Death, Disposition and Discrimination; The Law and Custom in Relation to Inheritance Rights of Women in Nigeria
By Oyinlola Agunbiade
Death surely comes to every man. It is indisputably the beginning of an end that started, a phase that verily ends all mortal – and if possible immortal – phases. The situation of death is the journey after and away from life. The two cannot and does not co-exist. But it exist that there are certain preparations for death which are made in one’s lifetime. That is, the journey to death. This is the phase and stage when an individual puts their house in order in preparation for the world beyond. Hence, when it is said that may the dead rest in peace, such determination of whether an individual will truly and veridically rest in peace begins from when and how they live in a world of many pieces.
Incontrovertibly, one of the ways by which the preparation for death is made is through the determination and decision of how one’s owndom are split when one is finally away from this vale of immutable tears. Hence, an individual who has lived during his life, while he has come to the world empty and naked and will depart same, the things he admires and acquire while he was here will not go with him to the world beyond and how those things of his which he desired while he was here are distributed is considered and truly so, a critical matter. Hence, such is a way to ensure that when an individual dies and journeys for a realm where he can get undiluted peace and placidity, what he leaves behind in this world is not torn into pieces and the world into peacelessness.
It needs no negating, not even the slightest of it that when death comes upon a person with a property, one of the ways by which his acquisitions and assets which he acquired while here is settled is such that they are split to other persons as a form of inheritance. There are two basic ways by which this is done. On the one hand, such may be through the determination and decision of the deceased, such as in the case where he leaves a Will or makes a deathbed declaration in that regard. On the other hand, such maybe through the a distribution measure and method independent of the deceased’s decision and based on any other arrangement by which such can be determined. While the former is a recipe for peace, the latter is a path to a lack of peace and profound disaster.
The death of a person comes with differing challenges, but the most critical of these challenges are not those directly defined by the death of the person such as that which has to do with ultimate farewell to the world beyond since whether anything is done in this regards, such will happen, but rather those that has to do with the farewell to what he has left behind. Basically, as already hinted, there are two ways the farewell to the property of the deceased can occur. One is where an individual dies intestate; the other is where the individual dies with a Will. Yet, it should be observed here that not so much rub exists within the realm of where the individual dies intestate, as basically, how the deceased intends that the property be distributed has been taken care of. However, the real rub itself arises where an individual dies intestate and in the case of polygamy, discarding and disregarding any accord for the thing called Will. Where such occurs, challenges cannot be said to be evitable.
Although polygamy is not much of an issue under customary law but where a marriage is being governed by common law and not customary law then, polygamy breeds certain issues. Basically, it is worthy of note that in the instance of marriages governed by common law, polygamy is prohibited, Also, under common law, the hierarchy of inheritance is the wife and the children followed by other dependents (parents of the deceased and related ones). Other wives are mostly left stranded because of lack of recognition under common law marriages.
The Law does no justice in situations as this, either by punishing men who marry more than one wife and, in fact, the law lays great emphasis on the importance of a Will, shortcomings of lack of a Will which have recorded more grievous harm on the part of the rest of the family behind. There is nothing like being a concubine, a woman is either a wife or she is nothing at all. In assertion, these other women should have the right to sue under Section 2(1) Wills Law of Lagos State which provides for family and dependent as thus: Notwithstanding the provisions of Section 1 of this law, where a person dies and is survived by any of the following persons-
(a) The wife or wives or husband of the deceased; and
(b) A child or children of the deceased, that person or those person may apply to the court for an order on the ground that disposition of the deceased estate effected by his will is not such to make reasonable financial provision for the applicant.
The provisions of the Wills Law allows wives to bring forward an application against the deceased and his property unlike the English law which does injustice to the wives of the deceased.
Also, it is the law that a Will must be written and signed by the creator and the Will must be bequeathed or disposed in accordance with the law. However, in the case where the marriage is governed by common law and the deceased dies intestate, the wife and the children of the deceased inherit his property automatically. But, in situations where there are more than one women who shared intimate relationship with the progenitor before his death, maybe as a form of being a concubine yet they have children for the deceased, these other women should have an equal share in the property of the deceased. On this note, it is needful to observe that since marriage is the intimate union and equal partnership between a man and a woman and no basic ceremony is required, the other women, which may not be recognised under the common law but cohabiting with the progenitor as a wife before his death should have an equal share of the progenitor’s property so as to be fair to the other women who have contributed their emotions, time and sometimes finances in the course of the relationship.
We must pause at this point to critically and sacredly observe that our great and gigantic concern and consideration of a progenitor which dies intestate in the case of polygamy is because the issue of inheritance rights of women occurs mostly in situations when the other woman/women cannot be classified as a wife of the progenitor as polygamy is prohibited under the Common Law.
As far as customary law of inheritance is concerned, it exists that a woman is not allowed to share of her deceased husband’s property but is only allowed to stay in the house of the deceased husband. This is because a woman is believed to have only proprietary right and not possessory right. These are women who have suffered with these husbands during his days on earth and may have contributed either financially, emotionally and sometimes mentally yet they are not allowed to inherit the husbands they suffered with. In Oloko v. Giwa (1939) 15 NLR.31, the court was of the opinion that inheritance is by blood and a wife is not a relation of her deceased husband by blood, in this case it was held that women are not allowed to inherit their deceased husband’s property but remain in the house or a portion in the farm land.
Also, in Oshilaja v. Oshilaja (1973) CCHCJ.11, it was held that the widow could not inherit her husband and he also died intestate and without children, the court held that the sons of the deceased sister were to inherit their deceased uncle to the exclusion of his wife. Flowing from this, the customs appear to be barbaric and ridiculous, yet, doesn’t in any way benefit the women who have contributed almost all their lives in the relationship. It is however important to note that this case has been abandoned having been declared repugnant to natural justice, equity and good conscience. On this end, under customary law women are now allowed to inherit their deceased husband, an example is the case of Sule v. Ajisegiri (1937)13 NLR 146, the defendant’s claim was that being a male he was entitled to a larger share of the property. However, the court held that the property must be shared equally between those entitled regardless of sex (male of female gender).
Apropos of the three major ethnic groups in Nigeria viz; Yoruba, Igbo and Hausa, these customs encourage discrimination against women with respect to inheritance. Under Yoruba customary law, originally, the eldest brother inherits his deceased brother’s property including his wife while the wife of the deceased is left with nothing. Also, it is the tradition and customary belief that women don’t have proprietary right but only possessory right. There is also another custom of inheritance called Idi-igi and Ori-ojori in the distribution of an estate of a deceased person who dies without a valid Will. Ori-ojori means that every child gets an equal share of their deceased father’s property. Here, the wife has no right to inherit the property and her efforts towards the improvement of the property will not be recognized, as in the case of Rabiu v. Abasi (1990) LCN/2412 SC, where the court held that improvement of a property by another member of the family does not deprive its original owner of his property.
The Hausa custom on inheritance has also been questioned and considered by some as retrogressively traditional. Also, the custom is considered to have been influenced by Islamic law but prior to the advent of Islamic law, women were not allowed to inherit the property of their deceased fathers or husbands supposedly because women could not go to war.
Secondly, women were perceived as objects that could be inherited. More so, women were only allowed to inherit movable property of their mothers like cooking utensils. Under Islamic law, widows are only entitled to inherit one-eight of their deceased husband’s property, which is usually insufficient and they are similarly left with no provision for housing and other basic needs. Under Shari’ah law, a sole daughter is entitled to half of the estate while a sole surviving son is entitled to the entire estate.
As far as the Igbo inheritance praxis goes, such is simply is based on primogeniture. Thus, the eldest son of the deceased succeeds as the head of the family and has right of control over the property as the eldest son. In places where they strictly practice the primogeniture system of inheritance, the eldest surviving son of a deceased can inherit to the exclusion of other children. In the Igbo custom, a woman is not allowed to inherit but if she intends to inherit, she is to stay back at her father’s house and raise children in that house. Where, a daughter decides not to marry and bear children in her father’s house, this is called an Idegbe or Nkrachi. In instances of Nkrachi, only the sons are allowed to succeed her according to the primogeniture rule.
Also, where the woman is married, any property acquired before marriage goes back to her maiden family while property acquired after marriage belongs to her husband and his family upon her death but such property like kitchen utensils will be inherited by her daughter. This principle obviously puts a lot of pressure of birthing a male child on women in order for them to secure property for themselves.
Without a doubt, there is a need to review the different customs to address concerns with discrimination against women with respect to inheritance. Having observed different instances of discrimination against women over property and inheritance, it is high time all these biases were eliminated and exterminated through the potent and powerful tool of the law. In this light, laws should be enacted, invalidating discriminatory practices. A very laudable and formidable example of such legal framework is the Rivers State Prohibition of the Curtailment of Women’s Rights to Share in the Family Property Law which truly expresses women to be an indispensable and invaluable entity making up the human race, thus, enabling and empowering them with the right to partake in the sharing of their family property. Such a progressive legal development should therefore be embraced at the Federal and State Level.
While it needs no negating that customary law as it relates to inheritance rights of women in Nigeria is highly discriminatory and unfavourable to women, it is only progressive that these series of customs and consuetude be reviewed. Death is in itself a source of much grief for a bereaved wife, and further misfortune and tragedy in the form of a custom which deprives, denies and dispossesses her of that which is left behind for her for sustenance and survival should not be added unto it.
Oyinlola Agunbiade is a final year law student at the Lagos State University.
