THE LEGAL REGIME OF INHERITANCE

Both statute and customary law are applicable to the inheritance system in Nigeria. In some cases, both laws may govern inheritance.Footnote ⁹ A Nigerian may elect to marry either under customary law or under the Marriage Act.Footnote ¹⁰ Section 35 of the Marriage Act stipulates that nothing in the act shall affect the validity of any marriage contracted under, or in accordance, with any customary law or in any manner apply to a marriage so contracted. If a person marries under customary law, all the legal consequences of the marriage will be dictated by customary law.Footnote ¹¹

Unlike customary law, Islamic law is not grounded in any particular locality in Nigeria and may operate in areas where it has not displaced the customary law. In those areas, it is not the predominant law but can become the personal law of some individuals in the area. The major factors which influence the courts in deciding whether Islamic law should govern a particular case are the conduct and attitude of the persons involved. It is not enough that they are nominally Moslems; Islamic law will only be applicable if they regard themselves as subject to it and act accordingly.Footnote ¹²

There is a current trend for a double marriage ceremony or solemnization in the southern part of Nigeria. In most cases the couple marry first under native law and custom, and later proceed to the church or registry. The second solemnization does not constitute an offence of bigamy since it is the same couple who contract marriage under native law and custom that contract marriage in the registry.Footnote ¹³

INHERITANCE IN THE SOUTHERN STATES OF NIGERIA

The southern states of Nigeria are Abia, Akwa Ibom, Anambra, Bayelsa, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Imo, Lagos, Ogun, Ondo, Osun, Oyo and Rivers. The people who inhabit the southern states include Ibos, Yorubas, Binis, Ishans, Urhobos, Itsekiris, Ijaws, Isokos, Oginis, Effiks and Ekois. This article focuses however on the Ibo, Benin, Ishan, Yoruba, Itsekiri, Urhobos, Ijaw and Isoko laws of inheritance.

The system of customary inheritance in Nigeria varies from one ethnic group to another. Determining the class of people who should benefit from an intestate succession and each beneficiary's share is not straight-forward. The persons entitled to benefit from the estate of an intestate are his children and relatives. Generally, spouses do not succeed to each other's estate under customary law.Footnote ¹⁴

In Nigeria, the Ibos make up the entire Anambra, Enugu and Ebonyi States and some parts of Rivers and Delta States. The cardinal principle of the customary law of succession in these states is primogeniture, that is succession by the first born of the male line. This is also the foundation of most other ethnic groups in the southern states. Under this principle, succession is through the eldest male child in the family who becomes the family head known as diokpa or okpala. The principle, therefore, is that succession is by inheritance and under no circumstance can the eldest son be by-passed in favour of a younger son of the deceased.

On the death of the founder of a family, his eldest son succeeds him as the head of the family. The eldest son inherits the father's personal ofo Footnote ¹⁵ and other objects of worship. Where a title survives the holder, the eldest son inherits his father's title. He is also entitled to the insignia of the hereditary office, which he has no right to sell since they are family property.Footnote ¹⁶ As regards the personal estate, the eldest son inherits his father's furniture to the exclusion of his brothers, sisters and the widow or widows. He inherits his father's clothes as well. Where the intestate left money, this is inherited by all his sons to the exclusion of his daughters. The sons equally inherit the intestate family's implements and livestock.Footnote ¹⁷ With regard to real estate, succession is determined by the nature of the particular property. The eldest son inherits as of right the father's dwelling house [obi]. He is also entitled by virtue of his position to one distinct piece or parcel of land called anaisi obi [land for the head of the family].Footnote ¹⁸ The right to succeed to the other lands and houses of the intestate is vested in the sons as a body. In the absence of sons, the right to inherit such property falls to the eldest full brother of the deceased. Female children have no right to inherit land under Ibo customary law, nor do the widows of a deceased intestate.Footnote ¹⁹ The eldest son cannot be removed as head of the family on grounds of profligacy or otherwise.Footnote ²⁰

Among the Benins and Ishans of Edo State, the person entitled to succeed to the entire estate of his deceased father is the only son where there is a single son, or the eldest son where there are many sons; that son becomes entitled upon performing the funeral rights of his deceased father.Footnote ²¹ The Federal Supreme Court expressed the view in Ogiamien v Ogiamien Footnote ²² that there was nothing wrong with this custom, which is not unknown in some other highly civilized countries of the world. However, the eldest son is obliged to provide maintenance for the younger children and other dependants of the deceased father. A son born outside customary marriage does not have exclusive rights over his late intestate father's property; another son born under customary marriage, although younger in age, would be regarded as the omodion or dawudu and be entitled to step into the shoes of his intestate father to the exclusion of his eldest brother born outside customary wedlock.Footnote ²³ The Ishan customary law of inheritance is similar to that of the Benins.Footnote ²⁴

The Urhobos, Ijaws, Itsekirins and Isokos of Delta State have similar rules of inheritance. Both male and female children are entitled to inherit from their father's estate, although the eldest son inherits the house in which his deceased father lived. If a man had many wives while he was alive, the per stirpes [equal division by family branch] method is often preferred.Footnote ²⁵ The wife or wives of a deceased Urhobo man are part of his property to be inherited.Footnote ²⁶ However, the widow has a right to choose whether or not to re-marry. If she refuses to re-marry, she cannot be compelled to do so by the family of her deceased husband. The YorubaFootnote ²⁷ and the IboFootnote ²⁸ have similar customs in this regard.

The Yorubas occupy Lagos, Ogun, Osun, Oyo and Ekiti States and parts of Kwara State. Under Yoruba native law and custom, it was the brother of full blood who traditionally used to succeed to the property of a deceased.Footnote ²⁹ Modern law is that children inherit real property to the exclusion of other blood relations.Footnote ³⁰ However, a testator may by his will enlarge his family to include his brothers and sisters.Footnote ³¹ On the intestate death of a person subject to Yoruba native law and custom, his children, both male and female, succeed to the estate as a single entity.Footnote ³²

Two systems of division of a deceased's property exist under Yoruba native law and custom and, according to the decision in Dawodu v Danmole,Footnote ³³ the decision of the head of the family is final in the event of a disputed distribution. The first system is idi igi [per stirpes], that is according to the number of mothers with children.Footnote ³⁴ The second method is ori ojori [per capita] that is, according to the number of children, with each receiving an equal share. The advantage in this second method is that it is fair and avoids jealousy and dispute between the children. But what about the mother who has only one child compared with the mother who has seven children? She is placed at a relative disadvantage when compared to her fellow mother with seven children each of whom attracts their share for the mother's benefit. However, wives themselves are not entitled to inherit their late husband's property, nor can they take a share in their late husband's estate under Yoruba native law and custom.Footnote ³⁵

CRITIQUE OF THE INHERITANCE LAW

Some of the rules of inheritance in Nigeria which exclude women from inheritance are contrary to the letter and spirit of the constitution. Section 42(1) of the 1999 Constitution provides:

Customs like oli-ekpe or iri-ekpe, which permit the nearest paternal male relation of a person subject to Ibo native law and custom who dies intestate without sons, brothers or father to inherit his estate as against his biological children, run contrary to the provisions of the constitution. They also violate the provisions of the Evidence Act 2004. The proviso to section 14(3) of this act states “provided that in the case of any custom relied upon in any judicial proceedings, it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience”. Similarly such customs also run contrary to the provisions of the various High Court laws in the states in Nigeria. For instance, section 13(1) of the High Court Law of Delta StateFootnote ³⁶ provides: “[t]he High Court shall observe and enforce the observance of every customary law which is applicable and is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by implication with any written law for the time being in force.”

In addition, the laws establishing customary courts in the various states enjoin them to administer only those rules of customary law which are not repugnant to natural justice, equity and good conscience, and are not incompatible either directly or by necessary implication with any written law for the time being in force.Footnote ³⁷

There are therefore a plethora of laws in Nigeria prohibiting the enforcement of rules of customary law that discriminate against women. Section 1(3) of the 1999 Constitution states: “[i]f any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.” Section 1(1) of the constitution provides that the constitution is supreme and has binding force on all authorities and persons throughout Nigeria.

The Supreme Court of Nigeria is urged to give a purposive interpretation to section 42 of the constitution and strike down the rules of customary law which deny women the right to inherit property under customary law. For example, in the case of Mojekwu v Mojekwu the Court of Appeal, per Niki Tobi JCA (as he then was), gave a purposive interpretation to the provisions of section 42 and upheld women's equality with men. His lordship strongly condemned the oli-ekpe custom:

Continuing, the learned and erudite judge espoused “[a]ny form of societal discrimination on ground of sex, apart from being unconstitutional, is antithesis to the society built on the tenets of democracy which we have freely chosen as a people. We need not travel all the way to Beijing to know that some of our customs including the Nnewi ‘Oli-ekpe’ custom relied upon by the appellant are not consistent with our civilized world in which we live today.”Footnote ³⁹

This line of his lordship has to be correct. The courts in Nigeria are enjoined to administer both law and equity and as such should not enforce rules of customary law which are repugnant to natural justice, equity and good conscience. This article postulates that all human beings, men and women alike, are born equal and should be accorded equal rights. This right has been recognized by the human race, hence the provisions in the constitutions of governments including the Nigerian government that all human beings are equal and entitled to equal rights and protection.

The rules of customary law which deny women inheritance to property under customary law also violate the provisions of international treaties which Nigeria has ratified. Nigeria ratified the Convention on the Elimination of All Forms of Discrimination against women (CEDAW) in 1985. This convention was adopted by the United Nations General Assembly in December 1979. Article 2(f) states that parties are obliged to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Article 2(g) enjoins states to repeal all national penal provisions which constitute discrimination against women. Furthermore article 5(a) mandates states to modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudice and customary and other practices which are based on the idea of the inferiority or superiority of either sex or on stereotyped roles for men and women.

Nigeria has also signed the International Convention on Civil and Political Rights (ICCPR), which it ratified in July 1993. Article 26 of the ICCPR states that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Human Rights Committee, tasked with monitoring states’ compliance with the ICCPR and with elaborating on the rights enshrined in it, has interpreted the right to equal protection as not only providing for equality before the law and equal protection, but also guaranteeing “to all persons equal and effective protection against discrimination on any of the enumerated grounds” including sex.Footnote ⁴⁰

Nigeria has also domesticated the provisions of the African Charter on Human and Peoples’ Rights (African Charter).Footnote ⁴¹ Article 18(3) of Nigeria's African Charter (Ratification and Enforcement) Act provides that the state shall ensure the elimination of every discriminatory practice against women and ensure the protection of their rights. Article 2 of the African Charter provides that: “[e]very individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.”

A customary law rule which falls foul of the right of equality with respect to inheritance upon intestacy runs contrary to democratic provisions in the 1999 Constitution and international treaties and conventions which Nigeria has ratified and even domesticated, as in the case of the African Charter. Such customary rules amount to an unjustifiable assault on the dignity of not just womankind but also mankind. The effect of such rules of customary law is to subject women to the status of second class citizens. Such rules clearly violate the right to equality enshrined in the constitution, as well as international treaties and conventions which Nigeria has ratified.

The Ibos should take a cue from their Yoruba, Urhobo, Ijaw, Isoko and Itsekiri brothers and sisters whose custom is to allow female children to inherit the real estate of their fathers. However, the Supreme Court of Nigeria turned back the clock when it held in Mojekwu v Iwuchukwu Footnote ⁴² that the decision of Tobi JCA (as he then was) in Mojekwu v Mojekwu was wrong, since the court was not asked to consider the repugnancy of the oli-ekpe custom. The court, per Uwiafo JSC, held: “[i]t would appear … that the underlying crusade in that pronouncement went too far to stir up a real hornet's [sic] nest even if it had been made upon an issue joined by the parties, or properly raised and argued. I find myself unable to allow that pronouncement to stand in the circumstances, and accordingly disapprove of it as unwarranted.”Footnote ⁴³ It is submitted that the decision of the Supreme Court was wrong because issues were joined on the validity or otherwise of the oli-epke custom.

Recently, however, the Supreme Court of Nigeria in Ukeje v Ukeje Footnote ⁴⁴ declared void the Ibo customary law rule which denies a female from inheriting her father's estate. In this case the appellant claimed that, as one of the children of the late Mr Lazarus Ogbonna Ukeje, she ought to be included among those to benefit from the family estate. The appellants, who were the wife of late Mr Ukeje and her son Enyinnaya Lazarus Ukeje, stoutly opposed the suit on the grounds that, under customary law, the respondent as a female was not entitled to inherit from her father's estate. The Supreme Court came down heavily on this discriminatory rule of customary law and held in no uncertain terms that the girl child was entitled to inherit from her father's estate. Specifically, the Supreme Court held that the Ibo customary law violated the provisions of section 42(1) and (2) of the 1999 Constitution. The decision of the Supreme Court is indeed commendable; it has clearly upheld the equality provision enshrined in the constitution.

The rule of inheritance that an eldest son born outside Bini customary marriage has no exclusive right over his late father's intestate property and is not entitled to step into the shoes of the late father is unjust and unconstitutional. It is a clear violation of the provisions of section 42(2) of the 1999 Constitution which provides that “no citizen of Nigeria should be subject to any disability or deprivation by reason of the circumstances of his birth”.

Another shortcoming of the native law and custom in the southern states of Nigeria is the custom which prohibits a wife from inheriting the property of her husband who died intestate without issue.Footnote ⁴⁵ However, under Ibo customary law, property acquired by a married woman after her marriage goes to her husband on her death.Footnote ⁴⁶

A common custom which is widespread in the southern states of Nigeria is that of the inheritance of the wife and children of a deceased man by his younger brother, a system know as levirate marriage. This is a scheme of social insurance against neglect and hunger for the deceased's dependents.Footnote ⁴⁷ In The Estate of Agboruja,Footnote ⁴⁸ a man died leaving a number of young children and his half brother was appointed their legal guardian by the court. The half brother was entitled to take the children's mother as a wife if she consented, but he had let her go away with the children. She thereafter brought an action praying the court to appoint her as the children's legal guardian on the grounds that it was inequitable that the court should sanction a custom which allowed a man's heir to be a male relative instead of the man's children. It was held that the custom was widespread throughout Nigeria and that it was not inequitable because such male relative would thus become a new father for the children and be responsible for their upbringing as if they were his own. It was also held to be perfectly permissible that such a male relative of the deceased should be able to inherit the latter's wife if she agreed.

This custom may have been good for society in the past, but not now. Experience has shown that some widows and their infant children are neglected by their husband's brothers who regard their late brother's estate as their own inheritance and the wife as an outsider. A learned writer personally conducted a series of interviews with some widows from the Ibo tribe of Anambra State and narrated their experiences.Footnote ⁴⁹ In one particular case,Footnote ⁵⁰ a widow whose marriage was statutory lost her husband to cancer. The man's family dispossessed the widow of every valuable in her possession alleging that she had poisoned her husband. She was a teacher by profession and claimed to have contributed to the purchase of some items in the house, but they were adamant in rejecting her plea. She never received any support from her late husband's family and could not bring an action in court because she had no money to fund litigation.

Courts, as dispensers of justice, have realized the straitened circumstances through which widows and their infant children go and have used the machinery of the law to see that infant children who have lost their fathers do not suffer at the hands of their paternal uncles or other relatives. In Akinnubi v Akinnubi,Footnote ⁵¹ the first respondent as plaintiff initiated proceedings before the Akure High Court, Ondo State, claiming as guardian ad litem of her five children against the first and second appellants, the brothers of her deceased husband. In some of the averments in the first respondent's statement of claim, she explained that, since the death of her husband, she had single-handedly been responsible for the education and upkeep of the five children of the family, to the exclusion of any of her late husband's relations, including the first and second appellants. She maintained the five children under extremely hard conditions and sometimes had to resort to hawking vegetable products in open motor parks in Lagos, in order to keep body and soul together. The appellants brought a motion to dismiss the action, contending inter alia that the first respondent had no standing to institute the action, she being under customary law (the first respondent was married under native law and custom to her deceased husband) herself a part of her husband's estate to be administered and, therefore, not in law entitled to be appointed administratrix of her husband's estate. It was held inter alia that, there being no known provision under Yoruba native law and custom prohibiting a widow from suing on behalf of the legitimate infant heirs of her deceased husband, the widow has full capacity or standing to sue on behalf of her children over the estate. In this case, the first respondent in her statement of claim pleaded as primary facts her relationship as the children's mother and therefore her status in loco parentis to the children of her deceased husband. It was held inter alia that, in respect of the right of the infant children in this case to the estate of the deceased, it could not be gainsaid that any act which gave the respondent a cause of action involved the application of the maxim: ubi jus ibi remedium [for every wrong, the law provides a remedy].

COMPARISON WITH OTHER JURISDICTIONS

in other jurisdictions, such as Ghana, South Africa and Botswana, where rules of customary law form part of the body of law of the state, such rules have been interpreted against the background of constitutional provisions. The courts in these jurisdictions have upheld the supremacy of their constitutional provisions which provide for the equality of men and women.

As far back as the 1960s, Ghanaian courts have upheld the equality of women with men. In Akrofi v Akrofi Footnote ⁵² the plaintiff, a native of Buem State, instituted an action against the defendant, her paternal uncle, for a declaration that she was entitled to succeed to her late father's properties. The plaintiff contended that succession in the state was patrilineal and that females could, in the absence of males, succeed to the self-acquired properties of their father. She argued that, since she was the only child of her father, she was the rightful person to succeed to his properties. The defendant denied that a female was entitled to succeed to her father's properties even though he admitted that succession in the state was patrilineal. He maintained that the family had appointed him a successor to the properties. The court (per Sowah, as he then was) found on the evidence before the court that succession to property in Buem State is patrilineal and male children take preference to female, but, where there are no male children, female children are not excluded but are within the range of persons entitled to succeed. The court held that the plaintiff was equally qualified to be appointed a successor to inherit her father's estate. The court noted that: “[a] custom which discriminates against a person solely on the basis of sex has outlived its usefulness and is not in conformity with public policy; if customs are to survive they must change with times.”Footnote ⁵³

Article 17(2) of the Ghanaian Constitution of 1992 provides that a “person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status”. Article 17(3) defines “discriminate” to mean: “[t]o give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.”

The Ghanaian Supreme Court has upheld the supremacy of this constitutional provision. In Fianko v Aggrey Footnote ⁵⁴ the court held that the children, both male and female, of a deceased person have the right to inherit their deceased mother's property, regardless of whether the woman came from a matrilineal or patrilineal family.

The South African courts have upheld the supremacy of similar constitutional provisions by striking down rules of customary law which discriminate against women. Section 9 of the South African Constitution 1996 provides:

These provisions have been well-expounded by the South African courts. In Bhe v Magistrate Khayelitsha and Others,Footnote ⁵⁵ the applicant's daughters were born of a relationship between her and their deceased father, who died intestate. The magistrate of the Khayelitsha Magistrates’ Court had, after the deceased's death, appointed the deceased's father as the sole heir of his estate in accordance with section 23 of the Black Administration Act, which provides that the estate of a deceased falls to be distributed in accordance with black law and custom. The court held that the exclusion of women from inheritance on the grounds of gender is a clear violation of section 9(3) of the South African Constitution. It is a form of discrimination that “entrenches past patterns of disadvantage among a vulnerable group, exacerbated by old notions of patriarchy and male domination incompatible with the guarantee of equality under the Constitution”.Footnote ⁵⁶

In Botswana, the courts have also dealt with rules of customary law which discriminate against women, by giving a purposive interpretation to constitutional provisions and striking down discriminatory customary practices. In the recent case of Mmusi and Others v Ramandele and Another Footnote ⁵⁷ the question that arose for determination was whether Ngwaketse customary law violated the applicants’ constitutional right to equality as contemplated by section 3(a) of the Constitution of Botswana, to the extent that it denied them the right to inherit the family residence, solely on the basis of their gender. The grouse of the applicants was that the practice / customary law rule which allowed only the male last born to inherit intestate, to the exclusion of female children, violated their right to the protection of the law as contained in section 3(a) of the constitution. After an extensive review of both local and foreign authorities, Judge Dingake J held that the right to the protection of the law in section 3(a) of the constitution leads to the principle that all laws must treat all people equally, save as may legitimately be excepted by the constitution. Consequently, to the extent that the rule of customary law sought to be impugned denied the rights of females to inherit intestate solely on the basis of their gender, it violated their constitutional right to equality and therefore amounted to unfair discrimination. His lordship held that: “[t]he exclusion of women from heirship is consistent with the logic of patriarchy which reserves for women positions of subservience and subordination. Such exclusion does not only amount to degrading treatment but constitute [sic] an offence against human dignity. Discrimination against women or denying or limiting their equality with men is fundamentally unjust.”Footnote ⁵⁸

RECOMMENDATIONS

There is a need to educate and sensitize the public on the role and rights of women in society. There should be a conscious attempt to re-orientate the average Nigerian man to respect the personality of women. Nigerian men should be taught to realise that the basis of the customs which denied property rights to women in the past is no longer sustainable and that these customs are no longer of practical value in present day Nigeria. These measures are necessary because, if they are not put in place, judgments upholding the equality provisions enshrined in the Nigerian Constitution will not stop discriminatory rules of customary law from thriving. For instance, the obnoxious osu caste systemFootnote ⁵⁹ was abolished in 1956 but the practice still continues.Footnote ⁶⁰

The Supreme Court of Nigeria needs to review some of its decisions, particularly that in Ogiamen v Ogiamen.Footnote ⁶¹ A custom which allows the eldest son to succeed to the entire estate of his deceased father, to the exclusion of his fellow brothers and sisters, is highly discriminatory. It is against the norms of all civilized nations. The Benin and Ishan customs on inheritance have long outlived their usefulness in this regard. The Edo speaking people are urged to take a cue from their Yoruba, Urhobo, Ijaw, Itsekiri and Isoko brothers and sisters.

Legislation should be enacted to confer on a widow married under customary law the right to inherit a portion of her deceased husband's estate.