AN OVERVIEW OF WOMEN'S RIGHT TO SUCCESSION UNDER THE NIGERIAN CUSTOMARY LAW.
In the right to succession under the various Nigerian customary laws, women are faced with disadvantages, which have been traced to customs and traditional practices in the various communities. This article briefly explains the right of a woman to succession under three customs of Nigeria.
From time immemorial, customary law have been exclusively for the benefit of man and woman has been treated as passive and dependent on male support. Women represents a very significant number of the population of the world as a whole and Nigeria in particular. It is common knowledge that women are mostly responsible for rural households yet, our various customary law practices presumes women as unequal and subject to their male counterparts. In many communities, because of the norms, religious traditions, social customs, women are prohibited from owning, renting or inheriting property in their own names, and their access to and control over properties, are usually very limited or depended on their relation to male relatives. Most Customary laws in Nigeria are patriarchal, and as a patriarchal society, properties are vested in the name of the male. Customary laws of several communities impose conditions that make women's access to land only through male relations. In the case of Suberu vs Jibowu (1957) SCNLR 45, The Court held that:
“it is a well settled rule of native law and custom of the Yoruba people that a wife could not inherit her husband’s property since she herself is like a chattel to be inherited by a relation of her late husband”.
Customary law is a body of customs, norms and traditions which regulates various kinds of relationship between members in a community. See Oyewunmi v. Ogunesan (1990) 3 NWLR (Pt. 137) 182. Apparently, customary laws are rooted in the history, tradition and culture of people. It is indeed the indigenous law of Nigeria. The law essentially developed out of tradition and practices of the people and differs from one ethnic community to the other. Therefore, the term “Nigerian Customary law” does not suggest that there exist a single customary law which is followed by all communities in Nigeria. To qualify as customary law, it must be existing native law and custom. Generally a failure to comply with the customary law/rules for living may lead to punishment by the ancestral spirits because such non-compliance is regarded as disgracing or disrespecting the ancestors. It is important to note that, the recognition and enforcement of customary law is provided under the High Court Laws of various states of the Federation. For instance, section 34(1) of the High Court Laws provides that;
"The High Court shall observe and enforce the observance of every native law and custom which is not repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any law for the time being in force, and nothing in this law shall deprive any person of the benefit of any such native law and custom"
The Constitution of Nigeria 1999 as amended protects rights under its section 43 thus:
“Subject to the provisions of the Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria”.
It is important to note that the protection of property gives every person the right to peaceful enjoyment of their possessions. The Constitution of the Federal Republic of Nigeria (1999) as amended is the supreme law of the land, and so any other law in conflict with it, is invalid. What it means is that, any customary law practices or rules which run against the provision of the Constitution will be declared null and void; and thus, unenforceable. Regrettably, Customary law is a branch of law most complained of in matters of women’s property rights in Nigeria. A lot of concern had been expressed that Customary law is inequitable and more often than not leads to injustice to women. Section 42(1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian their freedom from discrimination, states that:
(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
a. be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject; or
b. be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
For instance, in 1963, the Supreme Court had in the case of Nezianya & Anor v Okagbue & ors (1963) 1 All NLR 352, held that a widow is a recognised member of her late husband’s family and not a stranger to it, and thus permitted to live in her late husband’s house, but she was not permitted to dispose the property by giving it out or selling it. This 1963 decision left women handicapped as they were incapable of exercising ownership rights over the properties of their late husband. This 1963 judgment also formed the basis of support for the old Igbo “Oli-Ekpe” custom which stated that only the eldest surviving male off-spring could inherit the property of their late father and prohibited female inheritance because the judgment suggested that ownership of property should be restricted to the patrilineal lineage of the deceased. However, in 1997, the Late Niki Tobi (Justice of the Court of Appeal) declared the “Oli-Ekpe” custom as being repugnant to natural justice, equity and good conscience in the famous case of Mojekwu v Mojekwu (1997) LPELR-13777(CA). In this case, the erudite Niki Tobi JCA took great pains to condemn this custom – and other customary practices – which discriminated against women, for being repulsive to equity in the modern day. This decision was widely hailed as a step in the right direction in the advocacy for women’s rights. Several other decisions of the Court of Appeal delivered between 1997-2003 followed this reasoning and affirmed the rights of women to own, inherit and purchase property. We will briefly look at the right to succession under the Bini Customary law; Igbo customary law and Yoruba customary law.
SUCCESSION UNDER THE BINI CUSTOMARY LAW: PRIMOGENITURE RULE
Under customary law, Primogeniture is the right of the first born son to inherit the entire estate of the deceased to the exclusion of younger siblings. The effect is that women, even if she is the first born of the deceased, are denied inheritance or succession. Women identity rested with the man in their lives: first with their father and then with their husband. Under the primogeniture rule, the head of the family is the eldest male child of the deceased who occupies the family house and holds same as trustees of other children. In Bini communities, the deceased’s property devolves to the eldest son exclusively in accordance with the rule under which the eldest son is expected to care for the young siblings and may dispose the family house over the wishes of other children or treat the property as his own. The customary law of succession in Benin is similar to the customary law of succession among the Igbos on the basis that they both apply the primogeniture rule which bars women from inheriting real property. The difference between the rules applicable in Benin and in Igbo land is based on the fact that in Benin, all real properties belonging to the deceased automatically devolves on the eldest son to the exclusion of his siblings. However, he becomes responsible for the upbringing of his family and continues to cater for his household. This is illustrated in the case of Ehigie v. Ehigie where the court held that in Benin, the eldest surviving son of a deceased person who performs all the customary funeral ceremonies at the burial of his father succeeds to his deceased father’s real property.
SUCCESSION UNDER THE IGBO CUSTOMARY LAW
Generally, the eldest son of the deceased succeeds to the estate. This mode is known among the Igbos as “Okpala or “Diokpa”. The Okpala who is the eldest son becomes the head of the family upon the demise of the family. Where however, the deceased father had more than one wife, the eldest sons of each of the wives takes part into the sharing of the estate. In cases where the deceased is not survived by a son, his brothers of full blood or his father in that order assumes the role of the family. In any event, wives and daughters are completely exempted from inheritance. However, in the case of Ukeje v. Ukeje (2014) SC 224/2004 the Supreme Court held that; the Igbo native law and custom which prohibited women to share of her deceased father’s estate is void as it conflict with section 42 (1) & (2) of the 1999 constitution as amended. In Mojekwu v. Mojekwu (1997) 8NWLR (Pt. 512) 283, the Nnewi customary law of Oliekpe was struck down under the repugnancy principle by the unanimous judgment of the Court of Appeal. The basis of the decision was that the customary law in question which permits the son of the brother of the deceased person to inherit the property of the deceased to the exclusion of the deceased‘s female child was a clear discrimination and thus inapplicable. However, this judgment overturned on appeal at the Supreme Court. In Igboland also, a woman married under customary law can only inherit her husband’s estate if the husband made a valid will and the property is not family property. However, her male children can inherit the man’s property where he dies interstate. If however, the woman is childless or has only female children, then neither she nor her children can inherit anything at all. This principle was illustrated in the case of Nezianya v. Okagbue (1963) 1 All NLR 352 where the court held that by native law and custom, possession by the land by the widow can never be adverse to the rights of her husband’s family so as to enable her acquire an absolute right to possession of it against the husband’s family. Thus, the plaintiff could not acquire any rights to the land through the widow. In other words, a widow’s possession of her deceased husband property, however long, does not make her owner. However, she only has the right to occupy the property or part of it subject to her good behavior. The only situation or exception where females can inherit is under the ‘Nrachi’ or ‘Igegbe’ institution. Under this practice, where a man dies without a male child to inherit his estate, the daughter will remain unmarried in her father’s home. The legal interest in the deceased father's estate vests in her until she gives birth, and only her children can succeed the deceased according to the rule of primogeniture. Where the female child is married, any property she acquired before marriage reverts back to the maiden family while properties acquired after marriage goes to her husband and his family upon her death. Personal properties like cooking utensils, clothes etc of a deceased mother goes to the daughter.
SUCCESSION UNDER THE YORUBA CUSTOMARY LAW
Two methods of succession exists under the Yoruba culture. These are Idi-igi method where property is shared per stripes (according to the number of wives); and the Ori-Ojori method where the property is distributed per capita (according to the number of children). It was held that the universally accepted mode of distribution in Yoruba land as the Idi-igi method. In the case of Dadowu v. Danmole (1958) 3 Fsc 46, where the court stated that the method was not repugnant but that the modern method of Ori-Ojori, was only used to avoid litigations. The effect of this is that children are entitled equally to inherit their father’s property irrespective of their gender under the Yoruba custom. The courts have clearly reinstated the custom when it held in Amusa v Olawunmi (2002) 12 NWLR (Pt. 780) that both the male and female children of a deceased have equal rights to inherit their father’s estate.
In the right to succession under the various Nigerian customary laws, women are faced with disadvantages, which have been traced to customs and traditional practices in the various communities. As civilization and culture advances, it is expected that the application of customary law must keep changing to adapt with the present time. Women should be allowed to succeed to estate of their parents, brothers, husbands as heirs by interstate succession and inherit the property with equal shares with male heirs with absolute right under any of the customary law. Women should not be conceived as being inferior or at the mercy of the male gender. No custom should override any right protected by the Constitution, especially the right against discrimination. Judges are enjoined to interpret customary provisions with a view to meeting the expectation of justice to all and sundry. It is also recommended that those customary law practices that disempowered the women's property rights be abolished. Until these are done, the women will continue to be denied their right to inherit their father’s or spouse’s property in the name of the archaic traditional and cultural practices.
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WRITTEN BY CHAMAN LAW FIRM TEAM
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