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From time immemorial, African custom is a community-based system of law. The family system is therefore the most important social construct in African society. In western society, the most common family form is the nuclear family consisting of a single father, mother and the children. However, in the traditional African family, a family consists of more than the nuclear family due to the polygamous nature of the customary marriages in Africa: These customary marriages create separate households which creates a family group controlled by the family head. This family head is also very important in matters relating to succession and inheritances.
Inheritance however, means property received from a decedent, either by will or through state laws of intestate successions, where the decedent has failed to execute a valid will. Inheritance laws are those statutes and regulations affecting those entitled to receive what from the estate of a deceased relative. There are twin regimes in place to regulate the law of inheritance; Testate and Intestate. Testate is when an individual leaves a will on death and his estate will be shared according to the will, while Intestate is where an individual does not leave a will on death and their estate will be distributed by the laws of Intestacy which are governed by the Succession Act 1964 and in Nigeria the customary laws of each community governs the distribution of estates.
It is flexible and changes with time; however, it guides the deceased estate when he dies intestate. The custom must be proved and judicially noticed in court before it can be enforceable. Customary law being one of the sources of intestate succession must satisfy some tests before it can be pronounced as enforceable and acceptable by the court. It must not be repugnant to natural justice, equity and good conscience. It must not be contrary to public policy; the law must not be incompatible either directly or indirectly with any law in force at the time including the constitution.
There are many customs practiced in Nigeria but the prominent groups are; the Yoruba, Igbo and Hausa customs. In all these divisions, there are certain modes of inheritance. In the majority of the cultures in Nigeria, the mode of succession is patrilineal; the right of inheritance is traced through the male descent. This practice acquires different forms like primogeniture, ultimogeniture or any other variant. Primogeniture is the rule whereby the eldest male in a given group of relatives inherits the property to the exclusion of all others.
Members of the Igbo (also known as Ibo) ethnic group mainly live in the southeastern part of Nigeria and constitute 38% of the country’s over one hundred and thirty-one million population. The Igbo rites classify property into 3 categories; land, commercially valuable trees and plants, and movable property (household articles, livestock, money and debts). For instance although many local variations exist, the inheritance of individually owned land generally follows the principle of primogeniture.
In the Igbo traditional communities, the wives and daughters do not have rights of inheritance over their father’s/husband’s property; the eldest son has the absolute rights to inherit property. However, women are excluded, she has no right of ownership over any property of her deceased husband and this applies to the daughters of the deceased as well. Rather the widow has mere right of possessing a parcel of family property subject to her good behavior whether she has a surviving son or not.
In Igbo customary law, two modes of distribution of intestate estate are recognized per stirpes and per capita. Distribution per stirpes usually takes place in polygamous families. The estate in such a case is distributed as many shares as there are wives that have sons in them ‘Usoekwu’. In the case of distribution per capita, the estate is distributed among the individual sons. In some areas for instance; Abakaliki, Aguata, Anambra, Nsukka (Anambra state) Aba, Afikpo, Arochukwu, Okigwe and Nkwerre (Imo state) distribution wherever there is more than one wife is done per stirpes.
On the other hand, in areas like Mbaise and Oru (Imo state) Njikoka, Udi, Uzo-uwani (Anambra state) and Ukwa (rivers state) distribution is per capita irrespective of whether the family is a monogamous or polygamous one. In yet other areas, whether the distribution is per stirpes or per capita will depend on the nature of the property which makes up the estate. In Onitsha, for instance, the distribution of real estate is done per stirpes, while the distribution of movable property is done per capita.
Female children in Igbo land have suffered so much neglect and exclusion from being involved in their family inheritance due to their cultural beliefs and tradition which invariably positions the women as temporary children. In Igbo land, they are subconsciously seen and treated as less important to the family, yet when serious needs arise in the family they are looked upon for solution. The reason being that male children perpetuate their father’s generation, unlike the woman who gets married off and bears her husband’s name. Also, a female child has no hope of inheriting from her father’s property and as such she must get married.
There are some localities in which a daughter with respect to whom a Nrachi Ceremony is performed (a practice in which the 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 and may inherit her father’s compound land and house). Similar to the inheritance of individual land, the inheritance of investment on land (including trees with commercial value) also varies from one locality to another. Although such property is generally inherited by sons as corporate bodies, there are localities where they are jointly inherited.
Where distribution is done per capita, the heirs take their respective shares in order of seniority so that the eldest son has the right to take before the others. In the case of distribution per stirpes, the respective ‘Usoekwu’ with the eldest son will take first. The share of each Usoekwu is received by the eldest son in that unit on behalf of himself and his brothers. Within each Usoekwu there is sub distribution among male members. A variation of distribution per stirpes is found around Ogbaru (Anambra state) were the various Usoekwu with sons in them take in the order in which their respective mothers were married into the family irrespective of the comparative seniority of the sons in each ‘Usoekwu’.
There is no general rule in the Igbo customary law that the successors take equal shares. In some part of Igbo land including Aguata, Igbo-Eze, Ogbaru, Onitsha (Anambara state); Arochukwu, Bende, Mbaise, Owerri (Imo state) besides the special shares of the senior son already mentioned, the heirs are entitled to equal sharers of the deceased’s lands and houses. On the other hand, distribution in unequal shares will progressively get smaller with the eldest son taking the largest shares operates in Aba, Mbano, Nkwerre, Northern Ngwa, Oguta (Imo state) and Abakaliki, Nnewi, Ezzikwo (Anambara state).
As a general rule, a widow under Igbo customary law, is not entitled as of right to succeed to the personal or real estate of her deceased husband. This principle was applied in the Supreme Court case of Nezianya v Okagbue.
In the court of first instance, it was held that the possession of a widow of her husband’s land cannot adverse to the rights of her husband’s family to enable her to acquire an absolute right to possession of it against the family. The plaintiffs then appealed.
In the opinion of the Supreme court one of the important issues to be determined was whether under Onitsha native law and custom, a wife of a deceased member of a family could become the owner of her late husband’s real estate by virtue of long possession of the property which she occupied with the knowledge of the family or by adverse possession. The court gave a negative answer to this question and observed that;
‘It will appear that the essence of position of a wife in such a case is that she occupies the property or deals with it as a recognised member of her husband’s family and not as a stranger; nor does she need the express consent or the permission to occupy the property so long as the family makes no objection to her occupation…from the evidence…it is abundantly clear that a married woman after the death of her husband can never under native law and custom be a stranger to her deceased husbands property; and she could not at any time, acquire a distinct possession of her own to oust the family’s right of ownership over the property.’
The female child is deprived from even partaking from her husband’s estates in the event of his death, if she has no male child or that her children are still young. This could be worsened by the activities of the shylock relatives who would want to take undue advantage of the situation and have everything to themselves. In some cases, the husband’s family arranges and marries a younger lady for the man in order to have male children and the first wife, who is actually relegated to the background and eventually pushed out of the house if a male child comes from the other woman.
In spite of this seemingly dark side of the Igbo culture, women are expected to stay in their husbands’ house no matter the form of maltreatment meted to them by their husbands, mother in law and relatives. This is because they, as women, do not have a place in their father’s houses. This has often brought sufferings to the women, especially the uneducated ones. There are cases where Igbo women end up on the streets begging or spending the rest of their lives in strange lands because they cannot go back to their father’s house after being sent out of their husbands’ houses. Nowadays, this is no longer the norm as most Igbo women take up career jobs, live independently and acquire landed property.
The Onitsha native law and custom postulates that a married woman, on the death of her husband without a male issue, with the concurrence of her husband’s family, may deal with the deceased property. Her dealings must receive the consent of the family. The consent may be actual or implied from the circumstances of the case, but she cannot assume ownership of the property or alienate it. She cannot by effusion of time claim the property to be her own. If the family does not give her consent, she cannot deal with the property. She has a right to occupy the building or a part of it, ‘subject to good behavior’. This statement of the law is true of most other Igbo speaking areas.
Although a widow does not inherit her husband’s estate, she is entitled to some rights therein, first, she is entitled to live as a member of the family in her late husband’s house until she remarries or dies. In order to protect this right, the husband’s heir has no power to dispose of the matrimonial home which is occupied by the widow. However, her right in this respect is subject to good conduct.
Secondly, a widow has the right to be shown a portion of her late husband’s land or family land annually for farming purposes according to her farming needs.
Thirdly, a widow while living in the husband’s family has a right to be maintained by the person who inherits her husband’s estate. Where, however, the widow’s son is grown up, she would be maintained by him. A widow without a son has no right to remain in late husband’s family. The husband’s heir may in fact expel her from the husband’s compound and other lands.
Unfortunately, the duty of the male heir to maintain the widow is neglected with the result that the male heir takes the benefits without the burden. This may be hard on the widow where she has contributed significantly to the acquisition of the property in question. It has been the case in some cases. Widows are left destitute in spite of the fact that their husband left substantial estate behind which by the customary law is to be inherited by another male which is not her son.
A widow of a customary law marriage, on the death of her husband is completely disinherited under the various customary laws in Nigeria. No system of customary law in Nigeria confers a beneficial right in a widow in the deceased husband’s estate, except indirect benefits through her children’s right, if any. This is all the more so apparent given that the widow is property to be inherited.
However, some customary laws are getting reformed. It is interesting to note that in recent times, the court has departed from the rule of customary law that a widow cannot inherit the estate of her deceased husband’s property. The reformation of the unfavorable customary laws of women inheritance in the Igbo land, for instance, is evident in the recent case of Ukeje v Ukeje. The Supreme Court had voided the Igbo law and custom which forbids a female from inheriting her late father’s estate on the grounds that it is discriminatory and conflicts with the provision of the constitution. The court held that the practice conflicted with section 42(1) (a) and (2) of the 1999 constitution.
The trial court found out that she was a daughter to the deceased and that she was qualified to benefit from the estate of her father who died intestate in Lagos in 1981. The Court of Appeal, Lagos, to which Mrs. Lois ukeje and Enyinnanya Ukeje appealed, upheld the decision of the trial court, prompting them to appeal to the Supreme Court. In its last judgment, the Supreme Court held that the Court of Appeal, Lagos, was right to have voided the Igbo’s law and custom that disinherit female children. Justice Bode Rhodes-Vivour, who read the leading judgment, held that no matter the circumstances of the birth of a female child, such a child is entitled to the 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, a fundamental right provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the constitution. In the light of all that has been said, the appeal was dismissed.
A recent landmark decision of the supreme court on the inheritance right of widows with respect to their deceased husband’s estate is Anekwe v Nweke, where the Supreme Court condemned such culture in very strong terms; ‘any culture that disinherits a 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… for a widow of a man to be thrown out of her matrimonial home… by her late husband’s brothers on the ground that she had no male child, is indeed barbaric, worrying and flesh skinning. It is repugnant to natural justice, equity and good conscience and ought to be abolished.’ The decision of the Supreme Court in this case is laudable and has put an end to such ancient and archaic practice and in turn advanced the customary law of intestacy.
THE EASTERN UPDATES