Women’s Right to hold properties has been established in Plethora of cases and this right is enshrined in the 1999 constitution of the federal Republic of Nigeria as amended. S. 43 which is of the effect that every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria while S.42 of the same constitution prohibits discrimination on the basis of sex. To this end a woman has the right to acquire properties on her own, inherit landed properties of her parents and that of her spouse respectively. Notwithstanding this, some customary practices still tend to limit women’s right to inherit properties.
- Under Nigerian native laws and customs, wives were regarded as chattels to be sold by their parents to their husband as soon as the purchase price (dowry) has been paid and if the husband dies she is regarded as the estate of the deceased husband . See Suberu v. Sumonu ((1975)2 FSC 31)
This practice is not only obnoxious; it is also repugnant to natural justice, equity and good conscience. We shall critically examine the rights of women over their husband properties as it relates to the following customs:
THE YORUBA CUSTOM
Under the Yoruba system of inheritance, on the death of a husband intestate, his properties devolves on his children as family property. All the children have rights to the family property and its management is under the control of the eldest surviving son of the deceased known as Dawodu. This was stated in the case of Lewis v. Bankole ((1975)2 FSC 31 and in Salako V. Salako (1908) 1 NLR 81 )
Furthermore, all the legitimate children of the deceased are entitled to succeed to his disposable landed property. The children share equal rights to the deceased properties irrespectively of sex and age. It is pertinent to note however that the surviving spouse is not entitled to succeed the property of the other.
To this end, in Subenu v. Sunmonu, the federal Supreme Court held that by Yoruba Custom, a wife cannot inherit her husband’s property. In the absence of surviving children, property which the deceased inherited will devolve on members of the family from which it came and any personal property belonging to the deceased devolves to his children. Also in Oloko v. Giwa’s, the court held that generally widows do not inherit their deceased husband’s property.
They are only allowed to remain in the house or a portion of farmland. It was the opinion of the court that inheritance follows blood and since a widow is not a blood relation of her husband; she has no claim to any of the property. In Oshilaja v. Oshilaja (1973) CCHCJ pg 11, the court held that the widow in the instant case could not inherit her deceased husband’s estate because he died intestate and without children. The court held that the son of the deceased sister was entitled to the estate to the exclusion of the widow.
However, where a husband is his will vest his share of unpartitioned family property in his wife, such gifts cannot transfer as the rights are inalienable. From the above, it is settled that women under Yoruba custom can inherit properties from their father, sister, and brothers but not from their husbands. However, she can accumulate properties on her own to which her husband cannot lay claim and through which she can contribute to the society.
HAUSA AND FULANI CUSTOM
The Hausa and Fulani ethnic group are predominantly Muslim located in the northern part and some part of the middle belt in Nigeria. They are to a large extent governed by Islamic Law. Under the Islamic Law, women can inherit ancestral properties. However they are entitled to one half of the men’s share. This is because it is their belief that it is a matter of the family prestige to maintain their ancestral properties and make it increase in size and value. However, a female child can own and acquire her own properties independent of the ancestral home.
It is pertinent to note that under Islamic law, a woman’s inheritance right to her husband’s property is limited. A widow has the rights to one quarter of the estate of her deceased husband who has no heirs. If there are heirs, she is entitled to one-eight of her deceased husband properties. If there is more than one widow, the one-eight is shared between them.
The Igbo custom generally forbids a female child from inheriting properties be it from parents or their spouse. In Igbo land, women are assumed to be in transit as they would eventually marry and thus lose all identities that make them members of a certain family. According to Chief Fidelis Nwosu Ndi Igbo, it is believed that the sons are the pillar of the home as they do not leave the family, but rather go out to marry a woman to increase the number of people in the family. He said men sustain the family name which is why they are given greater attention than their sisters.
In Igbo custom, succession is primogeniture. Under the principle of primogeniture, Succession is through the eldest male in the family who is known as ‘Okpala’ or “Diokpa’. In the case of the nuclear family, succession is through the eldest male child of the deceased. With regards to the extended family, succession is through the eldest son of the ancestor and so on in that line irrespective of the fact that the “Okpala” may in fact be junior in age to other members of the family. In Ugboma and others v. Ibeneme and others (1997) 7 NWLR 283), it was held that only sons to the exclusion of daughters can inherit their father’s estate. The rule that a daughter is not entitled to inherit her father estate is partly mitigated by her rights to be maintained by the person who inherits her father’s estate until she marries or become financially independent or dies. Moreover an unmarried daughter has a right to be shown a portion of her father’s land or family group farmland for her annual farming needs.
Having discussed the customs of the three major ethnic groups, it is safe to conclude that these customs subject women to subjugation, discrimination and humiliation. These customs of the Yourbas and the Ibos have been seen and described as obnoxious by modern commentators. As a result of a lot of women becoming educated in Law and a lot of men also becoming gender sensitive ,there has been a lot challenges to these cultures by our courts.
In Ukeje v. Ukeje, the court voided the Igbo law and custom which forbids daughters from inheriting their late father’s estate. The court declared that the tradition is discriminatory and conflicts with the provisions of the Nigerian constitution. The court held that the practice conflicted with sections 41(1) (a) and (2) of the 1999 Constitution of the Federal Republic of Nigeria on the fundamental freedom from discrimination granted to every Nigerian. The judgment was on appeal marked SC 22/2014 filed by Mrs. Lois Chituru Ukeje (the wife of the late Lazarus Ogbonna Ukeji) and their son Eyinnaya Lazarus Ukeje, against Mrs. Gladys Ada Ukeje, the deceased’s daughter.
Gladys had sued the deceased wife and son before the Lagos High Court claiming that she was the daughter to the deceased and ought to inherit from her father’s estate. The Supreme Court found that she was a daughter of the deceased and she was qualified to benefit from the estate of their father who died in Lagos state in 1982 without writing a will on how his estate should be shared among his descendants. The court of appeal in Lagos to which Mrs. Lois Ukeje and Eyinnaya Ukeje appealed, upheld the decision of the trial court, prompting them to appeal further to the supreme court.
In its judgment on Friday, June 1, 2016 the supreme court held that the court of appeal, Lagos was right to have voided the Igbo native law and custom that disinherited female children and that the said custom is a breach of section 42(1) and (2) of the constitution, a fundamental rights provision guaranteed to every Nigerian.
Further more in Mojekwu v. Mojekwu, the court of appeal Enugu held that the “Oli-Ekpe” custom of Nnewi in Anambra state under which male children only inherit their father’s property is unconstitutional.
As regards women having rights to their husband’s property, the Married Women Properties Act 1882, an Act of Parliament of the United Kingdom which has been adopted by Nigeria allows married women to inherit properties of their deceased spouse. Buttressing this fact, the Marriage Act of 1990 Chapter 218 laws of the Federation of Nigeria has provisions enabling married women to enjoy equal rights to the family’s assets acquired during marriage and to be involved in their disposal during or after the marriage or upon the death of her husband.
Also, the matrimonial causes Act of 1970, chapter 220 Laws of the Federation of Nigeria enables the court to rule that women have a share of family property in the event of divorce on equity grounds. The Act is applicable to suits arising out of dissolution of civil, customary and Islamic marriage.
However, over the years, there has been a radical improvement on the rights of women. For example, women are free to exercise their franchise, to acquire properties, to openly express their opinions, to be in government etc.
In some developed countries, women are given equal rights to their husband’s properties particularly when it is a joint property. According to S.1b of the Nepal country Code, Muluki Ain 1963 , which was amended in 2007, a wife is entitled to her share of the couples property if she is abandoned by the husband, or she is treated cruelly, or the husband has brought or kept a second wife.
Furthermore the Country Code Eleventh Amendment Act 2002 establishes a wife’s equal right to her husband’s properties immediately after marriage rather than after she reaches 35 years of age or has been married for more than 15 years. It also provides that in cases of divorce, the properties must be partitioned between husband and wife and the wife need not return her share of the properties to her divorced husband if she remarries.
In Avellanal v. Peru (Communications No: 202/1986), Mrs. Avellanal complained to the Human Rights Committee about Article 168 of the Peruvian Civil Code which provides that only men are allowed to represent Matrimonial property before the Courts. Based on this code, the Supreme Court of Peru held against her that she was not entitled to sue tenants whose rents were long overdue because she was married and it was the right and duty of her husband. The Human Rights Committee found that the application of the Civil Code resulted in Mrs. Avellanal being denied equality before the Courts and constituted Discrimination on the grounds of sex.
It is pertinent to note that in Nigeria, a woman does not have any right over her husband’s properties especially when he is still alive. In the course of this research, I conducted a survey and my target audience was men. Over 50% of them believe that it is even absurd for a woman to think that they have any right over their properties just because they married them. Others were of the opinion that so long as it wasn’t joint properties and they have title to the land, their wives have no right at all in respect of such properties when they are alive. There was also an argument that if their wife’s were given rights over their properties, it means that they will also have the rights to dispose or alienate such properties.
It is important to state at this point, that there are no laws or enactments in Nigeria enabling women to have rights over their husband’s properties while he is still living. However in divorce cases, a woman can intimate the court that she is already used to a certain lifestyle since the marriage and pray the court to be maintained by her husband and the property where she was occupying during the marriage is left for her. The court may use its discretion in granting such requests.
We in Property Advisory are advising Nigerian women to wake up to numerous opportunities provided by international instruments and laws of the various states of Nigeria on their rights over their husband’s properties even when they are both alive especially when these properties are acquired during the pendency of the marriage. We give this advice because of numerous reports of injustices meted to women by their husbands even when some of these women are smarter and more educated than their husbands. Sometimes the women with good education and job usually give up their jobs to take care of the home. Also important is the fact that these non working women who take care of the home could do better at work if not for the children.
Our courts are disposed to making radical changes on these circumstances when reasonably persuaded . Just recently, a very bold woman tested the law in Oyo State and judgement was given to her on Friday 1st of March 2019. In that case which was decided by the Honorable Chief Judge of Oyo State, a woman that has children for her husband and had married him before a house was built has the right to live in the house with her children even after divorce under the provisions of the Married Woman Property Act 1882, the court held that the belief that patriarchy is so entrenched in the Nigerian system and women have no rights even under the law has been proved to be an erroneous one, majorly propounded by those ignorant of the rights provided under the law.
The provisions of the Married Woman Property Act 1882 formed the basis of the pronouncement of the Chief Judge of Oyo State, Justice Munta Abimbola, on Friday 1st March 2019 in a property suit between a divorced couple, Toyin Arajulu, formerly known as Mrs Toyin James and her former husband, Mr James Monday.
The court held that “a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman, of her own volition, leaves the matrimonial home.”
Justice Abimbola, while ruling on the matter, emphasized what is known in law as the “palm tree justice,” which indicates that it does not matter in whose name the property stands or who pays what (on the property) and in what proportion as determination of such matters transcends all rights, legal or even equitable, but simply what order is fair and just in the circumstances of the case, citing the case of Home Vs Home (1962) 1 WLR 1124 at 1128.S 17 Married Woman Property Act 1882, which is a statute of general application.
Toyin Arajulu had filed the suit against her ex-husband, Monday James, who she married under Native Law and Customs in 1997 and for whom she had four children.
She claimed that while she was married to him, they had put resources together and built two flats of three bedrooms at Ayedun in Akure, Ondo State and procured a plot of land at No 7, Fadana Biala Estate, Olodo, Ibadan, where they built a three-bedroom flat and a storey building which is still under construction before their divorce in July 2014.
She averred that before the divorce, her husband had moved out of their matrimonial home in Olodo but only came constantly to try to forcibly eject her and the children, usually accompanied by thugs who attacked her and her children.
She added that on August 15, 2014, one of her children, Bidemi James, was wounded in one of the episodes of attempted violent eviction and the sum of N530,000 from her business taken by her ex-husband and his accomplices.
She claimed that he had concluded plans to sell off the joint property without her consent and had continued to victimize her and the children, asking the court for a declaration that the property is jointly owned by the two of them and an order that the landed property with the three-bedroom flat and uncompleted storey building be sold and proceeds divided equally between them and an order of perpetual injunction restraining James from harassing her and the children.
In his counter claim and defence, the ex-husband stated that when he bought and constructed the Akure property, his wife was a full housewife and had no contribution to the project, adding that the situation was the same for the Ibadan property as his wife only signed as a witness as she had no job and only depended on what he gave her to take care of the children when he travelled out of the country.
According to him, she was only trying to fraudulently take over his property, adding that her claims were vexatious, gold digging and an abuse of court process.
He also asked the court to declare that the receipts of purchase his ex-wife presented were forged and that she should vacate possession of the property which she had refused to give up despite service of statutory seven days owner’s intention to recover possession and perpetual injunction restraining her from occupying the building.
Justice Abimbola, while ruling on the case, held that the landed property at No 7, Fadana Biala Estate, Olodo, Ibadan, together with the three-bedroom flat and uncompleted storey building is jointly owned by the two.
On the second relief that both buildings be sold as requested by Toyin, Justice Abimbola held that, “I will not give such orders in respect of the two buildings. Particularly, Section 17 Married Women Law of Oyo state Cap 83, Laws of Oyo state 2000 gives a court the discretion as it thinks fit on the issues of title of possession to property.
“Section 18 also enjoins the court to treat such property as a joint property if the issue has to do with the maintenance of a matrimonial home. My order to this effect is that the completed three-bedroom flat on the land be retained as the matrimonial property and the four children are entitled as beneficial owners by way of a resulting trust created for them by their parents. The mother, as long as she remains unmarried, is directed to be in possession undisturbed in order to take care of her children.
“The uncompleted storey building is ordered to be sold by both parties and the proceeds divided in equal share. The half share shall go to the wife for the maintenance of the children. A divorced wife has no business being maintained,” Justice Abimbola held.
The court also restrained James from harassing Toyin any further or disturbing the quiet possession of the property by her and the children, holding that, “the rationale is that a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman, of her own volition, leaves the matrimonial home. Also, a divorced woman is not entitled to any maintenance allowance but maintenance of the children by way of settlement.
PAN hereby advise the Nigeria women to take a lead from this case and fight their course.