A COMPARATIVE STUDY OF WOMEN’S RIGHTS OF INHERITANCE IN NIGERIA UNDER ISLAMIC LAW - UNIPROJECTS

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A COMPARATIVE STUDY OF WOMEN’S RIGHTS OF INHERITANCE IN NIGERIA UNDER ISLAMIC LAW



A COMPARATIVE STUDY OF WOMEN’S RIGHTS OF
INHERITANCE IN NIGERIA UNDER ISLAMIC LAW



TABLE OF CONTENTS
PAGES
COVER PAGE……………………………………………………….............
CERTIFICATION PAGE……………………………………………………
ABSTRACT………………………………………………………................
DEDICATION……………………………………………………….............
ACKNOWLEDGEMENT…………………………………………………..
TABLE OF CASES.…………………………………………………………
TABLE OF STATUTES…………………………………………………….
TABLE OF TREATIES…………………………………………………….
LIST OF ABBREVIATIONS…………………………………………….....
TABLE OF CONTENTS……………………………………………………
CHAPTER 1
GENERAL INTRODUCTION
1.0.0 INTRODUCTION……………………………………………………..
1.1.0 BACKGROUND TO THE STUDY………………………………….
1.2.0 OBJECTIVES OF THE STUDY……………………………………..
1.3.0 FOCUS OF THE STUDY……………………………………………..
1.4.0 SCOPE OF THE STUDY……………………………………………..
1.5.0 METHODOLOGY…………………………………………………….
1.6.0 LITERATURE REVIEW…………………………………………….
1.7.0 DEFINITION OF TERMS……………………………………………
1.8.0 CONCLUSION………………………………………………………...
CHAPTER 2
AN OVERVIEW OF THE NIGERIAN LEGAL SYSTEM
2.0.0 INTRODUCTION…………………………………………………….
2.1.0 NIGERIAN LAW…………………………………………………….
(A) RECEIVED ENGLISH LAW……………………………….
(B) ISLAMIC LAW OR SHARIA………………………………
(C) CUSTOMARY LAW………………………………………..
(D) LEGISLATION………………………………………………
(E) CASE LAWS…………………………………………………
2.1.1 CONCLUSION………………………………………………………...
CHAPTER 3
ISLAMIC LAW OF INHERITANCE
3.0.0 INTRODUCTION…………………………………………………….
3.1.0 INHERITANCE DURING PRE-ISLAMIC PERIOD………………
3.1.1 ISLAMIC RULES OF INHERITANCE………………………….
3.1.2 INEQUALITY OF SHARES OF WOMEN AND MEN…………
3.2.0 CONCLUSION…………………………………………………….
CHAPTER 4
CUSTOMARY LAWS OF INHERITANCE OF IGBO, BENIN AND
YORUBA PEOPLE OF NIGERIA
4.0.0 INTRODUCTION…………………………………………………….
4.1.0 IGBO CUSTOMARY LAW OF INHERITANCE………………….
4.2.0 TYPES OF PROPERTY TO BE INHERITED AND PERSONS
WHO CAN INHERIT………………………………………………..
4.2.1 METHODS OF DISTRIBUTION OF PROPERTY AND ORDER
OF PRIORITY OF INHERITANCE AMONG RELATIONS……..
4.3.0 THE BENIN CUSTOMARY LAW OF INHERITANCE…………..
4.3.1 RULES OF INHERITANCE UNDER BENIN CUSTOMARY
LAW…………………………………………………………………..
4.3.2 JUDICIAL APPROACH TO WOMEN’S RIGHTS AND
THE CONCEPT OF IGIOGBE…………………………………..…
4.4.0 YORUBA CUSTOMARY LAW OF INHERITANCE…………….
4.4.1 PERSONS ENTITLED TO INHERIT PROPERTY………………
4.4.2 METHOD DISTRIBUTION OF PROPERTY………………………
4.5.0 CONCLUSION……………………………………………………….
CHAPTER 5
COMPARISON BETWEEN ISLAMIC LAW OF INHERITANCE,
IGBO, BENIN AND YORUBA CUSTOMARY LAWS OF INHERITANCE
5.0.0 INTRODUCTION………………………………………………………
5.1.0. DIFFERENCES AND SIMILARITIES, BETWEEN ISLAMIC
LAW OF INHERITANCE AND THE CUSTOMARY LAWS
OF INHERITANCE OF THE IGBO, BENIN AND YORUBA
PEOPLE……………………………………………………………….
5.1.1. REASONS FOR THE DIFFERENCES AND SIMILARITIES
BETWEEN THE ISLAMIC LAW OF INHERITANCE
AND THE CUSTOMARY LAWS OF INHERITANCE OF
THE IGBO, BENIN AND YORUBA PEOPLE……………………
5.2.0 CONCLUSION……………………………………………………….
CHAPTER 6
6.0.0 GENERAL CONCLUSION
6.1.0 SUMMARY………………………………………………………........
6.2.0 FINDINGS……………………………………………………….........
6.3.0 RECOMMENDATIONS …………………………………………….
BIBLIOGRAPHY
ARTICLES IN JOURNALS…………………………………………………..
ARTICLES ON THE INTERNET……………………………………………
BOOKS………………………………………………………...........................
CHAPTERS IN BOOKS……………………………………………………..
THESES………………………………………………………..........................
CHAPTER 1
GENERAL INTRODUCTION
1.0.0 INTRODUCTION
Gender issues are topical throughout the world as there seems to be an increasing
demand for more equitable treatment of women in all human actions. Many women
throughout the world are campaigning, organising and working together to improve their
lives. Their aims, methods and interests are various. Some are working in women’s
refuges, some are campaigning against pornography, some are demanding total legal
equality with men, some want improved maternity leave, some are campaigning for
abortion on request etc. Hence there is no united women’s movement.
However, they are all concerned with improving the status and promoting the
rights and interests of women. These women’s movements are usually described as
‘feminist’. Alison Jaggar1 identifies feminism with the various social movements which
are dedicated to ending the subordination of women.
The feminist’s claim is that women should have the same rights and freedom as
men. In view of their various aims, methods and interests, feminist theory is not uniform.
Many writers have identified three main theories of feminism namely liberal, socialist
and radical feminism.
The liberal approach is that women have as much right as men. The aim of the
liberal approach is formal and sexual equality for women and men. Although the
liberalism’s claim for formal sexual equality for women and men has been successful and
resulted in the acquisition of rights for women to be educated, to vote and to stand for
political office etc, some feminists disagreed with the liberal approach because they feel
that the approach recognises certain values that are mainly male.
Bryson2 says the socialist theory of feminism like liberalism, promotes equal
rights and opportunities to all individuals. However, unlike liberalism, it emphasises
economic and social rights and freedom from exploitation. Socialism allows women to
recognise the ways in which men are also oppressed and to work with them to achieve a
more equitable society in the interest of all.
1 Cited by Bryson Valerie in Feminist Debates Issues of Theory and Political Practice (Palgrave
New York 1999) page 5.
2 Bryson Valerie op cit page 16
The radical feminist approach sees patriarchy as the oldest and most significant
form of oppression for women. The radical view is that women are an oppressed group
who has to struggle for their liberation against their male oppressors. Women must
recognise that it is men who oppress them and that politics has to be redefined to include
family and personal relationships.3
This study supports the socialist approach that women should work with men to
achieve an equitable society in the interest of all. It is necessary that women should
collaborate with men so as to enlighten the men about the injustice which inequality of
the rights of men and women creates. The enlightenment of men in this regard could
eventually eliminate the unpopular misconception of men that women are inferior.
However, the collaboration of women with men should not preclude activities that are
solely women.
Despite the differences in their approaches, the feminists’ claim that women
should have the same rights and freedom as men which has been largely conceded in
western society has led to concerted efforts by international communities to hold
conferences on the elimination of gender inequality. Consequently, many international
instruments have been promulgated by the General Assembly of the United Nations to
address gender inequality. One important international instrument as regards women’s
rights is the Convention on Elimination of All Forms of Discrimination Against Women
3 Ibid. page 27
(CEDAW). CEDAW provides guidelines for legal policy and programme development
to promote equality as a means of justice.4
Article 5 of the convention obligates state parties to the convention to take action
to modify custom and eliminate prejudices which are based on inferiority or superiority
of either sexes or stereotyped roles for men and women. According to Freeman5 the
examination of custom, the elimination of prejudices and the development of measure to
promote equality in practice as well as in law are the tools for justice.
Article 5 of the convention is relevant to the title of this research because the
customary laws which this research examines are generally biased against women as they
do not accord women equal rights with men as regards inheritance. Generally, under
customary laws of the various tribes in Nigeria, women are not allowed to inherit the
estates of their late husbands and fathers. However, under some customary laws, women
are given limited right to inherit the estates of their husbands and fathers. The customary
laws which deny women of the right to inherit the estates of their husbands and fathers
pose some challenges to women because on the death of the men, the widows and
children are left destitute by surviving relations of the men who inherit the estates of the
deceased.
4 Kerr Joanna (ed) Ours by Rights: Women’s Rights as Human Rights (Zed Books London 1993)
page 93.
5 Freeman Marsha A. ‘Women Development and Justice. Using the International Convention on
Women’s Rights’ in Kerr (ed) Ours by Right: Women’s Rights as Human Rights. op cit page 93
Islamic law, on the other hand, allows women to inherit certain portions of the
estates of their husbands and fathers. Many muslim women are however denied this right
by surviving relatives of their deceased husbands who prefer to apply customary law of
inheritance to the distribution of the property of the deceased muslims.
Customary laws are the indigenous laws of the people. They are founded on the
social norms or cultures of the people. They are a reflection of the habits and social
attitudes of the people they govern, and they derive their validity from the consent of the
people they govern.6 There is no single set of customary laws of inheritance in Nigeria
because customary laws are tribal in origin. They operate within tribes. Therefore,
customary laws vary from one tribe to another and also from one community to another.
Generally, customary laws are unwritten in the sense that they cannot be found in statute
books. It should be noted however, that in recent times, some customary laws of
inheritance have been put in writing. Examples are the customary laws of inheritance of
former Anambra and Imo states which have been written in a customary law manual7 and
the customary law of inheritance of Benin which has also been written in a hand book 8
6 Eshugbayi Eleko v Government of Nigeria (1931) A. C. 662 at 673 where the Privy Council said
“it is the assent of the native community that gives a custom its validity…”
7 Manual of Customary Law obtaining in Anambra and Imo States of Nigeria (Government Press
Enugu Nigeria 1977).
8 A Handbook of Benin Customs and Usages (Eweka Court. The Palace Benin City Nigeria 1996).
Islamic law, which is generally regarded as customary law9, unlike the indigenous
customary laws has religious basis. According to Islamic scholars, Islamic law includes
two basic elements. The divine which is unequivocally commanded by God or His
messenger and is designated as Sharia in the strict sense of the word; and the human
which is based upon and aimed at the interpretation/ or application of Sharia and is
designated as Fiqh or applied Sharia.10
The divine sources of Islamic law are the Qur’an and the Sunna of Prophet
Muhammad while the human components are Ijma, Qiyas, Urf, Istihsan and Maslaha
under the broad heading of Ijtihad. The Holy Quran is the first and primary source from
which all the teachings and laws of Islam are derived. It is the pivot upon which all the
other sources revolved. Briefly, it is the ground norm of Islamic law (the Sharia)11. The
9 S. 2 of the Native Courts Law 1956. CAP 56 Laws of Northern Nigeria 1963 states: ‘Native law
and custom includes muslim law.’ However in the case of Alkamawa v Bello, (1998) 6 SCNJ 127
the Supreme Court held that Islamic Law is not and has never been customary law. Court stated
thus, “Islamic law is not the same as customary law as it does not belong to any particular tribe. It
is a complete system of universal law, more certain and permanent and more universal than the
English Common Law” at p. 128
10 Fayzee, Asaf A.A, 1964 Outlines of Muhammad law (Oxford University Press 3ed London)
Faruki Kemal A. (1962) Islamic Jurisprudence (Karachi Publishing House Pakistan) p.18,
Coulson, N.J. 1964. A history of Islamic Law. (The University Press Edinburg) p.85; Schacht J.
1964 Introduction to Islamic law (Clarendon Press Oxford) and Shorter Encyclopedia of Islam pp
102-107; 524 -529) cited by Sada I.N. in his article ‘The Nature of Islamic Law, A Rigid or
Dynamic system? A critique’ (2000 – 2001) vol. II No 11(Ahmadu Bello University Journal of
Islamic Law.
11 Sada I.N, ‘The Nature of Islamic Law; A Rigid or Dynamic System? A Critique’ (2000-2001) vol.
11 No 11 Ahmadu Bello University Journal of Islamic Law.
Holy Quran is the exact words of Allah as revealed to mankind through Prophet Muhammad. The
secondary source is the Sunna of Holy Prophet Muhammad, that is to say, his deeds, utterances
and his indirect authorization.
The human components of Islamic law under the broad heading of Ijtihad include
Ijma (consensus) Qiyas (analogical deduction), Istihsan (preference) Istislah and
Maslahah (public interest and welfare). These other components of Islamic law are
aimed at interpreting, expounding, understanding and applying the injunctions of Sharia
to practical day to day affairs of the Muslim community. This is because according to
Ramadan Said12, the Quran and Sunna established the general rules without going into
details.
The source of Islamic Law rule of inheritance as it affects women’s rights of
inheritance in their capacity as wives and daughters is the Holy Quran which is the first
and primary source of Isla0ic law.
This study discusses the rules of inheritance as they affect women’s rights as
wives and daughters under customary laws of some major tribes in Nigeria and Islamic
law of inheritance as regards this category of women.
1.1.0 BACKGROUND TO THE STUDY
12 (1970) Islamic Law its Scope and Equity p.64. Cited by Sada I.N. op. cit page 171
Generally, most Nigerians both literates and illiterates are ignorant of the laws
that regulate their private lives until they fall foul of such laws or there is a problem
which affects their lives or the lives of their relatives as a result of the application of such
laws. One area of law which many Nigerians are ignorant of or for which they have
shown apathy is the law of inheritance.
Many Nigerians contract their marriages under customary law and so the
customary laws of inheritance will be applied to the distribution of their estates after their
death if they leave no valid Will.
As earlier stated, many of the customary laws of inheritance deprive women of
the right to inherit the estates of their deceased husbands and fathers. Some Nigerians are
aware of the fact that if they die, their wives will not have the right to inherit their estates
because of their customary laws of inheritance. This category of Nigerians does not
bother to question such laws probably due to their carefree attitude. Some believe that
after their death, their relatives will take care of their wives, children and property.
Unfortunately, this apathy or carefree attitude to customary laws of inheritance
which deprive widows of the right to inherit the estates of their husbands has been
creating problems for widows. This is because in many instances, the relatives whom
their deceased husbands trusted while alive to take care of their children and property
sometimes convert the estates of the deceased to their own thereby leaving the widows
and children in destitute.13
It is therefore necessary to awaken the men folk to the unfairness of the
customary laws of inheritance which do not entitle widows and their daughters to inherit
the estates of their deceased husbands and fathers and the consequential hardships such
women suffer.
1.2.0 OBJECTIVES OF THE STUDY
One of the objectives of this study is to examine the status of women vis-à-vis the
rights of inheritance under customary and Islamic laws. Generally, under customary
laws, a wife is not entitled to inherit the estates of her late husband. Similarly, the right of
inheritance of a girl-child is also curtailed. However, Islamic law allows women in their
capacity as daughters, wives, mothers and sisters to inherit the estates of their relatives. It
is therefore clear that the customary laws of inheritance are discriminatory against
women.
The second purpose of this study is to assess the adequacy or otherwise of the
laws relating to women’s rights of inheritance under the customary laws of inheritance of
the Igbo, Benin and Yoruba peoples of Nigeria.
13 Socio-Economic and Legal Rights of Women: The challenge (Women’s Aid Collective [WACOL]
Nigeria 2006) pg. 5. WACOL is a non-governmental, non-profit making organisation in Nigeria
which is gender conscious working towards gender equality and human rights for all.
Furthermore, the aim of this study is to examine which of the customary laws of
inheritance of the three ethnic groups considered in this study has any similarity with
Islamic law.
Finally, the purpose of this study is to sensitize the legislatures, policy makers
and other concerned stakeholders on the need to reform or abolish the discriminatory
customary laws of inheritance to give women right of inheritance.
1.3.0 FOCUS OF THE STUDY
In the discussion of the customary laws of inheritance of the ethnic groups
covered by this research, attention is focused on the discriminatory aspects of the laws,
that is to say, discrimination that exists on the types of property to be inherited and the
persons who are entitled to inherit what property.
As regards the Islamic law of inheritance, the study discusses the quantum of
shares to women in their capacities as wives and daughters in the estates of their
deceased husbands and fathers as contained in the Holy Quran which is the divine source
of Islamic law.
In this connection, the research considers the following questions: Are women
entitled to inherit the property of deceased male persons and what are the rules of
inheritance? Do the customary laws of inheritance treat men and women equally? Are
there differences or similarities between the customary laws and the Islamic law as they




REFERENCES
JAIYEOLA MULIKAT BOLAJI (2015) a comparative study of women’s rights of inheritance in nigeria under islamic law and some customary laws, MSC thesis