A CRITICAL APPRAISAL OF INTESTATE SUCCESSION AND WIDOWHOOD RIGHTS IN NIGERIA WITH PARTICULAR REFERENCE TO CUSTOMARY LAW

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A CRITICAL APPRAISAL OF INTESTATE SUCCESSION AND WIDOWHOOD RIGHTS IN NIGERIA WITH PARTICULAR REFERENCE TO CUSTOMARY LAW

CHAPTER ONE

INTRODUCTION 

1.1        Background to the Study

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 son[1] who consequently becomes the head of the family. He occupies the family house, holding same as trustee of the other children, male or female.

For example in Yoruba land, the distribution of an estate of a deceased person who dies without a valid Will is per stripe; i.e. by the number of wives that the deceased had and not by the number of children[2]. In Calabar, the eldest surviving male member of the deceased person succeeds as the head of the family and inherits the deceased estate. Also among the Fulani, the eldest son inherits his deceased father’s cattle, the main asset in those days, out of which he makes presents of some of them to his younger brothers according to their needs. Finally under the Bini custom, the right to succession of the entire estate belongs exclusively to the eldest son of a deceased person who acts as a sort of trustee for the other children[3].

 

 

1.2     Aim of the Study

One can easily perceive from the foregoing statements 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 over-whelming sympathy for the male gender and has as a consequence, sustained an unjust and disproportional treatment of females in Nigeria. The continued practices of these laws constitute a major obstacle to gender equality, economic empowerment of the female gender and actualization of social justice in terms of development, peace and security[4]. These discriminatory aspects of property inheritance under 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[5] of the Federal Republic of Nigeria. This study is therefore aimed at critically examining these practices including their antecedents, source and prospects with a view to their elimination.

 

1.3       Objectives of the Study

This research work aims at an appraisal of the inheritance rights of women in Nigeria under the Act and the various customs in Nigeria. Customary practices bordering on inheritance evidently demonstrate varying degrees of gender discrimination as widows and their female children receive very little compared to the males. This discriminatory trend fuelled by ignorance, tradition and religion serves as a bar to the economic and financial empowerment of women and their right to self-actualization. Without question, the poverty in this country is related to deprivations due to unequal distribution of wealth (land) and if everyone is allowed to benefit equally from an inheritance, it would catalyze economic growth, development and ultimately poverty would be eradicated.

The paper will analyse some customary law practices on inheritance with a view to unearthing such norms that perpetuate gender discrimination and impede the empowerment of women in Nigeria. It will also look at the provisions of existing local and international laws that deal with inheritance and the progress each law has made in combating this ugly trend. Finally, this paper shall proffer possible recommendations for reform to help the government and other stakeholders who are or are likely to be so affected. In the end, the undesirability of such obnoxious and anti-human practices will be made clear as a preclude to their elimination and discard in place of more humane practices. After all, custom is dynamic and not static.

1.4       Significance of the Study

The significance of 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 on the country. Also, the reader would be exposed to the laws, both domestic and international, presently in force to curb this trend and how effective they have been.

By using Nigeria as a case study, this dissertation work is also relevant in pointing out the plight of widows in many African countries which more leaves much to be desired. Recommendations are made at the domestic level with a view to enhancing the protection of widow’s right in Nigeria.

1.5       Research Methodology

This essay will adopt the doctrinal and comparative research methods; reference will be made to both primary and secondary sources such as relevant books, journals, statutes, legislatives and internet sources. References will also be made to international conventions and the position of the law from foreign jurisdictions.

 1.6   Literature Review

The essence of literature review is to appreciate other worked already existing in the area of studying and show why not withstanding their existence, it is still for me to undertake this work.

For example, Prof. Edwin I. Nwogugu[6] has a standard text book on family law which substantially covers the general nature and scope of family law in Nigeria. As good as that work is it is none the less without the details regarding intestate succession and widowhood right.

Ezeilo Joy[7] 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.

Onuoha[8] 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.

Prof. O.K. Edu[9] discusses the customary laws of inheritance of 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 to the estates of their late father.

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       Scope and Limitations of the Study

This study will deal primarily with inheritance and widowhood rites; its history, the customary laws practices of the major ethnic groups of Nigeria which are: Igbo, Yoruba, Bini, Esan, Urhobo, Islamic law and Hausa inheritance rights of women under the Wills Act of 1832 & the relevant Wills Law of selected states. It will also examine the reasons why these discriminatory practices are still in existence despite the various laws already in place. Also, the human rights implications of discrimination against women as regards inheritance rights will be considered and it will point to the effect this worrisome trend is having on the nation’s economy and her reputation in the global world view.

In terms of difficulties encountered during the course of this research work, the most prominent limitation is the adequate availability of material on the subject. The issues of succession and inheritance, as they affect different categories of women such as widows, have attracted a lot of attention. Whereas there is an abundance of publications on succession and inheritance, there is a dearth of documentation on widowhood practices.

In terms of timeframe, this study is based generally on the present, however there are references to the past and the future. The past has been compared with the present in ascertaining where the plight of widows in Nigeria has either worsened or improved with time. A comparison between the past and the present has shed some light whether the situation of widows in Nigeria has remain static over a period of time. The recommendations made at the end of the study have been targeted at the future.

[1] Chambers 20th Century Dictionary 4th Ed., 1981

[2] Onuoha R.A., “Discriminatory Property Inheritance Under Customary Law in Nigeria: NGOs to the Rescue”

The International Journal of Not-for-Profit Law, (2008), Vol.10, Issue 2

[3] Okeaya-Inneh K.S., Benin Native law and Custom at a Glance, (Benin City: Gift-prints Associate; 2007)

[4] Ikpeze O.V., Gender Dynamics of Inheritance Rights in Nigeria: Need for Women Empowerment (Onitsha:

Folmech Printing & Pub. Co. Ltd; 2009), p. 54

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

[6] Nwogugu, E.I. Family Law in Nigeria third Edition. Published in 2014 by (Heinemann Educational Books Nigeria 1990)

[7] Ezeilo Joy Law and Practices Relating to Women’s Inheritance Rights in Nigeria (Women’s Aid Collective

(WACOL) Nigeria 2000

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

[9] Edu O.K. 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

A CRITICAL APPRAISAL OF INTESTATE SUCCESSION AND WIDOWHOOD RIGHTS IN NIGERIA WITH PARTICULAR REFERENCE TO CUSTOMARY LAW

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