CHAPTER ONE

INTRODUCTION

1.1 Background of the Study

Inheritance is defined as “hereditary succession to a Property, title, office, e.t.c. a continual right to an estate Invested in a person and his or her heirs”1.The meaning of succession is however defined as “the legal transmission of an estate, throne from one person to another, that to which a person succeed as heirs”, in other words Succession is the transmission of rights and obligations of a deceased person in respect of his estate2. From these definitions ,it can be said that in an ordinary sense that ,inheritance means the passage of a deceased possessions to his or her heirs, while succession is the transfer or passage of a deceased possessions to another person, not necessarily his or her heirs. Conclusively it can be said that there is little or no difference in the two words, therefore the two words will be used interchangeably in the course of this work.       

To inherit means to come into possession by transmission from past generations3 or to receive especially as a right. Inheritance in legal parlance therefore is the entry of a living person or living persons into possession of a dead person's property4. Over time inheritance has come to mean anything received from the estate of a person who has died, whether by the laws of descent5

One of the incidents of father-child rela- tionship in Nigeria is the right of the child to inherit the property of the father, on the death of the father. Where the deceased has more than a child, the children are entitled to inherit his property on his death. The sex of a child is immaterial, so that in inheritance, females have the right just as the males, to inherit in and partake of the estate of their late father.

The right of inheritance is also available to children born out of wedlock, but for that right to ensure, the paternity of such children must have been acknowledged by the intestate.

A critical review of the right of in- heritance of children born out of wedlock has shown that today, children who can prove that the intestate was their biological father can partake of the estate of such intestate. Interestingly, judicial authorities on proof of paternity in order to be entitled to inheritance have revealed that any minimal proof is sufficient. Additionally, establishing paternity is now statutory in Nigeria.

The objective of this work is to critically review these judicial authorities and the statutory provision. The relevance of this work is to show that in Nigeria, the right of a child born out of wedlock to inherit from the intestate of the deceased biological father ensures not only when the paternity of the child has been acknowledged by the deceased but on proof that the child was the biological child of the deceased.

This work analyses the supreme court judgment in Ukeje v Ukeje in which the apex court in Nigeria ruled that the Igbo customary law in the south east Nigeria that disentitles a woman from benefiting in his late father’s estate is not only repugnant to natural justice, equity and good conscience but discriminatory and contrary to S. 42(2) of the 1999 constitution and its implications for the protection of women’s rights in Nigeria. Although customary law and practice is a major source of Nigerian law, its patriarchal nature has remained in conflict with the women’s right to property in Igbo land and Nigeria in general. This is so, despite the constitutional provisions on non- discrimination, National policy on Gender Equality and Equity and the international human rights laws1.Nigeria has over two hundred and fifty (250) ethnic groups and a huge number of customary laws2. The distribution of a deceased estate under customary law is based on the customary doctrines of inheritance and succession of property anchored either paternal or maternal lines. When a deceased dies intestate, his personal customary governs the distribution of his property no matter where the property is situated or where the death happened3.This work aims at critically analyzing the problems generated as a result of discriminations on women’s rights to property inheritance under customary laws of the Igbo in Nigeria with emphasis with the victorious judgment in Ukeje v Ukeje and its effects on the rights of women to property in Nigeria. The work explores the legal and policy framework upon which the protection of women’s right is anchored. The nature of Igbo customary law in Nigeria, the progression of Ukeje’s case from High Court, Appeal Court to Supreme Court and the impact of the case on judicial protection of women’s right to property in Nigeria.

1.2  Statement of the Problem

Succession in Nigeria is simply divided into two main categories,namely testate succession and intestate succession, Testate succession can simply be defined as the distribution of the estate of a deceased in accordance with his or her will. The laws governing testate succession and Area where they are applicable in Nigeria are as follows Wills Act 1837 and wills Amendment Act 1852 applicable In Northern part and some parts of East; Wills Act 1958 applicable in former West and Midwest. Etc.Under intestate succession, the rules to apply to an intestate’s estate and applicable laws in various parts of the country .

It has been observed that there has short coming of these laws in the Nigeria judicial system, following this, the study sets to investigate the supreme court case of Ukeje vs Ukeje alongside the igbo customary law of succession

1.3 Purpose of the Study

The work explores the legal and policy framework upon which the protection of women’s right is anchored. The nature of Igbo customary law in Nigeria, the progression of Ukeje’s case from High Court, Appeal Court to Supreme Court and the impact of the case on judicial protection of women’s right to property in Nigeria.The specific objectives of this study are:

1.     To Determine The roles of customary law in laws of succession nigeria.

2.     To identify laws that discriminate against woman inheritance within the ibo customary law

3.     To critically analyze the celebrated Ukeje vs U  keje case

1.3 Significance of the Study

The relevance of this work is to show that in Nigeria, the right of a woman  to inherit from the intestate of the deceased biological father ensures not only when the paternity of the child has been acknowledged by the deceased  but on proof  that the child was the biological child of the deceased.

1.5 The Scope of the study

The study will cover the igbo part of Nigeria. The marriage of customary law throughout the study is seen from the point of view of the Yoruba, marrying Igbo, Efik or Hausa, etc., or vice versa. This work not only examines the concept of marriage, but takes a step forward in identifying the problems that affect customary marriage in Nigeria. It also highlights the effects of these problems as well as traces the future of customary marriage law in Nigeria.

1.6 Research Methodology

The methodology used in this study is the historical research method. It used primary and secondary data collection sources. Since succession is universally recognized as the basis of group life and as a requirement for human survival, primary sources of data collection would be drawn from oral interviews of respondents as a reliable means of understanding individual perception of the subject. The legal effects of customary succession in Nigeria have attracted the attention of a considerable body of literature.

This study would examine relatively recent publications in books, newspaper articles and unpublished theses relevant to the study data that would be collected, organized and analyzed critically.

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