Every Nigerian citizen may freely own movable and immovable properties. This right, though enshrined and guaranteed in Nigeria's 1999 Constitution as amended,2 is however not sacrosanct3 and restrictions may be imposed by a 'general law'.4 Where such a general law is not expressly inconsistent with the provisions of the Constitution, it will be enforceable and applicable to restriction of property rights and interests. This legal position has been a source of conflict in the corpus of law in Nigeria. Litigation has traversed the trial courts up to the Supreme Court on the question of laws applicable to the disposition of assets, especially in the area of testamentary disposition. Beneficiaries of disposed assets continue to look to the Supreme Court for the determination of their due in many cases.
The laws regulating the disposition of assets in Nigeria can be broadly categorised into the following:
- customary law;
- received English law; and
- local legislation and statute.
Customary laws are the traditional laws of the various ethnic groups in Nigeria. These laws are accepted by those persons to whom they apply as their unwritten personal law.5 Received English law6 is also applicable in the determination of the right to dispose of assets in Nigeria. In addition, the various states in Nigeria have made laws that regulate private disposition of assets.
The effect of these confluence of laws is that the asset owner's capacity to freely dispose assets, either inter vivos or by testament, is often potentially subject to different laws that may conflict with the intentions of the asset owner or implicitly restrict his or her wishes. For instance, under the customary law of the Benin people of Southern Nigeria, the last living home of a Benin man, locally referred to as the Igiogbe, is exclusively the inheritance of the eldest male child of a deceased male testator,7 irrespective of any tenancies created on the property at common law or even a will written by the testator to the contrary.
Ultimately, the goal of disposition of assets is that the disposed assets are available for the enjoyment of the intended beneficiaries. This chapter considers not only the areas of potential and actual conflict between applicable laws regulating disposition of assets, but also suggests alternative means by which asset owners can achieve their intentions unhindered by the friction of laws.
The mechanism of trust, for example, allows the holder of assets to entrust those assets privately to a third party; for the benefit of the intended beneficiary. This third party could be a professional such as a legal adviser, a trust company or some other fiduciary of choice, assuming that appropriate due diligence has been carried out on such a party. Anecdotal evidence would seem to suggest that Nigerian citizens in diaspora remit assets valued at around US$25 billion annually (approximately 7 per cent of the GDP). These assets are largely unsecured and make their way into the country through informal channels, often leading to losses owing to duplicity or incompetence. The trust mechanism would safeguard and preserve those assets and could allow them to appreciate in value while accomplishing the bequest for which it is set up.
i Taxation of trusts in Nigeria
The applicable tax legislation for trusts is the Personal Income Tax Act (PITA) 2004.8 This section will, therefore, appraise the taxation of trusts from the perspective of the settlor, the trustee and the beneficiary.
Taxation of the settlor
Once the settlor relieves himself or herself of the property, he or she should not ordinarily suffer incidences of taxes relating to the same property. The trust will then be subject to tax. The stable income of a trust or settlement is the amount ascertained in the year preceding the year of assessment.9 Generally, corporate and individual trustees are liable to pay other taxes from income earned outside a trust. However, under certain circumstances, the trust for tax purposes will be treated in the same way for the settlor, who is then liable to pay tax;10 for instance, if the settlor retains control of the trust property or if the trust fails and the property reverts to him or her.
Taxation of the trustee
Under Nigerian law, there is a distinction between the income of a trustee in his or her personal capacity and income of the trust. While it is not expected that a trust would retain income for its benefit, a trustee is liable to tax on that sum or income held by it, after the deduction of expenses and beneficiaries' income. Thus, the income of a trust is taxed after payment and other expenses have been made to the beneficiaries, that is, any remainder of the income after deducting the amount payable to the beneficiaries is taxed in the hands of the trustees.11
Taxation of the beneficiary
An essential element of a trust is that there is a beneficiary entitled to the trust fund and the income therefrom. A beneficiary's entitlement or income, under a trust, is payable after the deduction of administrative expenses, and such income is taxable in the hands of the beneficiary. A beneficiary's income is taxable when it arises and is apportioned.
There is no specific statute governing private trust in Nigeria, hence reliance is placed on received English law. However, trust companies and banks are becoming more aware of the importance of having trust structures in place. Some people also prefer to set up trusts in offshore jurisdictions that have more favourable tax regimes, and to avoid local regulations coming into play.
ii Taxation of gifts
Nigerian law as regards gifting – relevant tax considerations
In Nigeria, the applicable law in respect of any capital gains12 made on a disposal of assets is the Capital Gains Tax (CGT) Act. Section 6 of the CGT Act provides that there is a disposal of assets where a capital sum is derived from a sale, lease, assignment, compulsory acquisition or any other disposition of assets. In other words, when there is capital movement from one person to another, such movement is subject to CGT. However, this does not apply to gifts received by will.
The law treats a death as occasioning a disposition of assets (to the personal representatives or other persons so entitled). However, this disposition does not attract CGT.13 Where a legatee14 acquires property or assets under the deceased's estate, the estate will not be deemed to have made a transaction or chargeable gain to attract CGT.
Under the CGT Act, all property situated within and outside Nigeria (where the gains are brought into Nigeria) are referred to as assets,15 for which CGT is applicable. CGT is not payable on stocks and shares.16 Computation of capital gains (i.e., the portion subject to tax, chargeable gain) 'is the difference between the disposal consideration (costs of disposal) and (i) the acquisition costs and (ii), any cost of improvement/enhancement'.17 CGT is currently 10 per cent.
With the disposal of real estate, there are other regulatory fees that could prove prohibitive. The consent of the Governor of the State is required for transfer of any interest in land situated in urban areas.18 Consent fees vary and may be as high as 30 per cent of the market value of the interest being conveyed. Stamp duty is payable on written agreements and other documents to either the federal or state government, depending on the parties to the transaction. In order to avoid high regulatory fees and taxes, property is often transferred such that the legal title remains static. In other words, the title of the vendor is left unaffected, even though the benefit has since moved to the purchaser. This creates its own challenges as the purchaser is unable to use the title of the property as he or she wishes. He or she is unable to raise credit, effectively de-commercialising the property.
i Applicable laws regulating succession in Nigeria
As alluded to, one of the distinguishing features of Nigeria's legal system is its plurality of laws.19 Customary law, statute and received English law continue to coexist in defined circumstances, and conflict between these laws remains a common phenomenon in Nigeria's legal system.20
In Oyewunmi v. Ogunesan21 Obaseki JSC defines custom as 'the organic or living law of the indigenous people of Nigeria, regulating their lives and transactions'. From time immemorial, autonomous indigenous groups in the entity later to be known as Nigeria had their respective customs that are accepted to date by indigenous people to regulate disposition of assets. Customs are largely unwritten and must, therefore, be proved by evidence.22
Notwithstanding the broad acceptance of customary law in succession practices in Nigeria, there are basic tests that such customs must pass before gaining acceptance as a valid custom. These tests are:
- the repugnancy test (a test requiring that a custom should not be contrary to principles of natural justice, doctrines of equity and good conscience);
- the public policy test (equated with public welfare, public good and public interest); and
- the incompatibility test (which connotes that a custom should not be incompatible with any existing law).23
The divergence in applicable customary laws that apply to disposition of property also presents some complexities. A notorious issue that the courts have been confronted with, for instance, is which customary law is applicable in the disposition of the assets of a person that dies intestate in a location outside where his or her personal customary law is practised.24 The courts appear now to be unanimous in their decisions that with regard to inheritance: it is the customary law of the deceased that is appropriate to deduce succession as a person carries his or her customary law with him, irrespective of the custom of his place of abode.25 However, this is not clear-cut.
The courts, however, seem to focus on one main method to ascertain personal customary law, and it is fact-based. Deciphering the personal law of a person that dies intestate, is usually a matter of fact that must be strictly proved by evidence.26 This is because a customary law will only be applicable to persons who accept themselves to be bound by it.27 Where the facts suggest and the inference drawn is that a person has adopted a law different from his or her custom of origin, the applicable law for the distribution of an intestate deceased's estate is his or her preferred personal law. The customary law of his or her place of residence28 is automatically displaced. Even under the Wills Law of various states of Nigeria, the application of customary law is expressly or presumably preserved. In a state like Edo State, the Wills Law is made subject to customary law, provided such custom is not repugnant to natural law and good conscience.
A testator who is subject to Islamic law (practised in Nigeria as a de facto subset of customary law) immediately before his or her death is bound by that law in the administration of his or her estate. This is regardless of whether he or she expresses the will to be in line with the Wills Act,29 in which case he or she cannot dispose of more than one-third of the property to persons who are not heirs.
Received English law
Nigeria inherited some laws by virtue of its colonial heritage.30 Statutes that were in force in England before 1 January 1900 became applicable to all parts of Nigeria automatically insofar as there are no local enactments made in respect of that subject. Principles of common Law and equity also continue to coexist with local statutes as part of the received English law.
The Wills Act of 1837, for instance, applies to states that have not promulgated their individual Wills Laws. The Act empowers a person to give directives as to what happens to his or her property after death, provided that the formal requirements of making a will are met (i.e., that the will is made in writing, and signed by the testator in the presence of at least two witnesses).31 When a person dies after issuing directives as to how his or her property should be distributed upon his or her death, (testate), the Wills Act or Law will apply and not the customary laws or the personal law of the deceased.
In states that are yet to enact any administration of estates laws, the Land Transfer Act 1897 applies. Subsection (1) of Section 2 of that Act provides that the personal representatives of a deceased person shall hold his or her real estate as trustees, subject to the powers, rights, duties and liabilities mentioned in the Act. Subsection (2) of that Section provides that all rules of law relating to the administration of personal estate and the powers, rights, duties and liabilities of personal representatives in respect of personal estate apply to real estate so far as the same are applicable as if that real estate were a chattel real vesting in the representatives.32 The sum total of these provisions are that the law will assume an automatic trust in favour of certain statutorily identified beneficiaries. This will often include the deceased's wife, children and other recognised dependents.
Under the Married Women's Property Act of 1882, married women have the right to own and transfer properties independent of their husbands. Prior to the passing of this Act in England, whatever wage, investment or inheritance was owned by a married woman automatically belonged to her husband. The Conveyancing Act of 188133 makes provision for the appointment of trustees, and gives the procedure to follow when a beneficiary is an infant.34
The Constitution of the Federal Republic of Nigeria 1999 (as amended) and other enactments by the National Assembly and State Houses of Assembly, form the body of laws known as local legislation. As stated previously, the Constitution guarantees the right of citizens to freely own and dispose of property.35
The Land Use Act36 is one of the principal local legislations that governs the disposal of property. It vests all lands in each state in the governor of the state, who in turn holds in trust and administers it for the use and common benefit of the citizens of the state.37 In administering this land, the governor can grant a right of occupancy to persons who have met certain requirements to hold the propriety right to land for a certain period.38 It is important to state, therefore, that the Act places some limitations with respect to the freehold right to land in Nigeria. While a person below the age of 21 cannot be granted the right to hold land in Nigeria except through a guardian or trustee,39 the Act appears to allow such a person the right to own land devolved on him or her by reason of succession upon the death of the holder.40
As regards the right of ownership of land, its disposition by way of trust, gift or inter vivos disposition is restricted. Under the Land Use Act, foreigners are not permitted to hold such a 'permanent' interest in land personally. It therefore follows that the said foreigner will not have the right to any succession of land in Nigeria. The Supreme Court reaffirmed this position in the case of Gerhard Huebner v. Aeronautical Industrial Engineering and Project Management Co Ltd.41
Some states have enacted laws to oversee the administration of the estate of a person who died intestate, where such a person had contracted marriage under the Act.42 In this circumstance, the law excludes the application of customary law in the administration of the deceased's estate.43 The law of administration of estate seeks to ensure that the property of the deceased person is managed and distributed even though he or she died without making a will. Succession and the right to administer the estate of the deceased are by order of ranking as provided in the Administration of Estate laws. An executor or administrator next in line of priority who wishes to administer the estate of the deceased must apply for letters of administration.
Under some states' Administration of Estate laws, the law protects the spouse and children of an intestate person who married under the Marriage Act.44 In Lagos State, for instance, the surviving spouse shall be entitled to two thirds of the real estate of the deceased who died intestate. This entitlement to two thirds of the estate makes such a spouse a major beneficiary and a qualified person to apply for letters of administration of the estate of the late spouse.45
Previously, children born out of wedlock did not share the same succession status as children born within a marriage. However, the Supreme Court, in the case of Salubi v. Nwariaku,46 has now accorded the same right of succession held by children of a marriage to those born outside of wedlock. The case of Cole v. Cole47 is the authority for the applicability of common law to statutory marriages contracted outside Nigeria. The rationale for this is clearly stated in Coker v. Coker,48 where it was decided that the intestate estate of a native who contracts a statutory marriage is removed from the operation of native law and succession and brought under common law.
Furthermore, where a person is married under the Act and dies intestate, the laws of succession, depending on the domicile of the deceased, come into play to the exclusion of any other laws. This also applies to marriages outside the Marriage Act.
ii The interference of custom in the disposition of assets in Nigeria – the Benin Customary Law in perspective
The interplay between customary law and statute in Nigerian jurisprudence relating to succession creates a situation where the freedom to dispose of real property may be inhibited.49 A deceased person's estate is thus split into two parts: the first being an indefeasible portion that is earmarked for a certain class of named beneficiaries,50 and that must be distributed in strict adherence to the Wills Law in force; and the second part is a discretionary portion that can be distributed among persons as the testator deems fit or in line with custom in a case of intestacy. As explained elsewhere in this chapter, an example of the inhibiting customary practice is the automatic disposition of the house where a deceased Benin man dies to his first son, which may be contrary to the wishes of the deceased.
It may be argued that the limitations created by custom, which have been given statutory acceptance by the Wills Law, do not appear to be in sync with Section 43 of the Constitution of the Federal Republic of Nigeria 1999 (as amended),51 which provides for the right to acquire and own immovable property anywhere in Nigeria. This is because the right to own immovable property should ordinarily be followed by the freedom to dispose of it at the discretion of the owner. The inability of an individual to dispose of his or her immovable property as he or she wishes seems to whittle down the potency of this constitutional provision.
Accordingly, there is now judicial acceptance, even in the face of the above constitutional provision, of the customary practice among the Benin speaking people of the South-South region of Nigeria, in present day Edo State where the eldest surviving son of a deceased Benin man inherits the dwelling house where his father lived and died (known as Igiogbe). The Igiogbe will usually contain the ancestral shrine including a staff of the family unit. It is a place where some customary activities are observed by the family, for example, the worshipping of the family deity, christening of new babies and traditional marriage ceremonies. It is well noted that the principal dwelling house of a Benin man only becomes an Igiogbe after his demise. In his leading judgment in the case of Lawal Osula v. Lawal Osula,52 Belgore JSC, in an attempt to justify the customary practice of Igiogbe, stated:
Binis, like some other tribes in Nigeria, have got some age long traditions and norms, some peculiar to them, others in common with the other races in other parts of the world that cannot easily be written off by mere legislation. To legislate to ban some of these native laws and customs, would lead to serious disorder that makes governance and obedience difficult. It is in the light of these that instead of entirely discarding a practice that has been tried and tested over centuries, legislation are carefully drafted to accommodate the laws and customs in question to regulate their practice.
It would appear that the major reason for the statutory acceptance of this customary practice is to avoid disorder and civil unrest. However, present realities reveal that the custom is fuelling greater unrest. This is principally because the philosophy behind the practice is no longer upheld. In its original form, there was a self-imposed responsibility by the first son towards his late father's dependents. This meant taking care of his younger siblings – those of his father's younger wife (the Benin people practised polygamy). The current practice of refusing to assume this responsibility perhaps accounts for the number of cases that have been instituted on this subject over the years; as well as the unreported family feuds that have arisen from disputation over the estate of deceased persons, particularly on issues relating to the Igiogbe.
What the Igiogbe practice seems to have done is to create a feeling of entitlement devoid of responsibility on the eldest surviving male child of a Benin man. This individual realises that his father's dwelling house will naturally pass to him upon his demise whether his father likes it or not. This limitation, while already questionable as a customary law practice when viewed against natural justice principles, now enjoys judicial protection despite the fact that some testators have attempted to opt out of this customary practice. This was the situation in the unreported case of M Aghariaha Aideyan and 3 Ors v. Mr Osayemwenre Aideyan and Anor.53 Honourable Justice EO Ahamiojie, relied on the earlier decision of the High Court in the case of Ugbo v. Asemota – Suit No. B/491/1979. In the latter case, the then Oba of Benin, His Royal Majesty, Akenzua II under cross examination provided an expert opinion on the custom:
If a man shares his property before his death, the family could reverse it on his death. If the man leaves many houses, they could be distributed among the children but if it is only one house, the house belongs to his eldest surviving son absolutely. As absolute owner he does what he likes with it in his lifetime. He may therefore sell or make a gift of the Igiogbe in his lifetime.
The judicial acceptance of this evidence by the Court appears to lay to rest the argument whether a testator can dispose of his dwelling house as he pleases in his lifetime. Judicial authority has focused on the asset; it fails to make any distinction as regards whether the successor eldest son assumes his father's responsibility. In essence, devolution of the Igiogbe does not attach any corresponding responsibility on the eldest son. The eldest son is not compelled to cater for his father's dependants, not even infant children. It is not certain that this was the original intention of a custom that revers family cohesion. There are a number of cases pending in the Supreme Court seeking to challenge the current practice. For now, however, the law seems to be settled.54
The only condition imposed on the eldest surviving son is the performance of his deceased father's second burial. After this ceremony has been concluded, the deceased's estate is then distributed. The eldest surviving son is then given the Igiogbe as well as the personal effects of the deceased, some of which may be distributable among the other children of the deceased. Until the performance of the deceased's second burial is carried out, the eldest surviving son holds the estate in trust for himself and on behalf his siblings.55
The Igiogbe customary practice would seem to be manifestly repugnant and contrary to natural justice, despite its sanction by the courts. From anecdotal evidence, what is typically seen is that once the deceased passes on, the eldest son, upon taking possession of the dwelling house, evicts his father's concubines and their children. In some cases, the property is sold outright, while in other instances, the mother of the heir apparent and his direct siblings are the only persons allowed to occupy the house. In other situations, the eldest son even evicts all prior inhabitants, even his own mother and siblings, from the house to pave way for the sale of the property.
With this trend, the most important reason for the practice is completely eroded. The intervention of the court seems to be the only path to bringing the Igiogbe customary practice in tandem with current realities. In the case of Moujekeme v. Ejikeme,56 an opportunity was afforded to the Court of Appeal Enugu division to pronounce on the Nrachi custom practised by the Nnewi people of South Eastern Nigeria, whereby the condition precedent for a female child to inherit her father's property was that she would remain unmarried in her lifetime in order to give birth to male children in her father's name. The Court held, per Fabiyi JCA, that:
the polity cannot in my view contain what Nrachi custom stands for. It is not neat. It is an antithesis to that which is wholesome and forward looking. It cannot, and should not, be allowed to rear its ugly head any longer. It should die the natural death and be buried. It should not be allowed to resurrect. The custom is perfidious and the petrifying odour smells to high heavens. It is an old time custom. And behold, the old order must change and become new.
Also, the Supreme Court has deprecated the Igbo culture that disentitles a female child from inheriting from her father's estate as a breach of the constitutional provision against discrimination in the case of Mrs Lois Chituru Ukeje & Anor v. Mrs Gladys Ada Ukeje (2014) LPELR-22724(SC). A similar sanitising approach might be visited by the courts on the Igiogbe practice when it is afforded the opportunity.
IV WEALTH STRUCTURING AND REGULATION
i Alternatives to statute and customary law in the disposition of assets in Nigeria
There can be no doubt that the current customary law systems and statutes have their limitations and pitfalls in the disposition of assets according to the wishes of the asset owner. There are, however, more innovative ways for an individual to dispose of his or her assets devoid of the confusion and limitations created by these legal frameworks. One of the ways of circumventing the hindrances created by the Wills Law, which has legitimised customary practices and has negatively impacted the right to property as required in a free society, is the creation of a trust.
Under a trust arrangement, a bona fide owner of assets also known as the settlor transfers his or her legal right in certain assets to another person known as a trustee to hold for the benefit of a third party called the beneficiary. A trust arises as a result of an intention to create it.57 Instead of giving the property directly to the beneficiaries, the settlor, under a trust, appoints a trustee, (who can either be a trusted family member, friend, adviser or professional firm; usually trust companies, banks, a firm of solicitors or accountants) to manage and safeguard the trust property and apply it in the manner directed under a trust deed,58 and also utilise it in such a way as to yield profit. A trust can either be living or testamentary. The latter only becomes effective upon the death of the settlor.
There are many benefits of setting up a trust. For instance, funds placed within a trust will fall outside the assets of an estate in the event of the death of the settlor. The trust property or object will therefore not be subject to the residuary estate of a person that dies testate, or under the administration of personal representatives of a person that dies intestate. Another benefit that comes with using trust as a vehicle for disposition of assets is that the law places stringent obligations on the trustees to act in good faith and in accordance with the trust instrument and in the utmost interest of the beneficiaries.59 In essence, where there is a failure, whether by a positive act or omission, on the part of a trustee to comply with the duties imposed on him or her, such erring trustee may be held personally liable for any damage resulting from his or her actions.
The law makes provision for aggrieved beneficiaries to seek legal remedies against any trustee in breach of trust. Such remedies include claims for damages, injunctions to restrain a breach of trust, tracing or recovery of the trust property and criminal prosecution, among others. Notwithstanding these, the right of a beneficiary to seek certain remedies is subject to the existing limitation laws. For instance, under the Laws of Lagos State,60 any action by a beneficiary to recover money or other property, or in respect of breach of trust, must be commenced within six years from the date on which the beneficiary's right of action arose. Any action instituted after the expiration of six years will not be entertained by any court of law in Nigeria.
However, the limitation of action does not exist in all cases of breach of trust. The law does not place any limitation whatsoever on fraudulent breach of trust, and as such the beneficiary is at liberty to commence an action against an erring trustee at any time.61
It is believed that one of the greatest benefits of estate planning is gained where property is transferred before death – while the outcome can be guided and affected; in other words, gifting. Gifts may be made inter vivos (during the lifetime of the testator)62 or in donatio mortis causa (in contemplation of death), whereby it does not pass until the death contemplated occurs. Gifts may be made of real or personal property. A real property transfer must have been effectively transferred under law in other words, by deed, signed, sealed, registered, etc. Where a gift is made by deed, it may not be reversed by the giver, unless the gift is conditional.
Survivorship (joint tenancies and tenancies in common)
Where two or more persons hold property in joint names, there is often a need to determine the nature of their interest in relation to each other. This is particularly relevant if one of the parties passes on. It is necessary to ascertain whether the surviving party holds the same for himself, herself or for the estate of the deceased. Two kinds of survivorship exist in Nigeria: joint tenancy and tenancies in common. Where a property is purchased in joint names, the parties hold the legal title as joint tenants. Joint tenants are entitled to an equal share of the property. Thus, if A and B jointly own a house and B passes on, A becomes the sole owner of the house.
In contrast, under a tenancy in common, the deceased owner's share of property forms a part of his or her estate, to be inherited according to the terms of his or her will (if there is one) or according to such law that governed the deceased's affairs during his or her lifetime as enumerated above. However, where there is no clarity as to the nature of the interest held by both parties, the general presumption is that the parties hold the property as joint tenants.
The rules regulating joint tenancies and tenancies-in-common are common law rules that are not applicable to customary law modes of inheritance.63
V Outlook and CONCLUSIONS
The ultimate aim of disposition of properties is to ensure that such properties are bequeathed, gifted or devised to the persons intended by the property owner. In light of the continuous friction between the laws regulating the dispositions of assets in Nigeria, trusts are considered among the safer and more discreet modes of asset disposition. A trust mechanism allows an asset holder considerable control over his or her assets and the income generated therefrom, to the benefit of the intended beneficiary – all of this while avoiding the legacy of an often-uncertain regime of estate administration. The attractiveness of trusts is more relevant where, as in Nigeria, there is a considerable influx of unprotected and unaccounted capital from citizens living in diaspora. The trust mechanism not only allows for competent representation by trained professionals (lawyers, accountants, trust companies, etc.) but also holds those trustees accountable while avoiding the burden of application of the general laws.
Harmonisation of the general laws to ensure compliance with the overriding intention of the constitution that guarantees the right to free ownership and disposition of assets is long overdue. The pitfalls of some customary practices such as the Igiogbe practice of Benin have been highlighted. It is suggested that statute be enacted to bring some of the more outdated customary practices into accord with modern realities and principles of natural justice. For now, and with the current dispensation, the adoption of trusts, gifting and joint tenancies are viable alternatives to the unintended interference that Nigerian laws have created in the disposition of property.
1 Akhigbe Oserogho, Osasere Osazuwa and Hokaha Bassey are senior associates and Temidayo Adewoye and Ikechukwu Precious Nwakanma are associates at Perchstone Graeys LP.
2 Section 42 of the 1999 Constitution (as amended) provides for the right to own immovable property anywhere in Nigeria. The section provides thus: 'Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.'
3 The fundamental right provided in Chapter 4 of the Constitution is not absolute. There are exceptions to the right provided by the Constitution.
4 Section 44 (2) of the 1999 Constitution provides for the conditions under which the right and interest of a citizen in a movable or immovable property may be curtailed. The ambit of the 'general law' that may restrict the interest of the citizen in free ownership and disposition of asset under Section 44(2) of the Constitution includes laws made for the imposition of taxes, laws made to regulate contractual obligations, laws regulating ownership of property right persons of unsound mind or of deceased persons, laws relating to trusts and trustees and laws relating to properties of corporate persons.
5 The Supreme Court quoted with approval in the case of M Ahmadu Usman v. M Sidi Umaru (1992) LPELR-3432(SC) the definition in Section 2 of the Customary Court of Appeal Law: 'the rule of conduct ...as established by custom and usage'. Since the decision in Lewis v. Bankole (1908) 1 NLR 81 at 100, customary law has been stated to be the unwritten customary law recognised as law by the members of an ethnic group and is 'a mirror of accepted usage'. See Eleko v. Government of Nigeria (1931) AC 662 at 673 and Owonyin v. Omotosho (1961)1 All NLR 304 at 309 (1961) 2 SCNLR 57.
6 Historically, Nigeria inherited certain laws of England and principles of Common Law and Equity into the legal system. Laws that were in force in England before 1 January 1900 apply mutatis mutandis in Nigeria insofar as there is no local legislation in force on the same subject. Section 45 of the Interpretation Act provides that: 'Subject to the provision of this section and in so far as other provision of this section is made by any Federal Law, the Common Law of England and the doctrines of equity, together with Statutes of General Application that were in force in England on the 1st day of January 1900, shall be in force in Lagos and, in so far as they relate to any matter within the exclusive legislative competence of the Federal legislature, shall be in force elsewhere in the Federation.'
7 Osemwenkha v. Osemwenkha (2012) LPELR-9580(CA); Giwa-Osagie v. Giwa-Osagie & Anor (2009) LPELR-4533(CA); Ekhator v. Ekhator & Ors (2014) LPELR-24490(CA).
8 Section 2(6) PITA states: 'In the case of income arising to a trustee of any settlement or trust, or estates or to an executor of any estate of a deceased person, tax may be imposed by the territory of which the tax authority is the relevant tax authority in relation to such settlement, trust or estate and to the extent provided in the second schedule to this Act.'
9 Paragraph II Part III of the Second Schedule PITA.
10 Schedule II.
11 Paragraph 3 (C) Part 1 of the second schedule to PITA.
12 'Capital gains' refers to the chargeable gains on chargeable assets. Capital Gains Tax Act (CGT) (Cap C1) Laws of the Federation of Nigeria (2004). In other words, a tax levied on profit from the sale of property or an investment.
13 Section 8(2) CGT.
14 A person receiving a specific bequest such as investments from the estate, that is, one to whom the legacy is bequeathed.
15 Sections 3 and 4 CGT.
16 Section 30.
17 Section 11.
18 Section 22 of the Land Use Act.
19 AO Obilade, The Nigerian Legal System. 2nd Edition. Spectrum Books Limited,Ibadan, 1979.
20 Greg C Nwakoby, Kenn Chinemelu Nwogu and Meshach Nnama Umenweke Eds. (2010) Fundamentals of the Nigerian Legal System, Chapter Seven, pp.91–110, available at https://www.researchgate.net/publication/317751965_CONFLICTS_OF_LAWS_IN_NIGERIA. In 'The History And Sources Of Conflict Of Laws In Nigeria, With Comparisons To Canada.' (2000), a master's thesis published by the University of Manitoba, Remigis Nnamdi Nwabueze noted: 'This has led to the problem of internal conflict of laws in Nigeria. For instance, a court in Nigeria may be called upon to decide which of the several systems of law applicable in the country will provide decision in a particular case, i.e., is it the received English law, customary law or local legislation?'
21 (1990) LPELR-2880(SC).
22 D Asiedu-Akrofi, 'Judicial recognition and adoption of customary law in Nigeria.' American Journal of Comparative Law 1989, 37(3), pp.571–593. Available at https://www.jstor.org/stable/840092?read-now=1&seq=3#page_scan_tab_contents
23 Ese Malemi, The Nigerian Legal System: Text and Cases, 3rd edition 2012 p.77.
24 A good example is whether the law of Igbo people of Anambra State should regulate the disposition of assets of a Yoruba man from Ile-Ife in Osun State.
25 In the case of Zaidan v. Mohssen (1973) LPELR-3542(SC) pp.24–25, paragraphs B-A, the Supreme Court held thus: 'We agree with the learned counsel that this is the rationale of Tapa v. Kuka 18 NLR 5. Just as the Court in Lagos is entitled to apply as between the parties before it a system of Tapa customary law in respect of immovable property in Bida, so can a Mid-Western Nigeria High Court apply Lebanese law to succession to immovable property in Warri in the case of Lebanese parties.'
26 In Fadaya v. Adamu Alh Isa, appeal No. CA/J/8/90 delivered on 19 February 1992, the Court of Appeal held: 'once a person is born into Islam or converted into same when he merely has to believe LA ILLAHAILLA ALLAH MOHAMMED RASULULLAHI (meaning I accept the oneness of Allah and the prophethood of Mohammed SAW) he is a Muslim and Islamic law becomes the personal law of the person.' However the attitude of the Courts had been to presume to judge the extent of the commitment of the deceased to his faith, and to determine his personal law by the quantum or extent of evidence brought in proof of same.'
27 Anunobi v. Nwankwo (2017) LPELR-43774(CA).
28 Adeniyi Oluwo & ors v. Olabowale Oluwo & Ors (1985) 3 NWLR (Part 13) p.372.
29 Adesubokun v. Yinusa (1971) 1 ANLR 225; Ajibaiye v. Ajibaiye (2007) All FWLR Part 359, p.1321.
30 Ademola Adetayo Taiwo 'Legal Pluralism and the Law of Intestate Succession in South-West Nigeria', 2017, p.40, a thesis submitted in the Department of Political Science and Public Administration, Veronica Adeleke School Of Social Sciences, in partial fulfilment of the requirements for the award of degree of Doctor Of Philosophy Babcock University.
31 See Section 7 of the Wills Act.
32 Renner & Ors v. Renner (1961) LPELR-25072(SC) (pp. 2–4, paragraphs D-A).
33 The Act applies to states of the former Northern region, namely: Adamawa, Bauchi, Benue, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Nasarawa, Niger, Plateau, Sokoto, Taraba, Yobe and Zamfara.
34 See Sections 43,44 and 45 of Conveyancing Act.
35 Sections 42 and 43 of the Constitution of the Federal Republic of Nigeria 1999.
36 Cap L5, LFN 2004.
37 Section 1 of the Land Use Act.
38 Section 5 of the Land Use Act.
39 Section 7, Land Use Act.
40 Section 7(b) of the Land Use Act.
41 (2017) LPELR-42078(SC).
42 See Section 49 of Administration of Estate Law of Lagos State.
43 Section 49 of Administration of Estate Law of Lagos States creates an order of ranking in obtaining letters of administration.
44 See footnote 39.
45 The Court of Appeal in Motoh v. Motoh (2011) 16 NWLR (Part 1274) 474 at 530, paragraphs B–C puts it succinctly: 'The position of the law is that, where a man who marries under the statute dies intestate, his estate is only inheritable by the wife legally married under the Marriage Ordinance or Marriage Act.'
46 (2003) LPELR – SC-120/1997.
47 (1898) 1 NLR 15.
48 (1943) 17 NLR 55.
49 Where a deceased person dies intestate, his estate is distributed in line with the custom he practised in his lifetime. Conversely, where the deceased leaves behind a valid will, his estate is distributed in line with his wishes as stated in the will. Certain properties must, however, be distributed in line with custom, failing which the will is void to the extent of such inconsistency.
50 This is also known as forced heirship.
51 This section falls under Chapter IV of the Constitution, which provides for fundamental human rights. It is, however, conceded that the right to property is not an absolute right. However, the limitations created by the constitution itself does not include those emanating from customary practices and traditions.
52 (1995) 9 NWLR Part 419 at pp.259–272, paragraphs H-A.
53 Suit No. B/205/2013, delivered on 21 December 2015. In the case, the first defendant, being the eldest surviving son of the deceased interred his father on a property he unilaterally designated as his Igiogbe. The evidence in the said matter disclosed that the said first defendant was not on good terms with his father while his father was alive. In fact, there is evidence that the said first defendant was instrumental in the downturn of his father's investment as one of the foremost booksellers in Benin City. Knowing the antecedents of his son, the deceased testator in his lifetime transferred the property to five of his other children via a deed of transfer. The five children furnished consideration in the sum of one naira each for the transfer. The testator deliberately left out the property out of his will. The testator however requested from his children, the new joint owners, to be permitted to live in the property as a tenant until his death.
54 Okafor v. Isitorh & Anor (2015) LPELR-25892(CA); Ugbene v. Ugbene & Ors (2016) LPELR-42110(CA).
55 See the case of Olowu & Ors. v. Olowu & Anor (1985) 12 SC, 84.
56 (2005) 5 NWLR Part 657 pp.402–422, paragraphs E–H, 423, paragraph A.
57 Black's Law Dictionary, 7th Edition, p.1,513.
58 The terms and conditions of the trust are set out in a document referred to as the 'trust deed', which must clearly state the purpose and intention of the trust, the assets that will be subject to the trust, the appointed trustees and the named beneficiaries.
59 In the case of Nwankwo & Anor v. Nwankwo (2017) LPELR-42832(CA), the Court of Appeal stated the obligations of a trustee under the law: 'A trustee is a person or firm that holds and administers property or assets for the benefit of a third party. A trustee is granted legal title through a trust, which is an agreement between two consenting parties. Trustees are trusted to make decisions in the beneficiary's best interests and often have a fiduciary responsibility to the trust beneficiaries. This means that they are required to put aside personal goals to do what is best for the trust. A trustee is therefore responsible for the proper management of all property and other assets owned by the trust for the benefit of a beneficiary. A trustee's specific duties are unique to the agreement of the trust and are dictated by the type of assets being held in trust.' Per Ogunwumiju, JCA (pp.14–15, paragraphs F–C).
60 Section 32(1).
61 Augustine Udensi v. Alice Mogbo (1976) LPELR-3294(SC).
62 In Abah v. Ogbe (2012) LPELR-14842 (CA), the Court of Appeal held that: 'among the requirements for creation of a valid absolute gift of land under customary law is an intention to give the land perpetually. A gift inter vivos is an act whereby something is voluntarily transferred from the true possessor to another person, with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. Where a gift of land is made inter vivos, even after the death of the donor, the land remains the exclusive property of the donee.' See also AJ Oguejiofor v. Pastor O Osaka & 5 Others (2000) 3 SCNJ, p.1. Per BADA, JCA (pp. 12–13, paragraphs D–A).
63 ibid. Ese Nkadi, 'Nigeria International Estate Planning Guide.' Individual Tax and Private Client Committee, Stanbic IBTC Trustees Limited, Lagos, p.7.