Customary Laws of Inheritance in Nigeria: The Egbudu-Akah Perspective

By Prince Nath.  Obiokolie

INTRODUCTION:

Conscience is an open wound, only truth can nurture it.

As our people earnestly squeal for peace after over 2 years of protracted self-inflicted devastation, it becomes imperative to re-educate ourselves by reviewing the actual cause of the kingship brawl that tore the once peaceful kingdom apart, and juxtapose same with the extant laws of Nigeria to which our Kingdom and every Nigerian community and people are subjected.

If done objectively and sincerely too, every actor in the said kingship scuffle, would have assessed his or her role and adjudge whether the game truly worth the candle. In other words, a very careful and painstaking ablution of the minds of the perpetrators would definitely betray their emotions, thereby causing them to admit having fought a war of blame.

While this article does not intend to apportion blames to anyone, it is axiomatic that he who seeks equity must first keep his hands clean. Our people should first purge themselves of pride and accept the fact that a grievous mistake was made, for without contrite heart, there can be no clemency.

Thus, the much anticipated reconciliation shall only be actualized if the people are willing and bold enough to admit the truth.

LAWYERS AND THE SOCIETY:

There is no doubt that the increasing socio-economic and political advancement in the 21st century has always been associated with economic crisis. Nowadays, most Nigerian communities have been replete with class struggles, which centres on who controls, allocates or distributes the limited communal resources of a given society.

While some of these proprietary interests are hinged on customary rights or inheritance, others are ignited by the inordinate and selfish ambitions of some economic players in such societies.

Inevitably, no such impasse exists without the involvement of lawyers by either or both warring parties in an attempt to reaching a compromise. Such situation becomes more complicated and precarious, where the lawyers are members of the particular society.  Expectedly, while other members of the society may attempt to remain neutral and perpetually sit on the fence and watch the crisis rage like a conflagration, the lawyers would normally align with either party, depending on their respective perceptions on who is right between the adversaries.

The reason for this alignment by lawyers is usually not unconnected with their professional training, as lawyers rarely jump on the band wagon, but rather take a definite stand, which usually reflects the true spirit of the law.

The above scenario prompted my support for the eldest son of the Obiokolie Royal dynasty, who was not incapacitated by any means to succeed the throne of the Kingdom. I should have also played a similar role if the same scenario, which played out, was unconnected with my blood relatives.

In other words, aside my personal convictions, it is the duties of lawyers to be steadfast, forthright and uncompromising. They are encouraged not to allow their personal interest or relationship affect their judgments, for there lies a lawyer’s statesmanship.

Recently, while charging new entrants to the Nigerian bar on this onerous task of not sitting on the fence as regards societal issues, Walter Onoghen, the Chief Justice of Nigeria had this to say:

…a legal practitioner should not close his eyes to the social, political and economic problems of our time. Therefore, he has a duty to help rescue our society from pervasive lawlessness, corruption and anti-social activities”.

Earlier in Okike v LPDC (2005) 14 NWLR, Pt 949,471 at 510, Musdapher, JSC had amplified certain qualities of a lawyer as follows:

Now, it is, I think, a fair characterization of a Legal Practitioner’s responsibilities in this country that he stands as a ‘shield’ in defense of right and to ward off wrong. In a profession charged with such responsibilities, there must be exacted those qualities of truth speaking, of a high sense of honour, and of the strictest observance of fiduciary responsibility.

More recently, an unknown author has also noted that a legal practitioner who shies away from condemning obnoxious cultural practices in a society, not only betrays his callings, but the entire existence of mankind.

In the case of Onyibor Anekwe & Ors v Mrs. Maria Nweke (2014) NWLR,Pt 1412, while condemning the customary law that denied a woman and her six female children from inheriting a deceased husband’s property for reason that the widow had no male child, the Supreme Court frowned seriously at lawyers who encourage the sustenance and enforcement of such discriminatory, retrogressive and horrendous customary laws and practices in our society rather than condemning such practices.

BACKGROUND:

Since October, 2016 Egbudu-Akah Kingdom in Aniocha South LGA of Delta State has been devastated and deprived due to an avoidable kingship tussle between two brothers of the Obiokolie ruling family.

The Delta State Government after proper investigation of the matter and upon recommendation by the Delta State Council of Traditional Rulers, who also received its report from the Aniocha South Council of Traditional Rulers on the rightful person to the throne, recognized and officially presented the Staff of Office to the eldest Obiokolie, Obi Paul Nzemeke Okolie II as the authentic king and successor to his father, His Royal Majesty, Obi Agbogidi, Olo-Omee Okolie (1) JP of blessed memory.

Sadly, Obi Paul Nzemeke Okolie II died 39 days after he was presented with the staff of office due to complications from the heinous assault meted to him with dangerous weapons by the supporters of his younger brother prior to, and on the eve of the Staff of Office presentation ceremony, being the 19th day of March, 2018. However, Obi Paul Nzemeke Okolie II was gazette by the State Government as the 12th king of Egbudu-Akah kingdom, albeit having one of the shortest reigns.

The kingship tussle was predicated on an alleged customary law of Egbudu-Akah people to the effect that a child of a levirate marriage should not succeed the throne, notwithstanding his position in the family as the first male child and heir apparent to the throne.

Meanwhile, the late Obiokolie, father of the two contenders who joined his ancestors at the ripe age of 104 years, had reigned for 70 years before joining his ancestors; a fact that further throws doubt at the propagators of the said custom, who were either not born at the time the late King was enthroned in 1946, or were merely too young to recall what was the prevailing custom at that time. More so, until his death, the late King and father of the contenders was also the oldest person in the entire kingdom.

 

LEVIRATE MARRIAGE AND A LEVIRATE CHILD:

Levirate marriage, originated from the holy bible (Deutronomy 25:5-6). It is the act of re-marrying a widow by the relation of a deceased husband. It is not only legal but biblical and the spirit is that the widow must marry a brother-in-law rather than anyone outside the family.

However, the difference between the biblical motive behind levirate marriage and the Egbudu-Akah culture, which is the same with most communities in Anioma nation of Delta-State is that, while the biblical basis was essentially to procreate a child who would bear the name of a deceased who probably died without a child by his brother, the Egbudu-Akah practice is to ensure that such widows, who are more often than not, very young at the death of their deceased husbands, are consoled, properly taken care of by the same family, while the properties of the deceased family member remains in the family.

Therefore, it is my view that the practice of levirate marriage protects widows and children, and also provides special care and protection for children born to the deceased husband, who otherwise would have been raised by single parents.

Levirate marriage therefore re-assures a widow and children of a certain future. And I think this is the reason levirate marriage was never outlawed by our courts or the colonial masters who abolished many horrendous practices before setting a standard test, which other customary laws would pass before being accepted and applicable in the communities.

Going by the above definition and the biblical insight, a “levirate child” could thus be defined as a child or children of a marriage between the deceased husband and the re-married woman, prior to his death and before the subsequent remarriage. It could also be defined to mean a child born by a widow whose pregnancy was inherited by the brother of her deceased husband after she was remarried.

“Levirate child” does not include children born to the new husband by the inherited or remarried woman in the new relationship, since no such relationship existed without the consent of the new couple.

Although levirate marriage is one of the customary marriages of Egbudu-Akah people, it seems the definition of a “levirate child” was mis-interpreted and misused due to the already soured relationship between the elder Obiokolie and some members of the community, who in pursuit of personal vendetta, seized the opportunity as the convenient time to settle scores with him.

Meanwhile, our interaction with some supporters of the young Obiokolie at the inception of the scuffle was that they were quite aware that the eldest Obiokolie was the rightful person to the throne, but for his antecedent, which was merely a subjective opinion, as no man can be loved by everyone in his community.

The misinterpretation of the meaning of “levirate child” has been the cause of Egbudu-Akah kingship crises, and not the custom itself. Even at that, the courts have held for umpteen times that no one has the right to deprive any person of his or her hereditament or succession to the rights of his parents by reason of the circumstances of his birth.

Thus, any custom that promotes discrimination in anyway can be described as ill-motivated, divisive, repugnant to natural justice, equity and good conscience and now shibboleth. Above all, it is in contrast with the provision and spirit of the 1999 Constitution of the Federal Republic of Nigeria. See section 42(2) of the Constitution.

Meanwhile, Egbudu-Akah customary law on succession to the throne is by primogeniture and in pari material with that of most communities in Anioma nation of Delta State.

THE CONTENTION OF BOTH PARTIES:

The argument of the younger Obiokolie and his supporters was that his mother was the only lawful wife of the four wives of the late sage and great King, as his father’s other three wives were not appropriately married, even though they all lived together in the palace with their husband until his death.

Accordingly, the young Obiokolie claimed that none of his elder brothers was qualified to ascend the throne, despite the wide age margin between them and the fact that the late King had lived together with the first wife/mother of the eldest Obiokolie, for many years in the palace before subsequently marrying his other wives, including the second wife/mother of the young Obiokolie/third surviving son.

On the other hand, both the eldest Obiokolie and other members of the Royal family have argued that the bride price was not paid by their father on the 2nd wife/mother of the youngest Obiokolie, as the woman was only handed over to their father in settlement of a debt owed him by the father of the young Obiokolie’s mother.

While all this was ongoing, I took out time from my busy schedules and travelled home after being inundated with calls by concerned persons who prevailed on me to intervene and consequently advised the parties in line with the provisions of the law, urging the young Obiokolie to relinquish power to his eldest brother while it was still very early in the day, as he had no customary, moral or legal basis to contend the throne with the eldest Obiokolie or any of his elder brothers.

A similar advice was also given to some of his supporters, who rather declared me a persona non grata, while calling for my head.

For the records, the dictum of Ibiyeye,JCA in the case of Ezekiel v Westminister Dredging Nigeria Nig. Ltd (2001) FWLR, Pt. 60, 1564, clearly justifies my advisory role on the matter, when he said:

…it is the duty of learned counsel, by virtue of their training and knowledge of law, to study the grievances of their clients and give sincere advice on them. It is more honourable for counsel to advise on the hopelessness of recourse to litigation when cheaper and less time consuming approach is available.

This article is therefore intended to evaluate the existence or non existence of the customary law relied upon by the younger Obiokolie, viz-a-viz its applicability in Nigeria.

It will also attempt to re-educate the elders of Egbudu-Akah Kingdom, who are predominantly polygamous, and the women who may have been deprived of their inheritance, either because they could not give birth to male children, or for the mere fact that they are a girl child.

Besides, it will most importantly, re-educate some of our youths who have made social media their second home and a free-for-all avenue to indiscriminately spew venomous words against anyone who seeks to educate them on the impropriety of encouraging retrogressive customs that never existed, or at best existed but already voided by the constitution.

Moreover, such customs are a time bomb and future threats to a community where over 90% of residents and married men are polygamous, and usually die intestate.

WHAT IS CUSTOMARY LAW OR A CUSTOM:

Customary law or custom may be defined as the set rules, practices and norms of a particular community, which regulate the lives of the indigenes and which the members of that community accept as binding on them. It is also the customs and rules, which govern the relationship of members of a given community.

It may also be defined as a practice, which by its common adoption and long unvarying habit has come to have the force of law.

One of the major characteristics of customary law is that it is unwritten in any particular form or document. Its unwritten nature makes it dynamic, flexible and not rigid. This means that it changes from time to time with the intention of conforming to times and modernity.  In Dawodu v Danmole, 3, FSC 1965, it was held that the Yoruba custom of sharing deceased man’s intestate property according to number of wives (idi-igi) instead of number of children (ori-ojori) could be set aside for alternative (ori-ojori), which is sharing according to the number of children of the deceased, as that would douse tension in the family. Having done that, the custom was twisted in such a way that the whole essence is retained while achieving the peaceful co-existence of the children of the deceased.

Secondly, customary law must be reasonable and not go against common sense. For instance, in Edet v Essien {1932] 11 NLR, 47, claiming to have acted under a particular customary law, a man attempted to claim two children born by a woman to another man on the grounds that the woman did not return part of the bride price he paid on her before she remarried and gave birth to those children. It was held that the customary law, which permitted such practice as unreasonable and cannot be enforced.

APPLICATION OF CUSTOMARY LAWS IN NIGERIA:

Prior to the advent of colonialism in Nigeria, various parts of the country had customary and Islamic practices to which they were subjected. Most of those laws were highly repulsive and horrendous, as they were truly against nature. It seems the most notorious of those harmful practices was the killing of twins, which was predominantly in the southern part of the country.

However, during the colonial era, the colonial lords observed that though the peculiarity of the Nigeria environment demanded the observance of certain customary laws by the natives, it was however important that such customs must first pass a validity test before being accepted in the society.

Consequently, three different tests were propounded, such that no customary laws or custom would be applied in any particular society, except they pass such tests. They are:

The Repugnancy test;

The Incompatibily test; and

The Public Policy test.

These tests will be briefly discussed herein under.

Repugnancy test.

This test stipulates that no customary law should be applied in any society if it is repugnant to natural justice, equity and good conscience. The standard of test for a custom that is repugnant seems to be objective since it will be juxtaposed with the social-political advancement of the people, the provisions of the constitution, and the rights of the individuals.

This is because section 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that the constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

Sub section 3 of the groundnorm expressly provides that if any law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of its inconsistency be void.

Although the same constitution recognizes customary law by the establishment of Customary Court and Customary Court of Appeal, any custom that is in conflict with any provisions of the constitution does not stand the test of time.

Thus, in Onyibor Anekwe & Ors v Mrs. Maria Nweke (supra) it was held that a customary law that seeks to disinherit the widow of a deceased and her six daughters from inheriting their deceased property merely because the widow had no male child was repugnant to natural justice, equity and good conscience.

Also, in Mrs. Lois Chituru Ukeje & Anor v Gladys Ada Ukeje, (2014) 11 NWLR, PT 1418, 384 the Supreme court also condemned a similar customs, stating that they offend section 42(1) & (2) of the 1999 constitution.

In the words of Rhodes-Vivour, JSC, “the said discriminatory customary law is void, as it conflicts with s. 42(1)(2)”.

A child that was born out of wedlock enjoys the same rights and privileges as that whose mother was properly married, especially where the father acknowledges paternity. No customary law can deprive the child from inheriting his father’s property simply because his father did not pay his mother’s pride price or for any other reason.

In the above case, the Supreme Court per Ogunbiyi, JSC clearly put the position thus:

“…the igbo native law and custom which deprives children born out of wedlock from sharing the benefits of their father’s estate is conflicting with s. 42(2)”.

In  Agbai v Okagbue (1991)7 NWLR Pt 204, 391, a case which bordered on the membership of age grade system under native law and custom, it was held that the essence of the validity test is to fine-tune customs so they might maintain relevance in our legal system.

1.   INCOMPATIBILITY TEST:

Another test prescribed by the colonial masters for our customary laws and which the courts have consistently applied is the incompatibility test. This test suggests that where there is a local enactment that is intended to govern a people to the exclusion of customary law, any customary law to the contrary shall not apply for reason of not being compatible with the parent legislation.

Thus in Ukeje v Ukeje (Supra) the Supreme court held that  any law that  stops any person from inheriting the deceased father’s estate for whatever reason including children born out of wedlock was unconstitutional  and incompatible with section 42(2) of the 1999 Constitution as amended.

For clarity, section 42(2) of the 1999 constitution of the Federal Republic of Nigeria as amended provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

In Mojekwu v Mojekwu, (1997)7 NWLR 283, a custom discriminating against female children right to inheritance was also held to be contrary to the constitution as it discriminated against the female child.

PUBLIC POLICY TEST:

There have been various definitions of public policy, however we shall adopt the one given by Lord Truno in the English case of Egerton v Brownlow (Earl) (1853) 4 Hl cas 1, 196 to the effect that public policy is that principle of law that posits that no subject can lawfully do that, which has a tendency of being injurious to the public, or which is against public good.

In an instant case, the court had held that the Nnewi custom which permits widows to have post-humous children for their deceased husbands is not only repugnant to natural justice, equity and good conscience but also contrary to public morality and policy as it encourages prostitution and promiscuity apart from stigmatizing the children who shall always be unsure of their biological fathers as a result of the circumstances of their birth.

For clarity, it is important to differentiate between such custom and levirate marriage. While in levirate marriage a woman is remarried and remains with one man, usually the brother of her deceased husband, the condemned Nnewi custom only allows the woman to sleep with any man of her choice, while the children born in such relationship are seen as children of the deceased husband.

Having discussed these tests, we shall now apprise the Egbudu-Akah supposed customary law, which orchestrated the kingship tussle.

THE KINGSHIP TUSSLE:

On 30th September, 2016, His Royal Majesty, Obi Agbogidi Olo-Omee Alfred Okolie (the First) JP joined his ancestors.

Consequently, on October 21, 2016 some group of people enthroned the 3rd surviving son while another group enthroned the eldest son thereafter.

From the above scenario, one wonders whether levirate marriage is repugnant to natural justice, equity or good conscience or offends any part of our constitution, the reason for which a legitimate child should be deprived of his birthright for such anachronistic but inexistent practices.

Egbudu-Akah kingdom does not exist in isolation. It is a part of the geographical entity called Nigeria. Therefore, should the community remain backward and not in tune with modernity in a bid to pursue personal vendetta?

It is submitted that even if such custom that discriminates against children based on the circumstances of their birth existed, it can no longer stand the test of present realities, having been voided by the express provisions of the 1999 Constitution (as amended), thereby offending section 42(2) of the 1999 Constitution of Nigeria (as amended). More importantly, it is repugnant to natural justice, equity and good conscience.

CONCLUSION:

We wish to passionately call on all members of Egbudu-Akah community to, in all sincerity, embrace modernity, eschew hate, envy and the spirit of retrogression that have so far beclouded  many minds.

So far, the Delta State Government has taken the appropriate stand on the matter. What should be done most expeditiously is to find every available means of reconciliation, with a view to moving the community ahead.

The deceased families should be consoled. The destroyed and burnt properties should be rebuilt to enable all those in exile return home and begin a new life. To actualize this goal, everyone should accept the truth, which also is the position of the government.

For couple of months, the social media (facebook) has been awash with pictures, showing the deplorable condition of the only access road to the community. Yet, no one has had the rectitude to officially write the state government for intervention.

No doubt, the inharmonious relationship that exists in the community will first of all be addressed before the government could listen to any appeal for assistance or execute any project in the community. It is of no moment that the State Government generates huge revenue from the Rubber Estate; a supposed asset, which turned the bane of the community. We cannot therefore be making such appeal to the government, while still singing in discordant tunes, as who seeks equity must first do equity.

But for the resumption of hostilities on the night the Staff of Office was presented, which eventually led to the death of 3 young men whose burial location is yet unknown except by their killers, the Delta State Government should have long rehabilitated the community by reason of our earnest petition to the Governor to that effect.

While we still count our losses, let us hope that our wounds shall be healed by time, as we sincerely believe to forge ahead as a people that ever lived together in love and unity.

Moreover, no sane man tests the depth of a river with his two feet. We need not test the efficacy of the law, spending our hard earned money in court. It is said that example is better than precepts! If the courts could void customary laws, which deny children born out of wedlock from inheritance, your guess will be as good as mine in the instant case.

The Supreme Court condemnation of lawyers who encourage clients to pursue such spurious and unfounded claims should always be our watchword.

In Anekwe v Nweke (supra),Ogunbiyi, JSC: had this to say:

I hasten to add at this point 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… one would expect that the days of such obvious differential discrimination are over…Any culture that disinherits…from her father estate or wife from her husband’s property by reason of God’s instituted gender differential should be punitively and decisively dealt with. The punishment should serve as a deterrent measure and ought to be meted against perpetrators of the culture and custom. 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, worrying and flesh skinning.

Some repugnant marriage relationships have been tolerated in Egbudu-Akah despite their outright condemnation by the courts for their odious nature. The woman to woman marriage has given birth to so many families in the community and no one has ever contested the legitimacy or otherwise of such people. A woman to woman marriage exists where a barren woman marries another woman either for her husband, relation or other men in other to bear children through her. In most cases, the married woman sleeps with anyone she likes and procreates children who bear the name of the “woman-husband” and not that of their biological father.

This was the case in Meribe v Egwu [1976] NSCC 181, 186, where the Supreme Court held that any marriage between a woman and another woman is repugnant to natural justice equity and good conscience by virtue of the proviso to section 14 (3) of the Evidence Act, 1958.

The court however added that a barren wife could however procure another woman for her husband to marry, and such arrangement will be valid.

Hear the court:

“…Where there is proof that a custom permits marriage of a woman to another woman, such custom must be regarded as repugnant by virtue of the proviso to section 14(3) of the Evidence Act, 1958… the facts must, however, be closely examined to find out the true nature of the “woman to woman” marriage. Where, as in the instant case, a barren wife had procured another woman for her husband to marry, such arrangement is not caught by the proviso to section 14(3)”.

For clarity, section 14(3) of Evidence Act, 1958 on which the decision was based provides:

“ where a custom cannot be established as one judicially noticed, it may be established and adopted as part of law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regarded the alleged custom as binding upon them. PROVIDED that in case of any custom relied upon in any judicial proceeding, it shall not be enforced as law, if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience”.

Therefore, all we need is tolerance and not divisive tendencies, otherwise let he that has no sin, cast the first stone.

Finally, let’s change our world outlook, even as we look forward to Egbudu-Oma and no longer “Akah”, which seems to have been working against the community.

Prince  Nath.  Obiokolie, LL.B, LL.M (UNIBEN), BL., is an Abuja based Legal Practitioner.