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Present Euphoria of Judicial Pronouncements 

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JUDICIAL ATTITUDE TO IGBO CUSTOMARY LAWS ON THE INHERITANCE RIGHTS OF 

WOMEN: BEYOND THE PRESENT EUPHORIA OF JUDICIAL PRONOUNCEMENTS* 

 

Abstract 

Much judicial and academic thought has gone into the subject matter of the right of women to inherit real property 

among the Igbo people of Nigeria. A lot of sentiments bothering on emotions have attended the discourse and the 

adjudicatory process culminating from cases on that subject. Most of the sentiments seem to bother on the 

personalities and circumstances involved in the individual cases and the fact that the cases were coming at an era 

that feminism seems to have succeeded in affecting the perception of our immediate society to an extent that 

anything that seems to put a female at a disadvantage is seen as barbaric and anti-social. Igbo customary laws 

bearing on the inheritance rights of women have come under unmitigated battering in courts in the most recent 

past. Whether such scathing remarks are justifiable enough or not is of the essence of this work which is aimed at 

examining the laws concerning the inheritance rights of women with a view to ascertaining whether the Customary 

Law of the Igbo people of Nigeria on the subject matter deserves the invectives and odium frequently poured on 

it at each judicial determination. 

 

Keywords: Inheritance, Customary Law, Repugnancy, Family land, Rights of women 

 

1. Introduction 

From the Biblical account of the creation of man, we read that God created them male and female. The man and 

his wife from the beginning were made for different roles, the man first and then the woman to complement him. 

The man was obviously put in charge of the arrangement by God that was why the man was made accountable 

for whatsoever went wrong in that home1. However with the advent of western education and civilization, 

agitations began, first for the liberation of women, then for the equality of the man and woman. Women advocacy 

groups and those that have sympathy for their message have succeeded in inundating the world with the message 

of Feminism to an extent that institutions are today labeled as good or bad depending on their level of gender 

compliance. Governments all over the world have come under strong criticism and even brought down for their 

failure to be gender sensitive. The agitations to accord women with equal rights as men came to a head at the 

world women conference held in Beijing, China where the women reaffirmed what is today popularly referred to 

as ‘Affirmative Action’. By this declaration, women started and have consistently demanded that at least 35% of 

appointments into positions in Government should be reserved for women to occupy. 

 

It is not arguable whether or not feminists and their sympathisers have succeeded. At least in Nigeria, in spite of 

our ‘third world’ status, laws have in the recent past been tinkered with in favour of the equality of male and 

female persons2. Particularly, Section 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) 

has been raised as a bullwalk for the protection of the rights of the female gender in Nigeria. Section 42 of the 

Constitution in that regards therefore has provided the yardstick for measuring the fairness, reasonableness and 

acceptability of the provisions and content of every legislation that may touch on the rights of women. However, 

an unforeseen and unfortunate trend seems to be emerging from the rampaging crusade of feminism. Hitherto, the 

application of customary laws to Nigerian societies had proceeded independently and without regards to the 

changing fortunes of the received English Laws largely on account of the unwritten nature of customary laws and 

its ability to change with time as society evolves from one age to another. Secondly, the fact that customary laws 

were attached to specific societies and remained acceptable as long as it was serving the interest of its host society 

had given it the quality of resilience which has helped customary laws to survive several years of civilization. In 

that regards it became very difficult to classify a customary law as good or bad outside the context of the society 

where it is applicable.  

 

There is therefore, every need to re-examine the attitude of the Nigerian courts led by the Supreme Court of 

Nigeria towards the Igbo customary law on the right of women to inherit the landed property of a deceased 

husband or father with a view to finding justification or otherwise for the attacks that go out to the said customary 

laws on each occasion of judgment of court. In doing this, there is need to examine statutory enactments on the 

subject as against the contents of the Igbo Customary laws. Much of the customary laws discussed herein are as 

they appeared from the judgments of the appellate courts in Nigeria.  

 

                                                           
*By Stephen Chuka UNACHUKWU, LLM, PhD, BL, Lecturer, Department of Public/Private Law, Chukwuemeka 

Odumegwu Ojukwu University, Igbariam Campus. Phone No. 08035550743. E-mail: stevechuka@gmail.comor 

sc.unachukwu@coou.edu.ng 
1See the book of Genesis chapters 1 and 2 
2See particularly Section 42 of the 1999 Constitution of the Federal Republic of Nigeria that provides for freedom from 

discrimination on grounds of sex, religion etc. 

mailto:stevechuka@gmail.comor
mailto:sc.unachukwu@coou.edu.ng


 African Customary and Religious Law Review 1 (2020) 

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It must be stated at the outset of this discussion that Igbo Customary Laws on the inheritance right of women are 

only applicable when an intestate husband was married to his wife under Customary Law. Where the marriage 

between the deceased and his widow was done under the Marriage Act, succession to the estate of the deceased 

shall be governed by statute law. It is therefore up to the people entering customary law marriage to know what 

to expect in the event of their spouses dying intestate3.  

 

2. Some Notable Judicial Decisions on the Igbo Customary Law on the Inheritance Rights of Women  

 

Onyibor Anekwe & Anor v Mrs. Maria Nweke4 

The facts of this case which bothers on the repugnancy rule and the Customary Law of Awka people of Anambra 

State in respect of the Inheritance Right of Women, briefly put are as follows: 

 

The respondent initially instituted this suit against the appellants before the customary court. However, it was 

subsequently transferred to the High Court of Anambra State, Awka. The respondent claimed against the 

appellants jointly and severally, in the main, for a declaration of statutory right of occupancy to a piece or parcel 

of land which is situate at Amikwo village, Awka; injunction restraining the respondents, their servants and agents 

from further trespass to the said piece or parcel of land, and other reliefs. The appellants denied the respondent’s 

claim and also counterclaimed for a declaration of statutory right of occupancy over the same land in accordance 

with the native law and custom of Awka people. The 2nd defendant who died in the course of the proceedings was 

substituted with the 1st appellant. It was common ground between the parties that the respondent’s husband, 

Nweke Nwogbo, was the younger and half brother of the appellant’s father, Anekwe Nwogbo. Nweke Nwogbo 

(the respondent deceased husband) and Anekwe Nwogbo (the appellant’s deceased father) were sons of Nwogbo 

Okonkwo Eli who died outside the home town of the parties. Obiora Okonkwo Eli was the senior brother (half 

brother) of Nwogbo Okonkwo Eli, who did not have a compound of his own at Awka at the time of his death. 

After the death of Nwogbo Okonkwo Eli, his two widows who had a son each (the husband of the respondent and 

the father of the appellants) went with their sons to live with Obiora Okonkwo Eli before they were eventually 

moved by Obiora Okonkwo Eli into the compound now known as No. 19, Ogbuagu Lane, Amikwo village, Awka, 

part of which is now in dispute. 

 

The respondent contended that Obiora Okonkwo Eli erected two separate bungalows on the subject property and 

shared them between the sons of Nwogbo Okonkwo Eli (i.e. the appellants’ father and respondent’s husband) and 

that she, (the respondent) inherited the portion given to her husband upon his death. It was also the respondent’s 

case that after her husband died and was buried in their own house immediately before the civil war, she continued 

to live in the portion of land as was shared between her husband and the appellants’ father. The appellants’ father 

asked her to vacate her house on the ground that she had no male child in the house. The respondent, therefore, in 

the quest of asserting her right of inheritance, affirmatively contended on her claim that a woman according to the 

customs of Awka people inherits the property of her husband, whether she has a male child or not; that in 

confirmation of the foregoing assertion, she conclusively relied on the final arbitration made by the Ozo Awka 

society on the matter, which she claimed was not controverted by the appellants. 

 

On the other hand, the appellants contended that the subject property in question was never partitioned and shared 

by Obiora Okonkwo Eli for the sons of Nwogbo Okonkwo Eli. Rather that at the time Obiora Okonkwo Eli moved 

them into the subject property, he only built a mud house therein and that it was their (appellant’s) father who 

(having inherited the compound as the first and only surviving son of Nwogbo Okonkwo Eli) eventually erected 

two buildings on the land out of which he gave two rooms to the respondent to occupy as a tenant at will. It was 

also the appellants’ case that the subject land (now known as No. 19 Ogbuagu Lane Amikwo village, Awka) was 

the homestead of Okonkwo Eli and that by the native law and custom of Awka people, the land was inherited by 

the appellants’ grandfather, Nwogbo Okonkwo Eli and then by the appellants’ father, Anekwe Nwogbo, as the 

first and only surviving son of Nwogbo Okonkwo Eli and upon the death of Anekwe Nwogbo, same had been 

inherited by the 1st appellant as the eldest son of the late Aniekwe Nwogbo. 

 

Upon the conclusion of hearing, the trail court in its judgment on 13th March, 2008 found in favour of the 

respondent and granted her claims. It then dismissed the appellants’ counter-claim. Dissatisfied, the appellants 

appealed to the Court of Appeal. The Court of Appeal in its judgment on 14th February, 2012 dismissed the 

appellants’ appeal and affirmed the judgment of the trial court. Still dissatisfied, the appellants appealed to the 

Supreme Court. At the Supreme Court, the appeal turned on whether the respondent who has no male child could 

inherit the property of her late husband. It was held, unanimously dismissing the appeal that the custom of Awka 

people of Anambra State to the effect that a married woman without a male issue cannot inherit landed property 

                                                           
3 See Joy Ngozi Ezilo: Property War in the South-East: Never Again will Igbo Women be Denied of Their Inheritance published 

at Vanguardngr.com, 4/9/2016 visited on 4/8/2017 
4 supra  



UNACHUKWU: Judicial Attitude to Igbo Customary Laws on the Inheritance Rights of Women: Beyond the 

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of her late husband, pleaded and relied upon by the appellants in the instant case, is barbaric and repugnant to 

natural justice, equity and good conscience and ought to be abolished5.  

 

Per Ogunbiyi, J.S.C  

I hasten to add at this point that the custom and practice of Awka people upon which the 

appellants have relied for their counter claim is hereby out rightly condemned in very 

strong terms. In other words, 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 perpetuation of male dominance which 

is aimed at suppressing the right of the womenfolk in the given society. One would expect 

that the days of such obvious differential discrimination are over. Any culture that 

disinherits a daughter from her father’s estate or wife from her husband’s property by 

reason of God-instituted gender differential should be punitively and decisively dealt with. 

The punishment should serve as a deterrent measure and ought to be meted out against the 

perpetrators of the culture and custom.(underlining mine for emphasis). 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. It is indeed much more 

disturbing especially where the counsel representing such perpetrating clients, though 

learned, appears comfortable in identifying, endorsing and also approving of such a 

demeaning custom. In a similar circumstance as the case under consideration, this court in 

Nzekwu vs. Nzekwu (1989) 3 SCNJ page 167; (1989) 2 NWLR (pt. 104)373 held amongst 

others and ruled ‘that the plaintiff had the right of possession of her late husband’s property 

and no member of her husband’s family has the right to dispose of it or otherwise whilst 

one is still alive’. The impropriety of such a custom which militates against women 

particularly, widows who are denied their inheritance, deserves to be condemned as being 

repugnant  to natural justice, equity and good conscience. The repulsive nature of the 

challenged custom is heightened further in the case at hand where the widow of the 

deceased is sought to be deprived of the very building where her late husband was buried. 

The condemnation of the appellants’ act is in the circumstance without any hesitation or 

apology6.’ 

 

 

Per Muhammed, J.S.C 

It baffles one to still find in a civilized society which cherishes equality between the sexes, 

a practice that disentitles a woman (wife in this matter) to inherit from her late husband’s 

estate, simply because she had no male child from the husband. This practice, I dare say, 

is a direct challenge to God the Creator who bestows male children only; female children 

only (as in this matter), or an amalgam of both males and females, to whom He likes, He 

also has the sole power to make one a barren. There is nothing virtually one can do if one 

finds oneself in any of the situations. To perpetuate such a practice as is claimed in this 

matter will appear anachronistic, discriminatory and unprogressive. It offends the rule of 

natural justice, equity and good conscience. That practice must fade out and allow equity, 

equality, justice and fair play to reign in the society7. 

 

Per Ngwuta, J.S.C 

My noble Lords, the custom pleaded herein, and is a similar custom in some communities 

wherein a widow is reduced to chattel and part of the husband’s estate constitutes, in my 

humble view, the height of man’s inhumanity to woman, his own mother, the mother of 

nations, the hand that rocks the cradle. The custom of Awka people of Anambra State 

pleaded and relied on by the appellant is barbaric and takes the Awka community to the 

era of cave man. It is repugnant to natural justice, equity and good conscience and ought 

to be abolished8.  

 

 

 

                                                           
5See Lewis v Bankole (1908) 1 NLR 81; Eleko v Secretary, Govt. of Southern Nigerian (1931) AC 662; Dawodu v Danmole 

(1962) 2 SCNLR 215 
6 At pages 421-422, Paras F-E 
7At page 423, Paras, A-C 
8At page 425, Paras E-H 



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Per Ariwoola, J.S.C 

As clearly shown in the pleadings exchanged by parties and the testimonies adduced at the 

trial, the respondent challenged the action of the appellants in attempting to disinherit her. 

Perhaps it is necessary to state what the appellants shamelessly stated in their pleadings 

in defence to the respondent’s action before the trial court. The averments ready thus: 

paragraph-‘16. The defendants state that under Awka native law and custom a married 

woman without a male issue cannot contest title to land of her later husband with the male 

member(s) of her late husband’s family. More so, when the defendant’s father inherited 

the present land in dispute and has before this time even further asserted ownership by 

planting economic trees thereon, to wit: coconut, banana, pears, orange, avocado etc. In 

the oral testimony, the appellants had stated that the reason why their custom forbids the 

respondent from entitlement to her matrimonial family was the fact that she ‘has six female 

children without a single male child’. By this, it meant that the said six female children of 

the respondent were denied their entitlement to inherit their father’s property simply 

because of their gender. There is no doubt, this custom pleaded and canvassed by the 

appellants against the respondent is to say the least, repugnant to natural justice, equity 

and good conscience. It is even barbaric. One wonders whether it was the respondent’s 

making what sex the pregnancy that her late husband made with her will come out with. 

Indeed, such a custom that discriminates against female children is a challenge on God 

Almighty who is the maker and producer of pregnancy will produce what type of sex male 

or female. It will therefore be inhuman and injustice to discriminate against a female child 

on her father’s property or a widow on the ground that she has only female children for 

her later husband9. 

 

The author had deliberately reproduced at length some of the pronouncements of the justices of the Supreme Court 

that sat on the instant appeal for the sake of emphasis as it pertains to the repugnancy of the native law and custom 

of Awka people of Anambra State in particular, concerning the right of widows to inherit the landed properties of 

their deceased husbands and the right of female children to inherit the landed properties of their fathers. This very 

question of law has attracted a lot of judicial comments before now and has always evoked emotions and emotional 

outburst whenever it arises and such was the case in this very appeal.  

 

The invectives poured on the customary law of Awka people in this case, as in other cases on the subject matter 

before now, is understandable for the fact that cases bothering on affront on the right of widows and female 

children to inherit the deceased arose from human situations and are touching on the rights of existing human 

persons whom the perpetrators of the ‘obnoxious customs’ sought to put into great hardship and deprivations. 

However, there are some issues that may need to be put in proper perspective for a complete and proper 

appreciation of the content and scope of these customary laws. The limitations on the practicability and 

implementation of the law as created by the progressive and egalitarian decisions of the superior court lead by the 

Supreme Court of Nigeria as it concerns customary laws of inheritance in many parts of Igbo land ought to be x-

rayed. Before we go into a discussion of the issues arising from these decisions, it would be good to put before us 

the facts and decisions in respect of few other cases in which the courts have descended heavily on Igbo customary 

law of inheritance as being repugnant to natural justice, equity and good conscience. 

  

Mojekwu vs. Mojekwu10 

The facts bothered on whether the appellant who was the plaintiff at the High Court could inherit the property of 

Okechukwu Mojekwu (the deceased husband of the respondent who died without a male child having lost his 

only male child, Patrick Adina to the Nigerian Civil War) by virtue of the ‘Oli-ekpe’ Customary law of succession 

of Nnewi people of Anambra State. It was held, unanimously dismissing the appeal that:   

 

On whether ‘Oli-ekpe’ Customary law of succession is consistent with doctrine of equity. 

Nigeria is an egalitarian society where the civilized sociology does not discriminate against 

women. However, there are customs all over which discriminate against the womenfolk 

which regard them as inferior to the menfolk. That should not be so as all human beings, 

male and female are born into a free world and are expected to participate freely without 

any inhibition on grounds of sex. Thus, any form of societal discrimination on grounds of 

sex, apart from being unconstitutional is antithesis to a society built on the tenets of 

democracy. The ‘Oli-ekpe’ custom, which permits the son of the brother of a deceased 

person to inherit his property to the exclusion of his female child is discriminatory and 

therefore inconsistent with the doctrine of equity.  

                                                           
9 Per Ariwoola, J.S.C, at pages 426-427, paras E-C 
10(1997) 7 NWLR (pt. 512), pages 304-305, paras H-B 



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Per Tobi, J.C.A (as he then was)11 

we need not travel all the way to Beijing to know that some of our customs, including the 

Nnewi ‘Oli-ekpe’ custom relied upon by the appellant are not consistent with our civilivised 

world in which we all live today, including the appellant. In my humble view, it is the 

monopoly of God to determine the sex of a baby and not the parents. Although the scientific 

would disagrees with this divine truth. I believe that God, the Creator of human being, is 

also the final authority of who should be male and female. Accordingly, for a custom or 

customary law to discriminate against a particular sex is to say the least an affront on the 

Almighty God Himself. Let nobody do such a thing. On my part, I have no difficulty in 

holding that the ‘Oli-ekpe’ custom of Nnewi, is repugnant to natural justice, equity and 

good conscience. A court of law, being a court of equity as well, cannot invoke a customary 

law which is repugnant to natural justice, equity and good conscience. The ‘Oli-ekpe’ 

custom is one of such customs as it permits the son of the brother of a deceased person to 

inherit the property of the deceased to the exclusion of the deceased’s female child12.  

 

In Ukeje vs. Ukeje13 concerning the rights of a female child born out of wedlock to inherit from his biological 

father, the Supreme Court held that the right of such a child to inherit from his biological father is secured by 

Section 42 (1) and (2) of the 1999 Constitution which provides such a child with freedom from discrimination on 

account of her sex and the circumstances of her birth. On this occasion, the court found the Igbo Customary Law 

on the right of a female child to inherit her father, which was on a collision course with Section 42 (1) and (2) of 

the 1999 Constitution to be null and void and of no effect after the said custom was also pummeled as being 

repugnant to natural justice, equity and good conscience. It is instructive to note that the decision in Ukeje vs. 

Ukeje14 has been hyped out of context in successive citations of the said judgment. Ukeje vs Ukeje was decided 

on the principle of law that a child born out of wedlock has got a right to inherit her father once there was an 

acknowledgment of paternity and did not focus on the right of a female child to inherit her father.  

 

Whether the decision in Ukeje vs. Ukeje15 is sound and equitable should be weighed against the provisions of 

Section 42 (1) and (2) of the 1999 Constitution that dwells on equality of human persons and freedom from 

discrimination. To the extent of its conformity with the constitutional provision, Ukeje vs. Ukeje16 is a sound and 

equitable judgment. However, it is capable of being interpreted as an active encouragement to promiscuity and 

irresponsible parenthood which would finally affect the desirability and sacredness of the marriage institution 

which is the bedrock of family life. On the relationship of that judgment with the Igbo customary law of inheritance 

as it pertains to family land, the situation of a female child born out of wedlock is not different or any better than 

that of other female children born in wedlock as has already been discussed elsewhere in this work.     

 

Earlier, in Nzekwu vs. Nzekwu17, it was held in similar circumstances that: 

The Onitsha native law and custom postulates that a married woman, on the death of her 

husband without a male issue, with the concurrence of her husband’s family may deal with 

the deceased’s property18. The widow’s dealings however must receive the consent of the 

family and she cannot by the effluxion of time, claim the property as her own. She has 

however a right to occupy the building or part of it, but this is subject to good behaviour19.  

A widow who chooses to remain in the husband’s house and in his name is entitled, in her 

own right and notwithstanding that she has no children to go on occupying the matrimonial 

home and to be given some share of his farmland for her cultivation and generally to 

maintenance by her husband’s family. Nezianya and Anor. Vs. Anthony Okagbue (1963) 1 

All NLR 352 at 356 referred to).20 Should her husband’s family fail to maintain her, she 

can let part of the house to tenants and use the rent obtained thereby to maintain herself, 

but her interest in the house and farmland is merely possessory and not proprietary so that 

she cannot dispose of it out and out. (Nezianya and Anor. Vs. Anthony Okagbue (1963) 1 

All NLR 352 at 356 referred to).21Any Onitsha custom which postulates that an Okpala has 

                                                           
11At page 305, paras B-C 
12At page 305, paras D-E. 
13 (2014) 11 NWLR (pt. 1418) 384 
14 Op cit, note 13 
15 supra 
16 supra 
17 (1989) NWLR (Pt. 104) 373 
18Nezianya & Anor. v Anthony Okagbue [1963] 1 All N.L.R. 352 at 356 at page 394, Para. C 
19 Nezianya and Anor. v Anthony Okagbue (Op.cit) at page 394, Para D. 
20At page 394, Para E. 
21At page 395, Paras F-G. 



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the right to alienate property of a deceased person in the lifetime of his widow is a 

barbarous and uncivilized custom which should be regarded as repugnant to equity and 

good conscience and therefore unacceptable. (Nezianya and Anor. vs. Anthony Okagbue 

(1963) 1 All NLR 352 at 356 referred to).22 

 

3. The Significances of the Judicial Decisions on Women’s Right of Inheritance in Igbo Societies 

Some issues considered as common and central to the cases mentioned above which all emanated from Igbo 

societies and they include the following: 

1. Customs and customary laws are not set in the abstract; rather they are peculiar laws belonging to a 

people with their own history, cultural background and way of life. Repugnancy, a white man’s (western) 

ideology was imported from a different society devoid of the peculiarities of the place whose customary 

law is standing trial. 

2. Repugnancy must be related to the peculiarities of such people including the enacted laws. Otherwise a 

rush to declare a law as repugnant to natural justice, equity, good conscience etc. would have succeeded 

in creating a law whose implementation would be difficult. 

 

It should be noted that no custom, standing alone can be universally accepted as good or bad outside the context 

of where it was erected. A functional customary law should be targeted at curbing a particular mischief or 

promoting a cherished ideology. It is on the scale of the mischief sought to be targeted or the ideology sought to 

be promoted that a particular custom should be weighed. Functionality therefore, should be the yardstick for the 

evaluation of Customary Laws. As a general rule a widow, under Igbo customary law, is not entitled as of right 

to succeed to the personal or real estate of her deceased husband.23 

 

4. Can a widow acquire an absolute right of inheritance over her husband’s real estate under the Igbo 

customary law? 

This question was answered by the Supreme Court in the case of Nezianya vs. Okagbue24. In that case, the land 

in dispute was situate at Onitsha and all the parties were natives of Onitsha also. On the death of the husband, his 

widow began letting his houses out to tenants. Later on, she sold a portion of the land and with the proceeds she 

built two mud huts on another portion of the land. When she wanted to sell more of the lands, her late husband’s 

family objected. The only child she had from her husband was a girl who died before her. The widow devised the 

property to the late daughter’s child who now sued the husband’s family claiming a right to exclusive possession 

on the grounds that the widow, their grandmother had long adverse possession of the land.  In the court of first 

instance, it was held that possession by a widow of her husband’s land cannot be adverse to the rights of her 

husband’s family to enable her to acquire an absolute right to possession of it against the family. The plaintiffs 

appealed. In the opinion of the Supreme Court, one of the important issues to be determined was whether under 

Onitsha native law and custom, a wife of a deceased member of a family could become the owner of her late 

husband’s real estate by virtue of long possession of the property which she occupied with the knowledge of the 

family or by adverse possession. The court gave a negative answer to this question and observed that: 

It will appear that the essence of possession of the wife in such a case is that she occupies 

the property or deals with it as a recognised member of her husband’s family and not as a 

stranger; nor does she need the express consent or permission of the family to occupy the 

property so long as the family make no objection to her occupation … From the evidence 

… it is abundantly clear that a married woman after the death of her husband can never 

under native law and custom be a stranger to her deceased husband’s property; and she 

could not, at any time, acquire a distinct possession of her own to oust the family’s right of 

ownership over the property. The Onitsha native law and custom postulates that a married 

woman, without a male issue, on the death of her husband, with the concurrence of her 

husband’s family, may deal with his (deceased) property. Her dealings, of course, must 

receive the consent of the family. The consent, it would appear, may be actual or implied 

from the circumstances of the case, but she cannot assume ownership of the property or 

alienate it. She cannot, by effluxion of time, claim the property as her own. If the family 

does not give their consent, she cannot, it would appear, deal with the property. She has, 

however, a right to occupy the building or part of it, but this is subject to good behaviour. 

(ibid at pp. 356-567)25 

                                                           
22At page 396, Paras B-C. 
23E.I Nwogugu; Family Law in Nigeria, 3rd ed., Heinemann Educational books Plc (Ibadan) 1990 p. 407 
24 1963 1 All NLR (ibid pp. 107: Okoro op.cit. p. 124) followed in Nzekwu v. Nzekwu. (Supra) where it was held among others 

that a widow’s dealings on the landed property of her late husband where she has no male child must receive the consent of 

the family and she cannot by the effluxion of time, claim the property as her own. She has however a right to occupy the 

building or part of it, but this is subject to good behaviour. 
25As reported in E.I Nwogugu; Family Law in Nigeria, 3rd ed., Heinemann Educational books Plc (Ibadan) 1990 pp. 407-408  



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This statement of the law is true of most of other Igbo speaking areas of Nigeria to the extent that although a 

widow does not inherit her husband’s estate absolutely, she is entitled to some rights therein. First, she is entitled 

to live as a member of the family in her late husband’s house and the deceased’s heir has no power to dispose of 

the matrimonial home which is occupied by the widow. However, her right in this respect is subject to good 

conduct. 

 

5. Distinction between Property Acquired by the Deceased with his Money during his Lifetime and Land 

Inherited as Part of Family Property 

There is need to state that a distinction exists in practical terms between property purchased by the deceased with 

his money and property allotted to the deceased as his entitlement out of the family land. Where a man acquires 

property with his money, there is usually not many disputes as to whether his wife or female children would inherit 

such property after his demise as more often than not, issues relating to the acquisition of such property, its 

location, title documents etc are within the knowledge of members of the immediate family of the deceased. It 

would be futile to make customary law to apply in such a situation because it can hardly be effectively applied. 

 

On the contrary, where the deceased was allotted part of the family property to build his homestead, if he dies 

without a male child, the land on which he lived would eventually return back to the family as part of the family 

property. The custom in such a situation in many parts of Igbo land is that where the property accrued to the 

deceased from a general partition of the family property, upon the death of the deceased without succession, the 

property will fall for inheritance by the eldest closest male relative of the deceased (‘Oli-ekpe’ or ‘Ili-ekpe’ 

custom). However, the ‘Oli-ekpe’ shall not be entitled to take the property until the widow of the deceased has 

lived her life in the house of the decease (her matrimonial home) and died or remarries. Where the deceased begat 

female children, the property is not available for inheritance until the last of the female children of the deceased 

has got married. 

 

There are instances of extreme situations, where the widow of the deceased, desiring to perpetuate her husband’s 

lineage, would perform some customary rights called ‘Nrachi’ in respect of one of her female children wherein 

the daughter is officially instituted in the family to procreate as if she was married into the family. In that case, 

children begotten by that daughter are the children of the deceased father of the daughter who are entitled to inherit 

the property of their deceased grandfather as if they were born to him directly. The property of the deceased in 

that situation is not available for the ‘Oli-ekpe’ to take as the deceased has got succession.26 

 

6. The position of the law in relation to family land 

The New Lexicon Webster’s Dictionary of English Language defines family as a group consisting of parents and 

their children; a group of people closely related by blood, example, children, their parents, their cousins, their 

aunts and uncles; a group consisting of individuals descendants from a common ancestry; a household. 

 

Family Land:  

Therefore, family land is land vested in a group of persons closely related by blood or persons consisting of parents 

and their children. It can also be referred to as land which had vested upon individuals who had descended from 

a common ancestry or pedigree, and including, of course those such as domestics and strangers who have been 

incorporated into the family by the founder. At the death of the founder, all empty land, farm land and houses 

acquired by him in his life become family property. In plain language the land belongs to the family of the said 

founder as a corporate entity in which case they become inalienable, or they become liable to be distributed to the 

members of the founder’s family as defined by him during his lifetime or the customary law that governs 

inheritance of land in the very area in question. Under this customary land holding arrangement, every member 

                                                           
26 Though deprecated by the court, the effectiveness of this practicewas demonstrated in the case of Muojekwu v. Ejikeme 

(2000)5 NWLR (Pt. 657)402, where the Court of Appeal declared the law to the effect that if any blood relation of the deceased 

(child or grandchild irrespective of the circumstances of his/her birth) is alive, it will be against equity, fair play and good 

conscience to allow the ‘Oli-ekpe’ a distant stranger to inherit his property. In that case, the court descended on the ‘Nrachi’ 

custom of Nnewi people of Anambra State in the following words: ‘Nrachi’ ceremony enables a man to keep one of his 

daughters unmarried perpetually under his roof to raise issues, more especially males, to succeed him. With the custom 

performed on a daughter, she takes the position of a man in the father’s house. Technically, she becomes a ‘man’. The custom 

legalizes fornication as the woman stays unmarried for the rest of her life procreating outside the bounds of marriage. A 

daughter with the custom performed on her has upper-hand over the others without it. She can inherit her father’s property 

while the others without same cannot. (see Mojekwu v Ejikeme (supra) Pp. 418, Para. F; 422, Paras. E-F). Per Fabiyi, J.C.A. 

(as he then was) I must express the point hereby which I will continue to stand that human nature, in its most ‘exuberant prime 

and infinite telepathy’ cannot support the idea that a woman can take the place of a man and be procreating for her father via 

a mundane custom. She stays in the father’s house and cannot marry for the rest of her life even if she sees a honest man who 

loves her. I cannot, and do not believe that the society, as it is presently constituted, will for long acquiesce, in a conclusion so 

ludicrous, ridiculous, unrealistic and merciless more especially as we march on into the next millennium. 



 African Customary and Religious Law Review 1 (2020) 

Page | 33  
 

of a family has an interest in the property and under a duty to protect such property. Hence every member of the 

family has or enjoys a locus standi to institute an action in respect of any wrong to illegal dealings with the 

property and the right of action to protect the family property avails the individual member even if he has no 

authority of the family to bring the action. 

 

It is the law that family land does not lose its identity simply because it was allocated to a member of the family. 

Family land remains family land at all times to the effect that where the allottee of family land fails in his 

succession, the land returns to the pool of family land waiting to be allocated to another member of the family that 

may need the land for habitation or other purposes. Where there was no partition of family land but a part of the 

family land was simply given to a man to build his house, upon his demise without succession (a male child) the 

widow of the man remains in his house, lives her life until she dies or remarries. If she had got female children, 

the female children are allowed to remain in their fathers’ house until they are married. Thereafter, the land reverts 

back to the family in general to become part of the family land. From the above, it could be seen that the land 

given to a member of the family from the family land is not for absolute ownership such as the land he bought 

with his money. In many communities, he cannot alienate the land given to him from the family land without the 

consent of the family even where there has been a general partition of the family land. This is unlike the property 

he acquired with his money which he can dispose of at any time. The reason for this restriction may be of twofold:  

1. To discourage profligacy among members of a family, and avoid a situation where a member of a family 

becomes lazy, hoping to sell off the land given to him by the family as ‘ana-obu’ in the event of a slight 

financial challenge. 

2. To avoid a situation where a member of a family sells part of a family land granted to him to a non 

member of the family, who comes in to set up a homestead in the midst of the family members and 

thereby erode the privacy. Security and homogienity of the family as non members of the family begins 

to build houses and dwell in the midst of the family. 

 

It is for this later reason that when such a member of the family dies, the family does not allow the widow of the 

deceased and her female children to take over the property of the deceased on absolute terms since to allow them 

to do so would be to allow them to alienate the property eventually, possibly, to a stranger.  

 

7. The Realities and Practicability of Laws on Women’s Right of Inheritance of Landed Property under 

the Igbo Customary Law 

It is submitted, most humbly, that it is debatable whether or not a customary law that regulates dealings on family 

land in the manner explained above is barbaric or not. It depends on the perspective from which it is viewed. 

However, it is still a strong argument that no family or community would allow an absolute transfer of title in a 

part of family land from a man who dies without a male child to his wife or daughter for the fear of what will 

happen to the land eventually. No daughter is ever married back into her family of origin. If such a daughter 

acquires absolute right in her father’s compound, at her marriage she would either sell the property or transfer it 

to herself and her husband in a new name thereby introducing a stranger into a community or family that was 

otherwise hitherto homogeneous and would have loved to remain so. The fact that the man who died without 

succession may have been the head or ‘Okpara’ of the family in which case he was the custodian of the sacred 

things of the family and was housing the family’s ‘Iba’ (Obi or meeting hall) would even make matters worse. 

Where such was the case, all the sacred things of the family would have been passed on to a stranger who, more 

often than not would not have value or respect for them. There is no better way of eroding communal lifestyle and 

kindred spirit than that. In the light of the above, it is submitted, most humbly, that the issue of application of 

customary laws on inheritance of land given to a man that died without succession from family property should 

be approached with caution. Except for cases of abuse of such customary laws by overzealous persons, seeking 

to disturb the widow and daughters of such a deceased person from enjoying the non permanent interest which 

they have in such land, there may be little or no justification for descending heavily on those customary laws in 

the manner the courts are presently doing27. From the practical point of view, beyond the euphoria of victory, full 

implementation of those judicial decisions may not be possible. Where such a widow takes over her husband’s 

compound, she may not be able to sell it assuming she wants to, because the community may by a resolution stop 

its members from buying it and equally make it difficult for a stranger to buy same. In that case, the widow may 

have only enjoyed the same life interest the law originally gave her. Such would equally be the case with the 

female children of such a deceased who may want to marry and leave their fathers’ house. In many instances, they 

may not find it convenient to come from their husbands’ house to manage their fathers’ compound after their 

marriage. In such a situation they would have only enjoyed the property before the marriage as envisaged by the 

said customary law. 

 

                                                           
27 The attitude of the Supreme Court in Nezieanya v. Okagbue (Supra) and Nzekwu vs. Nzekwu (Supra) is highly 

recommended as the proper approach to issues of inheritance of property of a man that dies without a male child by his widow. 



UNACHUKWU: Judicial Attitude to Igbo Customary Laws on the Inheritance Rights of Women: Beyond the 

Present Euphoria of Judicial Pronouncements 

Page | 34 
 

In the final analysis, it would seem that what is repugnant, barbaric, anachronistic etc. as pronounced by the courts 

are acts of overzealous ‘Oli-ekpes’ who pounce on the property of their decease brother or uncle who died without 

a male child and begin to appropriate his landed property when the spouse is still alive and living on that property 

sometimes with her female children. Such is an unbridled display of lack of conscience as was shown in the case 

of Onyibor Anekwe & Anor. vs. Mrs. Maria Nweke28 and ought to receive an unmitigated knock from heavily 

weighted judicial hammer29. 

 

Statutory enactments to the rescue? 

In Anambra State, there is an accommodation of both extremes in the Anambra State Succession Law Edict, 1987 

now the Succession Law of Anambra State, 1991 which deals with succession to real and personal estate upon 

intestacy. Section 51 of the said law prescribes the following rules of distribution: 

a. If the intestate leaves a husband or wife but no children, parent or brothers or sisters of the 

whole blood, the residuary estate shall be held on trust for the surviving spouse absolutely. 

However, where the surviving spouse is the wife and the intestate leaves brother or sisters 

of half blood, the wife’s interest will be for her life or until she remarries whichever first 

occurs. Thereafter, the residue of her interest shall go to the intestate’s brothers and sisters 

absolutely in equal shares. The children of a deceased brother or sister will take the share 

to which his parent would have been entitled if alive. 

b. Where the intestate leaves a husband or wife as well as children’s children (whether or not 

he also leaves parents or brothers or children of brothers and sisters), the residuary estate 

shall be held on trust as to the value of one third thereof for the surviving spouse. The 

interest of such spouse shall be absolute in the case of a husband and in respect of a wife, 

for her life or until re-marriage which ever first occurs. The remainder of the estate together 

with any residue on the cesser of the wife’s interest shall be held on trust for the children 

in equal shares absolutely or failing children, on trust for the children of the intestate’s 

children in equal shares absolutely. 

c. If the intestate leaves a husband or wife as well as one or more of the following – a parent, 

a brother or sister of the whole blood or children of a brother or sister of the whole blood, 

but does not leave a child, two-thirds of the residuary estate shall be held on trust for the 

surviving spouse. In the case of a husband, the interest shall be absolute while for a wife, it 

will last for her life or until her re-marriage whichever first occurs. The remaining one-third 

of the estate together with any residue on cesser of the wife’s interest, shall be held on trust 

for the brothers of the whole blood in equal shares absolutely. In the absence of brothers of 

the whole blood or their children, the portion will be for the parents absolutely. 

 

It can be seen clearly that even the Succession Law of Anambra State has vested on the widow of a deceased 

spouse who died with or without a child only a life interest in the property of the spouse or an interest before she 

remarries but not an absolute perpetual interest. That is the same position even under the ‘Oli-ekpe’ custom that 

is much buffeted and maligned as repugnant to natural justice, equity and good conscience. The position of the 

widow who enjoys qualified inheritance in the nature of a life interest in the estate of her deceased husband is 

different from the position of the widower who inherits his deceased wife in absolute terms. It may be argued that 

even Section 51 of the Succession Law of Anambra State, 1991 may not stand in the face of Section 42 (1) and 

(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to the extent that the provisions of 

the Succession Law of Anambra State seeks to segregate between deceased male and female spouses in the vesting 

of rights to inherit each other’s property. Section 42 (1) and (2) of the Constitution of the Federal Republic of 

Nigeria, 1999 (as amended) provides: 

        A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or 

political opinion shall not, by reason only that he is such a person- 

 

a. Be subjected either expressly by, or in the practical application of, any law in force in 

Nigeria or any executive or administration action of the government, to disabilities or 

restrictions to which citizens of Nigeria of other communities, ethnic groups, places of 

origin, sex, religion or political opinions are not made subject; or 

 

b. Be accorded either expressly by, or in the practical application of, any law in force in 

Nigeria or any such executive or administrative action, any privilege or advantage that is 

not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, 

sex, religion or political opinions. 

                                                           
28Op.cit note 4 
29 See also the case of Mojekwu vs. Mojekwu (Supra) followed in Onyibor Anekwe & Anor. v Mrs. Maria Nweke (Supra) 

under review 



 African Customary and Religious Law Review 1 (2020) 

Page | 35  
 

 

9. Conclusion and Recommendations 

From the judicial and academic point of view, the customary laws seen in Igbo societies and even the Succession 

Law of Anambra State, 1991, seem to offend the provisions of Section 42 (1) and (2) of the 1999 Constitution (as 

amended). The said laws are to the extent of their inconsistency with the `1991 Constitution, null, void and of no 

effect whatsoever. However, from the point of view of practicability, the customary laws of Igbo land would not 

have been otherwise. The said customary laws may be seen to be working hardship on the people on whom their 

incidences fall, it seems however that it wouldn’t have been otherwise. In the final analysis, it is submitted that 

the problems associated with abuses of the right of women to inherit the properties of their fathers or husbands in 

Igbo land do not lie in the absence of sufficient legal framework to safeguard such rights. The problems lie with 

human weaknesses that manifest in greed, collusion with one another etc. the solution to these may lie in the 

vigilance and readiness of members of the society to rise up to defend the cause of justice whenever such situation 

arises. After all, how many of these cases do actually get to court? There is need for women’s rights advocacy 

groups to be more proactive in educating and enlightening women as to the consequences of marriage under 

customary law and their remedies when they have chosen such marriage as well as enlightening the society on the 

consequences of discrimination against the female child in matters of inheritance of property. Also there should 

be public education on the consequences of possible collision between the provisions of Customary Law on 

inheritance of property by widows and female children and statutory enactments and case laws. Finally, such 

groups are expected to go some steps further, as many of them are already doing30 to institute actions in court to 

stop such abuses, intimidation and harassment of women. There are situations where admonitions, entreaties and 

sermonisation may not be enough.  On its part, the judiciary should be vigilant to know when overzealous relatives 

of a deceased intestate begins to oppress the deceased widow and her female children so as to exercise its 

discretion in their favour assuming such a case gets to court. That would certainly provide a more cushioning 

effect to such challenged persons than the name calling which has become the past time of our courts in respect 

of Igbo Customary Laws on inheritance by widows and female children. Regarding Section 51 of the Anambra 

State Inheritance and Succession Law, 1991 (as amended), there is every need and it is recommended that the said 

law should be amended immediately to grant a deceased widow absolute right to inherit the property of her 

deceased husband irrespective of whether she had a child for the husband or not. To allow otherwise is to 

perpetuate and give statutory backing to the ignominious and much maligned ‘Oliekpe’ custom.  

 

     

 

 

 

                                                           
30 The activities of F.I.D.A, WACOL etc in this regards is commendable to the extent that they assist even indigent women 

who fall victim of such intimidation and harassment after the death of their spouse to take hold or reclaim the properties of 

their husbands. 


