Igbo Customary Law of Inheritance (2)

Continued from last week

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, s*x, religions 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”…

In Asika V. Atuanya (2008) Plaintiffs (most of whom were married women)Will of their late father, they were entitled in equal shares to the property in question. The Will of their late father read in part as follows: I give and bequeath in equal shares unto my children namely Paulina,Michael, Fidelis, Catherine, Cordelia, and Fedicia, all my possessions.consonance with the Will of their father. The defendant (their brother’s son)native law and custom of Onitsha people, the plaintiffs were not entitled to the plaintiffs was dismissed in part and they appealed the decision. The pertinent issue before the Court of Appeal was whether women were not entitled to inherit the estate of their parents as a result of disqualification by native law and custom. The Court of Appeal held that the Constitution of the Federal Republic of Nigeria grants women as citizens, the right not to be discriminated against as a result of their gender and the circumstances of their birth, and that the Constitution also grants women the right to acquire and own immovable property in Nigeria, such custom being repugnant to natural justice, equity and good conscience, contravenes the Constitution and other legal frameworks directed to eliminating all forms of discrimination against women.

In this regard, in Motoh V. Motoh (2011), the Court of Appeal held that the native law and custom of Awka people which discriminates against female children of the same parent and favours the male children who inherit all the estate of their father to the exclusion of their female siblings, is repugnant to natural justice, equity and good conscience as it is also unconstitutional.

Similarly, in Ukeje vUkeje (2014), a couple had four children including the respondent (a female). On the death of her father, her male siblings sought to exclude her from partaking in the estate of their late father. She brought this suit and claimed, amongst other things, that she had a right to partake in the sharing of her later father’s estate. The trial court granted her prayers as a result of which the appellants appealed to the Court of Appeal which also was also dismissed. In dismissing the appeal, the Supreme Court held as follows:

No matter the circumstances of the birth of a female child, she is entitled to an inheritance from her late father’s estate. Consequently, the Igbo customary law which disentitles a female child from partaking in her deceased father’s estate is in breach of section 42(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, 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.

In the most recent case of Mgbodu V. Mgbodu (2015) the Court of Appeal, borrowing a leaf from the Supreme Court, reiterated the point that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstance of his birth and that such circumstance cannot deprive him of his right to participate in the admnistration of his father’s estate.

Inheritance By Widows

With respect to a widow being unable to inherit her late husband’s property for the reason of her not having a male child for her late husband, the Supreme Court hit the final nail in the coffin of such native law and custom. This was in the case of Anekwe V. Nweke (2014). In that case, the male relations of a widow’s husband excluded her from the estate of her late husband on account of the custom which debarred a widow from partaking in the estate of her late husband if she did not bear a male child for the late husband. The widow brought this suit and claimed in the main, for a declaration that she was entitled to a statutory right of occupancy to her late husband’s landed property. The respondents denied her claim and relied on the custom which prevented a widow without a male child from inheriting her late husband’s property.

To be continued next week

Upon conclusion of hearing, the trial court granted the widow’s claims and dismissed the appellants’ counter-claim. The appellants appealed to the Court of Appeal which dismissed their appeal. On a further appeal to the Supreme Court, the court also dismissed the appeal and held that the custom of the people to the effect that a married woman without a male issue cannot inherit landed property of her late husband is barbaric, unconstitutional and repugnant to natural justice, equity and good conscience and ought to be abolished. In the course of the judgment, Ogunbiyi, JSC who delivered the leading judgment, had this important statement to make: “I hasten to add at the point that the custom and practices of Awka people upon which the appellants have relied for their counterclaim is hereby out rightly 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 women folk 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 serve as a deterrent measure and ought to be meted out against the perpetrators of the culture and custom. 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”.

In his concurring judgment, his Lordship, Mohammed, JSC said: “natural justice, equity and good conscience. That practice must fade out and allow equity, equality, justice and fair play to reign in the society. These decisions of the Nigerian courts in recent time is a very welcome development. They not only condemn and invalidate the discriminatory customary laws debarring women from inheriting landed property, they have emancipated women in Igbo land and delivered them eternally from the shackles of those outrageous and patently discriminatory customs. Women can now inherit, either as daughters, from their father’s estate, or as widows from ther husband’s estate without fear of molestation or deprivation. Those dark days when women were denied the right of inheritance and succession are gone for good. The superior courts of record have by their recent decisions reviewed in this paper, not only mitigated the injustice of the customary law with regard to women’s inheritance right, but have also abolished the said customary law”.

Conclusion

It can be said generally that every part of the country Nigeria has its own peculiar native laws and customs but our court over the years has been able to sieve through them in order to protect the fundamental rights of citizens by striking down any native law and custom on inheritance that failed the test of repugnancy doctrine.

Dave Ajetomobi