The  aim  and  objective  of  this  work  is  to  help  draw  the  attention  of  the  general  public  to  the  recurrent  challenges  associated  with  the  distribution  of  the  estate  of  a  deceased  under  the  various  customary  law  in  Nigeria.

The  manner  in  which  the  distribution  of  such  property  is  affected  under  both  the  English  law  and  under  customary  law,  its  effects  and  injustice  experienced  by  the  children,  wives  and   families  in  the  course  of  allotment  of  such  property  and  considering.  Whether  the  deceased  spelt  out  the  way  he  wants  his  estate  to  be  distributed  or  not.  It  is  pertinent  however  to  not.  It  is  pertinent  however  to  note  that  often  times  the  issue  of  adhering  strictly  to  content  of  a  will  or  to  a  particular  mode  of  distribution  even  when  the  justice  of  the  case  requires  otherwise  has  led  to  an  endless  list  of  family  petitions  to  the  court  for  directions,



1.1 Introduction

In all Western systems of law, succession or inheritance (terms which is often used interchangeably) forms part of private law and is concerned with the principles which determine the distribution of a deceased’s estate after his or her death.1 In customary law, however, the terms “succession” and “inheritance” are ascribed distinctive meanings. The mere division of a deceased’s assets among his or her heirs would be regarded as inheritance in African customary law.2 Inheritance can either take place according to the provisions of a will, ie, testate inheritance – or “in accordance with the rules of the common law where no will exists, ie, intestate inheritance”.3 Succession on the other hand, is mainly concerned with succeeding to the “status of the deceased”,4 ie, assuming the role of the deceased or taking his position and obtaining authority over the people and property over which the deceased exercised authority.5 The customary law of succession therefore outlines the principles to be followed at the death of a deceased (ie, usually the family head).

1.1.1 Problem statement

Amongst all tribes in Africa, succession to status in African customary law is based on



Rautenbach C, Du Plessis W and Venter AM “Law of succession and inheritance” in Bekker JC, Rautenbach C and Goolam NMI Introduction to legal pluralism in South Africa (2006) 93. Rautenbach C, Mojela K, du Plessis W and Vorster LP “Law of succession and inheritance” in Bekker JC, Labuschange JMT and Vorster LP Introduction to legal pluralism in South Africa Part 1 Custom ary Law (2002) 109.

3 Ibid.

4 Maithufi IP “The effect of the 1996 Constitution on the custom ary law of succession and m arriage in South Africa: Som e observations” (1998) De Jure 288.

5 Bekker JC Seym our’s custom ary law in southern Africa (1989) 70.


the principle of primogeniture.6 According to that principle, the eldest or oldest son is the only person eligible to succeed the deceased.7 This means that women and younger siblings are excluded from succeeding to important positions of status purely on the basis of their gender or birth.8 This is not the case in Western law, as all persons are entitled to inherit the property of a deceased person irrespective of their gender or birth. The fact that women and younger children are still discriminated against in this day and age on the basis of an age old customary practice can no longer be tolerated. This is especially relevant in the context of the fact that it has become a current trend in most African states to adopt Constitutions which guarantee numerous fundamental and human rights, including such rights as the rights to culture and equality.

To this end, this study therefore generally considers the impact of Testate and intestate succession under Nigeria customary law on the rights of women in tribal communities in the countries of South Africa, Ghana and Swaziland. The basic objectives of the study are to: (a) determine the elements of both the customary and common laws of intestate succession applicable in each of the countries mentioned above; (b) to determine the role of the courts and other institutions in resolving disputes related to succession but more importantly; the ability of courts to initiate change to the existing rules of customary law affecting intestate succession; (c) an evaluation of the impact of the provisions of the Constitutions of each of the afore-mentioned countries on Testate and intestate succession under Nigeria customary law; and (d) an assessment of whether the laws currently in place are able to effectively eradicate discrimination in this contentious field of the law.

1.1.2 Demarcation of the field of investigation and the reasons


Succession is a complex field of study and may lend itself to numerous spheres of




Kerr AJ The custom ary law of im m ovable property and of succession (1990) 99. See also Sonti v Sonti 1929 NAC (C&O) 23 at 24.

Olivier NJJ, Bekker JC, Olivier NJJ (jnr) and Olivier W H Indigenous law (1995)148.

Bekker JC and De Kock PD “Adaptation of the custom ary law of succession to changing needs” (1992) Com parative International Law Journal of South Africa 368-369.


research. This study is however confined to Testate and intestate succession under Nigeria customary law in Nigeria. The countries of South Africa, Ghana and Swaziland also were chosen for this study because:

(a) all three countries were formally under British rule and administration, where the recognition and application of African customary law was virtually disregarded;

(b) English law had an impact on the legal development of all three countries, albeit that Roman-Dutch law is the dominant “western” law in Swaziland and South Africa;

(c) deep legal pluralism prevails in all; i.e. in all three countries, a multiplicity of legal systems are recognised and observed.9

(d) all three countries have relatively new Constitutions granting a wide variety of rights and the researcher wanted to investigate the interplay between rights at customary law (which are traditionally group orientated) and constitutional rights (which are individualistic by nature); and

(e) South Africa has made numerous changes to its laws relating to intestate succession, Swaziland is one of the last remaining monarchies in Africa, and Ghana’s succession laws are so dissimilar to both South Africa and Swaziland that the researcher regarded it as an interesting comparator. Ghana has also enacted or drafted in depth legislation pertaining to Testate and intestate succession under Nigeria customary law.

South Africa’s population is diverse and consists of a number of tribal groupings including for example, the Zulus, Xhosa’s, the Ndebele, the Tswana and the Venda.10 Ghana’s population is also heterogeneous and also consists of numerous tribal communities including the Akan (who comprise most of the population of Ghana), the Ashantis, Fantis, Gas, Ewes, Ga-Dangmes and Gonjas to name but a few.11 However, unlike South Africa and Ghana, the kingdom of Swaziland lacks any tribal

9 For a discussion of deep legal pluralism see Van Niekerk GJ “Legal pluralism ” in Bekker JC, Rautenbach C and Goolam NMI in Introduction to legal pluralism in South Africa (2006) 6.

10 See generally Van W arm elo NJ “The classification of cultural groups” in Ham m ond-Tooke W D The bantu-speaking peoples of southern Africa (1974) 56-84.

11 Bankas EK “Problem s of intestate succession and the conflict of laws in Ghana” (1992) International Lawyer 438.


differentiation. It is important to mention that in the course and scope of this study, Testate and intestate succession under Nigeria customary law will be explored in general terms in the countries under consideration and without any particular reference to any singular tribe or tribes as that would fall outside the capacity of the study and would be too extensive for the purposes of this study.

1.2 The legal framework

This study is conducted from a purely legal perspective. Before embarking on an investigation into the topic, it would be most valuable to firstly consider the sources of law in the countries under consideration in this study and secondly to define customary law and place it in the context of the South African, Ghanaian and Swazi legal systems.

1.2.1 Sources of law

The anthology of legal rules and principles governing Testate and intestate succession under Nigeria customary law can be found in the sources of law.12 Sources of law refer to where the law derives from and where it can be located. 13 In South Africa, the sources of law comprise the Constitution of the Republic of South Africa (Act 108) of 1996 (which is the supreme law of the land),14 legislation (ie, all laws enacted by an organ of state vested with the powers to do so), common law (ie, all law which is not statutory law and which is not customary law falls into this category), case law (which is derived from the judgments of courts, as courts are permitted to interpret, apply and hence make law) and customary law (which will be defined further below).

In Ghana, the sources of law include: the Constitution15 (which is also the supreme law of the land);16 enactments made by or under the authority of the Parliament established by the Constitution (or legislation); any Orders, Rules, Regulations made by any person

12 Squelch JM Private education in South Africa: The legal status and m anagem ent of private schools

(Unpublished LLD thesis Unisa) (1997) 7.

13 Ibid.

14 See section 2 of the Constitution of the Republic of South Africa, 1996.

15 The Constitution of the Republic of Ghana, 1992.

16 See article 1(2).


or authority under a power conferred by the Constitution (or subsidiary or subordinate legislation); the existing law or the written and unwritten laws of Ghana that existed immediately before the coming into force of the 1992 Constitution; and the common law (or the English common law), English doctrines of equity, and the rules of customary law (which will be defined further below).17

The law of Swaziland is derived from a number of sources including: the Constitution18 (which is the supreme law of the land);19 legislation; common law; judicial precedent (or case law); customary law (which will be defined further below); authoritative texts; and decrees.20

1.2.2 What is customary law?

In South Africa, customary law may be defined as: “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”.21 The application of customary law in South Africa is sanctioned by section 211(3) of the Constitution of the Republic of South Africa, (Act 108) of 1996 which provides that: “the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law”. Section 211(3) of the Constitution therefore has the effect of raising customary law to the same status as the common law;22 this was not the case in the past as customary law was often viewed as inferior to the common law and was always disregarded or ignored as a source of South African law.

In Ghana, customary law refers to “the rules of law which by custom are applicable to particular communities”.23 This means that customary law “is now a question of law to

17 Article 11 of the Constitution. See also Globalex at http://www.nyulawglobal.org/globalex/Ghana1 .htm 2-3 (accessed 10/02/2012).

18 The Constitution of the Kingdom of Swaziland Act 101 of 2005.

19 See section 2(1).

20 Globalex at http://www.nyulawglobal.org/globalex/Swaziland/htm 2 (accessed 09/02/2012).

21 Section 1 of the Recognition of Custom ary Marriages Act 120 of 1998.

22 Bennett TW “The conflict of laws” in Bekker JC, Rautenbach C and Goolam NMI Introduction to legal pluralism in South Africa (2006) 17.

23 Article 11(3) of the Constitution of the Republic of Ghana, 1992.


be determined by the courts”.24 According to sections 42 and 43 of the Ghana Chieftaincy Act 370 of 1971,25 the National House of Chiefs and/or a Regional House of Chiefs, are empowered to draft their own pronouncements of customary law for endorsement and promulgation as possible legislation by the President after consultation with the Chief Justice.26

In the kingdom of Swaziland, customary law may be described as:

⦁ the indigenous system of customary jurisprudence existing amongst the Swazi. It embraces all customary rules of conduct, whatever their source, which are recognised at the present time and can be enforced by them.27

The application of customary law in Swaziland finds its approval in section 252(2) of the Constitution of the Kingdom of Swaziland28 which provides that: “the principles of Swazi law and custom are recognized and adopted and shall be applied and enforced as part of the law of Swaziland.29

1.2.3 The general characteristics of customary law The unwritten nature of customary law

Originally, customary law was largely unwritten.30 Proceedings in the tribal courts (like the chiefs and headman’s courts)31 were conducted orally and the law was also transmitted verbally from one age group to the next.32 As a result thereof, the larger community possessed a basic knowledge of the law. The unwritten nature of the law

24 Globalex at http://www.nyulawglobal.org/globalex/Ghana1.htm 8 (accessed 10/02/2012).

25 As am ended by the Chieftaincy (Am endm ent) Decree, 1973 (NCRD 166), the Chieftaincy (Am endm ent) (no 2) Decree, 1973 (NCRD 226), the Chieftaincy (Am endm ent) Law, 1982 (PNDCL 25) and the Chieftaincy (Am endm ent) Law, 1993 (PNDCL 307).

26 Ibid.

27 W om en and Law in Southern Africa Research and Educational Trust Inheritance in Swaziland: Law and practice (1994) 21.

28 Act 101 of 2005.

29 See Globalex at http://www.nyulawglobal.org/globalex/Swaziland/htm 5 (accessed 09/02/2012).

30 Van Niekerk GJ The interaction of indigenous law and w estern law in South Africa: A historical and com parative perspective (Unpublished LLD thesis Unisa) (1995) 37.

31 See Bekker (1989) op cit 15-30.

32 Id 14-30.


also manifested itself in both Ghanaian customary law and Swazi law and custom.33 The customary nature of customary law

Customary law is often based on the customs of indigenous African people. The term “custom” refers to the traditions, practices, moral or ethical codes and the rules for living that are adhered to by members of the community.34 The customs of an indigenous community are well known by every member of the community as they are passed down from generation to generation by older members of the group; usually the older men.35 The customs of an indigenous community are generally adhered to for fear of ancestral punishment36 and to maintain social order. Customs commonly transform into customary law over time and especially when they are endorsed by the group’s belief in its “indispensability and desirability”,37 and “through recognition of the judicial decisions of the authority”.38 Therefore, the terms custom and customary law, although distinct, are interrelated. Customary law as an expression of community values

Because the community participates in the process of adjudication, this has resulted in the law giving expression to the established values or the universal ethical code of conduct of the community. This means that as the values in the community change over time, so does the law.39 Amongst the Swazi, variances between legal and moral values are unknown, and hence the evolutionary nature of Swazi customary law is demonstrated. This rule seems to be applicable to all tribal communities. The main focus of customary law is to initiate reconciliation between people and to guarantee the preservation of group harmony.40 African customary law, unlike Western law, is also

33 Marwick BA The Swazi (1966) 280.

34 See generally Gluckm an M O rder and rebellion in tribal Africa (1963) 198.

35 See Bekker (1989) op cit 11 and Marwick op cit 280.

36 Pospisil LJ Anthropology of law: A com parative theory (1971) 169-170.

37 Pospisil LJ The ethnology of law (1978) 63-64.

38 Pospisil (1971) op cit 345.

39 Anspach P The indigenous rights of personality with particular reference to the Swazi in the Kingdom of Swaziland (Unpublished LLD thesis Unisa) (2004) 71.

40 Ibid.


group or community orientated in the sense that rights and duties are shared41 and are not individually based, and land or property is owned communally. The role of magico-religious conceptions in African

customary law

Many African communities believe in the existence of the supernatural and their outlook on the subject may differ from tribe to tribe. In this study the researcher will limit her analysis to a description of only two of the most popular forms of supernatural phenomena viz the belief in ancestral spirits and sorcery. The belief in ancestral spirits

The observance of South African customary law, Ghanaian customary law and Swazi law and custom is rooted in the strong belief of ancestral spirits. The Swazis believe that the ancestors (emadloti) live in the spiritual world and that all living conventions, and thus also Swazi law and custom originate from and are protected by the ancestral spirits.42 The emadloti are affirmed by each family at every family event viz birth, death, illness and the construction of and re-location of homesteads.43

The ancestral spirits are interested in the welfare and prosperity of the kinship group44 and also ensure that the rules for living and Swazi law and custom are adhered to.45 A failure to comply with law and custom and the rules for living “may lead to punishment by the ancestral spirits because such disregard or deviation is regarded as disrespectful and neglectful of the ancestors”.46 In such cases, reconciliation or the appeasement of the ancestors is achieved by slaughtering an animal and by partaking in a communal

41 Van Niekerk (1995) op cit 37.

42 W helpton FPvR “Swazi law and custom (em asiko nem i esiswati): Law (lesiko) or custom (um ham bo)” (2004) Codicillus 30.

43 Kuper H The Swazi (1952) 43.

44 Ham m ond-Tooke W D The roots of Black South Africa (1993) 153.

45 Kuper op cit 42.

46 W helpton op cit 30-31.


meal.47 The belief in ancestral spirits is unique in Africa, in that it promotes mechanisms to keep people in line with acceptable standards of conduct, without the need for regulation by law.48 The belief in sorcery

Sorcery may be defined as: “the malicious use of magic to inflict harm upon other people or their property”.49 The sorcerer is usually a person and it is therefore beneficial to the community that the sorcerer be identified and banished from the tribal community. Various techniques such as divination are often employed to identify a sorcerer.50 Despite the influence of Westernisation, the belief in sorcery is still regarded as very serious by many tribal communities.51

1.2.4 Classification of customary law

In African societies, there is often a dichotomy between the actual practices or rules in which people engage or follow and the customary law as it is recorded in the law books of the country. It is therefore quite common practice to make a distinction between “living” and “official” customary law.52 “Living” customary law may be defined as: “the law that is actually observed by communities”.53 “Official” customary law may be defined as: “customary law that is contained in legislation and precedents”.54 This important distinction should be kept in mind throughout this study.

47 Ham m ond-Tooke W D “W orld view II: A system of action” in Ham m ond Tooke W D T he bantu-speaking peoples of Southern Africa (1974) 353.

48 W helpton op cit 31.

49 Schapera I The bantu-speaking tribes of South Africa: An ethnographical survey (1937) 211.

50 Gluckm an M Politics, law and ritual in tribal society (1965) 218.

51 Anspach op cit 74.

52 Bennett TW  Custom ary law in South Africa (2004) 29.

53 Lehnert W “The role of the courts in the conflict between African custom ary law and hum an rights” (2005) South African Journal on Hum an Rights 246. See also De Koker JY “African custom ary fam ily law in South Africa: A legacy of m any pasts” in Eekelaar J and Nhlapo T (eds) The changing fam ily

(1998) 322-323.

54 Ibid.


1.3 Research methodology

This study has been approached from a purely legal perspective and therefore involves legal research. In general, research may be defined as: “the systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions”.55 Legal research may be defined as: “finding all the law relevant to the legal question being researched, applying the law to the legal question and reaching an answer”.56 In this study, legal research is embarked on in the field of intestate succession in African customary law, with a view to discerning, describing and interpreting a vast array of legal facts and principles relating to the legal status of women.57 In this section, the researcher will highlight some of the research methods used in this study in order to collect the relevant data.

1.3.1 Literature review

In general, all research begins with a literature review. Comprehensive legal research requires a methodical inspection of a suitable amount of the substantial legal literature available.58 The purpose of a literature review is to broaden ones understanding of the problem at hand and also assists in placing the study in its proper historical context.59 The literature review also: “provides a background for the important variables or concepts in the study and describes the similarity and difference between your work and that of other authors and researchers in the field”.60 The literature review “contributes the first bricks to building a general understanding of the legal system, its tensions, and also the art and technique of legal research”.61 A thorough literature review widens the researcher’s knowledge on the subject matter under consideration and promotes the reception of novel data and information, which is essential for a

55 The O xford English Dictionary Online (2012) http://oxforddictionaries.com /definition/research?q= research.

56 Bast CM and Hawkins M Foundations of legal research and writing (2006) xxii.

57 Squelch op cit 12.

58 Id 13.

59 Ibid.

60 Roberts CM The dissertation journey: A practical and com prehensive guide to planning, writing, and defending your dissertation (2010) 25.

61 Lom io JO and Spang-Hanssen H Legal research m ethods in the US and Europe (2009) 135.


thesis.62  When compiling a literature review, numerous sources are usually consulted.

The following two types of sources were employed in this study.




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