application of customary laws in the distAribution of real and personal property inevitable. It is also the opinion of IBresearchers, that the spate of changes across the globe, due to the great extent of cultural interactions, has necessitated the imperative of looking inwards towards the (re)formulation of a possible alternative method of helping prospective arbiters and/or 29 Belshaw, C. S., Development: The contribution of Anthropology, International Social Science Journal, 1972 :83-94. 30 Olubor, J. O., ―Customary Laws, Practice and Procedure in the Area/Customary Court, and the Customary Court of Appeal‖ in National Judicial Institute, 2002 Induction Course for newly appointed Judges and Kadis in Nigeria, Ibadan, Pectrum, 2004, pp. 1-20 ― p.1 12 adjudicators attain equity in matters of intestacy involving individuals of consanguine and affinal connections. Other significant aspects of this study include: i. The elaborate insight it offers into the history and development of Yoruba customary law and how it can be used to help in the formulation of socio- cultural developmental policies and programmes, as well as law reforms. ii. How the Yoruba, as a people, can re-identify with their cultural heritage. Y iii. How it offers itself in the form of an up-to-date literature on the pRragmatic historical practices of the Yoruba inheritance modes Ras Awell as the development of the legal practice in Nigeria. 1.7 Limitation of the study LIB This study does not cover all aspects of Yoruba Custo mary law. It is limited to customary modes of inheritance among the YIoTrubYa of Southwestern Nigeria, a customary practice that is very significant to them since majority of them are governed by customary laws in most of theiSr dealings; hence the disposition of their real and personal properties are inevEitablRy settled under customary law. Other limitations are: IV i) refusal of courNts to allow audio or/and visual recording of proceedings, judicial o ffUicers‘ refusal to be tape-recorded or quoted ii) cultuNral biases inhibiting women from openly condemning perceived iAnjustice in their matrimonial homes iii) Dselective memory (remembering or choosing not to remember) in respect A of events or experiences that occurred at some point in the past IB iv) attribution – attributing positive events and outcome to ones side and the negative to others or external agents. All the above were alternatively tackled through the use of long-hand in recording court proceedings and interviews, subtle plea on the women who later voiced their minds but requested for anonymity, use of probes to elucidate the veracity of attributions and selective memory. 13 1.8 Definition of Terms These are terms used, and the operational definition of their meanings within the context of the study. They are: equity, equality, family, agnate/agnatic, cognate/cognatic, [m[ 8yq, [bzkan, 8d7 igi, or7 0 jor7, Yoruba, cb7, og5n, testacy, intestacy and ifq. 1.8.1 Equity Y The word ―equity‖ may appear in three different contexts in African legaRl system. First is general equity which can mean fairness, which permits a judAge to waive technicalities of English law (especially on the procedural sidRe), to disregard substantive rules of law which would produce manifestly aIndB substantially unfair result. Second is technical equity, or the body of rules forLmerly administered in the Court of Chancery. It has technical meaning denoting the law created by judges of the juridical English Court of Chancery which was adminYistered in separate court, which as a result of the dichotomy grew up as an SappIen Tdage of the common law and was made to fill the gaps where the remedies available at common law were inadequate to meet the need of justice on any particulaRr matter. (Allott, 1970:160-161). Lastly, is the contextual equity which this stuVdy sEhall adopt, as it appears in the phrase ―repugnant to natural justice, equity and gIood conscience‖ where it provides a controlling factor in the application of custoNmary law. In the third case, equity functions negatively, by 31 disallowing objectio naUble features of customary law . The other cAonteNxtual meaning of equity is fair and just. Equity in its broad sense is equivaleDnt to the meaning of natural justice as it embraces all, if not all concepts of ‗gooAd conscience‘, but in its popular sense, equity is practically equivalent to natural B 32I justice or morality . Most of these rules are not applied to cases involving customary law, though in some procedural matters (e.g. constructive notice, laches, etc.) recourse may be had to equity in common law for rules which are then applied to African cases. 31 Allott, A., (1960) Essays in African Law, London: Butterworth‘s 32 Ahmed and Shore Op. Cit. 14 In a rather general sense, the term equity suggests equal treatment of parties involved in a legal matter by an adjudicator, whether a judge in a modern court or an arbiter in a customary dispute, based on consideration by the arbiter of such factors as the social, ethnic, racial, or economic disparity of the parties. The contrast between general equity and technical equity is the fact that the latter is peculiarly English, whereas the former is universal. Equity is a universal concept, among the Yoruba for instance, the kind of legal rules that will satisfy their sense of justice must be one that is practical and capable of being construed as coinciding with social reality thatY will produce results that find favour within the community, and it is this that Rthe study adopts. A There is a sense of 'equity' (in the sense of what is fair and jusIt Bin th Re circumstances) in the traditional African administration of law and jusLtice, in the settlement of disputes wherein, justice does not take the form of Yjurid ical battle between two or more skillful legal experts seeking the use of legaTl technicalities to undo one another, thereby beclouding the real cause of dispute. AIdigun, O. (1987:3). For example, Yoruba chiefs will hold as immoral and unjuSst a man, who watched in silence another person planting cocoa or even erecting aR building on his land, and then suddenly woke 33 up and sue for the recovery of boVth tEhe land and the improvements thereon . The traditional 'equity' diNd nIot owe its origin to any ancient European theory of justice; evidence of sUuch influence is non-existent. Equity had been known to the customary system o f administration of justice, before the colonial era (Lloyd, 1962). For example, it Nhas long been an established rule of customary law that 'the fact that someone haAs been using other people's land for some time does not make the land becomeD his absolutely. Even the English doctrines of laches and acquiescence is not BnewA to the customary legal regime, there is no possibility that a man can lose his land I because he does not claim it in time. This is the customary law rule but where strict adherence to this rule will result in failure of justice, it may not be applied; in that 34 case, equitable consideration will prevail . 33 Tobias Epelle v. Ojo (1926) 7 NLR 96 34 Lloyd, P. C., 1962.Yoruba Land Law. London: Oxford University Press @ p. 339 15 Few maxims of equity are provided below for more insight into equity as a term: 35 i. He who seeks equity must do equity The biblical injunction "do unto others as you would have them do unto you" has a place in equity by virtue of this maxim, it simply means the same measure you want others to use for measuring for you should be used in measuring for them since equity is fairness. RY ii. 36He who comes to equity must come with clean hands or HAe who comes to equity must do equity R A person seeking equity must not only do equity, but his haBnds must be clean as regards past activities, the conscience must be clear of b aLd fIaith. Equity is not only 37said but must be done. Anyone seeking equity must Yhave displayed some equity . 38 39iii. Delay defeats equity or Equity aids IthTe vigilant Timeous act of rejection will support anyS claim made in future and any form of delay will deny one of any right in Rfuture on the same matter. Equity is sought timeously, an indolent will have hiEs rights trampled on despite the fact that he has a 40 right in the issue, but once heI eVxercises the right he possesses equity will aid him. 1.8.2 Equality UN ‗Equality is equNity‘, this maxim means, whenever anything is to be distributed among persons andA no specific mode of distribution is provided, the maxim is used to equaliseD the share of the parties. The application of this maxim means that the term "equAality" is dependent on the social relationship of each society and personalities. IBEquality is the state of being equal, especially in status or rank, degree, value, rights and opportunities. A system that ensures that policies, procedures and processes are the same, there is no discrimination against certain individuals or groups, thus, making individuals or groups of individuals to be treated fairly and equally and no 35 Taylor v. Williams (1936) 12 NLR 67 36 Brown v. Adebanjo (1986) 1 NWLR 383 37 Ibid @ p.394-395 38 Agaran v. Olushi (1907) 1 NLR 66 39 Agbeyegbe v. Ikomi (1953) 12 WACA 383 40 Op. cit. Agaran v. Olushi @ p.67 16 less favourably, specific to their needs, including areas of race, gender, disability, religion or belief, sexual orientation and age. 1.8.3 Family 41 Using the Shorter Oxford English Dictionary and the case of Okulate v. Awosanya as basis, family is conceived as the body of persons who live in one house or under one head, including parents, children, servant, and so on; and as the group consisting of parents and their children whether living together or not; and in a wider sensYe, all those who are nearly connected by blood affinity, and as those descended or Rclaiming descent from a common ancestor; a house, kindred, lineage. A The term ―family‖ has more than a meaning ascribed to it, dependinRg on which clime the person comes from. In the English sense, it is sometimes rBestricted to a smaller group consisting of the man, his wife and the issues, mean wLhilIe, among the Yoruba it may be extended to the dependents who live with Yhim. This is known as nuclear family unit. Sometimes, family includes not necIesTsarily the wife and issues of a man, but extends to others whose closeness are not too distant but have ancestral blood relationship, this is known as the extRendeSd family unit. This family concept is commonly known as cb7, it may bEe cb7 8yq l-k6nrin (maternal male members) cb7 8yq l9b8nrin (maternal fVemale members), cb7 bzbq l-k6nrin (paternal male members) or cb7 bzbq l9bI8nrin (paternal female members), as it extends to mother in-laws and father Nin-laws, brothers and sisters, uncles, aunts, cousins, nephew and all relations by b loUod or marriage. Thus the extended family unit is usually a large family unit amoNng the Yoruba. At a mDuch Alegal scale, family is understood as the legal standing or position of a persAon as determined by his membership of some class of persons legally enjoying IB 42 certain rights or subject to certain limitations. This, as stated in Okulate v. Awosanya earlier cited, has implication on the meaning of ‗family status.‘ This means that from a combination of the definitions above, ‗family status‘ must be the standing or position of a person within a class of persons constituting a family. Family status means social and legal position of an individual to the rest of the members of the 41 (2001) 1 SCNQR, 149 42 Ibid 17 family. Thus one has to be a member of a family before acquiring a status within the family. 1.8.4 Agnate/agnatic An agnate is a relative who is descended from a man who is also the ancestor of other relatives, especially through the male line. ‗Agnatic‘ is an adjectival derivative. 1.8.5 Cognate/cognatic A cognatic descent group consists of all persons tracing descent in male, femaleY and mixed lines from the same parentage. AR 1.8.6 {m[ 8yq R {m[ 8yq is understood in the context of Yoruba culture as thIeB smallest unit of kin, made up of children of one mother in a polygamous m arLriage. Although [m[ 8yq could also imply children of one woman by different fathers, the former meaning is more likely to be recurrent in usage in this work. TY I 1.8.7 {bzkan S {bzkan refers to children of one fathRer from different mothers. In a polygamous family, children of one [m[ 8yqV beaEr relationship of [bzkan to one another. 1.8.8 *d7 igi I A literal realisation ofU this N term will yield the meaning ‗base of a tree‘. However, the 8d7 igi systemN is in this project deployed as found, recognised and practised among the Yoruba,A or within Yoruba customary law, as a system in which the estate is divided per stirpes, that is equally among the mothers who are wives of the deceased, withA theD children taking their portions through their respective mothers. IB1.8.9 Or7 0 jor7 By the same token, a literal meaning of this term will translate as ‗no head is bigger than the other.‘ Thus, the or7 0 jor7 system is also used in this work as found, recognised and practised among the Yoruba, or within Yoruba customary law, as a system of estate devolution in which property is distributed per capita among the children of the deceased. 18 1.8.10 Yoruba One of the factors of identifying a group of people from other groups is the language (usually called the mother tongue). With some common features one can distinguish the language and its speakers. Among the Yoruba, homonyms are very common and determined only by the accent given to them. Examples of few homonyms will be used here: Word Meaning )j0 rain Y Ojo coward R )j9 name of a person (not used among IAjebu) [lq honour R [lz wealth IB =la tomorrow L [lq name of a personY or t own Od9 mortar T Od0 river I )do zero S Il3 houRse *l3 EIV layer or additional Ow9 money )wo U N horn )w0 trade Another featureN is seen in Yoruba greetings and expressions for most if not all occasions, sAtart with c k5 (plural), o k5 (singular). Yoruba constantly greet one anotherD and they have greetings for almost all conditions of life: BAc k5 0w5r= in the morning I c k5 =sqn in the afternoon c k5 al1 in the evening c k5 ix1 while working c k5 er3 ‘xe while playing/leisure c k5 oh6n while singing or delivering a speech c k5 8r8n while walking or travelling c k5 8d5r9 while standing 19 c k5 8j9k9 while sitting c k5 ok= while in the vehicle or in the boat c k5 or7re for goodluck or the blessing of any kind c k5 =f= 43 for sympathy in grief . In spite of these common features in the language, dialectical differences still exist, though the dialectical differences may not disrupt mutual intelligibility, it only breed identification. Thus in the course of historical development, people became known particularly to outsiders by their sub-group identities such as Ife, Oyo, Ekiti, OYwo, 44 Ondo, Egba, Ijebu, Ilaje, Akoko, Yagba, Ijumu, etc . R A Within the scope of this work, Yoruba is conceived as the people, Rthe language and the culture. However, because this consideration also impIliBcates the Yoruba in diaspora, it is thought wise to limit the signification of tLhe term to the Yoruba of Southwestern Nigeria. This is deemed fit due to the rYeality of a higher dimension of acculturation of members of this ethnicity as settIleTd in other parts across the globe. S 1.8.11 Cb7 R Although cb7 might logically be coEnsidered as a linguistic equivalent of ‗family‘ in English, it stands to reason thaVt ‗family‘ is an unstable category as it tends to be perceived discretely by theN lawI (statutory law) and by culture; hence the need to retain the cultural essence ofU the term. Cb7, therefore, is commonly used by the Yoruba, not only to denote Nboth the patrilineage and the cognate descent groups but also by an individual toA denote all his relatives. Though to Lloyd, the term is as imprecise as the EnglishD word ‗family‘, in context and meaning, but cb7 in the cultural sense holds a rathAer semantic precision in contexts of usage, making its meaning clearer. IB1.8.12 Og5n Og5n in Yoruba means either twenty or inheritance. Og5n in terms of number in Yoruba belief system is believed to be a dividable figure which represents equity in its divisibility. Twenty could be divided for 20, 10, 5, 4 or 2 persons equally without acrimony. 1.8.13 Testacy 43 Koelle, S.W., 1963. Polygotta Africans . London: Church Missionary House 44 Falola, T., and Genova, A., 2006. (Eds), Yoruba in Transition. Durham: North Carolina, USA 20 This refers to a situation where a deceased person dies having written a Will, which must conform to strict rules of Wills writing. In writing the Will, wishes regarding the disposal of the deceased property and other rights or obligations are expressed. The person making the Will (testator) is expected to name an executor and the beneficiaries of the estate. The main strength of the rules of testate succession is that they allow a person to dispose of his/her property as he so wishes. 1.8.14 Intestacy This, as opposed to testacy, refers to a situation where a deceased person dies haYving nothing written to express his/her wish regarding the disposal of his/her propRerty and other rights or obligations. A R 1.8.15 Ifq LIB Ifq refers to the system of divination, and the verses of th e literary corpus are known as od6 ifq. Yoruba religion identifies ifq or I T runYmila as the Grand Priest, who revealed oracle divinity to the world. Ifq oriSginated in the form of a religious system, and is celebrated in traditional AfricRan society. Yoruba consult ifq to receive instructions through divination on inEheritance issues. V UN I AN AD IB 21 CHAPTER TWO LITERATURE REVIEW AND THEORETICAL FRAMEWORK 2.0 Introduction This chapter reviews existing relevant literature and examines what scholars have written on the subject matter of this study. The importance of this is that, the research will not be in isolation of what previous studies have done on the subject matter. With the knowledge of previous contributions in the field of African Law, the researcher is able to analyse the documents containing significant information on the sRubjeYct of discuss. A This review includes a cursory look on the received English laBw, Radministration of estate laws, customary law, proof of customary law, repugnIancy tests, conflict of laws, Yoruba legal system, marriage, Yoruba land tenureL system, notion of family property, its creation and alienation, testate and intesYtate succession, personhood and inheritance, Yoruba kinship and inheritance deTvolution, inheritance and religion, customary modes of inheritance and EnglishI testament, modernity in cultural inheritance practices, Wills under customarSy law, customary modes of inheritance, 8d7 igi and or7 0 jor7. R E 2.1 Received English LawI V Reception of English law iNn Nigeria dates back to 1863 when ordinance No.3 of 1863 45 introduced English l aUw into the Colony of Lagos . Uwais CJN (as he then was) in 46Attorney GeneraNl of the Federation v. Attorney General of Abia State said: HistoArically, the British ruled their colonies by introducing English Dlaws to the colonies. Most of the colonies in Africa including Nigeria, were either conquered or ceded colonies or protectorates and trust Aterritories. English law was introduced in those colonies by express B enactment, the legislation provided for the introduction and observance I of English law. Such legislation were made by the crown by order-in-council, acting by virtue of prerogative, or powers conferred by the British Settlements Act, 1887 (for settlements) and by the Foreign Jurisdiction Act, 1890 for protectorates, protected states and trust territories, that is the former mandated territories. In the alternative, English law was introduced by the colonial legislature by means of local legislation-through ordinances, proclamations, acts etc. by virtue of the powers granted to such legislature by the crown. English law 45 Adebayo, M.A., 2014.Cases & Materials on Nigeria Legal System, Lagos: Princeton Publishing Co. 46 (2002) FWLR (pt.102) 1 22 was introduced into West African territories (Ghana and Nigeria) by this means. In this case the authority for the application of English law is to be found in such enactment as the Supreme Court Ordinance of Nigeria…the amount of law received was the Common law, doctrines 47 of equity and statutes of general application. On the same issue, Ogundare JSC submitted: …With profound respect to learned counsel. I cannot accept this submission. Common law has been received law in this country since 1863 when it was applied to Lagos and 1914 when by the Supreme Court Ordinance of that year; it was applied to the colony and 48 protectorate of Nigeria. RY 49 In the case of Folarin v. Durojaiye Oputa JSC (as he then was) stated: A ―…Our colonial contact with England exposed us to thRe English common law and statutes of general application. ThIeBre is nothing wrong, nothing to be ashamed of; or apologetic abouLt, our assimilation of the positive aspect of the received English law i nto our corpus juris. After all English law itself was highly coloured and radically influenced by Roman law concept as EnglaYnd was once a Roman colony and the American Restatement IbeTars visible scar and easily discernable marks of its English common law origin‖. Common law is the part of the laRw oSf England formulated, developed and administered by the old common lawE courts, based originally on the common customs of the country, and unwritten. IItV is different from equity administered by the court of Chancery; it is also differNent from statute law, laid down by the Parliament; it is not 50the same as such lawUs as ecclesiastical law or the merchant law. The received English law in Nige ria is a combination of both Common law of England and the doctrine of EquiNty received by virtue of local statutes that permitted the application. A 51 AccordiDng to Malemi, the local statutes which received English law for application in NAigeria included: IB1. Ordinance No.3 of 1863 which introduced English law into Lagos Colony; 2. Supreme Court Ordinance No. 4 of 1876 which applied to Lagos Colony; Supreme Court Proclamation Ordinance No.6 of 1900; and later the Supreme Court Ordinance No. 6 of 1914, now the Supreme Court Act 2004. 47 Op. cit. Malemi 48 Ibid 49 (1988) 1 NSCC 255 50 Osborn‘s Concise Law Dictionary (Eight Edition) 51 Op. cit. Malemi @ p.46 23 3. Court of Appeal Act and Federal High Court Act 4. The High Court Laws of the Regions, now States 525. Interpretation Act 2.2 Administration of Estate Laws Marriage Act governs intestate succession to the estates of persons who are married under the Act. Section 36 of the law says, such persons must be subject to customary law and must have been survived by a spouse or child of that marriage. Three of the States of this study were created in 1976 from the defunct Western region: OYgun, 53 Oyo and Ondo States, the 1959 Administration of Estates Law , in usAe in Rthe then Western Region became part of the laws of the newly created SRtates. Upon the additional creation of Osun from the old Oyo and Ekiti from the old Ondo States in 1991, and 1996 respectively, the Administration of EstateLs laIwB in use in the States from where they were created became applicable in the t wo States also. Consequent upon the aforesaid creation, these states legislative pYowers in respect of succession became vested in their states assemblies. IITn effect, the same statute, the Administration of Estates Law, 1959 whicSh was applicable to the five states of Lagos, Ogun, Oyo, Ondo and Bendel iRn 1976 now applies to the five states under study- Ekiti, Ogun, Ondo, Osun andE Oyo States. The Administration of Estates law, rd 1959 in question does not applyV to any death which occurred before 23 April, 1959, 54 when the law actually NcomImenced, it will also be inapplicable where the distribution, inherita nUce or succession of any estate is governed by customary law. It is immaterial wNhether the estate is administered under the 1959 Law or under the 55authority ofA a customary court. 56 On theD authority of the decision in Cole v. Cole , the law may apply, where a moAnogamous marriage was celebrated abroad, and on the authority of Administrator IB 57General v. Egbuka if the marriage was contracted in accordance with the Act, section 36 of the Marriage Act may apply. Otherwise, the rule of customary law will 58 apply. Meanwhile, in Aidan v Mohssen, the court held that the Moslem law binding 52 Cap I. 23, 2004 s.32 53 Op cit. Sagay. 54 Section 1(2) 55 Olowu v. Olowu (1985) 3 NWLR 372. 56 (1989) 1 NLR 15. 57 (1945) 18 NLRI 58 (1973) 1 All NLR 86. 24 the parties applied to the administration of the leasehold of a Lebanese Moslem who died intestate leaving leasehold property in Warri, Bendel State. The lex situs was agreed in the matter to govern the leasehold classified as immovable for the purposes of conflict of laws. The trial judge found that the applicable law was the Moslem law of Lebanon and not the Administration of Estates Law of the Midwestern State, because the distribution of intestate estate under Section 49 of the Law applies only where the parties are married in accordance with the Marriage act. Whereas, the parties to this dispute were Lebanese Moslems who were married in accordance Ywith Moslem law. R On appeal, the Supreme Court approved the judgment below, and obRserveAd thus: It follows, therefore, having regard to our own built-in ruBles in section 20 of the Customary Court Law governing the c hLoicIe of law in the application of the lex situs to the succession to the intestate estate of a deceased person in Warri, the applicable law is not the Administrator of Estates law (Cap I); but the (Moslem) CusYtomary Law of Lebanon which is the one binding between the parties (section 20 (3) (a) (I) of the Customary Law). We are of TSthe Iview that, in this context, customary law is any system of law not being the common law and not being a law enacted by any compRetent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway. We are oEf the view that anyone subject to any such law is excluded from thIeV operation of section 49 of the Administration of Estates Law (cap.1) of Western Nigeria 1959 applicable in the Mid- Western State of NNigeria. Section 49 (1) of the AUdministration of Estates Law lays down the rules of succession to real and persoNnal property on intestacy thus: DA(i) If the intestate leaves a husband or wife but no issue, parent, A brother or sister of the whole blood, the residuary estate will be B held in trust for the surviving husband or wife absolutely. I (ii) If the intestate leaves a husband or wife and issue (with or without parent, brother or sister) the surviving spouse will take the personal chattels absolutely. In addition, the residuary estate of the intestate will be charged with the payment of a net sum of money equivalent to the value of one-third of the residuary estate, free of death duties and costs, to the surviving spouse, with interest at the rate of two and half per cent from the date of the death until the sum is paid or appropriated. Besides the provision of the said sum and interest thereon, the residuary estate (less the personal chattels) will be held as to one-third on 25 trust for the surviving spouse during his or her life and then on statutory trusts for the children of the intestate. The remaining two-thirds will be held on statutory trusts for the issue of the intestate. (iii) If the intestate leaves a husband or wife and parent, brother or sister of the whole blood but no issue, the distribution is as in (ii) above. But after the payment of the stipulated net sum and interest thereon, the residuary estate (less the personal chattels) is to be held as to one half in trusts for the surviving spouse absolutely. The other half is to be held in trust for the surviving parent or parents, or where no parent survives, on statutory trust Y for the brothers and sisters of the intestate. R (iv) If the intestate leaves issue but no husband or wifeA, the residuary estate of the intestate will be held on statuRtory trusts for the issue of the intestate. In the absence of any person taking an absolutIe Binterest under the rules discussed above, the residuary e stLate of the intestate will devolve on the State as bona vacantYia. But the State may out of the property devolving on it prTovide for the dependants of the intestate. I (v) Where property is distributed on intestacy among the children of the deceased equity RpresSumes that the father intends to preserve the family hEarmony by giving to his children almost equal portions. This principle is laid down in Section 50(1)(iii) of the AdministIraVtion of Estates Law 1959. The law expressly stated mNatters to which it does not apply; the law does not apply to the estate of a deceased person which is either under the authority of a Customary 59 Court or the disNtrib ut Uion of which is governed by customary law. The law applies where a perAson who is subject to customary law contracts a marriage under the Act. Such aD person must have died intestate, even where the deceased intestate is not survAived by a widow, widower or a child of the marriage. His or her residuary estate Bis subject to distribution under this law to his or her extended family in the order I 60specified under the law . 59 S.1 (3) 60 Onokah, M.C., 2012 Family Law, Ibadan: Spectrum Books 26 2.3 Customary law Law, according to the Osborn‟s Concise Law Dictionary (English Edition) is: … an obligatory rule of conduct. The commands of him or them that have coercive power (Hobbes). A law is made of conduct imposed and enforced by the sovereign (Austin). But the law is the body of principles recognised and applied by the state in the administration of justice (Salmond). Blackstone, however, maintained that a rule of law made on a pre-existing custom exists as positive law apart from the legislator or judge p. 94. 61 Roscoe Pound defines law as a social institution to satisfy social wants, - the clYaims as demands involved in the existence of civilised society – by giving effect toR as much as we may least sacrifice. However, because law, in a more encompassingA view, is not applicable only to what Pound calls ‗civilised society‘, one iIs Bpro Rmpt to note that, prior to the existence of ‗civilised‘ societies, law had been understood to be integral to the rubrics of traditional societies, whether in Africa oYr els ew Lhere. Customary law is unwritten, it has the recognitionT and acceptance of the community as one that should govern its transactions Sand Icode of behaviour in any particular matter as it owes its authority to the factR that the custom has been established prior to the existence of ‗civilised societiesE‘. Customary law is the body of customs which from long usage have acquireIdV the force of law among a people, to regulate their affairs, while perceived iniNmical behaviour among the people are properly sanctioned. 62 The Evidence Act deUfines custom as: A rule wNhich in a particular district has from long usage obtained the forceA of law ObasekDi, J.S.C (as he then was) defined customary law in the case of Oyewumi v. 63 OyeAwumi as: IB The organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transaction of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it. 61 Pound, R., 1933 Modern Theories of Law : London 62 Evidence Act 2004, s.2 63 (1990) 3 NWLR (pt.137) 182 @ 202 27 64 According to Malemi , Customary law is the people's law springing directly from their consciousness and molded to their own desires and practices. Whereas, English law is an imposed and alien code, imperfectly corresponding to African structures and aspirations. The differences in origin, principles and methods of the indigenous legal institutions and the received English law in Nigeria created the divide; but the source of the laws, whether African or European, is the same. Though the issue of origin, principles and methods are no longer relevant because received laws were enacted as part of our own laws, some have been modified and others rejected. By the singYular act of rejection or choosing any part of the received law, it has become our owRn law. The unwritten nature of customary law makes it flexible and adaptabRle anAd it is one of its enduring qualities, as it has its existence and essence inI Bthe rule of conduct, obligatory on those subject to its sway, and established byL long usage. Further, it is rooted in a valid (African) custom that is typically andY oft en of immemorial antiquity, certain and reasonable, obligatory yet not repugnTant to the average mind within the cultural context of its application. It is a law noIt frozen in time but a dynamic living law that responds to actual needs and sentSiments of the time and place, since the purpose of law is to fulfill human wants,R and this is found in customary law. IV E 65 In the words of Osborne, C.J in Lewis v. Bankole- ... one of the mosNt striking features of West Africa native custom, to my mind, is its flexibility; it appears to have been always subject to motives of eUxpediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its individualistic charactN 66eristics. In Nigeria, Acustomary law may be conveniently divided into two classes: ethnic and Islamic.D Islamic law is a religious law based on the Moslem faith and applicable to BmemAbers of the faith who choose to be so guided by it. It is in written form and rigid I because of the belief that it is a divine instruction, though scholars are of diverse opinion on the proper classification of Islamic law. The position today that has not changed is the fact that Islamic law is part of customary law in Nigeria. Ethnic customary law, on the other hand, is unwritten and varies from one ethnic group to another. Since customary law is flexible and accommodating in its application and 64 Op. cit. Malemi @ page 27 65 (1909) 1 N.L.R 81@ p. 103 66 Ibid @ p. 100-101. 28 responds gradually to modern day challenges, one cannot but, agree with those agitating for a re-classification of Islamic law which is not flexible in any sense. Among the Yoruba it is believed that cni bq yq [k- ol9k6nr6n r’oko, k87 f1 k7 ol9k6nr6n 9 y4 (One who borrows the hoe of a sick farmer may not pray he recovers), hence the legal system was regarded as not meeting the standard set by the colonialists for a legal system, so, they agreed to observe and enforce customary law which to them ―is applicable and not repugnant to natural justice, equity and Ygood conscience nor incompatible either directly or by implication with any lawR for the time being in force‖, however, its application depends on sufficient proAof since it is unwritten and it varies from one place to another. R Furthermore, customary law is the dynamic rule rather than thIeB static, providing the guiding principles of interrelationship between one gener atLion and the next. It is the mirror of accepted usage which exists in the heartsY and minds of its adherents as communicated by ancestors and carried on throuIgTh oral tradition. As aptly observed, ―there is no written memory of the edicts anSd judgment. They exist only in the minds of those who administer and those who Rare subject to the customary law. It is flexible and adaptable to changing circumstaEnces and society There is no pondering over legal principles, no juristic analysisI, Vno critics or refurbishing of old precedents, all of 67 which depend on writtenN texts which the justice may scrutinise at leisure. The customary laws of anU area sum up the beliefs, social institution and religion that makes a commuNnity or a people unique because it differ from place to place and no one practiceA can be said to be inferior or superior to the other. This is why it is virtuallyD impossible to replace one culture with another. One unique value of the YorAuba customary law is that it is humane and allows for true bonding in the family, IBwith emphasis on unity which is the social fabric of the Yoruba family. Just as the Constitution of the Federal Republic of Nigeria (1999) has also changed several times to accommodate modern changes, the social, political and economic life of the Yoruba have also changed with time and they have in some ways modified customary practices greatly. While some old practices and customs have disappeared, new ones have appeared to deal with new situations. In his own engagement and 67 Allot, A.N., 1970. Essays in Africa Law. London: Butterworth‘s @ pp. 61-62 29 explication of law in traditional Africa, Adaramola (1991) makes some relevant allusion to Alan Watson who had earlier pontificated that: … the nature of custom is quite unlike that of any source of law. Other kinds of law making are at least in form, imposed on the populace from above; custom represents… what the people do [and accept] as having the effect of law. Hence, in line with the above stated, Oyewo (2003) accords as to the fact that, binding African customs are the unwritten usages and practices of the people in an African society. What is then known as ‗African customary law‘ is the recognised operYative normative system in traditional African societies. Adaramola (1991:6R9) says, customary laws are binding on all indigenes and non-indigenes living Ain the native area in certain circumstances, and in some cases, on indigenes in Rdiaspora. In the particular example of Nigeria, according to Adaramola, therIe Bare three discernible streams of customary law. There is the type which bind sL both indigenes and non- indigenes in their area of operation, such as customaYry rule relating to land; that is, ratione loci (by reason of its being attached to IthTe geographical area concerned). A second type is said to bind indigenes only Swhether they live in their home areas or outside it, such as customary law relatiRng to succession, marriage and widowhood. This type operates extra-territoriallyE upon the affected people, ratione personae (that is, by reason of what it attachesV to their persons). Finally, a third type is said to bind indigenes only when they Nlive Iin their native area but not otherwise; for instance, such regulates the monarc hUical institution or the traditional role of women in society, and so on; that is, rNatione loci et personae (that is, by reason that it attached to the area and concernAed native inhabitants). When sDituate within the context of this disquisition, one may have reasons to contest Bthe Asubmission of Adaramola who is of the view that the fact that a rule of ethnic I customary law may be voidable in certain circumstances weakens the customary law system and may, in the course of time, completely stifle it, especially because generally education spreads with the irresistible and increasing tempo of urbanisation. Although this point of view (with regard to widespread of education and urbanisation) has been evidenced by Kristin Mann in Marrying Well, a differing perspective would be to see the possibility of customary laws of Africa being further augmented through 30 the cultural consciousness of educated Africans whose levels of awareness can be said to straddle two worlds – Africa and, especially, the West. This is particularly true even in the twenty-first century when Africans, whether well read (as in the case of African elites) or moderately educated, have relatively stable awareness or understanding of the ‗global culture‘, and therefore might be able to locate areas in their own customary laws where the principle of hybridisation (of their customs and compatible foreign values) may be adjudged applicable. In this case, therefore, rather than having the Ibo customary law ‗ousted‘, as in the case of OYkolie 68 v. Ibo , a middle ground could be found to accommodate the two possible Rsides (or kinds) of law to attain balanced adjudication. RA Customary Courts in some cases are also known as Native CIoBurts. All Customary Courts are courts of record. They exist in all the states of SLouthwestern Nigeria, and the extant Customary Court Law of the different statYes of Southwestern Nigeria are 69 deemed to be existing laws by virtue of the clearI pTrovisions of the Constitution . The Constitution protects such laws and are deemed to be properly enacted by their 70 respective State Houses of Assembly .R CuSstomary courts are to dispense justice in 71matters relating to customs in the areEa . The existence of Customary CIouVrts in Southwestern Nigeria is to do justice in matters within the ambit of customNs and tradition of the people. This position was articulated 72 in the case of Ehigie vU. Ehigie , when the Court x-ray the powers of customary courts in simple terms Nthat: CAustomary Courts have their practice and procedure as Dembodied in the Customary Courts Law and Rules of the State in the country where they are applicable. By virtue of the nature A or form of customary laws they relate to the traditional IB unwritten law of the people handed down from generation to generation. Where members of the Courts are familiar with the custom of a community they can apply it without first requiring evidence. 68 (1958) NRNLR. 89. 69 Op. cit 1999 Constitution @ S.315. 70 Ibid @ (1)(a)(b). 71 CAP E14, 2004 72 (1961) 1 NMLR 31 However, legally admissible custom must not be repugnant to natural justice, equity 73 and good conscience. This was endorsed in the case of Arum v. Nwobodo , where the court espoused the principles governing proceedings of Customary Court as follows: ... The cardinal principle governing the Court‘s proceedings is the attainment of substantial justice based on the reasonable practice, tradition and custom of the local people. 2. 4 Proof of Customary Law The unwritten nature of customary law and its flexibility have implications foYr its acceptability. Unlike the received English law that is within the knowledgRe of the judge and the contemplation of the courts; customary law is regarded aAs a matter of evidence to be proved in individual cases before it can be accBepteRd and applied by 74courts. And, of course, as stated in the Evidence Act , ‗A cusItom may be adopted as part of the law governing a particular set of circumsta ncLes if it can be judicially noticed or can be proved to exist by evidence,‘ and Yin addition, the same Act goes further to state that even ‗Where a custom cannTot be established as one judicially noticed, it shall be proved as a fact.‘ Its unwSritteIn nature and its acceptance has to be tested against actual application by thoseR whose lives and affairs it governs. Customary law is a law becauseV the Epeople accepted the rules and codes of behaviour laid down by their customs. It Iwas the genuine acceptance of customs that gave it the toga of law as opposed toN English law, statutes and so forth. For a custom to now be accepted as law, the cUolonialists laid down what is now known as validity tests which a custom must pNass, and the validity tests say that a custom must not be repugnant to: i. NAatural Justice ii. DEquity Aiii. Good conscience IB iv. Public policy; nor v. Incompatible with any law for the time being in force Where customary law has satisfied the above conditions, does the Act apply to proof of its Evidence in Customary Courts? In answering this question, an attempt at 73 (2004) 9 NWLR (pt 878) 411 74 Op. cit. CAP E14 32 knowing the meaning of Evidence in law will be attempted, while the historical analysis of the Evidence Act will be dealt with also. 75 Meanwhile, the Oxford Advanced Learner‘s Dictionary , sees Evidence as information that gives a strong reason for believing something or proves something. Evidence therefore, is the existence of facts required for the proof of an issue. The reason for evidence is to show the existence of facts and the proof of same, Evidence has been conceptualised as: The means by which any alleged matter of fact, the truth of which is 76 submitted to investigation is established or disproved . RY Judgments are based on available facts and the reasoning for requiring eAvidence is to adduce facts. Facts are the fountain of law. All substantive princRiples of law are 77 useless without the existence of facts, and legal actionLs cIaBnnot be successfully predicated on such principles in Court. The proof of fact i s predicated on the proof of Evidence in any matter before the Court of law. AY fact being anything capable of being perceived by the sense cannot be allowed to Tbe treated anyhow, so the provision 78 of the Evidence Act as laid down for the pSrooIf of a fact or otherwise should guide us: A fact is said to be: R E (a) ‗proved‘ when, after considering the matters before it, the court either believesN it toI e Vxist or considers its existence so probable that a prudent man ought, in the circumstances of the peculiar case to act upon tUhe supposition that it does exist; (b) ‗disproved‘ when after considering the matters before it, the Court eithNer believes that it does not exist or considers its non existence Aso probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist, D(c) ‗not proved‘ when it is neither proved nor disproved. B AI 75 th 5 Edition (Edited by Jonathan Crowther). 76 th Will‘s Circumstantial Evidence (7 Edition, 1937), page 2, quoted in P.B. Carter‘s ―Cases And nd Statutes Of Evidence (2 Edition, 1990), page 3. 77 Osadolor, F. O., & Bazuaye, in Evidence Act and its Applicability to Customary Courts in Nigeria: Quo Vadis? www.nigerianlawguru.comRetrieved September 16th, 2014 78 Op. cit. CAP E14 @ S. 2(2)(a),(b),(c). 33 Authorities abound on the meaning of Evidence in law, and few of such shall be consider here: 79 Cross sees Evidence as: The testimony, hearsay, documents, things and facts which a Court will accept as Evidence of the facts in issue in a given case. 80 Phipson , in his work on Evidence submits that Evidence is: The testimony whether oral, documentary or real, which may be legally received in order to prove or disprove some facts in dispute. Y 81 Nokes , explains judicial Evidence to consist of: R Facts which are legally admissible and the legal means of attemptAing to prove such facts. R Oputa J.S.C. (as he then was) in the case of Emmanuel M. OL. CIhuBkwuogor v. Richard 82Obigiabo Obuora explains thus: In its broadest sense, Evidence encompasseTs anYd includes the means employed for the purpose of proving a disIputed fact. From all the above, Evidence is the meansS by which any alleged matter of fact is proved or disproved. Whereas, the lawR of Evidence encompasses the legal rules regulating Evidence. It is submitVted Etherefore that no course or matter succeeds in any trial without proof of EvidenceI. A Judge whose main responsibility is to adjudicate on the rights and duties of paNrties, listens to the testimonies or evidence of the witnesses, sees their demeanor aUnd general comportment in the witness box. The Judge whether in an English cNourt or in customary matter therefore determines the liabilities or otherwise ofA parties on the basis of the Evidence placed before it. EvidencDe is the fountain of the law, the in-road to the success or otherwise of any formA of litigation. Murtala Aremu Okunola (J.C.A.) (as he then was) has this to say in IB 83Oluwole v. Abubakare : Although a Court of law is not an investigative body, it is empowered to evaluate evidence of facts tendered before it. 79 th Cross on Evidence, 4 Edition. 80 th Phipson‘s Evidence, 11 Edition. 81 th An Introduction to Evidence, 4 Edition. 82 (1987) 3 N.W.L.R., Pt. 61, 454, 477 – 478. 83 (2004) 10 N.W.L.R., Pt. 882, 549. 34 84 85 In the wisdom of the draftsmen of the Evidence Act , the Act says: Court includes all Judges and Magistrates and except Arbitrators, all persons legally authorized to take evidence. From the quoted passage of the act, it appears that anyone or body of persons performing judicial or quasi judicial functions and empowered to take evidence would automatically fall within the ambit of the definition of a ―court‖. This was interpreted differently by the Supreme Court in Denloye v. Medical & Dental Practitioners 86 Disciplinary Committee where it says: Y ... we are of the opinion that it would be wrong for any court to takRe this view. Any enquiry cannot be looked upon as proceedings in court and unless there is relaxation of the ordinary rules with wRhicAh the courts are bound, it will be difficult in many cases tBo conduct an enquiry. I However, the proper definition of court is found in the pro viLsion of Section 6 (1) and 87 (5) of the Constitution , which has on its side note ―juYdicial powers‖, where courts in Nigeria were clearly identified as follows: T I Section 6(1): The Judicial Powers of the FedeRratioSn shall be vested in the courts in which this section relaEtes, being Courts established for the Federation; Section 6(5): IV This Section relates to: - (a) the SupreUme NCourt of Nigeria; (b) the Cou rt of Appeal; (c) theN Federal High Court; (d) the High Court of the Federal Capital Territory, Abuja, (e) Aa High Court of a State; D(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; A(g) a Sharia Court of Appeal of a State; IB (h) the Customary Court of Appeal of the Federal Capital Territory, Abuja; (i) a Customary Court of Appeal of a State; (j) such other Courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly make laws; and 84 Op. cit. CAP E14 85 Section 2(1) Evidence Act. 86 (1968) 1 All N.L.R., 306. 87 Op cit. Constitution of Nigeria 35 (k) such other Court as may be authorized by law to exercise jurisdiction at first instance or on appeal on matter with respect of which a House of Assembly may make laws. 88 A historical analysis of Section 1(2) of the Evidence Act which was amended by 89 Evidence (Amendment) Decree No. 61 of 1991 laid to rest arguments as to its 90 applicability. It is therefore pertinent to examine the Evidence Act in a historical 91 perspective with reference to its Section 1 (2) (a) (b) which is so fundamental to this argument. The old order was as stated in the 1990 Laws of the Federation, Y Section 1(2) R This Act shall apply to all judicial proceedings in or beforeA any court established in the Federal Republic of Nigeria, but it shall not apply: - R (a) to proceedings before an Arbitrator or B (b) to a field general court martial LI 92 93 There came an amendment to the Evidence Act bTy DYecree No. 61 of 1991 which stcommencement date as per the amendment was 1I of January, 1990. The relevant provisions as amended are set below: S Section 1(2) ER This Act shall apply toI aVll judicial proceedings in or before any court established in the Federal Republic of Nigeria, but it shall not apply: - (a) Uto pNroceeding before an Arbitrator, or (b) to a Field General Court Martial, or N(c) to judicial proceedings in any civil cause or matter, in or before any Sharia Court of Appeal, Customary Court of A Appeal, Area Court or Customary Court unless the D President, Commander-in-Chief of the Armed Forces or the Military Governor or Military Administrator of a A State, by order published in the Gazette, confers upon IB any or all Sharia Courts of Appeal, Customary Courts of Appeal , Area Courts or Customary Courts in the Federal Capital Territory, Abuja, or a State as the case may be, power to enforce any or all the provisions of this Act; 88 Cap. 112 LFN., 1990 89 Decree No. 61 of 1991 is now an Act deemed to have been duly enacted by the National Assembly by virtue of the provisions of Section 316 of the Constitution of the Federal Republic of Nigeria, 1999. 90 Ibid 91 Ibid. 92 Ibid. 93 Op. cit. Constitution of Nigeria 36 (3) In judicial proceedings in any criminal cause or matter in or before an Area Court, the Court shall be guided by the provisions of this Act and in accordance with the provisions of the Criminal Procedure Code Law; (4) Notwithstanding anything in this section, an Area Court shall, in judicial proceeding in any criminal cause or matter be bound by the provisions of Sections 138, 139, 140, 141, 142 and 143 of this Act.; The position of the law after the amendment Act is now clear and different from the st position before the amendment that became operative on the 1 of January, 1990, Yand 94 the provisions are unambiguous as to where Evidence Act shall apply. The lRaw says, it will be applicable: RA to all judicial proceedings in or before any court eBstablished in the Federal Republic of Nigeria. LI The Act unequivocally states its areas of coverage aYs, all judicial proceedings in or before any Court established in the Federal RepubTlic of Nigeria, but, it does not apply to proceedings before an arbitrator, or to a field Igeneral court martial, and it provided the exceptions also. The amendment incRorpoSrated an additional paragraph to Section 1(2) of the Act, which is now SeEction 1(2), paragraph (c), which now make the Customary Court of Appeal, SIhVaria Courts of Appeal or Area Courts, to enforce any or all the provisions of theN Evidence Act when the Governor or President as the case may be, confers poweUr on the courts so to do only. 95 In the case of ANdey emi Ogunnaike v. Taiwo Ojayemi the Supreme Court took this view, when Ait held, per Kawu J.S.C. (as he then was): Dnow in my view, the clear wordings or provisions of Section 1(4)(c) of Athe Evidence Act leaves no room for any doubt that the provisions of B the Act do not apply to judicial proceedings before Native Courts ... as I there is no evidence to show that the Act was made applicable to the trial Customary Court when it gave its judgment. I am of the view that the Court of Appeal was right in their decision that the appellate High Court was in error to have applied the provisions of Sections 45 and 54 of the case. 94 Op. cit. Evidence Act. @ S. 1(2) (a) & (b) 95 (1987) 1 NWLR., Pt. 53, 760. 37 96 Obaseki J.S.C. (as he then was), concurred with the lead judgment of Kawu J.S.C. (as he then was) thus: it is erroneous to argue that the provisions of the Evidence Act applies to Customary Court when the Evidence Act has expressly exempted the application of the Act from judicial proceedings before a Native Court. The Supreme Court of Nigeria restated the position of the law in the case of Chief 97 Awara Osu v. Ibor Igiri & 3 Ors. When Belgore J.S.C. (as he then was) delivering the leading judgment held: Y the Governor of South-Eastern State of former Cross River State was not known and never conferred this power on district Court or CustoRmary Court (which nomenclature Native Courts later came to be knowAn). Had the Court of Appeal adverted to this section, its decision migRht have been difficult. For Customary Courts are not bound by Evidence Act unless subsequently so conferred with the power to apply itL... IB98 In the case of Alhaji Ahmadu Alao v. Alhaji Oba AlabYi , Ogebe J.C.A., delivered the judgment thus: T with the greatest respect to both CounseIl in this case, it would appear that they are behind in the deveRlopmSent of the law. Section 1 of the Evidence Act. Cap. 112 of tEhe Laws of the Federation, 1990, sets out the relevant portion of the Evidence Act. It reads:- This Act shall apply to all judIicVial proceedings in or before any court established in the Federal Republic of NiNgeria, but it shall not apply: - (a) to pUroceedings before an Arbitrator or 99(Nb) to a field general court martial‘ In his judgmAent, he further stated: DThis Section now makes the Evidence Act to apply to all judicial proceedings Ain or before a Court established in the Federal Republic of Nigeria. The only B exceptions are proceedings before an arbitrator or a field general court martial. I The Upper Area Court, Omu-Aran is certainly a Court established in Nigeria thand the retrial before it started on the 28 of October, 1992, when the Evidence Act, 1990, had already come into operation. The law as it is now is that the Evidence Act applies to all Courts established in Nigeria. 96 Ibid. 97 (1988) 1 NWLR pt. 69, 221. 98 (1997) 6 NWLR,pt. 508, 351, 356. 99 S. 1 (2) 38 The judgment of Ogebe J.C.A. was a literal interpretation of the old provision without reference to stare decisis by which precedents are authoritative and binding, and the non-recognition of which led the court to following the old law. Whereas, the new position of the law would have guided the judgment if the principle was followed, as at the date of delivery of the judgment, the Evidence Act had become unambiguous as 100 per its applicability. The judgment had been severally criticised not to be a ‗good law‘ by legal minds in many fora and one of them states thus: Against this background therefore, … with due respect, that the Y position of the law stated by Ogebe J.C.A. in the case of Alhaji 101 Ahmadu Alao v. Alhaji Oba Alabi was held per incuriam andA is nRo good law with due respect to the express provisions and the Rcombined effect of Section 1(2) (a),(b) & (c), (3) & (4) of the Evidence Act as amended. B The truth of the matter is that, the Evidence Acts has beenL mIade inapplicable in the courts mentioned in civil causes or matters but applic able in criminal causes or matters with a caveat, subject to the conferment of its Yapplicability by the Governor or 102 President as the case may be, by an order puSblishIe Td in the Gazette. Section 1(3) of the Act clearly invokes the entire provisiRons of the act to guide judicial proceedings in criminal cause or matter before Area or Customary Courts. This does not make the provisions of the Act to apply in sucEh matters; rather, it assists the court to take a good path to criminal justice. The pIroVvisions of the Act that the Area or Customary Courts is bound to apply in criminNal cause or matter are Sections 138, 139, 140, 141, 142 and 103 143 which deals with Uburden of proof . 2.5 RepAugnNancy Tests and Customary Law The maDin origin of the doctrine appears obscure, however, it is difficult to resist the 104 factA that the origin of the repugnancy doctrine has much to do with Aristotle ; a IBcontrary view may result drawing artificial distinction between ideas and the terms or terminology adopted in describing these same ideas. The idea that what is fair and just in the circumstance should be a controlling factor in the administration of law permeated Aristotle‘s writings. His idea of equity is to pardon human failings where 100 Op. cit. Evidence Act @ S. 1(2) (a),(b) & (c), (3) & (4) 101 Op. cit. Ogebe J.C.A 102 Op. cit. Evidence Act @ S. 1(2) (c) 103 Ibid 104 Derrett, J..N.D.,1963 Ed. Justice, Equity and Good Conscience in Changing Law in Developing Countries, Studies on Modern Asia and Africa 2. London: George Allen & Urwin, p. 114 39 strict application of law would lead to failure of justice. In essence, it is implicit in Aristotle's writings, that the law should be administered with particular reference to 105 what is fair and just in the circumstance, but the origin of the doctrine on the development of our customary law in Nigeria is not far-fetched. The British colonised Nigeria from 1863 – 1960, and introduced the doctrine to their territories where common law and doctrines of equity had to be administered side by side with the local laws, of which Nigeria was one. Until the enactment of the Criminal Ordinance No. 3 of 1904, the British administered the colony of Lagos from 1863 withY the common law of England. Therefore, the "repugnancy doctrine" became paRrt of our 106 system through various local enactments , it was of much imporAtance in the ascertainment and application of our customary law, as the coloniRal administration permitted the application and enforcement of customary lawB rules by our courts provided they pass a general test of validity: not repugnanLt toI natural justice, equity and good conscience or incompatible either directly Yor b y implication with any law 107for the time being in force. IT An attempt at ascertaining the meanings of ―Sthe attributes of the repugnancy doctrine‖ have been a bit difficult. W. C. E. DanRiels on "Influence of Equity in West African 108 Law" writes: E …when we look for theI Vmeaning of equity in the broad sense, we are told that it is equivalent to Nnatural justice. When we try to ascertain the meaning of natural justice we are told that it is practically equivalent to equity in the popular sense.U Then both are said to mean natural law. At this juncture we re-enter the realm of uncertainties, but one thing being made clear: is that the theory of ass igning specific meanings to each of the phrases in the context of theirA usaNge is unattainable. Speed, DAg CJ says ―… I am not sure that I know what the terms ‗natural justice and BgooAd conscience‘ mean. They are high-sounding phrases and it would of course not be I difficult to hold that many of the ancient customs of the barbaric times are repugnant thereto, but it would not be easy to offer strict and accurate definitions of the terms‖. ―But with regard to equity the case is quite different. The rules of equity are, or ought 105 Op cit. Belgore, J.S.C., 106 Supreme Court Ordinances No. 4 1876, s. 19; No 6, 1900, s.13; No 6, 1914, s.20; No 23, 1943, s.17, now Supreme Court Act; Native Courts Ordinance No. 9, 1900, and the Native Courts Ordinance No. 3 of 1914 and 1948; Court of Appeal Act; High Court Laws of the States; Customary Courts Laws of the States; Evidence Act and Evidence Laws of the States; Interpretation Act and Laws, and so forth. 107 High Court Law, No.8 of 1955 (N.R.) s.34 (4). 108 (1962) 11, ICLQ, 31 at 37 40 to be, perfectly known to this court, and if a native law or custom is found to be repugnant to the fundamental rules of equity it is absolutely the duty of the court to 109 ignore it‖ An interesting question arose at the hearing, as to the modification of an original custom to kill [the Oba] into a milder custom to banish. Lord Atkin in Eshugbayi 110 Eleko v. Government of Southern Nigeria says: …the more barbarous customs of earlier days e.g., to kill, and not to banish, a deposed chief may under the influence of civilisation become Y milder without losing their essential character of custom. It woulRd, however, appear to be necessary to show that in their milder form they are still recognised in the native community as custom, so as inA that form to regulate the relations of the native community inter sRe. In other words, the court cannot itself transform a barbarousI cBustom into a milder one. If it still stands in its barbarous character it must be rejected as repugnant to ‗natural justice, equity an dL good conscience.‘ It is the assent of the native community that gives a custom its validity, and, therefore, barbarous or mild, it must be shYown to be recognised by the native community whose conduct it isI sTupposed to regulate. Though, the test has been applied to variousS issues of customary law in Nigeria, such 111 R 112as customary tenancy, customary pledge among others, yet its application does not seem to have offered any satisfacEtory solution to most of the cases and have not in any way showed that customaIrVy law of the people is inimical to the promotion of equity and equality on oneN hand or that it inhibited natural justice on the other hand, 113especially if one loo ksU at the ratio of the Eshugbayi Eleko case which stands as the 114locus clasicus oNn the doctrine, the case has positioned itself as an authoritative pronouncemAents that ―the court cannot itself reform a barbarous custom into a milder one.‖ ifD it still stands in its barbarous character it must be rejected as repugnant to ―naAtural justice, equity and good conscience‖. That is all it has offered, and the fact Bthat the 'repugnancy doctrine' is introduced by statutory enactments does not I necessarily mean that its application should be governed by rigid canons of statutory interpretation because, no court of justice would apply any rule of customary law which is repugnant to natural justice, equity and good conscience even if the statutes 109 Op. cit. Speed, Ag CJ. 110 Op. cit. Lord Atkin 111 Odusoga v. Ricketts (1997) 7 NWLR pt 511, p.1SC. 112 Abioye v. Yakubu (1991) 5 NWLR pt 190, p.130 SC. 113 Op. cit. Esugbayi Eleko 114 Ibid. 41 introducing the doctrine had not been enacted. According to Elias: In the sphere of African law, fiction, equity and legislation seem to be concurrent influences making for legal change. The King, the Chief, and the Village Headman are each in his turn regarded as the father of his people and the fountain of justice ... In chiefless communities, the inevitable interplay of counter balancing segments which are so far a regular feature of all their social and cultural activities renders the free application of equitable consideration of fairness and impartiality 115 absolutely necessary among these highly egalitarian peoples. Y R 2.6 Conflict of Laws A Conflict of laws or Private International Law is concerned with the Rapplication of the 116 law in space and time . It arises where a ‗foreign law‘ is at vIarBiance with its native counterpart as to which court an action or suit should be Lbrought, and by what law that cause of action is to be decided when the court before which the action is brought assumes jurisdiction (Emiola, 1997). It is that partT of YPrivate Law of a country which 117 deals with cases having foreign elements . SIt coIncerns relations across different legal jurisdictions between persons and sometRimes companies, corporations and other legal entities. E 118 According to Black‘s Law DicItioVnary , conflict of laws is that: branchU of Njurisprudence, arising from the diversity of the l aws of different nations, states, or jurisdictions in their application to rights and remedies, which Nreconciles the inconsistency, or decides which law or A system is to govern in the particular case, or settles D the degree of force to be accorded to the law of another jurisdiction (the acts or rights in question A having arisen under it) either where it varies from the B domestic law, or where the domestic law is silent or I not exclusively applicable in the case in point. Conflict of laws concern those areas of law primarily with specific duties and rights of 119 individuals with which the state is not immediately and directly concerned. It is the body of rules for determining questions of jurisdiction and questions as to the 115 Elias, T. O., 1956.The Nature of African Customary Law, Manchester: University Press @ p.188 116 Osborn‘s Concise Dictionary 1993. 117 Agbede, I. O., 1998. in National Open University of Nigeria, School of Law, Course Code 118 6th Edition, p. 299 – 300 119 Wardsworth IBC v. Winder (1985) AC 461 42 selection of the appropriate law, in civil cases which came to Court that have foreign element. That is, if the cause of action arose and a party to the contract resides abroad. Its objects are to prescribe the conditions under which the court is competent to hear the case, to determine for each class of case the internal system of law by reference to which the rights of the parties must be ascertained, to specify the circumstances in which a foreign judgment can be recognised as finally deciding a case and enforcement of foreign judgments through the English Courts. It is a difference between the laws of different states or countries in a case in which a transactioYn or occurrence central to the case has a connection to one or more jurisdictions. R Conflict of laws is the part of private law of a particular country RwhicAh deals with some system of law other than that of the country where courts are seized of the case. If a claim is made for damages for breach of a contract made iInB Nigeria between two Nigerians companies and to be executed in Lagos, there is nLo foreign element in such a contract. Therefore, the case is not covered by theY principles of conflict of laws. Such a case will be treated by the courts applyinIg Tthe domestic law of contract. But if the contract had been contracted in, shall weS say Togo, between a Nigerian company and a Togolese company to be executedR in Togo or in Ghana, the case is within the scope of conflict of law. DeterminatiEon of who has jurisdiction on the matter will now be left for any of the three couIntVries court to determine. The court will have to use its ‗choice of Law‘ rules to dNecide whether to apply Ghanaian, Nigeria or Togolese law in deciding which o f Uthe law is most appropriate in the matter pending before the 120domestic court N, whereby issues of jurisdiction will be first determined Where a caAuse of action is known to one system of law but not to the other, that system Dwhich provides a remedy will apply. For example, a statement which is BprimAa facie slanderous will not be treated as such among the Yoruba, where I words are not given the same meaning the Common law gives to them. Vulgar 121 abuse that Common law uses in seeking redress for damages done to reputation and dignity are mere rhetoric which does not give remedy for abuse among the 122 Yoruba. In Bakare v. Ishola where an action for damages for defamation was in contention for referring to him as „ol4 ni -, cl1w=n, 8w[ t7 9 x2 x2 120 Agbede, I. O., 2001.Conflict of Laws in Nigeria, Akoka: Lagos 121 Cassidy v. Daily Mirror Newspaper (1929) 2KB @ 331 122 (1959) WNLR 106 p.107 43 t’2w=n d3‟ (You are a thief, an ex-convict, who has just returned from prison), the court held as per Jibowu that among the Yoruba it is common in rural communities for peers to use the words which abuses no-one seriously, as they are words uttered in the cause of heat of a quarrel and anger, and are nothing but 123 vulgar abuse. Somolu J also submitted in Awolowo v. West African Pilot ‖…the very words ‗vulgar abuse‘ imply verbal exchanges of words face to face uttered in the heat of a quarrel….‖, and held that vulgar abuse was common among the people. In actual fact, slander was not actionable among the Yoruba as manYy of the sub-groups have ways of using even stronger words to curtail mRisuse of power, indiscipline, and evil acts. Among the Ijebu it is known as 2Af2 (jesting), wherein every evil done in the society will be turned to jesting anRd the culprit will know he is the one whose misdeed is the subject of ridicule. I B The basic idea behind conflict of laws is the existenYce i n Lthe world of a number of separate independent countries with separate muTnicipal systems of laws that differ greatly from one other in respect of the rules byI which daily human interactions are regulated. There are frequent occasions whSen the courts in one country must take account of the law that obtains in anoRther. Nations and nationals are today inter- dependent and none, no matter VhowE economically or politically viable, can dispense with cross cultural or extra-natIional contracts among men of other nations. When such rules relate to issues ouNtside those areas where states acted in their sovereign capacities they are cUonveniently referred to as private international law rules or conflict of law rNules. Such rules necessarily involve situations where a local court will abandon theA law of the locality and apply foreign rule of law. In sApiteD of the avowed claims of readiness to enforce foreign laws and judgments, Bevery developed legal system usually reserve to itself an ultimate residual power and I 124discretion which it exercises for various reasons. As Holder opined, In the resolution of legal disputes containing supra-national elements national court utilizes the rules for private international law to identify the appropriate governing legal prescriptions. In some occasions, however, when foreign law is thus found to be prima facie applicable 123 Nigeria 1962, p.29 124 Holder, W.,1963. Public Policy and National Preferences: The Exclusion of Foreign Law in English Private International Law 17 ICLQ 925. 44 to the situation it is not applied, instead for certain reasons it is rejected 125 by the forum. The first group of situations when foreign law may be excluded for various reasons usually relate to consideration of public policy, where the law of another country appears confiscatory or tends to penalise it. Indeed a foreign law may not be enforced where such enforcement would mean giving effect to the law of that other country and when failure to plead or prove a foreign law would disallow its applicability. Y The second group of cases deals with such situations when the courts doR not normally refer to foreign laws as a result of the nature of the issuAe to be considered. In this category are issues relating to divorce, nullity, seRparation and maintenance proceedings, custody and adoption cases; admiraltyB damage actions and questions of procedure. In this area, rules of foreign la wL areI not considered at all. Y One of the most difficult problems of law is to dIeTvise ways of resolving the conflicts of laws that inevitably arise in situations whSere an individual whose personal law is Islamic law finds himself in a transactioRn that must be guided by English law rules in an area where customary law isV preEvalent. The question of which system of law to apply will be an issue when diIscussing issues on a matter just stated above. In order to give effect to the inteNntion of parties to a transaction, the nature of contract concluded by them mUust be ascertained to know the law that will guide the parties and not the environment. It is after this that the specifics can now be attended to, what transaActioNn is known or unknown to customary law cannot be determined by mere spDeculation since there exists a conflict of law. BConAtracts such as trade by barter, and loan have been practised from time I immemorial. This includes the well-known custom of 8pzzr=, ==yz, zqr9. Loans of animals, cash and kind or other equivalents were known and frequently practised in pre-colonial days. It was the custom for one man to advance a sum of money to another in ==yz customary practice. 125 Ibid @ p. 926 45 The received English law as received in Nigeria operated side by side with the rules of customary law. It led to a conflict which arose from the application of both rules. If customary law is in conflict with the common law: i. Common law is primarily to be applied and customary law is to be applied only when the nature of the transaction is peculiar to customary law. ii. Where the cause of action is known only to one system of law and not the other, that system which provides a remedy should be applied. iii. Where the action is brought in a form known to one system of law or indicating by summons or otherwise that it falls under Y one system rather than another, the system indicated Ris normally applied. The effect of this practice is to confer on the plaintiff a part, if not the whole of the discretion. A iv. Where the plaintiff gives no such indication, the natRure of the transaction is the test; provided that when in IdoBubt the court will apply Common law. L 2.7 Yoruba Legal System Y The effect of colonialism especially in Nigeria wITas the transplantation of the British legal system. It led to recognition of both English and Yoruba legal systems and the gradual relegation of the later. This maRde tShe use and effect of the later become so dependent on the permissive extent Eof the former. In its regulated state, its operation became dependent on the comIpVliance to a laid down rule (repugnancy rule). Other rules as to the amenabilityN of Yoruba customary law and proof became established. Notwithstanding the rUelegation of the rules of the law vis-a-vis the common law, these rules have endured to date because they evolved with the custom and culture of the people. The legaNl system has deep roots in tradition which had been diluted, by years of colonial Ainfluence. It is significant that the dilution and bastardisation was so gradualD that an average Yoruba may not feel any sense of loss in the legal system. BSchAolars such as Lloyd, Atanda, Elias, Ajisafe, Fadipe, Mann, Syllon, Lucas and I others too numerous to mention have in various texts agreed that Yoruba had a legal system that was indigenous, sovereign and synonymous with their juristic thought; a vigorous and efficient instrument for the adjudication of disputes, particularly in spheres such as land-holding, family, inheritance devolution, and marriage which are most closely bound up with the community social order. 46 The structure of governance across Yorubaland was the same. At the zenith of the organisational/legal structure of each town is the Oba, known as: Alaafin in Oyo Olowu in Owu Abeokuta Ooni in Ife Ebumawe in Ago Iwoye Osemawe in Ondo Olu in Ilaro Y Alake in Egba Alake R Akarigbo in Remo A Jegun in Idepe, Okitipupa Alaye in Ode Remo and Odogbolu BR Alaperu in Iperu Remo LI Odemo in Isara Limeri in Awa Ijebu Olubadan in Ibadan ITY Owa Obokun in Ilesa S Owa Ooye in Imesi Ile R Ajalorun in Ijebu Ife E Soun in Ogbomoso IV Olomuo in Omuo ENkiti etc. U Oba are the founta in of traditional, political, legal, and religious authority. He was the executivAe heNad of the community, and all decisions were made by him or in his name, EDerin l9 ni‘gb9, cf=n l9 l=dzn, [ba l9 n8’l5, (Lion and Elephant own the foreAst, the king owns the town).The institution of Oba is generally regarded as sacred IBamong the Yoruba, but no holder of the office is above the law of the land. He has no right to suspend the law of the people, as there are recognised limitations to the exercise of his authority. An Oba does not interfere with traditionally established norms and conduct. Prerogatives are often attached to the office of an Oba, since the proper and effective exercise of authority would be impossible without them in any human society with a system of monarchical rule. But the council of elders and nobles, acting like a (kind of) cabinet, ensures that the king's doings do not run contrary to accepted standard already set. Any Oba who exceeds his legitimate 47 powers, may be deposed, or sometimes asked to commit suicide, or is put to death by the unanimous verdict of public opinion. In these cases, the council of elders or some powerful secret society made up of the chief's often act as a court of trial before execution of the judgment. The )xugb9 cult was another group that keeps a check and balance on the activities of the Oba. )xugb9 was a special class of the nobly revered cult, who had a duty to give effect to the decision on enthronement and dethronement of an Oba, as well as execution of judgment on sacrilegious offences. Y Oba does not want to be seen as acting alone, so, the source of all goveRrnmental powers- legislative, executive, or judicial was not made to reside onRly onA the Oba per se, he shared power with certain individuals, groups and instituBtions for the smooth administration of the kingdom nit9r7 cn8kan k87 j1 zwqI d3 (One man cannot be referred to as ‗they‘). He is also surrounded by a reYtinu e L of palace officials, priests and eunuchs, some of whom might have one formT of influence or the other on him; and there are others, vested with powers to takeI decisions on behalf of the Oba (who cannot be in all places at the same time). TShe bodies included a council of chiefs, which normally comprised respectable Rand noble chiefs who in some instances had supervisory authority over lesser comEmunities or divisions of the town. These chiefs have influence oInV both the ruled and the ruler because in some cases they were king makers vNested with the authority of appointing the most qualified candidate for the po siUtion of king. They represent the Oba at functions that he sends them aside fromN oversight of the affairs of the clan or district they headed. They act as ears, eyes anAd mouths of the king in matters of public importance and use his name to do and undo, or5k[ [ba ni a f7 nb1 ’r9k0 says the elders ( meaning: the name of the AObaD can see you through any hurdle in the town). Baql2, as leaders of local IBadministrations, performed similar functions in this regard. The legal history of the Yoruba could be divided into three major periods, the pre- colonial era, the colonial era, and the post-colonial era. During the pre-colonial era indigenous legal institutions were evolving on ethnic considerations. The Oba and his chiefs exercised judicial as well as general administrative authority over the people under their jurisdiction. The Baql2 at the lower levels, sub-village heads courts, the Zw0r0 (Priests), the )xugb9 (the native court), and the family heads were recognised 48 in the judicial administration of the land by the Oba in council, upon whose authority they functioned. There were civil and criminal matters before the Yoruba courts as there exist different levels of adjudication in different courts. There were differences in the kind of cases each court could hear and settle. The Oba in council constitutes a kind of ―Supreme Court‖, though there are ancillary courts of the Oba in council which try sacrilegious and grave offences referred to them. The pre-colonial laws were unwritten, simple and flexible, yet widely known, 126 accepted and respected among the people. Just as Section 4 of the Criminal CodYe says, ―no person shall be liable to be tried or punished in any court in NAigerRia for an offence, except under the express provisions of the code or of some Act or Law which is in force in, or forming part of the law of Nigeria….‖It is alRso a requirement of Yoruba native laws that for an act to be a punishable offeLnceI, Bthere must have been a law stating it to be an offence, and this is expressedY thu s: 8l5 t7 k0 bq s7 0fin, 2s2 k0 s7, (where there is no law there could nTot be guilt). Hence, various means of communicating laws, edicts and their sancItion are provided in village square meetings, through town criers or through faSmily heads, and Baql2 who will inform people as appropriate. R E The colonial era brought aboutI aV revolution in legal arrangements of the Yoruba sub-groups. The revolution bNegan with the annulment of some of the fundamental customary rules by thUe colonial powers and the super-imposition of its own legal system on the territ ories. Though the customary legal institutions were permitted where they werNe able to regulate its operations which did not run contrary to their idea of justiAce. This period saw the emergence of Western judicial systems and the abaAndonDment of the customary law. But for this period, customary law would have Bcome of age and be competing with its English counterpart; instead, it was left more I or less as it was except, where considerations of public order or policy became an issue. Legislative enactments were not made to strengthen customary law at this period. Customary marriage, divorce and African family structures were intact. Western model of transacting in land was introduced to provide an alternative means of transferring or holding property, though the customary land tenure continued simultaneously. In summary, colonial era produced dual legal and judicial systems, 126 Cap 77 L.F.N. 1990 49 with the introduction of the indigenous laws existing side by side with the common law, and they were applied by different courts to different classes of persons. The last era was a continuum of the colonial era, as there were little differences in the legal arrangements of the colonial and post colonial era. The legal system after Nigeria‘s independence was practically the same as that prior to it; the colonial system was carried on with little alterations. Less has been done in the development of customary law in the country since then, but statutory or English Patent law, Company law, Law of Contracts, Labour law, Law of Trusts and Equity, LawY of Tort, and, Land law have been reasonably attended to. R A While the colonial system confirmed even after post-colonial era thRat, there were in existence numerous courts and arbitration models aimed atL ascIeBrtaining peaceful co-existence of the Yoruba indigenous society because the co mmunity is built on family. There were formal and informal courts saddled with rYesponsibility of maintenance of peace and order within the various jurisdiction, wIhTich include: i. )gb9ni in Council among the ESgba and Ijebu ii. Public tribunals meeting uRnder the trees iii. Market councils E iv. Commodity associVations and guilds I The formal courts in YoruNbaland are: i. Oba cour t Uii. BaqNl2 court (in villages) iii. OAl9r7t5n court (common among the Ijebu) iv. DWard chief and Av. Baql3 court (in family houses), tribunal IBvi. )x6gb9 court The adjudicative system was easy to comprehend, the hierarchy of courts and judicial officers were known, family or clan head, chiefs specially designated as judges, Baql2, )x6gb9 cult and the Oba were known to handle serious matters depending on 127 the nature of the dispute or severity of the offence . Minor issues are left to be 127 Olaoba, O. B., 2008. Yoruba Legal Culture (Revised and Enlarged) Lagos: New Age Publishers Ltd.@ p. .33 50 settled at the lower level while high profile disputes are tried by the Oba in council. Judicial proceedings were devoid of "rigid rules of procedure and evidence," but there were enough rules of evidence designed to ensure fair hearing and transparency in the 128 administration of justice . Judicial proceedings were held in the open court of the palace, and parties to disputes were expected to present their cases one after the other beginning with the plaintiff, who ought to open his case after which the respondent is allowed to respond. There is room for cross and re-examination, as well as witnesses allowed in the various cYourts to prove Evidence of their cases. According to Olaoba (2008:38) judicial proRceedings among Yoruba is geared towards restoration and reconciliation of the dAisputants and maintenance of the peace, order and tranquility in the society and theRre is no victor or vanquished in a dispute settlement as disputants are encourageIdB to adopt a "give and take attitude. The system mainly aimed at settlement of disLputes and not judgment of wrong and right on one hand and punishment of evil inY the society on the other. The Hearing and summoning fees are paid bIyT the litigants, this fee is used in facilitating court seating, it finances part of thSe expenses of the court for celebration in joyous moods and appeasing the gods Rthrough sacrifices to the ancestors in serious matters. Once the issue involved in Ethe dispute had been resolved and the disputants have been joyfully reconciled, IhVugging and embracing of one another before the court connotes amicable settlemNent of issues brought before the court. This does not preclude rights of litigUants to appeal, a right which is assured, though rarely could one find anyone apNpeali ng judgments made because the legal system had checks and balances. FoAr example the two cardinal principles of fair hearing as expressed in the latin maDxims audi altrem partem, (you must hear both sides of a case), and nemo judeAx in causa sua (no man shall be a judge in his own case) are cautiously exemplify IBin Yoruba legal system. The practice of not allowing an interested party to a dispute to sit in judgment in the same case agrees with the nemo judex maxim, while the Yoruba saying agb’1j- cn8kan dq, zgbz 0s8kz (He who hears one side of the case and give judgment on it, is a wicked elder) agrees with audi altrem partem which makes it incumbent on judges to hear both sides. Where there is a need for appeal, an appeal can go from any of the formal courts to the Oba court or from Baql3‟s court (in family houses) to Ward chief to the Ol9r7t5n’s court (if in Ijebu township) or to 128 Ibid @ p. 128 51 Baale‟s court (if in villages, either in Ijebu or other Yoruba villages) before it goes to the Oba. The customary courts apply only native law and custom, and they have been extremely known to be in-partial in the exercise of their duties because both the petitioner and the respondents are from the community. Even the principle of ‗fair hearing‘ which the legal maxim audi altrem partem represents is believed to have been coined from the Yoruba saying agb’1j- cn8kan dq, zgbz 0s8kz. The issue of relevance and admissibility of evidence is always overlook as parties are allowYed to pour out their grievances which in some cases may end the matter once the pRetitioner is allowed to state all that made him angry. Judgment is given afteRr theA parties have presented their cases. The family head and the elders, or the ward chief and his chiefs, or the Oba and the council of chiefs consider the issue s LanId Bgive their judgment. Depending on the severity of the offence, punishmeYnt could be as little as an hour work at the Oba farm or fetching of water from tThe stream into a basket, and it may range from flogging, compensation, reprimandIing, expulsion from the community, fine, confiscation of property, to imprisonSment, banishment and death penalty in 129 severe cases. R E Olaoba (2000) engaged the sigIniVficance of cross-examination in Yoruba customary or traditional jurisdiction wNhere he considered it a vital aspect of Yoruba judicial thought. In his submisUsion, he posited that as heterogeneous as Yoruba society might seem to be, the peo ple had long evolved the culture of cross-examination of facts which accordinNg to him were sacred. Thus, cross-examination, within Yoruba customary pAractices, demands a sense of vast wisdom, boldness and ancestral support, henAce hDe regarded it ―a rather difficult process‖. B I In this Yoruba scenario, it is said that two principal characters are usually involved in the herculean tasks of promoting the ethical modus of the society via the restoration of peace and harmony, defense of the course of justice and reverence for the ancestors who unequivocally are a part of the adjudicatory process. Expectedly, the principal characters involved in this process are the cross-examiners and examinees. While the cross-examination includes the adjudicators, respectable elders and the ancestors, the 129 Ibid 52 cross-examinees include the litigants (plaintiff and defendant) and eye-witnesses of the dispute. While, as a matter of fact, the elders have been considered as ancestors who are the wisdom lore of Yoruba society, the eye-witnesses are equally very important as they are said to have what it takes to make or mar the process of cross- examination owing to the magnitude of evidence adduced (or adducible) by them. As customary attributors and mediators applying established customary law to civil inter-personal and inter-communal problems in their own localities, and as mobilisers and counselors of public opinion in their domains, the traditional rulers Yplay significant roles generally as agents of good governance and shapers of locRal beliefs and opinions which always have the tendency of social stabilisationA. This is the cultural base of the African people, and, since the culture of a peoplRe is its soul, care must be taken not to destroy or damage the civil role which tIhBe African civilisation has, from time immemorial, allotted to the chiefs in Afr icLan society. And although governments come and go, sometimes with sTtartlYing rapidity, by its antiquity, perpetuity and reliability, the chieftaincy institIution constitutes a certain source of continuity and stability within the body politSy (Adaramola,1992:72-73) In summary, law as an instrument oEf soRcial control, among the Yoruba is similar in many respects but essentially dVifferent from the modern conception of law and the legal process. The Yoruba hadI for a very long time evolved a legal system which is incomparable with the weNstern styled courts. The indigenous legal system has history that is as old as the hiUstory of the Yoruba itself. Among the Yoruba there are various channels (formaNl and informal) for dispute settlement. Thus the Yoruba do have courts 'propeArly so called' because they do have an enduring political culture. The goal of law Dand the legal, including the judicial, process was to make for orderly BdevAelopment of the society. The Yoruba had their own indigenous and distinct system I 130of administering justice. Justice was administered by the king, his chiefs, elders, spiritual leaders, secret societies, clan family heads, age grades, etc., depending on the nature of the offences as earlier mentioned. 130 Ume, F.E., 1989.The Courts and the Administration of Law in Nigeria..Enugu: Fourth Dimension Publishing @ p. 40 53 The administration of justice was hierarchically structured, and ultimate appeal lay at 131 the king‘s court which gives the final verdict after consultation with his chiefs. The language of the court is the language of the people. The litigants are able to express themselves well and follow the proceedings of the court with no need for any legal aid, with simple and easy to assimilate procedure, tension free proceedings is simple and easy to follow. The court proceeding is tension free, the constitution of the court is accepted by the people, machinery of justice is inexpensive, effluxion of time cannot defeat genuine claims in the court. Y The intervention of the colonial masters in the political affairs of the Yoruba Rled to the ceding of territorial powers of the Oba to the British overlords and the eAstablishment of various native courts which curtailed arbitrating powers of chiefs wRho adjudicate in traditional disputes, and the removal of judicial powers of the BOba affected Yoruba legal system negatively. Until the British brought their leLgalI system which almost made the ‗kings danced naked‘ in their domain as it rYelates to legal matters. The king was the supreme head of the Yoruba community before colonial incursion. He had legislative, executive and judicial clout, heS waIs Tregarded as Alqsc 4kej8 0r8sz (meaning: As powerful as the Supreme being). His words were sacrosanct and divine, he must not be made angry to curseE anyR of his subjects. He was the custodian of the tradition and referred to as Kqb7y4s7 an immutable being who could not be questioned for anything. He wIaVs the high priest, and an embodiment and symbol of authority. The Oba court wNas the Supreme Court and can also try a case as a court of first instance to deal wUith disputes involving high ranking members of the community, chiefs, cases of parties from different wards or villages, and cases of appeal from other lower AcourNts. D 2.8 AMarriage IB‗Marriage‘ (as we thought, until recently) by universal definition is the legal relationship between a man and a woman. Among the Yoruba, it is a union between male and female, hence the sayings cni z ngb3 8yzw9 b= wq bq, k87 ga’r6n wo 8yzw9 (The groom does not need to peep to see the bride), alqsej5 aya n7 p[k[ n7 baba, (It is the overzealous wife who calls her husband father). The Yoruba has this saying also, cni bq f1 gb3 [m[ r3r3 j9, q k-k- f1 aya rere s7 =d2d2 131 Alabi, M.O.A., 2002. The Supreme Court in the Nigerian Political System,1963-1997. Ibadan: Demyaxs Press. @ p.76. 54 (Anyone who wishes to have good children must first have a good wife). The words 8yzw9 and aya represent a person of different sex other than the man, and it is the belief that aya n7i l9y5n n77 b7m[, n77 f-m[ l9m5 mu (A woman gets pregnant, puts to bed, and breast feeds the baby). The issue of same sex marriage is a misnomer among the Yoruba, as nothing in the widest imagination of the Yoruba family system suggests same sex relationship, and this dictates their idea of family, marriage and inheritance devolution. Marriage is defined as ―…an interpersonal relationship with governmental, sociaYl, or religious recognition, usually intimate and sexual and often created as a contRract. The most frequently occurring form of marriage unites a man and a woRmanA as husband and wife. Other forms of marriage also exist, for example polygIaBmy in which a person takes more than one spouse, is common among the Yoruba. Beginning from 2001, the legal concept of marriage has been expanded to inclu LYde s ame- sex marriage in some 132jurisdiction‖ T Marriage has a prestigious and foremost placSe amIong the Yoruba like in other African cultures. So important is the institution Rof marriage that an unmarried man or woman is considered incomplete and a few Esatirical songs have been composed and sung for such group of people. In theI VHausa culture, there is an adage that says, ―a man without a wife is like a Nbig tree without fruit‖ (Ibrahim, 1998). Marriage can be contracted under any Uof the Statutory, Customary or Islamic legal systems. Under Statutory law, it is g overned by the Marriage Act (1990) and the Matrimonial Causes Act (1970). ThNe customs of the parties govern marriage under customary law and Islamic injuAnctions as contained in the holy writ govern Islamic marriages. TheAD history of marriage itself forms a vital part of the history of the family (Mann, IB1986: 8). There is thus a crucial sense in which it can be contested that the essence of African customary law might not be well appreciated without its foundation in marriage. In this sense, the structure of African marriage is also significant to understanding the manner in which the individuals who constitute them relate to one another and how they understand or perceive these relations, as these relations are 132 Wikipedia-the free encyclopaedia 55 deemed to have their own place in matters connected with inheritance or devolution of a deceased‘s estate. Hence, in Africa, as enunciated by Khapoya (1998:31), due perhaps to agrarian economics and the collective ethic of the communities, marriage acquires probably a far greater societal significance than in Western societies. An African is therefore likely to link the essence of getting married to tradition. Marriage, from this point of view, is intimately linked to reproduction, to having children, and indeed to the Yvery survival of the community. To this end it is succinctly put in Yoruba, that [m[ cni n77 jog5n cni, b’qlqdi 0 s7 n7l3, [m[ w[n n7 jog5n cbu (roughly trRanslating as ‗it is one‘s offspring that inherit one‘s estate‘). This love for childrenA is exhibited in some of the names given to children. Names like ―{m[d5nbI7B‖— Rit is good to have a child or ―{m[d5nk1‖—it is good to have a child to caLre for. These suggest the importance attached to children among the YorubaY culture. A barren woman is referred to as an ―empty gourd‖ signifying emptiTness, or uselessness. Barrenness in marriage is blamed, and wrongly too, on the Iwoman and never the man. She is blamed, abused and ridiculed while the manS is pitied and in most cases pacified and given counsel, to look for an alternEativRe way of having children. Where the woman gives birth to only female childVren as against the expectation of male sons who are expected to ensure continuity oIf the generations to come of the family, she is blamed for not bringing forth maleN issues in the family, even though medical evidence abound to prove that the man Udetermines the sex of a child and not a woman. Marriage, toA AfNricans, and of course, to the Yoruba, is a union between two different familiesD and not only the couple. This is displayed during the traditional marriage ceremony even when the parties to the marriage are mature adults, thus, the dictum B*yzAw9 bub5r5 d5n n7, zna bub5r5 ni 0 se 3 n7 (a bad wife is better than I bad in-laws). The reason is that; the Yoruba see the institution as a purely family matter to which family consent is needed prior to the marriage. This has resulted in the existence of a plural law of succession to property. In all, having children is an important contribution that each marriage is expected to make to his or her society. Society, therefore, tends to recognise that contribution by rating the status of a married person above that of an unmarried one. As with the Yoruba, the place or stake of the extended family, many times as embodied in the Ol9r7 cb7, may not be fully 56 emphasised until something goes wrong, or a sensitive matter is implicated, such as the need to devolve the estate of a deceased upon death. Moreover, as Khapoya re-echoes, marriages traditionally used to be arranged by elders, but this is changing as it is now becoming fashionable for individuals to woo their partners and afterwards return to seek the consent of their parents. Where this consent is not forthcoming, the elitist young Yoruba for instance, may proceed to marry his fiancée (or in the case of the woman, her fiancé) whether through ‗elopement‘ or private marriage with the notion of “4y7 w6m7 k0 w6 -R, ni Yk87 j1 q pa ’w-p= f1 ‘b8nrin in mind,(that is, ‗my likeness in a lady maAy not interest you, is the basis for not jointly marrying a woman‘). Whether for emotional or other reasons, young men and women in late-nineteenth-century LBagoRs (as with other emerging urban centers‘ in Yorubaland at the time) s omLetIimes expressed strong feeling about whom they wanted to wed. OccasionallYy, they forced kin to heed their wishes. Mann, for example, records the case of oneT Barikisu Laniwan who resolved to marry a young trader named Sani Giwa. When tIhe relatives objected, she obstinately refused to marry anyone else and finally hadS her way through their consenting to the marriage, even if grudgingly. R To this effect, Yoruba marriage VwasEI said to have been changing in the second half of the nineteenth century as Nindividual behaviour often deviated widely from socially accepted norms. MaUnn further provides testimonies in this regard, such as the example, in 1911, of a Lagos Chief called to give evidence on marriage, and who had testified that in N―olden times, no man could act independently of his family… some are acting iAndependent now, others not.‖ And in the same trial, another Chief had complaiDned that Girls go to live with husbands of their own choice. We are not BfindAing a remedy (Mann, 1986:41). These statements are made to show how in the I late nineteenth century, some Lagos men and women asserted independence of kin in domestic affairs. Relatives could not always control the selection of spouses, the terms and timing of marriages, or the character of conjugal relationships and roles. In fact, it is reported that some men and women treated the web of rituals and obligations surrounding marriage as a matter desirable and avoided when not. Hence, in many instances, couples formed union without the consent of kin. However, in the view of 57 Khapoya, relatively few marriages are still being arranged, and only in remote areas, away from the seductive influence of the cities or towns. In some cases, however, even in contemporary times, the community still gets involved during the preliminary phases when arrangements have been made regarding the actual marriage ceremony and the transfer of property, called bride wealth. The bride wealth, in the form of cattle, goats, sheep, and/or money is transferred from family of the groom to that of the bride. This reality does have some significance in the sharing of the property of a woman upon her death, and in many cases, expYlains why much is done to prevent divorce between the couples so that the needR will not arise for the bride‘s family to return the property (always constituted Aby the bride wealth) to the groom‘s family (Khapoya, 1998:32) R Certainly, Yoruba and Christian marriage differ fundamentaLllyI. TBhey rest on different assumptions about polygamy, domestic relationship and roles, and legal rights and duties. Each of these types of marriage had emergeTd fYrom a particular cultural context and has been shaped by specific processes of hIistorical change. Each stands at the heart of a distinct socio-cultural order and hSas distinct economic, social and political implications. As viewed by Mann, RYoruba and Christian marriage represent ‗ideological construct‘ − terms he eEmployed to make his point. Neither Yoruba nor Christian marriage remained sItaVtic and unchanging. Changes in the wider economy and society affected theseN two types of marriage, just as they were affected by them. However, the possib ilUity of polygamy within the African customary system serves to constitute some Ncomplexity to not only the structure of the African family, but also to how matterAs of inheritance are resolved according to the rules of these shades of polygamDy. There are many reasons why polygamy (that is, marriage between one man andA two or more women) is prevalent in African societies. One reason emanates from Bthe fact of social security and stability provided by people having families. Because I marriage is considered as being socially desirable, everyone is expected to get married, particularly since it is important for the community as a whole. Unfortunately, it was not always possible for every woman to have a spouse as there were not enough men to go round. The surplus, therefore, of marriageable women over men meant that the only way every woman would be assured of a husband was if the men were permitted to have more than one wife which the Christian doctrine frowns at. 58 From an economic point of view, agrarian societies of Africa require a large number of field hands to contribute to the economic well-being of the community, to work on the farms, look after cattle, and perform other chores. Thus, it was necessary for men to want large families and the surest way for men to achieve this was for them to have more than one wife. According to Khapoya (1992:35), observation among the Yoruba people of Nigeria showed that polygamy increased considerably during the colonial period when the British introduced cocoa as a cash crop. More wives and chilYdren were needed to assist the men in ensuring a plentiful, or at least an aRdequate, economic production. A Both Khapoya and Mann appear to agree as regards the econBomiRI c conditions that necessitated the practice of polygamy. To a reasonable extent, the author of Marrying Well has traced the origin of polygamy and theY el ite L class to the economic development and commercial boom of 19th century Lagos, besides the rise of the colonial state, and the spread of Christianity anId TWestern education. In the nineteen century, Lagos was said to have emergedS into West Africa‘s leading centre of international trade and colonial capital. RChristian educated elite emerged there, as in other West African coastal townVs, pEoised at the center of the far-reaching economic, political and social changes thIen occurring. The men and women who made up such groups knew two kinds oNf marriage; African marriage, practised by their ancestors and the majority of thUe population; and Christian marriage, held up by the Europeans as the only legNitimate form of union between man and woman. Very different expectationsA about polygamy, domestic relationships and roles, and legal rights and duties cDharacterised these two types of marriages. Each stood at the heart of a radiAcally different social-cultural order. Marriage presented the educated elite with a IBproblem. Question about how to marry and what marriage should be, deeply preoccupied members of the group, who reflected over them privately, debated them publicly, and struggled to resolve them in their domestic lives (Mann, 1986: 1) 2.9 Notion of Property among the Yoruba Smith‘s (1995:1) attempt at conceptualising the term ‗property‘ tends towards a rather literate, contemporary understanding of the term, thereby excluding the possibilities of native ‗rights‘ and autochthony, for instance. While he agrees that the term 59 ‗property‘ has different layers of meaning, depending on the context of its use, his attempt fails to accommodate the meanings or understanding of the term in relation to native ownership of a thing such as land, farmstead, etc among non-metropolitan or urban Yoruba populations. Smith further notes that, sometimes, the term may refer to ownership or title such as when it is said that property in the goods passes to the buyer immediately the contract of sale is concluded whether or not the goods have been physically transferred to him. While it is possible for Smith to agree to the fact that ‗property‘ may mean ―the Y„res‟ (thing) over which ownership may be exercised,‖ the example cited by SmiRth in this sense − that of car or a Black acre − has more leaning towards ‗modeRrn‘ mAateriality as against what is much culturally traditional in the African sense. Smith further argues that ‗in whichever sense the word property is used, proLperItyB law is designed to regulate the relation of person to things thereby providing a secure foundation for the acquisition, of enjoyment and disposal of things oTr weYalth.‘ Although this conception is conveyed in the passive sense, making the quIestion ‗designed by who?‘ pertinent. Still the expression thus implicates the fact Sthat rules − traditional or sophisticated − abound in every culture and society whRich define the nature and extent of property acquisition and mode of transferV of iEnheritance. Historians disagree about the iImpact on Yorubaland of the shift from the illegal slave trade in palm produce. HoNpkins, had argued that the transition created opportunities for ordinary farmers Uemploying mainly family labour to participate in the overseas exchange econoNmy for the first time. This was because there were few barriers to entry and eAconomies of scale in palm-oil and palm-kernel production and trade. CompetDition from below, Hopkins asserts, threatened the economic and political powAer of Yoruba rulers, thereby generating conflicts between the rulers within the IBstates, and between rulers and ruled. However, other historians maintain that economic considerations were subordinate to political ones in nineteenth-century Yoruba warfare, and that control of trade was not essential to achieving political power in most Yoruba states (Mann, 1986: 16), and through this power, the acquisition of property. In the early years, individual land rights became widely accepted, land values appreciated. The colonial state encouraged and protected the establishment of private 60 claims, and records of Wills in the Lagos Probate registry reveal that by the 1880s, land was a major form of investment and repository of wealth in the colony. The pattern of land ownership also changed fundamentally during these years. Many of the most valuable commercial and residential sites on the island passed from the original lineages to recent African and European arrivals. As Hopkins noted, by the 1880s land ownership had become an important basis of inequality in Lagos, and a local rentier had emerged. Furthermore, it was observed that the far-reaching economic, political and sYocial changes in early colonial Lagos favoured educated Christians and Rfostered development of educated elite. Repatriated slaves returned to Lagos, wAell placed to take rapid advantage of new opportunities created by the growRth of legitimate commerce, the rise of the colonial state and the emergence of IneBw property rights, in part because they had already witnessed similar developm eLnts in their former homes. Some consolidated their economic position in the coloYny by acquiring titles to choice pieces of real estate before the local inhabitaIntTs realised their value. To cite an instance, I. H. Willoughby‘s mother for exaSmple was said to have squatted with her children on one of the best sites in LaRgos and successfully defended it against all challengers. Later, Willoughby buEilt a profitable trading establishment on the property. Her example is a dIemVonstration of how repatriates were able to use the colonial courts and bureauNcracy to protect and extend their interests. One observable or dUeducible tendency of colonial intervention on the African continent (as wiNth other colonies outside Africa) is its ability to spring up ‗emergent modernitiesA‘ in the post-colonial period. In Nigeria‘s particular example, the country has recDeived the English common law‘s classification of property into reality and BpersAonality (Smith, 1995:1). However, the distinction has a historical origin in the old I forms of action. In this respect, Allott (1970: 68) also expresses the view that one may use what he calls ‗the tree metaphor‘ for the evolution of legal system, and say that from the reception date a new branch sprang from the trunk of English common law. Thus the Nigerian and English legal systems began to diverge from the year 1900, both sharing a common trunk − the pre-1900 English law − but each functions in parallel, and one system was not subordinate to the other. 61 From here, therefore, the question arises about the continuous relevance of this parallel as depicted by Allot, especially in the light of observable suppression of the customary law by the English law. This standpoint, and perception, is further problematised by Comaroff and Comaroff (2001), in the argument that colonialism spawned relations that transected the lines of race, class, and culture creating, among other things, hybrid identifies and unexpected pattern of consociation. To challenge Smith further, his view that in early law, property will be classified as real if the court would restore to a dispossessed owner the thing itself and not mYerely give compensation for the loss, is fraught with lack of cultural precision Aas wRe do not know if ‗early law‘ refers to early English laws or those of the other cultures. One might argue that, in defining what property is, it is adducible IthBat w Rhat is so owned, possessed − real or personal − equally defines the ownersLhip status of its owner or possessor, thereby implying the right of the owner to tran sfer or bequeath the same if they so wished. TY By implication, will, whether statutory, nSuncIupative, or written customary will, provides the occasion for transferring aRn individual‘s estate or property − especially after the owner is deceased. In this Evein, for instance, Abayomi (2004: 1) notes that both the statutory law and thIe Vcustomary law prescribe the various ways through which a person‘s property Ncan be disposed, managed and administered after his death. While the ultimate maUy be to ensure the passing of property at death, the devices are available to pass th e property inter-vivos either as prelude to what happens to the property at deaNth or to by-pass certain obligation at death: for example, taxes and other death Adues or levies. Although Abayomi‘s explication tilts more towards a literate Dculture (e.g. the English testamentary tradition of Will making), even Africans (andA in fact the Yoruba) can relate to this from their own customary practices of IBdevolution of inheritance. To devolve an individual‘s property in contemporary times, one option may be through the statutory Will, which is, one made in accordance with the provisions of the relevant statute in force. This type of Will, to be valid, must conform to the requirements prescribed in the relevant statutes, the departure from which will render the instrument void and of no effect. As earlier hinted, there is also the option of the nuncupative Will, which, differing from the statutory Will, is oral and takes effect 62 under customary law. In essence, this originates in the oral directives of someone, which is made in anticipation of death before credible witnesses. Such directives are usually enforced with the consent of the testator‘s family (Abayomi 2004: 1). In his discussion of a written customary Will, Abayomi recourses to the suggestion of one Dr. M. Odje who offers that such document must fall or rise with the provisions of the general statute relating to Wills. There, however, seems to be some relative contestation in this regard. According to Odje‘s view, if a Will complies with the law, it should be treated as statutory Will and, if not, it fails and becomes null and aYvoid. Conversely, Okoro champions the view that, once customary Will is recogRnised by native law and custom, it does not matter which form it takes, whethRer orAal or written. The validity of a customary written Will is typically rooted in the collective psyche of the people within a cultural context from which the guLidinIgB law (customary) is derived. For example, as noted by Abayomi, within the ci rcles of village heads, elders and kinsmen, it is generally believed that the decTlaraYtions of the dead are not easily departed from. Instead, they are executed out ofI respect for him in fear of his anger and spiritual vengeance from the grave. HeSnce, as long as the declarations, whether written or oral, are accepted by all and Rno quarrels or disagreements manifest, effect will be given to them. These optioEns are besides other possibilities or devices of property disposition such as settVlement inter-vivos; nomination; donatio mortis causa, and deed of gift. I N 2.10 YorubNa La n Ud Tenure System Yoruba landA tenure is the system of land holding practised by the people and made applicabDle by the various High Court Laws meant to ―observe and enforce the obsAervance of customary law which is applicable and not repugnant to natural justice, IBequity and good conscience nor incompatible either directly or by implication with 133any law for the time being in force‖ . This system is flexible and it responds to changes of the time, since it is unwritten, its application depends on sufficient proof. Among the Yoruba, land belongs to families, villages, or communities with the chief or head of the community or family holding the land for the use of the whole family, village, or community as a ‗trustee‘ while title to the land is vested in the corporate 133 S. 26 of the High Court Law of Lagos State cap 60 Laws of Lagos State 1994. The same provision is in the High Court Laws of the other States of Nigeria 63 unit thereby disallowing individuals from laying any claim to it. As the owner, not even the family head. There is clan, lineage or household control over the occupation and enjoyment of land by individual members of the clan. On the death of an individual holder of land, his property may vest in his family and become family property. Though individuals have rights to its use and enjoyment, but these rights are 134 restricted when it comes to alienation. Individual‘s self-acquired property may be used during his lifetime, or bequeath at his death as he pleases. No legal action can be taken to prevent him from alienating his interests and he needs no consent ofY any other party. If what he is giving out is gift inter vivos it should be shownR that the donee is receiving the donor‘s total interests in the property and isA not merely becoming a customary tenant or pawnee (pledge). The transaRction should be witnessed by the donor‘s Ol9r7 cb7 to certify that the donIorB possess the right to make such a gift, and also by his children in order to fo reLstall later claims by them that the grant was not outright. In addition to the above, land belongs to the family, clan, lineage village or town and it remains so. ITY 2.11 Creation of Family Property S Family property is created when thEese Rconditions apply; Firstly, by purchase of the property with family fund. SecoVndly, by declaration of an intention to create family property in a Will for the benIefit and enjoyment of members of the family. Thirdly, by way of conveyance, whNere the settler confers property on the family under a valid deed for that purpose Uand declares that the use and enjoyment of the property shall be for named members of a particular family. Fourthly, by way of intestacy, the rule in 135 Abeje v. OAgundNairo is that where a landowner whose estate is governed by customaDry law dies intestate such land devolves on his heirs in perpetuity as family propAerty. IB 136The rule in Abeje v. Ogundairo says ―it is immaterial that the deceased is survived by only one child. The conditions mainly are that the landowner must have died intestate, and that the estate during his lifetime must have been governed by customary law. 134 Dr Abiola Akerele v. A. J. Atunrase & Ors (1969) 1 All N.L.R 201 @ 208; Okelola v. Boyle (1998) 1 SCJN 63 135 (1967) L.L.R 9 136 Ibid. 64 This study begs to differ from this position and agrees with Lloyd‘s view that family property cannot be created when there is a sole heir, as in systems of primogeniture or 137 ultimogeniture, because among the Yoruba, the word ‗family‘ is neither given a narrow meaning nor does it depend on the Western definition to understand the meaning of family which is the binding cord among the Yoruba. Family as interpreted 138 in the case of Abeje v. Ogundairo means, the direct offshoot, of the founder i.e. his children. But among the Yoruba of Southwestern Nigeria, family includes and it is not limited to children, grandchildren and great-grandchildren, which is inclusive of Yboth sexes. Although at the point of devolution, who is entitled to share in the prRoperty is 139 brought to fore and as already decided in the case of Lewis v. BankAole that a grandchild could not demand as of right a portion of family land foRr building [unless he is demanding for his parent‘s share], means a grandchild hIasB seen himself as part of the family, the fact that his right in the family does not eLxtend to his demands does not demean his status in the family. Family bondY extends more than was been stretched in the case. Even in the English world, there is nuclear and extended family. This study does not agree with Smith and othIeTr researchers who are in the same 140 position with the Abeje v. Ogundairo casSe as this may not be absolutely correct, because among the Yoruba the worEd ―fRamily‖ is inclusive and not exclusive, it is of common knowledge that people who bear the same surname and are from the same ancestral home are referred toI Vas belonging to the same family, they attend family meetings and are of consanNguine and affinine links which makes marriage exogamous among them. U To say the leastN, family relationship among the Yoruba goes beyond inheritance, and even onD inheAritance, instances of grandchildren inheriting properties from their grand- pareAnts either as gift inter vivos, donatis causa, deathbed disposition or as IBrepresentatives of their dead parents abound. If grandchildren are excluded from the definition of family, and the estate devolves on the only child, as the case of Abeje v. 141 Ogundairo pontificates, this study says it is not possible to refer to one person as family especially if he is unmarried, and in consonance with Yoruba dictum and 137 Lloyd, P.C., 1959. Family Property among the Yoruba quoted in Journal of African Law Vol. II. No. 8. Summer 138 Op. cit Abeje v. Ogundairo 139 Op. cit. Lewis v. Bankole 140 Op. cit. Abeje v. Ogundairo 141 Ibid. 65 words of elders, cn8kan k87 j1 zwq d3, (one person cannot be ‗we‘). Family among the Yoruba is more than an individual, and if a family head is more or less a trustee and he is in a fiduciary position in relation to the property and to other members of the family who require him to act in good faith in carrying out his duties, then, the reference is not to an individual. It is my considered opinion that the rule in 142 Abeje v. Ogundairo will be given a different judicial interpretation if a similar case comes before any of our courts today as it cannot stand the test of modern day argument if it remains as decided thus: Y where a landowner whose estate is governed by customary law dies intestate such land devolves on his heirs in perpetuity as familRy property. It is immaterial that the deceased is survived by onlAy one child. The conditions mainly are that the landowner must have died intestate, and that the estate during his lifetime m RIuBst have been governed by customary law. Once the foregoing cLonditions are met, the rule simply states that the property automatically devolve on his children as family property. The rule therefore takes no account of the number of Ychildren nor, indeed, the existence of children. The criticism agaSinstI Tthe decision in Abeje v. 143 Ogundairo on the ground that a solRe heir could not have constituted the family is unfounded and should be igEnored. 2.12 Alienation of Family PIrVoperty Alienation of family propeNrty in customary law means any form of transfer of family property and include sU not only sale but also lease, mortgage, pledge or any other form in which an inteNrest in land may pass from one party to another, and the position has 144been establAished beyond doubt by the Supreme Court in Lewis v. Bankole and appliedD in a plethora of cases that alienation of family property without the consent of the Afamily head is void ab initio, and where the family head alienates family land IBwithout the concurrence of the principal members, the sale is voidable. It is even true to say that customary law did not provide for alienation, as there was no need or demand for such, even a temporary grant of land for building purpose was unknown 145 to Yoruba land tenure system as exemplified in Adeyemo v. Ladipo, though borrowing of land for a specified period of time was common. Tenancy tended to be 142 Ibid 143 Ibid 144 Op. cit Osborne C.J. 145 (1958) W.R.N.L.R 138 66 for a nominal rental, or else on a crop-sharing basis and not for planting of economic trees. However, in response to the demands of education, commercial agriculture, increased 146 population, stimulation of acquisitiveness (Allott: 1960) and judicial decisions, with a general trend of such decisions tilting in the direction of English law, have challenged the inalienability position as practised by the Yoruba. Interests in land are now been transferred for cash in many areas. Sales, lease for a money and various forms of equitable mortgages are replacing the traditional pledge whileY the indigenous sanctions are losing their hold. There is great influence by culturRe-contact and the clear cut dichotomy between land governed by English laAw and land governed by customary law is fast disappearing as most rural areas aRre now receiving influx of people and they are gaining positively from it. LIB 2.13 Testate Succession Y Testate succession occurs when a person dies leavTing property and he has a valid and enforceable Will which ensures that upon hiSs deIath, his property shall pass according to his wishes. In testate succession the deceased indicates that he is desirous of retaining absolute or limited controlE oveRr his property after death, and it is therefore absolutely necessary to ensurIe Vthat he prepares a Will that must conform to the provisions of the law. A WNill is mainly concerned with the disposal of property, but it can be used for other Uincidental purposes. Anyone who has ―capacity‖ to make a Will can do so. However, a Will cannot be effectual until it is activated by the death of the testator. Which Nmeans the benefit conferred on an individual by a Will cannot be enjoyed untAil the death of the testator as it is a mere intention on the path of the testAator,D and any beneficiary who predeceased the testator has no benefit, though BSection 33 of the Wills Act 1837, section 18 of the old Western Region Wills Law I and similar sections in the Wills Laws of some states of Nigeria state that contrary to any intention, if property is given to a child or other issue of the testator who predeceased him, but leaves any issue surviving the testator, the devise shall not lapse but shall take effect as if the death of such a person had happened immediately after the death of the testator (Abayomi,2004: 36). 146 Oshodi v. Balogun (1931) 10 NLR @ 36; (1936) W.A.C.A 1 @ 2 67 147 A Will is an expression of intention which the law says takes effect upon death. It is ambulatory because it is capable of dealing with property which is acquired after the date of the Will. Will takes effect, when it has been proved to be a valid testamentary 148 disposition. The testator must have testamentary capacity , i.e. the capacity to make a Will – The testator must not have been under the age of 18 at the date of the 149 execution of the Will (unless it is "Privileged Will " as a soldier on actual military service or a seaman at seas). He must have animus testandi or sound disposing 150 151 mind. Therefore, an infant and a lunatic cannot make a Will. Apart from sYound disposing mind that enables a testator to understand the nature of the act of Rmaking a 152 Will and its effects, it is also necessary for the testator to have a sounAd memory which will enable him to recollect the kind of properties he is disposiRng and further he must have a sound understanding of what he is undertaBking. This includes appreciating the moral claims upon him, that is, he shouldL beI able to remember the persons he is morally bound to provide for having regar d to their relationship with him. Otherwise, the omission to adequately cater foYr any dependant may make the court order a reasonable provision as the court tIhTinks fit be made for that dependant out of his net estate. RS A Will is revocable before the teVstatEor‘s death. A codicil can be made to alter the last testament. A testator may revoIke his Will as many times as he wishes to alter, amend or even cancel it by destNruction. Unless there is a binding contract which may be affected if the Will isU revoked, as the law keeps the sanctity of agreement. However, the law does nNot prevent a testator from revoking his Will, all that the other 153contractual Aparty can do is to sue for damages if the Will is revoked. Where the revocatiDon arises due to operation of law and not the willful act of the testator, the remAedy may not be available to the party asking for damages to the breach. IBSection 15 Wills Act 1837 and similar sections of the states Wills laws enshrined a vitiating effect clause on the laws, where a beneficiary, or his or her spouse, witnesses the Will, the gift to the beneficiary fails but the Will remains valid. Under this section 147 Abayomi, K.., 2004. Wills: Law and Practice. Lagos, Nigeria: Mbeyi Associates (Nig.) Ltd. pg 36 148 Federal Administrator-General v. Johnson (1960) L.L.R. 291 149 Soldiers and Sailors Act, 1918. 150 Marques v, Winchester (1958) 6 Co. Rep 23. 151 Parker v. Felgate (1883) 8 P.D.171 152 Banks v. Goodfellow (1870) L. R. 5 QB 549 at p.565 153 Synge v. Synge (1894) 1 Q.B. 466 68 a gift to a beneficiary fails if the beneficiary or his/her spouse witnesses the Will, though the attestation of the Will remains valid; it is the gift which fails. The critical issue in this is the date of the execution of the Will, so that if a witness marries one of the beneficiaries after that date, the gift is not affected. The gift is saved if there are at least two other non-beneficiary witnesses thereby rendering the attestation by the witness or his or her spouse useless. Note that there are other factors which may vitiate legacies – e.g. gifts contrary to public policy – e.g. a gift to a Terrorist Organisation, a gift in promotion of immorality, disclaimer, suspicious circumstaYnces, mistake, want of due execution, etc. The Will must also contain an attestatioRn clause. The attestation clause recites that the Will was executed in accordaAnce with the requirements of section 9 Wills Act 1837 and raises a presumption ofR due execution; It is important to point out here that the marriage of the testLatorI aButomatically revokes his Will. The exception to this is where it appears fromY th e Will that at the time it was made the testator was expecting to be married Tto a particular person and that he intended that the Will should not be revoked by tIhat marriage. The Will is not revoked by a marriage to that person but marriage toS any other person will ordinarily revoke the Will. And when a marriage is dissolvRed, annulled or declared void after the date of the testator‘s Will, any appointmVenEt of the former spouse as executor and/or trustee and any gift to the former spoIuse is effectively revoked – though - the Will remains otherwise intact. The revocNation only affects gifts to the former spouse. Where the gift to the former spouse fUails, it will fall into residue, or, if it is a gift or residue, will pass on intestacy. N The Wills AAmendment Act 1837 and the Will Amendment Act, 1852 are statutes of 154 genAeral Dapplication which were in force in England on January 1, 1900. They are Btherefore part of Nigerian Law on testate succession. The Wills (Soldiers and Sailors) I Act, 1918 is also applicable to Nigeria as it regulates ―probate clauses and 155 proceedings‖ and the High Court Laws of the various states under study are 156 applicable in the states. 154 Yinusa v. Adesubokan (1971) 1 All NLR 225 155 Op. cit. Nwogugu @ p.372 156 S. 6 (1) Wills law of Oyo State 1990. 69 There are certain statutory formalities, which must be followed when a Will is drawn in accordance with the received English law in Nigeria. The formalities are: (a) it must comply with a form (b) it must be signed at the foot or end by the testator or by some other person in his presence and by his direction or the signature acknowledged by him 157 in the presence of at least two witnesses present at the same time, who 158 shall attest and subscribe the Will in the presence of the testator but no form of attestation or publication is necessary. RY The harshness of (b) above must be noted, that, if all legal requiremenAts for a valid Will are met but the signature was in any other place other than ―atR the foot or end‖ the Will became invalid, and for this reason the British ParliaImBent had to enact the Wills Amendment Act of 1852 to correct the rigidity of thLe law in this respect. The amendment allowed the signature to be placed at, or Yafter, or following, or under, or beside, or opposite to, the end of the Will so that iTt is apparent on the face of the Will that the testator intended to give effect to the wIriting as his Will by his signature. It does not validate wrong placing of signatureS, neither does it authorise Will signed by 159 a testator after the witnesses had sigEnedR, nor approve any disposition inserted after the signature (Abayomi, 2004:I45V-46). 2.14 Intestate SuccessiNon Intestate succession inU Nigeria is governed by different rules due to pluralism of the 160family law . Until 1954, s.36 of the Marriage Act governs the intestate succession to the estates oAf pNersons who married under the Act. The applicable law in the states under sDtudy is the Administration of Estates Law, 1959 applicable to Oyo, Ondo, 161 OguAn, Osun and Ekiti and it provides for a wife, a husband, issue, parents, brothers IBand sisters of full blood, grand-parents, uncles and aunts (being brothers of full blood or half blood or sisters of full blood or half blood or a parent of the intestate) brothers or sisters of half blood, as persons entitled to share in the property of an intestate 157 Smith v. Smith (1866) L. R. 1 P&D 143 158 Groofman v. Groofman (1969) 2 All E.R. 108 159 Apatira v. Akanke (1944) 17 N.L.R. 149 160 Op. cit. Onokah @ p.63 161 S.49(1) Administration of Estates Law Oyo State; CAP 1 Laws of Oyo State of Nigeria 1978; S.49(1) Administration of Estates Law Ondo State CAP 1 Laws of Ondo State of Nigeria 1978; S.49(1) Administration of Estates Law Ogun State CAP 1 Laws of Ogun State of Nigeria 1978 70 depending on who survives the intestate. However, inheritance of the estates of an intestate may be governed by: (a) the received English law as received in Nigeria (b) the Administration of Estate Law of his state, or (c) Customary Law. 162 S.36 of the Marriage Ordinance specifically states: (1) where any person who is subject to native law or custom contracts a marriage in accordance with the provision of this Ordinance, and such person dies intestate, subsequently to the commencement of Y this Ordinance, leaving a widow or husband, or any issue ofA sucRh marriage; and also where any person who is the issue of any such marriage as aforesaid dies intestate subsequentlyR to the commencement of this Ordinance. The personal proBperty of such intestate and also any real property of which the said intestate might have disposed by Will, shall be distributedI in accordance with the provisions of the law of Engla nLd relating to the distribution of the personal estates of intesYtate, any native law and custom to the contrary notwithstanding: provided that: (a) Where by the law of England anyI Tportion of the estate of such intestate would become a pSortion of the casual hereditary revenues of the crown, Rsuch portion shall be distributed in accordance with the provision of native law and custom, and shall not become aE portion of the said casual hereditary revenues, and (b) real property, the succession to which cannot by native law and custom be affecIteVd by testamentary disposition shall descend in accordanceN, with the provisions of such native law or custom, anyth inUg herein to the contrary notwithstanding. The section is saNid to apply to the colony only. The law provides two exceptions when customary lAaw as against English law should apply to the distribution of the estate of an intesDtate: A(i) customary law will apply to the distribution of the estate of such B an intestate where by the English law any portion of the estate I would have become bona vacantia to the Crown (in default of any person taking an absolute interest in the property of an intestate it belongs to the Crown) it should not devolve on the state. (ii) customary law will apply to real property of the intestate which, according to customary law, he had no power to dispose of by will. 162 The Marriage Act, 1914 Cap 218 LFN, 1990. 71 The purpose of the exceptions is to exclude from the operation of the section, family property to which the deceased has no right to alienate. In the same vein, the Administration of Estates Law of the former Western Region 1958, which has been re-enacted by states created out of the Region (for the purpose of this study ) namely: Oyo, Ogun, and Ondo, and later Osun, Ekiti, provide that where any person who is subject to customary law contracts a marriage in accordance with the provisions of the Marriage Act or marries in accordance with law which makes polygamy unlawful and such person dies intestate leaving a widow or husband or any issue of such marrYiage, any property of which the person might have disposed of by Will shall be diRstributed in accordance with the provisions of the Administration of EAstates Law 163 notwithstanding any customary law to the contrary. The effect ofR this provision of the law is that customary law is not applicable to the estates of tBhe intestate deceased who married under the Marriage Act or contracted a mono gLamoIus marriage. Intestate succession occurs when a person dies withouYt making a Will, or when in an attempt to make a Will, the Will fails to complyI wTith provisions of the law, or when someone who had made a Will revokes the WSill and was not able to revive it or make another before death. Where a testator Rspecifically bequeaths part of his estate in a Will, but omits to deal with theV resEt of his assets, this is referred to as dying partly testate and partly intestate whicIh is a possibility in inheritance devolution practises. In that case, the un-disposedN residue of the estate will devolve according to the rule of intestate succession. AUn intestate estate may be govern by the lex situs principle which means the law Nprevalent in a place where the property is located. It applies to only immovable Aproperties (i.e. land) no matter where the immovable property is located. The priDnciple governs the immovable property of an intestate irrespective of his persAonal law. Therefore, where a German, for instance, acquires immovable IBproperties in Ogbomoso, Nigeria, and dies intestate, the Yoruba customary law of intestate distribution will govern the distribution of his immovable property located in Ogbomoso. Similarly, where a Yoruba man acquires immovable properties in Akwa Ibom State of Nigeria and dies intestate, the Efik, Anang or Ibibio rules of intestate 163 S. 49 (5) Administration of Estates Law of Western Region of Nigeria 1959 Cap 1 Laws of Western Region of Nigeria 1959; Administration of Estates Law of Ogun State CAP 1 Laws of Ogun State Nigeria 1978; S. 49 (5) Administration of Estates Law of Oyo State CAP 1 Laws of Oyo State of Nigeria 1978; S. 71 (2) (c). 72 succession will govern the distribution of his immovable property located there, depending on the location of the property in Akwa Ibom State. Personal law of an intestate may also determine the way his intestate estate will be shared. Personal law of a person is the law which prevails in the area of his birth. The personal law of a Nigerian is the native law and customs prevalent in his place of birth. However, a person has a right to change his or her personal law, either locally of internationally. Where a change of personal law is made, it will affectY the distribution of his estate. For instance, a person may change his personaRl law by choice through naturalisation or culturalisation. If a person renounces hAis citizenship of America and acquires Nigeria citizenship, he has by the act of Rrenunciation and naturalisation changed his personal law. Similarly, where a perIsBon acquires the status of another ethnic group by a process of culturalisation , Lhe has also changed his personal law. In each of these cases, his new citizYenship status will displace his T 164personal law and will govern the distribution oIf his estate . Where a man whose personal law is Yoruba native law and customs decides to contract a Marriage under 165 the Act, if such a person dies, English laRw shSall govern the distribution of his estate regardless of his being a Yoruba Eman whose personal law is the native law and customs of his area because byV his celebration of a Christian marriage, there is a presumption that he has excludIed himself from whatever benefit the native law has to offer and shielded himselfN with the English law. U 2.15 JNudic ial Position on Intestate Succession 166Coker JSC dAelivering the lead judgment in Olowu v. Olowu declared that: DThere is yet another point. There have been several decisions of the Acourts on the customary law of succession and distribution amongst the B Yoruba. The issues of a deceased person on intestacy succeed to his I properties. Not his relations. 167 168Lewis v. Bankole , and S.J. Adeseye & Ors v. S.F. Taiwo are authorities in support of the views that on the death intestate of the founder of the family, his eldest son, who is the " Dqw9d6", becomes the head of the estate of the deceased for himself and other members of his issues. It is ... the Dqw9d6, who decides which system of 164 Op. cit. Olowu v. Olowu 165 Op. cit. Cole v. Cole 166 Op. cit. Olowu v. Olowu 167 Op. cit. Osborne C.J. 168 Op. cit. Adeseye v. Taiwo 73 distribution should be adopted, be it the "8d7 igi " or " or7 0 jor7" 169 170 system. See Taiwo v. Lawani and Dawodu v. Danmole and the Privy Council decision reported in (1962) 1 NLR 702... In the case it was held that the eldest son was the head of the deceased's family, and not his eldest child (a daughter) or the brother of the deceased. While calling the attention of the court to the position of a Dqw9d6 which is automatic among the Yoruba, and as earlier defined in this work, he is the eldest male child, while the eldest female child is known as B11r2. Today, in the absence of a Dqw9d6, a B11r2 will take the position as family head especially amRongY the 171Ijebu and Abeokuta . It must be noted that the family he or she heads consist only of his father‘s children, so the larger family which he or she is alsRo reAsponsible to, still has an Ol9r7 cb7 who is ―mightier‖ than him or her. The true position among the Yoruba is not ―…it is the Dqw9d6, who decides whLich IsBystem of distribution should be adopted, be it the "8d7 igi" or "or7 0 jor7" s ystem.‖ It would have been better if the expression is that, it is the Ol9r7 ebY7 and not the Dqw9d6 who decides which system of distribution should be IadTopted. Even as good as that would be, evidence of this research has shown thaSt it is the family (now in a wider sense) who employs, oath taking, words of eldRers, divination and other techniques aimed at fostering equity and equality that dEetermines which mode to use in distributing the inheritance of an intestate YoIruVba and not the Dqw9d6. It is the duty of the cb7 headed by the Ol9r7 cNb7 to decide how devolution should go and not the Dqw9d6. The suc cUessor to the family-headship was usually the next younger brother of the dNeceased ol9r7 cb7, so chosen because he was the eldest male of the senior brancAh of the family. It was only when there was no such younger brother of the decDeased that the deceased's eldest surviving son succeeded to the family heaAdship. A younger brother might supersede his senior eldest brother as the family Bhead on the ground of ability, intelligence or influence. The choice being confined to I those descended from a common father through males. If there were no males, the eldest female member would succeed, though not a generalised practice as earlier mentioned in the work. 169 (1961) 1 ALL NLR 707 170 (1958) 3 FSC 46; (1962) 1 All NLR 702 (PC) 171 Abeokuta is specifically used here to generalise the practice among the Egba, Owu, and Gbagura who inhabit the town as opposed to the notion that everyone in Abeokuta is an Egba. 74 The issue before the court on intestate succession in Johnson v. United African 172 Company Limited was whether the widow of a Nigeria man who married under the Marriage Ordinance and died intestate had an attached interest in the property of her deceased husband. The court held that the Marriage Ordinance expressly declared that the real property of an intestate which he could have disposed by Will should be distributed according to the law of England relating to the distribution of personal estates and not customary law. The court further held that the English law applicable under S. 36 of the Marriage Ordinance was the English law as at the date oYf the enactment of the Ordinance, that is to say 1914 and that the law in force in EnRgland as at that date was the Statutes of Distribution which gave one third of the prAoperty to the widow and two thirds to the children. Therefore, the widow conceRrned in that case had one third attachable interest in the property of her late husbanBd. I The English Statutes of Distribution referred to in tha t Lcase are the Statutes of Distribution of 1670 and 1685, which states the modeY of distribution of the estates of an intestate after the payment of debts and funIeTral expenses, the statute allowed a widow who survived the intestate to take oSne third of the estates and the remaining two thirds are to be distributed in equal pRroportion among the children. Where there is no widow, the estate is distributVed eEqually among the children. The grandchild of any of the children who predeceasIed his father will take the share his father would have taken, where there is no cNhildren, the wife is entitled to half of the net estate and the other half is given t o Uthe deceased‘s father or if his father was dead it will go to his mother, brothersN and sisters with children representing a deceased parent. Where there are no childAren and wife, the intestate father is entitled absolutely; and if the father also preDdeceased the intestate, the mother, brothers and sisters and the next of kin of the Asame degree share equally on a per capita basis. If a married woman dies IBintestate, the whole of her personal property will go to her husband to the exclusion of any children. If there is no husband, the estate will go to her children. However, 173 Marriage Ordinance also provides that there is no reversion of property to the State for want of heir; instead, the portion which would have gone to the State for want of heir would be distributed according to customary law. 172 13 NLR 13 173 Marriage Ordinance S. 36 75 174 175 The decision in Coker v. Coker and In-Re Estate Emodie , are that the provision of S.36 (3) of the Marriage Act, without prejudice to the specific mentioning of colony, as its area of coverage applies throughout Nigeria. The court held In-Re Estate Emodie that the property of an Ibo man who married under the Act in the Registry at Port-Harcourt and later died intestate in the Protectorate must be distributed in accordance with English law. Although the judge agreed that the Marriage Act did not apply, but nonetheless stated that customary law did not apply to the distribution of 176 the property. Therefore, he would have to apply the rule in Cole v. Cole whichY says that the distribution of the estate of an intestate who was subject to customaryR law and had contracted a Christian or monogamous marriage was to be governed AEnglish law. In its literal translation there would have been no argument as ItoB wh Rere the provision of S.36 (3) of the Marriage Act would apply, but the Judge interpreted the section as he wanted its meaning to be, 8l2k2 mq jzq s7l3, mYq jz q L s7 8ta, ib8 kan ni 90 jq s7. (If one is struggling with beads not to losTe both in the room and outside the room, it will definitely loose somewhere). The Isection actually specified the Colony of Lagos which was the only part of Nigeria Sknown during the colonial administration as a colony in its strict Constitutional seRnse and if section 36 was intended to apply to the whole country, there would VhavEe been no need for the inclusion of subsection 3 which specifically mentioned tIhe colony which was a part of Nigeria then, so instead of not applying it to the maNtter the judge decided it should be applicable. The decisions of th eU above stated cases are that intestate estates of persons who contracted marrNiages under the Marriage Act anywhere in Nigeria, no matter where the propertyA is located will be govern by English law. Since the provision of the MarAriagDe Act applies in respect of Marriage contracted in accordance with provision 177Bof the Marriage Act, the rule in Cole v. Cole is that distribution of the estates of an I intestate who was subject to customary law and had contracted a monogamous marriage outside Nigeria but died, left real property in Lagos, is that his marriage according to Christian rites had altered his position and clothed the deceased, his wife and their children with duties and obligations which are foreign to customary law, 174 (1943) 17 N.L.R 55 175 18 N.L.R. 1 176 Op. cit. Cole v. Cole 177 Ibid 76 therefore, English law should govern the estate. This had been followed by some 178 cases, while its validity had been doubted and the ratio of the decision set aside in 179 180 many others such as in Ajayi v. White, Cole v. Cole to mention just a few. 181 182 The facts of Cole v. Cole were similar to Smith v. Smith because the intestate also contracted a Christian marriage in Sierra Leone in 1876 and died domiciled, in Lagos where he left a house. At the time of death, he was living with his wife and children in the house and used it as family property. The plaintiff was the only male child oYf the Christian marriage while the other children were female. After the deathR of their mother, the plaintiff claimed that succession to the house was governeAd by English law and that as the heir; he was exclusively entitled to inherit the Rhouse. The issue which the court had to determine was whether English LawI wBas applicable which would then entitle the plaintiff to inherit the house. But if cuLstomary law is applicable, the house would be inherited by all the three children Yas family property. The judge in the case disagreed and said that a Christian marriage or a monogamous marriage only raised a rebuttable presumption that Eng TSlish Ilaw was to apply and that other considerations such as personal law of inRtestate, their position in life and their conduct with reference to the property in diEspute could make English law inapplicable. The judge concluded on the premiseV that the intestate bought the house in order that it might be their family home, aInd if he had wished to change that position, he would have given an indication oNf such an intention by making a Will or in another manner before his death. Th eU judge therefore held that customary law should apply to the inheritance of the deceased property. It is clear fAromN the decisions of the mentioned cases that the courts had not been consisteDnt in the decision as to which law should apply to the estates of an intestate whoA was subject to customary law and had married under the Marriage Act or had IBcontracted a monogamous marriage. The problem of interpreting who is an issue or a child entitled to inherit the estates of an intestate under the Statutes of Distribution has also come before the courts several 178 Haastrup v. Coker (1927) 18 N.L.R. 68 179 18 N.L.R 41 180 Op. cit. Cole v. Cole 181 Ibid 182 (1924) 5 N.L.R 105 77 times, and the courts have interpreted an issue as stated in the Statute of Distribution to mean a child legitimated under English Law. The courts have held that the children of customary law marriage and children whose paternity were acknowledged under customary law are not legitimate children entitled to inherit under the Statutes of Distribution, though such children are legitimate by the law of domicile to their 183 184 origin. Such decisions have been overruled by the decision in the Re Adadevoh 185 and Bamigbose v. Daniel where the court held that a child who was legitimate by the law of his domicile of origin can inherit under the Statutes of Distribution, anYd the issue of whether a wife or a widow stated in the Statutes of Distribution Rwho was entitled to inherit the estates of an intestate refers to a widow of cuAstomary law marriage or not was also resolved in that case. The court ordered thaRt one third of the value of estates which the widow was entitled to by theB English Statute of Distribution, should be reserved pending the time when theL wIidow or widows might make claims for a share of the estates of the husband Ywho died intestate. Some of the verdicts of the courts are repugnant to equity andI fTairness in the eye of customary law. The estate of an intestate ought to benefit his survivors including outsiders to the family if the estate is large enough to accRommSodate that. 2.16 Personhood and InheriVtancEe African cultures and customIs share a reasonable degree of similarities in their outlook. However, in spitNe of those similarities, every cultural locale maintains its peculiar and distinc t Uways of life and of resolving certain problems, especially culture-specific Nones. As African families settled and expanded in different locales during the past millennia and throughout the African continent, they developed somewhDat dAifferent customs and vocabularies to order and explain their lives and exisAtence (Khapoya, 1998: 13). Khapoya‘s view is further buttressed by the fact that IBAfrican ethnicity has many variants and undergoes much redefinition through time, yet one‘s home ‗people‘ (that is, those whom one grows up with, knows, or is related to through extended networks of kinship groups) remains a significant point of reference for most African families today. 183 Op. cit. Coker v. Coker; Adegbola v. Folaranmi (1921) 3 N.L.R. 89; Gooding v. Martins (1942) 8 WACA 108. 184 13 WACA 304 185 14 WACA 111 78 Further, while pictures, as described by Khapoya, of African ‗network‘ of kinship or family relations may somewhat suggest the fact that Africans are overtly communal or gregarious people, the truth however remains that the personality of an individual − more importantly as it relates to the material ‗appropriation‘ of inheritance – often comes to matter, coming under ‗proper‘ definition in relation to a deceased who has died intestate (whether through oral proclamation). Comaroff and Comaroff (2001), for instance conducted a relevant inquisition in this respect, into the culture of the Tswana of Southern African. According to them: Y Among those peoples who, during the colonial encounter, came to be known as ‗the Tswana‘, personhood was everywhere seen R to be an intrinsically social construction. This [is] in two senseAs: first, nobody existed or could be known except in relation and with reference to, even as part of, a wide array of signRificant others; and second, the identity of each and everyB one was forged, cumulatively, by an indefinite, ongoing seriesI of practical activities (p. 268). L The implication of this on inheritance among tIheT YoYruba is that, an outsider to the family, may assume, the existence of certain filial relations, which in actual fact does not exist within such a family. FurtheRr imSplication of this is that, at the point of devolution of a deceased‘s estate, thEe identity of the individual is brought to the fore, and as such, ‗properly defined‘ Vin relation to the deceased, by the latter‘s immediate relations − both nuclear and Iextended families − in such manner that may, in the interim, disregard any foNrm of assumption about the mere physical, communal presence of an indivUidual in the family, to establishing through blood ties to the deceased with thNe vi ew of ascertaining entitlement of every claimant to the deceased‘s estate. A A 186For insDtance, in the case of Adeseye and Ors v. Taiwo and Anor , the plaintiffs IBunsuccessfully tried to base their claim to succession to the estate of a deceased relative on the facts that they were blood relations of the deceased and that they were so regarded by him during his lifetime. The court held that they could not by those facts become entitled to succeed the estate. This example appropriately evidences the fact that personhood becomes really integral and a sensitive reality in deciding who is entitled to the estate of a deceased, and who is not, at his death. Indeed, in other to succeed to their deceased father‘s estate, Coker says, it is necessary for even the 186 Op. cit. Adeseye v. Taiwo 79 children to establish that they were so regarded as children by their deceased father. This does not mean others cannot benefit from the estate of their father but the rightful owners must first be satisfied in accordance with the laws. Locating what he calls ‗twin words‘, ‗inheritance‘ and ‗succession‘, in conceptual perspective, Emiola (2005) argues that the distinction between the two is profoundly significant in customary law. Inheritance, according to him, is an estate or property that a man acquired by descent and can be transmitted to his heir in the same way on his death on intestacy. On the other hand, succession includes the devolution Rof tiYtle to land by Will as well as accession to office and dignity. Hence, the latter term encompasses what in English law is governed by three different ruleRs ofA law; the law of Will, the law of Intestacy, and the law relating to Accession to title and dignities, all of which have parallels in Customary law (p.131). B LI Although Emiola‘s submission tends to tilt in favouYr of the view that ‗Inheritance‘ and ‗Succession‘ are twin terminologies, it may Tbe safely posited that succession is subsumed under inheritance, this latter vieSw bIeing in tandem with that of Lewin (1947:136). However, this position is noRt to be favoured by Emiola who believes that the traditional view of some socioloEgists and social anthropologists, that ‗Inheritance‘ was the more appropriate terImVinology, misses the point, especially in relation to customary law because thNe idea of ‗wife-inheritance‘ associated with customary law is, according to him, oUut of place. In buttressing this, the concept of levirate marriage or ‗widow-inheritan ce‘ belongs not to the realm of the law of succession but to the law of marriage AN . HoweveDr, this argument of Emiola and his school of thought are technically faulty and probAlematic standing on the pedestal that the basis of their submission is founded in IBthe English law. Thus to apply a basically foreign principle of law to a culturally distinct issue is a misapplication of the principle of law. The study also disagree with 187 Ajisafe who asserts the patrilineal principle of succession, but believes that goods and land of a deceased person are shared and distributed according to rank, title or age, the eldest taking the largest share and the other children's shares follow in a descending order of magnitude. One may not know if Ajisafe was referring to id7 igi 187 Ajisafe, A. K.., 1924. The Law and Customs of the Yoruba people. London: George Rutledge and Sons Ltd., 80 or or7 0 jor7, even at that, there is no mode of sharing among the Yoruba whereby estate is shared in a descending order. Although inheritance is done seniori priori seniority takes priority, that does not mean the first child will take the father‘s estate located in Ajah, Lagos and leave the intestate‘s wheel chair for the last child. If consideration is given to the time Ajisafe wrote, what he said may be a possibility then, as history has it that around that time or thereabout, you do not need to be present to sell a product by the road side, one does not need to be present by the wares once the price is known, prospective buyers go there, pick what they want to buyY and place the amount on the tray or beside it, so people tend to be contented wRith little things then, than now. A R 2.17 Yoruba Kinship and Inheritance Devolution IB All cultures distinguish various categories of kin and affin e,L and these categories, with their associated patterns of rights and obligatYions, make up what social anthropologists call kinship systems. In YorubIa Tsocieties individual are related by kinship or affinity and these relationships areS culturally recognised. Kinship plays little or no part in interRpersonal relationships which make up the Western world and this defines theE interpretation given to some issues they are confronted with, but in AfricaInV societies especially among Yoruba, kinship is of social importance. WhereN a person lives, his group and community membership, whom he should obeyU in certain regards, whom he may and may not marry, from whom he may hope to inherit and to whom his own status and property may go to at death, all thAese Nand many more are determined by his status in a kinship system. AmongD the Yoruba, everybody is or thinks of himself as being related to nearly eveArybody in the village, almost all social relationships are of kinship or affinal Bones. I The Western way of thinking and classification of kinship are consistent and reasonable in their own cultural and social contexts, but alien to Yoruba customs and tradition. Kinship among the Yoruba helps in distinguishing between the people one is born among, in ordering one's relationship with them. When a Western anthropologist speaks of a parent-child relationship, or of the relationship between cross-cousins (the children of a brother and a sister), he is not primarily concerned 81 with the biological connections between these kinds of kin, though he may recognise the existence of such relations. What he is concerned with, are the social relationships between them; the facts that in the culture being studied they involve distinct types of social behaviour, and particular patterns of expectations, beliefs and values. Although he is interested in them as social relationships, he calls them kinship relations because that is how they are culturally defined. Among the Yoruba, the term 'brother' may denote many relatives besides the son of one's parents; sometimes it may refer to people who are not ones biological kin at all. What it denotes can only be determYined in the light of a thorough knowledge of the culture. R Attempts at translating the kinship terms of Yoruba culture into EnRglishA have led to serious misinterpretation and misrepresentation. Here is a simple example. In many cultures relatives on the father's side and on the mother's sidIeB are terminologically distinguished, and are thought of as being quite different kLinds of people. Where this is the case there are distinct terms for the mother'sY brother (Zb5r0/@gb-n 8yq l-k6nrin) and for the father's brother (Zb5r0/@IgTb-n bzbq l-k6nrin)), and father's sister (Zb5r0/@gb-n bzbq l9b8nrin) andS for the mother's sister (Zb5r0/@gb-n 8yq l9b8nrin) these set of relatives areR differently regarded. So to translate the term for the first set as 'uncle' and the sEecond as ‗aunts‘ is to conceal a vital important social distinction that has kIeVpt the unity among Yoruba people ongoing for generations. But WestNern social anthropologists have critically applied the predetermined frame wUork of their own kinship system to the social life of the Yoruba without understNanding the people's kinship systems from within; instead they have imposed theAir own. Therefore, the classificatory terminology: first cousin, second cousin, Dthird cousin, paternal grandfather, paternal grand-uncle, maternal uncle, pareAnts siblings and siblings children, uncles and aunts, nephews and nieces in IBWestern terms are not so important to the Yoruba who refers to his father's sister as 8yq (Mother), and a mother's brother is regarded as bzbq (father). The Yoruba are typically patrilineal, even though cognate ties may exist in certain parts of Yorubaland. However, one might agree with Lloyd (1959) that the smallest unit of kinship among the Yoruba is not the biological family of father-mother- children, but the [m[ 8yq, the children of one mother in a polygamous household. Although modern day Yoruba frequently use the term ‗full brother (or sister)‘ for this 82 term, confusion often arises when the term ‗full brother‘ is used, since [m[ 8yq in its translation also implies the children of one woman by several men. According to Lloyd, the Yoruba always state (ok6n [m[ 8yq le), i.e. that their emotional ties with the maternal siblings are of much stronger bond than those with the father; hence the children of one mother should not only never quarrel openly, but also cooperate closely and not divide property rigidly. In addition, the children of one‘s father with more than one wife are referred to as [bzkan – that is, half brothers or/and half sisters. However, between the [m[ Y8yq (here, precluding members born to other fathers) within the [bzkan, Rthere are situations of hostility, competition and conflict. Therefore, whatever Rthe fAather has, he is expected to share equally between each [m[ 8yq. One weaknBess in the exposition of Lloyd is his assumption that conflict between [bzkan is iInevitable when it may only, in actual fact, be a possibility, and this is in the lig hLt of realism: the view that exceptional polygamous family do cohabit in peacTe anYd amity. I Lloyd, writing from an etic point of view, hSas taken for granted the possibility of a modern-day elite African (Yoruba) chooRsing on his own accord not to accentuate the right to titles to himself, even whenE he has, by law of inheritance and succession, a right to it. Instead, Lloyd presumVed that a person must hold many statuses during his lifetime, so that at death, NmanIy of these would be assumed by others (those others who are associated wUith the kin group). As such, a man is first a member of a kin group, whether patrilineage or cognate. So, he holds a general right to as much land as he needs foAr hiNs house and his farms, and a specific right to the use during his lifetimeD, of that land which he has, before his death, in fact used. In neither case, as LloAyd found, can he alienate these rights outside the kin group, as only the group, Bacting as a corporate body, has such a power. It should however be noted that this I general right, as held by members of the group, is not heritable since each member assumes the right at birth and it terminates at the death of the holder. One might not totally disregard Lloyd‘s view, in the sense that in Yoruba customary practice, a member of the kin group participates in the meetings of the group during which control, allocation and alienation of the group‘s property − mostly real estate − are discussed. At such meetings, his rank depends on his age, and, upon his death, the 83 next in age takes his place. By the same token, the oldest male member (Ol9r7 1b7) is the extended family head who presides over family meetings, wields considerable administrative and executive power on behalf of the group. However, specific rights to property are usually held within the [m[ 8yq even when it is within a polygamous arrangement. Here, a man (who is a member of the [m[ 8yq) has duties in respect of his deceased parents, such as yearly ceremonies to the dead; and also has certain rights to property used by these parents during their lifetime. As a member of the [m[ 8yq, a deceased man‘s status passes to his immediate younger brother or, failiYng a junior sibling in that order. AR It is also agreeable that kinship can be extended logically back to tRhe founder of the kin group, as, in fact, they are frequently deployed for Bmatters of common grandparents, but rarely beyond this level. It may be true thaIt the kin group tracing descent from a common great-grandparent rarely hold sL rights to land or titles corporately and so does not function effectively Tas aY corporate group; but the sheer existence of a family house (property) will mIake these groups more important in future as these buildings for instance passS to the builder‘s great-grandchildren. In Yoruba patrilineal society, a man iEs linRked through his father to a whole group of people, the lineage of which his mother is not a member. In his mother‘s side, although he is not a membeIr Vof that group, he is bound to it by strong ties of attachment, and its membNers will reciprocate the attachment, and think and speak of him collectively as 't hUeir' child. The kin groAup itNself is often segmented into between two and six segments, known as 8d7, oDr7gun (Oyo, Ekiti, Egba) or oj5mu (Lloyd,1959). With regard to inheritance or/aAnd succession, genealogies are usually foreshortened to four or five above living Belders. The founder-ancestor is usually said to have had X children (all males in the I patrilineage), each of whom heads a segment in the genealogy (each is presumed to have been born to a different mother). In this scenario, the land of the kin group is frequently divided among the segments, each being ‗allocated sole usufructuary rights over its own portion.‘ In the case of Ekiti and Oyo, the lineage chieftaincy title must usually be held in turn by each segment. 84 This reality recalls the fact that each man within the [m[ 8yq may have his own children and as such become the head of a little family so to say. He acquires interest in property by his own efforts and, at his death, his status as family head of his own nuclear group passes to his eldest son, and thereon to other children (males defacto). Women are expected to be in their husband‘s houses and thus are deemed unable to 188 assume the responsibilities of office as family head. It should also be noted that family property inherited from 8yq (his mother) reverts to the mother‘s family. Y 2.18 Inheritance and Religion R Religion is an integral part of culture; Walter Burkett opined that there haAs never been 189 a society without religion . African inheritance practices today arRe made up of the customs and traditions of the people, the adopted Judao-ChristianB and Islamic cultures that have been prevalent even before the colonial arrival. MLuchI of African customary law is inter-twined with religious beliefs, practices, anYd institutions. Some customary 190practices such as marriage, burial, inheritance IaTnd succession are connected to religion in obvious ways, they appear secular but they have sacred meanings and implications. Arrangements at death, ritesS held after a period of mourning, and devolution of inheritance provide the ocRcasion both for laying the deceased‘s spirit to rest peacefully with his ancestorVs anEd for distributing the estate in a way that will not 191call for his anger. 192 NI The Holy Bible sa yUs, ‗A good man leaves an inheritance to his children‘s children‘, this presupposeNs no discrimination about sex, but the Old Testament, reflecting ancient JewAish culture gives the male members of the household, all rights of 193 194successDion to the family estate, save Job , whom the bible says gave inheritance to hAis daughters, on the caveat that there were no women as fair as his daughters in the IBland. By the Mosaic enactment, daughters were admitted to succession in the event 188 Karimu Akande & Anor v. Joseph Oyewole (2003) ANLR 358 189 Walter, B., 1996. Creation of the sacred : Tracks of Biology in Early Religion. United States: Harvard University Press, 190 Tebbe, N., 2007. Witchcraft and Statecraft : Liberal Democracy in Africa, Georgetown Law Journal 96 183–236 191 Bennett, T. W., 1991. A Sourcebook of African Customary Law for Southern Africa. Cape Town: Juta, 379-84 192 Proverbs 13:22 193 Deuteronomy 21:15-17, Gen. 25:5 194 Job 42:15 85 195 that no male issue remained, but the wife was not recognised as heir even in such conditions. Women are owned before marriage, by the father and after marriage, by the husband. The Bible allows a wise servant to have part of a deceased inheritance 196 over a son that causes shame to the father, and not the widow . The provisions of the Holy Quran and the Hadith differ from that of the Bible and the customary rule of inheritance of the Yoruba, as succession rights under Islamic law 197 are mathematically laid down . Under the Islamic law, wives and daughters are entitled to participate in the sharing of the estate of their deceased husband or faYther. When there are children or other descendants, the widow‘s portion is one-Reighth of the deceased estate. If there is more than one widow, the one-eighthR is shAared equally amongst them. A woman without any child inherits one-quarter of the deceased 198 husband‘s estate as decided in Ahmadusidi v. AbdulahiShaaban B. LI From what is left by parents and those nearTest Yrelated there is a share for men and a share for women, whetheIr the property be small or 199large --a determinate share, says theS holy book.. Under the Islamic law, women‘s right oRf inheritance is non-negotiable and the share of every survivor in the properVty iEs predetermined. It is difficult for women to be disinherited of their determinedI portion, even though, the share is merely a fraction of what men are entitled to, uNnder the law of succession (mirath). Christianity and Islam somehow militate agaUinst equity and equality as both hardly concede equality of share in inheritance, wNhere as equity subsists in Yoruba devolution modes. A A D 195B Numbers 27:1-11 196I Proverbs 17:2 197 a.) Father, one – sixth (1/6). b.) Grandfather, one –sixth (1/6). c.) Mother, one – sixth (1/6) with a child and one – third (1/3) without a child. d.) Grandmother, one – sixth (1/6) with a child and one – third (1/3) without a child. e.) Husband, one – fourth (1/4) with a child and one – half (1/2) without a child. f.) Wife or wives, one – eighth (1/8) with a child and one – fourth (1/4) without a child. g.) Daughter, half (1/2) when alone, and two – third (2/3) if more than one son. h.) Sons daughter, howsoever like above. i.) Uterine brother or sister, one – sixth (1/6) if one, one – third (1/3) if more. j.) Full sister, one – sixth (1/6) when alone, and two – third (2/3) if more. k.) Consanguine sister, half (1/2) if one and two – third (2/3) if more. 198 (1992) 4 NWLRP 113 199 Sura 4:7 86 The need to discuss Islamic law of inheritance is not only because it is regarded as a customary law in Nigeria, but the fact that devolution in Islam is unalterable. The holy Quran has stipulated the modes to be followed. According to the verses of the Quran, the first right on the property of the deceased is that of his creditors. A cursory look at the sharing prescribed by the holy writ is to the effect that the first category of inheritors which include parents shall be given their stipulated portion of share before the children and the balance shall now be distributed among the children and others. Y The two kinds of inheritors are: R i. Inheritors who have fixed proportion of the total inheritance and ii. Inheritors who are to share, in a specific proportion, the balanAce of the inheritance after the share of the first category of BinheRritors has been given. I By implication, if there are instances where a portion of tLhe wealth of the deceased Muslim is left over after all the heirs have been givYen t heir portion, the Quran has 200 directed that close relatives and the poor should bIeT part of the devolution . The fact that Islamic law is regarded as Rpart Sof the customary law in Nigeria calls for 201the attention of customary law andE Islamic law experts for intellectual discuss . From all intent and purposes, Islamic law does not fall within the same category of customary law, because, IslamIicV law is based upon written sources, while customary law is not. Islamic law isN fixed and immutable; it is the revealed will of God. In contrast, customary laUw is meant to reflect the living traditions of those who follow it, and is therefore amenable to change as often as the culture which is not static 202 changes. SomNe other factors that distinguish Islamic from its customary law counterDpart Aare: the intimate link between law and religion; its objective basis on stanAdards of good and evil; its ethical standards that cannot be rationally known, IBrather, they are dependent on divine revelation; as God‘s law. Islamic law has precedence over the state; it has four roots- the Qur‘an, the Sunna (traditions or 200 Op. cit. @ 2:180, 4:8 201 The dicta of Justice Wali of the Supreme Court in Alhaji Ila Alkumawa v. Alhaji Hassan Bello and Alhaji Malami Yaro, (1998) 6 SCNJ 127, 136. 202 Jamil Abun-Nasr, 1990. The Recognition of Islamic Law in Nigeria as Customary Law: Its Justification and Consequences in Abun-Nasr et al. (ed.) Law Society and National Identity in Africa. 87 practices) of the Prophet, consensus of scholars and analogical reasoning; and was 203 developed through private jurists, not state legislators. Islamic law itself distinguishes between sharia law and customary law, and like the 204 common law, it has mechanisms to accommodate the latter when necessary. Classifying Islamic law as customary fails to account for the fact that some states in 205 Northern Nigeria, (with particular reference to Zamfara state) have adopted the precepts of Islamic law as their penal system of law, though the constitution frowYns at 206any state adopting any religion . However, for the purpose of this study, it is helpful to recognise thatA IslaRmic law remains customary law unless formally codified, and is therefRore amenable to continued interpretation in keeping with life experiences. Such an interpretation is supported by the Nigerian legal system which continues toL incIluBde Islamic law in its 207definition of customary law. Y 2.19 Customary Modes of Inheritance and EInTglish Testament The fundamental reason necessitating the neSed to make this important comparison or ascertain the relationship between the YRoruba and English modes of devolution of estate is no other than the sheer influEence on the former by the latter, consequent upon colonial incursion into the autoIcVhthonous African systems. Unknown to African custNomary law is the institution of Wills (see Wills Act 1837; Wills Amendment A cUt 1852; Wills Law, 1959 of the Old Western Region of Nigeria; Wills Edict 199N0 of Lagos State; Wills Law Cap 133 Laws of the Western Region of Nigeria; WiAlls Law Cap W2 Laws of Lagos State 2003) or testament as known in Europe,D although different forms of dispositive succession, notably the nuncupative WilAl, the designation of a successor, the earmarking of property, and so on were IBknown. 203 Elegido, J. M,. 1994: Jurisprudence: A textbook for Nigerian Students. Ibadan: Spectrum publishing, Nigeria,). 204 Ibid 205 The Shariah Penal Code Law (No. 10, 2000, Zamafra State). Other states have also recognised a distinction between Islamic personal (although not statutory) and customary law by statute. For example, see s. 2 of the Statute of the Plateau State Customary Court of Appeal Law 1979: ―‘Customary law‘ means the rule of conduct which governs legal relationships as established by custom and usage and not forming part of the common law of England nor formally enacted by the Plateau State 206 Op. cit. Constitution of Nigeria @ S.10 207 Yakuba v. Paiko, Suit No.CA/K/80S/85 (Nigeria) 88 Among the characteristics or attributes frequently alleged as typifying traditional African judicial procedure are simplicity and lack of formality, reliance on ‗irrational‘ or subjective modes of proof and decision. In addition is the fact that the parties (and often the judges or adjudicators (for example, the Ol9r7 cb7) are normally involved in complex or what has been termed ‗multiplex relations‘, serving single interests, or, better still, relations which existed before and continue after the actual appearance in court (whether traditional or adopted Western court system), and which largely determine the form that a judicial hearing takes. Other characteristics includYe, a common sense as opposed to a legalistic approach to problem-solving; thAe unRderlying desire to promote reconciliation of the contesting parties, rather than merely to rule on the overt dispute which they have brought to court; and the role of reRligious and ritual beliefs and practices in determining legal responsibility. LI B There is an obvious espousal by Allot et al on the ideYas of N. A. Ollennu, who in this regard, had earlier stressed that the very informTality of proceedings in traditional courts achieved similar evidential ends to SthosIe achieved for developed courts by counsel and counsel‘s preparations of plReadings. This informality of procedure is said to obtain in the mode in which litigaEnts present their cases, in the manner of obtaining evidence from litigants before rVequiring witnesses for the plaintiff to substantiate his case. Further comparison subsIists in the fact that both parties in a litigation (whether in the context of custoUmarNy law or English law) are heard before witnesses are called in order to clarify an d settle the issues and to determine on whom the onus lies, and therefore who shNould first call witnesses in evidence of his claim. This procedure, in essence, serAves the same purposes which pleadings, prepared by professional counsel, servAe inD superior courts. B I In addition, a relationship also exists – between African indigenous and European laws – in the fact that, since the plaintiff, lacking trained counsel‘s advise, may not be seized of the law, but perhaps merely feel that he has been badly treated, justice cannot be achieved unless he is allowed to speak about many things, which may at first be irrelevant, but which may later on turn out to be crucial. Here, if the same observation is made in court by counsel, litigants may not be able to present their grievances in coherent, logical, and relevant form. In this scenario, traditional judges are said to play the role of counsel as an English judge may not do on behalf of a 89 litigant who appears without benefit of counsel. Then, again, similar to an English court, when native adjudicators enter into judgment, they eliminate the irrelevances, and their arguments are couched in an accumulating logic, leading to a verdict on the balance of probabilities in the light of the native law of the land, because of their experience in the native lore. Of native adjudicators, it is said, that they also play the role of counsel in cross-examining parties and witnesses. This fact, it is argued, has given rise to the mistaken idea among those used to Anglo-Saxon law trials, where the judges preside over an adversary contest between counsels, that in African cYourts there is a presumption of guilt. This presumption, it is said, seems to arise Rwherever the judge‘s duty is to find out the truth, it is only possible to check evAidence under cross–examination by formulating questions as if the cross-examRiner assumed the person to be lying. IB According to Coker (1966:248), one main point ofY dis ti Lnction that can be thumb nailed, is the fact that whereas in the case of English law of trusts the donor engrafts upon an existing larger estate or interest a limitIaTtion in favour of another person or object, in the case of deathbed dispositions oSf properties under customary laws, there is no limitation to the nature of the inteRrests transferred. Also, it is doubtful whether the interests usually created by wVay Eof secret trust are capable of being created under customary tenures (that is, in sIo far as those interests relate to land) and no authority exists to establish the contNrary. Besides, in order to cUreate a valid secret trust, it is necessary that such declarations should have beeNn communicated in the lifetime of the donor to the owner of the larger interest or eAstate and his consent thereto secured. In the case of deathbed dispositions under cDustomary law, it is necessary that the gift should be made in the presence of BcapAable witnesses, and no necessity exists for the presence of the beneficiary. In the I view of Coker, attention is also drawn to the fact that dispositions of this nature under customary laws are not limited to property, and are not infrequently employed to ensure the execution of the wishes of a dying man with regards to other aspects of his affairs. 90 2.20 Modernity in Cultural Inheritance Practices Nwogugu (1974), like others, has also put Yoruba system of succession in a modern perspective in his Family Law in Nigeria. When he explains that under modern Yoruba customary law of intestacy, the children of the deceased are entitled to his real 208 property to the exclusion of other blood relations. He also justifies further the ‗gender-blind‘ practice in Abeokuta where the traditional succession rights of brothers and sisters have survived to a certain extent. Upon the death of a deceased person, his landed property devolves on his childreYn as family property. This includes property acquired by the deceased-whethRer under English law or by customary law, and family property under his control, bAut where the deceased makes a gift of his self-acquired land to a child or any othRer person during his lifetime, the property will not devolve as family property.I WBhile the children of the deceased have rights to the family property, its manageLment is under the control of the dqw9d6, that is, the eldest surviving son of Ythe deceased. All the legitimate children of the deceased are entitled to succeed to his disposable landed property. These include children born of customary-lawI Tmarriage and those legitimated in accordance with the prevalent customarRy lawS, for instance by acknowledgement. The children share equally, irrespective s Eex or age. Nwogugu further exemplifies IthVe foregoing possibilities using the case of Salami v 209 Salami , where the plainNtiff and the defendants were the only surviving children of one Salami Goodluc kU, a native of Abeokuta, who died intestate, leaving a house and farmland in AbeNokuta. Soon after the death of their father in 1927, the plaintiff, then about sevenA years old, was taken to the French Cameroons by her mother and did not return to Abeokuta until 1953. Apart from some clothes and two chairs allocated to her Aat thDe time of her father‘s death, she had received no benefit from the estate. In an IBaction for an account and partition brought by the plaintiff against her two brothers, Irvin, J, held that the plaintiff‘s right to inherit under Yoruba customary law could not be affected by her absence, minority or sex, and that the dqw9d6 (that is, the eldest son) was not entitled to a greater share more than the other children. (see Barretto v. 210 211 212 213 Oniga ; Lopez v Lopez ; Sule v. Ajisegiri , and Ricardo v. Abal. . Modernity 208 Op. cit. Adeseye v Taiwo. 209 (1957) WRNLR 10 210 (1961) WNLR 112 211 (1924) 5 NLR 43 91 has affected cultural inheritance modes in diverse ways. It is difficult to say whether positively or negatively as this depends on which side of the divide one finds himself, but this study affirms the later. 2.21 Written Wills under Customary Law Formal way of writing as known today is not an essential feature of customary law, in the same way reduction of customary law transaction into writing does not alter its nature. Disposition of property by Will in the English form with all it is laid dYown format may be alien to Customary law, but the principle is recognised by cRustomary law. A customary law Will is in form of an oral declaration made volAuntarily by a testator while still alive which he intends to take effect after his deatRh, in the presence of credible witnesses. The credible witnesses in this case may nBot be beneficiaries of the Will. Meanwhile, beneficiary are not precluded from lisLteniIng to an oral Will as it may also give directions at to the mode of burial an d funeral ceremony to be performed for the testator. If more than one witnesseYs witnessed the Will and one of them is a beneficiary, the presence of that one beIneTS ficiary may not invalidate the Will. A Will may be made in anticipation ofR death or while in good state of health. The testator in customary law as in English law must possess the full mental capacity at 214 the time of making the Will, theE beneficiaries must be certain while the subject matter of disposition must notI oVnly be certain, it must be disposable, as no one can 215 dispose of an un-partitioneNd family property. U There had beenN issu es raised as to the validity of customary law Will, whether it should compAly with the provisions of the Will Act 1837 or the Wills Law 1958? And where Dit does not comply with the provision of either of them, what is the 216impAlication? The court decision notwithstanding, once a nuncupative Will fails the IBrequirement of a valid Will by commission, omission or by deliberate attempt, it should leave the realm of English Will and return to customary law disposition. If a man makes a written declaration of his intention in a manner which shows clearly that he was not making a Will in the English form, the customary courts are likely to 212 (1937) 13 NLR 146 213 (1926) 7NLR 58 214 Op. cit. Nwogugu @ pg 396 215 Johnson v. Macaulay (1961) 1 All NLR 743 216 Op. cit. Apatira v. Akanke 92 217 uphold it. Customary law is more concerned with the intent rather than the form, therefore, once the technicalities of the English law fail any document intended to be considered a Will, customary law will be available to cure the defect of English law 218 Will 2.22 Customary Modes of Inheritance: i. *d7 igi There are two systems of distribution recognised by Yoruba customary law, 8d7 igi is one of them. Under the 8d7 igi system, the estate is divided per stirpes, thYat is, according to the number of wives of the deceased – the children taking tAheirR portions 219through their respective mothers. In the Danmole case, the dReceased, Suberu Dawodu, was survived by nine children born of five wives. ThBe question before the court was whether the deceased‘s estate should be divide dL peIr stirpes or per capita. Jibowu, J. first held that distribution on the basis of 8d7 igi was contrary to natural justice, equity and good conscience. The Supreme CYourt‘s rejected the judgment of Jibowu J. that distribution on the basis of 8d7I Tigi was contrary to natural justice, equity and good conscience and decided thaSt the estate should be divided using the 8d7 igi mode and this was accepted Rby the Privy Council. In the opinion of the board, 8d7 igi was a prevalent VcustEom among the Yoruba; or7 0 jor7 was regarded as a modern method of distriIbution for the avoidance of litigation. In the end, the board also concluded thatN the distribution in accordance with the ìdí-igi system was not contrary to natur alU justice, equity and good conscience. N The foregoiAng explications are intended to serve as a prelude to the understanding of the cultDural modes of inheritance. It should be quickly noted, however, that as distinct fromA what exists within a lager (extended family) kin group, the 8d7 igi and or7 0 Bjor7 are often applied in relation to the direct offspring and wives of a deceased who I has died (intestate). These realities are subsequently appraised in consideration of both the people‘s collective wisdom and relevant interventions from the Yoruba customary law. 217 Oluyede, P.A., 1978. Nigerian Law of Conveyancing. Ibadan: University Press 218 George & Anor. v. Fajore (1939) 15 N.L.R 1 219 Op. cit. Dawodu v. Danmole 93 Smith (1995; 66) notes that Yoruba customary law generally favours equality in the distribution of estate particularly in a polygamous settings where squabbles and rancour ―feature prominently.‖ Much as Smith‘s observation appears to be good and arguable, it is however flawed by its tendency towards ambiguity. To offer that situations of squabble and rancour ―feature prominently‖ among the Yoruba might imply that the Yoruba perhaps have greater ‗greedy‘ disposition towards the distribution of estate above people of other cultures, when relatively compared to other ethnicities within Nigeria or Africa. Y However, Smith goes further to inform that, where the deceased is survived Rby a wife and children, property is shared among the children, male or female, on Athe advice of 220 the family council. But the rule in Dawodu v Damole cited by SmRith in relation to what obtains in the case of children of polygamous marriage, sIuBggests division of the estate per stripes, that is using the 8d7 igi mode of shar inLg which the Yoruba (here typified by the individual‘s in this case) are culturallyY familiar with. The thrust of the argument therefore, is the fact that the principle IoTf [m[ 8yq is closely tied to that of 8d7 igi, so that [m[ 8yq constitutes the coreS component of 8d7 igi. R 221 222 The position of the court in CaulcriEck v. Harding and later in Suberu v. Sumonu the Courts have held that by YVoruba custom, a wife cannot inherit her husband‘s property, in the absence oNf surIviving children, property which the deceased inherited will devolve on the mUembers of the family from which it came. Thus, if the property 223came from maternal ancestor it goes to his maternal relations, and vice versa. Lambo, J, held Nthat under Yoruba customary law the property of a woman devolves, 224 on intestacyA, upon her children in common . Consequently, the distribution will be per AcapDita. But the descendants of predeceased children of the dead share in the Bdivision of her real property per stirpes. And, lastly, that upon the death intestate of a I child, his brothers and sisters will be exclusively entitled to succeed to his estate. Half-brothers and sisters, being the children of a different mother, would not take any share. If there are no brothers and sisters, the property will devolve on the parents of the deceased. (Nwogugu, 1974: 400-401). There is no arguing the facts as explained 220 Ibid 221 (1926) 7 NLR 48 222 ([1957] Vol. II FSC 33 223 Op. cit. Nwogugu @ pg 400 224 Op. cit. Johnson v. Macaulay 94 by Nwogugu, but the truth of the matter is that parents among the Yoruba do not go near the property of their deceased children. It is more of an abominable thing to hear that parents inherit their son or daughter. The position expressed by Nwogugu must be a modern trend as the Yoruba have a saying; cgb-n k87 jog5n zb5r0, n7bo lcti gb- t7 baba t7 ń jog5n [m[ (meaning: elders do not inherit their younger ones, it is unheard that a father will inherit his child). Upon this submission, the customary mode of 8d7 igi allows wives to inherit estate for and on behalf of their children who are final beneficiaries of the fortunes of the estate. Y ii. Or7 0 jor7 R Conversely, and in comparison with the 8d7 igi mode of estate sharingA, or7 0 jor7 entails the devolution of a deceased‘s estate among his children,B perR capita. This may also be understood in the light of the fact that the or7 0 jor7 mIode is complimentary to the 8d7 igi 225 mode. For example, in the case of Danmo leL, once the property has been shared through 8d7 igi, the eldest child in eachY [m[ 8yq unit is entrusted with the further distribution in or7 0 jor7. HoSwevIer T, as Smith observes, if the family council is of the view that division throRugh 8d7 igi may result in injustice or where there is a disagreement among memEbers of the family, or7 0 jor7 may be adopted in lieu. V Although it is clear from SNmithI‘s explication that in a polygamous setting, property is shared through the w iUves as ‗channels‘, using 8d7 igi. The author, in his explanation of 8d7 igi is silNent on the position of the wives in the or7 0 jor7 mode, even when it is understooAd that the children all partake in the property devolution. The observed lacuna Dis however spotted in the fact that in the or7 0 jor7 mode, mother‘s interests lie iAn the portions of their respective offspring. According to Smith – and, of course, Ba general knowledge among the Yoruba – both male and female children share out of I the estate without any discrimination. This reality, as pointed out, is different from what obtains in some other cultural locales outside Yorubaland. For instance, in many localities in Northern Nigeria, only male children can share out of the deceased‘s property as female children are not entitled to inherit property, not even by a deathbed gift of land. Among many Igbo communities, real property is always reserved for the 225 Op. cit. Dawodu v. Damole 95 sons, the eldest being entitled, by custom, to the largest share while the others divide what is left in diminishing proportion. Similarly, by the customary tradition of Bini, upon the death of a father, the eldest son takes over the deceased estate as a trustee for all the children pending the performance of the final burial rites after which he automatically inherits the house where his father lived, died and was buried. This house is known as the igiogbe, and this inheritance does not vest unless the final burial rites, known as Ukpomwan are performed by the eldest child; otherwise, the eldest son will hold in trust all the estate includingY the 226 igiogbe for himself and his other siblings (see Idehen v. Idehen ; LawalR-Osula v. 227 228 229 230 Lawal Osula ; Arase v. Arase ; Ogiamen v. Ogiamen and OlowRu v. AOlowu . However, the application of either the 8d7 igi or or7 0L joIrB7 or both modes, as Smith suggests, may be a product or result of family verdi ct. Thus, family verdict is of great importance in circumstances in which the appYlication of a particular rule of customary law is causing disagreement or ‗greatI hTardship‘ among the family. In such instances, rules are applied in accordance Swith wisdom. The court emphasis that although the 8d7 igi system of shariRng property per stirpes was the applicable custom, while the ‗alternative‘ sysEtem of or7 0 jor7, is applied in case of any disagreement among beneficiaIrVies (Smith, 1995: 69). This, again, underscores the complementary role the 8Nd7 igi and or7 9 jor7 methods hold for each other within Yoruba customary praUctice. or7 9 jor7 in its own is not an appendage mode to 8d7 igi or any other mo de. Among some Yoruba families and settlements, it is a mode preferred to A8d7N igi. 2.23A KDnowledge Gap BThere are scholarly writings on African law in general, but the gap in knowledge was I located in five areas: Firstly, most of the early writings and researches were 231 undertaken by foreigners, whose focuses were on African law in general than 226 (1991) 6 NWLR (Pt. 198) 382, 386, 388 227 (1995) 10 SCJN 84 228 (1981) 5 SC 33 229 (1967) NMLR 245; (1967) NSCC 189, 192, 193 230 Op. cit. Olowu v. Olowu @ pt. 13 231 Lloyd, P. C., 1959a. ―Some Notes on the Yoruba Rules of Succession and on ‗Family Property‘‖ In Journal of African Law Vol. 111, No 1 Spring, and, Lloyd, P. C., 1959b. ―Family Property Among the Yoruba‖ In Journal of African Law Vol. 111, No 2 Summer. 96 specific references to African customary practices. Secondly, the few writings available on African customary law did not deeply research rules of inheritance practices among Yoruba. Thirdly, attention is yet to be given to the evolving and application of well-timed solutions and methods of property devolution, such that would be capable of showing, among African cultures and, indeed, the Yoruba, the awareness of cultural trends across the world, and the capability of African legal scholars to blend the inter-cultural possibilities with current developments to meet emergent modern day challenges. Fourthly, the need to advance a jurisprudencYe for 232 customary law in Nigeria, because customary norms are not simplistic; ratRher, they have philosophical significance behind them, and this is lost when custAomary issues are not considered in relation to the ideas, and finally, Nigerian juRdiciary is in dire need of exploratory rather than explanatory scholarly research wBork on customary law in general and inheritance practices in particular to be a blLe toI dispense justice as it 233ought . Y 2.24 Theoretical Framework IT The study adopted the descriptive research Sdesign using William Graham Sumner‘s Social Conflict Theory, which states Rthat competition over resources can trigger inequity and inequality, thus eVxaceErbating violence. This was supported with the hermeneutic analysis of 2t- (riIght) in Ogbè a t2, an Ifá corpus which states thus: OgbNè a t2, k‟ára ó r‟ 2dú UÀk6k[ tó k[ lánàá, ìk[ rere ló k[ A d7‟á f5n Erin, Erin ńsun ck5n [lá N Àk6k[ tó k[ lánàá, ìk[ rere ló k[ A A d7‟á f5n Cf=n, Cf=n ńsun ck5n iyì Àk6k[ tó k[ lánàá, ìk[ rere ló k[ A d‟7 á f5n Elégédé, AD Elégédé ńsun ckún à7rí [m[ bí (1:14) IBErin (Elephant), Cf=n (Bufalo), and Elégédé (Pumpkin) were children of Ogbè, a rich and famous father, who also had slaves. When he became old and was about to die, he called the three children one after the other to ask them what they wanted from his estate, so that amity would reign among his children. Erin requested for his father‘s ow9 (money), he said, once he has money, he will use it to buy other things. 232 Op. Cit Azinge, E. 233 th Views of participants at the 50 Anniversary Roundtable Discussion of The University of Ibadan, organised by The Institute of African Studies, African Law Unit, on Lessons of the Administration of th Customary Law in the Nigerian Legal System, on Tuesday, 30 October, 2012 97 Cf=n demanded for his d5k8q (properties), he said, if he has properties he can sell any of it to get what he wants. Elégédé requested for children. Ogbè then went to +r5nm8lz and consulted Ifá, (who was a servant of +r5nm8lz). The response of Ifá was ―Ogbè k1r6 wqq t2 k7 ara 9 r2d5 wq”, (That, if Ogbè can give his properties to his children as they requested, there would be peace and harmony in his home after his demise. Ogbè was told to sacrifice $x6 +dzrz and make his children come together and repeat the requests they had made in secret in the presence of one another. RAfteYr the three of them had met and said what they requested for in the presence of one another, Ogbè k1r6 wqq t2, ara wq r2d5 (gave them what they requested Afor and there was peace). Ifa also led Elégédé to a servant who made her pregnRant to satisfy her request. After the bequest, there was no acrimony as each of thIemB had their 2t- in the devolution. L @t- is right, a right to partake in anything inclusiTve oYf inheritance devolution. Ògbè a t2 is regarded as [m[ af8‟fz gbu ru gbuS, k7I 9 le r7 2t- 2 gbz. 2t- is different 234from 8fz (which is define as profit or advantage got by luck, not by effort ). Your 2t- is synonymous with your being. EOncRe you are alive you can lay claim to your 2t- in customary devolution as efIluVxion of time will not foreclose one‘s right to partake in the devolution of one‘s Nfather‘s estate. Even at death the survivors to the estate can sue for their progenitoUr‘s 2t- as oppose to 8fz which cannot be claimed as of right. That is why Ògbè a t2 was referred to as [m[ af8‟fz gbu ru gbu, k7 9 le r7 2t- 2 gbz. There coNuld be 8fz in 2t- but one cannot find 2t- in 8fz. The subDmisAsions of William Graham Sumner (1883), Herbert Spencer (1898), Sprey (196A9), LaRossa (1977), Adaramola (1992), Farrington and Keith (1993) and, IBMarshall (1998) agree with this ifq corpus that, conflict is a basic element of human social life, and devolution of any kind, often structure people, who ought to be in harmony, to be at loggerheads in the pursuit of their 2t- but if there is understanding equity and equality will prevail. William Graham Sumner‘s theory of Social Conflict and the model have been applied to various conflict and struggle studies and as they are being refined by on-going research, now offer a primary theoretical orientation to 234 Abraham, R.C., 1946. Dictionary of Modern Yoruba 98 the problem of the adaptation of African modes of devolution of inheritance to the modern processes of devolution of inheritance. According to Herbert Spencer (1898), conflict is a natural process which contributes to social evolution. Competition for survival causes positive social advancement, (William Graham Sumner (1883). Individuals are motivated to act in accordance with their own interests, thereby making people pursue needs, values, goals, and resources that they consider important or desirable, (Adaramola 1992: 213). Since individuals in a deceased family may want different things on one hand while on the other Yhand different individuals still want the same thing, and there is a limited suppRly of the commodity, then conflict is inevitable especially in relation to devolutiAon. Although conflict is inevitable, social order could be maintained within thRe family. Where conflict is limited in amount, intensity, and manner of exprIeBssion: it becomes an effective method for dealing with potential family Ypro bl Lems such as inheritance. (Farrington & Keith, 1983:374). IT 2.25 Ifq S Believers of ifq deem it to be the "truth"R and the way of their ancestors; functioning to the devoted as not only a systemV of Eguidance, but one that fuses a way of living with the psychological, providing tIhem with a legitimate course of action that is genuine and unequivocal. N Ifq originated in th eU form of a religious system, and is celebrated in traditional African medicinNe till date. It is a system of divination among the Yoruba and the verses of thAe literary corpus are known as od6 ifq. Ifq combines a large body of wisAdomD literature with a system for selecting the appropriate passages from it. BHowever, ifq poetry was not written down but passed down orally from one I Babalqwo to another. Today, there are many texts that are designed to help Babalqwo to learn and retain the body of knowledge. Ifá divination system has taken a different dimension and its tentacles spreading outside its original domain: among the Yoruba of Southwestern Nigeria, to other parts of the world to the extent that UNESCO added it to its list of ―Masterpieces of Oral and Intangible Heritage of Humanity in 2005. 99 Oral and Intangible Heritage of Humanity was defined by a group of experts in Turin 235 in March 2001 thus: People‘s learned processes along with the knowledge, skills and creativity that inform and are developed by them, the products they create and the resources, spaces and other aspects of social and natural context necessary to their sustainability: these processes provide living communities with a sense of continuity with previous generations and are important to cultural identity, as well as to the safeguarding of cultural diversity and creativity of humanity. The oral and intangible heritage has become internationally recognised as a Yvital factor for cultural identity, promotion of creativity and the preservation oRf cultural diversity. Intangible cultural heritage is in fact manifested either asA a regularly occurring form of cultural expression, such as musical or theatricRal performances, rituals or diverse festivities, or as a cultural space defined asI Ba place which brings together a concentration of popular and traditional cultu raLl activities and also as a time for a normal regular occurring event. This tempYoral and physical space should owe its existence to the cultural manifestations wIhTich traditionally takes place there. With present day globalisation, numeroRus foSrms of cultural heritage are in danger of disappearing, threatened by cultuEral standardisation, armed conflicts, tourism, industrialisation, the rural exodIuVs, migrations and the degradation of the environment, UNESCO has made it to Nplay crucial role in national and international development for tolerance and harmUonious interaction between cultures. Ifq d7dq is lNike consultation in Orthodox medical practice, ifq d7dq, is the divination riAtual itself where specific verses in the od6 ifq (the Yoruba sacred texts) given toD the diviner through arrangements of the sacred palm nuts cast in divination are Aaccessed. Ifq d7dq/8dqfq is performed by a Babalqwo or *yqn7fq (an IBinitiate of ifq oracle). (Babalqwo can be translated as "father of the secrets" while "*yqn7fq " means "mother that has ifq’s blessing"). The Babalqwo or *yqn7fq casts for the odu or "pattern" and provides insights to the circumstances that brought the person consulting ifq and provides necessary information to aid the individual according to what od6 ifq says. More than the above stated, a Babalqwo or *yqn7fq performs more than a Medical Doctor of today‘s world. Divination sessions 235 The Executive Board of UNESCO at its 161‖ session and by the General Conference at its 31‖ session (October-November 2001, 31 C/43) accepted the definition. 100 can be performed for reasons such as "regular check up" to life-changing occasions such as marriage, child birth, sickness, devolution of inheritance, rancour and acrimony in inheritance devolution etc., divination can also be performed for a group (small / large) or community. Initiation into ifq requires rigorous study. The Babalqwo or 8yqn7fq must learn and understand each of the 256 chapters (Od6) of ifq. The minimum of four verses will of necessity include cb[ (sacrifice) and 00g6n (medicine) that are embedded and relevant to each of the verses, plus other issues that complement divinationY. An accomplished initiate must be verse in oral rendition of od6 ifq in form Aof rRecitation. Ifq service is an office bestowed once you have received trainingR from an initiate. Those who aspire to serve through ifq must have this qualificatIioBn. Traits of all true ifq initiates are: patience, righteous char acLter, honesty, and humility and that is why divination is employed in Yoruba Ydevolution modes to instill the virtues. Ifq k87 pur- T Ifq k87 tzn jc I Ifq k87 pur- o S Ifq k87 tzn jc Oun t9 bq xcl2 R Ni ifq nw7 236 o IV E UN AN D IB A {p-n ifq and ik7n 237 (Tray and palm nuts with four ―eyes‖) 236 Curled from an interview held with Baba Awo, Dada Abinupagun at his residence in Oru, Ijebu, Ogun State, in 2013 237 Retrieved September 3,2014, from en.m.wikipedia.org/wiki/ifa 101 This ([p-n ifq) or tray and (8r9k2 ifq) or tapper are used in ifq divination, a central ritual in ifq tradition. The tray is adorned with carved images and dusted with powder, it serves as the template on which sacred signs (od6) relating to the personal issues of the patient are traced as the point of departure for analysis. To begin the ritual, the Babalqwo/Iyqn7fq places the tray in front of him and taps rhythmically on it with the pointed end of the tapper, invoking the presence of +r5nm8lz, past diviners, and other )r8sz. Divination is a common feature among Yoruba, even in inheritance devolution divination as to the mode to be used in inheritance is often made, anYd ifq may be allowed to choose either 8d7 igi or or7 0 jor7 mode for the pRarticular devolution. RA LI B ITY ER S V UN I AN AD IB 102 CHAPTER THREE RESEARCH METHODOLOGY AND DESIGN 3.0 Introduction This chapter clearly defines the Anthropological and legal methods of the research, the study area, the sampling methods, the study population, methods of data collection, methods of data analysis and the limitation of the study. 3.1 Study Methodology Y Given the socio-legal outlook of this work, and its anthropological fouAndaRtions, the research appropriated anthropological and legal methods of research. The research is qualitative and descriptive. In this regard, primary data were collecteRd from fieldwork relying on non-participant observations, semi-structured IBinterviews, in-depth interviews of 61 informants, comprising 32 widows, te nL family heads, nine royal fathers and ten community leaders who were purposYively selected for key informant interviews. Five focus group discussions were conTducted, life histories of four widows were taken, and interactions made with 1S08 Ichildren of deceased families. The detailed and specific cases studied among the sub-ethnic groups provided the opportunity for a comparative anaElysiRs of the study as well as generalisation of findings. Secondary data, comIprVising a range of qualitative information were sourced from law reports, journalsN, internet, library, customary and magistrate courts registry records, and other releUvant published works. These were subsequently organised, and interpreted to build up the arguments and discussion of this thesis using descriptive and explanatoryN methods. A 3.2 A FieDldwork Location BField work for the study was conducted in Ekiti, Ogun, Ondo, Osun, and Oyo, States. I The five states are located in Southwestern Nigeria where the Yoruba are largely found. The Yoruba people are a near-homogenous and semi-independent people loosely linked by geography, language, history, culture and religion. The five States randomly selected for this study have been shown to constitute the core areas of Yoruba culture where one is likely to find evidence of customary inheritance practices closest to their original formations, since they are predominantly located there (Ajala, 2013). Bearing in mind the conflicting positions of historians about the mode of 103 inheritance among the Yoruba, it becomes necessary for the researcher to make direct trips to these selected states and towns in order to appropriately ascertain, from the people‘s own oral accounts and understanding, the modes of inheritance and how it has engendered equity and equality among the beneficiaries as well as how they have come to understand and practiced them. Y RA R LIB ITY RS IV E Map oUf NigNeria showing Southwestern Nigeria. Sourc e: http://www.onlinenigeria.com/southwesternstates Five sub-ethnicN groups of Ekiti, Ijebu, Ijesa, Ikale, and Oyo were also randomly selected maAnually from the five States. The random selection of the States was done by the Dresearcher listing all the States in Southwestern Nigeria on small pieces of BpapAers and a young boy of about 6 years of age was asked to pick the first five and the I ones selected were chosen for the research. The process used in the selection of States was also used for selecting the sub-ethnic groups, as names of all major towns in the States where the sub-ethnic groups could be found were listed, and the same boy was asked to pick one name from each of the States and the ones randomly picked that were used for the study are: Omuo in Ekiti, Ago Iwoye in Ogun, Okitipupa in Ondo, Imesi Ile in Osun and Ogbomoso in Oyo and these were where the research took place. 104 This study was based on fieldwork that was carried out in selected cities in Southwestern Nigeria between November 2011 and April 2013, and it pays attention to social and legal issues underpinning inheritance practices among the Yoruba as shaped and defined by the political economy of equity and equality in perception. In the study, five sub-ethnic groups of Ekiti, Ijebu, Ikale, Ijesa, and Ogbomoso, from a total of five states of Ekiti, Ogun, Ondo, Osun and Oyo. Omuo in Ekiti State, Ago- Iwoye in Ogun State, Okitipupa in Ondo State, Imesi Ile in Osun State, Ogbomoso in Oyo State were purposively sampled respectively. Y According to Bascom (1969), the mythological origin of the Yoruba pReople is generally traced to a single ancestor, Oduduwa. Who was said to have rAesided in Ile- Ife, a place considered the cradle of mankind and the place from Rwhich all people migrated to their present locations. Yoruba people are highIlyB urbanised and have resided in cities for hundreds of years. Yoruba cities for mLed the political centres of city-states governed by a king and supreme counciYl within an aristocratic system. Prior to foreign interventions (European and IIslTamic), each Yoruba city-state was autonomous and had its own distinct dialect,S religious societies and army. These sub- groups numbered up to 22 with distinct Rdialects and government, although with some commonness. This commonnessV draEws the sub-groups into a form of unified culture which was propagated to formIing a seemingly homogenous group now known as the Yoruba. The Yoruba peopNle are predominantly farmers and highly skilled artists with a polytheistic religio nU, centered on a pantheon of divinities serving as intermediaries between man anNd the Supreme God (Olupona, 1993). In SouthwesAtern Nigeria where they are thickly concentrated, the Yoruba culture, with regard tDo inheritance law described in this study, is still thriving, but as this study has BshoAwn, it is being affected by acculturation, incursion and loss of historical values in I various respects. There is no way any discuss can be made of Yoruba legal system without a mention of ifq which occupied a unique position in respect of the customs and traditions which were unwritten but known orally. Ifq according to Abimbola, (1977:14) is the means whereby non-literate Yoruba society attempts to keep and disseminate its philosophy and values not minding the imperfection of human memory upon which the system is founded. The Yoruba had developed a legal system that contained adequate checks and balances for all and sundry in the society. Law in 105 traditional Yoruba society is the agency of social engineering and the lubricant of social justice, Olaoba, 2008:42. The law to the Yoruba is not for disunity, but that people should remain together. Kin and families should not disintegrate, so litigants before traditional arbitrations are reminded of their relationships with one another and not the narrow legal issue raised by any of the parties. The use of proverbs in settlement of thorny issues among Yoruba cannot be swept over. Proverbs explicate the law, the custom and the culture that are self evident truths that are inspired by the values in the society, such that it neither praise stealing nor pontificate that evYil is better than good. R Their sense of justice is one that coincides with social reality and is accAeptable with the communal values, thereby adopting simple and effective prIocBedu Rres, conducted in a language understood by the common man as against the English legal system mainly conducted in English language. Even where tYhe p ar Lties are unschooled in the formal education system, the court still goes on in English and the judgment delivered in English language. An interpreter may be allowITed, yet, judgment is delivered in no other language but English even if it Smeans the man to be sentenced not understanding the language of the court.R E 3.3.1 Methods of Data ColleIcVtion (a) Key informanUt intNerview. Key informants for this study were purposively selected from each of the selected communitieAs anNd their selection was determined by the findings made at the pre-field visits of the researcher. Thus, the study was partly based on interviews with the variAous Dcategories of informants with whom the researcher maintained regular contact Bduring the period of fieldwork. The researcher established some contacts through I community heads/Oba and key informants within the community (some of whom the researcher had no previous relationship with), and later through a network of other community members by whom he was introduced to their friends and relations. Subsequently, the researcher visited their homes and held several interviews with widows, family members, friends and community leaders and Oba. There he craved their time to have them explain how issues of equity and equality were negotiated and represented in cases of inheritance. 106 The researcher also spent considerable time in customary and magistrate courts within the communities, observing how disputes on inheritance issues were arbitrated, negotiated or judged in four different cases. The interviews were both structured and unstructured, it took the form of informal conversations, but others were in-depth, and the interviewees were selected through purposive sampling technique. Respondents for in-depth interviews included widows, male and female children of the deceased, Community leaders and Oba with demonstrable knowledge and information about devolution practices. In this regard, the researcher employed purposive sampYling method in engaging key informants based on their knowledge of customary Rpractices pertaining to inheritance, Yoruba history, equity and justice and other reAlevant issues teased from the research objectives. Other selection criteria includeR occupation, age, marital status and gender. IB In all, the researcher spent time with 61 key informants, cLomprising of 10 aged and experienced members of the communities, 4 custoTmarYy court presidents, 1 Magistrate, 10 family heads, and 19 community heads /royIal fathers. 32 widows, 108 children who have been part of the devolution of theSir deceased fathers‘ estate, and 17 other persons in the selected communities Rand townships were also interviewed. The interviews comprised several tVapedE in-depth interviews (ranging from 45 to 180 minutes), as well as several weIekly non-taped, informal interviews on the field (from 4 to 10 interviews per weNek) with respondents that were carried out in English and Yoruba languages. M oUst of the questions were developed based on the direction of the discuss and werNe used to clarify and explain emergent issues. In this DconnAection, each interview was treated as a point for departure, which gave inteArviewees some freedom in shaping the conversation and emphasising what was IBrelevant to them. The general framework of the theme discussed in the interviews were: i. Inheritance ii. Succession iii. Gender discrimination iv. Equity and Equality There were also a number of unstructured interviews and informal conversations with several people, including widows and aged people from the selected communities. In 107 all, 192 persons were interviewed with 150 randomly selected for unstructured interviews. Four widows were also sampled for life history documentation. All informants were interviewed basically about the same issues raised in the objectives of the study. (b) Focus Group Discussions Focus group discussion is opinion sampling in a tightly controlled group discussion that involved eight or more participants purposively selected from the communYities being studied. It is a useful method for sampling the aggregate opinion oRf people regarding an issue. The researcher conducted five focus group discusAsions with a minimum of 8-12 respondents in all the states, widows and chilRdren of deceased members of the communities who had been parties to customaIryB modes of devolution formed each group except in Ijebu where the researcher hadL a focus group discussion with a group of elders in the town. This was moder ated using pre-determined, structured and on-field questions. TY I (c) In-depth interviews S In-depth interviews were conducteEd wRith children and widows who have been involved in customary devolutioVn in the selected states and their responses made the core of the discussion, as tNhis sIhed more light to the findings of the research. Key informants were Uselected based on their experiences on inheritance devolution issues. The interview questions were semi-structured and it allowed for an engaging experience withN the respondents. Interviews with Oba and community leaders in this regard gave Ainsights to the various contributions and interventions made by this group of leadeDrs in fostering equity and equality while interviews with a Magistrate and BCusAtomary Court Presidents gave insights to judicial standpoint on the topic in issue I at the lower court level. (d) Life Histories Because this is partly a narration of the life experiences of widows with regard to inheritance law, ―life histories‖ was also used as a technique of data collection. This came about from prolonged semi-structured interviews with the widows. For our purpose, a total of 4 widows, purposively selected along the line of age and length of 108 widowhood, were interviewed to record their life histories verbatim. Two of the widows were young women recently bereaved (less than ten years) and below the age of 60 years, while the other two were older people who had spent many years in widowhood and had been on prolonged issues over inheritance devolution. One of them was a woman whose story was culled from one of the customary courts records. The other respondents, who were neither widows, nor children of the deceased but were blood relations, were also interviewed in their various homes. The life histories were recorded with the use of tape recorder and transcription took place Yafter disengagement from the field. R (e) Observations RA This is a purposeful, systematic and selective way of watchiIngB and listening to an interaction or phenomenon as it takes place. There are two Ltypes of observation; Participant and Non- participant. Non-participant observa tory system was employed in the research. ITY 3.3.2 Other Sources of Data S The secondary sources consulted forE theR work in line with the objectives of the study which have been acknowledged by way of footnotes and other approved referencing styles are: statutes, text bNooksI, Vpublished articles, journals, papers presented at law seminars, law reportsU, relevant library and archival documentations, in addition to records from the reg istries of Customary Courts that have bearing with devolution of inheritance pracNtices in general. 3.4 DAResearch Instruments All Adata relevant to the study were collected through the use of both primary and IBsecondary sources of data collection. The research instruments included- In-depth-interviews, Focus group discussions (FGDs), Non-participant observation, life histories and the use of key informant interviews. The instruments were needed because the study is multi-disciplinary, covering the fields of African studies, Law and Anthropology, and all the needed information on the topic cannot be taken from- statutes, text books, cases, published articles, journals, papers presented at law seminars, law reports, relevant library, archival documentations and registry records 109 of magistrates and customary courts alone, i.e., the secondary sources, but with a visit to the study area of Omuo in Ekiti State, Ago-Iwoye in Ogun State, Okitipupa in Ondo State, Imesi-Ile in Osun State, and Ogbomoso in Oyo State more insight were given to the study. 3.5 Methods of Data Analysis Analysis of field data for the work was qualitative, taking the form of interpretative and deconstructive appraisal of collected data which were transcribed before bYeing analysed. The analysis allowed for the voices and opinions of informanRts to be privileged while the other secondary sources of information were used asA prop for the analysis. The analysis appropriated the authority of Yoruba proverbiRal, as evidence of the power of Yoruba thought on Yoruba socio-cultural life, incBluding issues of legal import. Other analyses used were tailored to be consistent LwitIh principles residing in the theory already selected for application. Y Finally, with regards to the qualitative approachI, iTnterpretation and presentation were employed using hermeneutic approach in wShich interviews and text materials were interpreted from the perspective of the inRterviewees and the authors respectively. This is because Denzin and Lincoln (V200E0:8) noted that, ―qualitative researchers stress the socially constructed nature of rIeality, the intimate relationship between the researcher and what is studied, anNd the situational constraints that shape inquiry. Such researchers emphasi seU the value-laden nature of inquiry‖. Thus, in keeping with the tradition of dataN interpretation and presentation mode in qualitative research, the use of ethnograAphic prose, historical narratives, first person accounts, life histories and other vaDlue-laden approaches were emphasised. Oral interviews on research devices suchA as midgets and video tape recorders that were not in English language were first IBtranscribed into English, while other written and devices recorded interviews were also transcribed in descriptive and interpretative forms using deductive and inductive reasoning. 110 CHAPTER FOUR DATA PRESENTATION AND ANALYSIS 4.0 Introduction This chapter is a presentation and analysis of the data gathered from the field work. It responds to the objectives of the study through the research questions, that is:  What is the customary belief of the Yoruba on property and inheritance issues? Y  How are equity and equality ascertained among the Yoruba of SoutRhwestern Nigeria? A  Are these customary modes of devolution generic across YoruRbaland?  What are the similarities and differences in inheritLancIeB devolution practices among sub-ethnic groups?  How has Yoruba customary modes of inIhTeritaYnce impacted on private access to property? S The findings contained in this chapEter aRre based on the understanding of equity and equality in customary modes ofV inheritance among the Yoruba in the five States of Southwestern Nigeria, namelyI; Ekiti, Ogun, Ondo, Osun, and Oyo, with particular focus on selected sub-ethnNic groups in Omuo Ekiti, (Ekiti State); Ago Iwoye, (Ogun State); Okitipupa, (O nUdo State); Imesi Ile, (Osun State); and Ogbomoso, (Oyo State) which to an eNxtent can be regarded as the general practice among the entire Yorubaland DA . 4.1 AYoruba Customary Belief in Property and its Devolution IBThe concept of ‗inheritance‘ is embedded in the Yoruba customary belief. The word og5n means twenty or inheritance in Yoruba vocabulary. The notion of equity is subsumed in the representation of inheritance with this divisible figure. The figure twenty or og5n is divisible and can be equally divided between survivors to the estate of an intestate Yoruba, even when they are 2, 4, 5, 10, or 20 in number, without any rancor or acrimony. When transmitted into property devolution which is 8pín og5n or og5n p7np7n among the Yoruba, it is believed to foreclose inequity and 111 inequality as harmony and tranquility are germane in property devolution among the Yoruba. The concept of property ownership varies in its concrete application among the Yoruba, but the concept is embedded in the saying [m[ zgb2 ní j‟og5n zdq, [m[ [dc ní í j‟og5n ap9 (A farmer‘s son inherits his cutlass while a hunter‘s son inherits [his father‘s] gun). Property at devolution should benefit the survivors to an estate, especially the children since their father had suffered to acquire that much foYr the family. Property in land is either inherited or self-acquired. In earlier times, aR man had no legal power to effect succession to communal land as the basic ruleA is that land 238 belongs to communities or families . This is rooted in the rule ofR ‗nemo dat quod 239 non habet ‟ (he who has not cannot give), since individualIs Bderive their rights of L 240ownership or claim to any part thereof from their membership of the community , they cannot by any stretch of imagination be regarded as the owner rather, they are care-takers in representative capacities because IfamilYy property is meant for the use 241and enjoyment of the family as a whole. S Inhe Trited landed property is under the 242 control of the clan, lineage, or household, and cannot be alienated by an individual or cannot be bequeathed at all sinceE theR right of disposition resides corporately with 243the remainder of the group, {ImV[ 8yq or {bzkan. On the death of an individual holder or acquirer, his pNroperty in land vests in his family and become ‗family 244property‘ as family members have limited rights to use family property, they cannot alienate it (Cotran a ndU Rubin, 1970:237). In English law, a stranger cannot apply to 245 set aside a deedN which he was not a party as enunciated in Ordor v. Nwosu , this is far from wAhat obtains in customary law of inheritance as evidence of this study 246 corroboDrates the Supreme Court judgment of Adejumo v. Ayantegbe where the CouArt ruled that family land belongs to all members of the family and a co-owner who IBis a family member is ipso facto not a stranger to any transactions purported to have been made in relation thereto. 238 Amodu Tijani v. Secretary Southern Provinces (1921) 2 A.C. @ p.399. 239 Re Stone & Savile‟s Contract (1963) 1 ALL ER p.353 240 A. Shelle v. Chief Asajon etc. (1957) 2 FSC 65. 241 Thomas v. Thomas (1932) 16 N.L.R. 5 at p.6 242 Op. cit. Oshodi v. Balogun 243 Views of Owa Ooye of Imesi Ile, Ijesaland, 2013 244 Op. cit. Amodu Tijani 245 (1974) 1 ALL NLR (pt. II) p.478 246 (1989) 3 NWLR (pt. 110) p.417 @ 444 112 Yoruba societies did not have complex transactions that were later brought forth by changes in socio-economic structures of the modern day. The economic and social factors of past centuries did not call for alienation of land on commercial basis as strangers can even acquire landed property by only becoming accepted through good behavior as full members of the community, and through integration into the membership of the community they become beneficiaries of the rights and privileges 247 available to indigenes of the community. Pursuit of social and econYomic developments as a result of acculturation with the Western world led toR natural adaptations of indigenous notions to different transactions produciAng granting, leasing, pledging, loaning and even Will. Many of the known commeRrcial transactions of today, such as lease, pledge, pawn or mortgage in land were raBre, though not illegal as there was no need for anyone to buy or lease la nLd iIn the ancient Yoruba 248communities . Y While the social and economic setting of the pIasTt decades did not allow communal 249 land to be alienated because it was for Sthe interest of the community, clan or lineage, the same piece of land has becoRme one of the best known sources of wealth in the world today. Butter-LlyoVd, J.E, saw credence in the enduring family institution that 30years after Speed, AgI. C.J. had spoken his mind in the case of Lewis v. 250 Bankole in 1908. on hiNs hope that the customary family institution will one day fizzle out, when the lUaw would have been so developed to meet the challenge of the economic develNopment and posited the hope that either the legislature or the courts will one dayA kill the family system of the land tenure completely. Butter-Llyod, J., in 251BajulaiyDe v. Akapo made the following remark in favour of the enduring family instAitution. IB Now with all due respect to the opinion expressed by Speed, Ag C.J, in 252the case Lewis v. Bankole (supra) to the effect that family ownership is a dying institution, I am bound to place on record my view that notwithstanding the lapse of nearly a generation since that judgment was delivered, the institution of family ownership is still a very living force in native tenure in Lagos. 247 Interview with Jegun of Idepe, Okitipupa 2012 248 Curled from an interview with HRM Oba Jimoh Oyewumi, Soun of Ogbomoso in his palace in 2012 249 Op. cit. Amodu Tijani 250 Op. cit. Lewis v. Bankole 251 (1938) 14 N.L.R. 10. 252 Op. cit. Lewis v. Bankole 113 The ‗prophesy‘ of Speed, Ag C.J. has not come to pass, but the rigour of alienation of family property has been relaxed and alienation made easier. The courts have worked out certain rules to meet economic and social challenges of today by developing rules that allow easy transfer of family property without destroying the basic concept of the customary land holding system. Some of the rules are to the effect that: (i) Family land can now be partitioned by consent of all interested parties, or by an order of the court, and after such a partition each individual becomes the absolute owner of his/her own portion, and can dispose of it freely inter vYivos, or by his Will, and this can be taken in execution. R (ii) Ol9r7 cb7 acting with consent of principal members of the famAily can now alienate part or all of the family property. R (iii) If Ol9r7 cb7 alone, or along with a few other mIeBmbers of the family alienates family land without the consent ofY the Lprincipal members of the family, such a transaction is voidable. (iv) If the consent of the Ol9r7 cb7 is not oIbtTained the alienation is a nullity and 253 the transaction is void. S R An individuals could by inter vivosE gift or by mortis causa bequest, give away his interest in self acquired land oIrV other properties temporarily or permanently; but for such a gift not to be voidaNble, it must have been given with the knowledge and or in 254the presence of at leasUt a credible member of the family, preferably the Ol9r7 cb7 . Though no action ca n be taken to prevent him from alienating his interest in his self acquired lanAd oNr other properties and no consent was required to do this, yet the validityD or otherwise of the gift is dependent on who takes what of the gift and under whaAt circumstances. If the gifts were given to those who have definite connection or Bclaim on the deceased estate (e.g. his wife or child or a relation who had lived with I him or served him in one way or the other), and provided that the bulk of the estate is left to be devolved in accordance with the customary rule of succession prevalent in the area, the wishes of the deceased may be honoured by his cb7, especially if the bequest is made by him to a person, who would otherwise be completely excluded from the inheritance, so a gift of one or more of his farms, a piece of land, or other 253 Ekpendu & Ors. v. Erika (1959) 4 F.S.C. 79, at pg. 81. 254 Op. cit. Soun of Ogbomoso 114 belongings which he had acquired for himself by purchase or otherwise to a relation who had served him diligently would not be voided when his intestate estate is to be shared. Whereas, if the gift is made to an outsider and his immediate family interest will be affected, the Ol9r7 cb7 and other members of the family will resist such a 255 gift despite the fact that it was his self acquired property . Preservation of family unity is another objective of the Yoruba customary belief in property. Benefits and burdens aside, the Dqw9d6 assumes a social role that carries with it grave responsibilities. The customary devolution idea seems to endorseY this view that if one accepts the duty to provide sustenance, maintenance and shRelter as a necessary corollary of the system of primogeniture, then no one sRhoulAd equate the differentiation between men and women with ‗unfair discrimIinBation‘. The belief is that a person‘s property should be to the benefit of his heirs in disposition and that all of the deceased person‘s rights and duties should transit tLo the heirs—who is often said to ―step into the shoes‖ of the deceased. TheTrefoYre, both men and women have dispositive power on their self acquired propeIrties during their lifetime, although, woman‘s inter vivos disposition, among tShe sub-groups studied, will require the consent of her husband before such Rdisposition could be made, yet this study 256 corroborates the facts of SuberuV & Eors. v. Sunmonu & ors that among the Ekiti, Ijebu, Ijesa, Ikale, and Oyo Iinheritance practices, the children of the deceased regardless of their sexes arNe entitled to inherit from their father‘s estate, except where the deceased had m aUde any form of oral death-bed disposition before he died, so discrimination iNn the line of sex in property issues are discouraged as decided in Sule 257v. AjisegiriA, where the court held that the partition must be equally made between the chilDdren, regardless of their sex. BA hAusband cannot inherit his deceased wife‘s share of her family property if she pre-I 258deceased him, so also is a widow not entitled stricto senso to share in the property of the deceased husband at customary law, ‗…she is allowed to stay and enjoy all privileges and rights of a wife as long as she continues to be well behaved, obedient 255 View expressed by Chief Solomon Epoyun of Ago-Iwoye, Ijebu, aged 82yrs in 2013 256 (1957) 1 NSCC 4 257 Op. cit. Sule v. Ajisegiri 258 Op. cit. Caulcrick v. Harding 115 259 and does not query the authorities of her late husband‘s family‘ . Under native law and customs, the devolution of property follows the blood. Consequently, a wife or widow, not being of the blood, has no claim to any share. More so, among the Yoruba, husbands and wives traditionally do not pool their finances. So, on the death of spouses, their individual property does not pass to each other, (Fadipe 1970, 140, 260 146) unless they are married under the Act. The main thrust of ―devolution follows the blood‖ is that properties of a woman cannot be said to devolve on the husband who will now go to the lineage of his wife to claim part of their own family propYerty. It then means, he has crossed his own lineage to another where he oughRt to be a stranger by blood relation. A R 4.2 Equity and Equality in Yoruba Customary ModeLs ofI IBnheritance The word ‗Equity‘, whether used alone or with theY pre ceding words ‗doctrine of‘ refers to the body of principles developed by tIhTe English Court of Chancery from medieval times as a gloss upon common lSaw (Allott 1970:36). Equity means that which is fair and just, the objective of alRl laws, and in the specific sense an element of law which introduces distinctive ethical values into legal norms, Adigun (1987:4). There is general and technical equEity, the contrast between general and technical equity is, perhaps, expressed bIyV the fact that the latter is peculiarly English, whereas the former is universal (AlNlott 1970:160-161). U 261 According to UwNais C.J. (as he then was) in Osinjugbebi v. Saibu & Ors, „Equity is a rule of EnAglish law, and it is not part of Yoruba native law and customs, as there is nothingD in customary law known as equity‘. However, elements of this rule of EngAlish law, ‗equity‘, which are: fairness, good faith, equal treatment, are consistent IBwith the general tenor and spirit of customary law as rooted in Yoruba native law and customs, and are found playing dominant roles in inheritance devolution practices among the Yoruba, though they are not known and called ‗equity‘. Equity has affected the application of customary law in these ways: 259 Aguda, A., 1971. Law lectures and Papers, Ibadan: Associated Publishers (Nigeria) Limited, pg 74 260 Shogunro Davies v. Edward Shogunro (1929) 9 NLR at 79/80 261 (1982) 9 SC 904 116 (1) Equitable remedies have been available on occasions to protect customary rights and enforce specific performance to customary obligations. (2) Equitable maxims in proverbs have been invoked to control the exercise of customary claims, thus equitable doctrines of estoppels, 262 laches and acquiescence are available to resist claims to land held under customary law. Reasoning along the line of ogún, customary devolution has positively affected the application of 8d7 igi and or7 0 jor7. Variability, adaptability and relativity found in the modes when applied to different shades of inheritance issues found amonYg the sub-groups made them bedrock of equity and equality. (i). Where there tendsR to be ill feeling, the Ol9r7 cb7 in conjunction with other members of the cbR7 wiAth or without the concurrent consent of the children, often vary the generic mode of the locality to achieve equality, which keeps the Yoruba on as a united indLiviIsiBble entity. The modes were adapted to relative needs for achieving equity and eq uality among the people, as 263 evidence of this study has shown in Ikale. The acYceptance of the variation made avoidance of rancour and acrimony possible whilIeT equity and equality were promoted. The argument in favour of or7 0 jor7R moSde, among those who prefer the mode is that, while the deceased was alive, Ehe would have been relating and dealing with all his children on individual basIisV: in payment of school fees, training, allotment of farmland, clothing etc, anNd if this assertion was true and there had been peace and harmony in the houseUhold, there was no basis for changing what had fostered equity and equality for any other mode in the household. According tAo othNers, in or7 0 jor7 mode, the children were the direct beneficiaries of this sysDtem and they had the right to do whatever they wanted with their share of the estaAte as against 8d7 igi, where the estate is divided equally among the mothers who IBare wives of the deceased, with the children taking their portions through their respective mothers who could make it impossible for any of the children she does not like to enjoy any part of the estate. This view, to the researcher is a modern approach to customary devolution, as 80% of those who subscribed to it were the younger ones under 50years of age. 262 Oshodi v. Imoru (1936) 3 W.A.C.A. 93. 263 A beneficiary in the case study in Ikale suggested variation and the application of the suggestion brought about peace. 117 The study further revealed a hidden fact in 8d7 igi mode of property devolution whereby the estate is shared between the widows. The fact that the estate is shared between the widows does not mean the devolution is for the widows as inheritance follows the blood in customary law. It is also for the benefit of their issues, especially if they are minor. Though it is shared on the basis of equity between widows who in turn transmit equality of benefit and opportunity to their offspring and their portion 264 will again be equitably shared among their own children through or7 0 jor7 . From the aforesaid, acceptability of the Yoruba customary devolution modes Yby a section of the survivors without any discriminative ill-feeling makes the ìdí-Rigi mode a test case for other devolution practices in other climes to emulate. ThoAugh, some of the women accepted the mode because custom dictates, someI Bsaid R they had no say because they were in the family because of their children, so whatever came to them, whether good or bad, for as long as it was because of tLheir children, they would accept. Yet, the widows are of the opinion that 8dY7 igi mode engender equity. Contentment such as found in the statement aboIvTe, is a virtue in Yoruba customary devolution practice and should be encouragSed. Although each of the modes has its own dissent, the 8d7 igi system, as alluRded to by most of the respondents-save a few persons who have some reservationEs on it- agree that it engendered more equity and equality than or7 0 jor7 amonIgV heirs to deceased estates among the Yoruba. N 4.3 Customary PrUoperty Devolution Practices in Selected Sub-Ethnic Groups of SouthNwestern Nigeria Yoruba subA-ethnic groups share some common and broad cultural identities, an attemptD to establish a general rule or assumption, on the Yoruba idea of devolution of inheAritance will be wrong, because of the variations in practices found in the selected IBsub-ethnic groups of this study. It is appropriate to reiterate this: African ethnicity has many variants that had undergone much redefinition through time. Even with the variants they still share some degree of similarities in outlook, every cultural locale maintains its peculiar and distinct way of resolving culture-specific problems. Such similarities may differ on points of details or the degree of observance or the procedure for its application. For example, among the Ekiti, Ijebu, Ijesa, Ikale, and 264 Yusuf v. Dada (1990) 4 NWLR (pt.146) 657,669 118 Oyo, studied for this work, 8d7 igi and or7 0 jor7 are the dominant customary devolution modes, although there may be a range of options in devolving a deceased‘s estate, since 8d7 igi and or7 0 jor7 modes were dominant, they became the focus of this discuss with prospect for possible changes. The study revealed that these customary inheritance practices derive their authenticity and acceptability from the customs and traditions of the people. These customs and traditions are so respected that any deviation from their agreed terms are abhorred and 265 repelled and the deviant is made to face the music alone. Therefore the age Ylong mode of distribution of estate known as 8d7 igi is regarded as nuAlli sRecundus, though there are absolute grounds for improving upon the modalities, even now that modernity is really affecting its application. IB R Among the Yoruba of Southwestern Nigeria, 8d7 igi Lmode is seen to be more acceptable, than or7 0 jor7, yet no one should sYay with all emphasis that one customary mode is generic across Yorubaland.I oTr7 0 jor7 is more of a palliative 266 dispute resolution and mediation mode as esSpoused by Abott F.J. Suffice it to say that, there is no single set of customary Rlaw of inheritance among the Yoruba because it is tribal in origin and operates wEithin sub-ethnic groups which differ from one another; hence from one subI-gVroup to another, similarities and differences were found. The elderly amonNg the interviewees, the key informants and traditional institutions agreed th aUt the use of 8d7 igi mode of customary devolution engender equity and it hNad been in use for a considerable length of time, but most of the younger oneAs in Ekiti, Ijesa, Ikale, and Ogbomoso were at ease with the use of or7 0 jor7 moDde which their counterparts in Ijebu did not agree with. Ìd7A igi mode found among the Ekiti, Ijebu, Ijesa, Ikale, and Ogbomoso fosters IBequity and equality among the survivors as evidence of harmonious relationships was found even among [bzkan not only among [m[ 8yq In some of the interactions made with children of deceased families, there were strong ties that one wonders if there had been any inheritance devolution issue among the siblings. Though instances of children of the same [m[ 8yq quarrelling over inheritance of their late father when they have no [bzkan were seen in the study area, yet cases of Dqw9d6 taking 265 Owoyin v. Omotosho 1961 1 ALL N.L.R 304 @ 309 266 Op. cit. Dawodu v. Danmole 119 financial responsibilities over his [bzkan on one hand or and his [m[ 8yq on the 267 other, thus stepping into their late father‘s shoes. In all the communities, or7 0 jor7 is subsumed in 8d7 igi though beneficiaries do not see it in that light, but it is, in the sense that the children do come to their 8d7 igi to get their or7 0 jor7 share, whereas there is no traces of 8d7 igi found in or7 0 jor7 devolution mode but beneficiaries of or7 0 jor7 modes were expected to take care of their 8d7 igi. In one of the life histories taken in this study, one of the demerits of or7 0 jor7Y was pointed out in a customary devolution in Ikale, wherein the children tooAk thReir share of the estate through or7 0 jor7 and they never returned to care foRr their mother on the excuses that their mother was a witch. Meanwhile, all the fouBr children are well to do and they have attained enviable status in their chosen c arLrierIs. Among the Ijebu, in or7 0 jor7 mode, the first femaYle child has the same status and rights as the first son and can inherit estate or anIy Tpart thereof or make decisions as to who gets what and how in testamentary dispSosition. In Ekiti, Ijesa, Ikale, and Oyo, the rule of male primogeniture is dominantR and the first female child does not have the same status and rights as the first soEn, she can inherit the estate or any part thereof but cannot be made the family headV, even where she was referred to as such, she was not 268 given the right and privileges oIf office . Though cases of female reagents abound in succession to titles in N UEkiti, this was found uncommon in other areas. In customary deNvolution practices of 8d7 igi and or7 0 jor7, divination is not taken for granted Aas ifq is all knowing and directs the affairs of men. Ifq is consulted on inheritaDnce issues, and it is only through its approval that devolution can be undAertaken, in some cases the time and venue of the devolution will be sought and IBapproval taken through divination, once the approval is sought and obtained from ifq, 269 they believe that from the commencement to the end of devolution, all will be well. Oath taking has also engendered fairness and equilibrium which are elements of equity. Members of the extended family including the Ol9r7 cb7 who stand in as 267 The cases are not as in Bini Customary tradition where the dqw9d6 exclusively takes the father‘s last abode 268 Olohunkan v. Teniola (1991) 5 NWLR (pt.192) p.501@ 513 269 Op. cit. Baba Awo, Dada Abinupagun 120 executors are in fiduciary position and are made to swear to an oath of truthfulness in dealing, impartiality in devolution and sincerity in all things pertaining to the exercise. The beneficiaries in both 8d7 igi and or7 0 jor7 modes are also made to swear to an oath of obedience, and once these pre-cautionary measures are taken, customary devolution issues become easy, simple and rancour free as everyone would have acted in good faith having the resultant effect of betrayal in mind, then justice would not only have been done but would have also been seen to have been done. This study has further revealed that African inheritance law has a disconnRect Yfrom customary practices, and that is why African law is subjected to the ‗English Repugnancy Test‘ principle because elitist behavior has made some old tAime practices archaic in the estimation of modern day Yoruba. EvenI Bthe Rchanging social circumstances in which women now take on equal roles, b oLth within the family and in the wider society is mounting pressure on indigenoYus devolution system whereby gender equality is now on the front burner, but it would be a mistake to apply the Common law with all ‗intent and purposes‘ to AIfrTican inheritance system in search of equity and equality in a discriminatory freSe sharing modes. That would mean ―a destructive confrontation between the ERnglish legal system on the one hand, and the indigenous law, on the other, Va coEnflict that may well lead to the obliteration of indigenous law, despite the stIatutory shield for customary law since all operators of the law today were trainedN in the English legal system. The Customary rule of male primogeniture to outUsiders discriminates against women but the Yoruba idea of devolution is thaNt th e right of inheritance brings with it heavy responsibilities to male heirs. Male Aheirs, according to customary traditions, not only inherit assets of the deceaseDd but also become liable for his debts and—more critically—assumes the duty of cAare for any dependents, including minor sons and certain women relatives, even if IBproviding for them exceeds the resources inherited, a specific example was found in Ago Iwoye where the B11r2 who ―stepped into the shoe of his late father‖ as the head of the family was responsible for payment of school fees of minors among her siblings and care of the widows. 121 *D& IGI AR Y BR LI SI TY ER Fig 1: Showing 8d7 igi devolIutVion pattern U N DA N BAI 122 OR& ) JOR& Y RA R B Y LI T RS I Fig 2: Showing or7 0 jor7 deIvoVluti Eon pattern N 4.4 Similarities anUd Differences in Inheritance Practices among Yoruba Sub- Groups N Yoruba sub-Aethnic groups have cultural identities that are similar in nature, but there are variDations in practice and since many sub-groups were studied, the tendency for Bthe Aexistence of similarities and differences in the way things are done cannot be I taken for granted for example inheritance rights in Ekiti, Oyo, Ijesa and Ilaje favour male children more than what was found among the Ijebu, it stems from gender expectations that the family wealth ought to remain in the family. In addition, traditionally the husband is seen to have the role of providing for the well-being of his family, and so it is argued that male are more suitable guardians of the family‘s inheritance than female. 123 Some of the similarities and differences discovered in inheritance devolution practices among the sub-ethnic groups are discussed below: i. Devolution Pattern and Beneficiaries The devolution modes of 8d7 igi and or7 0 jor7 do not take the same pattern in the sub-groups. In 8d7 igi mode of estate devolution, the estate is divided among the wives of the deceased, though they are deemed beneficiaries, but in the real sense of 270 it, a husband cannot inherit his deceased wife‘s share of her family property , soY also is a widow not entitled stricto senso to share in the property of the deceasedR husband at customary law, for under native law and custom, the devolution of proAperty follows the blood. Consequently, a wife or widow, not being of the blood, haRs no claim to any share. This study saw wives as mere custodians of the devolutBion or a conduit pipe through which their children‘s share should pass. In all theL stuIdy areas, separation of the father and mother, or divorce does not in any way m ake the children lose their share of the estate. For example, where the man anYd the woman no longer live as husband and wife, this does not in any SwayI Taffect the children in inheritance devolution. R In Ikale, the eldest male child Vof eEvery 8d7 igi represents his 8d7 igi for the purpose of devolution, whereasI in Ekiti, Ijebu, Ijesa, and Oyo the wives are allowed to be present or be representeNd by an offspring (either male or female). In the study areas the modus operandi oUf the devolution pattern remains the exclusive preserve of the ebí whose duty Nit is to see to equitable distribution. It may be done through seniority (status) of thAe wives in 8d7 igi or that of the children in or7 0 jor7 or as they might have deDcided at a previous gathering, as devolution of inheritance does not end at one sittiAng. Sometimes it takes up to four or five times of gathering before amity is IBobtained. Personhood is an integral and sensitive reality upon which Yoruba devolution practices stand in deciding who is entitled to the estate of a deceased and who is not. 271 The case of Adeseye and Ors v. Taiwo and Anr , which Coker (1966:263) also alluded to, agree with this fact. Plaintiffs in the case unsuccessfully tried to base their 270 (1929) 7 NLR p. 48 271 Op. cit. Adeseye v. Taiwo 124 claim to succession to the estate of a deceased relative on the facts that they were blood relations of the deceased and that they were so regarded by him during his lifetime. The court held that they could not, by those facts, become entitled to succeed 272 to the estate. In Savage v. McFoy , the court held that the benefit of customary law cannot extend to the plaintiff in such circumstances as above. These examples re-echo the Yoruba idea of devolution of inheritance, that in order to succeed to their deceased father‘s estate, it may be necessary for even the children to establish that they were so regarded as children by their deceased father. The implication of the above is thaYt, an outsider to the family, often assume, the existence of certain filial relations, Rwhich, in actual fact, does not exist within such a family. Some family relationsA might have stayed with the deceased long enough that outsiders regard them asR offspring. While some of them may not know the true position, some who knowIB may want to pretend they do not know since it will be an 8fz, if they eventua lLly get something from the estate as survivors. Y All the deceased children in Yoruba customaryI iTnheritance are entitled to inherit. It makes no difference whether they were boSrn from a statutory marriage, customary marriage, were adopted (though very rarRe in yester years) or born out of wedlock. As 273 decided in the Lewis v. Bankole,V tEhe daughter takes second position, after the eldest surviving son, so, regardless oIf their sexes, children of the deceased are entitled to 274 inherit their father, exceNpt where the deceased had made such form of disposition before he died, or t heU cb7 at their meeting decided to give something to anyone a right the cb7 caNn exercise without questioning. The wife has no right either to inherit or administAer the property, but she can protect the property rights of her minor childrenD 275 if she finds out that they are not equally treated by taking ‗legal‘ actions, suchA as appropriately reporting the perceived injustice to the cb7, the Ol9r7t5n IBand)x6gb9 (Ijebu), Baql2 or Oba and her interest will be taken care of. However, 276in the absence of a male child, the court has held in Abibatu v. Flora Cole that the eldest daughter should become the Dqw9d6, though the actual nomenclature in Yoruba is B11r2. This practice as found among the Ijebu was expressed in Ashipa v. 272 (1909) REN 505 273 Op. cit. Lewis v. Bankole 274 Op cit. Suberu & Ors. v. Sunmonu & Ors. 275 Aileru v. Anibi (1952) 20 N.L.R. 46; Bolaji v. Akapo 2 F.N.R 24, 245 (Nigeria). 276 (1986)] 2 NWLR 369 125 277 Ashipa, whereas, among the Ekiti, Ikale, Oyo and Ijesa, to regard a female B11r2 as Ol9r7 cb7 is a mere academic exercise as she would bear the title without the authority of office. Barren women are given appropriate care in the devolution even where or7 0 jor7 is the mode used, while the 8d7 igi of a woman with no male child or one who pre-deceased the devolution is represented by a female child. Meanwhile a widow without an issue was regarded as part of the property in Awero v. 278 Raimi liable to be inherited with the other properties of the husband. This is a common practice in all the sub-group visited. The woman is regarded as part oYf the inheritance and she could be inherited. The last wife of a deceased in Ikale wRas part of the inheritance a first son got. The widow was two years younger than thAe first son to whom she was later given as inheritance. R B There is a similar rule in all the sub-groups that the eldeLst sIon cannot succeed his father as head of the family so long as an uncle, who may be much older than him is alive. He remains the Dqw9d6 of his immediatTe faYmily, but the larger kin has an Ol9r7 cb7 which is rotational, it does not reSmaIin on a particular line in the family, it moves from the eldest in one line to theR eldest in the other. For as long as the kinship remains, it cannot suffer lack of Ol9Er7 cb7. ii. Devolution Panel IV Cb7 occupies an emiUnentN place in the life of the Yoruba. Every Yoruba child is born into a home, which is a part of a compound or a clan. Family members always trace their descent to Na common ancestor, and inheritance is patrilineal, yet the estate of a deceased YAoruba is first for the benefit of his children who survived him and by extensioDn for the enjoyment of his widows. It is the exclusive preserve of the cb7 to see Athat devolution issues do not lead to rancour and acrimony, the Ol9r7 cb7 leads IBthe team and devolution is undertaken, that does not mean that membership of the panel is constituted the same way in all the sub-groups studied as only male children could attain the status of Dáwódù and be regarded so to say as Ol9r7 cb7 in Ekiti, 279 Ijesa, Ikale and Oyo whereas the eldest child ‗whether male or female‘ could attain 277 (2002) LHCR 60-84 278 (1983) 11 O.Y.S. H.C. 790 (Nigeria) 279 Op. cit. Onokah, M.C. 126 280 the position among the Ijebu . Membership of the devolution panel is open to cb7 of the deceased among the Ekiti, Ijesa, Ikale and Oyo, whereas among the Ijebu, in addition to what is obtainable in the other sub-groups under study, devolution could be made by the cb7, the Ol9r7t5n in council,)x6gb9 in council, Baql2 in council and Oba in council, depending on whose ‗court‘ the devolution issue was reported. The cb7 with ol9r7 cb7 as Chairman has the primary responsibility on inheritance devolution among the Yoruba. This does not in any way demean the powers of the other groups in Ijebu. These other groups are supposed to have ‗appellate jurisdicYtion‘ on inheritance issues but if cases are taken to them de novo, they do attendR to them. The use of Baql2 in council or Oba for testamentary disposition is nAot limited to Ijebu sub-group alone; the type of monarchical administrative strucRture on ground in the other area determines which way to go about resolving inheIriBtance issues. Among the Ekiti, Ikale, Oyo, and Ijesa, the eldest ma lLe member is usually the Ol9r7 cb7 or Baql3 of the immediate family. TherYe exists another Ol9r7 cb7 for the extended family who conveys the meeting oIf Tthe extended family and directs the way inheritance devolution should go excepSt where ifq has given an earlier directive. The Ol9r7 cb7 takes office automaticRally and without ceremony upon the death of his predecessor. Among the IjebuE, a woman may act as head, if she is the eldest living member, of the familyI. VIt does not matter if she lives in the family house or not, even when she is Nmarried out of the family house, she could still hold the position, for as long Uas she is the eldest living member of the family. As Ol9r7 cb7 he/she preside s over the meetings of the descent group, usually held in the family houAse Nin the compound. He/she has jurisdiction over all matters pertainiDng to the group, including land; he/she has the last say on allocation of famAily land and apartments in the family house. Ol9r7 cb7 may make orders, IBand family members have to obey if the members still regard him/her so, but he/she is subject to the will of the group expressed at its meetings; he/she cannot make a counter order against an agreement reached by other members of the family. He/she can be ignored but cannot be deposed, though if unpopular, authority can be wrestled out from him/her through a sort of abandonment and recognition as leader given to his/her immediate junior and that is why the 280 Op. cit. Lewis v. Bankole 127 Yoruba says a k87 fi 2gb-n jc zr9l3, k7 q wq l[ pe cj- l9j5de zb6r0. (You cannot make the elder the head and you now go ahead to try cases at the younger brother‘s house). The Ol9r7 cb7 sits over family disputes to give final verdicts and he/she is respected for whatever he/she says. iii. Adjudication Options in Cases of Acrimony Oba and Baql2 have so much power among the Yoruba that they give various punishments and penalties not limited to banishment to the grooves, and orderinYg of death sentences to their subjects who were found guilty of one offence orR another. Though a bulk of decisions on family issues rests on Ol9r7 cb7, and wAhatever case he could not handle with other members may be referred to the BRaql2 or Oba in council, and that must be serious cases beyond his limit. IB Among the Ijebu, Ol9r7t5n and )x6gb9 have roles to p laLy if acrimony and rancour arose and this was reported to them. The petitioner wiYll report his grievances to either the Ol9r7t5n who will call the council of eldeIrsT and ask the Secretary to invite the respondent, the invitation is not done untiSl the petitioner has paid a fixed charge known as 8kòs6n. It is only after tEhe pRayment of 8kòs6n that the council can hear him. Both petitioner and responVdent shall pay the same 8kòs6n before they can be heard, and the principle of ‗hIe who alleges must prove‘ is brought to fore at the 281 sitting. The payment ofN 8kòs6n is not limited to the Ol9r7t5n „court‟ in Ijebu, it is also practiced by b oUth Oba and Baql2 in council. It is trite to note that devolution cases can be moNved by disputants from cb7 to Ol9r7t5n or )x6gb9, if parties are unsatisfied, Afrom Ol9r7t5n or )x6gb9 to Baql2, if still unsatisfied, from Baql2 it can thenD go to the Oba, at which point the final decision on the matter is heard. In IjebAu customary setting, Ol9r7t5n is a community head or leader who uses elders in IBthe community to settle disputes, he is an appointee of the Oba and acts within the ambit of powers delegated to him, whereas, )x6gb9 is a voluntary but powerful organisation in the town or village that has its rules, its dispute resolution arena is 282 open to only members of the group or their family . The Baql2 is higher than )x6gb9, as the )x6gb9 of every village must respect the authority of the Baql2 who is often refer to as Baql2 [k[ 8l5, (the husband or head of a town), consequently, 281 They are community leaders in their own right and are highly regarded by the people. 282 This is a cult and only initiates cases are heard here 128 Oba is higher in status than both Baql2 (his appointee), and )x6gb9 which is below the Baql2. Therefore, no case already handled by Oba can be taken before Ol9r7t5n, )x6gb9 or Baql2 in Yoruba legal system. 4.5 Impact of Yoruba Customary Modes on Access to Property Findings of this study have revealed that devolution of estate among the Yoruba does not have to do with marriage because ‗devolution follows the blood‘. A man may be married to one wife, or a number of wives yet have relationship with other woYmen who bore him children, so, in Yoruba customary inheritance practices, tAhe inRterest of the children outweighs other interests, as they should have shareR in their father‘s estate. IB In a case study in Ijebu, the deceased did not bring in Ltwo children he had with another woman, and no member of either the nuclearY or the extended family had met them during his life time. After his death, on thIe Tday of his burial, the children were brought and presented to the family by their Smother. The extended family after serious considerations accepted the children on Rthe ground that they resemble their deceased father; they were described as ―his cEarbon copies‖ in these words k0 s7 7 iyzn j7jz n7b2, b7 i cni p3 9 pV= w-n s7l2 ni (meaning, the resemblance is uncontestable). The point beenI stressed here, is that children will receive acceptance by the extended family amNong the Yoruba. Without any DNA test, paternity issue was laid to its final Nrest , Uand the children were recognised as part of the family by the simple acceAptance of the extended family, they were regarded as children, and 283allowedD to inherit from the estate of the deceased. Whereas, similar situations that havAe come before courts in Nigeria have been given different judicial interpretations. 284BIn the case of Alake &Ors v. Pratt , the trial judge of the matter at the West African I Court of Appeal, Foster Sutton, P., concluded on the premise that once the paternity of the two children had been acknowledged by the deceased during his life time under customary law of the Yoruba, the children were to be regarded as legitimate under the law, regardless of whether their mothers were validly married to the deceased or not. 283 Response of an interviewee, Chief Kemi Aluko, an Oloritun in Ijebu, 2011 284 (1955) 15 W.A.C.A. 20. 129 Based on this the court held that the two children could share in the estate of their deceased father and that there was nothing contrary to public policy in holding thus: …the evidence in this case is that under Yoruba Law and Custom all legitimate children are entitled to share in their father‘s estate, and the appellants having been held to be legitimate, I do not think the question of their parents‘ marriage is then a relevant subject for investigation. Nor do I think that the public policy demands that the courts of this country should hold otherwise. The above judgment was over-ruled 5years later by another panel of non-NigeriaYns in 285the case of Olubunmi Cole & Anor. v. P. A. Akinyele at the Federal Supreme Court where Brett F. J, said: R 286 I am not prepared to treat Alake v. Pratt as authority foAr the proposition that while a man is married under the Marriage ORrdinance he can make a child born to him during the continuance of that marriage by a woman other than his wife, legitiLmatIeB by the mere acknowledgement of paternity, and I should reg ard such a rule as contrary to public policy. Y The judgment of the Federal Supreme Court deliIveTred by Brett F. J cited above to me was on legitimacy and not on capacity of thSe children to inherit from their father‘s 287estate, whereas the judgment of Alake vR. Pratt was on whether the children could share in the property of their fatheEr or not. For children whose paternity had been acknowledged by their fatheIr Vfor several years before his demise to be denied equitable share of the sameN father‘s estate, to me is discriminatory against them. The issue of public p oUlicy raised by the two courts calls for a deep thought on whose interest the couNrt judgments should serve. Public policy, who is the public? Except the public wAill exclude the children and their mothers in the matters above, but if not, the chilDdren‘s interest should be built into the yardstick for measuring what public poliAcy in this type of case should be. Considering firstly, the facts that the judges in IBboth cases were non-Nigerians whose background and cultures were different from the culture of the dramatis personae involved in the cases and lastly that they have little or no idea of the social realities of the society they are sitting in judgment over. Monogamy is the acceptable form of marriage in the clime they come from, and polygamy is so common among the Yoruba, that it is even found among those who 285 (1960) 5 F.S.C. 84 286 Op. cit. Alake v. Pratt 287 Ibid 130 have embraced formal education and the Christian religion. It should be added that the combined effect of the interpretation of S.49(5) of the administration of estate law and S. 35 of the Marriage Act 1914 denied a widow and 288 her four children inheritance benefits in Awobodu v. Awobodu because a marriage under the Act was still subsisting. Something that customary law will not justify. In a case, in Omuo Ekiti, a man disowned his son for embracing a different religion, and sent him out of the house, during devolution; the cb7 did not regard Yhim disowned, the ol9r7 cb7 said the cb7 could not have disowned him for emRbracing a different religious persuasion since adherents of other religions are in the cb7, thus making a defense for his inclusion in the devolution and establishingR the Afact that cb7 289does not only have a say in customary inheritance, but givesB directives as to how equity and equality would be achieved. LI A woman who had left her matrimonial home in angeYr because the deceased husband brought in a fourth wife in a case in Ogbomoso,T was allowed to share in the estate during devolution, her absence as a wife inS thIe home during the latter part of the deceased lifetime was not counted agaiRnst her, the family gave her recognition and subsequently allowed her on groundsE that: i. She did not leaveV her matrimonial home for another marriage. ii. She had no childI for any other person other than the deceased. iii. She wUas aNlways coming to the family house during festivals and specia l events, and iv. ASNhe continued till the day of devolution to answer the deceased family name as her surname. On Athe Dbasis of the above conclusion, she was allowed to be part of the ìdí igi mode B 290I of estate devolution. . A Dqw9d6 who pre-deceased his father in Imesi Ile, but left children was allotted share in the estate through his children by the cb7. His share of the estate was devolved to his children as joint-owners, so in the instant case, the children of the late 288 (1979) 2 L. R. N. 339 289 An interview with Olomuo of Omuo Ekiti, 2012 290 A case withdrawn from the customary court in Ogbomoso witnessed by the researcher and was followed to its conclusion at their family meeting. 131 Dqw9d6 who were grandchildren of the deceased were given share in a representative capacity. Grandchildren ought to inherit through their father among the Yoruba, but in other legal systems, once you pre-decease your father, you are not entitled to any share in the estate unless it is so stated in the testamentary document, but the uniqueness of customary inheritance practice is exploited in the instant case to cater for survivors of a son who if he had been alive would have been there, not only to take his own share of the estate but would have been the Dqw9d6 of the family. This is worth emulating in a legal system by other legal systems. Y The above cases and their impact on access to property and modern daRy gender equality struggle as well as court verdicts in favour of customary devoAlution modes have positively influenced not only Yoruba devolution practices butR other customary devolution practices which had in the past relegated the rightsI Bof certain individuals on private access to property to the background. For eLxample, in most cultural jurisdictions in Nigeria save Yoruba, particularly the IYbo, Edo and Urhobo, the widow of a deceased does not have rights and privilegeIsT as the children do. She is regarded as a non legal person and so could neither hoSld any right to property, nor inherit from her husband, (and in some cases even hRer father). Even where a woman is allotted a portion of land from her deceaVsed Efather‘s estate, that portion remains her father‘s family land, she can neither mIake an absolute gift of the land nor could her husband dispose of the land as the pNrinciple of nemo dat quod non habet is invoked. As against Igbo cus toUmary practices, where daughters like wives, do not inherit, a daughter amongN the Yoruba inherits, even among the Ijebu, instances of female ol9r7 cb7 aboundA among the Ijebu. The only situation in which a daughter can inherit amoAng Dthe Igbo is where she chooses to remain unmarried in her father‘s home with a Bview to raising children there. This cultural practice is known as “nrachi” or ―Idegbe‖ I custom among various Igbo communities, and in Edo culture it is known as ―Arewa.‖ This situation usually arises when a deceased man leaves an estate, but no surviving male child to inherit it. The idea said to be underlying this practice is to save the lineage ‗from extinction‘. The daughter, now considered an “nrachi” or ―Idegbe‖is entitled to inherit both movable and immovable property from her deceased father‘s estate. The legal interest vests in her until she gives birth to her own children. However, it is only her sons and not her daughters who can succeed her in accordance 132 291 with the rule of male primogeniture . On the whole, daughters have no rights to inherit their father‘s compound or residual land and houses among the Igbo. Some local variations may provide for inheritance by daughters; however, control of the inherited property remains with the oldest son. Whereas, the Yoruba customs and traditions have guaranteed inheritance rights to daughters in their fathers properties and also to widows in their fathers properties. The use of folklores, divination, oath taking, myths, proverbs and historical experiences employed in the devolution process protect the interest of women among the YorYuba, so, the widow is not just ejected from her home by any of these acts: intimRidation, threats, physical violence or a combination of some of them becausRe theA custom and tradition frowns at such treatment. Care for the widow and the vulnerable children are of importance in Yoruba customs and tradition. Death bed dLispIoBsition is stronger than Will among the Yoruba because most time the disposi tion goes with a curse and everyone will honour an agreement or directive thaTt isY enveloped with curses. The Administration of Estate Law, 1958, applicIable to the whole Yorubaland, which gives spouses right to succeed to eachR otheSr‘s property, does not apply to persons subject to customary law. If the decEeased was married under customary law then the distribution of his estate willI bVe under that law. The courts over the years have worked out rights of the individual in so far as family property is concerned, that every member of the UfamiNly male or female has a right to live and continue to live in 292the family home as he or she wishes, even a female member of the family who moved to her hNusband's house has a right to return to live in the family home "on deserting orA being deserted by her husband" and such member must be consulted with 293 regard tDo transactions relating to the family property IB A In 1897, Samuel Johnson in his History of the Yoruba made this statement: …when a man dies, his farm is inherited by his children, and so from father to son in perpetuity; and like the house, it is not subject to sale. 294 If his children are females, they will pass on to the male relatives. There has been a very significant change in the social and economic life of the 291 The practice is found in some parts of Anambra State 292 Op. cit. Bajulaiye v. Akapo 293 Op.cit. Aganran v. Olushi 294 Johnson, S., History of the Yorubas (1897), p.96. 133 Yoruba since Jonson wrote his book in 1897, and I think if Johnson were to be alive today his perception of these changes would have affected his standpoint. The position has since change that both male and female Yoruba now have share in their father‘s house or estate. In so far as the Yoruba people are concerned; the Courts held that two possible 295 methods of distribution exist. In the Federal Supreme Court judgment of 1958 , Abbott, F.J. said 8d7 igi is an integral part of the Yoruba native law and cuYstom relating to the distribution of intestate's estates and that where there is a disRpute, the head of the family is empowered to and should, decide whether or7 0 jor7 ought, in that particular case, to be adopted instead of 8d7 igi, and that or7 A0 jor7 is a relatively modern method of distribution adopted as an expedieIntB to a Rvoid litigation. The law depriving women of inheritance rights in their dLeceased husbands‘ estates 296 already laid down by Buckley J. in Shogunro DaviesY v. Edward Shogunro , where he said that the reason for depriving a wife oTf inheritance rights was because devolution of property under native law andS cusItoms, follows the blood and unless a property given to a wife is proved to beR an outright gift it will pass on the husband‘s death to the husband‘s family. She Ehas no right of inheritance whatsoever (Okunola 297 1991:151,173) . A view reI-eVchoed in 1963 cases of Nezianya v. Okagbue & 298 299Ors., and Uka v. UkamaN, that, a widow may only deal with her late husband‘s property with the conUcurrence of her husband‘s family but cannot assume ownership or alienate the prop erty. She cannot by effluxion of time, claim the property as her own but she canN occupy the building subject to good behaviour. She can also let part of the houseA to tenants and use the rent obtained to maintain herself if her husband‘s famAily fDailed to maintain her and that in accordance with general Ibo custom, women Bare not entitled to inherit land from their father, a female has no locus standi to I question the sale of her father‘s property, no matter her seniority in the family 300 respectively . 295 Op. cit. Dawodu v. Danmole 296 Op. cit. Shogunro Davies 297 Okunola, M., 1991. ―Relationship between Islamic law and customary law of succession in southern Nigeria‖, in Towards a Restatement of Nigeria Customary Law Lagos, Nigeria: Published by the Federal Ministry of Justice, pp 151,173 298 (1963) 3 NSCC 277 299 (1963) FSC 184 300 Ugboma v. Ibineme (1967) FNLR 251 134 About 45years later, there has not been any substantial improvement on the rights of women to inheritance, in the Eastern and Northern parts of Nigeria as the case of Oke 301 & Anor v. Oke & Anor buttressed this submission, that, a woman cannot devise her un-partitioned portion of family land to her son and neither could she dispose of it in any other way to her son even though the son might inherit the property on her death. Ownership of the land still remains in her family. 302 In Chinweze v. Masi which came up about 60years after Shogunro DRavieYs v. 303Edward Shogunro the Supreme Court position was still the same, following the same pattern that a woman has only a life interest in the property of Aher deceased husband as long as she remains the wife and if she dies, her inRterest ceases, the interest was said to still be possessory, therefore, she could nLot IdiBspose of it. The absence of the right to inheritance by the widow whic h Jibowu J. says extends to 304 administration of the intestate estate in Aileru &IT OthYers .v. Anibi , where he held that ―under native law and custom, widows cannot administer the estate of their husbands,‖ was the standpoint of the RSupSreme Court in the case of Akinnubi .v. 305Akinnubi, where, the apex court deEclared that it is trite in Yoruba customary law that a widow can be inherited by heVr deceased husband‘s family, but she could not apply for a grant of letter of adminIistration nor be appointed as co-administratrix of her deceased husband‘s estate. UN 306 The table was tuNrned in 1957 by Irvin J, who held in the case of Salami v Salami, that the plaiAntiff in the case had a right to inherit under the Yoruba customary law, and ‗neDither absence nor minority and sex could preclude her from inheriting from the estaA 307te of the deceased father‘. In Kafi v. Kafi , the Court of Appeal held that a wife IBwas entitled to occupy one of her husband's houses for her life time, the Court took into consideration what others have neglected in the past, i.e. the supervisory and contributory roles played by the wife during the building of the house and other 301 (1974) 9 NSCC 148 302 (1989) 1 NWLR (pt. 97) 254, 270 303 Op. cit. Shogunro Davies 304 Op. cit. Aileru v. Anibi 305 (1997) 2 WLR 144. 306 Op. cit. Salami v. Salami 307 (1986) 3 NWLR (Pt.27) P. 175 135 houses built by the husband, including feeding the builders and fetching materials to 308 the building sites. In a 1996 case of Jadesimi v. Okotie-Eboh a statutorily married widow, with her children applied to the high court for a grant of letters of administration to enable them administer the estate of their deceased progenitor, and it was granted by the Court. In a year 2014 Supreme Court judgment in Lois Ukeje & Anors v. Cladys Ada 309 Ukeje Justice Bode Rhodes-Vivour who read the lead judgment of the Supreme Court in the case upholds female child‘s right to inheritance in Igboland theYreby laying to rest the earlier discriminatory rules of customary inheritance whRich is in breach of Section 42 (1) and (2) of the Constitution, a fundamental rigAhts provision guaranteed to every Nigerian and Article 18(3) of the African ICBhart Rer on Human and Peoples Rights which imposes responsibility on the state to ensure the elimination of 310 every form of discrimination against women and their Ychil dr Len . The development of structures in myths, folklIoTres, divination, proverbs historical experiences and oath-taking techniques imSpact on harmonious family relationship positively in customary devolution among the Yoruba. Invariably, existence of structures in myths, folklores, divinEatioRn, proverbs historical experiences and oath- taking insulate the customary deVvolution practices of 8d7 igi and or7 0 jor7 from needless acrimony and ranNcor Iwhich often set families against one another. Once oath is administered in YoUrubaland, it must be so respected that no true Yoruba will take ‗real‘ oath with im punity or under false pretences as the repercussion is always unpalatable to dNefaulters, but it strengthens the customary inheritance practices. DA A IB 308 (1996)2 NWLR 128. 309 See Guardian Newspaper of Wed., April 16, 2014. pg 4 310 Emory International Law Review Vol. 25 136 CHAPTER FIVE SUMMARYAND CONCLUSION 5.1 Summary It is difficult to controvert the fact that many African societies combine both customary and statutory laws of inheritance, and these laws have impact on the rights of inheritors as well as on both laws. A comparative study of similarities and differences found in the practises among the sub-groups of Ekiti, Ijebu, Ijesa, IYkale, and Oyo attest to the fact that cultural dynamics has resulted in attitudinalR changes which has negatively affected the core values of customary inheRritanAce practices. Conflicts have been avoided or amicably resolved in many devolution issues of 8d7 igi and or7 0 jor7 through the application of folklores , LoatIh- Btaking, swearing and divination to attain equity and equality which is the primary objective of Yoruba inheritance practices. Y IT Devolution of inheritance among the YoSruba is mostly intestate, universal and patriarchal. The indigenous law of succRession is universal because, rights and duties transit to the heir who ―step intVo thEe shoes‖ of the deceased, and property devolves mainly according to the ruleI of male primogeniture which brings with it heavy responsibilities to the malNe heirs who are expected to preserve the family unity. The gamut of inheritance Upattern in Yoruba devolution practice is that, a husband cannot inherit his deceNased wife‘s share of her family property, so also is a widow not entitled stricAto senso to share in the property of the deceased husband for under native law andD customs, the devolution of property is said to follow the blood. BYorAuba customary practices of 8d7 igi and or7 0 jor7 are alive among the people. I It fosters equity and equality in customary testamentary substantiation among the Yoruba as the socio-cultural life of the Yoruba is built on the family system which had in the past arbitrate in inheritance issues, without which the situation would have been more chaotic. The aim and objectives of this study were achieved and the data found show the possibility of peaceful inheritance devolution in the future as it was in the years gone by. The study agrees with previous studies that 8d7 igi and not or7 0 jor7 is a preference mode among the people, but distinguishes itself on the premise 137 that modern day inheritors are no longer at ease with the mode as it was practised. Evidence of the study reveals that a rebranding of the modes will go a long way in fostering the required equity and equality among the survivors in Yorubaland. *d7 igi and or7 0 jor7 are the two concepts that promote equity and equality in Yoruba customary mode of inheritance, but they are against the practice of English testamentary disposition. These customary practices are not generally applicable among the various Yoruba sub-groups. In Ikale land, 8d7 igi is modified in such a way that the first male child represents his 8d7 igi and can suggest variation inY the sharing mode. Among other Yoruba groups, wives may be invited yet AtheyR have no say on inheritance devolution issues. Among the Ijebu, in or7 0 jor7 mode, the first female child has the same status and rights as the first son andB canR inherit estate or any part thereof or make decisions as to who gets wha t LandI how in testamentary disposition. In Ekiti, Ijesa, Ikale, and Oyo, the rYule of male primogeniture is dominant. However, there exist manifestations oTf inequity and inequality in some families due to the rule of male primogeniture. IAssertive postures of first wives and first male children often lead to physical struSggle and lengthy court cases which may disrupt the 8d7 igi and or7 0 jor7 Rmodes of inheritance. In cases of conflict, rancour and acrimony; folkloVres, Edivination, oath taking, myths, proverbs and historical experiences are emplIoyed in the resolution. The study has responUded Nas a contribution to testamentary substantiation within the context of African customary law. It also holds the assumption that the dearth of adequate discouNrse, and indeed, judicial precedence, which sufficiently accommodate traditional AAfrican thought, especially among the Yoruba of Southwestern Nigeria on devAolutDion of estate, should be of concern to African law experts today considering Bemergent changes and development in Africans‘ adjustment to cultural realities I around the world as these implicate testamentary disposition. The study has offered insight into the history and development of Yoruba customary law and how it can be used to help in the formulation of socio-cultural developmental policies and programmes, as well as law reforms, aimed at re-identification of the values of Yoruba cultural heritage. In addition, it offers an up-to-date literature on the pragmatic historical practices of the Yoruba inheritance modes as well as the development of the legal practice in Nigeria. 138 The Constitution of Nigeria is the supreme law of the land while other laws are 311 subordinate. Customary law is protected by this Constitution which under various sections prohibits any form of discriminatory practices. Of note is the provisions of S. 34 (1) (b) which deals with ‗Right to dignity of human person‘ and S. 42 which prohibits discrimination against any citizen of a particular community, ethnic group, and on the ground of place of origin, sex, religion, circumstances of birth or political opinion by any law, executive or administrative action. Yoruba customary inheritance practices are in concord with the provisions of the Constitution. Y R This research found elements of equity, consistent with the general tenorA and spirit of customary law, rooted in Yoruba native law and customs, playing dRominant roles in inheritance devolution among the Yoruba, though they are notI kBnown or described as ‗equity‘. The word og5n in Yoruba means either twenty orL inheritance depending on the usage and the intended meaning. Og5n twenty as Ya fig ure in Yoruba belief system is a dividable figure. Since it is divisible for 20,I 1T0, 5, 4 or 2 persons equally, it is a notion of equality and equilibrium. When Sthe notion is transmitted to inheritance which is known as 8p7n og5n (inheriRtance devolution), the modes are believed to foreclose inequity and inequality. E *d7 igi and or7 0 jor7 modeIs Vfound applicable in the study areas are responsive and relative to the needs of thNe communities. In 8d7 igi, the estate is divided equally among the wives of thUe deceased, with the children taking their portions through their respective mothNers, while in or7 0 jor7, the children are direct beneficiaries of the system. DesApite the fact that this study found 8d7 igi mode more acceptable than or7 0 jDor7, no one can say with certainty that there is a single set of customary law of iAnheritance among the Yoruba because it is tribal in origin and operates within IBtribes. The 8d7 igi mode represents a widely accepted system, though with variants. The study further reveals that the widow is also a consideration in inheritance devolution issues because the care for widow is of importance, hence, the in 8d7 igi mode the widow is at the centre of devolution. Some first wives complained of inequality (outside the formal interviews), on the strength of their long stay and endurance with their husbands, ‗when he was nothing‘, 311 Op.cit. Constitution of Nigeria (1999) @ 1(1) 139 yet the argument against such submissions is that these first wives, because of their long stay had enjoyed some level of comfort and pleasure with their deceased husband. They had him while he was vibrant and energetic; he had trained their (i.e first wives) children in most cases to a level of independence, and such trainings put the children in vantage positions in life better than the children of the younger wives. In some cases children of the first wives are like fathers to the children of the younger wives and they are expected to take up associated responsibilities which this study observed was adequately taken care of in some instances, an advantage of the Ymale primogeniture rule found among the Yoruba by the study. R Some of the younger or latter wives averred that complaints of inequalitAy on the part of the first wives were unfair statements and this may not be tenabRle, as they (other wives) took up the ‗bread winner status‘ of their own childLrenI, Ba status the deceased had taken up for the children of the first wives, aside fro m the junior wife roles they had played. According to customary marriage conTvenYtions, a new wife was junior not only to her husband but to all of his lineage mIembers born before the date of her marriage. She was also a subordinate in the dSomestic domain (Fadipe 1970, 114). The or7 0 jor7, mode, was found in Rsome cases to be a continuation of how the deceased lived his life while IdVealin Eg with his household, and if it has engendered peace, and tranquility in the household, the submission of some interviewees was that, there was no basis fUor chNanging what had fostered equity and equality while the deceased was alive. A disconneAct wNas found in the law and practice. Due to the changing social circumsDtances in which women now take on equal roles, both within the family and in the Awider society at large, people now assume that Yoruba customary devolution IBmodes discriminate between survivors. Care should be taken not to continue the use of the rules of Common law to judge African customary law on inheritance practices as this may lead to the obliteration of the indigenous laws. Contentment is a virtue in Yoruba customary devolution practice and should be encouraged. In many communities daughters have a share out of the estate, and this has become an accepted rule among some sub-ethnic groups in Nigeria. In a case study in Ikale, it was the first son of the second wife who suggested dialogue and not a strict adherence to the rules of customary practices, whereas the same suggestion, in a case study in 140 Imesi Ile was met with stiff resistance. While dialogue brought about adaptability and variability to the customary practice in Ikale, it also re-united the children of the deceased, a unity so much cherished by the Yoruba. Case laws and judicial attitudes are indicative of the fact that in Nigeria and in other climes, the laws and practices are beginning to positively influence private access to properties. Nonetheless, without new policy-making and other declarations, new laws and activism without positive change in judicial attitude, which this study reflects, it may not be easy to get equity and equality required for a just and egalitarian sRocieYty. The general tenure of Yoruba customary modes of inheritance on privAate access to property as found out by this study, is that under Yoruba custoImBary R law, the children of the deceased, regardless of their sexes, are entitled to succeed their father (to the exclusion of other relations, except where the decease d Lhad made such form of disposition before he died, so private access to propYerty is unhindered and widely enhanced. The study further revealed the hiddeInT facts in the preference for ìdí-igi mode of property devolution, whereby the eSstate is shared between the widows, for the benefit of their children, in agreemeRnt with the Yoruba saying, a nu [m[ k87 fi [w- nu il2 which literally tEranslates, someone who is responsible for feeding/nurturing a baby withI hVis/her bare hand will definitely lick his/her fingers afterwards. This research Nagrees with the wise saying, in the sense that, care for the widow is of import anUce also and the children‘s share will definitely benefit their mother in one wNay or the other, since ‗blood is thicker than water‘, apart from her right to inheArit from her own father‘s estate. D 312Dynamism of judicial pronouncements, and decisions of some cases cited below atteAst to the fact that courts decisions have started influencing customary devolution IB 313patterns among the Yoruba. In Mojekwu v. Mojekwu , the Supreme Court held that, Nigeria is an egalitarian society, where civilised sociology expects male and female to participate freely without any inhibition on grounds of sex. Any form of societal discrimination on grounds of sex, apart from being unconstitutional, is antithetical to a society built on the tenets of democracy. The ―Oli-ekpe‖ custom, which permits the son of the brother of a deceased person to inherit his property to the exclusion of the 312 th Guardian Newspaper of Wednesday, !6 April, 2014, pg. 4 313 (1997) 7 NWLR (pt.512) 283 141 deceased‘s female child, was declared discriminatory and inconsistent with the 314 doctrine of equity. In Ukeje v. Ukeje , the Court of Appeal held that the Igbo Native Law and Custom which disentitles a female child to partake in her deceased father‘s estate is void as it conflicts with Section 42 (1) & (2) of the Constitution of Nigeria. In 315 Uke v. Iro , the same Court of Appeal held that, any assertion that a woman cannot give evidence in relation to title to land under Nnewi Customary Law, is numb of the constitutional provisions and it is not only repugnant to natural justice but also offends all decent norms applicable in a civilised culture where the rights of all s 316 Yexes are protected under the Constitution. In Obusez v. Obusez , the Agbor NaRtive Law and Custom which denies a widow who was married under the MarriageA Act, a right to the management and distribution of the Estate of her deceased hRusband who died intestate leaving 5 children was upturned by the Court of AppeaBl which held that the surviving spouse who is a lawful widow and children of an LinteIstate deceased get first priority to a grant of Letters of Administration of Ythe estate. Whereas, under the Agbor Native Law and Custom she is regarded aIs Ta ―chattel‖. Global agitation for the advancement of wSomen started a long time ago, and the achievement of equal rights and developRment for women have moved steadily into the national sphere. The UN ComVmisEsion for Status of Women (CSW) under the Economic, Cultural and SociaIl Council (ECOSOC) of 1946 envisaged that men and women should be treatedN equally in all spheres of life where the same conditions prevail. The establis hUment of CSW led to the subsequent adoption of the Universal Declaration of HNuman Rights (UDHR) in 1948; Convention on the Political Rights of Women (19A52), the Convention on the status of Nationality of Married Women (1957), DConvention on the Elimination of all Forms of Discrimination Against women (CEADAW) 1979, and the Convention on the Elimination of Violence Against Women IBin 1993 were also adopted. African Union, through the New Partnership for Africa‘s Development (NEPAD); The UN, through CEDAW and its optional Protocols, Regional Charter such as the African Charter of Human and Peoples‘ Rights (ACHPR) have come to a conclusion that giant strides have been made in establishing a framework for supplanting 314 (2001) 27 WRN 14 315 (2001) 11 NWLR (pt.723) 196 316 (2001) 15 NWLR (pt.736) 377 142 discriminatory practices. In 1985, the General Assembly of the United Nations adopted the Nairobi Forward Looking Strategies (FLS). The strategies aimed at measures to improve the rights of women in all spheres and to address the root causes of discrimination against women in order to provide measures for combating them. Not satisfied with the result, the UN General Assembly in 1994 resolved to use both 317 formal and non-formal educational materials to publicise women‘s rights issues thereby creating the Division for the Advancement of Women (DAW) which works under the auspices of the Economic and Social Council (ECOSOC). UnfortunaYtely, the strategies do not have any legal binding effect, but only the moral consRensus of participating member countries. Nigeria domesticated the UN CharAter and also became a signatory to CEDAW in 1984, ratified the agreement in R1985, signed the Optional Protocol in 2000 and it became effective in the countryB in 2004. These and other giant steps have been taken by government Lto Ierode the perceived discrimination on women. This study did not see the disc rimination, and because the discrimination is imaginary, people feel thaIt TnotYhing is done to address the discrimination against women. S 5.2 Conclusion R Most of the early writings and VreseEarches on African Law and Yoruba inheritance practices were undertaken byI foreigners, whose focuses were on African law in 318 general rather than specNific references to African customary practices. The few writings available onU African customary law did not deeply research into rules of inheritance pracNtices among Yoruba. The family Awas central and strategic to the relevance and status of the individual within DAfrican culture in general and Yoruba in particular. Today, modernity is 319 weaAkening the links within the family system, to the extent that emphasis is now on IBindividuality as against the corporate existence of the family. For instance, the family or lineage system which is sustained by the law of intestate succession is almost withering and may die if the law is changed so that the self-acquired property of deceased members no longer go to enrich the corporate family. The way things are, 317 Brautigam. C. A., in Benedek et al (2002) 16 318 Lloyd, P. C., 1959a. ―Some Notes on the Yoruba Rules of Succession and on ‗Family Property‘‖ In Journal of African Law Vol. 111, No 1 Spring, and, Lloyd, P. C., 1959b. ―Family Property Among the Yoruba‖ In Journal of African Law Vol. 111, No 2 Summer. 319 Op. cit. Nwogugu @ pg 429 143 the family system may still exist but only in principle, as it may not be open to individuals to still recognise its existence and find solace within the kin groups. It may be impossible for a family to gather for the purpose of inheritance devolution, rather, a price value of the net estate may be found, and the property will be sold off and the proceed shared. Children of the same parents may not need to see each other, for the purpose of family meeting not to talk of inheritance devolution, instead an Estate valuer or a Lawyer may be commissioned to sell off the property and share the proceed in an agreed ratio, after which everyone goes their individual ways. ThYis is almost becoming the order, considering the number of unresolved cRases on inheritance in various courts. And the migrant nature of individuals oAwning to the international scope of their professional status and engagementsR, or even where people now hold multiple citizenships. IB In Nigeria, as in many other African countries, wYome n L are said to be suffering inequalities in the socio-cultural and legal fields (ATbdullahi: 2002). This should not be so, as there exist provisions in several laws thatI portend to guarantee equality of all, irrespective of sex. Many constitutions of thSe world envisage equality of all citizens and it is enshrined in their statutes. SevReral African countries, including Nigeria, are parties to international conventioVns Eand instruments that provide for equal enjoyment of human rights by men and wIomen. This ought to be maintained. Yoruba customs and traditions promote eqNuity and equality in its customary inheritance practices in Southwestern Niger iaU through insulation of the devolution modes by structures in myths, folkloresN, oath-taking, historical experiences and divination. It would have all been tales oAf despair and disenchantment if these were not available. The creDation of a Ministry of Women‘s Affairs at both the Federal and States levels of BgovAernance in Nigeria (after serious agitation), without a corresponding Ministry of IMen‘s Affairs, which by every calculation, must have bridged the perceived gender inequality in the socio-economic life of Nigerian women is a welcome development. Women are now prominent in the Legal, Medical, Engineering, Clergy and Journalism professions as well as in governance: a woman had once been the Speaker 320 of the House of Representative in Nigeria , while other women were in other 320 Mrs Patricia Olubunmi Etteh was a former Deputy Chief Whip before she became the Speaker of the House of Representatives in Nigeria. 144 strategic positions in Banking, Government parastatals, Ministers of the Federal Republic of Nigeria, Ambassadors, members of States and Federal Houses of Parliament, and so on. Conversely, the study observed the weakness of the practice of Yoruba customary practice in dealing with the devolution of the estate of a deceased, in that, where there are more than one wife, with each having varying numbers of children, the customary devolution does not take cognisance of this. Neither is the number of children borne by each of the wives, nor the number of years each wife had spent in the marYriage considered in devolution. It is also of general knowledge that, there is likelRy to be a ‗black sheep‘ in every home, which the customary devolution modes do Anot take care of. The purpose of devolution of inheritance is not to squanIdBer th Re estate, but to provide for the comfort and enjoyment of the survivorLs, yet Yoruba customary devolution practices neither provide for the ‗black shYeep‘ nor provide for long years of marriage. Unfortunately, the above appears toT be one of the weaknesses of this system of estate devolution, which is an indicaItion that, there is the need to further develop customary law through vigorous resSearch that would reflect the challenges of today‘s world. R There is no gain-saying in thVe faEI cts, as found out by this study, that, Yoruba customary inheritance praNctice is both alive and well in Southwestern Nigeria; its existence and essenceU are firmly rooted in the rule of conduct, obligatory on those subject to this custom of immemorial antiquity, certain and reasonable, obligatory yet 321 not repugnant tNo the average mind within the cultural context . It has been so accepted, byA the people, that many families have no reservations in accepting the applicatDion of Yoruba customary mode of inheritance in the sharing of their estate wheAn they eventually die. The reason for this has been found to lie in: a) recognition IBof the fairness by which customary devolution of inheritance is implemented, b) the willingness of the people to identify with the customs and traditions of their ancestry, and c) its recognition as a bona fide way of avoiding or, at least, minimising acrimony among the survivors to the estate of the deceased which English testamentary mode does not promise as there are contestations and many ligations in courts on testamentary devolution made through will. 321 Adewale, A. A., 2013. ―Future of Customary Inheritance Practices Among the Yoruba‖ In African Notes, vol. 37 no. 3 2013 @ p. 71 145 Even the declarations of the dead among the Yoruba, are not easily departed from. Instead, they are executed out of respect for him in fear of his anger and spiritual vengeance from the grave. For this reason, as long as the declarations had been made by him, whether written or oral, they would be accepted by all and no quarrel or disagreement will manifest, except where the cb7 thought otherwise, and after divination, if ifq re-directs, effect will then be given to the direction of ifq. These options are beside other possibilities or devices of property disposition such as settlement inter-vivos; nomination; donatio mortis causa, and deed of gift byY the owner. R Our customary law requires for its growth and adaptability not a rigRid apAproach but a 'liberal and humane interpretation' in as much as such IiBnterpretation is not inconsistent with existing community values and expectations. It would be sad and regrettable if the ascertainment and application of our cLustomary law should fall under the canopy of analytical positivism. Ajayi T(19Y55) had stressed the need for a flexible and sociological approach to the ascertaIinment and application of customary 322 law; and today that proposition is valid . STimes are changing, legal practitioners, judges, law officers, and parliaments arRe now seeing the need for cooperation in the bid to develop indigenous legal VinstEitutions, coupled with the drive of the Institute of Advanced Legal Studies to eIxpand the frontiers of customary law for the various level of courts to have Nenough materials in the dispensation of justice at their disposal, because w e Ucannot now blame the present low level of the development of our customary Nlaw on our colonial masters. Nigeria became independent of the colonialist fAifty-four years ago. The blame should go to the practitioners at the Bar and on Dthe Bench who still regard customary laws as less prestigious and primitive. B AI 5.3 Recommendations Existing disconnect between the realities in African customary law and practice makes appropriate intervention of Africans scholars, legal practitioners (in the field of African law) and traditional institutions more imperative today for a work aimed at 322 Ajayi, F. A., The Future of Customary Law in Africa - Symposium (1955), p.42 at p. 68. 146 raising the state and standard of customary law to judicial relevance, applicability and acceptability that will influence equitable access to inheritance irrespective of gender. There is also the need for an overview of domestic and international regime of family law which has led to the conclusion that giant strides have been taken in establishing legal and regulatory platforms for supplanting discrimination in inheritance issues with a view to conducting intensive and well-documented research into realities of equity and equality of rights in inheritance practices. Codification and unification of customary laws with some values of the receYived English law, in its various particulars, especially in the area of family law iRn general and the law of inheritance in particular, for the sole aim of eliminatRing tAhe perceived discrimination against women, particularly in respect of their civil, cultural and legal 323 rights to engender equality of legal and social statuLs I Bis imperative. This recommendation is supported by Emeritus Professor D. A. Ijalaye‘s view, that both customary devolution systems of 8d7 igi and or7 0 Yjor7, may be considered unjust as argued by him at pages 37-38 of his work titlIeTd ―Justice As Administered By The Nigerian Courts‖ being Justice Idigbe MemSorial Lecture, Series Five, delivered by th him on 6 February, 1992 at the UniversRity of Benin, Nigeria. E In an effort to stimulate natiIonVal pride and self-consciousness, it is necessary for Nigeria‘s government to lNay more emphasis on things that were considered valuable in the past, such as tUhe traditional African institution and values expressed in our customary legal syst em. The need to break away from the overpowering influence of introduced EuroNpean institutionalised system is necessary. The need for development of a legal fraAmework which will be all inclusive cannot be over emphasised. OneA esDsential step required for the development of customary law today is the Bdevelopment of judicial personnel, trained in the existing practice of the courts, but I with special training in customary law, this will produce a more professionalised bench that would make customary law explicit enough, so that its underlying principles may be applied systematically to new circumstances as they show up. The need to specially train manpower to develop rules of customary law now is apt and the importance of encouraging both the practice and the development of Yoruba 323 Ezeilo, J., 2002 Law and Practices Relating to Women‟s Rights in Nigeria Enugu: Haven publishers p.21. 147 customary law, especially as regards inheritance, so as to make it prominent for those who do not know of it to know, and those who may wish to be guided by it, to be so guided is now. Dualism is a part of our legal system, but integration of the courts with creation of a chain of appeal and allowing a common practice and procedure will bring about unification, though it may not be total. If total unification is eventually attained, the exemption enjoyed by non-Africans from obligations imposed by customary law will no more be there. A proof of non-African for an act committed will no lonRger aYvail non-Africans to escape justice. A There is a need for constitutional guarantee for survival of custRomary laws, the sublime pledge of the constitution -―promoting the welfare IoBf all persons in our country on the principle of freedom, equality and justice ‖-L should be translated into reality for the legitimacy of the grund norm in equitabYle distribution of the estate of a deceased through proper implementation becausTe a k87 fi 2r= gba [m[ l-w- 4k6r9 (a palm nut seed is not easy to crack)S. I Both Statutory and customary marriagesR should be given equal treatments since both marriages are regarded valid unVderE the law, more so, when the Constitution of the Federal Republic of NigeriaI (1999), frowns at discrimination on all grounds. Consequently, governmenNt is expected to adopt appropriate legislation and actions 324 aimed at modifying dUiscriminatory laws in the land, especially discrimination in favour of the EnNglish legal system against customary laws. CustomDary Alaw ought to be assessed in its proper context in today‘s globalised but plurAal world. Within the Nigerian legal system, the colonially imposed validity tests IBapplicable to customary law should be repealed, especially now that the constitution includes a comprehensive bill of rights. The current court system should also be reorganised so that the courts vested with the jurisdiction to administer English law are different from the ones which will administer customary law. These exclusive jurisdictions will solve some of the conflicts and procedural incongruities in the administration of law in Nigeria. Consequent upon Nigeria being a signatory to many international treaties, she should keep to her obligations as a state party and 324 Articles 29(f) and 16 of CEDAW 148 deliberately formulate policies such as those that are aimed at giving recognition to property jointly owned by couples during marriage, (Adamolekun: 1995), so that the widow is not made to suffer unduly even over a property she jointly laboured for with her deceased husband. There is need to work towards raising the standard of those customs that are just and equitable but do not have the force of law, so that they can become binding and enforceable, African scholars and legal practitioners should aim at bringing such customs to judicial relevance and applicability in the twenty-first century. In facYt, the realities of today will make such timely interventions more imperativeR. If the modernisation, unification, codification and customisation of the AfrRicanA legal system are allowed, then customary law would mature through judicial pronouncements and law reporting. The likelihood that in the long run, there mLighItB be consensus on the applicability of some customary laws in many parts o f the country may not be farfetched. And as soon as the acceptable customaTry lYaws are found and harnessed by the superior courts, the judicial parlance of Ithe country would then begin to experience the dawn of the development of itSs own ‗common law.‘ One major setback that may be envisaRged is the absence of Customary Court of 325 E Appeal in some states . If aIppVeal from customary court goes to High Courts, the customary law in those states would again be subject to the Evidence Act which had hindered their growthU in tNhe past. It is hoped that states that do not have Customary Courts of Appeal w ould begin to think of doing so now. The country‘s legal system recognises the pNrinciple of stare decisis by which precedents are authoritative and binding, theA best for the customary law is to have precedents of customary law judgmeDnts given by judicial experts in customary law and not the other way round. A IBIn the light of contemporary developments, which tend towards hybridising customary laws and compatible foreign values, to stimulate equality of rights of all survivors to an estate, irrespective of sex or age, codification, unification, customisation and harmonisation of customary laws will produce an alter native certainty in formulating, applying, and implementing the law that will allow the deceased to have the eternal rest, so that in the end, an independent legal framework 325 Op. cit. Olubor, J. O. 149 will modify and integrate the cultural traditions into the Europeanised African legal 326 system, if it is impossible to allow customary courts (Customary Court of Appeal inclusive) to have exclusive jurisdiction over all customary matters. Moreover, the trend of enlightenment is moving towards a more participatory system which a combination of both the 8d7 igi and or7 0 jor7 modes will promote: a combination which this study refers to as alter native (meaning, to improve the native way of inheritance devolution) model to 8d7 igi and or7 0 jor7 which could be achieved through hybridisation of both modes with some good elements ofY the received English law. Anything different from this may continue to mRove our inheritance practices two feet forward, two feet backward and we RwouAld remain on the same spot at the end of the day. 327 The need to advance jurisprudence for customary law in INBigeria, is now, as customary norms are not simplistic; rather, they hYave p Lhilosophical significance behind them, and this is lost when customary issuTes are considered in isolation of the thrust of the custom and tradition upon which theIir reliance had been. For example, to strike down a rule of African customary laSw in a judicial decision for not aligning with the English law principles is likRe dismissing an African institution without examining its essential purpose aVnd cEontent. I If the alter native model Nis hereby adopted, it will provide a leeway for equity and equality. Though hu mUan appetite is insatiable, it is my submission and hope that this will reduce tensNion and litigation associated with customary inheritance issues. 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U AN BA D I 157 APPENDIX I Field Interview Tables Table 1: Summary of field interviews State Traditional Family Courts and No. of No. of Total no. of Rulers & heads others/dependents Widows Children people Key interviewed Informants Ekiti 4 2 4 7 19 36 Y Ogun 4 2 4 6 17 33 R Ondo 4 2 5 6 21 A38 Osun 4 2 4 8 29 R 47 Oyo 4 2 5 5 LI22B 38 20 10 22 32Y 108 192 (Source: Author‘s compilation from fieldwork) IT Table 2 Title 8d7 igi or7 E0 jR S or7 Indifference % I%V % Traditional Rulers 10U0 N - - Key Informants N 90 10 - Widows A 71 18.75 9.38 ChiAldreDn 49.03 50 .97 IBOthers 30 40 30 (Source: Author‘s compilation from fieldwork) 158 Table 3 State No. of Family Community No. of No. of Total no. of Traditional Heads Leaders Widows Children people Rulers interviewed Ekiti 2 2 2 7 19 32 Ogun 2 2 2 6 17 29 Ondo 2 2 2 6 . 33 Osun 2 2 2 8 29 43 Oyo 1 2 2 5 22 32 Y 9 10 10 32 108 A169R (Source: Author‘s compilation from fieldwork) BR I Table 4: Royal Fathers/Traditional Heads. L Town Years Level of Involvement Mode of Willingness Does the Executor of on the education in devoTlutioYn to allow mode devolution throne devolution practices SI survivors use engender the equity and acceptable equality? mode Omuo-Ekiti 22 Tertiary YeEs R 8d7 igi Yes Yes Head of the family/ IV traditional head (where N there is U dispute) Ago – Iwoye 5 Tertiary Yes 8d7 igi Yes Yes Head of the Ijebu, Ogun family state Idepe, Okiti – 1N0 Tertiary Yes 8d7 igi Yes Yes The family Pupa, Ondo A with State D variation A similar to Benin mode IBImesi Ile 7 Tertiary No 8d7 igi Yes Yes The family Ijesa, Osun State Ogbomoso, 39 Tertiary Yes 8d7 igi Yes Yes The family Oyo State (Source: Author‘s compilation from fieldwork) 159 Table 5: Key Informants Town Age Level of Involvement Mode of Prefer Does the Executor of education in devolution mode mode devolution devolution participate engender practices equity and equality? Omuo- Adult Tertiary Yes 8d7 igi, 8d7 Yes Head of the Ekiti 1 or7 0 igi family/ jor7 & traditional Yhead (where Will there is R dispute) 2 Adult Informal Yes 8d7 igi & 8d7 NeuAtral Head of the or7 0 igi family/ jor7 R traditional IB head (where there is L dispute) Ago- Adult Tertiary Yes 8d7 igi & 8d7 Yes Head of the Iwoye, or7 0 Y igi family Ogun jorI7T (irrespective State 1 S of sex) 2 Adult SSCE Yes 8d7 igi & or7 0 Yes Head of the R or7 0 jor7 family E jor7 (irrespective of sex) Idepe Adult Tertiary IYVes 8d7 igi & 8d7 Yes Family Okiti – or7 0 igi Pupa, N jor7 Ondo State 1 U 2 AdulNt Tertiary Yes 8d7 igi & 8d7 Yes Family head A or7 0 igi jor7 Imesi –DAdult Tertiary Yes 8d7 igi & 8d7 Yes Family IleA Ijesa, or7 0 igi IBOsun jor7 State 1 2 Adult Tertiary Yes 8d7 igi & 8d7 Yes Family head or7 0 igi jor7 Ogbomo Adult Tertiary Yes 8d7 igi & 8d7 Yes Family head so, Oyo or7 0 igi State 1 jor7 2 Adult Tertiary Yes 8d7 igi & 8d7 Yes Family head or7 0 igi 160 jor7 (Source: Author‘s compilation from fieldwork) Table 6: Widows State Town Families No of Position No. of 8d7 igi or7 0 jor7 Regrets Any suggestion/ inter widows among children equitable? equitable? Comment viewed wives M F Yes No Yes No st Ekiti Omuo- Family 3 1 3 1 - -  No Widows to Ekiti 1 wife  be cared for nd 2 1 1  - -  YYes Yes wife rd 3 2 -  - -  R No No wife st Family 2 1 - 4  - - A No Though the 2 wife R sharing LI B mode was accepted, the Y properties were not IT shared nd 2 1 1  - -  Yes  wife st Family 3 1 - 4 S - -  No The 3 wife R deceased E had given instruction IV on how the properties N should be shared nd U2 1 -  -  No  wife rd N 3 wife - - - - - - - Dead before devolution st Ogun Ago- FamilAy 3 1 - 3 -  - Yes 8d7 igi Iwoye 1 wife was AD enforced nd 2 - 3 -  - Yes  wife rd I B 3 1 2  - -  No - wife st Ago- Family 3 1 3 1 - - No The Iwoye 2 wife   deceased already wrote customary Will and also had dead bed disposition 161 nd 2 2 -  - -  No  wife rd 3 2 -  - -  No  wife Ondo stOkiti Family 2 1 2 3  - -  No She Pupa 1 wife complained about the position took on the devolution. Mothers Y were not R allowed to attend. nd 2 1 2 -  - A Yes She wife R regretted marrying in that home st Family 4 1 2 3 - - IB- - - Deceased 2 wife L at time of Y interview nd 2 2 1 T - -  No No wife I involvement in the S devolution rd 3 - 2  - -  No  wife th 4 - E3R  - -  No Good and wife V equitable stOsun Imesi- Family 4 1 I 2 1 -  - Yes The Ile 1 wife devolution mode was UN unfair nd 2 1 2 -  - Yes  N wife rd 3 4 2  - -  No - A wife th D 4 - 1  - -  Yes The wife devolution A mode was B unfair I st Family 3 1 1 3 - - - - No In the quest 2 wife for harmony, the family properties were not shared but st the 1 wife was given preference. nd 2 2 1 - - - - No  wife 162 rd 3 wife 1 2 - - - - No She prefers 8d7 igi if the devolution were to be shared. st Family 3 2 1 wife 3 1 -  - Yes She expressed having suffered Y with the R deceased without A adequate compensat ion. nd 2 1 1  - - R  No Prefer wife IB monogamy stOyo Ogbomo Family 1 2 1 wife 2 - - L -  No The first so  wife Y arranged T the I marriage of the S second wife nd 2 2 2R  - -  No We are at wife E peace st Family 2 3 1 wife V4 3  - -  No or7 0 I jor7 was unacceptabl e nd U2 N 2 2  - -  No ‗we wife brought N nothing into the A world‘ rd 3 wife 2 3  - -  - Dead (SourceD: Author‘s compilation from fieldwork) BAI 163 Table 7: Analysis of children interviewed Table 7.1: Ekiti family 1 Sex Age Education No. No Accept Accept Comments among among 8d7 or7 0 mother‘s father‘s igi jor7 Y children children R M Adult Formal 1 1 No Yes M Adult Informal 2 3 Yes No A M Adult Informal 3 6 No YesR F Adult Informal 4 7 No BYes M Adult Informal 1 2 No LI Yes F Adult Informal 2 5 YNo Yes M Adult Informal 1 4 No Yes M Adult Formal 2 8 IT No Yes (Source: Author‘s compilation from fieldwork) *No of wives 3 S *No of children 8 * Column 5 represents a seniority arraRngement of both children and their st mothers with every no 1 represVentEing the 1 child of his/her mother. I Table 7.2: Ekiti family 2 Sex Age Ed ucUatio Nn No. No Accept Accept Comments among among 8d7 or7 0 N mother‘s father‘s igi jor7 A children children F DAdult Formal 1 1 No Yes F AAdult Formal 2 2 No Yes F Adult Formal 3 3 No Yes IBF Adult Formal 4 5 No Yes F Adult Formal 1 4 No Yes M Adult Formal 2 6 Yes No (Source: Author‘s compilation from fieldwork) *No of wives 2 *No of children 6 * Column 5 represents a seniority arrangement of both children and their st mothers with every no 1 representing the 1 child of his/her mother. 164 Table 7.3: Ekiti family 3 Sex Age Education No. among No among Accept Accept Comments mother‘s father‘s 8d7 igi or7 0 children children jor7 F Adult Informal 1 1 Yes No F Adult Formal 2 2 No Yes F Adult Formal 3 3 No Yes M Adult Formal 1 4 No Yes F Adult Formal 2 5 No Yes (Source: Author‘s compilation from fieldwork) *No of wives 3 Y *No of children 5 R * Column 5 represents a seniority arrangement of both children and their st mothers with every no 1 representing the 1 child of his/her mothRer. A IB Table 7.4: Ogun family 1 L Sex Age Education No. among No among Acce pt Accept Comments mother‘s father‘s T8Yd7 igi or7 0 children children jor7 F Adult Formal 1 1 SI No Yes All see 8d7 igi F Adult Formal 2 R2 No Yes as unfair F Adult Formal 3 VE6 No Yes and want a mode F Adult Formal N1 I 3 No Yes that will U provide F Adult Inform al 2 4 No Yes for both N children F Adult AFormal 3 5 No Yes and the widows M ADdult Formal 1 7 No Yes F AAdult Formal 2 8 No Yes BF Adult Formal 3 9 No Yes I (Source: Author‘s compilation from fieldwork) *No of wives 3 *No of children 9 * Column 5 represents a seniority arrangement of both children and their st mothers with every no 1 representing the 1 child of his/her mother. 165 Table 7.5: Ogun family 2 Sex Age Education No. No Accept Accept Comments among among 8d7 or7 0 mother‘s father‘s igi jor7 children children M Adult Formal 1 2 No Yes M Adult Formal 2 3 No Yes M Adult Formal 3 4 No Yes F Adult Formal 4 6 No Yes M Adult Formal 1 1 No Yes M Adult Formal 2 5 No Yes Y M Adult Formal 1 7 No Yes R M Adult Formal 2 8 No Yes A (Source: Author‘s compilation from fieldwork) R *No of wives 3 *No of children 8 IB * Column 5 represents a seniority arrangement of both children and their st mothers with every no 1 representing the 1 child of hi s/Lher mother. Table 7.6: Ondo family 1 Y Sex Age Education No. among No amoIngT Accept Accept Comments mother‘s fathSer‘s 8d7 or7 0 children M Adult Formal 1 ER children igi jor7 2 No Yes Not minding the position th F Adult Formal 2 IV 3 No Yes of the 7 child of the F Adult Formal N3 4 No Yes deceased who was the st M Adult Forma l U 4 6 No Yes 1 male child N of his mother F Adult Formal 5 1 No Yes He represented A his mother‘s F ADdult Formal 1 5 No Yes children at the sharing, as the M AAdult Formal 2 7 No Yes tradition here B is akin to Bini I F Minor Formal 3 8 No Yes customary tradition (Source: Author‘s compilation from fieldwork) *No of wives 2 *No of children 8 * Column 5 represents a seniority arrangement of both children and their st mothers with every no 1 representing the 1 child of his/her mother. Table 7.7: Ondo family 2 166 Sex Age Education No. among No among Accept Accept Comments mother‘s father‘s 8d7 igi or7 0 children children jor7 F Adult Formal 1 4 Yes No F Adult Formal 2 6 Yes No F Adult Formal 3 7 Yes No M Adult Formal 4 8 Yes No M Adult Formal 5 10 Yes No M Adult Formal 1 1 Yes No F Adult Formal 2 2 Yes No Y M Adult Formal 3 9 Yes No F Adult Formal 1 3 Yes No R F Adult Formal 2 5 Yes No A F Adult Formal 1 11 Yes No R F Adult Formal 2 12 Yes NBo F Adult Formal 3 13 Yes INo (Source: Author‘s compilation from fieldwork) L *No of wives 4 *No of children 13 Y * Column 5 represents a seniority arrangementT of both children and their st mothers with every no 1 representing the 1S chIild of his/her mother. VE R UN I AN D IB A 167 Table 7.8: Osun family 1 Sex Age Education No. among No Accept Accept Comments mother‘s among 8d7 or7 0 children father‘s igi jor7 children F Adult Formal 1 2 No Yes The children were M Adult Formal 2 3 No Yes indifferent to devolution F Adult Formal 3 4 No Yes they did not wRant sYharing to take place rd F Adult Formal 1 1 No YesR Abut for the 3 wife‘s IB insistence on F Adult Formal 2 6 No L Yes having something for Y the training M Adult Formal 3 8 IT No Yes of her children. F Adult Formal 1 5 S No Yes M Adult Formal 2 R9 No Yes The family E began with V or7 0 jor7 but M Adult Formal N3 I 10 No Yes later settled for 8d7 igi. M Adult Formal U4 11 No Yes F Adult FoNrma l 5 12 No Yes M Adult AFormal 6 13 No Yes F Adult Formal 1 7 No Yes (SourceD: Author‘s compilation from fieldwork) *NoA of wives 4 B*No of children 13 I * Column 5 represents a seniority arrangement of both children and their stmothers with every no 1 representing the 1 child of his/her mother. 168 Table 7.9: Osun family 2 Sex Age Education No. No Accept Accept Comments among among 8d7 or7 0 mother‘s father‘s igi jor7 children children M Adult Formal 1 1 Yes No The family lived as one united family F Adult Formal 2 4 Yes No with the children not biased ovYer who is the F Adult Formal 3 6 Yes No mother of wAho.R They Rresolved to share the estate F Adult Formal 4 7 Yes LNIoB for their mothers as Y they have made it in life M Adult Formal 1 2 ITYes No and felt, if it S was not shared the R properties will F Adult Formal 2 E3 Yes No be destroyed IV and the extended N family may M Adult Formal U3 8 Yes No take advantage of N their absence and deny their F Adult AFormal 1 5 Yes No mothers D access to the estate. F AAdult Formal 2 9 Yes No BM Adult Formal 3 10 Yes No I (Source: Author‘s compilation from fieldwork) *No of wives 3 *No of children 10 * Column 5 represents a seniority arrangement of both children and their st mothers with every no 1 representing the 1 child of his/her mother. 169 Table 7.10: Osun family 3 Sex Age Education No. No Accept Accept Comments among among 8d7 or7 0 mother‘s father‘s igi jor7 children children M Adult Informal 1 5 Yes No Though, they are F Adult Informal 2 6 Yes No indifferent to any F Adult Informal 1 1 Yes No mode adRopteYd, yet F Adult Formal 2 2 Yes No RAthey prefer ìdí-igi F Adult Formal 3 3 Yes No M Adult Formal 4 4 Yes IBNo (Source: Author‘s compilation from fieldwork) L *No of wives 2 *No of children 6 Y * Column 5 represents a seniority arrangement of both children and their st mothers with every no 1 representing the 1 chIiTld of his/her mother. RS Table 7.11: Oyo family 1 E Sex Age Education NIoV. No Accept Accept Comments Namong among 8d7 or7 0 mother‘s father‘s igi jor7 children children M Adult NInf or Umal 1 4 Yes No M Adult Formal 2 5 Yes No M AdulAt Formal 1 1 Yes No F DAdult Formal 2 2 Yes No F AAdult Formal 3 3 Yes No BM Adult Formal 4 6 No Yes I (Source: Author‘s compilation from fieldwork) *No of wives 2 *No of children 6 * Column 5 represents a seniority arrangement of both children and their st mothers with every no 1 representing the 1 child of his/her mother. 170 Table 7.12: Oyo family 2 Sex Age Education No. among No among Accept Accept Comments mother‘s father‘s 8d7 igi or7 0 children children jor7 M Adult Formal 1 1 Yes No M Adult Formal 2 2 Yes No F Adult Formal 3 3 Yes No M Adult Formal 4 8 Yes No M Adult Formal 5 9 Yes No M Adult Formal 6 10 Yes No F Adult Formal 7 11 Yes No F Adult Formal 1 4 Yes No Y F Adult Formal 2 5 Yes No A RF Adult Formal 3 7 Yes No F Adult Formal 4 12 Yes No F Adult Formal 1 6 Yes No R F Adult Formal 2 13 Yes NBo M Adult Formal 3 14 Yes INo M Adult Formal 4 15 Yes L No M Adult Formal 5 16 Yes No (Source: Author‘s compilation from fieldwork) Y *No of wives 3 T *No of children 16 I * Column 5 represents a seniority arrangeSment of both children and their st mothers with every no 1 representing Rthe 1 child of his/her mother. E One hundred percent (100%) oIf Vthe traditional rulers, 90% of key informants, 71% of the widows 49.3% of the children and 30% of the others interviewed supported 8d7 igi mode of devolution. MNeanwhile, 50% of children, 40% of the other survivors, 18.75% of widows, a nUd 10% of key informants supported the use of or7 0 jor7 mode of devolutioAn. N BA D I 171 APPENDIX II A. Field Interview Questions (Community Head/Oba) 1. Briefly introduce yourself? (name; place of birth; growing up, etc) 2. What is your status in this community? 3. Were you elected into the office and which year? 4. How vast is your domain? 5. How does this community share the inheritance of a deceased member? 6. Have you been involved in any inheritance sharing since you assumed offiYce? 7. What is your assessment of the mode of sharing? R 8. Would you say it was fair/unfair? A 9. Why did you see it as fair/unfair? (Yardstick for measurIinBg eq Ruity/inequality) 10. Would you prefer any other mode of sharing apart from the one used? 11. What is your ethnic background? (e.g. non-YoYruba ; Land if Yoruba, what subgroup?) 12. Will you want your survivors to use any oIthTer sharing mode for your estate and why? S 13. What is your occupation? R 14. Are you currently workinVg (eE.g. pay job, trading, etc) I U N AN BA D I 172 B. Field Interview Questions (Others) 1. Briefly introduce yourself? (name; place of birth; growing up, etc) 2. What is your status in this family? 3. (If a wife/offspring) what is your number amongst the wives/children of the deceased? 4. How many children have you? 5. Are all your children for the deceased? Y 6. (If yes) in what mode was the property of the deceased shared? R 7. What is your assessment of the mode of sharing? A 8. Would you say it was fair/unfair to you? R 9. Why did you see it as fair/unfair? (Yardstick for measurIinBg equity/inequality) 10. Would you prefer any other mode of sharing apart frLom the one used? 11. What is your ethnic background? (e.g. non-YoYruba ; and if Yoruba, what subgroup?) T 12. Did you grow up and married in this tSownI; or you grew up elsewhere and was brought to this town due to marriage? 13. What is your occupation? R 14. Are you currently workIinVg (e E.g. pay job, trading, etc) UN AN AD IB 173 APPENDIX III PICTURES Y RA R LI B SI TY R Picture 1: New PalEace in Omuo, Ekiti StateSource: Pix. tIakVen by the interviewer in 2012 UN DA N BAI Picture 2: Researcher interviewing the Olomuo of Omuo, Ekiti State Source: Pix. taken by the interviewer in 2012 174 Y RA R LIB Picture 3: Researcher with the Olomuo oTf Omuo, Ekiti State Source: Pix. taken by the intervieIwer Yin 2012 RS VE NI UN AD A IB Picture 4: Researcher with a family in Omuo, Ekiti State Source: Taken by the interviewer in 2012 175 AR Y BRI Picture 5: Researcher with 2 widows in Omuo , LEkiti State Source: Pix. taken by the intervieYwer in 2012 IT ER S IV UN AN AD IB Picture 6: Researcher after conducting an interview in Omuo, Ekiti State Source: Pix. taken by the interviewer in 2012 176 RYA Picture 7: Researcher after interviews and FGD with a family in OmuoR, Ekiti State Source: Pix. taken by the interviewer in 2012 LIB ITY S VE R UN I N DA PicAture 8: Researcher with Ayandelu of Odosinusi, Ago-Iwoye, Ogun State IB Source: Pix. taken by the interviewer in 2013 177 Y Picture 9: Researcher interviewing a widow (1st wife) and her son (an Oloritun) in Ago-Iwoye Source: Pix. taken by the interviewer in 2013 R RA LIB ITY S ER NI V Picture 10: Rese arUcher interviewing another widow (2nd wife of pix 9) in Ago-IwoyeSource: Pix. taken by the interviewer in 2013 N AD A IB 178 RYA Picture 11: Researcher interviewing another widow (3rd wife of pix 9 & 10) in Ago-Iwoye Source: Pix. taken by the interviewer in 2013I L B R ITY S VE R NI N U A ADPicture 12: Researcher conducting an interview in Ago-Iwoye, Ogun StateSource: Pix. taken by the interviewer in 2013 IB 179 RY RA IB Picture 13: Researcher with the Jegun of Idepe, Oki tipLupa, Ondo State Source: Pix. taken by the intervieweYr in 2013 IT ER S V UN I AN BA D I Picture 14: Researcher interviewing a widow (1st wife) in Okitipupa, Ondo State Source: Pix. taken by the interviewer in 2013 180 Y AR Picture 15: Researcher with a widow (2nd wife in pix 14) in OkitiRpupa, Ondo State Source: Pix. taken by the interviewer in 20I13L B ITY ER S NI V U AN PicAtureD 16: Researcher with (1st son of 2nd wife in pix 15) in Okitipupa, Ondo State IB Source: Pix. taken by the interviewer in 2013 181 Y Picture 17: Researcher after interviews and FGD with widows who agreeRd to be photographed in Okitipupa, Ondo State Source: Pix. taken by the interviewer in 2013 RA LI B ITY RS VE UN I AN BA D I Picture 18: Researcher after an interview with The Owa Ooye of Imesi-Ile, Osun State Source: Pix. taken by the interviewer in 2013 182 Y AR Picture 19: Researcher with a family after an interview in Owa Ooye’s Palace, ImResi-Ile, Osun State Source: Pix. taken by the interviewer in 2013 LI B ITY ER S NI V N U AD A IBPicture 20: Researcher after interviews with male survivors to an estate in Imesi-Ile, Osun StateSource: Pix. taken by the interviewer in 2013 183 Y Picture 21: Researcher after interviews in Imesi Ile, Osun State Source: Pix. taken by the interviewer in 2013 R BR A LI ITY ER S NI V U DA N Picture 22: Researcher with 2 widows in Imesi Ile, Osun State Source: Pix. taken by the interviewer in 2013 A B I 184 AR Y BRI Picture 23: Researcher with Soun of Ogbomoso, O yoL State Source: Pix. taken by the interviewer in 20Y13 IT RS VE NI N U DAA IB Picture 24: Researcher with survivors to an estate in Ogbomoso, Oyo State Source: Pix. taken by the interviewer in 2013 185 AR Y LIB R Picture 25: Researcher with a family in Ogbom oso, Oyo State. Source: Pix. taken by the interviewer in 2013 SI TY R IV E UN AN AD IB Picture 26: Researcher in an interview session with a widow in Ogbomoso, Oyo State Source: Pix. taken by the interviewer in 2013 186