Inheritance Rights of women in Nigeria
The inheritance rights of women under a marriage depends on the form of marriage and the respective laws relating to such marriages.
Women married under customary laws are left to grapple with customary laws which differ from place to place and are unwritten. These customary laws most often discriminate against women. The devolution of estate of a person who dies intestate in Nigeria is according to the personal law of the deceased.
Where the deceased made a will, the provisions of the will are enforced. The personal law of a person is determine by way of life of the deceased or thereof marriage that he had. The practice in most cases is the resort to native law and custom regardless of the form of marriage.
The fundamental rule is that the personal law of the deceased property owner will be the law applicable his estate. In the case of Tapa v. Kuka, where the deceased from Nupe land, left a property in Lagos, the question for determination was whether it is the law of where the property situates that should be made applicable or the personal law; that is, law of Nupe, the court held that it was the customary laws of Nupe that will be applicable.
In the western and Midwestern States of Nigeria, it is the personal law that will be applicable law when the issue of succession to his real property is concerned.
The personal law may not necessarily be the law of his native community, but he may have adopted to live as a member of another community and agreed to be subject to the customary law of that community.
In Olowu v. Olowu, the deceased was a Yoruba of Ijesha by birth, who; lived all his life in Benin City. He married Bini women and acquired property there. He naturalised as a Bini man. He died intestate and his estate was distributed under in native law and custom.
Statutory Law
By contracting the marriage under the Marriage Act, a deceased intended the succession to his estate to be under English law an not customary law. Where a woman dies intestate her estate goes to her husband.
This is also a discriminatory law infringing the fundamental right to equality and freedom from discrimination. Some women still lose out completely from their husband’s estate due to ignorance and wrong application of the laws as a result of prejudices against women which have been tainted by traditional practices.
Some, out of fear that going to court would be costly and time wasting and others because they are afraid of societal stigma. Despite the provision against discrimination in CEDAW, the African Charter on Human and peoples’ rights and indeed the Nigerian Constitution the reality is that women are still denied equal opportunity to own property.
This is an obstacle to women getting credit facilities and works to impoverish women. Even in cases where inheritance rights are assured by statutory and Islamic laws, women still shy away from establishing their claim due to fear and ignorance. The provision of CEDAW, the African Charter, and the repugnancy doctrine should be used to challenge those customs, which deny women of their rights to inheritance.
Customary Law
Nigeria is a patrileneal society where inheritance is by the male descent. There are however a few variations here and there. For example, in some parts of Nigeria like the Yoruba speaking areas, women can inherit from their father’s estate. In most other parts such as the Ibos, the native law and custom excludes women from inheriting property especially land from their father’s estate.
Where there are no male relatives in many cultures, the property reverts to the larger family. By the custom of some areas, the woman herself is a property and can be inherited. The payment of bride price equates the woman to a purchased item to be inherited.
For example, despite the advancement of the Yoruba culture which permits the female child to inherit on equal basis the position of the female as a wife is quite discriminatory as she is not permitted to inherit from her deceased husband’s estate.
In Akinubi v. Akinubi, Mrs. Rufus Akinubi was married under the Yoruba customary law and blessed with five children. Her husband died without writing a will. The deceased owned a storey building, which was let to Owena bank. The deceased brother applied for and obtained letters of administration which the wife opposed and sought an injunction to restrain them from functioning as administrators of her husband’s estate.
The trial Court ruled that the wife had no locus to institute the action, she being under customary law herself a part of her husband’s estate.
She appealed to the Court of Appeal which dismissed the appeal. On further appeal to the Store Court, it was held as follows, “it is a well settled rule of native law and custom of the Yoruba that a wife could not inherit her husband’s property.
Indeed, under Yoruba Customary Law, a widow under an intestacy is regarded as a part of the estate of her deceased husband to be administered or inherited by the deceased family, she could neither be entitled to apply for a grant of letters of administration nor appointed as co-administrator.”
This decision is against the right of women to the fundamental human right of equality garanteed by the Constitution, CEDAW, UDHR African Charter and other International instruments signed by Nigeria.
It shows the cultural bias that women are not to be treated equally. Under the Ibo Culture a woman who has no male child is considered childless and as such can “marry” another woman who will bear children for her from any man of her choice but in an unmarried situation to those men.
Her make children are regarded as the children of the childless woman and can inherit from the family’s estate. This is called the “Nrachi Nwanyi” custom of the Ibos. This custom has been declared to be contrary to the fundamental rights of women.