A Woman’s Right Of Inheritance: Fact Or Mere Hoax?
There have been several but serious controversies over the years as to whether or not female children succeed their deceased father, inheriting their estate and whether wives can inherit their husband’s property. It is a nebulous point that troubles the heart of many persons. Attempts to resolve this societal conundrum sometimes becomes a waist of time, energy and resources.
Despite these challenges in various attempts to correct this defect in our society, diverse opinions and cultures of Nigeria is making the matter more complex and complicated. In the other to bring out the thrust of this discussion, various cultures of the states will be examined, allusions will be drawn from the Bible and from the society. In an attempt to offer recommendations on how this menace can be curbed, some current legal authorities will be analysed and many inference will be drawn from it.
Without prejudice and discrimination to any sex or gender, generally in African continent, we live in a pathrachial society where men are regarded as being superior to woman. To buttress the point, most communities back then did not appreciate the female education based on the wrong presumption that the influence and the affluence resulting from the education will be only in favour of her and her potential husband, deserting and abandoning the her ancestry. But if we may ask, to what extent were our pre-decessors correct in this their thinking?
Was this not a mere thinking that was myopic in nature? The female children that were educated then, did they bring any positive the family? These are questions that are to be answered in ascertaining the veracity of the above assertion of our fore fathers?
It is so disheartening knowing that this discrimination and prejudice did not limit to only the educational upbringing of our woman rather it extended to succession. It would even have been better if their succession rights were only deprived but the situation worsened when they (our women) were classified as chattels.
How do we mean? Chattel is a term normally used in describing tangible or movable properties of a man. Having said that, what was the implication of women being classified as chattels? It therefore means that they could be shared to any of the husband’s brother or son upon the dead of her husband. What an unjust position that we had for our dear woman?
Many of us were elated when we heard the goodnews that our women were no longer regarded as chattels rather they were recognized as living beings in the eyes of the law. But did the problem terminate ad idfinitum, of course not. A greater problem that has arose on the issue of succession has two faces: first whether or not female children can inherit the estates of their late father, secondly; whether or not a wife can inherit the deceased husband's property? As noted above, the complexity of this matter to large extent is embedded on different cultures and traditions of different communities. There are some communities in Nigeria that allow their widows to have a share during the partitioning of her late husband’s property while some on the other hard would not allow female children have a share in their deceased father property and vice versa. When we are faced with divergent views embedded on several cultures, many people become stunned.
When it stands like this, what do we do? It is here that we appreciate the words of Thomas Hobbes when he said that the world was so brutish and nasty not until we had law which save as the light of the people”. We are going to examine ecclesiastical law here first to see whether or not we have any scriptural ground for eschewing women form inheritance.
Scriptural Juxtaposition of Women’s Right of inheritance
From creation, the creator did not make the man superior to the women. How do we know this? – read Genesis 1:20-28.
From the forgoing, what have we seen that could make as think that women are inferior to men or vice versa? Both were created in God image and both were created by God. There seem to be no point of superiority between men and women prior creation.
It should be noted that it was after both persons sinned against Jehovah that he made man superior over the woman as part of the punishment he gave to the woman (Eve) for her disobedience - Genesis 2:16.
But does this mean that women should be maltreated and abused anyhow? No is the answer. Jehovah still holds women in high esteem; he values and treasures them, even frown at men who mistreat their women.
Let’s reason together, if our creator has such regard for women why then should we stand out to oppose him by depriving women of some Rights that he (the creator) has not? Are we wiser than God that gave freedom and leverage to our ladies? If Jehovah is impartial, who are we to be partial, letting sex or gender become a determining factor of succession? Why this marginalisation and prejudice between men and women?
Though these salient points must be brought out, we are not in any way trying to equate the women to men rather our concern is in outlining instances and occurrence that can attest to the fault Jehovah is not a biased when it comes to sex or gender.
A similar case of succession raised a problem in the Israel of old to the extent that the complaints made a formal request concerning their dead father’s property. They were the daughters of Zelophehad. How did it happen? Let’s narrate a little low it went.
Zelophehad was a descendant of Manasseh through Machir, Gilead, and Hepher. Zelophehad died during the 40-year wilderness wandering, not with “those who ranged themselves against Jehovah in the assembly of Korah, but for his own sin.” He had no sons but was survived by five daughters: Mahlah, Noah, Hoglah, Milcah, and Tirzah, all of whom survived to enter the Promised Land.
This special situation raised problems concerning the inheritance. When Zelophehad’s daughters requested their father’s share of the land in Manasseh, Moses brought their case before Jehovah. God’s judicial decision was that brother less daughters should receive the family inheritance. (Nu 27:1-9) Later, it was stipulated that these daughters had to marry men of their father’s tribe so that the inheritance would remain within the tribe.
How exactly did Jehovah respond when Moses made this formal appeal before him? Let the bible give us a glimpse. “ Jehovah then said this to Moses: “The daughters of Ze·loʹphe·had are correct. You should by all means give them the possession as an inheritance among their father’s brothers and transfer their father’s inheritance to them. And tell the Israelites, ‘If a man dies without having a son, you must then cause his inheritance to pass to his daughter. And if he has no daughter, you will give his inheritance to his brothers. And if he has no brothers, you will give his inheritance to his father’s brothers. And if his father has no brothers, you will give his inheritance to the closest blood relative in his family, and he will take possession of it. This will serve as a statute by judicial decision for the Israelites, just as Jehovah has commanded Moses.” - Numbers 27: 6-11: New world translation of the Holy Scriptures. 2013 Ed.
It will interest you to know that the appeal that the daughters of Zelophehad made in the ancient Israel became a statute for the Israelites as they were bound to have similar problem over and again. Having seen this, is it fair or just to deprive any woman his right of inheritance? Will it not be absurd if Jehovah set a perfect example for us but refuse to take it into practice in respect to this matter at hand? Well, it should be noted that failure in doing what should be done will hardship on the side that’s demands justice.
“An individual who breaks the law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest disrespect for the law” – Martin Luther king Jnr.
Legal juxtaposition of women’s right of inheritance
Legally, the position of women in succession always hand in hand with illegitimate children but not all that alike. Some cultures and traditions in Nigeria will be examined bellow regarding how properties are being distributed in Nigeria.
In Yoruba land, upon the death of the founder of the family, the eldest son the deceased called dawodu will succeed the headship of the family, and on his death the next eldest child being a male or female succeeds as the head of the family. It seems that this culture favours women but what if the female child predeceased the father or all the eldest persons of the family? Will it be just because her turn did not reach her she will be left empty handed?
In Olugunleko v Ikuemdo (1993)N.W.L.R. (pt273)16 regarding a succession of a widow under Yoruba customary law, the court reaffirmed the rule of the Yoruba customary law that
“A widow could not inherit her deceased husband’s property nor could not
be appointed the administrator of the husband’s estate”.
Ordinarily, if you were to be on that position of the wife that laboured with the husband for decades but upon his demise you cannot inherit any of the property, how would you feel?
According to Nwogugu in succession (2014), under ibgo customary law, females members of the family do not possess your right to inherit land, that is : neither daughters nor widows of the deceased have right to inherit real estate as was applied in the case of Ugboma v Ibeneme 19 (1967) FNLR 257 where the trial judge held that in accordance with the general Igbo custom known as custom of Awkuzu, women are not entitled to inherit land from their customs, consequently denying the plaintiff the locus standi.
It should however be noted that discrimination against female children is prohibited by section 42(2) of the constitution of the federal Republic of Nigeria as amended which states as follows
“No citizen of Nigeria shall be subjected to any disability or deprivation merely by the reason of the circumstances of birth"
Certainly, discrimination based on sex falls squarely within the prohibition of the constitution. Female children from liberation in 1999 are henceforth entitled to share equally with their male counterparts in succession to land under Igbo customary law. Also, it should be noted that by virtue of section 1 of the constitution of the federal Republic of Nigeria, any other law that does not conform or that contradicts the provision of the constitution is null and void to the level of its inconsistency. It therefore means that any law who go contrary to that section 42 (2) of the constitution in respect to succession is null and void and it will be of no effect.
In Mojekwu v Mojekwu [1997] 7 NWLR 283, The Court of Appeal held that the Nnewi custom of Oli-ekpe is discriminatory and any form of societal discrimination on grounds of sex is unconstitutional and against the principles of an egalitarian society. A court of law cannot invoke a customary law which is repugnant to natural justice, equity and good conscience. Therefore, the personal law of the appellant is not applicable and instead the law of the place where the property is situated applies, which in the present case is the Mgbelekeke family kola customary tenancy as applied by the Kola Tenancy Law, 1935.
Land held under Kola tenancy is inheritable by children of either sex of the deceased kola tenant upon production of further kola by the succeeding child. The signature of the respondent and others on the docket stating the appellant's claim to the Kola Tenancy merely acted to authenticate the appellant's signature and did not act to estop her claim. Furthermore, the docket was merely an articulation of the Oli-ekpe custom. Subsequently, the appellants claim to the disputed property is dismissed and costs were awarded in favour of the respondent.
Also In Mojekwu & others v Ejikeme & others (2000) 5 NWLR 402, Reuben Mojekwu died intestate in 1996 without any surviving children. The appellants were Reuben’s two great grandsons, and his granddaughter. The granddaughter was born to Reuben’s daughter Virginia and the great grandsons were born to Virginia’s two daughters. The appellants claimed that the Nnewi custom of Nrachi had been performed for Virginia and accordingly the appellants were entitled to inherit Reuben’s property.
The Nrachi custom enabled a man to keep one of his daughters perpetually unmarried under his roof in order to raise children, especially males, to succeed him. Any such daughter took the position of a man in the father’s house and was entitled to inherit her father’s property, and any children born to the woman would automatically be part of the father’s household and accordingly entitled to inherit.
A different custom, Ili-Ekpe , provided that where a man has no surviving male heir, (including the daughter in respect of whom Nrachi was performed, and her children) the man’s brother or his male issue are entitled to inherit. The respondents, five male members of Reuben’s brother’s family, claimed that Nrachi was performed for Virginia’s sister Comfort, who had died childless, and not Virginia. They contended that when Comfort died Reuben’s family lineage became extinct, and they, rather than the appellants, should inherit Reuben’s property. The legal action began when the respondents, without the appellants’ permission, entered the compound once belonging to Reuben. The appellants laid claim to a statutory right of occupancy over Reuben’s estate and requested an injunction restraining the respondents from trespassing.
The court was required to consider the following questions: Was the trial judge correct to hold that the respondents could not inherit the estate of the late Reuben Muojekwu within the framework of extant Nnewi customs which imposed gender-discriminatory rules of succession? Are customary rules of succession which limit the freedom of women to enter into marriage, and deny inheritance to women consistent with the fundamental rights of women, the Constitution and other laws of Nigeria?
Is the Nnewi custom or ceremony of Nrachi whereby a father places his unmarried daughter in his house for the purpose of raising issues and which further forbids a widow from inheriting or succeeding to her husband’s estate repugnant to equity, natural justice and good conscience?
The Court held that the Nrachi custom, which is designed to oppress and cheat women and compromises the basic tenets of family life, was inequitable and judicially unenforceable. Accordingly, a female child does not need the performance of Nrachi in order to inherit her deceased father’s estate.
It held that the custom was also repugnant to natural justice because the children born to a daughter in respect of whom the ceremony is performed are denied the paternity of their natural father ( Edet v Essien (1932) 11 NLR 47 (Nig DC)). The custom was also inconsistent with public policy as it encourages promiscuity and prostitution. A female child is generally entitled to inherit her deceased father’s estate and does not need to perform any customary ceremony such as Nrachi to exercise that right.
The Court held that the custom of Ili-Ekpe also discriminated against women ( Mojekwu v Mojekwu (1997) 7 NWLR (Pt. 512) 283, 304-305 (Nig CA)). The fact that the appellants were born out of wedlock was immaterial since s. 39(2) of the 1979 Constitution prohibits discrimination on the grounds of circumstance of birth. In this case the acceptance into Ruben’s family of the third appellant and her sister was sufficient acknowledgement of the two daughters by their grandparents to entitle them to full rights of succession to the estate of their grandfather.
The Court concluded that the appellants had been in possession of Ruben’s estate for many years and it would be inequitable to throw them out. The Court of Appeal held that the trial judge therefore applied two customs which are repugnant to the principles of natural justice, equity and good sense. With the Nrachi custom rendered unenforceable, the appellants, as blood relations, should have inherited Rubens’s estate. Per Tobi CJA.
Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) calls on States Parties to modify social and cultural patterns of conduct in order to eliminate prejudices, customs and practices based on the inferiority or superiority of either sex. Virginia is a victim of such prejudices. You may wish to see also the recent supreme court case of ukeje & ors v ukeje (2014) 234 LRCN.
In conclusion, Legislation has secured the interest of a widow in her late husband’s estate thereby removing one of the hardships of widowhood. Section 4(2) of the prohibition of infringement of a widow’s/widower’s Fundamental Right Law 2001 of Enugu State prescribes in this respect as follows: Subject to the Marriage Act, Wills, Law, Administration of Estates Law, or indeed any custom any law (not repugnant to natural justice, equity and good conscience) a widow/widower shall not be disposed upon the death of the husband/wife of any property acquired by the deceased husband/wife (during the deceased husband/wife’s life time) without his/her consent.
Contravention of this provision constitutes an offence. Certainly the dispossession of a widow of her late husband’s estate is cruel and repugnant to natural justice. It is particularly oppressive when the widow has children to be brought up and no means of her own. The callous rush of the late husband’s male relatives to take over his estate leaving the widow and her children penniless cannot but the regarded as unfair and oppressive.
Edikan Ekanem is student of university of Uyo and can be reached via: 08130015006, [email protected] .