Abstract
The inheritance rules of the Igbo ethnic group appear to largely favor male offspring over female offspring of a deceased person. For instance, although many local variations exist, inheritance of individually owned land generally follows the principle of primogeniture. Therefore, when a man dies intestate, the largest share of his individual land would devolve to the eldest son, with other sons sharing the rest equally. (Obi, supra, at 199.) If the deceased does not have sons, his individual land devolves to his brothers to be shared according to seniority. Although Igbo women are by and large excluded from inheritance, some localities permit female children to inherit their father’s compound in joint tenancy with their brothers; however, in these instances, the eldest brother remains in control of the property. (Jaoyeola Mulikat Bolaji, A Comparative Study of Women’s Rights of Inheritance in Nigeria Under Islamic Law and Some Customary Law 157 (Dec. 2011), University of Ilorin website.) There are also localities in which a daughter with respect to whom a nrachi ceremony is performed (a practice in which a 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) may inherit her father’s compound, land, and house/s. (Id. at 158.).This study exmined Legitimation And Priority Of Rights Under The Law Of Inheritance Enugu State.The main thrust of this study is to on Legitimation and priority of rights under the Law of Inheritance Enugu State. The study were guided by the following specific objectives; (1).To critically appraise the various laws on inheritance rights in Nigeria (2).To investigate whether the prevailing inheritance practices in Nigeria significantly alienate women from assets of their deceased husband (3)To analyze the challenges, if any, associated with the right of women in relation to rights of inheritance. The study adopted empirical approach and a little of analytical, descriptive and prescriptive approach in addressing the problem of the research. It involves analysis of primary sources which include statutory laws and case laws, including Bills proposed to be passed into law which will be very relevant to this research. Based on the study, it was recommended that enactment of legislations empowering lower courts such as customary courts and Area courts to hear cases involving the violation of fundamental rights of people in rural communities like those of Nigeria under consideration being courts that are closer to the grassroots than superior courts. It is also recommended also that, the word ―inheritance be included in the provision of section 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), so as to curb the unfriendly customary practices in relation to ownership of land by women not only in Nigeria, but under other tribes in Nigeria. Therefore, Section 46 of the Constitution of the Federal Republic of Nigeria , 1999 (as amended) be amended thus:“Everyone shall have the right to acquire, own and inherit immovable property in Nigeria.
CHAPTER ONE
INTRODUCTION
1.1 Background to the Study
Members of the Igbo (also known as Ibo) ethnic group mainly leave in the southeastern part of Nigeria and constitute 18% 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).[1] 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.[2] 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 and bears her husband’s name. Also, a female child has no hope from 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.[3] 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 recognized 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 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 other 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. Now, 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 assumes 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. Also, in Ejiamike v Ejiamike[4], Oputa J. held that a widow of a deceased person had no right under Onitsha customary law to administer the estate of her late husband.
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 re-marries 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 purpose according to her farming needs. Thirdly, a widow while living on 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.
It is against this backdrop that the present study seeks to investigate a Legitimation And Priority Of Rights Under The Law Of Inheritance Enugu State
1.2 Statement of the Problem
Women constitute a major group of human kind who are particularly vulnerable to exploitation. Despite statutory provisions and judicial authorities upholding women‘s rights as was done in the cases of Mojekwu v Mojekwu8 and Mojekwu v Ejikeme[5] , the reality is that women are still denied equal opportunity to inherit property with men. Some women still lose out completely from their husband‘s estate, due to ignorance and strict application and observance of repugnant customary practices, which prejudice against the status of women in the society and reduce them to mere second class citizens after men and cuts their bargaining power in economic, social and political affairs in a given place and at a given time. They are also usually scared to explore the option of litigation in some other cases. This is perhaps because of the phobia associated with being a litigant in a court of law in Nigeria resulting from illiteracy or lack of enlightenment as regards their fundamental rights and the cost of financing the case. In order to have a healthy and happy society in nigeria, particular attention has to be paid to protect the rights of women to own and inherit property which happens to be an ongoing struggle begging for a wider platform for the consideration of options and chances available to protect the property rights of women in Nigeria as has been set out to do in this thesis.
- Aims and Objectives of the Study
The main thrust of this study is to on Legitimation and priority of rights under the Law of Inheritance Enugu State
The study were guided by the following specific objectives;
- To critically appraise the various laws on inheritance rights in Nigeria
- To investigate whether the prevailing inheritance practices in Nigeria significantly alienate women from assets of their deceased husband.
- To analyze the challenges, if any, associated with the right of women in relation to rights of inheritance
1.4 Significance of Study
This study is therefore important as it outcome will be useful to policy makers and implementers of development programmes in Nigeria. It could equally be adapted in similar society to tackle the menace of inequality among women and men. It is expected that students and researchers in development related discipline will find the work invaluable. The work is also hoped to accentuate valuable insight on the preparation of Enugu State in terms of attaining the Millennium Development Goals. Above all, the findings of the study will ultimately help
1.5 Scope and Limitations of the Study
This study will deal primarily with Legitimation and priority of rights under the Law of Inheritance Enugu State
. 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.
1.7 Research Methodology
This study adopted empirical approach and a little of analytical, descriptive and prescriptive approach in addressing the problem of the research. It involves analysis of primary sources which include statutory laws and case laws, including Bills proposed to be passed into law which will be very relevant to this research. The Secondary sources which contain opinion of writers in textbooks, published and unpublished papers, research publications, articles on the internet, theses, reports, and law reviews will be looked at. Papers presented at workshops, seminars and conferences will be consulted. These diverse sources sufficiently capture the state of the rights of women, particularly the aspect of property ownership and possession and give in-depth analysis of the strengths and weaknesses of property rights of women.
1.8 Definition Of Term
For the purpose of clarity, it is important to define some key words in the topic of today’s lecture.
- Inheritance– Longman Dictionary defines inheritance this way, “money, property etc that you receive from someone who has died ”. Another source defines it thus “the right of an heir to succeed to property on the death of an ancestor ”. Another word that is closely connected to inheritance is “succession”. Law Dictionary defines succession as “The devolution of title to property under the law of descent and distribution ”. In legal texts, the use of the word “succession” to denote a situation where property of a deceased person passes to her heirs seems to features more frequently than “inheritance”. However, in this lecture, the two words may be used interchangeably.
- Law– Longman Dictionary defines Law thus, “a rule that people in a particular country or area must obey… ”. Another source puts it this way, “…the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like that is used to govern a society and to control the behaviour of its members, so law is a formal mechanism of social control ”. Law is one of the words that do not command a universally acceptable definition. It is defined differently by different scholars. But on a general note, it can be defined as a rule of behaviour or conduct laid down by a constituted authority in a particular society. A law may comprise written codes, unwritten customs and traditions, pronouncements of rulers and judicial decisions. In Africa, for instance, despite the fact that former colonial masters introduced foreign legal systems to territories once colonised by them, the African people still hold strong allegiance to their unwritten native customs and traditions. Therefore, in most African countries, if not all, Customary law is a source of law, along other sources. Legal systems in African states are pluralistic; there exists such laws as the statutory law, Customary law and religious law e.g. Sharia legal system. All these laws affect the subject-matter under consideration one way or the other.
- Women’s Rights: These are the rights and entitlements claimed for women worldwide.
- Culture: The customs, arts, social institutions, etc. of a particular group or people
- Custom: Generally accepted and long established way of behaving or doing things