Tuesday, 24 April 2012

Advocacy for the Implementation of Inheritance Rights of Women in Nigeria

The inheritance rights of women under a marriage depend on the form of Marriage and the respective laws relating to such Marriages. Women married under customary laws are left to grapple with the customary laws which differs from place to place and are unwritten. These customary laws most often discriminates against
women. The devolution of estate of a person who dies intestate (without making a will) in Nigeria is according to the personal law of the deceased. Where the deceased made a will, the provisions of the will is enforced.

The personal law of a person is determined by way of life of the deceased or the type of marriage he had. The practice in most cases is the resort to native law and custom regardless of the form of marriage

Statutory Law
Widows and daughters of statutory marriages have rights to inherit under statutory law devolution of estate is according to the received English law. The general position is that the widow is entitled to 1/3 of her husband’s estate where she has an issue, while the remainder goes to her children in equal share irrespective of sex. If there are no children, she gets ½ of the estate and her husband’s next of kin gets ½.

Where a woman dies intestate her estate goes to her husband. This is also a discriminatory law infringing the fundamental right to equality and freedom from discrimination.

Some women still lose out completely from their husband’s estate due to ignorance and wrong application of the laws as a result of prejudices against women which have been tainted by traditional practices. Some, out of the fear that going to court would be costly and time wasting others because they are afraid of societal stigma.

Despite the provision against discrimination in CEDAW, the African Charter on Human and peoples’ rights and indeed the Nigerian Constitution the reality is that women are still denied equal opportunity to own property. This is an obstacle to women getting credit facilities and works to impoverish women. Even in cases where inheritance rights are assured by statutory and Islamic laws, women still shy away from establishing their claim due to fear and ignorance.
• Women should be assisted by lawyers to go to court and claim their inheritance where such rights are being denied.
• Judges should be courageous and give judgment that uphold women’s rights as was done in the cases of Mojekwu Vs Mojekwu and Mojekwu Vs Ejikeme.
• The provision of CEDAW, the African Charter, and the repugnancy doctrine should be used to challenge those customs, which deny women of their rights to inheritance.

Customary Law
Nigeria is a patrileneal society where inheritance is by the male descent. There are however a few variations here and there. For example, in some parts of Nigeria like the Yoruba speaking areas, women can inherit from their father’s estate.

In most other parts such as the Ibos, the native law and custom excludes women from inheriting property especially land from their fathers estate. Where there are no male relatives in many cultures , the property reverts to the larger family.

By the custom of some areas, the woman herself is property and can be inherited. The payment of bride price equates the woman to a purchased item to be inherited. For example despite the advancement of the Yoruba culture which permits the female child to inherit on equal basis the position of the female as a wife is quite discriminatory as she is not permitted to inherit from her deceased husband’s estate.

In the case of Akinubi Vs Akinubi, Mrs. Rufus Akinubi was married under the Yoruba Customary Law and blessed with 5 children. Her husband died without writing a will. The deceased owned a storey building, which was let to Owena Bank. The deceased brother applied for and obtained letters of administration which the wife opposed and sought an injunction to restrain them from functioning as administrators of her husband’s estate. The trial court ruled that the wife had no locus to institute the action, she being under customary law herself a part of her husband’s estate. She appealed to the Court of Appeal which dismissed the appeal. On further appeal to the Supreme Court, it was held: “it is a well settled rule of native law and custom of the Yoruba that a wife could not inherit her husband’s property. Indeed, under Yoruba Customary Law, a widow under an intestacy is regarded as a part of the estate of her deceased husband to be administered or inherited by the deceased family, she could neither be entitled to apply for a grant of letters of administration nor appointed as co-administratrix”.

Note: This decision is against the right of women to the fundamental human right of equality guaranteed by the Constitution, CEDAW, UDHR African Charter and other International instruments signed by Nigeria. It shows the cultural bias that women are not to be treated equally.

Under the Ibo Culture a woman who has no male child is considered childless and as such can “marry” another woman who will bear children for her from any man of her choice but in an unmarried situation to those men. Her male children are regarded as the children of the childless woman and can inherit from the family’s Estate . This is called the “Nrachi Nwanyi’ custom of the Ibos.

This custom has been declared to be contrary to the fundamental rights of women..

CASE STUDY
Mojekwu V Ejikeme
Facts: The case tested the ‘Nrachi Nwanyi’ custom of Nnewi in South East Nigeria, which enables a man keep, one of his daughters in his family to raise male issues to succeed him. Once the traditional custom is performed, the daughter is regarded as a wife or son of the man and her children can inherit as children of the man. The custom is performed by the presentation of a goat, four gallons of wine and eight kolanuts to his larger family by a man who has no male issues. Reuben Mojekwu performed this ceremony for his daughter- Comfort. Sarah and Reuben Mojekwu had three children Samuel, Comfort and Virginia. Samuel predeceased his father in 1938. Reuben died in 1966. Comfort died in 1967 unmarried and childless. The remaining child Virginia, a female gave birth out of wedlock to Chinwe in 1954 and Uzoamaka. Virginia later got married in 1957 to one Mr. Eze. When she got married, Chinwe and Uzoamaka remained with parents until their deaths. Chinwe was unmarried but gave birth to Izuchukwu Mojekwu 2nd appellant. Uzoamaka also while unmarried gave birth to the 1st appellant. Uzoamaka is the 3rd appellant. The respondents who are distant cousins of the deceased claimed that the lineage of the deceased became extinct due to the fact that he had no surviving male children.
• That the Nrachi ceremony was not performed by the deceased for Virginia and so she was not positioned to inherit as a man. Her children were thus not ”legalized” to inherit from her father through her.
• That the ceremony was performed by Reuben for his daughter comfort who died childless That they are entitled to inherit the estate of Reuben who had no male heir and who died intestate.
• That they being distant male cousins are entitled by the Oli-Ekpe custom of Nnewi. To inherit the properties of Reuben to the exclusion of his daughters, because they are sons of Bennet a distant cousin of Reuben.

The appellants as plaintiffs sued and claimed that as heirs and direct descendant of Reuben Mojekwu being their grandfather and great grandfather, they were exclusively entitled to his estate by virtue of Oli-Ekpe custom of Nnewi.

The high court held upholding the custom:
• Reuben’s lineage became extinct on the death of his daughter comfort for whom Nrachi was performed the appellants are not heirs (cannot inherit) to Reuben and therefore not entitled to succeed him or his estate since Nrachi ceremony was performed for Virginia and her children were not direct issues of late Reuben, they were not entitled to inherit his estate. Since Reuben lineage became extinct, Bennet Ejikeme should inherit the estate through Oli-Ekpe custom. The appellants appealed the decision at the court of appeal where it was held that:
• The Nrachi custom discriminates against women as a daughter with the custom performed on her has upper hand over the others without it she can inherit her father’s property while the others cannot.
• Is against the dictates of equity and good conscience
• Is not worthy of application it enforceable in the judicial realm and no court of record should countenance or take judicial notice of it.
• Is in consistent with public policy, repugnant to natural justice equity and good conscience.
• Is Otiose, as it is absurd and fantastic in the main, it is a force and sort of window dressing designed to oppress and cheat women folk.
• It is no longer of the moment. It is irrelevant. It is no longer worthy of application with modern day trends.
• No elite would agree that it should be performed on his daughter as at now when the making of a will, can readily take care of situations calling for care. Nrachi Custom is rendered otiose, as it is absurd. It subjects Virginia to disabilities or restriction, which the provisions of section 42(1) of the Constitution and articles 2 and 5 of CEDAW forbid.

Note
While the court outlawed Nrachi custom the fact remains that Virginia was not contesting to inherit her father’s property rather her daughter and grandsons were claiming as children of Reuben through Virginia. What is the status of the biological father of those children? It has been held in Edet V Esien that a custom which denies the Natural or biological father of his child’s repugnant to National Justice, equity and good conscience. But the judgment is a giant leap forward in the struggle for women’s rights.

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