LEGAL ILLUMINATIONS OF AKINTUNDE ESAN

“The Legal Adviser Online”

Marital Property, Joint Ownership, Survivorship and Inheritance Rights in Nigeria: Frequently Asked Questions for Spouses, Children and Stepchildren

By Akintunde Esan (The Legal Adviser Online)
Legal Practitioner | Legal Consultant | Chartered Mediator
Managing Partner & Principal Consultant, Ase Olodumare Chambers

Disputes over property acquired during marriage frequently arise after the death of a spouse. Such disputes often involve surviving spouses, children, stepchildren and members of the deceased spouse’s family. This legal illumination answers common questions on marital property, joint ownership, survivorship rights and inheritance under Nigerian law.

Q1What is a Marital Property?

A marital property is a property regarded in law as jointly owned by a husband and wife. Such property may become a family asset and may confer inheritance rights upon surviving spouses and children, depending on the nature of the ownership and the applicable law.

However, not every matrimonial home automatically qualifies as a marital property.

Q2Is a Matrimonial Home Automatically a Marital Property?

NO

The fact that a property served as the matrimonial home does not automatically make it jointly owned by both spouses.

The party asserting joint ownership must provide evidence showing that both spouses made substantial and ascertainable contributions towards the acquisition, development, or improvement of the property.

Q3Does the Law Presume Joint Ownership Between Husband and Wife?

YES

Under certain circumstances, particularly in marriages celebrated under the Marriage Act, the law may presume joint ownership between spouses.

Where one spouse dies, the surviving spouse may inherit the deceased spouse’s interest depending on the nature of ownership and the applicable legal principles.

Q4How Can Joint Ownership Be Established?

Joint ownership is commonly established where both spouses contribute substantially towards:

• The purchase of the property;
• The development of the property; or
• Both the purchase and development of the property.

Such contributions may be financial, material or otherwise substantial and ascertainable.

Q5What Evidence is Required to Claim Joint Ownership?

A spouse or child claiming joint ownership must prove direct and substantial contribution to the acquisition or development of the property.

Without convincing evidence, particularly where the property is registered solely in one spouse’s name, the claim may fail.

Q6What is the Presumption of Advancement?

Where a husband purchases property in the name of his wife, or a wife purchases property in the name of her husband, the law may presume that the purchaser intended to make a gift to the other spouse.

This principle is known as the Presumption of Advancement. The presumption may be rebutted by evidence showing that no gift was intended.

Q7Can Children Automatically Claim Property Because Their Parents Were Married?

NO

The mere fact that a child’s parents were married when the property was acquired or developed does not automatically entitle the child to ownership or inheritance rights over the property.

There must be credible evidence establishing the legal basis of such entitlement.

Q8What Happens When One Joint Owner Dies?

The answer depends on whether the property is held as:

1. Joint Tenancy; or
2. Tenancy-in-Common.

Q9What is Joint Tenancy?

Joint tenancy exists where two or more persons own a property together as one legal entity.

A major feature of joint tenancy is the doctrine of Right of Survivorship.

Where one joint tenant dies, the deceased person’s interest automatically passes to the surviving joint tenant(s). The deceased person’s share does not become part of the estate available for inheritance.

Q10What is the Right of Survivorship?

The Right of Survivorship means that upon the death of one joint owner, the surviving joint owner automatically becomes entitled to the deceased owner’s interest.

• The property does not pass through probate regarding the deceased’s share.
• The deceased’s relatives cannot inherit that share.
• The surviving joint owner becomes entitled to the entire property.

Q11What is Tenancy-in-Common?

Under tenancy-in-common, each owner possesses a distinct share in the property.

Upon the death of an owner:

• The deceased person’s share forms part of his or her estate.
• The share may pass under a valid Will.
• If there is no Will, the share is distributed according to applicable succession laws.

Q12How Can One Tell Whether a Property is Joint Tenancy or Tenancy-in-Common?

The answer lies in the wording of the title document, deed, conveyance or Will.

Where there are no words indicating separate shares, the law generally presumes a joint tenancy.

The following expressions often indicate tenancy-in-common:

• “In equal shares”
• “Share and share alike”
• “Equally”
• “Among”
• “Respectively”
• “To be distributed among them”
• “To be distributed between them”

Q13What are the Four Unities Required for Joint Tenancy?

A joint tenancy is typically characterised by:

1. Unity of Title;
2. Unity of Interest;
3. Unity of Time; and
4. Unity of Possession.

Q14What Have Nigerian Courts Said About Joint Tenancy?

In Chinweze v. Mazi (1989), the Supreme Court affirmed that where a joint tenant dies without severing the joint tenancy during his or her lifetime, the deceased’s interest automatically accrues to the surviving joint tenant.

Likewise, in Obasohan v. Omorodion (2001), the Supreme Court reiterated that the interest of a deceased joint tenant passes to the surviving joint tenant(s) and not to the deceased’s personal representatives or beneficiaries.

Q15Does the Common Law Rule of Survivorship Apply to Property Governed by Customary Law?

GENERALLY, NO

The Supreme Court has clarified that property jointly acquired under customary law does not necessarily create a common law joint tenancy.

Instead, customary-law co-ownership is governed by customary law principles and not necessarily by the doctrine of survivorship applicable under common law.

Q16Can a Deceased Husband’s Family Take Property Jointly Owned by Husband and Wife?

Where the property is held as a joint tenancy, the answer is generally NO

The surviving spouse becomes entitled to the deceased spouse’s interest by operation of law through the doctrine of survivorship.

However, where the property is held as tenancy-in-common, the deceased spouse’s share forms part of the estate and may devolve according to the applicable succession laws.

Q17Does the Type of Marriage Affect Property Ownership and Inheritance?

YES

The type of marriage celebrated by the parties can significantly affect property ownership and inheritance rights.

In Nigeria, marriages generally fall into three broad categories:

• Statutory Marriage (Marriage Act Marriage)
• Customary Law Marriage
• Islamic (Sharia) Marriage

Q18What is the Position Under a Statutory Marriage?

A statutory marriage is a monogamous marriage celebrated under the Marriage Act.

Under this form of marriage:

• Spouses may acquire property jointly or separately.
• Joint ownership is recognised and protected by law.
• The doctrine of survivorship may apply where property is held under joint tenancy.
• The surviving spouse has recognised succession rights.
• The estate of an intestate spouse is distributed according to applicable Administration of Estates laws.

Children of the marriage are generally recognised as beneficiaries of the deceased parent’s estate.

Q19What is the Position Under a Customary Law Marriage?

A customary law marriage is celebrated in accordance with the native law and custom of the parties.

Under customary law:

• Property ownership and inheritance are often determined by the applicable custom.
• Family property principles may affect ownership rights.
• The common law doctrine of survivorship may not automatically apply.
• The rights of surviving spouses may vary depending on the relevant customary law.

Nevertheless, customs that discriminate against women solely because they are women may be declared unconstitutional by Nigerian courts.

Q20What is the Position Under an Islamic (Sharia) Marriage?

Under Islamic law, inheritance is regulated by Islamic succession principles.

• A surviving wife is entitled to a specified share of her husband’s estate.
• A surviving husband is entitled to a specified share of his wife’s estate.
• Children inherit according to Islamic inheritance rules.
• The estate is distributed according to prescribed proportions under Islamic law.

Q21What Rights Do Children of the Marriage Have?

Children born during the marriage ordinarily have inheritance rights over the estate of their deceased parent, subject to the applicable law.

The extent of those rights depends on:

• The type of marriage;
• The applicable succession law;
• The existence of a Will;
• The nature of the property concerned.

However, where spouses hold property as joint tenants, the deceased spouse’s interest may pass directly to the surviving spouse under the doctrine of survivorship and may never become part of the estate available for inheritance by the children.

Q22Can Stepchildren Inherit From a Stepparent?

NOT AUTOMATICALLY

Generally, stepchildren do not automatically inherit from a stepparent merely because their biological parent married the stepparent.

A stepchild may inherit where:

• The stepparent expressly provides for the stepchild in a valid Will;
• The stepchild has been legally adopted by the stepparent;
• The stepchild receives an interest through a trust, gift or settlement; or
• The law creates a specific entitlement under particular circumstances.

Accordingly, marriage alone is insufficient to confer inheritance rights on a stepchild in relation to a stepparent’s estate.

Q23Can a Surviving Spouse Exclude the Children From Property Acquired Through Survivorship?

Where a property is validly held under a joint tenancy, the surviving spouse becomes the sole owner upon the death of the other spouse.

Since the deceased spouse’s interest does not pass into the estate, children generally cannot claim inheritance rights to that interest as beneficiaries of the deceased’s estate.

The surviving spouse is ordinarily entitled to deal with the property as sole owner, subject to any legally enforceable rights of third parties.

Q24What Lessons Should Married Couples Learn?

To minimise future inheritance disputes, spouses should:

• Clearly state the nature of ownership in title documents;
• Retain evidence of contributions towards property acquisition and development;
• Prepare valid Wills where appropriate;
• Obtain legal advice before acquiring property jointly;
• Understand the inheritance implications of their chosen form of marriage;
• Review their estate plans regularly.

Proper estate planning is often the most effective means of preventing costly family disputes after death.

Conclusion

Whether a property constitutes marital property and whether it is available for inheritance depends on several factors including the nature of ownership, contributions made by the spouses, title documentation, the type of marriage contracted and the applicable law of succession.

Where spouses hold property as joint tenants, the right of survivorship may vest the entire property in the surviving spouse. Conversely, where property is held as tenancy-in-common, the deceased spouse’s share forms part of the estate available for inheritance. Every dispute concerning marital property must therefore be carefully examined against the relevant facts, documents and applicable law.

Need Further Legal Guidance?

Akintunde Esan
(The Legal Adviser Online)
Legal Practitioner | Legal Consultant | Chartered Mediator
Managing Partner & Principal Consultant
Ase Olodumare Chambers

📞 Phone/WhatsApp: 08073828487
📧 Email: akintundeesan@gmail.com

Office Address:
ASE OLODUMARE CHAMBERS,
Oshopey Plaza, 2nd Floor, Left Wing of Front Wing,
No. 17/19 Allen Avenue,
Ikeja, Lagos State, Nigeria.

Authorities Cited: Chibuzor & Anor v. Chibuzor (2018) LPELR-46305(CA), Okere v. Akaluka (2014) LPELR-24287(CA), Chinweze v. Mazi (1989) 1 SC (Pt. II) 33, and Obasohan v. Omorodion (2001) 13 NWLR (Pt.729) 206.

© Akintunde Esan (The Legal Adviser Online). All Rights Reserved.

NINE PROHIBITED WAYS TO OWN OR POSSESS A LAND

This edition of the Legal Illumination of Akintunde Esan known as (The Legal Adviser Online) is focused on the illegal, violent and fraudulent land possessions and land grabbing and related activities prohibited under the Lagos State Property Protection Law referred to as “the Law”.

The Law was enacted on the 15th day of August, 2016 to address issues like forceful entry, illegal occupation of landed property, violent and fraudulent conducts in relation to landed properties in Lagos State. 

The following are the illegal, violent and fraudulent land grabbing or land  possession conducts prohibited under the Law. 

1. Prohibition of Forceful Land Take Over:

a. It is a criminal offence for any person to use force or self-help to take over any landed property in Lagos State. The offender is liable to ten (10) years imprisonment, if found guilty.

b. It is a criminal offence for any person to engage in any act inconsistent with the proprietary rights of the owner of a property. The offender is liable to ten (10) years imprisonment, if found guilty.

2. Prohibition of Entry by Violence:

a. It is a criminal offence for any person without lawful authority to use or threaten violence for the purpose of securing entry into a landed property. The offender is liable to ten (10) years imprisonment, if found guilty.

b. A person’s right to possession or occupation of a property does not constitute a lawful authority for the use of threat of violence for the purpose of securing entry into the property. The offender is liable to ten (10) years imprisonment, if found guilty.

c. Any person who makes use of or carries any firearms, offensive weapons or obnoxious or chemical materials to gain or make a forceful entry into any landed property in Lagos State  is liable to four (4) years imprisonment, if found guilty.

3. Prohibition of Illegal Occupation of Property:

a. It is a criminal offence to occupy a property without the owner's consent or overstaying after lawful permission expires. The offender or encroacher who refuses to vacate after being asked by the owner is liable to a fine up to five million naira (₦ 5 million naira) or imprisonment for up to five (5) years, if found guilty.

b. Note that any person who derives title from an encroacher or a license or right given by an encroacher is also deemed under the Law as an encroacher. 

c. It is an additional criminal offence for an encroacher to be in possession of a firearm or a weapon. The offender or offender is liable to ten (10) years imprisonment, if found guilty.

4. Prohibition of Illegal Use of Law Enforcement Agents:

a. Prohibits law enforcement agents, vigilante group, militia from executing judgement of a Court in respect of any landed property except as provided for under the Sheriff and Civil Processes Act or any other Law.

b. It is a criminal offence for any Legal Professional or any professional to facilitate the execution of a landed property judgment without following due process as provided under the Sheriff and Civil Processes Act or any other Law.

5. Prohibition of the Sale of Landed Property without Title or Authority:

a. It is a criminal offence for a person to offer for sale or sale any property which a person has no lawful title to the property or the lawful authority of the owner to sale or offer the property for sale. The offender or vendor is liable to five (5) years imprisonment or a fine of five hundred thousand naira (N 500,000) if found guilty.

 

b. It is a criminal offence for a person to sell to another person a landed property that has been previously sold by the person or agent of the person. The offender or vendor is liable to a fine not exceeding 100% of the value of the property or to five (5) years imprisonment or both, if found guilty and the property shall revert to the lawful owner.

6. Prohibition of  the Sale of Family Land or Property without Authority:

a. It is a criminal offence for any person to sell or cause to be sold a family land, property or any part of it without the consent or authority of the family head and other accredited members of the family. The offender or vendor is liable to twenty-one (21) years imprisonment. if found guilty.

7. Prohibition of Illegal and Fraudulent Landed Properties Contractual Agreement:

a. It is a criminal offence for any Legal Professional to facilitate the execution of a Deed of Assignment or Deed of Transfer or Lease or any landed property contractual agreement in contravention of the Law. 

b. Where a Legal Practitioner is found guilty under the Law, the offender shall be reported to the relevant professional body for professional misconduct and necessary action.

8. Prohibition of Frivolous and Unwarranted Petition:

a. The Law prohibits the writing of frivolous and unwarranted petitions to any Law Enforcements Agency

b. Presenting false documents to claim ownership is prohibited, with penalties including imprisonment.

9. Prohibition of  Demand for Fee or Levy in respect of Construction Activities:

a. It is a criminal offence to demand for fee or levy in respect of construction activities on any property, disrupt or obstruct construction work. The offender is liable to two (2) years imprisonment or a fine of N 1,000,000 (one million naira) years, if found guilty.

b. However, the Law permit land owning families under the authorisation of the family head to demand for customary fee for possession (in the name of foundation levy) from buyers, or ratification fee pursuant to judgment of a Court of competent jurisdiction.

Task Force and Enforcement Unit

a. The Law did not just criminalise the use of thugs to intimidate occupants or seize property, it went further to establish a Task force Unit responsible for the enforcement of the Law with the aim of protecting property owners and investors from harassment, exploitation, and intimidation by land grabbers.

b. This Task Force Unit receives and handles Complaints and Petitions involving land grabbing from affected landed property owners. 

c. The Task Force Unit has the power to effect the arrest of any offender under the Law as well as any other law enforcement agency in Lagos State.

Mandatory Court Order for Eviction:

a. Given that, it is both a civil and a criminal offence to use self-help or force to take over the possession of a landed property from any person in possession, the eviction of anyone or a trespasser or a squatter or an illegal occupant in possession of a landed property must follow the due process of the law, which is applying for an eviction order from a Court of competent jurisdiction.

b. You may contact “The Legal Adviser Online” (Akintunde Esan) for further legal illumination or legal advice on how to legally evict an illegal occupant or occupants of your landed property in Lagos State and in Nigeria as well as on how to write a Complaint or a Petition against a land grabber or an illegal occupant under the Law.

Email: akintundeesan@gmail.com

WhatsApp: + 234 - 08073828487

Phone Contact: + 234 - 09036279325 

CLAIMING DEATH BENEFITS OF A DECEASED EMPLOYEE IN NIGERIA

A. Introduction

This edition of Akintunde Esan’s Legal Illumination is focused on providing legal illumination for the next of kin, beneficiaries, dependants or legal representatives of deceased employees having challenges with claiming their death benefits.

B. The Relevant Laws

The claiming of death benefits of deceased employees/workers in Nigeria is subject to the provisions of Nigerian Labour Law, Insurance Law, Employee's Compensation Law and Administration of Estate Laws. 

C. Employee’s Death Benefits

The Death benefits of a deceased employee for the purposes of this legal illumination are all the benefits that, accrued or accrues to an employee by virtue of his or her employment as at the time and date of his or her death, which his or her next of kin, beneficiaries, dependants or legal representatives are legally entitled to claim. 

These benefits could be one or more of the following: outstanding salaries, bonuses and allowances, pension and retirement fund, insurances, compensations, reimbursements, material entitlements, gifts and miscellaneous policy, contractual and statutory entitlements. 

D. Employment Contract and Death of an Employee

Generally, the Law which regulates the terms and conditions of employment in Nigeria is the Labour Act. 

The Act provides that, a contract of employment becomes terminated by the expiry of the period for which it was made; or by the death of the worker before the expiry of that period; or by notice in accordance with section 11 of the Labour Act or in any other way in which a contract is legally terminable or held to be terminated.1 

The termination of a contract by the death of an employee shall be without prejudice to the legal claims of his personal representatives or dependants.2 

Likewise, a contract of employment cannot be deemed to be binding on the family or dependants of an employee (dead or alive) unless it contains an express provision to that effect.3 

E. Compensation for the Death of a Deceased Employee

The Employee's Compensation Act 2011 provides compensation for death, injuries or disease arising out of or in the course of an employment. Where death results from the injury of an employee, the Act provides that compensation shall be paid to the dependants of the deceased.4

F. The Pension of a Deceased Employee

Generally, there are pension schemes designed to provide employees with a regular and stable income after retirement from employment and to also serve as benefits to the employee’s dependants upon his or her demise. 

The Law that governs and regulates the administration of the contributory pension scheme for both the public and private sectors in Nigeria is Pension Reform Act 2014 which repealed the Pension Reform Act No. 2 of 2004 (repealed Act).

  

The Act provides that every employee shall maintain a Retirement Savings Account (“RSA”) in his name with any Pension Fund Administrator (“PFA”) of his choice. The RSA is financed by contributions from both the employer and employee.5    

In the event of death, before or after retirement, the funds in RSA would form part of the deceased employee’s estate, the implication of which is that, it is only the personal representatives of the deceased which are either the Executors appointed by his or her will or Administrators who have obtained Letters of Administration from the Probate Registry of the High Court with the requisite jurisdiction that can make claims.

In essence, it is only the next of kin, dependant or beneficiaries stated in a Will admitted to Probate or recognised in a Letter of Administration as the beneficiaries of the estate of the deceased employee that would be entitled to claim the funds in the RSA.6   

G. Group Life Insurance Policy

Section 4(5) of the Pension Reform Act, 2014 provides that every employer shall maintain a Group Life Insurance Policy in favour of each employee for a minimum of three times the annual total emolument of the employee.

In the event of death, the entitlement of the deceased employee under the Life Assurance Policy does not accrue to the estate of the deceased employee and shall be paid by the Insurance Company directly to the named next of kin or beneficiary on record.

Section 8 of the Pension Reform Act, 2014 provides further that, the mandatory Group Life Insurance Policy prescribed under Section 4(5) of the Act shall be paid to the named beneficiary or next of kin of a deceased employee in line with Section 57 of the Insurance Act.7  Unlike under the repealed Pension Act.8

H. Administration of the Estate of a Deceased Employee

The law which regulates the Estates of deceased persons is the Administration of Estates Laws of the states of the federation of Nigeria, while the procedure for the grant of the right to administer the estate of deceased persons is governed by High Court (Civil Procedure) Rules of each state of the federation.

It is instructive to note that, the death benefits of a deceased employee accrues to his estate and under the Administration of Estate Law9 no beneficiary, personal representative, next of kin or dependant of a deceased employee is automatically entitled to claim from his or her estate without first applying for and obtaining Letter of Administration or probate if named as an Executor in the will of the deceased employee which makes reference to the said death benefit.10 

I. Conclusion

Sometimes misunderstanding on death benefits between the employer of a deceased employee and the beneficiaries of deceased employee may result into reluctance of the employer to release the benefits to them. 

Equally, lack of understanding among the beneficiaries themselves seeking to claim the death benefits may degenerate into a crisis, confusion and stiff resistance from employers, siblings, surviving spouses, step fathers, step mothers, relatives and other interested parties.

At such a juncture, the intervention of a competent and resourceful Lawyer sound in Nigerian labour law, insurance law, pension law, property law and administration of estate law becomes inevitable in order to get the relevant issues sorted out.

You may contact Akintunde Esan (the Legal Adviser Online) or Ase Olodumare Chambers for further illumination on how to claim the death benefits of a deceased employee or benefactor and on how to obtain a Letter of Administration or Probate in Nigeria.

CLAIMING DEATH BENEFITS OF A DECEASED EMPLOYEE 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)

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1.    Section 9 (7) ) Labour Act

2.   Section 9 (8) ) Labour Act

3.   Section 9(1) Labour Act

4.   Section 17 Employee's Compensation Act, 2011

5.   S.3 and 4 Pension Reform  Act, (PRA)2014

6.   S.8 PRA,2014

7.   Insurance Act 2003, Cap. N53 LFN vol. 7 2004 “A policy of insurance shall not be made on the life of a person or other event without inserting in the policy the name of the person interested in it, or for those whose benefit or on whose account the policy is made.”

8.   Pension Reform Act No. 2  2004

9.   Lagos State Administration of Estate, Laws of Lagos State,2015

10. Ironbar v. Federal Mortgage Finance. (2009) 15 NWLR (Pt.1165) CA 506 at 533, paras, B-F