LEGAL PLURALISM AND THE LAW OF INTESTATE SUCCESSION IN SOUTH-WEST NIGERIA
ABSTRACT
Legal pluralism is the co-existence of two or more laws, norms, values, and practices within one legal district that determine the decisions of courts in intestate succession. This has complicated the uncertainty that exists in intestate succession in Nigeria particularly among the Yorubas of South-West Nigeria. Intestate succession which under customary law governs issues of personal relation such as marriage and divorce, legitimacy and legitimation, validity of wills, adoption of children and succession but legal pluralism creates an atmosphere of legal confusion, whereas, there is expectation of a single codified law guiding intestate succession under customary law. This study examined the dilemma and complexity of legal pluralism as it affects intestate succession under customary law in South-West Nigeria.
The research adopted doctrinal methodology, historical and comparative approaches that examined theories, laws and decisions of both inferior and superior courts based on choice of law rules. Sources of data included statutes, subsidiary legislations, rules of customs obtained from case law, journals, books, Internet sources and law reports. The study was interpretative in nature and provided normative content evaluation of legal reasoning in case law on intestate succession.
Findings revealed that Nigeria has not adopted appropriate mechanisms to harmonize the multiplicity of intestate laws. It was found that there were two broad modes of inheritance under the Yoruba customary law, viz Idi-igi (per capita) and Ori-ojori (per stirpes). Furthermore, the rule of inheritance is not equitable particularly where Dawodu, the head of the family doubles as beneficiary and a trustee of the estate on behalf of other beneficiaries. On the contrary, Islamic law spells out the quantum of assets (ogun-inheritance) to be inherited without undue advantage to the beneficiaries. The study found that the complication emanated from the various choice of law rules contained in High Court law, Marriage Act, Administration of Estate law, Customary Court Law on one hand and decisions of courts on the other hand.
The study concluded that the lack of unification of intestate succession rules in Nigeria is largely responsible for the series of contradictory decisions of various levels of courts. The study recommended the reform of customary law in Yoruba land to correct existing inequalities, enlightment campaign through mass media on equity of apportionment as proposed in the distribution of intestate estate. The establishment of Law Reform Commission at the State and Federal levels is imperative to permit women to inherit their husband’s estates, while the judiciary should be proactive in implementing Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
Keywords: Pluralism, Legal, Intestate Succession, Estate, Conflict