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Abstract
This article reviews women’s quest to access land, property, and housing by inheritance and succession from their deceased father’s or husband’s estate and judicial responses thereto. It submits that tradition or custom-based gender differentiations are discriminatory against women on grounds of sex and are, as such unconstitutional. The problem has been the absence of a legal and policy framework empowering women and granting them explicit right to land in their capacity as citizens with full legal capacity as envisaged by both the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW: 1979); and the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol, 2003). The article also analyses the high illiteracy level that has made most women ignorant of the existing legislations and courts judgments which have recognised their rights to inheritance of real properties in Nigeria. The article finds that Nigeria through judicial activism is currently empowering women to access and inherit land, though more efforts are still needed to total liberate and enforce the rights of women to customarily inherit property.
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No potential conflict of interest was reported by the author(s).
Notes
1 E I Nwogugu, Family Law in Nigeria (Heinemann Educational Books Nigeria) 1990. See also a paper titled; Towards a Restatement of Nigerian Customary Laws (Published by the Federal Ministry of Justice, Lagos, Nigeria, 1991) 136.
2 See COHRE, ‘Bringing Equality Home: Promoting the Inheritance Rights of Women’ (2004) A Survey of Law and Practice in Sub-Saharan African COHRE (Geneva, Switzerland) 71–85. Also I E Okagbue and I A Ayua (eds), ‘Igbo Customary Law and the Rights of Women in the Family’ Law, Justice and the Nigerian Society (Nigerian Institute of Advanced Legal Studies, 1995) 213–217 and Zahra Imam Nwabara in Ayesha Imam, Pittin and Omole (eds), Women and Family in Nigeria (CODESRIA Books Series, 1989) 12–13.
3 (1995) 32 LRCN 291 (SC).
4 (2002) FWLR 1385.
5 (1957) 2 FSC 31.
6 Seethe case of Oluwo v. Oluwo (1985) 3NWLR (pt 13) 372 and Amusanvv. Olawumi (2002) FWLR 1385 which reinforce the fact that under Yoruba customary law, both male and female children of a deceased have equal rights to inherit.
7 The property is shared among the children, either equally per capita (‘ori-jori’) or per stripes (‘idi-igi’) where the deceased has more than one wife. In Sule v. Ajisegiri, (1937) 13 NLR 146, it was held that the partition must be equally between those entitled regardless of sex.
8 See Folami v. Cole (1990) SC 2 NWLR 445 and the case of Ashipav. Ashipa (2002) 3LHCR 60. Both decisions reaffirm that the eldest female can become the head of a family under Yoruba customary law reaffirming the old case of Lewis v. Bankole, (1908) 1 NLR 81.
9 (1991) 5 NWLR (Pt 197) 379.
10 S N C Obi, The Ibo Law of Property (Butterworth, 1963). E I Nwogugu, Family Law in Nigeria (Heinemann Educational Book Nig. Ltd, 1990). See also, J N Ezeilo, ‘Laws and Practices Relating to Women’s Inheritance Rights in Nigeria: An Overview’ 1998/99 (6) Niger J Rev 131–152.
11 Note that slavery has been abolished and it is against the Constitution of Nigeria, 1999 as amended to hold anyone in slavery. In the same vein, the Trafficking in Persons Prohibition Act, 2015 that established NAPTIP prohibits and punishes slavery and slave-like practices.
12 (1992) 4NWLR 113.
13 (2000) 14NWLR209 SC.
14 (1957) 2 FSC 31.
15 (1963) JELR 41066 (SC).
16 (1989)2 NWLR (pt. 104) 373.
17 (1991) 5 NWLR (Pt 197) 379.
18 (1992) NWLR (Pt. 241) 273.
19 (1995) 32 LRCN 291 (SC).
20 (1963) All NLR 352 S.C.
21 See section 22 (1) of the High Court Law Eastern Nigeria which provides that native law and custom shall be applied provided it is not repugnant to the principles of natural justice, equality, and good conscience.
22 (1989)2 NWLR (pt. 104) 373.
23 Oshilaja v. Oshilaja (1972) 10 CCHJ per Odesanya J.
24 (1957) 2 FSC 31.
25 (1991) 5 NWLR (pt. 194) 273 S.C.
26 (1997) 7 NWLR 283.
27 (2001) 11 NWLR (Pt.723)196.
28 (2000) 5 NWLR 402.
29 (2014) 9 NWLR (Pt. 1412) 393.
30 See pages 421-422, Para F-E.
31 Ibid.
32 As noted by Justice Pats- Acholonu in Uke v. Iro.
33 Per Justice Muhammed at P.423.
34 Ibid 425, Paras E- H.
35 (2014) 28 W.R.N p. 1 Per Rhodes- Vivour JSC at p. 13, also (2014) 11 NWLR (PT.1418) 384.
36 (2014) JELR 54573 (SC).
37 (2018) JELR 42345 (CA).
38 A Ojilere, R Onuoha and T Igwe (eds), ‘New Directions for Securing African Women’s Right to Property Under Customary Law: The Case of Nigeria’ (2019) 35 (n 1) Res Inst Asian Women J 3.
39 Joy Ngozi Ezeilo (ed), The Rights of Widows and the Wrongs of Widowhood (Published by Women’s Aid Collective WACOL 2003).
40 Chaloka Beyani, ‘Towards a more Effective Guarantee of Women’s Rights in African Human Rights Systems’ in Cook (eds) Human Rights of Women 304.
41 Anekwe v Nweke (supra), Mgbodu v Mgbodu,(supra) and Ukeje v Ukeje (supra).
42 N NChinwuba, ‘Ending inequality in Nigeria: A Refreshing Approach from the Nation’s Judiciary’ (2015) 29 (n 3) Int J Law Policy Fam 341–350.
43 ' A Diala, ‘Reform of the Customary Law of Inheritance in Africa: Lessons from South Africa’ (2014) 14 (n 2) Afr Human Right Law J 633–654.
44 A Ojilere, R Onuoha and T Igwe (eds), ‘New Directions for Securing African Women’s Right to Property Under Customary Law: The Case of Nigeria’ (2019) 35 (n 1) Res Inst Asian Women J 1.
45 L Ossome,‘Can the law Secure Women’s Rights to Land in Africa? Revisiting Tensions Between Culture and Land Commercialization’ (2014) 20 (n 1) Feminist Econ 155–177.
46 R AOnouha,‘Discriminatory property inheritance under customary law in Nigeria: NGOs to the rescue’ (2007) (10) Int J Not-for-Profit Law 79.
47 V S Gedzi, ‘Women’s property relations after intestate succession PNDC law 111 in Ghana’ (2012) 2 (n 9) Res Hum Soc Sci 211–219.
48 Ibid.
49 S T Leal, ‘The Traditional Leaders’ Constitutional Challenges in South Africa’ (2015) 8(3) Revista Quaestio Iuris 1534–1554.
50 B A Oni, ‘Discriminatory Property Inheritance Rights Under the Yoruba and Igbo Customary Law in Nigeria: The Need for Reforms’ (2014) 19 (n 2) IOSR J Hum Soc Sci 30–43.
51 L Cotula (ed), Changes in ‘Customary’ Land Tenure Systems in Africa (International Institute for Environment and Development 2007) 1.
52 The Resolution adopting the recommendation of the African Commission on Human and Peoples’ Rights requesting OAU to elaborate a Protocol on the Rights of Women in Africa was adopted at the Thirty-first Ordinary Session on OAU in Addis Ababa, June 1995- see AHG/Res.240 (XXXI); whereas the protocol finally came into existence in 2003 about eight years after the resolution.
53 See articles 2 and 18 (3) of the African Charter.
54 Article 18 of the Charter spells out some of the rights of women in all states of the African continent and particularly 18 (3) provides that: ‘The State shall ensure the elimination of every form of discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.’
55 144th Inaugural Lecture of the University of Nigeria titled: Are we Born Free and Equal? Law, Justice and Human Rights in Nigeria, presented by Professor Joy Ngozi Ezeilo on 11th October 2018 at the University of Nigeria, Enugu Campus. See 121–122.
56 See the case of OsaheniEgharevba v. Mrs. Comfort Oruonghae (2001) 11NWLR CA (Pt.724) 318; also (2002) FWLR 1945.
57 (2002) 12 NWLR (Pt. 780) p. 30; also [2002] FWLR 1385.
58 (2001) 11 NWLR 196 (Court of Appeal, Port Harcourt Division). In a recent case of Okonkwo Timothy (Alias Job) v. Sunday Oforka& Sister Martina Oforka(2008) 9 NWLR 204, the Court of Appeal, Enugu Division cited with approval Mojekwu v. Mojekwu(supra) and held that ‘No law or custom that stands in the way of the Constitution should be allowed to stand tall, no matter the circumstances’.
59 (2001) 27 WRN 14 CA.
60 Agba i&Ors v. Okogbue (1991) 7 NWLR (pt. 204) 391 SC.
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Notes on contributors
Joy Ngozi Ezeilo
Joy Ngozi Ezeilo, is a Law Professor, the Dean of Law, University of Nigeria and the former United Nations Special Rapporteur on trafficking in persons, especially women and children. She founded Women Aid Collective (WACOL) and Tamar SARC. Prof. Ezeilo is the 2019 winner of the National Human Rights Award.