Description

Summary

1. Introduction. 2. Meaning of Customary Law. 3. Succession under Customary Law in Africa. 4. Intestate Succession under Customary Law. 5. Succession under Customary Law in some selected African Countries. 6. Brief critique of Succession under Customary Law in Africa. 7. Conclusion.

Sommario

1. Introduzione. 2. Significato di Diritto consuetudinario. 3. La Successione nel Diritto consuetudinario africano. 4. La Successione legittima nel Diritto consuetudinario. 5. La Successione secondo il Diritto consuetudinario in alcuni Stati africani. 6. Breve critica sulla Successione nel Diritto consuetudinario africano. 7. Conclusione.

«It is firmly believed that African Customary Law, properly handled is capable of dynamic development through the judicial process. It certainly does not appear to be any less malleable than the English Common Law was in its formative era. It would however be pointless to leave in the hands of the Courts the task of developing Customary Law to meet changed social needs, if their approach would be dominated by the kind of argumentum ad verecundiam that would justify a decision in 1955 with no better reason than that there had been a precedent in the halcyon days of the 1890’s.»

1. Introducuction

Our task herein is quite simple. By the end of this paper we hope to have explained the basis of Succession under Customary Law, especially in precolonial Africa, the person(s) capable of Succession, justice in the Succession process, and most importantly, the interaction between the received English Law of Succession and the Customary Law of Succession. We would achieve the above objectives by an examination of case Law on the Customary Law of Succession, the views of learned commentators and the provisions of Statutes.

Africa is a Continent of many Nations and a huge landmass. Its people are different, one from another, as the English from the Romanians or the Italians from the Turkish people. It is not improbable, therefore, that a discussion on the Customary Law of its people would differ in marked terms, for as the people are different so are also their Laws. We shall, therefore, consider the subject from a Nigerian viewpoint with which we are most conversant and briefly refer to the Law and practice in other selected African Countries: Uganda, Ghana, and South Africa. In any case, considering the colonial past of its people the legal principles surrounding the applicability of the Customary Law of Succession will often be similar, and this is particularly true of African Countries formerly under British Rule.

2. Meaning of Cusustomary Law

Section 258(1) of the Nigerian Evidence Act 20112 defines custom as a rule which, in a particular District, has from long usage obtained the force of Law. Thus, not every usage is Law. However, all Customary Laws emerged from usage3. According to Bairamian, FJ in Owonyin v. Omotosho4, Customary Law is a mirror of accepted usage5. Therefore, it consists of Customs accepted by members of a community as binding among them6. Aptly stated, Customary Law is a body of Customs and traditions which regulate the various kinds of relationships between members of a particular community in their traditional settlements7. Not too long ago, the Nigerian Court of Appeal in Oladimeji v. Ogunleye8 noted that Customary Law is the organic Law 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 transactions of the community subject to it9.

2.1 The complexity of Customary Law

The diverse Countries of Africa aside, Nigeria on which this paper is primarily based, is a federal Republic with an area of 570.6 thousand square kilometres, and a population of about 170 million people with 250 or even more ethnic groups, each having its own distinctive Customary Law10. There are often, as will soon be seen in the Laws of Succession, significant differences between the Customary Laws of the varied ethnic groups11. As if this is not enough, the Customary Laws exist side by side with the general Law consisting of Statutes, received English Common Law, general principles of equity, and English Statutes of general application even though Customary Law must as of necessity give way to these other general Laws whenever its provisions are incompatible with the general Laws12.

Agbede posits that: «It is the religion which a person professes or his membership of a tribe that brings about the application of the religious or Customary Law respectively in relation to such a person.»13 The point, therefore, is that the Customary Law that applies to a person and his affairs in Nigeria is not necessarily the Customary Law applicable in the territory in which he is found, but that which attaches to him as a result of his origin or religion.

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