CUSTOMARY INHERITANCE IN NIGERIA: THE PLACE OF THE GIRL CHILD/WOMAN
Who is a Girl Child?
A girl child is the female child by virtue of sex.
The girl child is faced with numerous challenges ranging from lack of basic social amenities which are ordinarily available to her counterpart. It should be noted that the challenges that today's woman face grew with her as a child. She is discriminated against on the basis of her sex and deemed in many quarters as one who is inferior and incapable of doing something good for herself without the support of her male counterpart. This age long perception about the girl child and eventual woman has deprived her of some basic rights which are peculiar to her as a human. Though there have been several laws which are aimed at giving the girl child her rightful place in the society, there is still a huge setback in our today’s society.
Our focus however is on the right of the child to have equal share in the property left behind by their parent(s) upon demise. In many cultures, it is almost impossible to hear the voice of the girl in the distribution of her father’s wealth. In most cases, the girl child is treated as inferior in the face of her male siblings who are given their own inheritance while hers is denied on the basis of gender. This brought different enactments both at the National and International levels.
For the purpose of this discuss, we will focus on the Yoruba and Igbo culture. There have been prominent cases where the girl child and their mothers have been denied inheritance. This is not peculiar to these two mentioned tribes; it is evident in the cultural practices in different parts of the nations. The most prominent of the excuses given by those who hold on to the practice of denying the girl child her inheritance is that she does not retain her father’s name. Further, the father’s lineage will be closed forever when she leaves. Thus, only the male child should be allowed to share in the father’s wealth.
SOME CULTURAL PRACTICES THAT DISINHERITS THE GIRL CHILD:
The Culture has a peculiar practice which denies the girl child from partaking in the sharing of the estate(property- both real and tangible) of the late father/mother. In some parts of Yoruba land, their custom only permits the male child to inherit the property of his late parent(s). This has caused lots of female children to lose what ordinarily should be theirs by virtue of being the child of the deceased. In the case of a man, his wife and daughters may be thrown out of the property without any consideration as to how to fend for themselves and the brothers and other relatives of the deceased may takeover their late brother's property. This can however be avoided if the deceased had a valid will providing for his female dependents before his death. For more insight see our article on IMPORTANCE OF HAVING A WILL.
Similarly, some widows are denied access to the property of their late husband because they are considered to be a part of the property inherited either by the eldest surviving son of the deceased or the brothers of the deceased. This position was reiterated in the case of AKINNUBI & ANOR v. AKINNUBI & ORS (1997) LPELR-352(SC).
In some communities in Igboland, their culture has similar practices where neither the daughter nor the wife of a deceased is allowed a share in the estate of the deceased. This is reflected in the “ille-ikpe” customary practice of Nnewi people of Anambra state. The girl child is considered unfit to inherit the property.
THE NEW ERA/POSITION OF THE LAW:
The long practice of denying the girl child her inheritance in her father’s estate on the basis of her sex has attracted lots of comments/condemnation from both local and international communities. This has led to the introduction of several Acts, Laws, Treaties at international levels which a larger percentage of the world are parties to.
Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW)
Article I of the convention defines discrimination against women as
“any distinction, exclusion, or restriction made on the basis of sex in the political, economic, social, cultural, civil or any other field.”
It goes further to provide in Articles 13, and 15 (1-3) of the Convention:
States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular:
The right to family benefits;
The right to bank loans, mortgages and other forms of financial credit;
The right to participate in recreational activities, sports and all aspects of cultural life.
States Parties shall accord to women equality with men before the law.
States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.
States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.
Article 16 (1) (h)
The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
From the above definition, any culture which tend to disinherit the girl child on the basis of her sex in discriminatory in nature. Thus it is prohibited. The Convention provides that a girl child/woman has right to own her own property without any form of discrimination. Being a member of the United Nation and having incorporated the convention and localized it, the convention is enforceable in Nigeria.
UNIVERSAL DECLARATION ON HUMAN AND PEOPLES’S RIGHTS.
Article One provides:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 17(1) goes further to provide:
Everyone has the right to own property alone as well as in association with others.
Putting these international conventions into consideration, it is evident that the girl shares and should enjoy equal rights with her male counterpart in all things including the right to inherit a share of the estate of her deceased parent.
'Therefore, where you perceive that there is a likelihood of you being denied your inheritance from your father’s estate, actions can be brought in court to enforce your right of inheritance'.
SOME LOCAL LEGISLATIONS ACKNOWLEDGING THE RIGHTS TO INHERIT PROPERTY
The constitution frowns at any form of discrimination against any person(s) under any guises as it is a breach of their fundamental human right. Being a girl child should not be a reason for discriminating against anybody. To ensure these rights are protected under the law, the 1999 constitution has made certain provisions to safeguard these rights.
Section 42 provides:
(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
Where a child is discriminated against on the basis of her sex to deny her a share in her father’s estate, it is a violation of section 42 of the constitution. She can therefore proceed to court to enforce her right to inheritance.
Section 43 of the 1999 Constitution provides thus:
Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.
The constitution did not at any time define a citizen to mean only a male child. Thus, the girl child has that inalienable rights. Where there is denial of the right of inheritance under any customary law in Nigeria, the affected individual can seek to enforce this right to own immovable property as guaranteed in the constitution.
The Child’s Right Act lends its support to the above provision in Section 3 which provides thus:
The provisions in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999, or any successive constitutional provisions relating to Fundamental Rights, shall apply as if those provisions are expressly stated in this Act.
In addition to the rights guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, or under any successive constitutional provisions, every child has the rights set out in this Part of the Act.
Despite these beautiful laws available to the girl child, due to poor information and respect/fear of their traditional practices, not much has been achieved with the available laws. Some persons who have taken steps to enforce their rights but abandon it along the way because of pressure from every angle. However, a number of persons have taken a bold step in the right direction to enforce this right by approaching the court. In all of these cases brought before the court, the court has found in their favour. The court has stated in a number of cases that any customary law practices that disinherit the girl/woman is discriminatory. The court has gone ahead to declare it repugnant to natural justice, equity and public policy.
Some of the notable cases decided by the court upholding the right to inheritance of the girl child include:
MOJEKWU v. MOJEKWU (1997) LPELR-13777(CA), the court held that the Ili-epke custom of the Nnewi people of Anambra state which disinherits the girl child is repugnant when it proclaimed:
"We need not travel all the way to Beijing to know that some of our customs, including the Nnewi "Oli-ekpe" custom relied upon by the appellant are not consistent with our civilized world in which we all live today, including the - appellant. In my humble view, it is the monopoly of God to determine the sex of a baby and not the parents.
Ukeje v. Ukeje (2014) 11 NWLR (Pt. 1418) 384 at 408 Paras, C - E where the court held that the Igbo Culture which disinherits the female child is discriminatory in nature and thus it was declared null and void and condemned it in very strong terms. The court further warned persons involved in the act to desist from continuing on this tread.
This position was also reaffirmed in UGBENE v. UGBENE & ORS (2016) LPELR-42110(CA) where the court stated thus:
No matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father's estate. Consequently, the Igbo customary law which disentitles a female child from partaking in the sharing of her deceased father's estate is in breach of Section 42(1) and (2) of the Constitution, a fundamental right, provision guaranteed to every Nigerian.
From the above, certain persons who have broken the odds by approaching the court have gotten their desired answer thereby getting their fair share of their late father’s estate.
One way to ensure these customary laws being practiced in your communities does not deny your girl child her inheritance from your estate is to have a valid will.
Every child is entitled to full inheritance from the estate of her parents. For insight see our article on CHILD SUPPORT AND MAINTENANCE IN NIGERIA. Though there are still many resistance that still being experienced today by the girl child/women, it is pertinent to note that until you approach the court to seek the enforcement of these rights, some uncles will remain unwilling to let go of estate of their late brothers in favor of his children particularly when they are females. You are therefore encouraged by these relevant laws and cases to seek justice in your own interest and that of the many women that may be facing the same plight. You can read our article on HOW TO APPLY FOR A COURT ORDER TO PREVENT SITUATIONS OF IRREPARABLE LOSS.