Ajayi / Dynamics Of Customary Property Rights And Its Economic Effect On Gender Based Aquisition Of Property Among The People Of Avianwu, Edo State, Nigeria

DYNAMICS OF CUSTOMARY PROPERTY RIGHTS AND ITS ECONOMIC EFFECT ON GENDER BASED AQUISITION OF PROPERTY AMONG THE PEOPLE OF AVIANWU, EDO STATE, NIGERIA Mary-Ann O. Ajayi1 ABSTRACT Customary inheritance rights to property form a major source of property acquisition under the African customary law to a large extent. Women in many parts of the African society do not have equal inheritance rights compared to the men and evidence abounds that this practice has a negative effect on their economic empowerment. This paper addresses the issue of gender based inherit rights to access property as a determinant to economic empowerment from the standpoint of inheritance practice(s) using the Avianwu communities in the Northern parts of Edo State Nigeria as a case study. Among the Avianwu, patrilineal and matrilineal modes of inheritance operate simultaneously, the male children inherit from their fathers while the female children inherit from their mothers. Daughters are allowed to inherit all the properties their mother’s acquired in their life time, except land (farmland, buildings etc.). Land is exclusively reserved for the male children. This practice of depriving women access to land is a violation of their fundamental human rights and the consequence is manifestly evident in their economic empowerment because they are disadvantaged compared to the men. Despite the fact that modernization and westernization has brought about changes in some customary inheritance practices they have not been able to alter the inheritance practice of depriving women inheritance to land completely among the Avianwu. Against the provisions of the 1999 Nigerian Constitution that provide and guarantee fundamental human rights, women are still discriminated against. This paper concludes with the call that the provisions of the Constitution should be functionally implemented and enforced.

KEY WORDS: Gender, Women’s Rights, Inheritance, Property, Economic Empowerment

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Senior Lecturer, Faculty of Law, Bowen University Iwo, Osun State, Nigeria. Email: [email protected]

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1. INTRODUCTION The internecine scramble for the distribution of the property of a deceased person has become a very serious societal problem. This situation is peculiar to both testate and intestate succession. Globally testate succession is a situation that occurs when a person writes a Will giving directives on how his/her property is to be shared after his or her demise.2 Onuoha posits that the law of succession and inheritance reflects Nigeria’s plural system, as the patterns of inheritance and succession particularly intestate estate under customary law in Nigeria have almost as many variations as there are ethnic groups. 3 Women in rural areas play a critical role in agricultural production, but they are not accorded significant recognition by the society. Despite the fact that women engage more in agricultural activities only a few of them have legal control over the land that they cultivate. The long-standing inequalities in gender distribution of economic and financial resources are almost a global challenge that has placed women at a disadvantage compared to the men. This has affected their capability to participate and benefit from a societies development. In Nigeria women have suffered various forms of discrimination and oppression during property sharing, especially in terms of land for economic purpose and other physical assets.4 Though western modernity has challenged customary laws in many diverse ways the people have persistently resisted some of these changes. It should be acknowledged that in the past, succession and inheritance to properties or items except in relation to cooking utensils, female clothing and materials were exclusively inherited by the men. 5 Customary law in some jurisdictions discriminated against women and female children in so many ways and this may not be the position as at today in some customs in Nigeria. 6 Despite considerable progress on many aspects of women’s economic empowerment through increase in enlightenment, there still exists deeply entrenched inequality as a result of discriminatory traditions and

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Ajayi Mary-Ann, Dynamics of Succession and Inheritance Rights of Women among the Avianwu of Edo State, Nigeria. (January, 2016) (Unpublished Ph.D. Dissertation, African Law Unit, Institute of African Studies, University of Ibadan) p.1 (on file with author). (Hereinafter referred to as Ajayi Mary-Ann, 2016). 3 Onouha, Reginald. Discriminatory Property Inheritance under Customary law in Nigeria: NGO’s to the Rescue. June 14th, 2011, Available at www.wlumi.org/bibliography/ wrrc/com (Last visited on December 11th, 2016). 4 Folarin S.F; Udoh O.D and Oluwakemi D. Beijing Declaration and Women’s Property Rights in Nigeria. European Scientific Journal, Vol, 10. No 34. (239-249) p.1 (2014). 5 Olubor, J. O. The Legal Rights of the Vulnerable Groups vis-a-vis Customary Practices. The Refresher Course for judges and Kadis. Sept 23-27. March 2009. P.16 (2009). 6 United Nations Publication. “Worlds Survey on the Role of Women in Development”. United Nations Journal Series 2009, No. E09.IV.7. p.7.

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practices Nigeria.7 Olubor identified the fact that most women do not have equal rights as men to resources 8 and these inequalities could gradually metamorphose into threat to legal rights of others. 9 It is the consequent economic effect of these practices of denying female children property rights that this paper addresses.

II. THE RIGHTS TO SUCCESSION AND INHERITANCE In Avianwu patrilineal and matrilineal method of inheritance operate side by side from earliest years of the community’s existence 10 . Female children were and are still allowed to inherit property from their mothers except land 11 . Land is an exclusive reserve for the male children in Avianwu community 12 except where the male child is subject to cultural limitations. When a man dies in Avianwu without a surviving male child, his property is inherited by his immediate younger brother. Where there is no surviving younger brother, the property reverts to the deceased family13. Whether a female child can inherit land varies across Southern Nigeria. Under Benin customary law, it is only where there is no male child that female children are entitled to inherit land. 14 In contrast, under the Yoruba customary law, female children are allowed to inherit property without any limitation, but widows are not allowed to inherit land. Women are discriminated against with respect to land because in many communities men are heads of households hence they control and manage land. Women are not regarded as persons who can hold property such as land because she usually would leave her family of orientation to marry into her family of procreation. It is assumed that women should not be allowed to take away the land meant to be retained in her family of orientation to her family of procreation. (A). THE INDIGENOUS PROPERTY RIGHTS OF WOMEN IN AVIANWU OF EDO STATE, NIGERIA Property may be defined as the right to possess, use and enjoy a determinate thing, land or chattel, the right to ownership.15 Property acquired during the 7

Justice Isibor, P.O. Women’s Rights and Status under Edo Native Law and CustomMyths and Realities (2014), available at http://www.edoworld.net/womenrightand statusunderedolawandcustom.html. (Last visited 28th August, 2016). 8 Olubo op.cit p.13. 9 Olubo op.cit p.2. 10 Ajayi Mary-Ann,2016. p. 108. 11 op. cit p. 159. 12 op. cit p.138. 13 op. cit p. 147. 14 The Benin Traditional Council. A Handbook on Some Benin Customs and Usages (Benin City: BTC), pp.12-13. (1996). 15 Garner, B.A .Black’s law Dictionary.(ed) West Publishing Comp. United States, 2004.

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lifetime of an individual may be moveable or immoveable. Land is regarded as real property and it extends to whatever sits on it. The first son of a deceased that inherits the property when his father dies and it is the first daughter that that inherits her mother’s property when her mother dies. A woman has no right to her husband’s property except if her son had a share in his father’s property and she could access the property through her son16. The first-born daughter is expected to share the property with her other female siblings. Nothing stops her if she decides to share some of the properties with her male siblings, for she is only a custodian of the property. She can also not transfer such property on her demise to her children. This right is neither absolute nor automatic but subject to some limitations; a first born female child has to be qualified to enjoy such privilege17. With respect to a situation where a woman dies without a surviving female child, traditionally, it is her immediate younger sister that inherits her property and where she had surviving sister, the property may be given to her first son’s wife (daughter in-law). This situation is peculiar to all the four communities in the study area18. The situation in Avianwu is quite different from what exists in her surrounding villages. The major ethnic groups in Edo State are Benin, Esan, Afemai, Owan and Akoko Edo. Succession under the Benin laws for example is governed by the principles of primogeniture19 and the freedom of testamentary power is restricted as much reliance is placed on section 3(1) of the Wills law 1958, which provides; Subject to any Customary Law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his will executed in a manner hereinafter required, all real and all personal estate which he shall be entitled to, either in Law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor, or upon his executor or administrator.20 The principle of primogeniture inheritance among the people of Esan applies in its purest form, thus vesting the eldest son with total rights in all the property of his deceased father after performing the funeral. This is at variance with the practice of the people of Benin where exclusive inheritance is limited only to certain types of property which is the igiogbe 16

Ajayi Mary-Ann op.cit p.100. op.cit p. 113. 18 op cit p.109. 19 The Benin Traditional Council, A Handbook on Some Benin Customs and Usages (Benin City: BTC, p. 12-15) (1996). 20 Section 3(1) Wills Law 1958. 17

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(House where the deceased resided in his life time).21 In Esan, the traditional burial rite is an important event in every family; even the royal family is not excluded. In every family, it was and still is customary for the first son to bury his father ceremonially. Where he fails to do it, he was not recognised by the people and he will not be fit to inherit his father’s property. The native burial is called “itolimi” or “iluogbe”. Itolimi must be made by the first son that is his father’s burial ceremony.22 This will immediately entitle the son to his father’s property. But when the first son fails to make his own itolimi for his father, the son would be expected to do it, or he would still not be rightfully entitled to his father’s estate.23 Though the rule of primogeniture is practiced vastly in Edo State, there are significant variations among different ethnic groups and even within the same ethnic configuration like it exists in Avianwu. (B). THE EFFECT OF MARRIAGE ON FEMALE INHERITANCE RIGHTS IN AVIANWU CUSTOMARY LAW Marriage is a major determinant to a female child’s right to inherit property in Avianwu. The rights to inheritance is depended upon the kind of marriage performed by a woman in Avianwu. Marriage to a non-indigene of Avianwu denies a woman her right to inherit her mother’s property. This in its strict sense runs contrary to the provisions for protection equal rights in Section 42(1) & (2) 1999 Constitution of Nigeria. Section 42(1) guarantees the right to freedom from discrimination on account of ethnic group, place of origin, sex, religion etc. Section 42(2) “provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason or circumstances of his birth”. The philosophy behind these practices is to protect family property within the communities.24 They as much as possible want to retain their property within the communities and not lose it to other families outside the Avianwu community. Where a woman is qualified to inherit property, her rights to inheritance is still limited to certain items for she is not allowed to inherit land25. The women in these communities appear to be very comfortable with these practices.

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Ughulu, E.O. (nd). British Expedition to Uromi about 1900.A.D. Uromi, (Esan) Ishan Division. University of Uyo. 22 Ughulu, E.O. (nd). op.cit. p.45. 23 ibid. p.45. 24 Ajayi Mary-Ann (2016). op.cit p.144. 25 op.cit p. 145.

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(C). PROPERTY RIGHTS (INHERITANCE RIGHTS) WITH RESPECT TO LAND Under the Nigerian customary law, land is of great importance to the existence of individuals, clans, families and communities and it can be used for various purposes such as agriculture, farming, and erection of houses personal and commercial purpose. 26 In describing land under customary system, Professor Azinge argues that land law under customary law meant soil and soil only; this argument is supported by Azinge. 27 A building erected by a person even by a trespasser, on the land of another did not become attached to the land, but remained the property of the builder. Land can be defined to include not only the surface of the earth and subsoil but all the appurtenances permanently attached to it, these include buildings, trees, streams and ponds (Quidquic plantatur solo, solo cedit). According to Albert Honlonkou land can be acquired by pledge, renting, inheritance, purchase, gift, community holding, borrowing and share cropping.28 Besides these methods of land holding as stated by the scholar, there are other ways of land holding and judicial decisions that give credence to such forms of land holding under the customary law which are, ownership by clearing of a virgin land as enunciated in the cases of Idanmwekhai v Braimah29 and J.E. Ehimare v Okaka Emhonyon30. Land can also be owned by conquest as decided in the cases of Nwuba Mora v H.E Nwalusi31 and Echi v Nnamani32. Land can also be acquired by long possession, see the case of Nwokenye v Ojunwabude 33 , Dagaci of Dere v Dagachi of Ebwa 34 and Oduwole v LSPDC.35 There is also the issue of customary tenancy which in practice is that however long the customary tenant is in occupation it does not transfer ownership of the land to such a tenant neither can such a land be transmitted to the heir. This is illustrated in the cases of Nous v Uche 36 ; Mojekwu. v. Wachukwu 37 ; Lewis v Bankole 38 and Chicer v Okogbue.39 26

Azinge, Epiphany. Reinstatement of Customary Law of Nigeria. Lagos: Nigerian Institute of Advanced Legal Studies, p.203 (2013). 27 Op.cit. p.203. 28 Honlonkou, Albert. Property Rights, Land Management and Agricultural Productivity in Benin. 2016, available at [email protected] (Last assessed June 27th, 2016). 29 Unreported Appeal No CA/B/9.88 of 16/11/90. Court of Appeal Benin. 30 (1985) 2 SC 42 at 70. 31 (1962) 1 ALL NLR P. 168. 32 (2000) 8 NWLR Pt. 667. 33 (2001) SUIT NO. DCC .8A/99. CCA. 34 (2006) 7 NWLR Pt. 979. 35 (2004) 9 (NWLR Pt. 878 p. 382-410. 36 (2005) 17 NWLR Pt. 995. 37 (2004) 11 NWLR Pt. 883.

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Landmark decisions of the Court of Appeal and the Supreme Court have been examined in this study to give credence to these various methods of land holding. The courts have taken judicial notice of these various methods of acquiring temporal rights to land in the following cases, Oyakojo v Ibadan District40 where the courts have held that where land is acquired for the use as a market, no compensation is payable. This decision confirms the fact that communal land can be used as a market. With respect to land being used as a pledge, the Supreme Court had settled this in the case of Okoioko & Ors v Esadalue & Ors41 where it was held that in principle in Delta State, a pledge is not a sale under customary land transactions, thus lending credence to the fact that under customary law, land can be pledged. Thus, this form of land holding cannot be transmitted to an heir. In the case of Agbejakwe v Osunde 42 whilst determining the Abavo customary law in Delta State, the court held that the pledgor had a reversionary right on the land and emphasised the fact the pledge of a piece of land does not translate to the sale of that land. Ebimotureh v Inekembagha is also another case where the courts had lent its support to the recognition that land communal land can be used for agriculture. 43 With respect to communal land being given as a gift, the courts have held in the case of Anyaegbunam. v. Osaka44 that a gift is complete when the donee accepts the fact that he has transferred his right in the land and such donee has no right to revoke the gift. In Ekpa v Utong45 and Oguejiofor v Osaka46, the same position has been held that a person lacks the power or competence to revoke a gift of land made inter vivos by his ancestor unless he can show that the gift had been subject to a condition which had been broken. Where there has been an outright gift it puts into extinction the rights of those who claim through or under the donor. Subsequent paragraphs will examine the methods by which individuals can acquire family lands and transfer to their heir under customary law. Customary land consists of customary and communal land and cannot be inherited unless it is partitioned among the constituent families or partitioned among the members of the family in a situation where a family is involved.

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(2007) 11 NWLR Pt 1247 P. 572-590. (2000) 12 NWLR Pt. 681. 40 (1959) WNLR p. 304 at 305. 41 (1974) 3 S.C. 15. 42 (2011) APPEAL NO. DCCA/27A/2010. 43 (1998) 3 NWLR pt. 543, P 548 at 577. 44 (2000) 3 SC 1 at 14; (2000) 5 NWLR PT 675 P.386 at 400. 45 (1991) 6NWLR PT.197 258 at 284. 46 (2000) 3SC P.14. 39

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III. THE CHALLENGES OF GENDER BASED PROPERTY RIGHTS Women play critical roles in agricultural production in developing countries, where they make up the majority of the agricultural workforce. Land is the main source of livelihood is also a source of power and social status and thirdly, it is an indicator of the people living on it.47 Women access to land is important because it guarantees reduction in poverty and ensuring food stability. Majority of the women are predominantly farmers that relied extensively on farm produce to feed their families and sell to assist their spouses in the home. A woman who farms in this community is guaranteed of food security for her family. Women’s denial of access to permanent land use was influenced by the present value attached to land in the society. This is against the insinuation that it was influenced by patriarchy.48 The position is different today among some families Ogbonna in Community. Women are not allowed to inherit their mother’s land, this must have been influenced by western modernity and education.49 (A) ECONOMIC CHALLENGES OF GENDER BASED INHERITANCE RIGHTS TO LAND IN AVIANWU. (i). Women who are deprived the right to inherit land are at a more disadvantageous position compared to men. Women rights to inheritance is a very vital issue as it relates to the underlying causes of high levels of poverty and feminization of poverty. Inheritance is vital to the transfer of wealth in a society and protecting a woman’s right to land is inextricably linked to her economic autonomy. 50 Adekile states that “the inhibitions placed on women in the family inheritance laws systematically prevent the full realization of economic rights and poverty is the resultant consequence. 51 However notwithstanding prevalence of discriminatory customary practices against women in Nigeria, in many communities women can own property.52 In Benin Kingdom and Esan parts of Edo, in present day Nigeria, many women own property distinct or separate from 47

Cotula, A. In Gashaw Tenna. Alemu. “Womens land Use Right Policy and Household Security in Ethopia: Review”. International Journal of African and Asian Studies. Vol. 12, 56-65 (2015). 48 Ajayi, Mary-Ann, (2016). op.cit p. 151 49 op.cit p.152. Ogbonna community is one of the communities in Avianwu. 50 Scholz, B. Women’s Inheritance Rights. The Centre on Housing Rights and Evictions. (COHRE). Geneva. (2004). 51 Adekile, O. Property Rights of Women in Nigeria as an Impediment to realization of Economic and Social Rights. (2010) p.10. 52 Ekhator, E. O. The impact of the African Charter on Human and Peoples’ Rights on domestic law: a case study of Nigeria. Commonwealth Law Bulletin 41.2: 253-270. (2015).

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their husbands.53 Furthermore, Isibor highlighted cases where women have instituted cases to protect their parcels of land held under Benin customary law.54 The cases include Madam Agbonifo v Aiwerioba 55& Anor and K.S. Okeayya-Ineeh v Ekomado 56 . Women in neigbouring communities surrounding Avianwu could acquire land distinct from their husbands and are allowed to transfer such property to their children in the form of inheritance. 57 Some women in Avianwu also acquired and still acquire landed property separate and distinct from their husband’s property. The practice from the colonial era was that such property could be transferred after the demise of a mother to her female children so long as they are qualified to inherit such property by virtue of their marriage. 58 However, with the advent of colonisation, the Avianwu people became aware of the value attached to land and the practice of depriving female children the right to inherit landed property started from that era.59 (ii) A female child in Avianwu is allowed to inherit her mother’s property less her land however women have found a smart way to avert this occurrence by selling off the land in their life time. Women and female children who have been denied the rights to inherit property are forced to abandon their lands and they have to seek alternative solutions such as petty trading. This creates situations where people buy items on credit and until such monies were paid the women had no access to funds. The reverse would be the situation if they had alternative and stable source of income such as farming. (iii) There is uneven development with the women compared to the men with respect to economic empowerment when the women are deprived their rights to access land. Depriving women of land rights negates the principle of gender equality as provided in both domestic and International laws. In 1995, the world’s summit and other recent summits for social development, held in China, took gender equity as the core strategy for social and economic development. 60

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Isibor, P.O. Women’s Rights and Status under Edo Native Law and Custom-Myths and Realities. P. 7-8. (2014). Retrieved http://www.edoworld.net/womenrightandstatus underedolawandcustom.html. Last visited 28th August, 2016. 54 Isibor P.O, 2014. op.cit. p.8 55 (1988)19 NSCC.pt. 1. P. 237. 56 !1970) ANLR 1. 57 Ekhator, E.O. 2015 op.cit. 253-270. 58 Ajayi, M.O, 2016. op.cit p.144. 59 op.cit p.144. 60 Olubor, J. O. The Legal Rights of the Vulnerable Groups vis-a-vis Customary Practices. (2005) The Refresher Course for judges and Kadis. Sept 23-27. March 2009.Fourth World Conference on women held in Beijing, (1995) p.13 cited in Aigbovo, O. & Ewere, A. O.

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Besides the challenges stated above, the consequences of denying women access to land access increases the burden of poverty on women. When a woman is deprived equal opportunity to inherit land like the men, this violates her rights to gender equality. Their poor financial status cannot give them good business. Women contribute to a very large extent to the house upkeep, yet they are accorded little or insignificant recognition compared to the men in Avianwu communities. This situation corroborates the position of Olubor where he states; “It is a common knowledge that women are virtually responsible for rural households. In spite of this, our customary practices subject them to conditions of inequality with their male folks. Most women do not have equal rights as men to resources. Most of them rely on men for their physical wellbeing, economic security as well as social status”61 (iv). One of the basic requirements to obtain a bank loan is the production of Title Deed which must belong to the intended recipient of the loan, to serve as collateral. Where a woman has no land, she will be deprived of access to loan facility. Denying a woman, the right to certain properties due to cultural inclinations is a violation of their rights to equality. There are certain cultures were widowhood rites expect a widow to be re-married to a male member of her late husband’s family. Avianwu has similar customary law where if a widow refuses to re-marry she will be denied her right to use her deceased husband’s property most especially the dwelling home and land.62 In Avianwu, a woman is expected to remarry a man within her late husband’s family to be able continue to enjoy and use her late husband’s property. In pre-colonial era this new marriage was expected to be consummated. The position today is different, the new marriage is only symbolical and consummation optional, it is left to the discretion of the woman. The woman was also expected to mourn her husband for three years during this era without doing any form of work to raise income. This position has also been modified to suit the present social and economic demands. The woman is only expected to observe the three months mourning, thereafter resume her daily activities but must maintain a sober decorum wearing dull clothing’s for three years 63 . The factors that have contributed and influenced these changes can be attributed to western modernity64. ‘Adjudicating Women’s Customary Law Rights in Nigeria: Has the Tide finally turned?’ AJLC 5, 12-25:3 (2015). 61 Ajayi, Mary-Ann.op cit p.153. 62 Ajayi Mary-Ann op.cit p. 155. 63 Ajayi,M.O, 2016. op.cit p. 120. 64 ibid p. 120.

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(V) CONSTITUTIONAL PROVISIONS, INTERNATIONAL TREATIES AND JUDICIAL AUTHORITIES ON WOMEN’S RIGHTS IN NIGERIA International Conventions, the Nigerian Constitution65 and State laws that oppose discrimination and prescribe equal treatment of women and respect for Fundamental Human Rights have moved steadily into the national sphere. In Nigeria, Sections 42 (1) of the 1999 Constitution provide that “ A citizen of Nigeria of a Particular community, ethnic group, place of origin, sex, religion or by political opinion, shall not, by reason only that he is such a person(a) Be subjected either expressly by, origin 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 religious or political…..” (b) 42 (2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstance of his birth.” (c) 43.Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.” Section 1 (3) of the same Constitution nullifies any action in totality or to the extent of its inconsistency any action or actions that violate the provisions of the constitution.66 The Nigerian Constitution had in fact anticipated, as it were the panoply of women’s right which have been expansively articulated under international law, particularly CEDAW (1979). Convention on the Elimination of all Forms of Discrimination Against women. 67 CEDAW is one of the governing law on women’s rights internationally for all State parties that have ratified the convention. Nigeria became a signatory to CEDAW in 1984 and it only became operative in the country in 2004 but it is yet to be domesticated in Nigeria. The preamble to the convention states thus, “Concerned that, despite these various instruments, discrimination against women continues to exist…Aware that a change in the traditional role of men as well as the role of women in the society and in the family is needed to achieve full equality between men and women…” The convention 65

1999, CFRN. 1999 CFRN as amended. 67 Ibidapo-Obe , The Judicial Approach to Customary laws Marriage. p.176 (2005). Cited in M.B, Oyebanji. Proposals for Law Reform of marriage laws in Nigeria: T.A Aguda and I. Ade (eds) Nigerian Institute of Advanced Legal studies (1980). 66

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contains guarantees of equality and freedom from discrimination by the state and by private actors in all areas of public and private life. To a large extent, it codifies the existing gender-specific and general human rights instruments containing guarantees of freedom from discrimination on the ground of sex, although it adds some significantly new provisions. It requires the state parties to ensure that women enjoy equality in the fields of civil and political rights, as well as well as in the enjoyment of economic, social and cultural rights. Nigeria been a State party to CEDAW has successfully relied on it and other Conventions to strike down offending customary law practices. In Avianwu the effect of these conventions is insignificant and it is at variance with the culture of the people. There was to a large extent, awareness of this law, but the indigenes insist that customary law was also a source of law and can therefore not be overridden by English law.68 The UN Commission for Status of Women (CSW) under the Economic, Cultural and Social Council (ECOSOG)69 provides that men and women should be treated equally in all spheres of life where the same conditions prevail. The establishment of CSW led to the subsequent adoption of the Universal Declaration of Human Rights (UDHR) in 1948. The African Charter on Human and Peoples Rights (ACHPR)70 provides in its Article 2 & 3 that every individual shall be entitled to enjoyment of rights and freedom recognised in the present charter without distinction of any kind such as race, ethnic group, language and sex. This Charter was domesticated in Nigeria in the form of the African Charter on Human and Peoples Rights (Enforcement and Domestication) Act Cap 10, 1990. International Conventions and State laws that oppose discrimination and prescribe equal treatment of women and respect for Fundamental Human Rights have moved steadily into the national sphere. The Nigerian Constitution had in fact anticipated, as it were the panoply of women’s right which have been expansively articulated under international law, particularly CEDAW (1979), Convention on the Elimination of all Forms of Discrimination Against women. CEDAW is one of the Conventions on women’s rights. Nigeria became a signatory to CEDAW in 1984 and it only became operative in the country in 2004 but it is yet to be domesticated in Nigeria hence it has only a persuasive effect. The preamble to the convention states thus, “Concerned that, despite these various instruments, discrimination against women continues to exist…Aware that a change in the traditional role of men as well as the role of women in the society and in the family is needed to achieve full equality between men and 68

Ajayi, Mary-Ann 2016. op.cit p.175. 1946. 70 1982. 69

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women…” The convention contains guarantees of equality and freedom from discrimination by the state and by private actors in all areas of public and private life. To a large extent, it codifies the existing gender-specific and general human rights instruments containing guarantees of freedom from discrimination on the ground of sex, although it adds some significantly new provisions. It requires the state parties to ensure that women enjoy equality in the fields of civil and political rights, as well as well as in the enjoyment of economic, social and cultural rights. Nigeria been a State party to CEDAW has successfully relied on it and other Conventions to strike down offending customary law practices. In Avianwu the effect of these conventions is insignificant and the rights to inherit land is at variance with the provisions of the law. The indigenes insist that customary law is also a source of law and can therefore not be overridden by English law. The UN Commission for Status of Women (CSW) under the Economic, Cultural and Social Council (ECOSOG) of 1946 provides that men and women should be treated equally in all spheres of life where the same conditions prevail. The establishment of CSW led to the subsequent adoption of the Universal Declaration of Human Rights (UDHR) in 1948. The African Charter on Human and Peoples Rights (ACHPR), 1982 provides in its Article 2 & 3 that every individual shall be entitled to enjoyment of rights and freedom recognised in the present charter without distinction of any kind such as race, ethnic group, language and sex. This Charter was domesticated in Nigeria in the form of the African Charter on Human and Peoples Rights (Enforcement and Domestication) Act Cap 10, 1990. The Section 18 of this Act makes the provisions of the Charter enforceable in any court of law in Nigeria. Article 21 of The Protocol to the Charter on Human and Peoples Rights ratified by Nigeria in 2004 protects the rights of widows and gender equality. The International Covenant on Civil and Political Rights (ICCPR) 1966, in its Article 3, provides that State parties should ensure equal rights of men and women to the enjoyment of civil and political rights. Article 26, provides for a right to equal protection of law for all persons. The Protocol of the African Charter on Human and Peoples Rights of Women in Africa, provides that State parties should combat all forms of discrimination against woman. Its Article 5, condemns all forms of harmful practices. Articles 20 & 21 provides that woman and men have the right to inherit, in equitable shares, their parent’s property. The Nigerian government recently passed a Bill into law prohibiting violence against women. The law is titled Violence against Persons (Prohibition Act)

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(VAPP).71 The VAPP provides for a legislative and legal framework for the prevention of all forms of violence against persons especially women and girls. Act makes the provisions of the Charter enforceable in any court of law in Nigeria. Article 21 of The Protocol to the Charter on Human and Peoples Rights ratified by Nigeria in 2004 protects the rights of widows and gender equality. The International Covenant on Civil and Political Rights (ICCPR)72, in its Article 3, provides that State parties should ensure equal rights of men and women to the enjoyment of civil and political rights. Article 26, provides for a right to equal protection of law for all persons. The Protocol of the African Charter on Human and Peoples Rights of Women in Africa, provides that State parties should combat all forms of discrimination against woman. Its Article 5, condemns all forms of harmful practices. Articles 20 & 21 provides that woman and men have the right to inherit, in equitable shares, their parent’s property. Some African countries have relied on these International Declarations and Conventions in striking down discriminatory customary law rules. In Ephraim v Pastory 73 , the Tanzania High Court relied on the Tanzanian Constitution and International Human rights convention to uphold the rights of females to inherit land. Similarly, in the Botswana case of Ramantele v Mmusi 74 the Court of appeal also upheld the rights of women to inherit the family home, noting the supremacy of the constitution. The most recent cases of Onyibor Anekwe. v. Maria Nweke,75 where the Court of Appeal held that no matter the circumstances of the birth of a female child, she was entitled to an inheritance from her late father’s estate. There is also Ukeje. v. Ukeje where the Supreme Court held on July 1, 2016 that the Igbo customary law, which forbids a female from inheriting her late father’s estate was void on the ground that it is discriminatory and conflicts with the provision of Section 42(1) and (2), 1999 Constitution. The judgment was on appeal filed by Mrs. Lazarus Ukeje (wife of the late Lazarus Ogbonna Ukeje) and their son Enyinnaya lazarus Ukeje against Mrs. Gladys Ada Ukeje, the deceased daughter. Gladys sued the deceased wife and son before the Lagos High Court, claiming to be one of the deceased children and sought to be included among those to administer the deceased father’s estate. The High Court and the Court of Appeal delivered their judgment in 71

May 5, 2015. 1966. 73 (2001) AHRLR 236 (TZHC) 1990. Here the court relied on Article 26 of the International Covenant on Civil and Political Rights (ICCPR) which prohibits discrimination based on sex. The Court also relied on CEDAW and Article 7 of The Universal declaration on Human Rights which discrimination based on sex. 74 Unreported Judgment of Botswana Court of Appeal. Delivered in Gaborone, Sept 3, 2013. Cited in Aigbovo, O. And Ewere, A. O. ‘Adjudicating Women’s Customary Law Rights in Nigeria: Has the Tide finally turned?’ AJLC 5, 12-25, (2015). 75 (2014) 9 NWLR (pt.1418) p. 393 at 399. 72

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favour of Mrs. Ada Gladys Ukeje and this prompted the deceased wife and son to appeal to the Supreme Court. The Supreme Court upheld the decision of the Court of Appeal and held that the Court of Appeal was right to have voided the Igbo native law and custom that disinherits the female child. Justice Bode Rhodes-Vivour, who read the lead judgment held inter alia that no matter the circumstances of the birth of a female child, such a child is entitled to inheritance from her late father’s estate.76 In Uke. v. Iro77 the court held that the Nnewi Customary law that disentitles a woman from given evidence in relation to title to land is inconsistent with unconstitutional provisions and was repugnant to natural justice. It also offends all the decent norms applicable in a civilized culture where the rights of all sexes are protected under the constitution. In Obusez .v. Obusez 78 the Court of Appeal upturned the Agbor Native law and Custom which denies a widow who was married under the marriage Act, a right to the management and distribution of the estate of her deceased husband with five surviving children. The court held that the surviving spouse who is the lawful widow should get first priority to a grant of letters of Administration of the estate.

(VI). RECOMMENDATIONS AND CONCLUSION Judicial pronouncements 79 and several human rights provisions 80 are beginning to have a positive influence on customary inheritance rights to land. Section 42 of the 1999 Nigerian Constitution and a host of so many other Conventions that Nigeria has ratified 81 frown at inequality ascribed to the female gender. The trend is gradually shifting because women now acquire property of significant value but this is only a recent development. Despite the availability of several International and State Legislations gender discrimination continues to persist. This paper has addressed the effect of gender based acquisition of rights using the Avianwu community as a case study. It serves as a blueprint for policy makers to understanding the complexity and effect of gender based inheritance rights. Women suffer 76

(2014)9 NWLR (pt. 1412) p. 385 at 310. (2001) 11 NWLR (pt. 723) 196. 78 (2001) 15 NWRR (pt. 736) p. 377. 79 Ukeje v Ukeje (2014) (NWLR) (pt. 1412) p.385 at 310; Anekwe v Anekwe (2014) 9NWLR (pt. 395 at 399 etc 80 See E.g, Section 42, 1999 Constitution of Nigeria, Article 16 Universal Declaration of Human Rights, African Charter on Human and Peoples Rights (Ratification and Enforcement Act) 1983. 81 CEDAW; African Charter on Human and Peoples Rights (Enforcement and Domestication) Act Cap 10, 1990, Violence against Persons (Prohibition Act VAPP) 2015; 77

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a lot of depravation a consequence denying them equal rights to inherit land. This practice should be discouraged to align with the Constitutional provisions that provide and guarantee equal rights and freedom from discrimination. This can be achieved in Avianwu and other localities where this is the practice, through massive education campaigns and gradual reorientation. Women should be given equal access to land and control of economic resources. The customary succession and inheritance rights in Avianwu should be reviewed to reflect gender equality in compliance with the existing laws for there is the urgent need to make these laws accessible to the people at the grassroots. The provisions of Fundamental Human Rights in our Constitution will be merely theoretical if they cannot be made to create an environment where no citizen is or feels oppressed. Constitutional provisions will not by themselves create this enabling environment when there still exist customary walls and barriers built over centuries which encourage and sustain gender inequalities. 82

82

Jadesola O. Akande in Preface to her book “Miscellany At Law and Gender Relations.” 1990. Cited in Isibor, P.O. Womens Rights and Status Under Edo Native Law and CustomMyths and Realities (2014). Available at http://www.edoworld.net/womenright andstatusunderedolawandcustom.html. (Last visited August 28th, 2016).

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3. Dynamics Of Customary Property Rights And Its Economic Effect ...

Black's law Dictionary.(ed) West Publishing Comp. United States, 2004. Page 3 of 15. 3. Dynamics Of Customary Property Rights And Its Eco ... Edo State, Nigeria -By Mary-Ann Onoshioke Ajayi.pdf. 3. Dynamics Of Customary Property Rights And Its Econ ... , Edo State, Nigeria -By Mary-Ann Onoshioke Ajayi.pdf. Open.

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