(May 6, 2014) On April 14, 2014, the Nigerian Supreme Court, in a unanimous decision, confirmed decisions of two lower courts, which had found unconstitutional an Igbo customary law of succession excluding female offspring from eligibility to inherit the property of their fathers. (Lemmy Ughegbe, S’Court Upholds Female Child’s Right to Inheritance in Igboland, THE GUARDIAN (Apr. 15, 2014).)
Background
The case originated at the Lagos High Court. When Lazarus Ogbonna Ukeje, a member of the Igbo ethnic group, died intestate in Lagos in 1981, Cladys Ada Ukeje (his daughter) sued Lois Chituru Ukeje (the deceased’s wife and the plaintiff’s stepmother) and Enyinnaya Lazarus Ukeje (the deceased’s son and the plaintiff’s half-brother) before the Lagos High Court, seeking that she be included among the persons eligible to administer the deceased’s estate. (Tobi Soniyi, Supreme Court Upholds Right of Female Child to Inherit Properties in Igboland, THIS DAY LIVE (Apr. 15, 2014).) The High Court sided with the plaintiff and voided the Igbo customary law excluding female descendants from inheritance. (Id.)
Dissatisfied with the High Court’s ruling, Chituru and Lazarus appealed the decision to the Court of Appeal. (Id.) When the Court of Appeal upheld the High Court’s decision, Chituru and Lazarus availed themselves of their right to appeal the decision to the Supreme Court. (Id.)
Igbo Customary Law of Inheritance
Members of the Igbo (also known as Ibo) ethnic group mainly live in the southeastern part of Nigeria and constitute 18% of the country’s over 131 million population. (Nigeria Facts, NATIONAL GEOGRAPHIC (last visited May 5, 2014).) The Igbo rites classify property into three categories: land, commercially valuable trees and plants, and movable property (household articles, livestock, money, and debts). (SAMUEL CHINWUBA OBI, THE IBO LAW OF PROPERTY 30 (1963).)
The inheritance rules of the Igbo ethnic group appear to largely favor male offspring over female offspring of a deceased person. For instance, although many local variations exist, inheritance of individually owned land generally follows the principle of primogeniture. (OBIORA F. IKE & NDIDI NNOLI EDOZIEN, UNDERSTANDING AFRICA: TRADITIONAL LEGAL REASONONG: JURISPRUDENCE AND JUSTICE IN IGBOLAND 118 (2001).) Therefore, when a man dies intestate, the largest share of his individual land would devolve to the eldest son, with other sons sharing the rest equally. (Obi, supra, at 199.) If the deceased does not have sons, his individual land devolves to his brothers to be shared according to seniority. (G. A. Wigwe, Igbo Land Ownership, Alienation and Utilization: Studies in Land as a Source, in IGBO JURISPRUDENCE: LAW AND ORDER IN TRADITIONAL IGBO SOCIETY 32, 39 (G. M. Unezurike et al., eds., 1986).)
Although Igbo women are by and large excluded from inheritance, some localities permit female children to inherit their father’s compound in joint tenancy with their brothers; however, in these instances, the eldest brother remains in control of the property. (Jaoyeola Mulikat Bolaji, A Comparative Study of Women’s Rights of Inheritance in Nigeria Under Islamic Law and Some Customary Law 157 (Dec. 2011), University of Ilorin website.) There are also localities in which a daughter with respect to whom a nrachi ceremony is performed (a practice in which a female child of a man who does not have male issue is prevented from marrying so that she can bear male children in her father’s name) may inherit her father’s compound, land, and house/s. (Id. at 158.)
Similar to the inheritance of individual land, the inheritance of investments on land (including trees with commercial value) also varies from one locality to another. Although such property is generally inherited by sons as corporate body, there are localities where they are jointly inherited by the deceased’s full brothers, matrilineal uncles, matrilineal half-sisters, matrilineal sisters, matrilineal half-brothers, matrilineal aunts and the mother of the deceased. (Bolaji, supra, at 159-160.) In some areas, such property is inherited by the eldest son with some limitations on his rights to dispose of the property. (Id.)
Supreme Court Decision
As did both the Lagos High Court and the Court of Appeal, the Supreme Court found that the Igbo inheritance rules that exclude women from inheritance violate the country’s 1999 Constitution, confirming the decisions of the Lagos High Court and the Court of Appeal. Justice Bode Rhodes-Vivour, one of the five justices who heard the case, delivered the Court’s opinion in which he stated that
no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her later 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 rights provision guaranteed to every Nigerian.
The above cited provision of the Nigerian Constitution, which guarantees freedom from discrimination, states that:
(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. … (Id.; Constitution of Nigeria (1999), § 42, International Centre for Nigerian Law (ICFNL) website.)
Accepted Discrimination
Although gender-based discrimination by customary rights is banned, it appears that age-based discrimination remains acceptable. As it did on a number of occasions in the past, on April 19, 2013, the Supreme Court upheld as constitutional the principle of primogeniture under the Bini customary law of succession in which the eldest son is entitled to inherit the family’s principal house, known as Igiogbe. (See Hanibal Goitom, Nigeria: Supreme Court Upholds Bini Customary Law System of Primogeniture, GLOBAL LEGAL MONITOR (Apr. 24, 2013).)