THE STATUS OF THE PROPERTY JOINTLY OWNED BY A DECEASED SPOUSE AND THE SURVIVING SPOUSE IN NIGERIA

A couple contracted marriage under the Marriage Act and after 18 years of marriage the husband died intestate. Meanwhile, during his lifetime a landed property was purchased in his name and that of his spouse. Following the death of the husband intestate, the members of the family of the late husband began to contend the right of the wife over said landed property. These kind of scenarios have caused the question to be asked what is the status of the marital property jointly owned by a deceased spouse and the surviving spouse ?

Property acquired by either spouse during the course of a marriage is considered a marital property. Under customary law, only men have the right to own land. Sharia law does not allow women access to real property. Under customary law, a widow cannot inherit marital property. However a couple married under the Marriage Act can own property in their individual names or jointly.

Whether a marital property needs to go through the probate process depends on the type of ownership. In this regard, there are two kinds of ownership and survivorship under the common law, which are applicable in Nigeria and they are :

a.       Joint Tenancy; and

b.     Tenancy- in- common.

Joint Tenancy is where two or more people jointly own a property. In the event of any of the owners predeceasing the other owners, the deceased owner’s share of the property devolves to the surviving beneficiaries of such a property to the exclusion of the estate of the deceased joint owner.

Tenancy-in-common is dissimilar  to joint tenancy, the deceased owner’s share of property forms a part of his estate, to be inherited according to the terms of his or her Will (if there is one) or according to Administration of Estate Law if he or she died intestate.

Whether a devise or a bequest to two or more beneficiaries under a Will will be regulated by the rules of Joint Tenancy or Tenancy-in-common will depend on the interpretation of the wording of the Will or Title Document.

Where no specific words of severance are used in devolving a property, which indicate separate partitions or interest of the same property devolving to two or more beneficiaries, or to two or more people, the law assumes that a joint tenancy has been created with the result that the estate of a deceased joint owner cannot assume the place of the deceased in the enjoyment of such a property. A Joint Tenancy is therefore implied where there is a unity of title, unity of interest, unity of time, and unity of possession.

On the other hand, the presence of any of the following words in a Will creates a Tenancy-in-common: “in equal shares”; “share and share alike”; “to be distributed between”; “to be distributed among them in joint and equal proportion”; “equally”; “among”; and “respectively”.

In the case of Chinweze v. Mazi (1989) 1 SC (part 11) 33 at 46, the Supreme Court held that by operation of Law, joint tenancy leads to the doctrine of survivorship by which if one joint tenant dies without having obtained a separate share of the property for him or herself, during his or her life time, his or her interest will not pass to his or her estate but such interest will accrue to the other surviving joint tenants.

The Supreme Court also held that, the fact that, the title document did not contain words of severance, the half-brothers to the 2^nd Defendant’s sister could not take any benefit in the contested property due to the applicability of the rules of joint tenancy to the disputed property.

In the said case, the eminent jurist Oputa JSC, made an instructive affirmation of the decision of the trial court and the Court of Appeal thus:

“When therefore Elizabeth Chinweze died intestate her interest in No. 5 Ogui Road did not enure to her estate but instead it accrued to the 1st Defendant Veronica Masi nee Chinweze as the surviving joint tenant.
The plaintiffs therefore had nothing to inherit. They are strangers to the property No.5 Ogui Road, Enugu, now in dispute. The Court of Appeal agreed with the above analysis.
The above is a correct statement of the law. I also agree.”

Likewise, the Supreme Court per Ayoola JSC, in the case of Obasohan v. Omorodion (2001) LPELR-SC.131/1996 or (2001) 13 NWLR (Pt.729) 206  opined  as follows:

“The rule is that where a joint tenant dies without having a separate share in the joint property, his interest passes to the remaining joint tenants and not to his successors or personal representatives.”   

      

In answering  the question  whether the rule of survivorship as developed under the   common   law   is   applicable   to   joint acquisition of property under customary law Ayoola JSC in Obasohan v. Omorodion (supra) enthused that:

“It is misconceived to assume that a joint acquisition of property subject to customary law creates joint tenancy in the meaning in which the term is known at common law.   In my opinion, what is created is co-ownership to be attended   by   its  own   incidents  as  developed   in customary law and not common law.  Such incidents of co-ownership have been developed in regard to family property and there is no reason why such incidents should not apply by analogy to joint acquisition of property as in this case, it may well be noted that the feudal origins that fashioned the rule of jus accrescendi in English law has no place in customary law.”

THE STATUS OF THE PROPERTY JOINTLY OWNED BY A DECEASED SPOUSE AND THE SURVIVING SPOUSE IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)