Liberating Nigerian Widows from Prejudiced Rules of Succession upon Intestacy – Whither the Supreme Court of Nigeria?

 

By

Amos O. Enabulele, LL.M, Ph.D. (Brunel University, London) BL, Professor of Public International Law, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Nigeria, This email address is being protected from spambots. You need JavaScript enabled to view it.; Visiting Scholar, School of Law, University of Reading, UK This email address is being protected from spambots. You need JavaScript enabled to view it.

Anthony O. Ewere, LL.M, Ph.D. (University of Benin), BL, Senior Lecturer, Department of Private and Property Law, Faculty of Law, University of Benin, Nigeria; Barrister and Solicitor of the Supreme Court of Nigeria; This email address is being protected from spambots. You need JavaScript enabled to view it.   

 

Abstract

Intestate succession rules in many Nigerian communities discriminate against widows. In most cases, widows are completely disinherited because of their sex or for not having male children to perpetuate their deceased husband’s lineage. This practice has prevailed in Nigeria for many decades, despite the clear provisions of the Nigerian Constitution and relevant international instruments against gender-based discrimination. Attempts made by widows to challenge such bigoted customary practices yielded very minimal results, in view of the Supreme Court’s conservative stance which tended to favour the propagation of discriminatory customary rules of succession. However, in 2014, the Supreme Court finally took a progressive stance in Anekwe v. Nweke, wherein it deviated from its hitherto tolerant posture towards customary law rules that discriminate against widows. Anekwe v. Nweke entrenched the rights of widows to inheritance into Nigerian corpus juris and thus deepened their constitutionally guaranteed rights not to be discriminated against on account of sex. This article explores the rights of widows to succession in the light of Anekwe v. Nweke.

 

Introduction

In Nigeria, the right of inheritance is basically a function of customary law. In particular cases, the regime of customary law may be placed in abeyance by the adoption of the English law of succession by the deceased. Even in such cases, it is yet possible for the customary law, being the default personal law of every Nigerian, to be awakened in circumstances where a will is invalidated by the court. Despite the choice of a will, the vast number of persons who die intestate goes to show the major role customary law still plays in the scheme of inheritance.[1]

As succession under customary law are basically based on the rule of primogeniture, the emasculating role played by custom in succession matters in Nigeria invariably has its most significant effect on the succession rights of women – daughters and widows.

The focus of this article is however on the customary right of succession on widows and the effect of the intervention of the Supreme Court in relatively recent case of Anekwe v. Nweke[2] (hereinafter, “Anekwe”). In this case, Supreme Court adopted a progressive stance that is capable of halting the historic onslaught of discriminate customary law of succession on widows. Before the case, the right of widows to succeed to their husband’s intestate possessions suffered historic subjugation due to discriminate customary laws and judicial conservatism that prevailed over the years.  

For the sake of a proper delineation of the scope of this discussion, it is important to state at this point that this article deals particularly with the rights of widows to succeed to their late husband’s intestate property. When viewed along the lines in which the cases have developed, the succession rights of widows are distinct from the succession rights of daughters to inherit from their father’s estate. Accordingly, such cases as Mojekwu v. Iwuchukwu,[3] Mojekwu v. Ejikeme,[4] and other cases dealing with the succession right of the girl-child are of very marginal value to this work and may be mentioned only in passing to illustrate any point of convergence – the unkind posture of customary law – between the two strands. It suffices to say that the judicial affirmation of the succession rights of widows to their late husbands’ estates has not developed at the same pace as the right of the girl-child to their fathers’ estates, which has received far better responses from the courts. [5]

The article argues that Anekwe represents a shift in the approach of the Supreme Court towards the affirmation of the rights of widows to succeed to their late husbands’ intestate possessions and applauds the progressive engagement of the Supreme Court in the case. It expresses the hope that the progress begun by Anekwe will be sustained through a purposive interpretation of the Constitution of the Federal Republic of Nigeria, 1999, (CFRN) and other relevant pieces of legislation and treaties[6] to which Nigeria is a party.

To achieve its aim, this article explores cases spanning over decades prior to Anekwe with a view, not only to highlighting the judicial mode prior to Anekwe, but also to show the reforms introduced by Anekwe.  The article shall also examine sections 42(2) and 43 of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended), in order to understand the constitutional dimension to the issue.

The article proceeds in nine parts. Part II discusses the nature and application of customary laws; part III highlights the socio-economic implications of discriminatory customary law rules of succession against Nigerian widows, and the tension between customary norms; part IV discusses previous decisions of the court on the succession rights of Nigerian widows; part V examines Anekwe, against the backdrop of the previous decisions on succession rights of widows; part VI speculates on the probable reasons why the Supreme Court departed from its earlier rigid position on widows’ right to inherit; and part VII prognosticates on the future of Nigerian widows in light of the Anekwe decision, together with the possible influence of the case on the development of intestate succession rules in Nigeria. This is with a view to bringing to the fore the chances open to Nigerian widows who may wish to challenge prejudicial customary law rules of succession, subsequent to this decision. Part VIII examines the new doctrine of “practical realties of human civilisation” established in Anekwe and suggest that it is an objective principle for replacing the subjective repugnancy doctrine as a means of testing the validity and enforceability of customary law in Nigeria. The article concludes in part IX by positing firmly that the new dawn heralded by the decision of the Supreme Court in Anekwe will indeed be sustained by lower courts in Nigeria.

 

The Nature and Application of Customary Law

In Nigeria, as it is in other West African Countries, customary law is an unwritten but veritable system of law in that it touches every individual member of society in at least one significant way in a lifetime. Among other issues, customary law governs the celebration of marriage, the day of child’s christening, the acceptable day of the week for burial, burial rites, the devolution of intestate estates – which is the crux of this paper – among others. Though it is possible for an individual to suspend the order of a particular system of customary law, as the law that would govern his estate;[7] it is arguably impossible for a person who lives within a country that recognises a system of customary law, not to be touched by a rule of custom in one or all of the ways mentioned above.

The essential characteristics of customary law are in the fact that it is unwritten, flexible and that it mirrors the indigenous way of life of the people. As far back as the colonial era in West Africa, Osborne CJ acknowledged the quality of flexibility as a unique feature of the prevailing system of customary law when he said:

…indeed, one of the most striking features of West African native custom, to my mind, is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics.[8]

However, despite the fact that customary law is flexible and malleable to changing circumstances in society (according to the evolutionary needs of the people subject to its sway) some of its rules, like those regulating devolution of estates, have remained rigid and labelled as “barbaric”[9] for failing to conform with the rules of natural justice equity and good conscience.[10]

Nigerian courts are prohibited by law from enforcing a rule of custom that is “contrary to public policy, or is not in accordance with natural justice, equity and good conscience”.[11] In addition, enforceable customs are required not to be incompatible with any written law for the time being in force.[12] Accordingly, to make customary law more progressive, the courts possess a general power to declare a custom unenforceable where such a custom does not pass the test of enforceability. It is pertinent to mention that these provisions only have the effect of precluding the courts from enforcing harsh rules of customs but do not give the courts the power to abrogate such a custom. Indeed, though the refusal of a court to enforce a custom may influence a change in the custom, a declaration that a custom is unenforceable cannot without more terminate the existence and application of the custom within the community that constitutes the inner circle of its operation.[13] This is in itself one of the worrisome aspects of the relationship of custom with the courts in that the mere fact that a court has refused to enforce a custom that discriminate against widows in any particular case does not mean that the very custom that was involved in that case would fall into desuetude within the local community.  

 

Socio-Economic Implications of Discriminatory Customary Law Rules of Succession

There are many customary laws as the number of tribes in Nigeria, with each custom having its distinct area of application. This diversity, notwithstanding, the various customs share a common circle of semblance with respect to discrimination against widows, particularly in the area of succession to intestate estate.[14] For instance, in Osilaja v. Osilaja[15] – a case which epitomizes the rule in south-western communities in Nigeria – the Supreme Court noted that customary law rules that deny widows the right to succeed to their deceased husband’s estate under Yoruba customary law were so notorious by frequent proof in courts that they have become capable of being judicially noticed in court without the need of further proof. A similar precarious status of widows exists in the south-southern and south-eastern parts of Nigeria (particularly among the Igbos) where, subject to good behaviour (as defined by her husband’s relatives) a widow is allowed to reside in her late husband’s house until she dies or remarries, only  if she has a male child for the deceased husband.[16]

These customs reinforce male dominance over women. This is particularly so as there is no Nigerian community where widowers suffer any disadvantage relating to succession where they are predeceased by their wives.[17]  There are no known custom that disentitles a widower from succeeding to any property acquired by his wife in her lifetime; particularly where the woman died without an issue, or where she is survived by infant children.[18]

This double standard directly dictates the social and economic statuses of women, especially when viewed alongside the fact that such discriminate customs are based on the rationale that women are incapable of holding properties. The status of widows under such customs is that of one of the deceased possession; the widow is thus to be distributed as one of the deceased husband’s physical possessions.[19] Put differently, by customary design, widows and women, generally, are regarded as mere chattels that are not capable of holding real property, but meant to be inherited by agnates of their husbands,[20] in line with the belief that succession follows the bloodline under customary law.[21]

It is thus been observed that “during a customary union, they [wives] are legally prevented from maintaining a separate estate, and should the union be dissolved [by death], the law is such that they leave it virtually empty-handed”,[22] irrespective of their contributions to what later translates to their husbands’ estates at death.[23]

This customary subjugation of wives misses the point that gender equality and women empowerment are basic human rights that lie at the heart of a just and equitable distribution of economic resources. Discriminate customs make the wife potentially homeless and without means of survival should her husband die intestate. The possibility of the widow surviving her husband thus makes her perpetually insecure.[24] In most cases, the denial of succession rights happens at a time when the widow is too old to fend for herself in life.[25] In such situations, the custom denigrates the widow’s dignity and compels her to live at the mercy of those who have, by customary law, arrogated her late husband’s intestate possessions to themselves.

This male-dominance stance of customs is itself driven by economic considerations – the belief that the resources of the family should be perpetuated through the bloodline, since a woman only temporarily fully belongs in her maiden family until she marries, after which, she (together with her possessions) belongs to her husband and to his agnates in succession, should he predecease her. This also is the consequence of communal and extended nature of the African structure of yesteryears. Communality of resources was maintained and managed through male dominance, by which the resources of the family were entrusted to male children. In addition to this, the wife was even not capable of holding her own real property during the lifetime of her husband; her place of work was her husband’s farm and the home. She was financially dependent on her husband upon whom custom placed the responsibility to provide for the home.   

The fact that societal reality in the formative years of the present-day discriminatory norms of customs is evidently different from modern societal reality sufficiently questions the sustenance of the discriminate customs of yesteryears. Our present reality is such that communality has been replaced by the nuclear family structure; ours is now a society where the extended family structure is no longer based on entitlement to family resources. What seems not to have progressed with the change in family structure is the place of widows in intestate succession matters.

It is safe to observe that cultural practices that have served to undermine the status of women are no longer tenable in modern society.[26] Even though the organising principles, ideas and institutions of traditional societies brought about harmonious living among the people historically, these principles and institutions can bring about negative consequences if not reformed to suit contemporary society.[27] This is because the philosophies upon which such cultural practices were based are no longer in tune with present-day realities.[28]Above all, in modern times, both men and women contribute, in real economic terms, to the wealth of the family[29]and the custom that a woman was incapable of owning property in her own right is no longer tenable, since the Constitution guarantees the rights to property to both sexes without discrimination.  Even if it happens that a woman owned no property and indeed had no income of hers to contribute to the family, it remains certain that a woman’s contribution to the wealth of the family is not limited to tangible contributions that could be denominated in monetary terms. Importantly, a wife that gives up her career to raise the kids and keep the home, contributes as much to the family estate as the husband who earned the finances. There can therefore be no fairness in any rule that completely ignores the contribution of the wife upon intestacy.[30]

In economic terms, the negative impact of such discriminate laws on the wellbeing of a nation cannot but be enormous in that the empowerment of women is a viable tool for eradicating poverty and advancing general societal development.[31] It has thus been argued that discriminate customary law rules of succession, which are oppressive against widows, largely contribute to the feminization of poverty which ultimately stunts development in many communities.[32] Several widows in Nigeria are impoverished by discriminatory customary law rules of succession which place them in a highly disadvantaged position. After being dispossessed by unfavourable rules of succession, many widows may have to depend on friends and family members for survival. As a result, the few literate ones who may be aware of legal authorities in support of their succession rights usually lack the financial wherewithal to prosecute a legal action to its logical conclusion.[33] It is therefore arguable that the nullification of discriminatory rules of succession is critical to the phenomenon of the feminization of poverty in Nigeria.

 

Anekwe Case Law

As hinted above, for so many years the Supreme Court maintained a conservative posture towards the succession rights of widows and thus helped to perpetuate discriminate customary laws against widows. This is obvious from decided cases.  One of the earliest cases is Aileru v. Anibi.[34] In this case, the defendant’s uterine brother died intestate and was survived by children who were minors at the time of his death. Defendant applied for letters of administration to manage his late brother’s estate. Three of his late brother’s four widows (plaintiffs’ mothers) entered a caveat and offered to administer the estate as next friend of their children, while one of the widows supported defendant’s application. The evidence before court was that under Ijebu-Igbo (Yoruba) native law and custom, which was applicable to the case, widows cannot inherit or administer their late husbands’ estates. At the end of the case, the court rejected the three widows’ application basically because of this native law and custom which excluded the widows from inheriting or administering their deceased husbands’ estates.[35] The court eventually granted letters to the Administrator-General to administer the estate because evidence that was led in court showed that defendant unilaterally sold some personal properties of the deceased without giving account.  

Bolaji v. Akapo,[36] followed the same trend. Here, both plaintiffs and defendants claimed to be entitled to grant of letters of administration to administer the estate of the deceased who died intestate. The deceased was survived by five widows and eleven children. The plaintiffs were some of the deceased’s children, while defendants were alleged creditors of the deceased. The court observed that the applicable rules of court did not provide for persons entitled to apply for letters of administration in the circumstance, but that section 27 of the High Court of Lagos Act enjoined the court to observe and enforce every native law and custom which is applicable and not repugnant to natural justice, equity and good conscience. The court further noted that the properties of the father under Yoruba native law and custom devolve on his children, and that since the widows of an intestate who married under native law and custom are regarded as part of deceased’s estate under Yoruba native law and custom, the widows were not entitled to apply for grant of letters of administration. The court therefore held that in the circumstance, the only persons entitled to the grant were the four plaintiffs who were some of the children of the deceased.[37]

In Akinnubi v. Akinnubi,[38] the widow (W) was married to the deceased under Yoruba customary law. They had five children, who were all minors when their deceased father died intestate. Upon his death, the appellants, who were brothers of the deceased (BB), applied to the Probate Registrar for grant of letters of administration to enable them to administer the estate of their late deceased brother and husband of W, principally his building. Following the publication of the application, W lodged a caveat against the application, nevertheless, the Registrar granted letters of administration to BB. In a suit by W, BB argued that W lacked standing as she was a part of her late husband’s estate to be administered under customary law, and as such, she was not entitled to administer or inherit her deceased husband’s estate. The trial court held that W had standing since W instituted the action on behalf of her infant children. On BB’s appeal to the Court of Appeal and subsequently to the Supreme Court, both courts found in favour of W only in respect of her right to be joined as co-administrator of the estate on behalf of her infant children, but nothing was said about her right to inherit her deceased husband’s estate.

The point that must not be missed here, however, is the basis for the decisions of the court in Akinnubi. The basis was not the right of the widow but on the rights of her infant children. In other words, this case was approached from the angle of the succession right of the children of the marriage and not from that of the succession right of the widow. For the avoidance of doubt, it was the view of the Supreme Court that it was the children that were the real plaintiffs in the action and that since they could not sue under the rules of court as infants, they could only bring the action through their next friend, who was their mother in the circumstance. According to the court, the widow instituted the action not for her own benefit but in the interest of her children who were under her custody and care.[39] The court added that since there is no provision under the Yoruba custom that prohibits a widow from suing as the next friend of the legitimate infant heirs of her deceased husband, W had full capacity to challenge BB on the issue of grant of letters of administration in that she has a special interest in the estate as her infant children’s next friend.[40]

The above decisions demonstrate the initial unwillingness of the Supreme Court to frontally address the rule that deny widows the right to inherit their husbands’ estates and the consequences of that rule – the customary practices that regard widows as part of their deceased husbands’ estates. This is obvious from the fact that the pleading raised issues relating to the right of a window to inherit her deceased husband’s estate, and whether it was proper to tag her as a chattel that was subject to inheritance. For inexplicable reasons, however, the courts did not address these important issues.[41]

Obviously, the decisions did not demonstrate a willingness on the part of the Supreme Court to address the problems associated with gender-based discriminatory customary law rules of succession against widows at that time. The Court therefore failed to provide enough guidance to lower courts on a uniform approach to be adopted on the issue.[42] What the Supreme Court achieved in Akinnubi, for instance, was to simply collapse the rights of widows into the succession rights of their infant children. Thus, while they were not entitled to sue in their own name or claim personal right to succession, widows could do so as their children’s next friend and thereby obtain a right to administer their deceased husbands’ estates on behalf of their infant children.[43] It was therefore intended that the right to manage intestate estate does not exist for a widow where her children are of age[44] or where the widow is childless. The tenor of the court’s decision also suggests that the widow’s case would have failed had she no infant children or had there been known Yoruba custom that prohibited a widow from suing as the next friend of her legitimate infant children.

The view maintained by the Court in Akinnubi, though an improvement on the previous stance of the court, was not significantly different from the earlier position in such cases as Bolaji v. Akapo,[45] and Aileru v. Anibi.[46] In the latter, not even the fact that the widows had infant children could sway the Court to allow them personally manage their deceased husbands’ estates. In other words, the decision in Akinnubi case, though progressive on the surface, did not strengthen the succession rights of widows in any significant way. The Court’s references to the harsh decisions in Bolaji and Aileru cannot but give credence to the denial of widows’ rights to administer or inherit their husbands’ property the applicable customary law. Expectedly, these earlier cases led the court to the view that:

...under the Yoruba customary law, a widow under an intestacy is regarded as part of the estate of her deceased husband to be administered or inherited by the deceased’s family; she could neither be entitled to apply for a grant of letters of administration nor to be appointed as co-administratrix of her deceased husband’s estate.[47]

The best customary privilege which the court affirmed for widows who were faced with discriminate customs prior to Anekwe was the right to be accommodated in her husband’s house for life or until she remarries, subject to her good behaviour.[48] This right is not absolute. It does not authorise the widow to sell or alienate her deceased husband’s property without the consent of members of her deceased husband’s family.[49] In Nezianya v. Okagbue,[50] a widow devised the property in issue to her grandchildren who were female issues of her only child (a daughter). In the suit, which was between her grandchildren and deceased husband’s family, her grandchildren claimed exclusive possession against her husband’s family members who argued that widows and daughters cannot inherit real property under Onitsha native law and custom. The Supreme Court held that under Onitsha native law and custom, a widow only enjoys right of occupation, subject to good behaviour, and that the right does not make her the owner of the property to enable her deal with it without the consent of her husband’s family.

The full effect of this customary law rule that the right a widow has over her deceased husband’s property is nothing more than a right to reside therein in her lifetime came to bear in Nzekwu v. Nzekwu.[51] In the case, the deceased husband’s nephew sold property belonging to the deceased, claiming that he became entitled to the property under the oli-ekpe custom on the ground that the deceased was survived by a widow who only had daughters. Upholding the tenets of this custom, the Supreme Court stated that the estate reverts to the members of the deceased’s family after the death of the widow if she was not survived by a son.

As observed above, the unequal treatment in succession matters under customary law puts widows in some parts of Nigeria in a very precarious position, reducing their self-esteem and their chances of survival after the death of their husband. This concern was better expressed by Edward Wiredu, J. in a similar situation in Ghana in Amissah-Abadoo v. Abadoo.[52] In this case, the Judge expressed his displeasure with the Akan customary law rule that only permits the widow and children of a husband who died intestate to reside in his home during her widowhood, subject to good behaviour. According to the learned Judge:

The injustices and hardships caused to children and widows by tacking on the phrase ‘subject to good behaviour’ as a limitation to their rights to reside in houses which their deceased fathers and their husbands respectively die passed of, irrespective of how they came by such property, have been ignored indiscriminately in the past to the detriment of the children and widows. The conduct of the family flowing from this neglect must be frowned upon as behaviour not countenanced by customary law and calls for an urgent need for a more realistic and practical re-appraisal of this aspect of the customary law in view of the fast social changes in the country….[53]

Although the above observations primarily dealt with Akan customary law in Ghana, the opinion, nevertheless, applies with equal force to any customary law in Nigeria that disinherits widows on similar grounds.

It is however arguable that there is nothing untoward in expecting a widow to be of good behaviour in her deceased husband’s house. What is worrisome is that her occupation is constantly threatened by bias, in view of the fact that what amounts to good behaviour is usually determined by the relatives of her deceased husband who are, most of the times, interested in the property she is occupying. The underlying desire of the agnates of the deceased husband to take control of the deceased estate to the exclusion of the limited right of occupation the widow is allowed to enjoy, “subject to good behaviour”, highlights the injustice the widow is bound to suffer. How can it be that those who are interested in the outcome of the widow being said not to be of good behaviour are the same people who have the mandate to determine that she is of good behaviour? 

Unlike the Supreme Court, the following decisions demonstrate the strong resolve expressed by the Court of Appeal, which is the penultimate court in Nigeria, to enhance the rights of Nigerian women during the period under review, even though succession rights of widows was not in issue in most of the available cases. Prior to when the Supreme Court saw the light in Anekwe, the Court of Appeal progressively gave scope to the provisions of the CFRN and international conventions in appraising the enforceability of customs that discriminate against women.

In Uke v. Iro,[54] the Court of Appeal evidently spelt out the legal consequence of discriminatory customary practices. In this case, the appellants argued that under Nneato Nnewi custom, a woman is incompetent to testify in land dispute. The court held that the assertion offends the constitutional provision which guarantees equal rights and protects the rights of all sexes under the law in Nigeria. In the words of Pats-Acholonu, JCA:

Any customary law which flies against decency and is not consonant with notions, beliefs or practice of what is acceptable in a court where the rule of law is the order of the day should not find its way in our jurisprudence and should be disregarded, discarded and dismissed as amounting to nothing. Any law or custom that seeks to relegate women to the status of a second class citizen thus depriving them of their invaluable and constitutionally guaranteed rights are laws and customs fit for the garbage and consigned to history.[55]

The court further stated that a custom that strives to deprive a woman of her constitutionally guaranteed rights is otiose and offends the provisions that guarantee equal protection under the law and all decent norms applicable in a civilized society.[56]

The court adopted the same approach in Muojekwu v. Ejikeme,[57] a case bordering on succession rights of daughters, where the court alluded to the protection provided for women by the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). In the case, Tobi, JCA (as he then was) declared that:

In view of the fact that no issue of widow or widowhood was raised in the case, I shall not go into the above contradictory evidence. It is however a matter of grave or serious concern whether it is not time that courts of law consider the predicament and deprivations of widows in the hands of in-laws in the guise of customary law with a view to upholding the evidence of DW3 which is similar to inheritance under Islamic law [where widows have a right of inheritance]. It is discriminatory and therefore against the provisions of the Nigerian Constitution and CEDAW.[58]

Asika v. Atuanya,[59] which concerned the status of Onitsha customary law that discriminates against the female sex with respect to succession to property, is also worth mentioning. Here, the Court of Appeal held that it is a matter of trite law that native law and customs that discriminate against women should not be allowed to rear their ugly heads as they are not only at variance with section 42(1) and (2) and section 43 of the CFRN, they are also repugnant to natural justice, equity and good conscience and must be abolished. The court relied on article 2(f) of the Convention on the Elimination of all forms of Discrimination against Women[60] and article 16 of the Universal Declaration of Human Rights to demonstrate the universal movement against such discriminate laws and practices.[61]

As already mentioned, the above reference to constitutional provisions and international conventions have been employed by the Court of Appeal to declare rules of customary law that discriminate against women unenforceable, but those cases specifically addressed the right of daughters to inherit their father’s intestate estate and not the succession right of widows. As the latter is regulated by different set of customary law rules from those regulating the succession right of daughters, the progress made in those cases did not address the succession right of widows. As a matter of precedent, the existence of such authorities as Nezianya v. Okagbue[62] and Akinnubi v. Akinnubi,[63] (which epitomised the Supreme Court’s unwillingness to secure succession rights for widows), the efforts made by the Court of Appeal in the above cases could not be of any benefit to widows.

 

Anekwe v. Nweke’s Case

The facts of Anekwe’s case which forms the fulcrum of this paper is as follows. The respondent was a widow who had six daughters for her deceased husband, Nweke Nwogbo, who died intestate. She resided in her matrimonial home after the death of her husband. The appellants who were her deceased husband’s relatives asked her to vacate her matrimonial home on the ground that under Awka native law and custom, the deceased’s widow is not entitled to any part of his estate or occupation of same where she has no son with the deceased. The respondent relied on evidence of arbitration made by the Ozo Awka society in claiming that under Awka custom a widow is entitled to inherit her deceased husband’s house whether or not she has a son.[64] The two lower courts decided in favour of the respondent/widow. On appeal to the Supreme Court, the issue was whether the respondent who had no son could inherit any part of her deceased husband’s estate. The Court dismissed the appeal and upheld the decisions of the lower courts which recognised the right of the widow to continue to live in her matrimonial home, which forms part of her deceased husband’s estate.[65]

As against the discomforting silence of the Supreme Court in Akinnubi v. Akinnubi,[66] Justices of the Supreme Court broke their silence on the interface between constitutionally protected rights and the discriminatory customary law rule relied upon by the appellants. The Court did not also hesitate to unanimously denounce the customary law relied upon by appellants and similar customary practices that discriminate against widows and daughters in succession and other related matters. The relevant reasoning of the Justices in the case is generously set out and reviewed below.

First was the strongly worded pronouncement of Ogunbiyi, JSC who delivered the lead judgment in the case. While expressing her displeasure over discriminatory customary law rules of succession, Ogunbiyi, JSC, held:

... the custom and practice of Awka people upon which the appellants have relied for their counter-claim is hereby outrightly condemned in very strong terms. In other words, a custom of this nature in the 21st century societal setting will only tend to depict the absence of the realities of human civilization. It is punitive, uncivilized and only intended to protect the selfish perpetration of male dominance which is aimed at suppressing the right of the womenfolk in the given society. One would expect that the days of such obvious differential discrimination are over. Any culture that disinherits a daughter from her father’s estate or wife from her husband’s property by reason of God instituted gender differential should be punitively and decisively dealt with. The punishment should be severe as a deterrent measure and ought to be meted out against the perpetrators of the culture and custom.[67]

Justice Ogunbiyi went further to condemn the attitude of the appellants’ counsel who, according to the learned Justice, supported an un-progressive customary practice in spite of his education and exposure. The learned Justice expressed her disappointment in the following manner:

For a widow of a man to be thrown out of her matrimonial home, where she had lived all her life with her late husband and children, by her late husband’s brothers on the ground that she had no male child, is indeed very barbaric, worrying, and flesh skinning. It is indeed much more discriminating especially where the counsel representing such perpetrating clients, though learned, appear comfortable in identifying, endorsing and also approving of such a demeaning custom…. The impropriety of such a custom which militates against women, particularly widows, who are denied their inheritance, deserves to be condemned as being repugnant to natural justice, equity and good conscience….[68]

Although the activist opinion expressed about discriminatory customary practices by the learned Justice is very comforting and commendable, particularly as it was a radical shift from the earlier conservative stand of the Supreme Court, the swipe taken on the counsel in this case is unwarranted. After all, the counsel was merely capitalising on the prior conservative posture of the Supreme Court.

Agreeing with the displeasure expressed by Ogunbiyi, JSC about customary law rules of succession that promote discrimination on ground of sex, Muhammad, JSC described such customary law rules as anachronistic, un-progressive, and contrary to the rules of natural justice, equity and good conscience. In his words, Muhammad, JSC opined as follows:

It baffles one to still find in a civilized society which cherishes equality between the sexes, a practice that disentitles a woman (wife in this matter) to inherit from her late husband’s estate, simply because she had no male child from the husband. The practice, I dare say, is a direct challenge to God the Creator who bestows male children only; female children only (as in this matter), or an amalgam of both males and females, to whom He likes. He also has the sole power to make one a barren. There is nothing virtually one can do if one finds oneself in any of the situations. To perpetuate such a practice as is claimed in this matter will appear anachronistic, discriminatory, and unprogressive. It offends the rule of natural justice, equity, and good conscience. That practice must fade out and allow equity, equality, justice, and fair play to reign in the society.[69]

Similarly, Ngwuta, JSC made the following statements concerning the custom in issue:

…the custom pleaded herein and is a similar custom in some communities wherein a widow is reduced to chattel and part of the husband’s estate, constitutes, in my humble view, the height of man’s inhumanity to woman, his own mother, the mother of nations, the hand that rocks the cradle. The respondent is not responsible for having only female children. The craze for which a woman could be denied her right to her deceased husband or father’s property is not justified by practical realities of today’s world. Children, male or female, are gifts from the Creator, for which the parents should be grateful. The custom of Awka people of Anambra State pleaded and relied on by the appellants is barbaric and takes the Awka community to the era of cave man. It is repugnant to natural justice, equity and good conscience, and ought to be abolished.[70]

In concluding this historic break from the past approach of the Court, Ariwoola, JSC, seriously questioned the rationale behind gender-based discrimination prevalent in many communities in Nigeria. He suggested that such un-progressive customary laws of succession should be declared unenforceable by the courts. In his words:

By this [custom], it meant that the said six children of the respondent were denied their entitlement to inherit their father’s property simply because of their gender. There is no doubt, this custom pleaded and canvassed by the appellants against the respondent is, to say the least, repugnant to natural justice, equity and good conscience. It is even barbaric. One wonders whether it was the respondent’s making what sex the pregnancy that her late husband made with her will come out with. Indeed, such a custom that discriminates against female children is a challenge on God Almighty who is the maker and producer of children…. It will therefore be inhuman and injustice to discriminate against a female child on her father’s property or a widow on the ground that she has only female children for the late husband.[71]

The pronouncements made by the Justices in Anekwe’s case are remarkable. The mood of the Justices in the case clearly shows that the Supreme Court is now willing to change the Court’s earlier policy on discriminatory customary rules and affirm succession rights for widows and daughters in Nigeria.[72] It is also worthy of note that in condemning the perpetuation of discriminatory customary law rules on succession, the Court made very general and far-reaching pronouncements that could apply to other forms of gender-based discrimination against widows and daughters under customary law.[73] Besides, the inappropriateness associated with discriminatory customary law rules in modern society was very obvious in the views expressed in both the lead and concurring judgments. Unlike in Akinnubi,[74] where the Supreme Court refused to comment on the legal propriety of relegating widows to the status of mere chattels to be inherited by their deceased husband’s agnates under customary law, Ngwuta, JSC, specifically condemned every custom that reduces widows to chattels included in their husbands’ estates to be inherited by the deceased’s relatives. In the learned Justice’s opinion, such customs are oppressive and inhuman.[75] Ngwuta, and Muhammad, JJSC further observed that the preference for sons as a yardstick for determining widows that are entitled to succeed to intestate estate is regressive as it cannot be justified by the practical realities in contemporary society.[76]

Irrespective of the above strong points drawn from Anekwe’s case, the case also suffers from some pitfalls. As a female Justice, the passion with which Ogunbiyi, JSC, expressed her views in the case portrays the strong influence of sentiment in the Court’s onslaught against discriminatory customary practices, rather than relying on established rules of law. Apart from Ngwuta, JSC, who referred to such cases as Lewis v. Bankole,[77] Eleko v. Secretary, Government of Southern Nigeria,[78] and Dawodu v. Danmole,[79] in passing (when declaring the custom and practice of the Awka people relied upon by the appellants repugnant), the other Justices did not rely on any authority (statutory or case law) apart from the repugnancy doctrine and the novel ground that discriminatory customary practices on succession tend to portray the absence of the practical realities of contemporary society in the affected communities.

The High Court Law of Anambra State, which is applicable to Awka community where the cause of action arose, was not even cited as statutory authority for the test of repugnancy. At best, the comments made by Ogunbiyi, Muhammed, and Ariwoola, JJSC show that the learned Justices relied more on religious sentiments instead of supporting their decision with established legal authorities that have binding effects on the Court. The importance of this observation lies in the fact that Nigeria is a secular state where the constitution allows freedom of religion.[80] This is to ensure that the ideals of other religious adherents, or even atheists, is not adversely affected, and that Nigerians of all creeds repose absolute confidence on the decision of the Supreme Court in Anekwe’s case. Since the judgment is expected to bind every Nigerian, irrespective of their religious affiliation, a more normative approach was for the Justices to anchor the reason for their decision on available constitutional provisions like section 42 of the CFRN or relevant international instruments like the African Charter on Human and Peoples’ Rights.[81] These are undoubtedly the most solid legal ground upon which condemnation of any form of gender-based discrimination can be based.

Moreover, unlike the Court of Appeal which has repeatedly relied on international human rights instruments to strike down customary practices that discriminate against daughters upon intestacy on various occasions,[82] none of the Supreme Court Justices in Anekwe hinged the succession rights of widows on international human rights instruments that have either been domesticated or ratified by Nigeria.

It is unclear why the panel of Justices of the Supreme Court in Anekwe was unwilling to acknowledge the relevance of various international human rights instruments against gender-based discrimination in its condemnation of discriminatory and regressive customary practices that disinherit widows.  What is thus clear is that the failure to anchor this gallant reasoning on any legal instrument, despite the existence of clear constitutional provision and relevant international instruments, may arguably be construed as a judicial imposition of the judges’ sense of appropriateness on the people subject to the custom.

 

Probable Reasons for Supreme Court Change of Policy in Intestate Succession Cases

A number of reasons may have persuaded the Supreme Court to depart from its earlier conservative position that encouraged discriminatory customary practices against widows to thrive in many Nigerian communities. For instance, as human beings, Supreme Court Justices are not immune to the global effect of international conventions against discrimination.[83] The general anti-discrimination atmosphere created by the influence of section 42 of the CFRN may have also swayed the minds of Justices that presided over the landmark case of Anekwe v. Nweke where succession rights of Nigerian widows upon intestacy was recognized by the Supreme Court.

The above views only qualify as mere conjectures of the writers, since no member of the panel of the Supreme Court in Anekwe’s case referred to any international convention or the fundamental constitutional provision in section 42 in support of the decision. It is however evident that as at the time the decision was given, the Supreme Court was under the leadership of a woman, Justice Mariam Aloma Mukhtar, who was the first female Chief Justice of Nigeria (CJN).[84] It must not escape notice that it is the duty of the CJN to constitute the panel that hears any matter instituted at the Supreme Court. In view of the foregoing, Justice Mariam Aloma Mukhtar was therefore in a position to constitute a panel that is sympathetic to the plight of women in the face of unwholesome customs to hear the appeal, since she could, to a very large extent, predict the temperament of her learned brothers on the Bench. It is also arguable that it is not a mere coincidence that a woman, Ogunbiyi, JSC, delivered the lead judgment in the case.

It would thus appear that the Chief Justice was disposed to changing the pre-existing pro customary law stance of the Supreme Court towards the rights of widows in succession cases. It is therefore safe to postulate that the change in policy in favour of widows in Anekwe’s case might have been made possible by the increasing number of female Justices in the Supreme Court as against the lack of a single female Justice when all other cases that failed to condemn discriminatory customary practices against widows were decided.[85] This sits well with the view of Susan Williams, who argued that women will gain more respect in traditional society if they are involved in the decision making process in society. Lasting changes affecting women under customary law are only possible when women in traditional societies are given opportunity to exercise power on issues concerning their rights.[86] Therefore, women are encouraged to aspire to critical policymaking roles in society to promote and sustain significant shifts from the biased customary rules of succession prevalent in many communities in Africa.[87] This view is in tandem with article 17(1) and (2) of the Protocol to the African Charter on Human and Peoples’ Rights, 2003, which accord women the right to live in a positive cultural context, and mandate state parties to take appropriate measures to enhance the participation of women in the formulation or determination of cultural policies at all levels of society.

It is obvious from pre-Anekwe decisions that Anekwe was a fundamental shift from the earlier conservative posture of the Supreme Court in matters relating to intestate succession rights of widows when there were no female justices at the apex court. The outcome in Anekwe’s case supports the view that the presence of women on the bench makes the style employed in adjudication more reasonable, and that it increases the confidence of a higher percentage of the populace in the judiciary.[88]

 

The Future of Nigerian Widows in Post the Anekwe Era

The future of Nigerian widows upon intestacy looks bright in the light of the Supreme Court decision in Anekwe. Female children in Nigeria can also share from this optimism, in view of the liberal and far-reaching nature of the decision. This is more so as the case is now the final judicial authority on gender-based discriminatory rules of intestate succession, as it affects Nigerian widows. Following the principle of stare decisis, which makes decisions of higher courts binding on lower courts in Nigeria, and the Supreme Court, being the final judicial authority in Nigeria, the Anekwe decision would definitely control future judicial decisions in intestate succession cases in Nigeria.

Incidentally, while Anekwe was sounding the death knell for discriminate customary law of succession against widows in respect of their late husband’s intestate possessions, Ukeje v. Ukeje,[89] (decided on the same day) was doing the same for customs that discriminate against daughters in respect of their late father’s intestate properties. In Ukeje, the Supreme Court declared that customary law rules of succession that discriminate against daughters is unconstitutional

Indeed, it could be said that the Supreme Court played the role of Undertaker to all forms of discrimination customs against women upon intestacy through its decisions in the cases of Anekwe and Ukeje. It is even arguable that the authority offered by Anekwe and Ukeje is broad enough to protect the female gender against other cultural deprivations or discrimination in other spheres of life where discriminatory customary law rules have hitherto held sway in the absence of definite pronouncement from the Supreme Court. It is more so since the non-discrimination clause in section 42 of the CFRN can adequately serve as the background for the judicial authority to cover new grounds.

 

The Practical Realities of Human Civilization Doctrine

It is our view that the decision in Anekwe established a new and better doctrine (as against the repugnancy doctrine) by which the enforceability of customary laws should be accessed. This is the “realities of human civilization” doctrine postulated in the combined reasoning of Ogunbiyi, and Ngwuta JJSC.  In her lead judgment, Ogunbiyi, JSC, reasoned that “…a custom of this nature in the 21st century societal setting will only tend to depict the absence of realities of human civilization…”.[90] This was supported in the reasoning of Ngwuta, JSC, who reasoned that discriminatory customary practice was “…not justified by practical realities of today’s world…”.[91] Other Justices equally relied on the view maintained by Ogunbiyi, JSC in the lead judgment that discriminatory customary practices can no longer stand the test of time for being against the practical “realities of human civilization.”[92] By the strength of Anekwe, being a decision of the Supreme Court, this principle has become a viable ground for challenging discriminatory and archaic customary law rules of succession.

Though the term “practical realities”, has some air of nebulosity, its objective content presents it in a better light than the repugnancy doctrine, which is not only nebulous but also subjective and reflective of our colonial history. It is thus argued, from an objective view, that what conforms to “practical realities” should be gathered from the state of constitutional provisions and international law on equality of sexes, for instance. For the avoidance of doubt, the decision in Anekwe was made possible by the fact that unlike the position in the past where customary laws that denied the succession and other rights of women was acceptable to many people in traditional society, contemporary societies are now based on laws that support equality – this indeed is the “practical reality” of our time. Indeed, the cultural dogmas that sustained that anti-women customs, such as those customs that regard women as mere chattels and of no economic value, has now been discredited by the contemporary realities that women’s roles are no longer limited to performing home chores, bearing children and satisfying their husbands’ sexual needs. Economic and social conditions have made many women breadwinners in their homes, in addition to taking care of other family responsibilities in contemporary society.

 

Conclusion

Regrettably, it is possible to argue that the Supreme Court decision in Anekwe has not fully settled all the issues bordering on the intestate succession rights of widows in Nigeria. This is because the Supreme Court did not make any specific pronouncement on the succession rights of a childless widow in Anekwe.[93] The reason for this is understandably because the case involved a widow with only daughters and that being the case, it would have been academic for the court to speculate on what its decision would have been had the widow been childless. It must here be borne in mind that the earlier decisions of the Court in Nezianya v. Okagbue[94]  and Nzekwu v. Nzekwu,[95] which affirmed the right of widows to live in their deceased husbands’ houses for life or before they remarry, equally involved widows with daughters. It therefore means that the issue whether a childless widow can inherit remains unsettled by judicial authority.[96]  Notwithstanding, it is our firm view that the principle laid down in Anekwe is wide enough to cover childless widows in that the principle is deliberate enough to enable a widow succeed to her late husband’s property in her own right. The corollary of this view is that the “occupy for a lifetime subject to good behaviour rule” is no longer part of our positive law.

There is no gainsaying the fact that the decision in Anekwe shows the growing tendency on the part of the Supreme Court to give definite effect to constitutional provisions against discrimination and provide the necessary impetus for the evolving global trend against gender-based discrimination in Nigeria.  This is bound to have a revolutionary effect on the succession rights of widows in Nigeria. Indeed, the primus place of the Supreme Court in the judicial hierarchy invariably means that all lower courts are bound to queue behind the Supreme Court in its newfound desire to reform the nation’s moribund intestate succession rules for the benefit of widows in Nigeria.

 Even though the Supreme Court has the powers to reverse itself in deserving circumstances, it is very unlikely that another panel of the Court would want to reverse this decision in future. This is due to the fact that the Supreme Court jealously guides its judgments in order not to undermine the very high regard it enjoys from lower courts and citizens of the country. As laid down in Odi v. Osafile,[97] the Supreme Court can only reverse its earlier decision where it is convinced beyond any iota of doubt that the decision in issue is inconsistent with the CFRN, or that the decision perpetuates injustice because it is erroneous in law. Since Anekwe reiterates the protective provisions of section 42 of the CFRN and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983, it is very unlikely that the principles contained in Anekwe will be impugned by any court or even the legislature.

It remains to be said that the Supreme Court has the duty to reconcile the historic lingering conflict between intrinsic cultural norms and the values prescribed by western forms of law enacted by the state.[98] Happily, the protective provisions of the CFRN and the African Charter provide a ready platform for resolving the conflict by testing rules of custom against the relevant provisions.[99] Indeed, the best way out of the quagmire arising from conflict of law situation created by legal pluralism,[100] which is a common feature of federalism,[101] is for the court to ensure that constitutional supremacy prevails at all times.[102] In other words, where there is conflict between customary norms and constitutional provisions, the conflict is resolved in favour of the constitution. Courts must be willing to give effect to constitutional provisions against discrimination, and aid customary laws to develop in line with constitutional injunctions in order to sustain its relevance in society.[103] While it is disappointing that the Supreme Court had failed to do this in the past, it is encouraging to note that Anekwe has blazed the trail for others to follow.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

Articles:

 

Aigbovo O, ‘Turning the Tide: Adjudicating Women’s Customary Law Rights in Nigeria’ (2003) 1(1) Benin Journal of Public Law 17

Anleu SR and Mack K, ‘Gender, Judging and Job Satisfaction’ [2009] Feminist Legal Studies 79

Ayua M, ‘Land and Property Rights of Women in the Northern States of Nigeria’ in Idris S, ‘An Appraisal of Women’s Right of Inheritance under Islamic Law’ (2007) 4-5 Journal of Islamic Law 8

Brown K and Care JC, ‘Conflict in Melanesia: Customary Law and the Rights of Women’ (1998) 24 Common Law Bulletin 1334

Chukwuemerie AI, ‘The Inheritance Rights of Women under the Nigerian Customary Law: New Developments and Unresolved Questions’ (2003) 8 Abia State University Law Journal 104

Costa A, ‘The Myth of Customary Law’ (1998) 14 South African Journal on Human Rights 71

Ediomo-Ubong EN, ‘Violence against Women in Nigeria: The Factors and Dynamics’ (2010) 10(2) The Constitution 77

Engeland AV, ‘The Balance between Islamic Law, Customary Law and Human Rights in Islamic Constitutionalism through the Prism of Legal Pluralism’ (2014) 13 Cambridge Journal of International and Comparative Law 1348

Giovarelli R, ‘Customary Law, Household Distribution of Wealth, and Women’s Rights to Land and Property’ (2005-2006) 4(2) Seattle Journal for Social Justice 825 

Hunter R, ‘More than Just a Different Face? Judicial Diversity and Decision-making’ [2015] Current Legal Problems 5

Ipaye OA, ‘Intestate Succession in Oyo, Ondo, Ogun, Bendel, and Lagos States’ (1989) 16 The Nigerian Journal of Contemporary Law 144

Mahmud AB, ‘Succession under the Sharia in Nigeria’ [1982] Nigerian Current Law Review 123

Masengu T, ‘Customary Law Inheritance: Lessons Learnt from Ramantele v Musi and Others’ (2016) 24 African Journal of International and Comparative Law 602

Mbatha L, ‘Reforming the Customary Law of Succession’ (2002) 18 South African Journal on Human Rights 280

Meide V, ‘Gender Equality v Right to Culture’ [1999] SALJ 100

Miller JG, ‘Provision for Surviving Spouse’ (1986) 102 The Law Quarterly Review 453

Ndulo M, ‘African Customary Law and Women’s Rights’ (2011) 18(1) Indiana Journal of Global Legal Studies 87

Nnadi I, ‘Patriarchy and Culture, the Twin Pillars of Gender-Based Violence - A Case Study of Igbo Society of South Eastern Nigeria’ (2014) 6(1) Port Harcourt Law Journal 219

Oba AA, ‘Islamic Law as Customary Law: The Changing Perspective in Nigeria’ (2002) 51(4) International and Comparative Law Quarterly 817

Odili M, ‘Women and the Law: Discriminatory Practices’ (1999) 1 Port Harcourt Law Journal 217 

Oloka-Onyango J, ‘Who’s Watching ‘Big Brother’? Globalisation and the Protection of Cultural Rights in Present-day Africa’ (2005) 5(1) African Human Rights Law Journal 1

Onuoha VE and Ewere AO, ‘Succession Rights of the Nigerian Women: A Mirror of the Pre and Post Mojekwu Era’ [2013] NIALS Journal of Law and Gender 64

Oyemwense EU, ‘Ownership of Marital Property: Proof of Ownership Indeed?’ [2010] Apogee Journal of Business, Property and Constitutional Law 1

Razack S, ‘Speaking for Ourselves: Feminist Jurisprudence and Minority Women’ (1990-1991) 4 Canadian Journal of Women and Law 440

Taiwo EA, ‘The Customary Law Rule of Primogeniture and its Discriminatory Effects on Women’s Inheritance Rights in Nigeria: A Call for Reform’ (2008) 22(2) Spectrum 104

Ukhun EC, ‘Cultural Authoritarianism, Women and Human Rights Issues among the Esan People of Nigeria’ (2005) 5(1) African Human Rights Law Journal 132

Williams SH, ‘Women and Judging: A Feminist Approach to Judging and the Issues of Customary Law (Eleventh Annual Ruth Bader Ginsburg Lecture) 36’ [2013] Thomas Jefferson Law Review 1

 

 

Books and Chapters in Books:

 

Agbede OI, Legal Pluralism (Shaneson CI Limited 1991)

Ayua IA (ed), Law, Justice and the Nigerian Society: Essays in Honour of Honourable Justice Mohammed Bello (NIALS 1995)

Nigerian Institute of Advanced Legal Studies, Restatement of Customary Law in Nigeria (NIALS 2013)

Nwogugu EI, Family Law in Nigeria (3rd edn, HEBN Publishers 2014)

Osemwowa UI, The Customary Law of the Binis (2nd edn, Myke Commercial Press 2012)

 

 

Cases:

 

AG v Dow [1992] AHRLR 99

Agidigbi v Agidigbi [1996] 6 NWLR (Pt 454) 300

Aileru v Anibi [1952] 20 NLR 45

Akinnubi v Akinnubi [1997] 2 NWLR (Pt 486) 144

Amissah-Abadoo v Abadoo [1974] 1 GLR 110

Anekwe v Nweke [2014] 9 NWLR (Pt 1412) 393, (2014) 234 LRCN 34

Asika v Atuanya [2008] 17 NWLR (Pt 1117) 484

Bolaji v Akapo [1968] NMLR (Pt 2) 203

Coker v Coker [1944] 17 NLR 55

Dawodu v Danmole [1962] 2 SCNLR 215

Eleko v Secretary, Government of Southern Nigeria [1931] AC 662

Emokpae v Idubor [2004] 4 FWLR (Pt 206) 422

Laoye v Oyetunde [1944] AC170

Lewis v Bankole [1909] 1 NLR 80

Mojekwu v Ejikeme [2000] 5 NWLR (Pt 657) 402

Mojekwu v Iwuchukwu [2004] 11 NWLR (Pt 883) 196

Mojekwu v Mojekwu [1997] 7 NWLR (Pt 512) 283

Muhammadu v Mohammed [2001] 6 NWLR (Pt 708) 104

Nezianya v Okagbue [1963] 3 NSCC 277

Nzekwu v Nzekwu [1989] 20 NSCC (Pt 1) 581

Obusez v Obusez (2001) FWLR (Pt 73) 25

Odi v Osafile [1985] 1 NWLR (Pt 1) 17

Odiari v Odiari [2009] 11 NWLR (Pt 1151) 26

Ogunmefun v Ogunmefun [1931] 10 NLR 82

Ojukwu v Ojukwu [2001] FWLR (Pt 41) 1948

Okonkwo v Okagbue [1994] 9 NWLR (Pt 368) 301

Osilaja v Osilaja [1972] 10 SC 126

Rotibi v Savage [1944] 17 NLR 77

Uke v Iro [2001] 11 NWLR (Pt 723) 196

Ukeje v Ukeje (2014) 234 LRCN 1

Yusuff v Dada [1990] 4 NWLR (Pt 146) 657

 

 

Command Paper/Others:

 

Akinrimisi B, ‘Women’s Inheritance Right – The Nigerian Situation and Options Available at all Levels’ (unpublished paper presented at a one –day-workshop on Women and the Right to Inheritance in Nigeria, organised by the Shelter Rights Initiative in 2001)

Nigerian Vision 20:2020 Economic Transformation Blue Print (National Planning Commission: 2009)

 

 

Constitutions:

 

Constitution of the Federal Republic of Nigeria 1999 (as amended)

 

 

International Treaties and Conventions:

 

African Charter on Human and Peoples’ Rights 1981

Convention on Elimination of all forms of Discrimination against Women 1979

International Covenant on Civil and Political Rights 1966

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003

Universal Declaration of Human Rights 1948

 

 

Statutes:

 

Administration of Estates Law 1959, cap 2 Laws of Bendel State 1976

African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983, cap A9 Laws of the Federation of Nigeria 2004

Evidence Act 2011

High Court Law of Bendel State 1976

High Court Law of Lagos State 1973

High Court Law, Laws of Northern Nigeria 1963

Wills Law 1959, cap 172 Laws of Bendel State of Nigeria 1976 (as applicable in Edo State)



[1] O.A. Ipaye, “Intestate Succession in Oyo, Ondo, Ogun, Bendel, and Lagos States” 16 The Nigerian Journal of Contemporary Law 143 (1989). For instance, in Coker v Coker (1944) 17 NLR 55, the deceased property owner made a will but the will was voided by the court for violating the rule against perpetuity. Brooke, J, who was the presiding Judge, stated that intestacy resulted in the circumstance, and that the deceased’s estate became family property which devolves under native law and custom. Even where property is acquired under English law, customary law will govern its devolution if the owner dies intestate. See Ogunmefun v. Ogunmefun (1931) 10 NLR 82.

[2] [2014] 9 NWLR (Pt. 1412) 393, (2014) 234 LRCN 34.

[3] [2004] 11 NWLR (Pt. 883) 196. At the Court of Appeal, the case was reported as Mojekwu v. Mojekwu [1997] 7 NWLR (Pt. 512) 283. The Supreme Court version of the same case is however reported as Mojekwu v. Iwuchukwu [2004] 11 NWLR (Pt. 883) 196, following the death of the respondent/late Mojekwu’s widow who was eventually substituted with her daughter who is married to Iwuchukwu.

[4] [2000] 5 NWLR (Pt. 657) 402

[5] In Mojekwu v. Iwuchukwu, above, note 2, the Supreme Court upheld the succession rights of daughters in the circumstance. Whereas in Nezianya v. Okagbue (1963) 3 NSCC 277, Nzekwu v. Nzekwu (1989) 20 NSCC (Pt. 1) 581, and Akinnubi v. Akinnubi [1997] 2 NWLR (Pt. 486) 144 the Supreme Court upheld the various native laws and custom which denied widows the right to inherit any part of their late husbands’ estates.

[6] Some of the relevant international instruments to which Nigeria is a signatory include the International Covenant on Civil and Political Rights (ICCPR) 1966; the Convention on Elimination of all forms of Discrimination against Women (CEDAW) 1979; the African Charter on Human and Peoples’ Rights 1981 and the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

[7] Enormous liberty exists for those who decide that their properties be completely governed by English law at death. For instance, a man or woman, who makes a valid will or marries under the Marriage Act, has effectively suspended customary law of succession from governing the devolution of his/her estate. This is, however, subject to statutory exceptions like what is contained in s. 3(1) of the Wills Law of Bendel State and s. 1(3) of the Administration of Estates Law 1959, cap. 2 Laws of Bendel State 1976 (as applicable in Edo State, with similar provisions in the Wills Laws and Administration of Estates Law of other States of the Federation) which provides that the freedom which a person has to device his property by will or under statute upon intestacy is “subject to the customary law relating thereto.” In relation to the estate of a Benin man, for example, the Supreme Court held in Agidigbi v. Agidigbi [1996] 6 NWLR (Pt. 454) 300 that the principal house of a deceased Benin man (igiogbe) is always inherited by the first son of a deceased person absolutely, notwithstanding any instruction, disposition in a will made by the deceased. In Obusez v. Obusez (2001) FWLR (Pt. 73) 25 at 40, the court rightly stated that the estate of an intestate who married under the Act is governed by statute (e.g. Administration of Estates Law) because by conducting his marriage under the Act, the deceased is presumed to have excluded his customary law of succession.

[8] Lewis v. Bankole (1909) 1 NLR 80, 100-101.

[9] See Laoye v. Oyetunde (1944) AC170. 

[10] Anekwe, above, note 2, per Ogunbiyi, Ngwuta, Ariwoola, JJSC at 422, 425, 427.

[11] See section 18(3) of the Evidence Act, 2011.

[12] This additional test is contained in various High Court Laws of States of the Federation. See s. 13 (1) of the High Court Law of the defunct Bendel State, 1976, s. 26 (1) of the High Court Law of Lagos State 1973; and s. 34 (1) of the High Court Law, Laws of Northern Nigeria, 1963, etc. 

[13] Okonkwo v. Okagbue [1994] 9 NWLR (Pt. 368) 301, 326-327.

[14] Amongst all the customary laws applicable in Nigeria, it is only the Islamic law of succession that recognizes the right of widows to have a definite share in their deceased husbands’ estate. See the Holy Qur’an 4:12; Muhammadu v. Mohammed [2001] 6 NWLR (Pt. 708) 104, 113; A.B. Mahmud, “Succession under the Sharia in Nigeria,” Nigerian Current Law Review 123 (1982).

[15] [1972] 10 SC 126.

[16] Nigerian Institute of Advanced Legal Studies, Restatement of Customary Law in Nigeria (Lagos: NIALS, 2013), 356, 357.

[17] U.I. Osemwowa, The Customary Law of the Binis, 2nd ed. (Benin City: Myke Commercial Press, 2012), 47; I. Nnadi, “Patriarchy and Culture, the Twin Pillars of Gender-Based Violence - A Case Study of Igbo Society of South Eastern Nigeria” 6(1) Port Harcourt Law Journal 219, 226  (2014)

[18] M. Ayua, “Land and Property Rights of Women in the Northern States of Nigeria,” in S. Idris, “An Appraisal of Women’s Right of Inheritance under Islamic Law,” Ahmadu Bello University, 4-5 Journal of Islamic Law 8 (2007):

[19] Ediomo-Ubong E. Nelson, “Violence against Women in Nigeria: The Factors and dynamics,” 10(2) The Constitution, 77, (2010); Anekwe, above, note 2, p. 425 (holding that it is repugnant and absurd to classify a human being as inheritable property under customary law).

[20] Andrew I. Chukwuemerie, “The Inheritance Rights of Women under the Nigerian Customary Law: New Developments and Unresolved Questions,” 8 Abia State University Law Journal 104 (2003).

[21] However, even though a husband is also not a blood relation of his wife, by this principle, he could succeed to his wife’s estate if the woman predeceases her husband. Osemwowa, Customary Law of Binis, 47

[22] Van der Meide, “Gender Equality v Right to Culture,” SALJ 100, (1999), quoted in E.A. Taiwo, “The Customary Law Rule of Primogeniture and its Discriminatory Effects on Women’s Inheritance Rights in Nigeria: A Call for Reform,” 22(2) Spectrum 104, 119 (2008) (noting that “African women contribute to their families’ economic wealth in the same manner as do their husbands and non-African counterparts”.)

[23] Van der Meide, ibid

[24] Chukwuemerie, above, note 19, p. 125; Joe Oloka-Onyango, “Who’s Watching ‘Big Brother’? Globalisation and the Protection of Cultural Rights in Present-day Africa,” 5(1) African Human Rights Law Journal 1, 22, (2005)

[25] E.I. Nwogugu, Family Law in Nigeria, 3rd ed. (Ibadan: HEBN Publishers, 2014), 428.

[26] B. Ibhawo, “Between Culture and the Constitution: The Cultural Legitimacy of Human Rights in Nigeria,” (1999), 45, quoted in E. Christopher Ukhun, “Cultural Authoritarianism, Women and Human Rights Issues among the Esan People of Nigeria,” 5(1) African Human Rights Law Journal 132 (2005).

[27] Ukhun, “Cultural Authoritarianism,” 135.

[28] O. Aigbovo, “Turning the Tide: Adjudicating Women’s Customary Law Rights in Nigeria,” Benin Journal of Public Law 1 no. 1 (2003): 17. 

[29] Taiwo, above, note 22, p. 119.

[30] J.G. Miller, “Provision for Surviving Spouse,” 102 The Law Quarterly Review  453 (1986)

[31] See Nigerian Vision 20:2020 Economic Transformation Blue Print (National Planning Commission: 2009)

[32] Tabeth Masengu, “Customary Law Inheritance: Lessons Learnt from Ramantele v. Musi and Others,” 24 African Journal of International and Comparative Law, 602, 603 (2016)

[33] Mary Odili, “Women and the Law: Discriminatory Practices,” 1 Port Harcourt Law Journal 217 (1999); Renee Giovarelli, “Customary Law, Household Distribution of Wealth, and Women’s Rights to Land and Property,” 4(2) Seattle Journal for Social Justice825 (2005-2006); Anthony Costa, “The Myth of Customary Law,” 14 South African Journal on Human Rights 803 (1998).

[34] (1952) 20 NLR 45.

[35] Ibid, 46-47.

[36] (1968) NMLR (Pt. 2) 203.

[37] Ibid, 206.

[38] Above, note 5.

[39] Ibid, p. 156.

[40] Ibid, p. 160.

[41] Ojukwu v. Ojukwu [2001] FWLR (Pt. 41) 1948, 1975 and Emokpae v. Idubor [2004] 4 FWLR (Pt. 206) 422 are some of the subsequent cases decided on the Igbo and Benin customary laws respectively, where the Court of Appeal held that a widow has the right to manage her late husband’s estate on behalf of her infant children. Also, customary law recognizes that a widow could act as caretaker on behalf of her son(s), even though she has no right to administer her deceased husband’s estate in her own right.

[42] O.A. Ipaye, “Intestate Succession in Oyo, Ondo, Ogun, Bendel, and Lagos States,” 16 The Nigerian Journal of Contemporary Law 144 (1989)

[43] Akinnubi v. Akinnubi, above, note 5, p. 159.

[44] See Bolaji v. Akapo, above, note 36.

[45] Ibid.

[46] Above, note 34.

[47] Akinnubi v. Akinnubi, above, note 5, p. 159. This decision has been criticized by different writers who have called for the need to change such old and archaic cultures in Nigeria. See B. Akinrimisi, “Women’s Inheritance Right – The Nigerian Situation and Options Available at all Levels,” (unpublished paper presented at a one –day-workshop on Women and the Right to Inheritance in Nigeria, organised by the Shelter Rights Initiative in 2001), quoted in Idris, “Inheritance under Islamic Law” 11; V.E. Onuoha, and A.O. Ewere, “Succession Rights of the Nigerian Women: A Mirror of the Pre and Post Mojekwu Era,” NIALS Journal of Law and Gender  64, 77-78, (2013).

[48] Nezianya v. Okagbue, above, note 4, p. 280; Nzekwu v. Nzekwu ((1989) 20 NSCC (Pt. 1) 581. Whether or not her behaviour is good enough to warrant her stay is determined by her deceased husband’s male relatives. Ipaye, “Intestate Succession,” 143; Idris, “Inheritance under Islamic Law,” 8; E.U. Oyemwense, “Ownership of Marital Property: Proof of Ownership Indeed?” Apogee Journal of Business, Property and Constitutional Law 1, (2010): 52. The Supreme Court also held in Akinnubi v. Akinnubi, above, note 4 that a widow could manage her husband’s estate on behalf of her infant children.

[49] Odiari v. Odiari [2009] 11 NWLR (Pt. 1151) 26, 38.

[50] Above, note 48.

[51] Above, note 5.

[52] (1974) 1 GLR 110.

[53] Ibid, 131.

[54] [2001] 11 NWLR (Pt. 723) 196.

[55] Ibid, 202.

[56] Ibid, 203.

[57] Above, note 4.

[58] Ibid.

[59] [2008] 17 NWLR (Pt. 1117) 484.

[60] Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979 entry into force 3 September 1981, in accordance with article 27(1).

[61] Ibid, 515-516.

[62] Above, note 5

[63] Above, note 5

[64] However, the crucial evidence of PW2, one Ozo Nwogbo Okafor, who was a member of the Ozo Awka society that deliberated on the matter, was that the Ozo society concluded that the respondent was entitled to live in her deceased husband’s compound under Awka customary law, whether or not she has a son. See Anekwe v. Nweke [2014] 9 NWLR (Pt. 1412) 393, 413. [Emphasis mine].

[65] This ruling is an improvement on the Supreme Court decisions in Nezianya v. Okagbue, above note 4  and Nzekwu v. Nzekwu (1989) 20 NSCC (Pt. 1) 581, that only affirmed the right of a widow without a son to occupy or live in her deceased husband’s house during her lifetime.

[66] Above, note 5.

[67] Anekwe, above, note 2, p. 421-422.

[68] Ibid, 393, 422.

[69] Ibid.

[70] Ibid.

[71] [2014] 9 NWLR (Pt. 1412) 393, 427.

[72] Before now, daughters could inherit property under some customary laws in Nigeria, even though, in most cases, they are entitled to lesser shares, compared to sons. It is only widows that were completely excluded under all customary law besides the Islamic law that is applicable in Northern parts of the country.

[73] For instance, widows can rely on this authority to contest widowhood rites (like shaving of hair, drinking water used for washing husband’s corpse to prove innocence, sitting on bare floor during period of mourning, etc.) that do not apply to widowers where they are predeceased by their wives. It could also enhance the propagation of rights of daughters to inherit chieftaincy titles or stool and family headship in communities where they were hitherto denied such rights as a result of their sex.

[74] Above, note 5

[75] Ibid.

[76] Ibid, p. 423, 425.

[77] (1908) 1 NLR 81.

[78] (1931) AC 662.

[79] (1962) 2 SCNLR 215.

[80] See s. 38 CFRN.

[81] Domesticated in Nigeria as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983, Cap A9 Laws of the Federation of Nigeria 2004.

[82] Mojekwu v. Mojekwu (1997) 7 NWLR (Pt. 512) 283; Muojekwu v. Ejikeme, above, note 3; Asika v. Atuanya, above, note 58

[83] See note 6 above, for examples of international instruments that apparently discourage discriminatory tendencies on ground of sex.

[84] Mariam Aloma Mukhtar was elevated to the position of CJN in 2012 and she retired on November 20, 2014, haven attained the compulsory retirement age of seventy.

[85] Some of such cases include Nzeku v. Nzekwu [1989] 20 NSCC (Pt. 1) 581; Osilaja v. Osilaja [1972] 10 SC 126; Akinnubi v. Akinnubi, above, note 5.

[86] Susan H. Williams, “Women and Judging: A Feminist Approach to Judging and the Issues of Customary Law” (Eleventh Annual Ruth Bader Ginsburg Lecture) 36 Thomas Jefferson Law Review, 1, 25-26  (2013).

[87] Ibid, 33, 36 – 37.

[88] Sharyn Roach Anleu and Kathy Mack, “Gender, Judging and Job Satisfaction” Feminist Legal Studies (2009): 79; Roasemary Hunter, “More than Just a Different Face? Judicial Diversity and Decision-making” Current Legal Problems 5 (2015).

[89] (2014) 234 LRCN 1, 26-27. In this case, Bode-Rhodes-Vivour, JSC, who delivered the lead judgment, stated that “No matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father's estate. Consequently the Igbo customary law which disentitles a female child from partaking in the sharing of her deceased father's estate is in breach of section 42(1) and (2) of the constitution, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the constitution…. Any customary law which says or tends to suggest that a female child cannot inherit the property of her father is not only unconstitutional but also null and void.”

[90] Anekwe, above, note 1, p. 421-422.

[91] Ibid, 425.

[92] Ibid.

[93] In many communities, particularly in South-Eastern Nigeria, a childless widow is at the mercy of her in-laws. She may be asked to vacate her deceased husband’s house on account of her childlessness. See Nigerian Institute of Advanced Legal Studies, Restatement of Customary Law in Nigeria (Lagos: NIALS, 2013), 356, 357.

[94] Above, note 5.

[95] (1989) 20 NSCC (Pt. 1) 581.

[96] This is necessary as Anekwe’s case can be distinguished where a case involving a childless widow is before the court.

[97] [1985] 1 NWLR (Part 1) 17, 35.

[98] Kenneth Brown and Jennifer Corrin Care, “Conflict in Melanesia: Customary Law and the Rights of Women” 24 Common Law Bulletin 1334, 1335 (1998).

[99] Sherene Razack, “Speaking for Ourselves: Feminist Jurisprudence and Minority Women,” 4 Canadian Journal of Women and Law, 440, 448 (1990-1991).

[100] Anicee Van Engeland, “The Balance between Islamic Law, Customary Law and Human Rights in Islamic Constitutionalism through the Prism of Legal Pluralism,” 13 Cambridge Journal of International and Comparative Law, 1348 (2014).

[101] Oluwole I. Agbede, Legal Pluralism (Ibadan: Shaneson C.I. Limited, 1991), 97; A.A. Oba, “Islamic Law as Customary Law: The Changing Perspective in Nigeria,” 51(4) International and Comparative Law Quarterly 817, (2002).

[102] See s. 1(3) CFRN; A.G. v. Dow (1992) AHRLR 99; Muna Ndulo, “African Customary Law, and Women’s Rights,” 18(1) Indiana Journal of Global Legal Studies 87, 111 (2011).

[103] I.E. Okagbue, “Igbo Customary Law and the Rights of Women in the Family,” in I.A. Ayua (ed.) Law, Justice and the Nigerian Society: Essays in Honour of Hon. Justice Mohammed Bello (Lagos: NIALS, 1995), 208; Likhapha Mbatha, “Reforming the Customary Law of Succession,” South African Journal on Human Rights 18 (2002): 280, 284; Giovarelli, “Women’s Rights to Land,” 825; Anthony Costa, “The Myth of Customary Law,” South African Journal on Human Rights 14 (1998): 71. Customary law can conveniently evolve since it is a flexible system of law.