Revisiting the Decision of the Supreme Court Case of Ukeje V Ukeje Vis a Viz Igbo Customary Law
CHAPTER ONE
Objective of Study
The purpose of the research is to review the provisions of the law relating to the inheritance rights of women, and determine the impact of recent decided cases on the property rights of women in the Igbo Customary Law. Another is to identify the loopholes and make a clarion call to the judiciary to be actively supportive of these laws by ensuring that they are fully implemented.
CHAPTER TWO
FORMS OF PROPERTY RIGHTS
Succession
This is the right and transmission of the rights and obligations of the deceased to his heirs. It also signifies the estate rights and charges which a person leaves after his death, whether the property exceeds the charges, or the charges exceed the property, or whether he has left only charges without property. The succession only includes the rights and obligation of the deceased, as they exist at the time of the death, but all that have accrued thereafter since the opening of the succession, as also of the new charges to which the heir can take possession of the estate of the deceased such as it may be.
Succession is therefore characterized with rights of individual over a property. Simply put, succession means that when a man dies, the devolution of 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 directives contained in the will. However, there are exceptions to this rule, a person below the age of 18[1] and also a person below the age of 21[2] cannot make a valid will. A person of mental incapacity (a lunatic or of unsound mind) or physical incapacity (a blind person) cannot make a will, unless such a blind person gives a clear instruction to his solicitor or if he is aware of the content of the will[3] and if the person died intestate the following will applicable.
- Under the law of succession in Nigeria where a person contracts a marriage under the Marriage Act and dies intestate, the lawful wife and the children are the only persons entitled to the estate of the deceased and as beneficiaries of the estate they are entitled to the grant of letters of administration. To this effect the applicable law will be English law and not customary law.
- If the marriage was contracted under the custom and practice of the people, the customary law of the society will prevail.
Testate Succession under Customary Law
Customary law of different societies have rules on succession and administration of estates. These rules extends to both testate and intestate succession. Testate succession under customary law just like testate succession in general sense refers to a situation where a man prior to his death made declarations on how his estate is to be distributed. This is usually done through Wills. Customary law wills could be categorized into
- Nuncupative Wills
- Written Wills
Nuncupative Wills: The sharing of property by will is recognized by customary law. Igbo customary law calls it ike ekpe. Most customary law wills are oral and therefore nuncupative. A will under customary law takes the form of an oral declaration made voluntarily by the testator during his life time. Such declaration is usually made while the testator is in good health or in anticipation of death. It is noted that such declaration by the testator does not only deal with the sharing of his property but may also extend to the mode of burial ceremonies to be performed for the testator. Nuncupative wills must be made in the presence of witnesses who have no interest in the properties. The presence of the witnesses makes the will valid and also serves as a way of providing declarations.
Characteristics of Nuncupative Will
Just as in general law, wills under customary law can be effective only if the testator possesses full mental capacity at the time of making such will. The identity of the subject matter of the will must be specific for quick and easy identification .For example, where land is given, the testator should appropriately describe the particular plot.
CHAPTER THREE
LEGAL FRAMEWORK ON WOMEN’S RIGHT TO INHERITANCE
Women’s Right to Property in Nigeria
Having considered to an extent the practices of customary rules against women’s right to properties in various parts of Nigeria, attempt shall be made in this chapter to show the property rights of women as provided by our domestic laws as well as international conventions. Attempt shall be made as well on the judicial interpretative approach towards the property rights of women and the present state of the customary law on the property rights of women.
The Constitution
The Nigerian Constitution is the supreme law of the country and it is superior to all the other laws. Thus, if any law is inconsistent with the provisions of the Nigerian constitution, that law is to the extent of its inconsistency null and void and of no effect.[1] The Constitution of the Federal Republic of Nigeria 1999(as amended) provides that; a citizen of Nigeria of a particular community, group, and place of origin, sex, religion or political opinion shall not by reason only that he is such a person,
- Be subjected either expressly by, or in the practical application of any law in force in Nigeria to disabilities or restrictions to which citizen of Nigeria of other communities, ethnic group, places of origin, sex, religious or political opinions are not made subject; or
- Be accorded either expressly by or in the practical application of any law in force in Nigeria any privilege or advantage that is not accorded to citizens of Nigeria of other…sex, religious or political opinion.
It is therefore clear that based on the wordings of the above constitutional provision, the Nigerian women whether as female child or a widow has equal rights with their male counter parts. Therefore, the provisions of Nigeria constitution which protects women from discriminations should be held supreme to all other laws and customary practices.
Further, the Nigerian constitution guarantees certain basic rights to every citizen irrespective of their sex. These rights are called ‘Fundamental Human Right’. These rights are also similar to those guaranteed by the Universal Declaration on Human Rights, The African Charter on Human and People’s Right and Articles 2-6 of the CEDAW
In essence, the 1999 Constitution of the Federal Republic of Nigeria[2] bestows on women the same right accruing to their male counter parts.
It is my humble submission that any customary law which discriminates against women with respect to property is contrary to section 42(1) of the Constitution which provides that no citizen of Nigeria shall be subjected to any form of discrimination by reason of sex. Another section of the 1999 constitution of the Federal Republic of Nigeria worthy of mention as regards the property right of women is Section 43 which states:
Subject to the provision of this constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.
The purport of this section is that every citizen of Nigeria irrespective of sex has the power to acquire and own property.
CHAPTER FOUR
THE LEGALITY OR OTHERWISE OF UKEJE V UKEJE VIZ A VIZ IGBO CUSTOMARY INHERITANCE.
Summary Facts of Ukeje v Ukeje
Lazarus Ogbonnaya Ukeje, a native of Umuahia in Imo state (presently Abia state) died intestate. He had real property in Lagos state and most of his life was resident in the state. The deceased was married to Mrs Louis Chituru Ukeje and the marriage produced four children. After the death of Lazarus, his wife Chituru and his son obtained letters of Administration for and over the deceased estate. On being aware of this development, Mrs Gladys Ada Ukeje(daughter of the deceased) filed an action in Lagos High Court claiming that as one of the children of the deceased, she had a right to partake in sharing of her late father’s estate. She also sought an injunction restraining the defendants from administering the estate of the said Lazarus Ukeje, inventory/ account of the estate and that the letters of Administration be granted to the plaintiff and the second defendant.
Apart from her testimony on oath and that of her mother to prove that she is the daughter of L. O. Ukeje (deceased), she tendered the following documents – her birth certificate by which her birth was registered in Lagos in 1952, showing that the deceased was one of her parents, a passport guarantor’s form field by the deceased in which knowledge that he was the father of the plaintiff and photographs. The defendants opposed her assertion of being a daughter of the Late Lazarus UKeje and challenged the validity of the birth certificate and photographs. Thirteen witnesses gave evidence for the defence and thirty documents were admitted as exhibits. The learned trial judge Fajiade, J in a judgement delivered.
The Supreme Court formulated three issues;
- Whether the correspondent has proved that she is the biological daughter of L. O. Ukeje (deceased);
- Whether the evidence of her mother discredited in the High Court and
- If the trial Court arrived at its decision after following the proper guidelines for decision making laid down by the Supreme Court
Bode Rhodes HSC, who read the unanimous Judgement of the Court affirmed the decisions of the both earlier courts. On the authenticity of the birth certificate, the court applied the presumption in Section 114 (1) of the Evidence Act, 2011, and found that “a birth certificate is conclusive proof that the person named therein was born on the date stated, and the parents are those spelt out in that document. Once the authorized govern official appends his signature and stamp on the document and such authentication is not contested by the adverse party, the presumption of regularity will be ascribed to it’. The court was of the opinion that the paternity of the plaintiff/ respondent was the main issue in the appeal. On that, it was decided that, the bank certificate is decisive in setting such an issue and other document such as guarantors form shows L. O. Ukeje (deceased) is the respondent’s father.
CHAPTER FIVE
FINDINGS, RECOMMENDATIONS AND CONCLUSION
Findings from the Research
In Anambra state, practices that are discriminatory are found mostly in the customs and traditions of the people; women are seen basically as chattels to be inherited by the women folk. In all areas of land holding, women are excluded as land passes from the father to the male children. She is not allowed to inherit the property. Anambra state customary laws find uniformity in stating that on the death of the husband, the wife cannot inherit the man’s property, as she herself is a property to be inherited.
However, recent judicial decisions as discussed in this project work points out that custom and traditions which deny women property rights are unconstitutional and are void to the extent of their inconsistency with the constitution on the basis of sex. The court noted that such laws are not only repugnant to natural justice, equity and good conscience but are also contrary to written laws in force.
Anambra state being a state in Nigeria has the legal obligation under (CEDAW) to take all appropriate measures against legislature, customs and practices that constitute discrimination against women, in this respect equal access to property will promote economic justice.
In the course of my research the following were observed,
- In Anambra state, just like in majority of other parts of Nigeria, societies are highly patriarchal and masculine in nature and thus put women into the group of chattels and slaves to be inherited.
- In Anambra state, payment of bride prize by husbands of customary laws wives guarantees the former inheritance, right over the wife and her properties.
- The role of Anambra women in the economic sphere is largely restricted because of access to family land, capital and control over her own time and products of her labour.
- In Anambra state and Nigeria in general even where the marriage is governed by statute, widowhood rites are still enforced with impunity.
Recommendations
For the realization of women’s property rights, we advocate further steps towards gender neutrality of the property laws so that women and men will receive equal share under intestate succession and have an equal chance to be testamentary heirs. If customary law continues to limit and constrain the rights of women in and out of marriage. It is a disadvantage of half of the population in Anambra state. Women must have rights to properties. Denial of right to properties hampers the growth of prosperity of society and makes it more difficult for the full realization of potentialities of women in the service of humanity.
The following recommendations are made for the curbing of Gender Discrimination in Nigeria.
The Legislature: The legislative arm of government is very vital to the day to day running of the government. They are indispensable in the daily running of the government being that they are the lawmakers. Gender discrimination is a social problem that lives with us. Since our societies are dynamic in nature, the legislature being the lawmakers should also live up to the modern trends and yearnings of the masses. The Legislative arm of the government should closely follow all the basic and international tenets and standards as advanced by United Nations so as to make laws that will not be in conflict with standard customary international laws. Broad spectrum advocacy, enlightenment and education of the members of the legislative arm of the government are very necessary, so that it does not amount to putting a square peg in a round hole or a new wine in an old skin.
However it can be corrected and achieved by harmonizing the received English law, local status and customary laws particularly in the area of family law, marriage and inheritance, the Nigeria government is saddled with power of effecting such change; this can be done also by ensuring that all marriages recognized under the law enjoy equal rights which can only be done by the legislature by making it a law. Also, international standards must be synchronized with local legislative stands in order to tackle issues relating to gender discrimination.
More so, the international conventions that relate to gender discrimination must be properly enacted into law, or where ratified should be domesticated in order to give it validity upon which redresses could be based. Also, the restraints on domesticating international treaties as well as having them implemented should be expunged from our Constitution.
Conclusion
This work has contributed immensely to the knowledge of the property rights of women in Anambra state and Nigeria generally.
It has brought to the force, the issues, problems and prospects of property rights in Anambra state and has made necessary recommendations and if followed will go a long way to improve women’s property rights under customary law in Anambra state.
It is my humble submission that if the provisions made in this project work are followed, women will not only be liberated from property rights deprivation but will as well be free from shackles of poverty. From the foregoing discuss, it is undoubtedly clear that the issue of inheritance especially under the Igbo customary law does not conform to the qualities of a good law. The need to sensitize on inheritance rights under the Nigerian legal system can never be over emphasized. Customary law, though, it was generally accepted as at the time it was introduced, has failed the repugnancy test. As at the time of this work, the researcher realized that, the rules of customary law in Igbo land especially as regards inheritance, is now lacking its general acceptability. Worst still, the Igbo customary law, unlike the Yoruba and Hausa rules of inheritance, has failed to grant any inheritance rights to female children. This has indeed led to a lot of social, economic and psychological effect on the female child and also, on the parents, especially where there is no male child in the family. Such discrimination has also led to an increase to the number of polygamous families, unrest and so many problems in the family.
The problem of gender inequality particularly under our customary laws across tribes and communities that make up the country is questionably sustained.[5] The inference is that, the basic positive impact of inheritance on one’s life with reference to individual ownership, wealth acquisition, empowerment and development, which ultimately leads to national development, is impeded or denied. Hence, it perpetuates poverty.[6] The legal and regulatory environment for women’s rights to inheritance, are not sufficient and the few legislations that exist show lack of commitment to gender equity in inheritance rights. Since the laws and practices governing inheritance under customary law is very discriminatory, it constitutes a major obstacle to the achievement of equality of men and women.
Most judicial decisions and legislative interventions are centred on widows of a deceased and paying less attention to the female children of the deceased. The Supreme Court has, in the case of Ukeje V Ukeje, advanced the cause of equality between male and female children in matters relating to intestate succession under Igbo customary law.[7] As stated earlier, it is highly required that the full rights of females to succeed their late father’s estate be declared fully. It is relevant to point out the fundamental importance of section 42, CFRN, 1999.
The Supreme Court in Ukeje v Ukeje removed the impediments on the judicial protection of women’s right to property in Igbo land. This is a commendable development since the Supreme Court plays the role of a watchdog and an apex court in Nigeria, and the last hope of the common woman. There is need for the Supreme Court to make more pronouncements in subsequent cases that are of similar object and to be consistent in its decisions on this subject. This will help in no small measure to consolidate the fight against women’s discriminatory right to property and the crusade against the elimination of all forms of discrimination against women which is a global campaign.[8] Hopefully, Ukeje’s case was a victory to women’s right to property in Igbo society and has provided a fertile ground for favourable legal environment, effective judicial protection of women’s right to property and gender equality in Nigeria. It is hoped that the victory in this case, will bring change to the discrimation of women in life.
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