e-sRC

1 CHAPTER ONE: GENERAL INTRODUCTION 1.1 Introduction Customary Land law in Nigeria from earliest time is one of the oldest systems in Nigeria that remained relevant until the coming of the Europeans in the late 19th century. Customary land law and in Southern Kaduna predates the time of the creation of the place referred to today as ―Southern Kaduna‖. The historical background of customary law in relation to land in Southern Kaduna is similar in some areas to other customs indigenous to Nigeria. However some minor differences exist, particularly as regards the right of women to own immovable property, i.e. real property rights of women in Southern Kaduna, which forms the basis of the entire discussion in this work. The term ―right‖ refers to the freedom and liberties of human beings to live with dignity. ―All human beings are born free and equal in dignity and rights‖1. Women‘s right as a term refers to the freedoms inherently possessed by women and girls of all ages, which may be institutionalized, ignored or illicitly suppressed by law, custom and behavior in a particular society2. These liberties are grouped together and differentiated from broader notions of human rights because they often differ from the freedoms inherently possessed by or recognized for the male folk. Although the activism surrounding this issue claims an inherent historical and traditional prejudice against the exercise of rights by women, but nonetheless, the emergence of municipal, regional and international laws over time have indeed relegated this claim. 1 Article 1, Universal Declaration of Human Rights by the United Nations General Assembly (1948) 2Women‟s right, definition in Webster's New World College Dictionary,4th Edition, Wiley Publishing, Inc., Cleveland, Ohio, 2010 on <http://www.yourdictionary.com/women-s-rights>, Accessed on the 15th August, 2014. Used by arrangement with John Wiley & Sons, Inc.
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Women‘s right is usually associated with the right: to vote (universal suffrage), to own property, and to marital, parental and religious freedom.3 This work centers on women‘s right to property especially under the customary law of the people of Southern Kaduna in Nigeria.
Upon her marriage, customary law entitles a woman to the provision of a home by her husband, even though a woman under some customs is treated like a property and subject of testamentary disposition4. While married to her husband, she is entitled to use such chattels as provided by him and to farm and harvest from any portion of the land which is allotted to her. Her right, however, is not proprietary for she evidently cannot hold or dispose of any part of the property.5 She does not by virtue of her marriage become co-owner or joint-owner of her husband‘s property nor does her marriage secure for her the right to inherit such property on her husband‘s death6.The above is the position in Southern Kaduna state in Nigeria. As Justice OPUTA puts it: ―A woman cannot own land in her own right in many communities as custom of such communities demand. She only has custody of any piece of land the husband permits her to cultivate or else holds any land in trust for her male children only…7
3.Oyelade O S,Women‘s Rights in Africa: Myth or Reality, for Dept of International Law, Faculty of Law, Obafemi Awolowo University,Ile- Ife, P.4. He observed also that under the UDHR, ―all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.‖ It goes further: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This is the position of Article 2 of the UDHR
4Abdulraheem, N. M,Women’s Marital Rights: Perspectives from Nigerian Legal System, available athttps://www.unilorin.edu.ng/…/WOMENS_MARITAL_RIGHTS_PERSPECTIVES_FROM_NIGERIAN_LEGAL_SYSTEM.pdf, Accessed on the 21st September, 2014
5Uzodike, E.N.U. ―Women‘s Right in Law and Practice: Property Rights in Women, in: Women in Law (ed) Obilade, A.O (1997)p 305
6Ibid
7 ibid
3 1.2 Statement of the Problem Women constitute a major group of human kind who are particularly vulnerable to exploitation. Despite statutory provisions and judicial authorities upholding women‘s rights as was done in the cases of Mojekwu v Mojekwu8 and Mojekwu v Ejikeme9, the reality is that women are still denied equal opportunity to inherit property with men. Some women still lose out completely from their husband‘s estate, due to ignorance and strict application and observance of repugnant customary practices, which prejudice against the status of women in the society and reduce them to mere second class citizens after men and cuts their bargaining power in economic, social and political affairs in a given place and at a given time. They are also usually scared to explore the option of litigation in some other cases. This is perhaps because of the phobia associated with being a litigant in a court of law in Nigeria resulting from illiteracy or lack of enlightenment as regards their fundamental rights and the cost of financing the case. In order to have a healthy and happy society in Southern Kaduna and throughout the world, particular attention has to be paid to protect the rights of women to own and inherit property which happens to be an ongoing struggle begging for a wider platform for the consideration of options and chances available to protect the property rights of women in Southern Kaduna as has been set out to do in this thesis. The legal rights of the Nigerian women to own and inherit property are contained in various municipal laws and international instruments. This research is to compare the customary practices in Southern Kaduna with regards to the right of women to own and inherit property with some international instruments such as the UN, CEDAW, the African women‘s protocol, The Nigerian Constitution, as well as other international and regional statutes and conventions for women‘s rights protection. 8 (1997) 7NWLR, pt 521 at 283 9 [2000] 5 NWLR 402
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In other words, the Problems of this research is best captured thus: In Southern Kaduna, when a head of family dies, for example, a father, or male member is entitled to inherit landed properties of their father. In other words, they can be given a portion of the family land absolutely or temporarily, to the exclusion of female members. In other words, women are not entitled to a portion of land left behind by their father. Secondly, if a husband dies, his wife is not entitled to a house her husband left behind. She cannot inherit it and cannot be given absolutely a part of her husband‘s landed property. This is because under customary law, strictly, she is not part of her husband‘s family. Family membership is acquired through blood relationship. She is related to the husband by affinity. However, her disqualification in her father‘s property is purely based on the fact that she is a woman. If she is given absolute ownership of a portion of her father‘s property, there is the likelihood that the land will pass to her husband‘s family forever. This would be a minus to her father‘s family. It is because of this that a female does not inherit landed property in most communities in Southern Kaduna. This problem continues up to the present day unabated.