INHERITANCE LAWS & WOMENS PROPERTY RIGHTS – HOW JUST?
A paper delivered by C.A. CANDIDE-JOHNSON, ESQ., S.A.N., at the 1st Murtala Muhammed Memorial Summit organised by the MURTALA MUHAMMED FOUNDATION
at the Ecowas Centre, Abuja, Nigeria , 14th – 15th February 2005

I have compelling interest in the subject matter of this conference and I am delighted to be here. I have often found myself (by accident) on the side of oppressed and dispossessed women in a succession of family law disputes! I am also a father of daughters and husband of a loving wife whose interests after my departure are of utmost importance! I understand however, that my invitation to make this presentation is only “punishment” for a paper that I wrote twenty years ago, entitled “Is a woman a hat in customary law?” I have happily accepted my penance and thank the MURTALA MOHAMMED FOUNDATION for this rare privilege, to share my humble insight into a very important development issue, to make a small contribution to public enlightenment, and to honour the distinguished memory of a genuine Nigerian hero!

All over the world, women suffer from discrimination.

Oxfam reports that women work 67% of the worlds working hours; 2 out of 3 of the world’s illiterate people are women; women’s earnings range from 50% to 85% of men’s earnings and globally women make up just over 10% of representatives in national government. International fora (such as the 4th World Congress on Women at Beijing 1995) and government inquiries (such as the 7th Report of the Select Committee on International Development of the UK Parliament 1998) have identified gender discrimination as the primary and fundamental cause of women’s poverty. Since over 50% of the African population are women, and even under oppression these are significant productive units, we begin to see some of the cause of the continent’s impoverishment.

Gender discrimination is the “systematic, unfavourable treatment of individuals on the basis of gender, which denies rights, opportunities or resources”. It operates at two different levels. What is called structural discrimination is based on cultural and traditional practices, dictating gender roles that marginalise or exclude women. Then there is legal or legislative discrimination including the lack of appropriate legislation or a failure to enforce it.  A key example of legislative gender discrimination is failure to ensure women’s equal access to land and other inheritance rights. Inheritance laws and women’s property rights in Africa are therefore a show piece for gender discrimination and quite rightly therefore the subject of comment at a forum of this nature.

The failures of 20th century natural resource law in Africa to sustain secure or retrieve the rights of women to land and landed resources are well documented. It is accepted that the “capitalist transformation of society this last century and the commoditisation of rural land relations in particular, have been to the acute disadvantage of customary rights in land and to those traditionally awarded to women in particular. Statutory titling processes, founded upon highly individualised European tenure regimes, have been routinely identified as a common cutting edge of female dispossession, in their failure to account properly for secondary rights or the conventions of domestic land relations, both past and modern. In the process a good deal of reconstruction as to the exact constitution of the land rights of a wife, widow or daughter has occurred, almost always towards diminishment in the eyes of state law. Custom itself has come under critical re-examination, and if not found wanting in its past exercise, has been found to fail the human rights and needs of women in a modern world.”

Arguably, it has mainly only been through inheritance legislation, not land legislation, that state law has delivered any positive redress as to the relative rights of men and women in land. Even in these cases, this has often been achieved only by court interpretations or administrative directive. The upshot is that in many countries in Africa today, should she argue her case forcefully in informal or formal courts, a wife could prevent the sale of land critical to household sustenance and widows may secure the right to continue residing and farming household lands. These are, however, merely ad hoc successes which do not necessarily bespeak any real alteration in statutory domestic land relations.

Attempts at including provisions that completely and unequivocally abhor the imposition of any form of traditional or cultural practices on women have not been very successful. For example, an attempt was made to include the foregoing provisions in the 1999 Constitution of Nigeria to no avail:

“No person shall be subjected to any laws, cultures, customs, traditions, and general practices which undermines his or her dignity, welfare and interests”

It is a success that Section 34 (1) (b) of the Constitution protects against inhuman and degrading treatment, and Section 42, upholds the right o freedom from discrimination!

African law and legal practices are partly the product of our own customs and culture as well as the adopted judao-Christian and Islamic cultures that have been prevalent since colonial era and before. These strains (What Professor Ali Mazrui has called the “Triple heritage”) open to African law a wide choice of remedies for dealing with women’s rights.

The Old Testament of the Bible, reflecting ancient Jewish culture gives the female members of the household, wife and daughters, no right of succession to the family estate. In the more primitive scheme of succession, the female members of the family were considered part of the estate and as remote from the legal personality of an heir as the slave. Whereas by Mosaic enactment the daughters were admitted to succession in the event that no male issue remained but the wife was not recognized as heir even in such conditions. Women are owned --before marriage, by the father; after marriage, by the husband." The Biblical rules of inheritance are outlined in Numbers 27:1-11. A wife is given no share in her husband's estate, while he is her first heir, even before her sons. A daughter can inherit only if no male heirs exist. A mother is not an heir at all while the father is. Widows and daughters, in case male children remained, were at the mercy of the male heirs for provision. That is why widows and orphan girls were among the most destitute members of Jewish society.

Christianity followed suit for a long time. Both the ecclesiastical and civil laws of Christendom barred daughters from sharing with their brothers in the father's patrimony. Besides, wives were deprived of any inheritance rights. These iniquitous laws survived till late in the last century.  Among the pagan Arabs before Islam, inheritance rights were confined exclusively to the male relatives. The Quran abolished these unjust customs and gave all the female relatives inheritance shares:

"From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large --a determinate share" . Sura (4:7).

This in fact contributes to the “reason” why polygamy became popular amongst Muslims – to cater for displaced widows. Contrary to the misogynistic interpretations of the Quran common in Africa, Muslim mothers, wives, daughters, and sisters had received inheritance rights thirteen hundred years before Europe recognized that these rights even existed. However, with the progression of time, the rights of Muslim women began deteriorating, and today, very few Muslim countries adhere to the Islamic ideal in their treatment of women.  

This triple heritage is the effective and interpretative context of inheritance and women’s rights to property in Nigeria. These rights operate under two broad heads: succession under received English law and local statutes; and succession under customary law.

Although the position of a woman in the family under customary law is that of a member, her rights as regards sharing of family property vary from culture to culture. The exogamous system of marriage removes daughters from their parents into the husband’s families. The result is that daughters are not regarded as permanent members of their father’s family and are for that reason denied rights of succession. In the case of an unmarried daughter, the possibility of a future marriage subjects her to the same treatment. In her husbands family the possibility of a divorce and the fact that she is not a blood descendant deprives her of rights in that family too. The situation is a vicious cycle.

In most cultural jurisdictions in Nigeria, particularly the Ibo, Yoruba, Edo and Urhobo, the wife or widow of a deceased does not come within the meaning of family member so as to enable her acquire the rights and privileges accruing to the children of the family. She is regarded as a non legal person and so cannot hold any right to property, inherit from her husband, and in some cases even her father.

Under the Yoruba native law and custom, though a wife cannot share of her husband’s property, she can expect to at least enjoy some right of inheritance from her father’s side. In the case of Suberu & ors. –v- Sunmonu & ors (1957) 1 NSCC 4, and the recent case of Yusuff –v- Dada (1990) 4 NWLR (pt.146) 657,669 the Supreme Court held it to be a well settled rule of Yoruba native law and custom that a wife cannot inherit her husband’s property.

Further, where a wife is allotted a portion of land by her father’s side, that portion remains her father’s family land and not that of her husband. She cannot make an absolute gift of the portion to her husband. Therefore, her husband cannot dispose of such portion of land because “nemo dat quod non habet”, (He who hath not cannot give, and neither can SHE in this case). In the case of  Oke & anor –v- Oke & anor (1974) 9 NSCC 148, the court held that a woman cannot devise her un-partitioned portion of family land to her son and neither could she dispose of it in any other way to her son even though the son might ultimately inherit the property on her death. The land however still remains his mother’s family land. 

Although a wife has a right to reside in her husband’s house as long as she remains the wife, such right terminates as soon as her husband dies and her only saving grace becomes her children’s right to reside in their father’s house. The Supreme Court in the case of  Chinweze –v- Masi (1989) 1 NWLR (pt. 97) 254, 270 held that under customary law, a wife has only a life interest in the property of her deceased husband and if she dies, her interest ceases. One may therefore imagine that a woman without an issue would technically become homeless on the death of her husband. Among the Ibo a widow is usually “inherited” by her husband’s eldest brother who in turn becomes her new husband and she therefore retains her rights by cohabiting with him. A widow without a son may be expelled from her late husband’s house by her husband’s heir.

In the case of Nezianya –v- Okagbue & ors. (1963) 3 NSCC 277, the Supreme Court while nullifying as repugnant to equity and good conscience the Onitsha custom which postulates that an Okpalla has the right to alienate property of a deceased person in the lifetime of his widow, held that, such widow may only deal with her late husband’s property with the concurrence of her husband’s family but she cannot assume ownership or alienate the property. She cannot by efflux ion of time, claim the property as her own but she can occupy the building subject to good behaviour. She can also let part of the house to tenants and use the rent obtained thereby to maintain herself if her husband’s family fail to maintain her.
 
In the case of  Uka –v- Ukama (1963) FSC 184 the court upheld the patrilineal Ibo custom that said property of a man that dies without a male issue descends to his family and his surviving female issue is precluded from succeeding to their late father’s property. Also, in Ugboma –v- Ibineme (1967) FNLR 251, the court held that in accordance with general Ibo custom which is also the custom of Awkuzu (Anambra State), home of the deceased, women are not entitled to inherit land from their father. Consequently, the court held that the female plaintiffs had no locus standi in an action seeking a declaration that the property in question, being that of all the children of the deceased, could not be sold and conveyed by the first defendant (the eldest son and head of the family) alone. This principle of primogeniture is prevalent in most parts of eastern Nigeria. A female cannot be the family head no matter her seniority in the family. Even where the intestate left behind some money, it is inherited by all his sons to the exclusion of his daughters. If the deceased had no son then his property would be inherited by his eldest full brother. The only known exception appears to be that which exists in parts of Idemili Local Government of Anambra State. Under that arrangement, as a condition to inherit her father’s compound and other lands and houses, one of the deceased’s daughters is persuaded not to marry but to remain in the family with the hope of bearing a male heir!

In the Northern parts of Nigeria, the common source of customary law relating to this issue is the Holy Quran and the Hadith i.e. Islamic law. Under this system, women’s right of inheritance is assured and the share they are to have in the property is predetermined. On the death of a man intestate, his widow is entitled to one-quarter of the estate. But if there are children or grand-children, her share will be reduced to one-eighth. Where the marriage is polygamous, the wives share the one-quarter or one eighth equally between them. A single daughter gets half the net estate while several daughters get two-thirds, divided equally among them. Hence, it is quite difficult for women to be disinherited of their determined portion even though the share is merely a fraction of what men are entitled to under the laws of succession (mirath). The reason for the disparity is said to be based on the fact that it is the males that usually assume responsibility for supporting and maintaining the females within the family unit.

It is a fact, that "most Nigerian tribal/cultural groupings still practice (and actively protect as inviolable tradition) what can best be described as barbaric attitudes and treatment towards widows who ordinarily should be treated with sympathy, care and tender affection in their most vulnerable moments of loss, grief and despair. Instead of being accused of responsibility for their husbands' death. These practices persist despite the presence of statutory laws which provide at least limited protection from inhuman and degrading treatment, as well as women's rights to inherit and result in the pauperisation of millions of women and children. Poverty is one of the greatest obstacles to fundamental human rights and the Nigerian woman is in a worse position than the man.

STATUTORY PROTECTION OF WOMEN’S RIGHTS OF SUCCESSION & INHERITANCE

The statutory regime for inheritance and property rights, although modest, is not controversial. This is because a woman who contracted a statutory marriage is well catered for during and even after the termination of the marriage. The major rules that govern testate succession are those contained in the various Wills law of each state of the federation which are virtually in pari materia. Once a testator formally expresses his wishes on how his properties are to be shared, the executors are, in the absence of vitiating factors bound to give effect to those arrangements. Although a will made before statutory marriage (not customary marriage) is generally revoked upon marriage, once married, women are able to make wills disposing of their own property as they deem fit. 

The Wills laws (for example, section 2 Wills Law of Lagos 2003) provides for the right of dependents to apply to court for relief where the deceased did not make reasonable financial provisions for such dependant. “Dependents” for this purpose include a widow and a daughter who has not attained the age of eighteen and is not married. An order for maintenance by way of periodical lump sums to such dependent will terminate upon re-marriage of a spouse and the marriage of a daughter.

The position is however unsure where a husband or father died intestate. Generally, where the marriage was contracted under the Marriage Act, provisions of section 36 of the Marriage Act apply otherwise the rules of the relevant customary law will apply.

The provisions of the various Administration of Estates Laws of each State with all the benefits therein for women are unfortunately inapplicable where the administration of the estate of a deceased person is performed under the authority of any customary court. Similarly, the laws do not apply where the distribution, inheritance or succession of any estate is governed by customary law. See section 1(3) Administration of Estates Law of Lagos State 2003.  However, widows or daughters of intestates who are subject to customary law but contracted marriage in accordance with the provisions of the Marriage Act shall by the provisions of section 49(5) enjoy the provisions of the Law as regards succession on intestacy, any customary law to the contrary notwithstanding.

Generally therefore, the provisions under sections 49 to 53 of the Administration of Estates Law cater comprehensively for the succession and inheritance rights of dependants (including women) of persons who died intestate.

TRANS-AFRICAN PERSPECTIVE

The Nigerian position is not the worst in our experience. In Ghana, widows who are mostly from traditional Muslim polygamous families are reported to experience violence, accusations of witchcraft, coercive and harmful traditional rituals when their husbands die. Widows of chiefs in the Dagbong area and suspected witches may be captured, banished, forced to confess misdeed and sent to live in a special camp. The Ministry for Widows Bolga Region Northern Ghana works with a membership of over 400 widows in the villages who have been evicted, beaten, raped and robbed. 

The Ghanaian Criminal Code Amendment Law 1984 (a) was targeting this problem  by the insertion of a new section criminalising the act of a person who  compels a bereaved spouse or a relative of such spouse to undergo any custom or practice that is cruel in nature. It also makes it criminal to compel a bereaved spouse or a relative of such spouse to undergo any custom or practice that is immoral or grossly indecent in nature.

In Malawi in February1998 the Bill to amend the Wills and Inheritance Act so that “property-grabbing” and “chasing-off” became a criminal offence was rejected for the third time. Some women's groups suggested the Bill was thrown out because the male majority in parliament believed such law would encourage wives to murder their husbands for financial gain. 1997 a widow was beaten to death after accusations that she had killed her husband by witchcraft and she had refused to participate in sexual orgy with relatives of her husband as part of funeral rites. The police dropped investigations and closed the case because it was a “domestic matter”)

In Tanzania in 1990, the Court of Appeal gave a landmark decision in Ephraim v Pastory. It held that Haya customary law was discriminatory in forbidding them from selling clan land, and was in breach of Constitutional guarantees of equality. In 1997 the High Court referred back to the local traditional court a widow's property and land dispute with a brother-in-law who had seized all her dead husband's estate. The traditional court decided in favour of the property-grabbing brother-in-law as they held that under the customary law of the husband's ethnic group a woman couldn't inherit. In Ndewaosiad v Ondeamtzo Immanuel (1968) a more liberal judge was more favourable to a daughter challenging customary inheritance laws. Judge Agostino commented that “....Lazy clansmen anxiously await the death of their prosperous clansmen who happen to have no male issue, and as soon as death occurs they immediately grab the estate....putting the widow and her daughters into terrible confusion”.

An estimated 500 women are murdered every year accused of witchcraft. The majority of these are widows, many are elderly women. Many widows are driven from their homes and communities to face destitution, homelessness and hunger, according to a recent report by HelpAge International to mark the International Year of Older person’s older widows, in particular, are accused of witchcraft typically related to their isolation and marginalisation. Family and in-laws sometimes use these accusations to prevent a widow from inheriting property and possessions. 

It is noted by authorities in Uganda, that widow harassment has become a serious problem, with relatives taking property from the widow which legally belongs to her under statutory law. In April 1999, the Zimbabwe Supreme Court denied women their inheritance rights in breach of international treaties and the equality provisions of the Constitution. In a 5-0 landmark decisions that customary law takes precedence over the Constitution. Venia Magaya, a 58 year old seamstress sued her brother for ownership of her deceased father's land, after he evicted her from her home. The court ruled unanimously that African society considers that women are unable to look after their birth family property since on marriage they are committed to a new family. Also the Constitution recognises exceptions to its equality provision in relation to personal status issues and the application of African customary law.  Protests about this decision caused the Supreme Court to issue a statement threatening punishment for contempt!

CONSTITUTIONAL PROTECTION

The Nigerian Constitution prohibits discrimination against any citizen of a particular community, ethnic group, and place of origin, sex, religion, circumstances of birth or political opinion by any law, executive or administrative action. This provision legally nullifies the systematic discrimination against wives, widows and daughters by the operation of customary laws.

The Constitution prohibits slavery or servitude but what is the status when customary marriage allows a man to reclaim dowry on termination of marriage regardless of fault. If the poor woman cannot pay then she must remain in bondage even in face of cruelty. Decisions supporting this type of custom have led to the perception contained in the comment that: “The judiciary has always interpreted legislation to conform to tribal customs and tradition wherever such custom does not offend against “justice”.

Studies of the ways in which statutory law operates in African states, especially those which use case law and records of hearings and case outcomes as their main empirical evidence indicate a very mixed outcome for women.  World-wide, women and feminist lawyers have exposed gender bias in legal cultures and the law, criticizing not just lawmakers and legal practitioners, but many legal concepts.  Further bias arises from the ways in which discourses of custom are used within legal cultures and legal institutions. Feminist commentators have argued that women’s claims under modern legal systems in African states are undermined when men argue that their positions are contrary to 'custom'. The language of custom is being used politically in national level discourses to undermine the legitimacy of women’s claims within modern legal frameworks.

JUDICIAL INTERVENTION - THE FINAL HOPE?

Modern cases appear to indicate that in Nigeria at least, the Courts are standing up to responsibility and justice and recovering rights guaranteed in the law.

In the case of  Mojekwu –v- Mojekwu (1997) 7 NWLR (pt.512) 283, the Supreme Court held that:

“Nigeria is an egalitarian society where civilised sociology does not discriminate against women. However, there are some customs, all over which discriminate against the womenfolk, which regard them as inferior to the men folk. That should not be so as all human beings, male and female are expected to participate freely without any inhibition on grounds of sex. Thus any form of societal discrimination on grounds of sex, apart from being unconstitutional, is antithesis to a society built on the tenets of democracy. The “Oli- ekpe” custom, which permits the son of the brother of a deceased person to inherit his property to the exclusion of his female child, is discriminatory and therefore inconsistent with the doctrine of equity.”

In Uke –v- Iro (2001) 11 NWLR (pt.723) 196, it was argued in the Court of Appeal, that under Nnewi Customary Law, a woman was precluded from giving evidence in land matters. The Court of Appeal held that the rights of all sexes are protected under the Constitution, being the organic law of the land, therefore, any argument or assertion that a woman cannot give evidence in relation to title to land is oblivious of the constitutional provisions which guarantee equal rights and protection to all sexes under the law and therefore offends all decent norms as applicable in a civilised society.  In Ukeje –v- Ukeje (2001)27 WRN 14, the Court of Appeal held that the Igbo Native Law and Custom which disentitles a female (regardless of the circumstances of her birth) to a share of her deceased father’s Estate is void as it conflicts with Section 42(1) & (2) of the Constitution of Nigeria.

In Obusez –v- Obusez (2001) 15 NWLR (pt.736) 377, the 1st Respondent was married under the Marriage Act to one Cornelius Obusez, a native of Agbor, Delta State, who died intestate. They had five children. The Respondents filed a suit at the High Court of Lagos State against the Appellants (brothers of the deceased) seeking a declaration that the 1st respondent and her children are the only persons entitled to the estate of the deceased and an order that a grant of Letters of Administration be granted in their favour. The Defendants contended that under Agbor Native Law and Custom, the management and distribution of the Estate could not be granted to the 1st respondent who was under the Law and Custom regarded as a “chattel” to be inherited.

The Court of Appeal held that the surviving spouse who is a lawful widow and children of an intestate deceased get first priority to a grant of Letters of Administration of the estate. Where the children are minors, the surviving spouse who is a lawful widow of the deceased and the lawful children may nominate a fit person as Co- Administrator of the estate. Under the rules, it is not stipulated that a person nominated as Co- Administrator must be related to the deceased.  

This type of judicial exposition gives hope, because of course, law does not necessarily and automatically translate into action, especially in a continent where neither literacy, access to legislation, nor enforcement may be assumed, and where adherence to the law has a chequered record in especially recent decades, including on the part of governments and courts themselves. Nonetheless, without the change of judicial attitude which these cases may reflect, new policy-making and other declarations, new laws and activism will not supply balm for this open sore on our continent.

To answer the question in one sentence: Indeed, these laws do not favour woman, they are grossly unfair, sometimes cruel but they will change and the time to start it is now.

Thank you.

C. A. CANDIDE-JOHNSON ESQ., S.A.N.
STRACHAN PARTNERS
Solicitors & Advocates
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Bibliography

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2. HUMAN ANGLE Suite 70, Zuma Complex, 202 Road 'E' Close, P.O. Box 2207Festac Town, Lagos
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8. Shattering Illusions - Western Conceptions of Muslim Women
9. Refer Alden Wily & Mbaya op cit. for examples in the land tenure sector.
10. CTA: Technical Centre for Agricultural and Rural Cooperation, The Netherlands. GOU: Government of Uganda.
11. (The Ageing and Development Report) HelpAge International December 1999).