LEGAL PRINCIPLE: CUSTOMARY LAW – Chieftaincy Succession – Kalabari Custom – Rules of Succession to Stool
PRINCIPLE STATEMENT
Under the Kalabari custom, when the founder of a stool dies, and his children are there one of them will succeed to the stool. But where he has no child but has an adopted son, he can be appointed to the stool. Where the founder's children are minors, an adopted son or a relation can succeed to the stool. If the founder has a brother, his brother must succeed to the stool before a relation.
RATIO DECIDENDI (SOURCE)
Per Emmanuel Obioma Ogwuegbu, JSC, quoting PW4, in Jack & Ors v. Whyte & Ors (2001) NLC-1661995(SC) at p. 22; Paras D–E.
"Under the Kalabari custom, when the founder of a stool dies, and his children are there one of them will succeed to the stool. But where he has no child but has an adopted son, he can be appointed to the stool. Where the founder's children are minors, an adopted son or a relation can succeed to the stool. If the founder has a brother, his brother must succeed to the stool before a relation."
EXPLANATION / SCOPE
Kalabari succession rules prioritise children, then adopted sons, then brothers before other relations. The order is: (1) children of the founder (one succeeds); (2) if no child but adopted son exists, the adopted son can succeed; (3) if children are minors, an adopted son or relation can succeed; (4) if the founder has a brother, the brother must succeed before a more distant relation. The rules ensure orderly succession and prevent disputes. The custom respects biological descent but accommodates adoption and minority situations. The rules are evidence-based—proved through testimony. The court applies the custom as proved. The succession order is hierarchical, not discretionary. The custom balances continuity with flexibility.