Land Succession Law in Nigeria: Navigating Intestate and Testate Inheritance Rules

When a Nigerian landowner dies, the question of who gets the land is rarely simple. The answer depends on at least four things: whether the deceased made a will, what type of marriage he contracted, which customary law governed his personal affairs, and where exactly the land is situated. Get any one of those factors wrong and the entire analysis changes. This is why succession to land rights in Nigeria produces more litigation than almost any other area of property law.

This note walks through the rules clearly, covering intestate succession under customary law across the major ethnic groups, testate succession and its limits, the ouster of customary rules by statutory marriage, and the constitutional challenge to discriminatory inheritance customs that is gradually reshaping how courts approach these questions.

The Three Legal Systems That Govern Succession in Nigeria

Succession to land in Nigeria does not operate under a single unified code. Three bodies of law apply depending on the circumstances of the deceased: customary law, Islamic law, and the received English law.

The received English law, operating through the Wills Act 1837, the Administration of Estates laws of the various states, and other statutes, is the most certain and predictable of the three. Its rules are fixed and written down. Customary law, by contrast, is not only varied and diverse but largely unsettled in many of its details, because it differs from one ethnic group to another and sometimes between lineage groups within the same ethnic community. Islamic law applies to Muslims and governs succession in line with Quranic principles of inheritance, which prescribe specific shares to defined categories of heirs.

For the purpose of land law, the most important and most frequently examined of these three systems is customary law, and within it the critical distinction is between dying with a will (testate) and dying without one (intestate).

Intestate Succession: The Basic Rules

Where a person who holds land under customary law dies without a will, the basic rule is that his self-acquired property devolves upon his children as family property. See Suberu v. Sunmonu (1957) 2 FSC 83. From that moment, the land ceases to be the personal property of the deceased and becomes family land, governed by all the rules on management, alienation, and partition that apply to family property generally.¹

Two conditions must be satisfied for this to occur. First, the landowner must have died without a will. Second, his estate must have been governed by customary law during his lifetime. Where both conditions are present, the transformation of personal land into family land happens automatically by operation of law.

Which Customary Law Applies? The Personal Law Rule

This is one of the most important and most tested points in Nigerian succession law, and it is one where students frequently make mistakes.

The applicable law of succession is the personal law of the deceased, not the customary law of the place where the property is situated. This means that where a Yoruba man dies leaving land in Kano, it is not Hausa customary law that governs how that land is distributed. It is Yoruba customary law, because that is the personal law the deceased was subject to during his lifetime.

The court in Tappa v. Kuka (1945) 18 NLR 5 settled this definitively. The deceased hailed from Nupe land but left property in Lagos. The court held that the applicable law was the customary law of Nupe, his personal law, not the customary law of Lagos where the property was found.²

The practical significance of this rule is enormous. Nigerian cities like Lagos, Abuja, Port Harcourt, and Kano are cosmopolitan, with residents from every ethnic group in the country. Without the personal law rule, the customary law of the city would govern the estates of every person who happened to die there, regardless of their ethnic origin. The personal law rule prevents that outcome.

However, a person can opt out of their personal customary law and adopt another during their lifetime. In Olowu v. Olowu (1985) 3 NWLR (Pt 13) 372, the deceased was a Yoruba man who formally acquired Benin citizenship status from the Oba of Benin and lived his life in Benin City. The Supreme Court held that he had changed his status and that at the time of his death, he was in the eyes of the law a Benin indigene. Benin customary law therefore governed the distribution of his estate.³

How Different Customary Laws Distribute Inherited Land

This is where the variation between ethnic groups becomes most significant, and where the discriminatory dimensions of customary succession law are most visible.

Yoruba Customary Law

Under Yoruba customary law, succession on intestacy is primarily among the children of the deceased. Relatives and collaterals such as brothers, uncles, and cousins are generally excluded. The property passes to the children as family property, with the Dawodu, the eldest surviving son, succeeding to the headship of the family.

The division of the estate among the branches follows two recognised modes. The first is distribution per stirpes, known in Yoruba as idi-igi, where the estate is divided according to the number of wives or branches of the family, each branch receiving an equal share regardless of how many children are in it. The second is distribution per capita, known as ori-ojori, where the estate is divided equally among all surviving children without regard to which branch they come from. Which mode applies depends on the facts and the evidence of custom adduced in each case.

In Lewis v. Bankole (1909) 1 NLR 81, the court set out the Yoruba rules: when the founder of a family dies, the eldest surviving son, called the Dawodu, succeeds to the headship with all that implies. On his death, the next eldest child of the founder, whether male or female, is the proper person to succeed.

Where the deceased left no children, the court in Adedoyin v. Simeon laid down rules based on evidence of Yoruba custom: if the deceased left brothers and sisters by the same mother, they succeed to the exclusion of other relations. Where there are no such siblings, both parents share equally. If only one parent survives, that parent takes everything. Brothers and sisters of the half-blood by the same father have no right of inheritance under this rule.⁴

Igbo Customary Law

Succession under Igbo customary law is strictly patrilineal and follows the principle of male primogeniture: the eldest son of the deceased takes over all the properties of the intestate father, becomes the head of the family, and holds the estate effectively on behalf of the other children. See Ngwo v. Onyejera (1964) 1 All NLR 352.

The family home belongs exclusively to the eldest son. Female members of the family have no right to inherit land under the traditional Igbo custom. A widow cannot inherit her husband’s property, though she may be allowed to remain in the family house for her lifetime.

This strict male primogeniture rule has been extensively criticised for its discriminatory effect on women and female children. In Mojekwu v. Mojekwu (1997) 7 NWLR (Pt 512) 283, the Court of Appeal, per Niki Tobi JCA (as he then was), held that the Nnewi custom of oli-ekpe, which excluded a female from inheriting her father’s property in favour of a distant male relative, was repugnant to natural justice, equity, and good conscience and was therefore unenforceable. That decision was a significant judicial intervention against discriminatory inheritance custom.⁵

Benin Customary Law

Under Benin customary law, the eldest surviving son who has performed all the prescribed burial rites inherits the property of the deceased. This is another application of the primogeniture principle, though the Benin version places significant emphasis on the performance of burial and funeral ceremonies as a precondition for the inheritance right to vest. The property passes subject to any gifts the deceased may have made to other children or outsiders during his lifetime. See Arase v. Arase (1981) 5 SC 33.

The Constitutional Challenge to Discriminatory Customary Succession

Here is the dimension of land succession law that most student notes fail to address, even though it is directly relevant to any examination question that asks students to “critically examine” or “discuss” customary succession rules.

Section 42(1) of the Constitution of the Federal Republic of Nigeria 1999 guarantees that no citizen shall be subjected to any disability or restriction to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject. Section 42(2) further provides that no citizen shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

The exclusion of female children from inheriting land under Igbo and some other customary laws sits in direct tension with both of these provisions. A woman who cannot inherit her father’s land is being subjected to a disability by reason of her sex, which is precisely what section 42(1) prohibits. A child born female who loses inheritance rights purely because of the circumstances of her birth is being treated contrary to section 42(2).

The courts have responded to this tension, though not always consistently. In Mojekwu v. Mojekwu (supra), the Court of Appeal held the discriminatory Nnewi custom unenforceable. The Supreme Court in Ukeje v. Ukeje (2014) 11 NWLR (Pt 1418) 384 went further, holding that under Igbo customary law a female child of a deceased is entitled to benefit from his estate. The court held that any Igbo customary law rule that disinherits a female child of the deceased is in conflict with section 42(1) of the Constitution and is void to the extent of that inconsistency.⁶

That decision is significant. It means that discriminatory customary succession rules are not merely bad policy: they are unconstitutional and void. A student who can cite Ukeje v. Ukeje and connect it to section 42 of the Constitution is demonstrating exactly the kind of analytical depth that earns distinction marks in succession questions.

Ouster of Customary Rules by Marriage Under the Marriage Act

One of the most practically important rules in Nigerian succession law is that the type of marriage contracted by the deceased can completely displace customary law succession rules. This is known as the ouster of customary law.

Section 36 of the Marriage Act, mirrored in Section 49(5) of the Administration of Estates Law of various states, provides that where a person subject to customary law contracts a valid marriage under the Marriage Act and dies intestate, the distribution of the estate shall be in accordance with English law and not customary law. The same applies to the estates of children born of such marriages.

The effect is significant. A Yoruba man who marries under the Marriage Act cannot have his estate distributed according to Yoruba customary law on intestacy. English law rules of distribution apply instead, regardless of his ethnic origin or the personal law he was otherwise subject to.

The leading case is Cole v. Cole (1898) 1 NLR 15, where the court held that a Christian marriage clothes the parties and their offspring with a status unknown to native law, and that English law regulates the intestacy. The rule has been consistently applied since.⁷

The practical consequences of this rule are far-reaching and are not always understood by families until a dispute arises. A man who marries under the Act may believe his estate will be shared according to the customs of his community. His family may share that belief. But the law says otherwise. Understanding this ouster rule is therefore not just an academic exercise.

Testate Succession: Making a Will to Control Distribution

Where the deceased made a valid will before death, the customary law rules of intestate succession are entirely excluded. The estate is distributed according to the directions in the will. This is testate succession.

For a will to be valid under Nigerian law, it must satisfy the requirements of the applicable Wills Law. Generally, the will must be in writing, signed by the testator, and signed in the presence of at least two witnesses who must also attest it in the testator’s presence.⁸ Where these requirements are not met, the gift in the will fails and the customary law rules on intestacy apply to that portion of the estate.

Every Nigerian of sound mind has the capacity to make a will in the English form and use it to alter or exclude the customary rules of succession. This includes the power to create family property through a will, by directing that the land be held as family property after the testator’s death.

However, this power is not unlimited. Section 3 of the Wills Law of the various states places a significant bar on devising property in which the testator has no disposable interest. In Oke v. Oke (1974) 3 SC 1, a testator attempted to devise a house built on land belonging to the family of his former wife. The Supreme Court held that the will was ineffective to pass property over which the testator had no right to dispose, because according to the applicable customary law, that property could not be disposed of even by the wife.⁹

A testator who is a Muslim also faces a specific constraint. In Adesuboka v. Yinusa (1971) 1 All NLR 225, a testator sought to disinherit his child through a will. The trial court held the will void for contradicting Muslim law of succession. On appeal, the Supreme Court upheld the will on the basis that the Wills Act 1837 applied and its provisions were incompatible with the customary or Islamic law restriction. The tension between testamentary freedom and religious succession rules therefore remains a live issue in Nigerian law.¹⁰

The Nuncupative Will: Oral Succession Under Customary Law

One aspect of succession that is frequently overlooked in student notes but appears in examinations is the nuncupative will or death-bed declaration. Under customary law, a dying person could orally declare how their property should be distributed, and that declaration was treated with significant respect and carried legal weight.

This form of oral testament was the original mode of customary succession planning, predating the introduction of written wills through British contact. The courts have recognised it as a valid mode of directing distribution, provided the declaration is clear and the evidence supporting it is reliable. In many Yoruba households, the dying father’s instructions about property remain the primary reference point for how the estate is shared, even where a written will also exists.

A Framework for Answering Succession Problem Questions

When you see a problem question on succession to land, work through it using this sequence.

First, identify whether the deceased made a valid will. If yes, the estate is distributed according to the will subject to the limits in section 3 of the Wills Law.

Second, if there is no will, identify what type of marriage the deceased contracted. If it was a Marriage Act marriage, English law of distribution applies and customary law is ousted.

Third, if customary law applies, identify the personal law of the deceased. That is the customary law that governs the distribution, not the law of where the property is situated.

Fourth, apply the rules of the relevant customary law, identifying who the beneficiaries are and in what shares.

Fifth, consider whether any of the customary rules being applied are discriminatory in a way that engages section 42 of the Constitution, particularly in questions involving female heirs or widows. If so, consider whether the rule is unconstitutional and void following Ukeje v. Ukeje.

Quick Reference Table

Key Cases for This Topic

Suberu v. Sunmonu (1957) 2 FSC 83 — basic rule: intestate estate of a customary law subject devolves on children as family property.

Tappa v. Kuka (1945) 18 NLR 5 — personal law of deceased governs succession, not law of place where property is situated.

Olowu v. Olowu (1985) 3 NWLR (Pt 13) 372 — a person can opt out of personal customary law by formally adopting another community’s law during their lifetime.

Lewis v. Bankole (1909) 1 NLR 81 — sets out the Yoruba rules of succession and the role of the Dawodu.

Ngwo v. Onyejera (1964) 1 All NLR 352 — Igbo primogeniture rule: eldest son takes over all properties of the intestate father.

Mojekwu v. Mojekwu (1997) 7 NWLR (Pt 512) 283 — discriminatory Nnewi custom excluding females from inheritance held repugnant to natural justice and unenforceable.

Ukeje v. Ukeje (2014) 11 NWLR (Pt 1418) 384 — female child of deceased Igbo man entitled to share in estate; discriminatory customary rule is void under section 42 of the Constitution.

Cole v. Cole (1898) 1 NLR 15 — Marriage Act marriage ousts customary law of succession; English law applies to the intestate estate.

Oke v. Oke (1974) 3 SC 1 — testator cannot devise property in which he has no disposable interest.

Adesuboka v. Yinusa (1971) 1 All NLR 225 — tension between testamentary freedom and Muslim succession rules; Wills Act prevailed.

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Footnotes

¹ T.O. Elias, Nigerian Land Law (4th ed.) p. 153; N. Tobi, Cases and Materials on Nigerian Land Law (Mabrochi Books, Lagos, 1992) p. 64.

² Tappa v. Kuka (1945) 18 NLR 5.

³ Olowu v. Olowu (1985) 3 NWLR (Pt 13) 372.

⁴ Adedoyin v. Simeon; see also P.C. Lloyd, Yoruba Land Law (Oxford University Press, London, 1962) p. 84.

⁵ Mojekwu v. Mojekwu (1997) 7 NWLR (Pt 512) 283 per Niki Tobi JCA; see also C. Nwankwo, ‘Discriminatory Property Inheritance Under Customary Law in Nigeria’ (2008) 10(2) International Journal of Not-for-Profit Law.

⁶ Ukeje v. Ukeje (2014) 11 NWLR (Pt 1418) 384; Constitution of the Federal Republic of Nigeria 1999, s 42(1)(2).

⁷ Cole v. Cole (1898) 1 NLR 15; Marriage Act, s 36; Administration of Estates Law, s 49(5).

⁸ Wills Act 1837; Wills Law of Oyo State 2000 and equivalent state laws.

⁹ Oke v. Oke (1974) 3 SC 1; Wills Law, s 3.

¹⁰ Adesuboka v. Yinusa (1971) 1 All NLR 225; Wills Act 1837, s 1.

For a full understanding of what family property is and how it is created upon intestacy, see our note on Family Property in Nigerian Customary Law: Ownership, Control, and Legal Status. For a broader understanding of how customary law operates as a source of Nigerian law, see our note on Sources of Law in Nigeria. For context on marriage law and its interaction with succession, see our note on Marriage and Divorce Law in Nigeria.