LEGAL PRINCIPLE: CUSTOMARY LAW — Kola Tenancy — Succession Governed by Lex Situs and Not Personal Law of Deceased Tenant
PRINCIPLE STATEMENT
Kola tenancy is governed by the lex situs (law of the place where the land is situated), not the personal law of the deceased tenant. So long as a deceased kola tenant is survived by children, male or female, the question of the deceased's brother inheriting would not arise.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in Mojekwu v. Iwuchukwu (2004) NLC-112000(SC) at pp. 9–10; Paras D–A.
"Kola tenancy in the main has the features of most customary tenancies ... Like most customary tenancies, kola tenancy confers to the grantee full rights of possession but it confers no more than a mere possessory right i.e. a right of occupancy of the tenant. ... There is the evidence in this case also that female children are entitled to inherit the Mgbelekeke kola tenancy held by a deceased kola tenant. It is clear from the law that so long as a deceased kola tenant is survived by children, male or female, the question of the deceased's brother or any such 'stranger' inheriting would not arise."
EXPLANATION / SCOPE
Kola tenancy succession is determined by the lex situs. The principle applies to customary land tenure. Children inherit, not brothers, if children survive. The rule protects the immediate family. The court will apply the custom of the land. The principle is well-established.
