Landlord and tenancy law (2)

Igbo Customary Law of Inheritance (1)

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Members of the Igbo ethnic group have their homeland in the southeastern part of Nigeria and spread across Nigeria. They have three (3) categories of inheritance properties which are: land, commercially valuable trees and plants,and movable property (household articles, livestock, money, and debts).

The inheritance rules of the Igbo ethnic group appear to largely favour the male child over the female child of a deceased person. For instance, although many local variations exist, inheritance of individually owned land generally follows the principle of primogeniture. Consequently, when a man dies intestate, (that is, without a Will) the largest share of his individual land would devolve to the eldest son, with other sons sharing the rest equally. If the deceased does not have sons, his individual land devolves to his brothers to be shared according to seniority.

Although the women are by and large excluded from inheritance, some localities allow female children to inherit their father’s compound in joint tenancy with their brothers; however, in these instances, the eldest brother remains in control of the property. There are also places where a daughter with respect to whom a nrachi ceremony is performed (a practice in which a female child of a man who does not have male issue is prevented from marrying so that she can bear male children in her father’s name) may inherit her father’s compound, land and houses.

Just like the inheritance of individual land, the inheritance of investments on land (including trees with commercial value) also varies from one locality to another. Although such property is generally inherited by sons as corporate body, there are places where they are jointly inherited by the deceased’s full brothers, matrilineal uncles, matrilineal half-sisters, matrilineal sisters, matrilineal half-brothers, matrilineal aunts and the mother of the deceased. In some areas, such property is inherited by the eldest son with some limitations on his rights to dispose of the property.

 

Judicial interventions

There have been interventions by the judiciary to assert the right of fence of their father’s estate having considered the customary law which excluded the female child from inheriting her father’s estate to harsh and against the provisions of the Constitution of the Nigeria which consider men and women equal before the Law.

The most recent is the case of Ukeje V Ukeje which originated from the High Court of Lagos State and sailed through the Court of Appeal of the Supreme Court. The facts are as follows: Lazarus Ogbonna Ukeje, a member of the Igbo ethnic group, died intestate in Lagos in 1981, Cladys Ada Ukeje (his daughter) sued Lois Chituru Ukeje (the deceased’s wife and the plaintiff’s stepmother) and Enyinnaya Lazarus Ukeje (the deceased’s son and the plaintiff’s half-brother) before the Lagos High Court, seeking that she be included among the persons eligible to administer the deceased’s estate.

The High Court found in favour of the claimants and held that the custom violated the right of the claimant under the constitution. The High Court’s decision was upheld by the Court of Appeal.

The Supreme Court found that the Igbo inheritance rules which exclude women from inheritance violate the 1999 Nigerian Constitution, and affirmed the decisions of the Lagos High Court and the Court of Appeal. Justice Bode Rhodes-Vivour, one of the five justices who heard the case, delivered the Court’s opinion in which he 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. which guarantees freedom from discrimination, provides:

1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-

  1. be subjected either expressly by, or in the practical application of,any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex;religions or political opinions are not made subject; or

To be continued next week

 

  1. Be accorded either expressly by, or in the practicalapplication of,any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex,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 as 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 theirfather 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 proision 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.

 

The heritance 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. 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 counter claim 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 ays 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 have been able to sieve through them in order to protect fundamental rights of citizens by striking down any native law and custom on inheritance that failed the test of repugnancy doctrine.

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