Lecture delivered at a conference for Delta State Women in Lagos in 2010
Ebele Irabor LL.B(HONS), B.L
INTRODUCTION
The Chairman of this occasion, distinguished Ladies and Gentlemen.
I will like to commence by saying thank you to the organizers of this
conference, for the honour bestowed upon me to speak with you all this
afternoon. The issue of the rights of women has always been one of great
interest to me for I am saddened by unjustness of the treatment of us
women by our culture. Culturally, women are often seen as chattels,
owned by men, to be treated as they will. So much so, that in some parts
of this country, when a man dies, his brother is said to inherit his
widow or widows as well as his other properties, all without cognizance
of the woman’s consent.
One of my major concerns is the harsh, dogmatic and rigid
interpretations of the customary law in different parts of our country.
These interpretations provide cover for many injustices, which cannot be
justified under a religion, equity or even common sense towards the
vulnerable amongst us. The relevance of a woman in most of these
interpretations is placed at a low ebb especially when it comes to
determining the fate of the family at the demise of the man. Close study
indicates, however, that many of these interpretations/beliefs of
native customs arise from prejudice and ignorance of the true precepts
of the original custom.
I have found that these conditions continue to exist till this day
essentially because women are generally ignorant of existing laws which
protect them against such treatment.
Well, the good news is that there are laws and we do have rights.
We have the Protocol to the African Charter on Human and Peoples’ Rights
on the Rights of Women in Africa which was adopted by Nigeria in July
2003 during the 2nd Ordinary Session of the African Heads of States in
Maputo, Mozambique. It was considered by women all over the world, as a
decisive step towards securing a legal framework for the protection and
advancement of womens’ rights in Africa. Currently, 40 countries have
signed the Protocol and 22 have ratified it, which enabled it come into
force in November, 2005. This wide and swift ratification underscores
the importance and the concern these Member States attach to the
injustices suffered daily by African women. These injustices take the
form of physical and mental violence, social, economic and cultural
rights abuses, exploitation of vulnerabilities, and the discrimination
and disadvantages arising as a consequence thereof.
Prior to the enactment of the law on Widows Rights in Anambra State, the
reasoning within the polity had been that there was no law on ground
protecting the right of widows. This presumption is however rebuttable.
This is because of the ratification by Nigeria of the Bill of Rights
(the Magna Carter), the Universal Declaration on Human Rights, the
Covenant on Economic and Social Rights, the Covenant on Civil and
Political Rights and the African Charter on Human and People’s Right.
All these Charters provide for the protection of a class of people
against the violation of their rights. An evaluation of these laws
vis-à-vis the rights of widows is been attempted below.
We of course have the Nigerian Constitution of 1999 which protects the
sanctity of the human person and recognises human dignity. Though we do
not have any specific laws on the protection of widows, Nigeria by
virtue of being a party to some international charters on Women and
Human Rights as stated above, is bound by the provisions of these
Charters.
The Wills Laws of the various States as well as the Administration of
Estates Laws also of the various states (which are essentially similar)
which I shall discuss shortly in greater detail, have specific
provisions for inheritance in law. I am aware that we are not all
lawyers here today and so I shall spare you the boredom of legalese
language and get to the point.
Section 49 of the Administration of Estate Law of Lagos State 2005 for
instance grants absolutely to the surviving wife the residuary estate of
her husband where there is no issue. This piece of legislation defeats
the otherwise repugnant provision under customary law where such a widow
would have been considered irrelevant in the scheme of things
pertaining to her husband Estate for the mere fact that she had no
issue. Whether or not she contributed to the wealth acquired by the
husband is irrelevant. Also under subsection (2) of the same section 49,
even where there are issues the widow is still entitled to the personal
chattels of her husband absolutely.
Similarly under Section 2 of the Wills Law of Lagos State, where a
husband in a Will fails to make reasonable financial provision for his
wife in his Will, the Wife can apply to the Court within a period of Six
months from the grant of the probate for such provision to be made
within the Will. Reasonable financial provision would in the
circumstance mean such financial provision as it would be reasonable in
all circumstance of the case of the Wife to receive.
This paper shall attempt to draw attention to and inform you of the
rights of a woman after the demise of her husband. I shall seek to also
advise you on how to manage your joint assets during both your lifetime
and thus forestall acrimony with in-laws upon the demise of one party to
a marriage. I shall explain the differences of a woman’s right under a
customary marriage as opposed to a legal marriage under the Marriage Act
with a view to highlighting areas of common concern, and especially
those customary concepts and legal principles that lend credence to the
provisions adopted by the African Union, for the protection of women in
particular.
What determines the rights of a widow upon the demise of her husband is
entirely dependent on whether or not he has a Will and if he doesen’t,
then it is entirely dependent on the type of marriage she had. If she
was legally married to her husband under the Marriage Act, that is, if
she married at the Marriage Registry or if at church she signed a
Marriage Register which indicated on it that it is a marriage under the
Marriage Act, then she has a legal marriage. If the only marriage
ceremony she conducted with her husband was a traditional Native Law and
Customary marriage, then she has a native law marriage.
WILLS
If a man dies and leaves a valid Will behind, his estate will be
devolved in strict compliance with his wishes, so long as those wishes
are legal. So if for instance, he decides to leave his entire property
to his mistress and child born out of wedlock in his Will, so be it. It
is up to his widow to try to have such a Will set aside in court by
proving that the Will is invalid. Remember S.2 as explained above,
allows a widow to go to court and seek to have a part of her husband’s
estate given to her, where she has been left out of his Will. A widow
can also try to prove ‘Duress’, which means that the mistress put the
late husband under pressure and he wasn’t acting himself, or if the
widow can prove that her husband was mentally incapacitated when he
wrote his Will. This is a lengthy process and would usually delay the
implementation of the Will.
If there is no dispute, the Executors of the Will, who are the people
the husband has chosen to implement his Will after his death, will apply
to the Probate Registry of the High Court for a grant to allow them
execute the Will in accordance with the wishes of the deceased. Please
note, that in instances where the Executors have not conformed to the
wishes of the deceased, the beneficiaries have a right to sue the
Executors and the court will order compliance of the wishes of the Will.
INTESTATE
If a man dies without a Will, then he is said to have died intestate.
What this means is that his properties cannot be shared until a court
order is obtained granting the administration of his estate to court
appointed Administrators. It is usual for the wife or family members to
apply to be Administrators of such estates and if granted, the
Administrators have a mandate to divide the estate amongst the
beneficiaries as soon as is practical. In practice, this is not usually a
smooth process for if the deceased was polygamous, it is not unusual to
have the wives and children fight over who the administrators would be.
This can involve a very lengthy court case, in which time the
properties are stolen by both beneficiaries, family members and indeed,
strangers.
This process is achieved by the beneficiaries such as the widow and her
children, applying to the Probate Registry of the High Court for Letters
of Administration over the estate of the deceased. Once granted, the
Administrators may then decide amongst themselves on how best to divide
the deceased’s properties. Where there is a dispute, or objection by a
close family member as to the choice of Administrators of the estate,
the aggrieved party may file an objection at the High Court, where the
Court would then decide who it feels is best suited to administer the
estate in the best interest of the beneficiary. An Administrator may be
any adult of sound mind and in practice, usually the widow and adult
children of the deceased or close friends or relatives of the family.
MARRIAGE UNDER NATIVE LAW & CUSTOM
In this situation, a widow’s rights to inheritance or to her husband’s
estate or property upon his demise is entirely dependent on the
customary laws of her husband’s tribe. So for instance, if he was
Yoruba, she is not entitled to any of her husband’s property but her
children would be. Further, with the Yorubas, the head of the family, in
the interest of fairness and justice, would decide what sharing
formulae to adopt for sharing the estate of a deceased relative. The
family head could thus choose formula called, ‘ori-ojori’ i.e. all heads
are equal, or under a formular called, ‘idi-igi’, which would apply to a
polygamous setting where property is divided according to each branch
under a mother-head.
In our own native Ika land, a widow is not entitled to her husband’s
estate but her children are, with the first son of course inheriting the
main house the family lived in. So what this means is that, if an Ika
man had several wives, the first son who inherits the family home has a
discretion to send all the wives out of the house. Recent case judgments
at the Customary courts have been inconsistent, as some say that the
house is to be held by the first son in ‘trust’ for the family whilst
some say that it is his entirely. The rest of the property is shared
between both the first son and the rest of the children. I guess, that
this is probably why traditionally there is a preference for male
children, so at least, the mother of a male child has some succor from
her son’s inheritance.
MARRIAGE UNDER THE MARRIAGE ACT
This is also referred to as a legal marriage.
Once a man has a legal marriage, any other subsequent marriage unless he
is divorced, is illegal, null and void. So in law, there can only be
one wife. Needless to say, a legally married woman has more rights over
her husband’s estate upon his demise.
Under the legal marriage, if a man leaves a Will, his wishes under his
Will, will be respected. However, if he dies intestate, without a Will,
his legal wife is automatically entitled to 40% of his estate, and all
his children, in and out of wedlock, share in the remaining 60%. In
Nigeria, a child is legitimate once the father of the child acknowledges
that it is his child. Acknowledgement is displayed by proving that the
deceased paid for the upkeep and maintenance of the child, or that the
child lived with the deceased as his child.
The best way to manage joint assets between a woman and her husband
during their life time to forestall acrimony with in-laws at the demise
of either the husband or the wife is to ensure that these assets are
acquired in the name of both of them as joint owners. Even where a joint
account is to be kept for the benefit of the couple the same principle
should be adopted. More often than not a woman would be cheated off her
full entitlement from these assets just because the husband’s name is
ascribed to such property as the owner.
It should be pointed out that to insist on this point does not as most
people would want to think portray the woman as a greedy and selfish
person. Such thought have no place within common sense but only premised
on sentiments because when the chips are down the true picture of the
reality on ground would make its relevance clear.
WHAT TO DO
- Be as much a part of your husband’s life as possible, so you are aware of his properties.
- If you are able to, get him to include your name or your children’s on all property titles.
- As much as possible, convince him to write a Will as this will ensure that it is you and your children who will benefit from his estate. I do realize that in our society, writing a Will is often seen as a prelude to death, trust me it isn’t. Please ensure that the Will is drafted by a competent lawyer so that there will be no lapses that could lead to a Court of law declaring the Will as invalid, null and void.
- If he has a Will, ensure that it is regularly updated with any new acquisitions.
- Immediately after the funeral, contact a lawyer for proper legal advice. Always get a second legal opinion.
- As much as possible, ensure that you are legally married to your husband. In a situation where you are not the legal wife, please ensure that he writes a Will and includes you and your children in it.
I thank you all for your patience and for the opportunity you have given me to discuss this topic (which I hold so dearly as a woman) with you.
Thank you.