A COMPARATIVE STUDY OF WOMEN’S RIGHTS OF INHERITANCE IN NIGERIA UNDER ISLAMIC LAW AND SOME CUSTOMARY LAWS

A COMPARATIVE STUDY OF WOMEN’S RIGHTS OF INHERITANCE IN NIGERIA UNDER ISLAMIC LAW AND SOME CUSTOMARY LAWS

ABSTRACT

Generally, most Nigerians both literates and illiterates are ignorant of the laws that regulate their private lives until they fall foul of such laws or there is a problem which affects their relatives as a result of the application of such laws. One area of law which Nigerians are ignorant of or for which they have shown apathy is the law of inheritance. Many Nigerians contract their marriages under customary law and so the customary laws of inheritance will be applied to the distribution of their estates after their death if they leave no valid will. Many of the customary laws of inheritance deprive women of their right to inherit the estate of their deceased husbands and fathers. The aim of this research is therefore to awaken the men folk to the unfairness of the customary laws of inheritance which do not entitle widows and their daughters to inherit the estates of their husbands and fathers and the consequential hardships such women suffer. The research considers the following questions: Are women entitled to inherit the property of deceased male relations and relatives and what are the rules of inheritance? Do the customary laws of inheritance treat men and women equally? Are there differences or similarities between customary laws and the Islamic law as they relate to women’s right of inheritance? How can the customary laws of inheritance be reformed to improve women’s rights of inheritance? What laws are in existence to combat this trend and how effective are they? This study’s objective is to examine the status of women vis-à-vis the rights of inheritance under customary and Islamic laws, it will also asses the adequacy or otherwise of the laws relating to women’s rights of inheritance under the customary laws. It is also aimed at sensitizing the legislatures, policy makers and other stakeholders on the need to reform or abolish the discriminatory customary laws of inheritance to give the women right of inheritance. The research will adopt the doctrinal and comparative study of customary laws and Islamic law as they relate to women’s right of inheritance. This study is aimed at the enlightenment of the reader, who will become aware of the discriminatory practices of inheritance against women and its damaging effect on the overall socio-economic development of the country. Under Islamic law, women’s rights are protected because Islamic laws allow women in their capacities as wives, daughters and sisters to inherit the estates of their deceased relatives these rights are clearly stated in the Islamic law sources. The customary laws of inheritance of the Igbo, Benin, and Yoruba people which deprive women the right of inheritance are unjust and discriminatory. They contravene the provisions of the 1999 Constitution of Nigeria and other International Conventions on elimination of discrimination against women of which Nigeria is a signatory. This work contributes to knowledge by exposing these discriminatory laws for what they are, that is contrary to the Constitution of the Federal Republic of Nigeria 1999 and the extant conventions against discrimination of the Nigeria grund norm. It advocates the consideration of the Islamic customary law of inheritance not ordinarily commended by non adherents of that faith as a better option to other customary laws without prejudice to religion or faith or belief.

 

 

 

TABLE OF CONTENTS

 

Title Page        –           –          –           –           –           –          –           –           –           –          i

Certification –              –          –           –           –           –          –           –           –          –           ii

Approval          –           –           –           –           –           –           –           –           –           –           iii Dedication   – –           –           –           –           –           –           –           –           –           iv

Acknowledgement       –          –           –           –           –          –           –           –          –           v

Table of Statutes          –           –           –           –           –           –           –           –           –           vi Table of Cases –             –           –           –           –           –           –           –           –           –           ix Table of Treaties      – –           –           –           –           –           –           –                       xiii

List of Abbreviation –              –          –           –           –          –           –           –          –           xiv

Abstract           –           –          –           –           –           –          –           –           –          –          xv

Table of Contents         –           –           –           –           –           –           –           –           –           xvi CHAPTER ONE

GENERAL INTRODUCTION

1.0       Introduction     –          –           –           –           –          –           –           –           –          1

1.1        Background of the Study        –           –           –          –           –           –           –          5

1.2       Research Problem       –          –           –           –          –           –           –           –          6

1.3        Objectives of the Study           –           –           –          –           –           –           –          6

1.4        Scope of the Study      –           –           –           –          –           –           –          –           7

1.5        Methodology –            –          –           –           –          –           –           –           –          8

1.6        Literature Review       –           –           –           –          –           –           –           –          8

1.7       Definition of Terms    –           –           –           –          –           –           –           –          14

1.8       Conclusion      –           –          –           –           –          –           –           –          –          15

CHAPTER TWO

AN OVERVIEW OF THE NIGERIAN LEGAL SYSTEM

2.0       Introduction     –          –           –           –           –          –           –           –           –          16

2.1        Nigerian Law –           –          –           –           –          –           –           –           –          17

1. Received English Law –           –           –           –           –           –           –           17
2. Islamic Law or Sharia Law – –           –           –           –           –           –           24
3. Customary Law –           –           –           –           –           –           –           –           33
4. Legislation – –           –           –           –           –           –           –           –           43
5. Case Laws – –           –           –           –           –           –           –           –           63

2.1.1    Conclusion      –           –          –           –           –          –           –           –          –          65

CHAPTER THREE

ISLAMIC LAW OF INHERITANCE

• Introduction –           –           –           –           –           –           –           –           –           68
• Inheritance during Pre-Islamic Period –           –           –           –           –           68
  • Islamic Rules of Inheritance – –           –           –           –           –           –           70
  • Inequality of Shares of Women and Men –           –           –           –           –           75

3.2       Conclusion      –           –          –           –           –          –           –           –          –          79

CHAPTER FOUR

CUSTOMARY LAW OF INHERITANCE OF IGBO, BENIN, AND YORUBA

PEOPLE OF NIGERIA

• Introduction –           –           –           –           –           –           –           –           –           80
• Igbo Customary Law of Inheritance – –           –           –           –           –           81
• Types of Property to be Inherited and Persons who can inherit –           –           82 4.2.1             Methods of Distribution of Property and order of Priority of Inheritance among

Relations         –           –          –           –           –          –           –           –           –          88

• The Benin Customary Law of Inheritance –           –           –           –           –           92
  • Rules of Inheritance under Benin Customary Law –           –           –           –           94
  • Judicial Approach to Women’s Rights and Concept of Igiogbe –           –           95

4.4.       Yoruba Customary Law of Inheritance           –          –           –           –           –

102

• Persons Entitled to Inherit Property – –           –           –           –           –

104

• Method Distribution of Property –           –           –           –           –           –

108

4.5       Differences and Similarities, between Islamic Law of Inheritance and the Customary Laws of Inheritance of the Igbo, Benin and Yoruba People –

112

4.5.1    Reasons for the Differences and Similarities between the Islamic   Laws of Inheritance and the Customary Laws of Inheritance of               the Igbo, Benin, and

Yoruba People –           –           –           –           –           –           –                       115

4.6       Conclusion      –           –          –           –           –          –           –           –          –

119

 

CHAPTER FIVE

• General Conclusion –           –           –           –           –           –           –                       121
• Summary –           –           –           –           –           –           –           –                       121
• Findings –           –           –           –           –           –           –           –                       123
• Recommendations –           –           –           –           –           –           –                       127
  • Reform of Customary Law –           –           –           –           –           –                       127
  • Mass Enlightenment Campaign –           –           –           –           –                       128
  • States’ Laws on Inheritance – –           –           –           –           –           –

129

• Enlightenment Programmes for Women –           –           –           –           –

129

• Role of Judiciary –           –           –           –           –           –           –                       130
• Enactment of New Wills Laws –           –           –           –           –                       130
• Free Legal Aid for Matters Relating to the Rights of Inheritance –           –

130

• States’ Laws on Administration of Estates –           –           –           –           –

131

• Establishment of Sharia Courts in the States of Southern Nigeria –           –

132

• Economic Empowerment of Women – – –           –           –           –

132

5.4        Contribution to Knowledge      –           –           –           –           –           –                       133

Bibliography – –           –           –           –           –           –           –                       135

Books –           –           –          –           –           –          –           –           –          –

135

Articles in Journals      –          –           –           –          –           –           –           –

138

Internet Sources            –           –           –           –           –           –           –                       141

 

 

 

CHAPTER ONE

GENERAL INTRODUCTION

1.0         INTRODUCTION

Gender issues are topical throughout the world as there seems to be an increasing demand for more equitable treatment of women in all human actions. Many women throughout the world are campaigning, organizing and working together to improve their lives. Their aims, methods and interests are various. Some are working in women’s refuges, some are campaigning against pornography, some are demanding total legal equality with men, some want improved maternity leave, some are campaigning for abortion on request etc. Hence there is no united women’s movement.

However, they are all concerned with improving the status and promoting the rights and interests of women. These women’s movements are usually described as “feminist”. Alison Jaggar^[1] identifies feminism with various social movements which are dedicated to ending the subordination of women.

The feminist’s claim is that women should have the rights and freedom as men. In view of their various aims, methods and interests, feminist theory is not uniform. Many writers have identified three main theories of feminism namely liberal, socialist and radical feminism.

The liberal approach is that women have as much right as men. The aim of the liberal approach is formal and sexual equality for women and men. Although the liberalism’s claim for formal sexual equality for women and men has been successful and resulted in the acquisition of rights for women to be educated, to vote and to stand for political office etc, some feminists disagree with the liberal approach because they feel that the approach recognizes certain values that are mainly male.

Bryson^[2] says the socialist theory of feminism like liberalism, promotes equal rights and opportunities to all individuals. However, unlike liberalism, it emphasizes economic and social rights and freedom of exploitation. Socialism allows women to recognize the ways in which men are also oppressed and to work with them to achieve a more equitable society in the interest of all.

The radical feminist approach sees patriarch as the oldest and most significant form of oppression for women. The radical view is that women are an oppressed group who has to struggle for their liberation against their male oppressors. Women must recongnise that it is men who oppress them and that politics has to be redefined to include family and personal relationships.^[3]

This study supports the socialist approach that women should work with men to achieve an equitable society in the interest of all. It is necessary that women should collaborate with men so as to enlighten the men about the injustice which inequality of the rights of men and women creates. The enlightenment of men in this regards could eventually eliminate the unpopular misconception of men that women are inferior. However, the collaboration of women with men should not preclude activities that are solely women. Despite the differences in their approaches, the feminists’ claim that women should have the same rights and freedom as men which has been largely conceded in western society has led to concerted efforts by international communities to hold conferences on the elimination of gender inequality. Consequently, many international instruments have been promulgated by General Assembly of the United Nations to address gender inequality. One important international instrument as regards women’s rights is the Convention on Elimination of All Forms of Discrimination against Women adopted in 1979 by the UN General Assembly which provides guidelines for legal policy and programme development to promote equality as a means of justice.^[4]

Article 5 of the convention^[5] obligates state parties to the convention to take action to modify custom and eliminate prejudices which are based on inferiority or superiority of either sexes or stereotyped roles for men and women. According to Freeman^[6] the examination of custom, the elimination of prejudices and the development of measure to promote equality in practice as well as in law are the tools for justice.

Article 5 of the convention^[7] is relevant to the title of this research because the customary laws which this research examines are generally biased against women as they do not accord women equal rights with men as regards inheritance. Generally, under customary laws of the various tribes in Nigeria, women are not allowed to inherit the estates of their late husbands and fathers. However, under some customary laws, women are given limited right to inherit the estates of their husbands and fathers. The customary laws which deny women of the right to inherit the estates of their husbands and fathers pose some challenges to women because on the death of men, widows and children are left destitute by surviving relations of men who inherit the estates of the deceased. Islamic law, on the other hand, allows women to inherit certain portions of the estates of their husbands and fathers. Many Muslim women are however denied this right by surviving relatives of their husbands who prefer to apply customary law of inheritance to the distribution of the property of the deceased Muslims.

Customary laws are the indigenous laws of the people. They are founded on the social norms or cultures of the people. They are a reflection of the habits and social attitudes of the people they govern, and they drive their validity from the consent of the people they govern^[8]. There is no single set of customary laws of inheritance in Nigeria because customary laws are tribal in origin. They operate within the tribes. Therefore, customary laws vary from one tribe to another and also from one community to another. Generally, customary laws are unwritten in the sense that they cannot be found in statute books. It should be noted however, that in the recent times, some customary laws of inheritance have been put in writing. Examples are the customary laws of inheritance of former Anambra and Imo states which have been written in a customary law manual^[9] and the customary law of inheritance of Benin which has also been written in a hand book¹⁰. Islamic law, which is also regarded as customary law^[10], unlike the indigenous customary laws has religious basis. According to Islamic scholars, Islamic law includes two basic elements. The divine which is unequivocally commanded by God or His messenger and is designated as Sharia in the strict sense of the word; and the human which based upon and aimed at the interpretation/ or application of the Sharia and is designated as Fiqh or applied Sharia.^[11]

The divine sources of Islamic law are the Quran and the Sunna of Prophet Muhammad while the human components are Ijma, Qiyas, Urf, Istihsan and Maslaha under the broad heading of Ijtihad. The Holy Quran is the first and primary source from which all the teachings and laws of Islam are derived. It is the pivot upon which all the other sources revolved. Briefly, it is the ground norm of Islamic law (the sharia).^[12] The Quran is the exact words of Allah as revealed to mankind through the Prophet Muhammad. The secondary source is the Sunna of the Prophet Muhammad, that is to say, his deeds, utterances and his indirect authorization.

The human components of Islamic law under the broad heading of Ijtihad include Ijma (consensus) Qiyas (analogical deduction), Istihsan (preference) Istislah and Maslahah (public interest and welfare). These other components of Islamic law are aimed at interpreting, expounding, understanding and applying the injunctions of Sharia to practical day to day affairs of the Muslim community. This is because according to Ramadan Said^[13], the Quran and Sunna established the general rules without going into details.

The source of Islamic law rule of inheritance as it affects women’s rights of inheritance in their capacity as wives and daughters is the Holy Quran which is the first and primary source of Islamic law.

This study discusses the rules of inheritance as they affect women’s rights as wives and daughters under the customary laws of some major tribes in Nigeria and Islamic law of inheritance as regards this category of women.

 

 

1.1         BACKGROUND TO THE STUDY

Generally, most Nigerians both literates and illiterates are ignorant of the laws that regulate their private lives until they fall foul of such laws or there is a problem which affects their lives or the lives of their relatives as a result of the application of such laws. One area of the law which many Nigerians are ignorant of or for which they have shown apathy is the law of inheritance.

Many Nigerians contract their marriages under customary law and so the customary law and so the customary laws of inheritance will be applied to the distribution of their estates after their death if they leave no valid will. The inheritance practices of intestate estate under the customary laws in Nigeria have almost as many variations as there are ethnic groups in the country and they are predominantly patrilineal that is relating to, based on, or tracing descent through the paternal line. Inheritance and succession under native law and custom is determined primarily by the customary rules of the place of origin of the deceased person and not by where he resides or where the property is situated. These practices conform to the primogeniture rule which is a system of inheritance or succession by the firstborn child, specifically the eldest child^[14] who consequently becomes the head of the family. He occupies the family house, holding same as trustee of the other children, male or female.

As earlier stated, many of the customary laws of inheritance deprive women of the rights to inherit the estates of their deceased husbands and fathers. Some Nigerians are aware of the fact that if they die, their wives will not have the right to inherit their estates because of their customary laws of inheritance. This category of Nigerians does not bother to question such laws probably due to their carefree attitude. Some believe that after their death, their relatives will take care of their wives, children and property. Unfortunately, this apathy or carefree attitude to customary laws of inheritance which deprive widows of the right to inherit the estates of their husbands has been creating problems for widows. This is because in many instances, the relatives whom their deceased husbands trusted while alive to take care of their children and property sometimes convert the estates of the deceased of the deceased to their own thereby leaving the widows and the children in destitute.^[15]

It is therefore necessary to awaken the men folk to the unfairness of the customary laws of inheritance which do not entitle widows and their daughters to inherit the estates of their husbands and fathers and the consequential hardships such women suffer.

1.2         RESEARCH PROBLEM

One can easily perceive generally that the Nigerian woman (the widow) and the girl child typically get little or nothing in comparison with their male counterparts when it comes to intestate devolution of property. This is because these customary laws exhibit an overwhelming sympathy for the male gender and has as a consequence, sustained an unjust and disproportional treatment of female in Nigeria. The continued practices of these laws constitute a major obstacle to gender equality, economic empowerment of female gender and actualization of social justice in terms of development, peace and security^[16].

These discriminatory aspects of property inheritance under the customary law in Nigeria manifests in different forms and scope ranging from primogeniture rules to the right of spouses and they run contrary to various international conventions and more importantly, to the constitution^[17] of the Federal Republic of Nigeria.

As regards Islamic law of inheritance, the study discusses the quantum of share to women in their capacities as wives and daughters in the estates of their deceased husbands and fathers as contained in the Holy Quran which is the divine source of Islamic law.

In this connection, the research considers the following questions: Are women entitled to inherit the property of deceased male persons and what are the rules of inheritance? Do the customary laws of inheritance treat men and women equally? Are there differences or similarities between the customary laws and the Islamic laws as they relate to women’s right of inheritance? How can the customary laws of inheritance be reformed to improve women’s rights of inheritance?

1.3         OBJECTIVES OF THE STUDY

One of the objectives of this study is to examine the status of women vis-à-vis the rights of inheritance under the customary and Islamic laws. Generally, under customary laws, a wife is not entitled to inherit the estates of her late husband. Similarly, the right of inheritance of a girl child is also curtailed. However, Islamic law allows women in their capacity as daughters, wives, mothers and sisters to inherit the estates of their relatives. It is therefore clear that the customary laws of inheritance are discriminatory against women.

The second purpose of this study is to assess the adequacy or otherwise of the laws relating to women’s rights of inheritance under the customary laws of inheritance of the Igbo, Benin and Yoruba peoples of Nigeria.

Furthermore, the aim of this study is to examine which of the customary laws of inheritance of the three ethnic groups considered in this study has any similarity with Islamic law.

Finally, the purpose of this study is to sensitize the legislatures, policy makers and other concerned stakeholders on the need to reform or abolish the discriminatory customary laws of inheritance to give women right of inheritance.

1.4         SCOPE OF THE STUDY

A discussion of the full range of the customary laws of inheritance of the various customary laws of the over two hundred and fifty ethnic groups in Nigeria is not the focus of this study. This study is concerned with the customary laws of inheritance of three of the major ethnic groups, that is to say, Igbo, Benin and Yoruba people as they affect women in their capacity as wives and daughters.

Generally, the customary laws of inheritance of these ethnic groups deny wives of the right to inherit the estates of their deceased husbands. In the same vein, the Igbo customary law denies women and daughters the right to inherit the estates of their late fathers, while the Benin customary law gives preference to sons over daughters. This study has criticized these customary laws to be unjust, inequitable, and unconstitutional.^[18] They also violate the CEDAW^[19] to which Nigeria is a signatory and the African Charter on Human and Peoples Rights which Nigeria has also domesticated.^[20]

On the other hand, Islamic law of inheritance which gives women as wives and daughters certain portions of the estates of their deceased husbands and fathers is just and equitable.

1.5         METHODOLOGY

The research is both doctrinal and comparative. The research adopted a comparative study of customary laws and Islamic law as they relate to women’s rights of inheritance. The doctrinal research method and context analysis were used for the comparative study.

Secondary sources of materials were mainly utilized. Law text books learned authors on customary laws and Islamic law of inheritance, manual and handbook on customary laws, articles in law Journals and materials downloaded from the internet were consulted for the study. The other sources utilized were statutory laws and decided cases from different jurisdictions cutting across all the ethnic groups covered by the study.

Moreover, information about the existing customary laws of the tribes covered by the study was considered vis-à-vis the provisions of the Islamic law of inheritance as enshrined in the Holy Quran.

1.6         LITERATURE REVIEW

Many scholars have written on customary laws of inheritance of the Igbo, Benin and Yoruba peoples of Nigeria. These writings form one or two chapters in their books on customary laws generally, family law and land law. Some of these scholars whose books are sources for this thesis are: Okoro Nwakamma^[21], Obi S. N.C^[22], Okany Martin Chukwuka^[23], Oye and Ola Oba^[24], Nwabueze B. O.^[25] Nwogugu E. I.^[26] , Animashaun T. O. G and Oyeneyin A. B.^[27], Yakubu Musa G.^[28] , Harvey Brian W^[29] , Osanwowa Usu^[30]. The consensus of these scholars is that under the Igbo, Benin and Yoruba customary laws of inheritance, wives are not entitled to inherit real and personal property of their deceased husbands. However, they are entitled to live in their husbands’ houses until they remarry or die.

Moreover, the consensus of the scholars is that generally, under the customary laws of these people, female children of a deceased male person are not entitled to inherit his personal and real property. Under the Yoruba customary law, however, both male and female children are entitled to inherit the personal property of their deceased fathers. Some of these scholars do not criticize in their books the discriminatory laws which deny daughters and wives the right to inherit the property of their deceased fathers and husbands. Only Nwogugu, Animashaun and Oyeneyin^[31] have criticized these customary laws as being inconsistent with the 1999 Constitution.

Therefore, the approach of these scholars differs from this study because these authors wrote on the general laws. They do not suggest any reform. On the other hand, this study has not criticized the customary laws that are discriminatory against women but has also made concrete recommendations on how to reform the laws.

The manual of customary laws obtained in the former Anambra and Imo states is another source for this study. Obi, wrote the preface to the manual. The preface to the manual states, that the manual covers thirty-nine Administrative Divisions of former Eastern Region of Nigeria^[32]. This means that the manual covers customary laws of all Igbo people of the present Abia, Anambra, Ebonyi, Enugu and Imo States.

Part 11 of the manual entitled customary laws of succession based on extensive research gives details of the types of estates that can be inherited, the methods of distribution of estates, the rules of general application and local variations. Therefore, the manual appears to be the most recent authority on the customary law of inheritance of the Igbo people. However, the manual only states the laws for the purpose of certainty of the laws. It dies not criticize them.

A handbook of some Benin Customs and usage^[33] issued by the Benin Traditional Council on the authority of the Omo n’Oba Erediauwa the Oba of Benin is one of the main sources for the Benin customary laws of inheritance discussed in this study. The preamble to the handbook states that the handbook was prepared on the authority of Omo n’Oba Erediauwa, the Oba of Benin as a result of lots of acrimony generated among the children of a deceased Benin person as a result of the distribution of his estates by the elders of the family. The handbook states the customary rules of inheritance for non-hereditary traditional title holders. The handbook, like the customary law manual of Anambra and Imo States, only states details those who are entitled to the estates and the categories of the estates i.e. landed properties and immovable properties.

According to the handbook, the only method of distribution of estates recognized under the Benin customary law of inheritance is urho i.e. per stripe. The handbook does not criticize the customary law of inheritance of the Benin which gives precedence to male children over the female children.

Ezeillo Joy^[34] critically outlines the laws of inheritance in Nigeria. She makes some suggestions on how to improve women’s rights to inheritance. Some of the suggestions include harmonization of the received English law, local statutes and customary laws on inheritance; legal education for women, gender sensitivity training for judicial and other law enforcement officers for effective elimination of discrimination against women and funds to support women to fight discriminatory inheritance laws. These suggestions are good and we support them.

Clarke Peter B.^[35], Hogben S. J.^[36] , Ajayi J. F. A.^[37] , Holt P. M.^[38], discusses the history of Islam and introduction of Islamic law (Sharia) in Kanen-Bornu and many parts of Hausa land. They also discuss the Jihad of Usman Dan Fodio in Hausa land which resulted in the establishment of an Islamic State covering many areas of the former Northern Region of Nigeria.

Justice Mahmud Abdul Malik Bappa^[39] discusses the history of the operation of Islamic law in the former Northern Region of Nigeria from the time of the British colonial rule till after independence. Abdul-Wahab Tajudeen^[40] discusses the concept of shariah, scope, sources and schools of Shariah, Southern States and Shariah, and impediments to the implementation of the constitutional provisions on the establishment of Shariah Courts in Southern Nigeria. The learned author suggests two methods that could facilitate the establishment of Shariah Courts of Appeal in Southern States as provided for in the Constitution. First, the Houses of Assembly of Southern States should enact a law to establish courts of co-ordinate jurisdiction with the existing customary courts in the States with the jurisdiction over Islamic personal law.

Chaudry Muhammed Sharif^[41] and Gurin Aminu Muhammed^[42] Ati Abdal

Hammudah^[43] discuss the rights of women to inheritance as stipulated in the Holy Quran. Chaudhry and Ati^[44] give explanation for the greater share of the estate to men as against women. According to them, Islam places greater economic obligations on men than women because men have responsibility for earning livelihood for the family. Hence, in Islam, an unmarried woman is maintained by her father and a married woman is maintained by her husband. We agree with the explanations given by the authors. What is noteworthy of the Islamic law of inheritance is that the law which gives women right to inherit certain portions of the estate of their husbands and fathers is just and equitable than customary laws which totally deprive women right of inheritance.

The following articles in the journals are also reviewed:

Onuoha^[45], in Discriminatory Property Inheritance under the customary law in Nigeria, discusses the patterns of inheritance and succession on intestacy under customary law in Nigeria. She discusses the discriminatory aspect of property inheritance under customary law as they affect the rights of spouses, adopted children and illegitimate children. She criticizes the general rule of customary law that a wife cannot inherit the property of her deceased husband. According to her, this customary law offends the principle of natural justice, equity and good conscience. It is morally unfair and repulsive to deprive a wife of the right to inherit her husband’s property.

She recommends a reform of the customary law. The reform should be the codification, unification and harmonization to make for certainty in formulating, applying and the implementing of the law leavened as necessary by the natural justice principle. She also recommends that government should encourage and promote the role of nongovernmental organizations which have been educating and enlightening women and society on the need to recognize and eliminate these discriminatory customary laws.

While this study agrees that non-governmental organizations have a role to play in educating women and the society to appreciate the unfairness of discriminatory customary laws and the need for the laws to be reformed, we do not think codification and harmonization of the laws will reform the law. This is because codification and harmonization of the laws will only make for certainty of the laws but will not change the laws to improve the status and rights of women.

Opeloye Muhib. O.^[46] discusses the definition of Sharia application in Yoruba land, impediments against realization of Sharia in South-Western Nigeria and prospects for the implementation of Sharia in South-Western Nigeria. As regards the implementation of Sharia in South-West, the learned author recommends inter-alia that conferences and seminars should be organized by appropriate Islamic organizations to promote dialogue among Muslims and Christians for better understanding of Sharia by Muslims themselves. Moreover prominent Islamic organizations should establish independent Sharia panels to adjudicate in civil matters involving Muslims. These recommendations are good but we think there should be preliminaries to the official establishment of Sharia Courts. Therefore, Muslims in South-West should continue to put pressure on their governments and legislatures for the establishment of Sharia legal system.

Sada I. N.^[47] discusses the meaning and sources of Sharia, which in the wide sense is usually translated as Islamic law. He classifies the sources of law into two components, that is to say, the divine and human sources. The divine source comprises the Quran and the Sunna of Prophet Muhammad while the human source comprises Ijma, Qiyas, Urf, Istihsan and Maslaha broadly termed Ijtihad. According to him, the divine source which is unequivocally commanded by Allah on the messenger is designated as Sharia in its strict sense of the word.

In the view of the fact that the Quran with Sunna i.e. Sharia proper is very concise and supply only the general rules, it means that Allah the law giver wants Muslims to work out the details of the law through interpretation and the application of the injunctions of the Sharia to every contingency of life. As human opinions and reasoning vary, the interpretation and application of the injunctions of Sharia vary from one person to another and from one community to another.

As regards the controversy whether Islamic law is rigid or dynamic, the writer concludes that Islamic law if considered from the aspect of its divine component is rigid and immutable, but dynamic, flexible and adaptable if viewed from the aspect of its human component. The human component is flexible and dynamic because human effort to solve human problems as they rise is bound to keep changing as human nature, conditions and circumstances continue changing from time to time and generation to generation. We think the article has undoubtedly clarified the confusion as regards the sources of Sharia in its strict sense and Islamic law in its wide sense.

Edu O.K.^[48] discusses the customary laws of inheritance of the Igbo, Benin and Yoruba people. He highlights the shortcomings of these customary laws which he criticizes as being not only biased against female children and widows but also unconstitutional and repugnant to natural justice, equity and good conscience. He recommends the enactment of a legislation which will give a widow who married under customary law a right to inherit a portion of her deceased husband’s estate. Moreover, the courts should declare repugnant the Ibo customary law of inheritance which deprives female children of the right the estates of their late fathers.

These recommendations are good and are supported. However, the abolition of customary law of inheritance which deprives female children right of inheritance should not be limited to Igbo customary law but all customary laws of inheritance which discriminate against women should be abolished.

1.7         DEFINITIONS OF TERMS

This study contains some technical words and terminologies. For a proper understanding of this thesis, it is necessary to define these terminologies in the context they are used in the study. These terminologies are defined below:

“Customary law” or “native law and customs” means the unwritten rules, customs and traditions which regulate various kinds of relationship among members of a particular indigenous community and accepted as binding on them.

“Sharia” or “Islamic law” is written religious law laid down and prescribed by Allah to govern and guide humankind in all aspects of life which Muslims accept as binding on them. Sharia is classified statutorily as customary law, but the Supreme Court has pronounced recently that Sharia or Islamic law is not customary law.

Idi-Igi (per stripe) means distribution of property according to the number of wives of the deceased.

Ori-Ojori (per capita) means distribution of property of a deceased equally among all his children.

Igiogbe – means the house in which a deceased Benin man lived and died and usually, though not always where he was buried.

Urho means method of distribution of property according to the number of wives of a deceased.

Usekwu – where a man has children by two or more women, the children born by each of those women together make up one Usekwu for the purpose of distributing his property on intestate.

Nrachi – the practice whereby a daughter whose father has no male children is retained unmarried in the father’s compound with a view to her having a male child in the father’s name. The children she has are children of her father whether the father is dead or alive.

Ukomwen – the second and final burial rites for a deceased Benin man.

“Quranic Heirs” – means the relations whose names and respective shares are specifically mentioned in the Quran. They are entitled to receive fixed shares allotted to them in certain order of preference.

1.8        CONCLUSION

It is an indisputable fact that one of the common characteristics of customary law is that it is dynamic.^[49] It changes with time to meet the social and economic changes of the society. It is regrettable that the customary laws of inheritance which deny women the right to inherit the property of their deceased husbands and fathers have remained static. Consequently, these discriminatory and obsolete laws are still operating despite the provisions of the 1999 constitution of the Federal Republic of Nigeria which guarantees freedom from discrimination based on sex^[50] and the International Conventions which prohibits discrimination against women which Nigeria has signed⁵²

In this connection, it is high time these customary laws were reformed to give women the right of inheritance so as to improve the economic and social status of women. Such reforms should in fact aim at the abolition of the discriminatory laws so that women can enjoy the right of freedom from discrimination as guaranteed by the Constitution.

Though Islamic law gives women the right to inherit certain portions of the estates of their late husbands and fathers, many women are still denied the right by surviving relatives of many deceased Muslims who prefer to distribute the property of surviving relatives according to customary laws. It would appear that this has been possible because many Muslims women do not know their rights under the Islamic law. Therefore, there is need for Islamic scholars and Imams to enlighten Muslim women of their rights of inheritance under the Islamic law.

[1] Cited by Bryson Valerie in Feminist Debates Issues of Theory and Political Practice (Palgrave New York 1999) page 5.

[2] Bryson Valerie op cit. page 16

[3] Ibid. page 27

[4] Kerr Joanna (ed.) “Ours by Rights: Women’s Right as Human Rights” (Zed Books London 1993) page 93.

[5] Convention on the Elimination of All Forms of Discrimination against Women, Adopted and opened for signature, ratification and accession by General Assembly resolution 34/ 180 of December 1979.

[6] Freeman Marsha A. “Women Development and Justice. Using the International Convention on Women’s Rights” in Kerr (ed.) Ours by Right: Women’s Rights as Human Rights. Op cit. page 93.

[7] Ibid

[8] Eshugbayi Eleko v Government of Nigeria (1931) A.C 662 at 673 where the Privy Council said “it is the assent of the native community that gives a custom its validity…’

[9] Manual of Customary Law obtaining in Anambra and Imo States of Nigeria (Government Press, Enugu, 1977). 10  A Handbook of Benin Customs and Usages (Eweka Court; The Palace Benin City Nigeria, 1996).

[10] S.2 of the Native Courts Law 1956. CAP 56 Laws of Northern Nigeria 1963 states: ‘Native law and custom includes Muslim law.’ However in the case of Alkamawa v Bello, (1998) 6 SCNJ 127 the Supreme Court held that the Islamic Law is not and has never been customary law. Court stated thus, “Islamic law is not the same as customary law as it does not belong to any particular tribe. It is a complete system of universal law, more certain and permanent and more universal than the English Common Law” at p. 128.

[11] rd

Fayzee, Asaf A.A, (1964) Outlines of Muhammed Law (Oxford University Press 3 Edition , London) Faruki Kemal A. (1962) Islamic Jurisprudence (Karachi Publishing House Pakistan)p.18, Couslon, N.J 1964. A History of Islamic Law. (The University Press, Edinburg) p.85; Schacht J. 1964, Introduction to Islamic Law (Clarendon Press Oxford) and Shorter Encyclopedia of Islam, pp. 102-107; 524-529) cited by Sada I.N in his article ‘The nature of Islamic Law, A Rigid or Dynamic System? A Critique’ (2000-2002) vol 11, No 11 (Ahmed Bello University Journal of Islamic Law).

[12] Sada I. N, “The Nature of Islamic law; A Rigid or Dynamic System? A Critique” (2000- 2001) vol. 11 No 11 Ahmed Bello University Journal of Islamic Law.

[13] (1970) Islamic Law its Scope and Equity p.64. Cited by Sada I.N. op. cit. page 17.

[14] th                               th

Chambers 20 Century Dictionary 4 Ed., 1981.

[15] Socio-Economical and Legal Rights of Women: The Challenge (Women’s Aid Collective [WACOL] Nigeria 2006) pg. 5. WACOL is a non- governmental, non-profit making organization in Nigeria which is gender conscious working towards gender equality and human rights for all.

[16] Ikpeze O. V., Gender Dynamics of Inheritance Rights in Nigeria: Need for the Women Empowerment (Onitsha: Folmech Printing & Pub. Co. Ltd; 2009), p.54

[17] The highest law of the people of Nigeria, against which, any law (or practice) in contradiction is invalid.

[18] They violate S. 42(1) of the 1999 Constitution of the Federal Republic of Nigeria CAP C23 Laws of the Federation of Nigeria 2004 which prohibits discrimination against any citizen of Nigeria on the basis of sex.

[19] By Article 2 of the Convention, State signatories to the Convention are required to take appropriate measures to abolish existing laws, customs, regulations and practices which are discriminatory against women

[20] African Charter on Human and People Rights (Ratification and Enforcement Act, CAP A9 Laws of Federation of Nigeria 2004. Article 18(3) of the Charter provides “ The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in International declarations and conventions”

[21] The Customary Laws of Succession in Eastern Nigeria and the Statutory and Judicial Rules Governing their Application (Sweet & Maxwell London, 1966)

[22] The Ibo Law of Property (Butterworth and Co. London 1963)

[23] Nigeria Law of Property (Fourth Dimension Publishers Nigeria 2000)

[24] A Survey of African Law and Custom (Jator Publishing Nigeria 1999)

[25] Nigerian Land Law  (Nwamife Publishers, Nigeria 1972)

[26] Family Law in Nigeria(Heinemann Educational Books Nigeria 1990)

[27] Law of Succession, Wills and Probate in Nigeria(MIJ Professional Publishers Ltd Nigeria 2002)

[28] Property Inheritance and Distribution of Estates under Customary Law in the Book Towards Reinstatement of Nigeria Customary Laws. (Federal Ministry of Justice Nigeria).

[29] The Law and Practice of Nigeria Wills Probate and Succession( Sweet and Maxwell London Nigeria 2000)

[30] The Customary Law of the Bini ( Fine Fare International Company London Nigeria 2000)

[31] Nwogugu, Animashaun & Oyeneyin op.cit

[32] Customary Law Manual Op.cit page 5. The learned author was the Commissioner for Law Revision of Anambra State of Nigeria in 1977.

[33] Hand Book on Benin Customs & Usages Op.cit

[34] Law and Practices Relating to Women’s Inheritance Rights in Nigeria (Women’s Aid Collective(WACOL) Nigeria 2000

[35] West Africa and Islam (Edward Arnold 1988)

[36] An Introduction to the History of Islamic States of Northern Nigeria (Oxford University Press Nigeria 1967)

[37] nd

History of West Africa Vol 1. 2 Edition (Longman Group Ltd London 1976)

[38] The Cambridge History of Islam Vol. 2A (Cambridge University Press. Great Britain 1992.

[39] A brief of History of Sharia in the defunct Northern Nigeria (Jos. University Press Ltd Nigeria 1988)

[40] Application of Shariah in Southern Nigeria; The Hoax, The Truth(Al Furuq’aan Publishers Nigeria 2006)

[41] Women’s Rights in Islam (Adam Publishers and Distribution India 2002).

[42] An Introduction to Islamic Law of Succession (Testate and Intestate) (Jodda Press Ltd. Nigeria 1998)

[43] The Family Structure in Islam (Islamic Publications Bureau. Nigeria 1982).

[44] Women’s Rights in Islam Op.cit; page 75, The Structure in Islam op.cit page 267.

[45] Onuoha, Reginald Akujobi, ‘Discriminatory Property Inheritance under the Customary Law in Nigeria NGOs to the Rescue (2008) vol.10. The International Journal of Not for Profit Law

[46] ‘The Realization of Shariah in South-Western Nigeria: A Mirage or Reality’ (2003) A digest on Islamic Law and Jurisprudence in Nigeria Essays in Honour of Justice Umar Fruk Abdullah. President Court of Appeal Abuja.

[47] ‘The Nature of Islamic law; A Rigid or Dynamic System? A Critique’(2000-2001) vol. 11 No 11 Ahmed Bello    University Journal of Islamic law

[48] A Review of Laws of Inheritance in the Southern States of Nigeria’ (2004) Vol.24 The Journal of Private and Property Law JPPL. Faculty of Law University of Nigeria, Nsukka

[49] Agbai v. Okogbue (1991) 7NWLR (Pt 204) 391 Per Nwokedi JSC at 417

[50] S. 42(1)(a) Constitution of the Federal Republic of Nigeria 1999 ⁵² Op.cit

A COMPARATIVE STUDY OF WOMEN’S RIGHTS OF INHERITANCE IN NIGERIA UNDER ISLAMIC LAW AND SOME CUSTOMARY LAWS

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