CHAPTER TWO: LITERATURE REVIEW

Introduction
The purpose of this research is to take a clear look at the nature of inheritance rights
of women in Nigeria. In order to accomplish this objective in this chapter, the
research will review existing related literature under three main sections: the first
section will cover inheritance, the nature of inheritance in Nigeria and will also
review the theoretical justification for the disinheritance of women. The opinions of
scholars and jurists will be in focus. Section two will look at customary law: its
constitutional validity, proof of customary law and the repugnancy theory. Finally
section three will conclude the literature review and set the background for the next
chapter.

Review
Overview of Customary law
The word 'customary' means pertaining to a custom, a way of life, a tradition, a
generally accepted behaviour or way of doing things 1. The Evidence Act2 defines
custom as a rule which in a particular district, has, from long usage obtained the force
of law. Customary law therefore, is the law which evolves from the established
practices, customs and way of life of a people. A custom is a “rule of conduct,
obligatory on those within its scope, established by long usage. Customary law is
recognized, not because it is backed by the power of some strong individual or
institution, but because each individual recognizes the benefits of behaving in
accordance with other individuals' expectations, given that others also behave as he
expects.
Customary law as a legal system has been in existence from time immemorial
and finds expression in the day-to-day cultural practices, rituals and traditions of a
people. In the colonial era, customary law existed side by side with the received
systems of law in the context of legal pluralism 3. Customary law is an important
source of Nigerian law primarily because it governs many issues concerning the
people's lives; for instance marriage according to native law and custom, divorce,

1
Black’s Law Dictionary (6th Edition, pp. 299 – 300)
2
Section 2 (1) Evidence Act 2011
3
GJ Van Niekerk “Legal Pluralism” in JC Bekker, JMT Labuschagne and LP Vorster (eds)
Introduction to Legal Pluralism Part 1 Customary Law (2002) 3-18.
succession or inheritance, land tenure and chieftaincy matters. It was the only legal
system that existed among indigenous peoples and communities before the advent of
colonial rule. And because of the element of compulsion which it has acquired over
the years by constant, consistent and community usage, it attracts sanctions of
different kinds and is enforceable4. Customary law is intrinsic to the life and custom
of indigenous peoples and local communities. What gives a practice the status of
“custom” and what amounts to “customary law” as such will depend very much on
how indigenous peoples and local communities themselves perceive these questions,
and on how they function as indigenous peoples and local communities.
Customary Law has been defined differently by scholars and given different
interpretation by judges; Prof Taslim Olawale Elias, CJN defined customary law as "A
body of customs accepted by members of a community as binding upon them" 5. In the
words of Niki Tobi JSC, customary law is: "the customs, rules and traditions which
govern the relationship of members of a community6". Prof A.D. Badaiki in defining it
said:
"Customary law is law which is generated by custom.
The customary law of a community is a body of
customs and traditions that regulate various kinds of
relationships between members of a community7"

In the case of Owoniyi v Omotosho8, Bairamian FJ defined customary law as: "A
mirror of accepted usage, among a given people". In Oyewunmi v Ogunesan9,
Obaseki JSC said:
"Customary law is the organic or living law of the
indigenous people of Nigeria, regulating their lives and
transactions.....it is organic in that it is not static;
regulatory in that it controls the lives and transactions of
the community subject to it. It is said that custom is the
mirror of the culture of the people. I would say that
customary law goes further to import justice to the lives
of those subject to it"

4
Tobi,Niki(1996:103-104) sources of Nigerian law, MIJ professional publishers Ltd, Lagos **check
faculty library
5
Malemi - Legal System - Page 54?
6
Malemi - Legal System - Page 54?
7
Malemi - Legal System - Page 54?
8
[1961] 1 All NLR 304
9
[1990] 3 NWLR part 137 page 182 at 207
The Supreme Court in Zaidan v. Mohssen 10 defined customary law from the Nigerian
perspective as:
“Any system of law, not being common law and not
being a law enacted by any competent legislature in
Nigeria but which is enforceable and binding within
Nigeria as between the parties subject to its sway.”

From the foregoing definitions given these eminent jurists and scholars; it is explicitly
clear that customary law is the accepted customs and culture of a given people or
community which after a long usage acquire a legal backing. This position arises from the
fact that a judgment under customary law was typically enforceable because of an
effective threat of total ostracism by the community. The members of such communities,
recognizing the high cost of refusal to conform, now tend to align themselves with the
accepted code of behaviour11. It suffices to state that the customary laws of a people
forms the substratum upon which their socio – cultural superstructure rests. The
matters with which customary law is principally concerned are simple cases of
contract (mainly debt), torts, land, family law and succession.

The Constitutional Validity of Customary Law

Customary law is a law recognized by the Nigerian Constitution12. It provides thus:
"Subject to the provisions of this Constitution, an
existing law shall have effect with such modifications as
may be necessary to bring it into conformity with the
provisions of this Constitution..."

This means that customary law just like any other source of law, is subject to such
necessary modification that will bring it into conformity with the Nigerian
Constitution13.
That is, that for a custom to be valid in Nigeria and therefore be enforced by the
courts as customary law, that custom must not be contrary to fairness, natural justice,
right judgment and good conscience. Such law must also not be incompatible with
any law for the time being in force; this is to ensure the peace, order and good

10
(1973) 11 S.C. 1
11
The Enterprise of Law: Justice Without the State by Bruce Benson. pp 12-15
12
Section 315 1999 Constitution of the Federal Republic of Nigeria
13
Malemi - Legal System - Page 54?
governance of Nigeria14. It also must not incite a negative retort from the public; it
should not be offensive to their sensibility; for example, the old customary tradition of
killing twins in Calabar before it was outlawed by Mary Slessor.

Proof of Customary Law

In Nigeria, the received English law i.e rules of common law, doctrine of equity and
provisions of statutes need no proof before being accepted by court. This is so
because judges are deemed to know the law and judicial notice is taken of them.
Regrettably, rules of customary laws do not enjoy the same treatment as the received
English laws. The courts in Nigeria treat customary law as a question of fact which
must be pleaded and evidence of same must be proved in the first instance by calling
witnesses acquainted with the native custom until the particular custom, by frequent
proof in the courts, has become so notorious that the courts will take judicial notice of
it. Two reasons can be adduced for this position; the first is that judges were originally
not trained in customary laws; secondly, customary laws are largely unwritten and
vary from culture to culture. Again, the Evidence Act 2011 15 has laid down the
conditions that must be fulfilled before judicial notice is taken of a custom. It provides
thus:
A custom may be judicially noticed by the court if it has
been acted upon by a court of superior or co-ordinate
jurisdiction in the same area to an extent which justifies
the court asked to apply it in assuming that the persons
or the class of persons concerned in that area look upon
the same as binding in relation to circumstances similar
to those under consideration.

Remigius Nwabueze in his article on Customary Law 16 posits that a major

disadvantage of ascertaining customary law by means of judicial notice is its tendency
to rigidify customary law and impair its characteristics of flexibility and adaptability.
This writer aligns himself with this point of view because the fundamental
characteristic of customary law is that it is dynamic i.e it changes with the times; with
developments in technology, healthcare, security and civilization. In the case of Lewis
& Ors v Bankole17 Osborne, C.J as he then was, opined that:
14
Malemi - Legal System - Page 64
15
Section 16(1)
16
The Dynamics and Genius of Nigeria’s Indigenous Legal Order - Indigenous Law Journal/Volume
1/Spring 2002 - page 173
17
[1908] 1 NLR p.82
 One of the most striking features of West African native
custom is its flexibility; it appears to have always been
subject to motives of expediency and it shows
unquestioned adaptability to altered circumstance

This decision buttresses the fact that customs up till now were neither rigid nor
inadaptable. The writer agrees with the learned scholar because the doctrine of
judicial notice constructively deprives customary law of its primary and fundamental
characteristic: which is its ability to adapt to changes in order to solve perceived
problems or to tackle novel difficulties facing the people whom under which are
bound. This peculiar situation poses the singular challenge of depriving the Nigerian
courts the opportunity of appraising itself with changes to the an errant customary
practice if need be.

The Repugnancy Doctrine and Customary Law in Nigeria

The doctrine of repugnancy owes its origin to the evolution of English equity. It was
introduced into the Nigerian legal system by the end of the 19th century via the
received English laws to test our customary law for acceptability. Before the British
came, Nigeria as it is known today, was made up of about 350 ethnic nationalities
described variously as empires, caliphates, kingdoms, chiefdoms, city-states and
village republics, each ethnic group is governed by multiplicity of customs which
were their grundnorm - the ultimate norm from which every legal norm deduces its
validity18. The establishment of a foreign legal structure by the colonial power led to
the imposition of the English system of law on the local customary law made up of
native law and Islamic law. The English law that were applicable in Nigeria –
sometimes referred to as the ‘general law’ – consisted of the common law of England,
doctrines of equity, some statutes and orders in council which were applicable in
England on the date of reception, and the received law as modified by local
legislatures after the attainment of independence on October 1, 1960. This English
general law operated side by side with the rules of our customary law and this led to a
conflict – which arose from the application of the rules of equity. The diversity of
customs was a major obstacle to uniformity of customary law systems in Nigeria. This
multiplicity was complicated by superstitions, which made proof and judicial notice
very difficult during settlements of disputes. It was against this background that the

18
- [Link]
British subjected our customary law to test to remove superstitious and harsh elements
– and to conform it to the universal standard of morality. This explains why Elias has
argued that the doctrine of repugnancy has positive effect on the development of our
customary law by the elimination of gross injustice inherent in its application19
Against this background, the position of the law is that every customary law
shall be enforced only in so far as it is not repugnant to natural justice, equity and
good conscience, or incompatible with any statutory law 20. Against this background,
the position of the law is that every High Court in Nigeria is empowered to observe
and enforce the observance of every customary law of the people 21 in the area of its
jurisdiction
provided:
(i) That the customary law is not repugnant to natural
justice, equity and good conscience, and

(ii) That such customary law must not be incompatible

either directly or by implication with any law for the
time being in force.

The courts have never attempted to explain in detail the meaning of the course but the
views expressed by them through the cases have given this principle a general
meaning; taken together, the phrase ".... repugnant to natural justice, equity and good
conscience, or incompatible with any statutory law" means 'unfair', 'unjust',
'unconscionable', 'barbarous' or 'uncivilised'22. The repugnancy doctrine in Nigeria
emerged from the decision in the landmark case of Eshugbaye Eleko v. Government
of Nigeria23. In that case, Lord Atkin said:
"The court cannot itself transform a barbarous custom
into a milder one. If it stands in its barbarous character
it must be rejected as repugnant to natural justice,
equity and good conscience".

In the case of Solomon v Gbogbo24, Holden C.J held that a custom whereby a husband
can divorce his wife at will, but the wife cannot obtain divorce unless the husband
consents is clearly inequitable and therefore repugnant to natural justice, equity and
19
(Elias, T. O. (1956).
20
Section 19 of the Supreme Court Ordinance 1876
21
Section 26(1) of the Lagos State High Court Law; Similar provisions will be found in other High
Court laws of various states
22
Sagay Family Law
23
Citation needed
24
[1974] 4UILR
good conscience. Also, in Re Whyte25, a Fanti law under which a man's maternal
relations inherit all his property at his death to the exclusion of his wife and children
was held to be contrary to equity and good conscience because it would cause
hardship for the wife and children if applied without modification. In the case of Edet
v Essien26, it was held that a custom whereby the husband of a woman is entitled to
claim any child of the woman by another man, when the other man's paternity was not
in doubt, was repugnant to natural justice and good conscience. In Mariama v Sadiku
Ejo27, it was held that a customary law under which a child could be taken away from
her natural parents and given to a total stranger would result in serious injustice and
such a custom was therefore contrary to natural justice. Finally, the Evidence Act 28
provides that
"in case of any custom relied upon in any judicial
proceedings, it shall not be enforced as law if it is
contrary to public policy"

In conclusion, even though arguments abound that the doctrine of repugnancy works
to dilute indigenous customary laws and practices to project the ways of life of our
colonial masters, the operation of the repugnancy doctrine in determining the
applicability of a customary law should be seen, only as an instrument used by the
British to bring our customary law – as indeed any other law – within the acceptable
objective standard of moral law currently recognized by all nations. There is no
known repugnancy case that has been decided on the basis of conflict with any other
law. Rather, all repugnancy cases were decided by reference to the universal standard
of morality which in human transactions is founded on what is ‘good, just and fair’.
They were, in fact, decided mostly on moral law. The application of the repugnancy
doctrine in Nigeria is the standard practice and therefore, has no ‘English colouring’.
It could be said that subjecting our customary law to test to bring them within the
acceptable objective standard of moral law is a positive aspect of British colonialism.

The meaning of Inheritance

25
[18 NLR 70]
26
[NLR 47]
27
[1961] NRNLR 81
28
Check correct section
To inherit means to come into possession by transmission from past generations 29 or
to receive especially as a right. Inheritance in legal parlance therefore is the entry of a
living person or living persons into possession of a dead person's property 30. Over
time inheritance has come to mean anything received from the estate of a person who
has died, whether by the laws of descent 31 or as a beneficiary of a will or trust and it
operates where private ownership of property exists as a basis of social and economic
enhancement.
When a man dies, the devolution of his self acquired property depends upon
whether or not he has made a will. If he has made a will, the property will devolve
according to the directions contained in the will moreso, where a Will is made in
accordance with the law, the Contents of the Will will apply absolutely as nobody can
change the wish of the maker of the Will 32. This type of succession is described as
testate. If he has made no will, or has made one which at his death has become totally
inoperative, he is said to die intestate, and the devolution of his property will be
governed entirely by the rules of law prescribing the order of succession upon an
intestacy33.
Until the introduction of the English law practice of writing wills that brought
about the concept of testacy, intestacy was the rule and it was governed by customary
law. The only customary practice of the concept of wills was at the occasional
instances of a dying man indicating by a death-bed declaration how his property was
to be distributed after his death 34. Most customary law wills are oral and therefore are
nuncupative wills. Nuncupative wills are verbal wills that must be declared in the
presence of two disinterested witnesses at least, and can only deal with the
distribution of personal property35. They are otherwise known as 'death-bed' wills and
could as a safety for people struck with a terminal illness and robbed of the ability or
time to draft a proper written will. Often these declarations, in addition to disposition
of property, also give directions as to the mode of burial and funeral ceremonies to be
performed for the testator. The requirement of the presence of at least two

29
Chambers 20th 4th Century Dictionary Edition 1981
30
Yakubu, M.G, Property Inheritance and Distribution of Estate under Customary Law, Lagos 1991 p.
136
31
The body of law that determines who is entitled to the property from the estate under the rules of
inheritance.
32
As held in the case of Igboidu v Igboidu [1999] 1 NWLR pt 585 pg 27
33
Ben Nwabueze Land Law
34
Ben Nwabueze Page 380
35
[Link]/terms/n/[Link]
disinterested parties is not necessarily for the purposes of validity, but for the proof of
declaration36. A disposition of property by will under customary law becomes
effective only if the testator possesses full mental capacity at the time the will was
made. Furthermore, the identity of the subject matter of the will must be specific so as
to be easily identified.
However, oral death bed declarations did not carry with it a force of finality;
they were often modified and sometimes disregarded by the elders of the deceased
family in situations where the application of such declarations can be seen as capable
of causing great hardship to or disagreement amongst the family37.

The Primogeniture Rule in Inheritance under Customary Law

Primogeniture means the status of being the first-born child among several children of
the same parents38. However, the primogeniture rule refers to a system of inheritance
at common law through which the oldest male child has the right to succeed to the
estate of an ancestor to the exclusion of younger siblings, both male and female, as
well as other relatives39. The tradition of primogeniture entails the total non-
negotiable handing over of power of attorney over properties, titles and positions to
the eldest son of a family. The eldest male child becomes the head of the family and
he occupies the family house, holding same as trustee of the other children, male or
female. In the Onitsha community, for instance, the deceased’s property devolves to
the eldest son exclusively, in accordance with the rule of primogeniture, under which
the eldest son is expected to look after younger children and may sell the house over
the wishes of other children or treat it as his own property 40. The Bini speaking people
of Nigeria – Esan, Etsako, Owan, Igarra and Okpameri- still uphold the tradition of
primogeniture with Trojan zealotry. It is upheld with religious devotion,
notwithstanding the incursions of western civilization, vide education, religion and
technology41. In contrast, among the Markis group of the Verbe people of Northern

36
Ayinke v. Ibidumi [1959] 4 FSC 280
37
I.O Smith Page 69
38
Dictionary...
39
[Link]
40
Elias, T.O. Nigerian Land Law 4th ed., (Sweet & Maxwell London, (1971) chapter 8), p. 120
41
Gbinije, B. "On Urhobo Primogeniture Tradition and Jurisprudence." National Mirror News, 12
December 2012. Accessed: 23 October 2013
Nigeria, the rule of ultimogeniture applies, whereby inheritance is by the youngest
son, which applies to bar other heirs of the deceased landowner42.
The right of the eldest surviving son to succeed his father in the headship of
the family is automatic and arises from the fact of seniority. Only the father, as the
owner and creator of the family property, can deprive the eldest son of this right, by a
valid direction made with the aim of ensuring that the affairs of the family are
properly managed by a person qualified on the grounds of intelligence and education
to do so. In the absence of any such direction by the father, the right of the eldest son
cannot be taken away without his consent. But a right that arises by the operation of
the law is liable to be abrogated or modified by a change in customs 43. An example of
such right is the right to Igiogbe house, which exists in Benin kingdom.

In concluding, it is this researcher's humble opinion that the principle of

primogeniture violates the right of women to human dignity as guaranteed in the 1999
Constitution as, in one sense, it implies that women are prima-facie not fit or
competent to own and administer property. The primogeniture rule has been criticized
on the ground that it prohibits female children from inheriting. 44 Kaganas and Murray
assert that for African women, customary law openly discriminates against them. 45
Equally, in Nonkululeko Bhe v The Magistrate, Khayelisha, 46 Ngwenya J opines as
follows:
"We should make it clear in this judgment that a
situation whereby a male person will be preferred to a
female person for the purposes of inheritance can no
longer withstand constitutional scrutiny. That
constitutes discrimination before the law. To put it
plainly, African females, irrespective of age or social

42
Oni B. The Right of Women to Inheritance Under Native Law: An Evaluation Nigerian Journal
of African Law (NJAL) 2008 p.44
43
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
44
Bennett, Human Rights and African Customary Law 80-95; Robinson, 1995 SAJHR 457-476;
Meide, “Gender Equality v Right to Culture: Debunking the Perceived Conflicts Preventing the Reform
of the Marital Property Regime of the ‘Official Version’ of Customary Law” 1999 SAL,J 100; See
also, Liebenberg & O’Sullivan, “South Africa’s New Equality Legislation A Tool for Advancing
Women’s Socio-economic Equality?” in Jagwanth & Kalula (eds), Equality Law: Reflections from
South Africa and Elsewhere (2001) 72-73.
45
Kaganas & Murray, “Law and Women’s Rights in South Africa: An Overview” in Murray (ed),
Gender and the New South African Legal Order (1994) 16. Conversely, it can be argued that whereas
patriarchy has often been a feature of customary law rule of inheritance, it was often fortified with
checks and balances that ensured the welfare of women and other dependants.
46
Unreported suit No. 9489/2002, judgment of the Cape High Court delivered on 25 September 2003
 status, are entitled to inherit from their parents’
intestate like any male person ..."47

Unlike a woman who marries under the Marriage Act, a woman who marries under
customary or Islamic law in Nigeria does not enjoy adequate legal protection in the
distribution of assets.48 Under customary arrangement, the husband is generally
regarded as having dominant/legal power to dispose of family property. In some
cases, this power is often exercised without taking cognizance of the wife’s
contributions as assets are usually acquired in the husband’s name.49
However; it is argued that in today’s circumstances, enforcing a law that gives
family property to one person (heir) enriches him unfairly and encourages him to use
the inherited property to serve his own interest. 50 It is submitted that the heir, like a
trustee, should be disqualified if he acts contrary to the trust placed on him. 51 The
position is now changing for better in view of the constitutional and human rights
instruments which emphasize equality of all persons. For example, section 42(1) of
the Constitution of the Federal Repub1ic of Nigeria, 1999 prohibits discrimination on
account of sex. It states:
A citizen of Nigeria of a particular community, ethnic
group, place of origin, sex, religion or political opinion
shall not, by reason only that he is such a person –

(a) be subjected either expressly by, or in the

practical application of, any lay, in force in
47
Norzkujujeko Bhe v The Magistrate, Khayelisha (supra); Also, in Brink v Kitshoff No 1996 6 BCLR
752 (CC) para 44 where O’Regan J said: ‘Although in our society discrimination on grounds of sex has
not been as visible, nor as widely condemned, as discrimination on grounds of race, it has nevertheless
resulted in deep patterns of disadvantage. These patterns of disadvantage are particularly acute in the
case of black women, as race and gender discrimination overlap. That all such discrimination needs to
be eradicated from our Society is a key message of the Constitution.”
48
The Married Women’s Property Act accords some recognition and gives a surviving wife inheritance
rights on certain portions of the legacy Married Women’s Property Act, 1883 (England) is a Statute of
General Application in Nigeria. Where marriage is dissolved, the Nigerian Matrimonial Causes Act
1970 provides that a judicial order shall divide the family assets between the parties.
49
See Nwanva v Nwanva [1987] 3 NWLR 697; in South Africa, by virtue of sec 11(3) (b) of the Black
Administration Act 38 of 1927, African women married under customary law were regarded as minors
under the guardianship of their husbands. Mbatha argues that this minority legal status disqualified
them from inheriting family property as wives or daughters. See Mbatha, “Reforming the Customary
Law of Succession” 2002 SAIHR 264. This position has however changed with section 6 of the
Recognition of Customary Marriage Act 120 of 1998 which came into operation on 15 November
2000. The effect of this Act is that women that married under customary law will no longer be minors
subject to their husbands’ guardianship. They now have equal capacity and full status to acquire assets
and dispose of them, to enter into contracts and litigate. See Liebenberg & O’Sullivan, “South Africa’s
New Equality Legislation a Tool for Advancing Women’s Socio-economic Equality?” in Jagwanth &
Kalula (eds), Equality Law 7073; see also, Mbatha, 2002 SAJHR 264.
50
See Mbatha, 2002 SAIl-JR 267
51
Ibid.
 Nigeria or any executive or administrative action
of the government, to disabilities or restrictions
to which citizens of Nigeria of other
communities, ethnic groups, places of origin,
sex, religions or political opinions are not made
subject; or
(b) be accorded either expressly by, or in practical
application of, any law in force in Nigeria or any
such executive or administrative action, any
privilege or advantage that is not accorded to
citizens of Nigeria of other communities, ethnic
groups, places of origin, sex, religions or
political opinions.

Rights of Spouses in inheritance

Stricto sensu, a widow is not entitled to share in the property of the deceased husband
at customary law. In Oloko v. Giwa,52 the court held that generally, widows do not
inherit their deceased husband’s property. They are only allowed to remain in the
house and a portion of farm land. Widows have only possessory rights and not
proprietary rights over their deceased husband’s property. It was the opinion of the
court that inheritance follows blood53 and since a widow is not a blood relation of her
husband, therefore she has no claim to any share in the property. Also in Aileru V.
Anibi54, Jibowu J noted as follows:
“Marriage according to native law and custom is
recognised by our law and the issue of such marriage is
legitimate. There is no question (but) that the plaintiffs
are legitimate children of their deceased fathers, but
their mothers have not the same status under native law
and custom as wives of marriage under the marriage
ordinance.”

In Ogunbowale v. Layiwola55 , the deceased was survived by three wives and three
children one from each wife. He also left two houses, at the time of his death. The 2nd
defendant who was the mother of one of the children sold and conveyed in fee simple
one of the two houses left by the deceased claiming that she sold the property under
the authority of a paper signed by the two daughters of the deceased and another

52
(1939) 15 NLR 31
53
That is, devolution of a deceased man's property flows within a man lineage; it extends neither to his
wife nor her lineage.
54
(1939) 15 NLR 31
55
(1975) 3 CCHCJ/HC 327 of 19th March, 1975
relation of the latter. The question for determination here among others was: What is
the position in law of the wife or children in relation to his real property after his
death in testate? The court held, setting aside the sale of the property, that nothing by
way of property devolves on the wife/wives of a man under customary law. The wives
who had children for the deceased could continue to live in the home of the deceased
with their children. A wife without any issue for the deceased if she desires to stay on
with the family of the deceased, would appear to have a right of occupation only. The
2nd defendant had sold the property involved in this case as her own property and
conveyed the same to the 1st defendant in fee simple, she inherited no estate in the
real property of her husband except the right to live there as a widow. Therefore she
had no interest in the property, which she could convey. Moreso, she herself was an
object of inheritance. Furthermore, in Bolaji v. Akapo , Sowemimo J. (as he then
was) held as follows:
“The only person entitled to a grant of a letter of
administration under Yoruba native law and custom
which would be applicable by virtue of S.27 of High
Court of Lagos Act, were the plaintiffs, four of the
Children of the deceased, but not the wives who are
regarded as part of his estate.”

R. A. Onuoha affirms this position in his article "Discriminatory Property Inheritance

Under Customary Law in Nigeria: NGOs to the Rescue" 56. He posits that women do
not inherit because the widow is in fact regarded as part of the estate (acquired by the
deceased husband upon payment of her dowry at the time of marriage) to be inherited
by the son or relative. As a result of this diminutive legal status that has been
accorded the female members of the family under customary law, women are now
regarded as mere articles with no right or duties of her own. 57 For instance, the Court
of Appeal in Lagos, in the case of Ogunkoya V. Ogunkoya58 held that:
‘wives are also regarded as chattels who are themselves
inheritable by other members of the family of the
deceased under certain conditions.’

An exception to this practice does exist: that is when a widow chooses to

remain in her husband’s house and in his name, she can do so even if she has no

56
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
57
Coker, G.B.A., Family Property Among the Yorubas, London, Sweet & Maxwell, 1996, pg. 226.
58
Suit CA/L/46/48 Pg. 56, Unreported.
children. This is to ensure her maintenance by the husband's family but if the they fail
to maintain her, then she has a qualified right to let part of the house out to tenants
and use the rent to maintain herself. Her interest in the house or farmland is merely
possessory and not proprietary, so she cannot dispose of it.
This writer submits that this customary practice offends the principles of
equity and good conscience because it does not guarantee that the widow, who during
her marriage and during the deceased husband’s life, might have toiled to bring about
the acquisition of such property. It is therefore morally repulsive to deprive her of
ownership of such property. If a husband and wife are truly seen as one in law and
before the eyes of God59 and man, it is reasoned that they should share what belongs
to them equally, and should be free to exercise their rights to devolve same.

A husband, on the other hand, cannot inherit his deceased wife’s share of her
family property because the husband is regarded as a stranger and as such, is not
entitled to share in property of the family. This deprivation of inheritance in his
deceased wife’s share of her family property is justified based on the principle
of nemo dat quod non habet60 which literally means ”No one gives what he doesn't
have". The wife’s property acquired before marriage which was not taken to her
husband’s house cannot be inherited by the husband or the husband’s family. The
exception is pre-nupital property taken to the husband’s house and it applies only to
movable property61 because land cannot be taken from one place to
another. Nonetheless, his right of inheritance in his deceased wife’s real property
depends first, on whether the wife left any surviving issues; and second, whether the
property was acquired before or during the subsistence of the marriage.

Other Factors Influencing The Discriminatory Female Inheritance Practices in

Nigeria
This section points to the mindset or central philosophies that exist in the minds of
any traditional customary society which ultimately is manifested, in one way, as the
practice of disinheriting women. The social perception of women is very low mainly
due to illiteracy, poverty and cultural practices, which treat women as sub-persons,
objects of inheritance rather than subjects of inheritance. This proposition forms the
59
Genesis 2:24 - “a man shall leave his parents and cleave unto a woman and shall become one flesh.”
60
As it was held in the case of Nwugege v. Adigwe. [1934] 11 NLR 134. f
61
Onuoha, R.A. "Discriminatory Property Inheritance Under Customary Law in Nigeria: NGOs to the
Rescue" (2008) The International Journal of Not-for-Profit Law; Vol.10 Issue 2
basis for the widespread perpetuation of acts some which are very harmful to the
overall well-being of women62.
Also, the frequent importation of native law and custom of inheritance to the
execution of wills of a testator duly made under the Wills Act which usually results in
hardship to even wives of statutory law marriage is a direct off-shoot of this ideology.
For example, if a testator bequeaths his matrimonial home to his wife in perpetuity,
objections are raised to the execution of that bequest on the ground that by native law
and custom of Igbos, for example, a man’s dwelling house (matrimonial home)
belongs to his eldest son or to his male next-of-kin where he is not survived by any
male issue.

Patriarchy
Patriarchy is a social system in which males are the primary authority figures central
to social organization, occupying roles of political leadership, moral authority, control
of property, and where fathers hold authority over women and children. That control
is maintained by excluding women from access to necessary economically productive
resources and by restricting women’s sexuality. Attached to this philosophy is
absolute control over all spheres of life by men including but not limited to direction
on political, social, cultural and economic rights. It is a catalyst for the subjugation of
women that ensures that no woman has access to economic resources such as land 63.
Patriarchy sustains gender discrimination in any society and it includes the
disinheritance of the females.

Bride-Price Payment
Bride-Price is the payment made by a groom or his kin to the kin of a prospective
bride in order to ratify a marriage. Traditionally, the payment of bride price is a matter
of social and symbolic as well as economic reciprocity, being part of a long series of
exchanges between the two inter-marrying families. It consolidates friendly relations
between them, provides a material pledge that the woman and her children will be
well treated, symbolizes her worth to the community, and provides a level of

62
Such unsavory practices include: the discrimination in education of the girl-child, early marriages of
female children, female genital mutilation, domestic violence against women, widowhood practices
and even up to workplace-related discrimination against women
63
Land is the basis for obtaining credit facilities which could enhance the economic emancipation of
women.
compensation to her natal family for the loss of her labour and company 64. So serious
is this practice in Nigeria that in most cultures, a woman is considered legally and
fully married to her husband if her bride price has been paid and also a marriage is not
reckoned to have ended until the return of bride-price paid has been acknowledged.
Nowadays, bride-price payment is negotiated in a manner akin to haggling for
foodstuffs in any open market and this is done by the elderly men of both families
without the input and participation of the bride and her mother. It is this writer's
humble submission that this singular practice marks the conception of the social
"permissibility" of the discrimination of the woman in the minds of the husband and
his kinfolk and this is exhibited in various ways throughout the span of the marriage65
especially at the demise of her husband. According to Oluyemisi Bamgbose66, the
following were stated as the negative effects of bride price on women:
1. Transfer of right: The nature of the practice is an indication and
confirmation that a woman is viewed as a chattel with a price tag that is
purchase by a person who pays the price. The “purchaser” like a purchaser of
goods in law has a right to deal with the “purchased chattel” in any manner.
This is the attitude of men under customary law as regards their wives.

2. Loss of right: After the payment of the bride price, the woman remains
married to the man who paid it. If the marriage breaks down , the woman must
return the bride price back to the man for her to regain her freedom. Non-
repayment of the bride price makes the woman remained married to the man
to the extent that any child given birth to by the woman outside the marriage is
deemed to be the child of her estranged husband. The issue is more severe
when the woman is unable to refund the bride for economic reasons.

From the foregoing, if wives are regarded as property of their husbands, they are
therefore objects of inheritance themselves.67 In some cultures, it has been argued that
it is the man who pays the bride price (dowry) for a wife. The belief is that a man got
his wife for a price and as such, she is a piece of property. Arising from that belief, in

64
Encyclopedia Britannica online
65
Under the guise of partriachy in customary practices
66
Customary Law Practices and Violence Against Women: The Position Under the Nigerian Legal
System ( July 2002) Paper presented at the 8th International Interdisciplinary Congress on Women
hosted by the Department of Women and Gender Studies, University of Makerere, Uganda.
67
Davis V. Davis & Ors. (1929) 6 NLR 75.
our customary reasoning, such a woman cannot inherit her late husband’s property;
instead, she is to be inherited by one of her deceased husband’s brothers. After all,
how can property inherit another property? One may rightly conclude that it is the
issue of payment of bride price by a man in order to secure his wife’s hand in
marriage that places her in a position of inheritable property: after all she was paid for
and bought. It was based on this belief that the Court of Appeal in Lagos had held in
the case of Ogunkoya V. Ogunkoya,68 that ‘wives are also regarded as chattel that are
inheritable by other members of the family of the deceased husband under certain
conditions.’

Religion
Religion refers to an organized collection of beliefs, cultural systems, and world
views that relate humanity to the supernatural, and to spirituality 69. From the beliefs
peculiar to a particular religion, believers acquire their moral, ethics & lifestyle
choices. Religion plays a very fundamental role in the lives of human beings and its
directives on issues of .okklife are believed very strongly. In Nigeria, the popular
religions are Islam, Christianity and Ancestral Worship and they all have similar
opinions about the inheritance rights of women as compared with men. The biblical
rules of inheritance were outlined in Numbers 27:1-11. In summary, a wife is given
no share in her husband's estate, but the husband is the first to inherit from the
deceased wife's estate even before her sons. A daughter can only inherit if no male
heirs exist. A mother is not a heir to her deceased son's estate at all whereas a father
is. Widows and daughters, if male children exist, were at the mercy of the male heirs
for provision70.
Among the pagan Arabs before Islam, inheritance rights were confined
exclusively to the male relatives. Women were objects of inheritance and they were
considered part of the possessions of a man. But the advent of Islam as a religion
brought about a revolution in the outlook towards women and established the right of
women to inherit from the deceased's estate. The Quran provides thus:

68
Suit CA/L/46/48 Pg. 56, Unreported.
69
Wikipedia - Religion
70
This is the reason why widows and orphans girls are among the most destitute members of the Jewish
society
 "From what is left by parents and those nearest related,
there is a share for women, whether the property be
large or small - a determinate71 share"72.

By clearly stating in the Quran that women have the right to inherit for themselves, it
changes the status of women in an peculiar manner; women have inheritance rights
which are recognized and upheld by the religion. The general rule governing the
devolution of property in inheritance is that the female share is half the male's except
in cases where the mother receives equal share to that of the father 73. The Quran is
replete with unequivocal proof to show that women are not completely subjugated
with men in the sight of God in terms of her rights and responsibilities. An example
is:
"And women shall have rights similar to the rights
against them, according to what is equitable; but men
shall have a degree over them"74.

From these points raised above, the writer has observed that both religions practiced
in Nigeria – Christianity and Islam - militate, wholly or in part, against women’s
rights to inheritance. A woman is not viewed as man’s equal, consequently both
religions will hardly concede equality of share in inheritance. The varying systems of
religion relegate woman to the background thereby covertly or overtly reinforcing the
inferiority of women.

71
Emphasis is the writer's
72
Quran 4:7
73
Quran 4:7,11,12,176
74
Quran 2:228