Onyibor Anekwe & Anor v. Mrs. Maria Nweke, Supreme Court of Nigeria, SC. 129/2013
This case challenges the customary law of male primogeniture (the right of succession belonging to the eldest son) of the Awka people in Nigeria. The Supreme Court of Nigeria found that any custom that denies women, particularly widows, their inheritance, is repugnant to natural justice, equity and good conscience and is condemned by the Supreme Court.
Following the death of her husband, Mrs. Maria Nweke was asked to vacate her house by her late husband’s father on the ground that she had no male child in the house. Mrs. Nweke brought this case claiming that according to the customs of the Awka people, a woman inherits the property of her husband regardless of whether she has a male child. The defendants/appellants, who are Mrs. Nweke’s father-in-law and brother-in-law, initially claimed that male primogeniture is the Native Law and Custom of Awka people and as such, without a male heir, the property goes to the deceased’s father and eldest brother. The Ozo Awka society looked into the dispute and stated the father-in-law is the owner of the compound; however, under Awka custom the wife will not be driven out of the husband’s compound. The appellants later amended their claim to argue that the property in question was never partitioned by the father-in-law of the respondent. As such the appellants argue that the issue has nothing to do with inheritance, but whether the respondent is a tenant at will with no claim to the property.
The trial High Court Anambra State found in favor of the plaintiff and declared that the plaintiff has a statutory right to the piece of land at issue. The trial judge also granted an injunction restraining the defendants from further trespass on the land. The defendants appealed the decision to the Court of Appeal, who reaffirmed the trial court’s decision. The case was again appealed, this time to the Supreme Court of Nigeria where the appellants raised two issues: (1) whether the issue was correctly decided on the issue of disinheritance as opposed to whether the land had been partitioned; and (2) whether the Court of Appeal was right in upholding the trial court’s decision.
The Supreme Court found that both the question of disinheritance and of partition were at issue in the case. However, the Court stated that once the issue of disinheritance was decided in the plaintiff/respondent’s favor, it would render the issue of partitioning insignificant. Additionally, the Supreme Court condemned the custom and practices of the Awka people, finding the custom of disinheriting a woman from property to be repugnant to natural justice, equity and good conscience. The judgment emphasized that “a custom of this nature in the 21st century societal setting will only tend to depict the absence of the realities of human civilization. It is punitive, uncivilized and only intended to protect the selfish perpetration of male dominance which is aimed at suppressing the right of the womenfolk in the given society. One would expect that the days of such obvious differential discrimination are over. Any culture that disinherits a daughter from her father's estate or wife from her husband's property by reason of God instituted gender differential should be punitively and decisively dealt with. …For a widow of a man to be thrown out of her matrimonial home, where she had lived all her life with her late husband and children, by her late husband's brothers on the ground that she had no male child, is indeed very barbaric…” The Court upheld the lower court’s decision and awarded a punitive sum against the appellants to act as a deterrent from future instances of female disinheritance.
The Awka customary law of male primogeniture was invalidated for being repugnant to natural justice, equity and good conscience.
The Supreme Court of Nigeria utilized the repugnancy test in this case whereby the court will not validate and enforce a customary law and practice which is repugnant to natural justice, equity and good conscience. The decision provides the impetus for courts to use the repugnancy test in addressing issues of customary law and practice which violate women’s rights and gender equality.
The Court handed down the ruling for Anekwe v. Nweke on the same day it handed down Ukeje v. Ukeje. In both cases, the Supreme Court condemned the refusal of customary law to recognize female inheritance with regard to property. Customary law in Nigeria is a major source of law; however, the holdings in these two cases illustrate that the validity of customary rules within the legal system depends on whether those rules are consistent with the Constitution and are not repugnant to natural justice, equity and good conscience. In a country like Nigeria where there is a large discrepancy in gender equality that is largely grounded in traditional cultures and practices, the holdings in these two cases are a significant step in the protection of women’s property rights and gender equality.
Gender equality in matters of inheritance is particularly relevant today when women around the world still own less than 20 percent of the world’s land. In Africa, while 31 percent of men own land individually, only 12 percent of women do so. Various studies reveal that women’s rights to own and inherit property, including land, are vital to breaking the cycle of poverty. According to a UN Habitat report, “[i]nheritance is one of the commonest ways for women to acquire or access land…. However, the pursuit of gender equality in inheritance rights has been one of the most difficult challenges in rights-based approaches owing to the complexity as well as well entrenched patriarchal characteristics of socio-economic, cultural and religious practices.” There have been increasing calls from human rights mechanisms and UN bodies to strengthen women’s rights to property, land and other resources through effectively addressing discriminatory laws and practices. In the context of these contemporary contestations surrounding customary laws relating to inheritance, there have been significant jurisprudential developments in various countries, including India, Tanzania and South Africa.
Last updated 16 July 2018
Special thanks to ESCR-Net member: Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.