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A CRITIQUE OF DISCRIMINATORY INHERITANCE PRACTICES AND WIDOWHOOD 

RIGHTS UNDER ITSEKIRI CUSTOMARY LAW IN SOUTH-SOUTH NIGERIA* 

 

Abstract 

This paper applies the doctrinal research method to identify and appraise multi-faceted and multi-

dimensional discriminatory succession practices against widows under Itsekiri customary laws of 

South-South Nigeria. It highlight key  inhuman and degrading discriminatory practices under Itsekiri 

customary law such as exclusion of widows from inheritance of their deceased husband’s property and  

construing wives as properties and part of the deceased  husbands estate to be shared. This paper 

concludes that Inhuman and uncivilized Customary practices which saw widows as chattels to be 

inherited, have been abolished by the Supreme Court of Nigeria and declared repugnant to natural 

justice, equity and good conscience. It is recommended that the National Assembly and States Houses 

of Assembly should urgently pass legislations making it a criminal offence to discriminate against 

widows/females in any form especially with regards to inheritance rights, and providing stiff 

punishment for such discrimination. This paper also recommends mass advocacy and lawful protests 

to effect changes in Itsekiri and similar customs that denies widows of their rights of inheritance. 

 

Keywords: Discrimination, Widow, Inheritance Rights, Itsekiri, Customary law 

 

1. Introduction 

The issue of gender imbalance, disparity and discrimination against women within most ethnic groups 

in Nigeria as well as other parts of Africa has been, still is, and will continue to be an issue of discourse, 

controversy and research in Nigeria and indeed in most parts of the world.1 This situation which has 

prevailed for several decades and centuries has become so pervasive that they had   even been 

legitimized by the Supreme courts in several judicial decisions in Nigeria.2 However, with the 

enactment of section 42 of the 1999 Nigerian Constitution,3which outlaws all forms of discrimination 

against women in Nigeria it was the expectation of several lawyers, public affairs analysts , human 

rights activist and social workers that the issue of discriminatory succession practices against women 

would have been laid to rest especially with respect to intestate succession under customary law.4It is 

factual that for several decades both women and girls in Nigeria have been beset with dehumanizing, 

oppressive and very discriminatory customary law  practices  especially as it relates to inheritance rights 

which has remained pervasive  and deeply entrenched even in the face of the constitutional fundamental 

freedom against discrimination.5Whereas strict and full application of this constitutional provision 

would have laid to rest the issue of discrimination against women in all facets of Nigeria life including 

customary law, this apparently straightforward situation is complicated by the fact that Nigeria currently 

operates a system of ‘legal pluralism’ where statutes, common law and customary laws are applied 

simultaneously in our legal jurisprudence6 

 

These degrading  and offensive discriminatory cultural inheritance  practices against women  in Nigeria 

are mainly due to the pervasive existence of customary laws that encourage discriminatory  and harmful 

cultural succession practices against women especially in rural areas, as well as the lack of commitment 

and will by government to domesticate and implement international laws that prohibit all forms of 

discrimination against women as well as   enforce  applicable  provisions of the Nigerian constitution.7It 

                                                           
*By Kenneth Bawo ATSENUWA, LLB (Hons.), BL, LLM, MILR, PGDE, FCIWM, Senior Lecturer (Law), School of 

General Studies, Delta State Polytechnic, Ogwashi-Uku, Nigeria. Phone Nos.: 08062399908, 08123985458. E-MAIL: 

barrkenatse@gmail.com.  
1K B Atsenuwa,  ‘A Comparative Analysis of Female Succession Rights under Itsekiri Customary Law and Selected Tribes’ 

(Unpublished LLM Dissertation DELSU Abraka 2018). 
2Onwuchekwa v Onwuchekwa [1991] 5 NWLR (pt. 194) 739 (SC); Akinnubi v Akinnubi (1997) 2 NWLR (Pt. 486) 144. 
3CFRN 1999 (as amended) s42. 
4Paul OkhaideItua, ‘Legitimacy Legitimation and Succession in Nigeria: An Appraisal of Section 42 (2) of Constitution of the 

Federal Republic of Nigeria 1999 as amended on the Rights of Inheritance’ [2012] (4)(3) Journal of Law and Conflict 

Resolution, 31-44. 
5Ifemeje Sylvia Chika and Umejiaku Nneka. ‘Discriminatory Cultural Practices and Women’s Rights among the Igbos of 

South East Nigeria: A Critique’ [2015] (25) Journal of Law, Policy and Globalization 18-27 
6Itua (n4)Ibid 
7J A M Agbonika, ‘The Impact of Domestic and International Instruments on Customary Law Widowhood Practices in Nigeria’ 

[2015] (5)(2) AJLC,  1-33. 



ATSENUWA: A Critique of Discriminatory Inheritance Practices and Widowhood Rights under Itsekiri 

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is in the face of these practices that various  gender rights activist , non-governmental organizations and 

public commentators  have in recent times added their voice and resources  in advocating that since the 

world is a global village, Nigeria should as a minimum imbibe the international best practice of gender 

equality or on a minimum basis  gender equity as a starting point so as to ensure that women are 

politically and economically empowered to drive the campaign against discrimination.8 

 

This paper applies the doctrinal research method to examine customary law succession under Itsekiri 

Customary Law with emphasis on discriminatory inheritance practices against widows, and widowhood 

rights violation under the system. It also analyzes the implications/impacts of International and National 

statutory instruments as well as recent transformative judicial intervention by the Supreme Court of 

Nigeria with a view to determining how these can be harnessed and applied in enhancing succession 

rights of women under Itsekiri Customary Laws. 

 

2. Historical Antecedents/ Background 

The Itsekiri Nation is a race that is predominantly domiciled in Warri South, Warri North and Warri 

South West Local Government Areas of Delta State. They however have large settlements and huge 

population in Uvwie, Okpe, Sapele, Ethiope West and Ethiope East Local Government areas of Delta 

States as well as in Ikpoba-Okha Local Government Area of Edo State in South-South Nigeria.9 The 

headquarters of the Itsekiri nation is Warri town while their ancestral home is Ode-Itsekiri both in Delta 

State Nigeria; they are predominantly farmers and fishermen by occupation. 10 Stating the historical 

source of the name as well as the geographical location of the Itsekiri people, Williams A.Moore,11stated 

thus:  ‘The Itsekiri Live in the Westernmost part of the Niger Delta bounded by the Bight of Benin on 

the west and latitude 60N. The Itsekiri have boundaries with Ilaje (a Yoruba sub tribe) and the ApoiIJaws 

to the North West; the Edos (Bini) to the North; the Urhobos (mainly Uvwie, Okpe and Oghara clans) 

to the East and the Ijaws to the South’12 The Itsekiri language is very similar to the Ekiti ,Igalla or 

Mahim language although the people did not originate from any of these tribes. The fact is however 

obvious that the Itsekiri language is a dialect of the Yoruba language13.  

 

Itsekiri Marriage System as Foundation for Discrimination 

Marriages in Itsekiri land are contracted mainly under the native law and custom and the system of 

marriage is predominantly polygamous as it is common for men to marry several wives who are then 

placed in the disadvantaged position of competing for love and attention of their husbands as is practised 

amongst most other tribes in South-South and South Eastern Nigeria14. The Itsekiri marriage  system 

under its customary law is not a union of the man and his wife  alone, but is a union of the families of 

wife and husband as the man is usually made to pay the traditional bride price on the wife to signify 

customary concretization of the marriage in addition to fulfilling other requirements.’15The polygamous 

system of marriage is a key underlying fact for discriminatory practices against women under Itsekiri 

customary law as the idea of the principle of one man, one wife enunciated in the EnglishLocus 

Classicus of Hyde v Hyde16  is hardly embraced in the Itsekiri system of marriage. Ogbobine,17 stated 

this principle of Itsekiri marriage thus:  

                                                           
8Atsenuwa (n 1) 2. See Ikenga Oraegbunam, ‘Equity, not equality as sameness’, in N. Ezenwa-Ohaeto (Ed), Power, Gender 

Relations, Character and Nation Building, Awka, Fab Anieh Nig. Ltd., 2015, pp. 63-79. See also Ikenga K.E. Oraegbunam, 

‘A Jurisprudence of Affirmative Action as a Platform for Women Empowerment in Nigeria Today’, ‘, Legislative Practice 

Review: Nigerian Journal of Law, Practice and Procedure of Legislature, Vol. 2 No. 2, 2010, pp.76-109. 
9J O S Ayomike, A History of Warri. (Ambic Press Ltd. Benin City 2008)   
10Ibid 13 
11W A Moore, History  of the Itsekiris (Frank Cass and Co. Ltd. California 1970)   
12Ibid 29 
13R A I Ogbobine, The Iwere Warri Kingdom and the Olu’sOverlordshipRights in Itsekiri Land (Rufbine Books Warri 1980) 

10.  
14Ifemeje (n5) Ibid. 
15T Y Pessu, Temotsi Marriage in Itsekiri Custom (Island Press Warri 2012). 
16Hyde v Hyde  [1886] LR IPD 130 
17R A I Ogbobine, The Foundation of Itsekiri Culture; the Benin Influence (Rufbine Publisher Benin 1984 68). Compare with 

Ikenga K.E. Oraegbunam, ‘Women’s Rights in Some Aspects of Matrimonial Jurisprudence under Islamic Family Law in 

Nigeria: Need for Reform’, Kogi State University Confluence Journal of Jurisprudence and International Law, Vol. 5. No. 1, 

2012, pp.40-47. Also with B. O.S. Udezo, published with modification as ‘Women’s Rights in Matrimonial Jurisprudence 

under Islamic Family Law in Nigeria: A Need for Reform’, Journal of Religion & Human Relations, pp. 101-110; Ikenga K.E. 



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The agelong European or Christian theory of the Union of man and woman into one and 

indivisible body (which makes one plus one equals to one) at marriage is inconceivable 

both in Benin and Itsekiri customary systems of marriage. It is a mere piece of religious 

superstition which has never impressed the Bini and Itsekiri. Under a system that 

encourages polygamy on a large scale and in which the people are pathologically, 

spiritually and traditionally polygamous, it would be difficult if any husband were to be 

spiritually joined to one wife without consideration for the other wives. 

 

The polygamous nature of Itsekiri marriages makes the women to be in a disadvantaged position as they 

do not have equal rights to polyandry and are therefore forced to compete for the attention of their 

husbands who is construed as their owner, lord and master.18 In addition to its polygamous nature, the 

fact that under Itsekiri customary law men are made to pay bride price on the women to symbolize 

concretization of the marriage rites is another major issue underlying the treatment of women as 

properties and chattels of their husband under Itsekiri customary law19Kenneth Bawo Atsenuwa’  

Another component of the  Itsekiri marriage system  which create a feeling of ownership over women 

by the men  is the fact  that it is mandatory for the  husband’s family  to pay bride price for the wife 

before the marriage can be  celebrated.20The inequalities and indignities meted out to women in Nigeria 

especially in terms of inheritance rights has been linked to the payment of bride price or brides wealth 

by the men on the women during traditional marriage which perhaps gives the men a ‘sense of 

entitlement to control the women as their property which has to a large extent precipitated wife 

inheritance and other discriminatory practices.21. It is argued that this practice further lays the foundation 

for discriminatory succession practice as it situates the wife within the context of her husband’s larger 

family thus giving further verve to the belief that she can be shared to other members of the family upon 

his death.  

 

This inhuman proprietary claim that wives are owned by men which is accentuated by payment of Bride 

Price on women during marriages was unfortunately given judicial recognition by the court in the case 

of Onwuchekwa v Onwuchekwa,22 when it held that the Isikwato customary law which construed a wife 

as well as her money and property to be owned by her husband was not repugnant to natural justice, 

equity and good conscience. 

 

3. International and National Instruments Prohibiting Discrimination against Women 

Discriminatory succession practices and other forms of discrimination against widows and women 

under Itsekiri customary laws have continued to endure and remain pervasive even in the face of 

existing international and Nigerian Statutory instruments which prohibit all forms of discrimination 

against women. 

 

Convention for Elimination of all forms of Discrimination against Women. (CEDAW) 

The Convention for Elimination of all forms of Discrimination against Women23  is a key international 

instrument adopted by the UN General Assembly and covers    all aspects relating to protection of the 

rights of women all over the world. Article 1 CEDAW defines discrimination against women thus: 

The term discrimination against women shall mean ‘any distinction exclusion or 

restriction made on the basis of sex which has the effect or purpose of impairing or 

nullifying the recognition, enjoyment or exercise by women irrespective of their mental 

state or a basis of equality of men and women of human rights and fundamental 

freedoms in the political, economic, social cultural, civilor any other field. 24 

                                                           
Oraegbunam, ‘Some Critical Considerations on Women’s Rights under the Sharia Law: The Nigerian Perspective’, EBSU 

Journal of International Law & Juridical Review, Vol. 1, 2010, pp.357-37; Ikenga K.E. Oraegbunam, ‘Nigerian Divorce Laws: 

Implications for the Indissolubility of Christian Marriage under Canonical Jurisprudence’, Journal of Women and Minority 

Rights, Vol. 2, 2011, pp.85-109. 
18Ogbobore (n17) 71. 
19Atsenuwa (n1) 61-62. 
20G Akperi, Birth‘Marriage and Death Ceremonies inIwere Land’. (Remanths Creative Concept Warri 2003 14). 
21Ifemeje (n5) Ibid  
22Onwuchekwa v Onwuchekwa [1991] 5 NWLR (pt. 194) 739 
23CEDAW 1979. 
24Ibid Art. 1. 



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In addition to condemning and outlawing discrimination against women all over the world, Article 225 

obligates state parties to condemn all forms of discrimination against women and to pursue appropriate 

policy, and other frameworks with a view to eliminating all forms of discrimination against women in 

their respective countries. It is however, the present position that CEDAW has no forced of law in 

Nigeria as it has not been reenacted as an Act of the National Assembly. The Supreme Court of Nigeria 

as held that any person seeking to apply international law in Nigerian courts must prove that it has been 

reenacted by the National Assembly and has thereby become a domestic law.26Also, by virtue of section 

12 of the 1999 Nigeria Constitution, CEDAW does not have the force of law in Nigeria as it has not 

become domestic or municipal law by reason that it has not been enacted as an Act of the National 

Assembly to make it consistent with the constitution.27 

 

Universal Declaration of Human Rights 

The Universal Declaration of Human Rights which was adopted by the UN General Assembly on 10th 

December 1948 28  provides a robust International Framework for protecting the rights of humans all 

over the world on the basis of equality of humans irrespective of gender and other distinctions. Article 

129  of the Declaration is to the effect that all persons are born equal and are entitled to enjoy equal 

rights and dignity. The declaration also provides 30  that all persons are entitled to enjoyment of the 

rights and freedoms contained in the declaration without any form of discrimination whatsoever. In 

addition, Article 7 further provides for equal protection of all as it stipulates that all persons are equal 

before the law and are entitled to equal protection of the law without any discrimination and entitled to 

equal protection against any discrimination in violation of this declaration and against any incitement 

to such discrimination. ‘31 Also, other international instruments such as the United Nations Charter and 

the Universal Declaration on Human Rights being Charters or Conventions that were in force prior to 

Independence of Nigeria. In 1960 are deemed to be existing laws of and deemed to be Acts of the 

National Assembly by virtue of the savings provisions in section 315 (1999 as amended 32 

 

African Charter on Human and People Rights 1979 

The African Charter on Human and Peoples’ Right33is another International Instrument domesticated 

in Nigeria which has extensive provisions protecting the rights of women in Africa. The Charter which 

is intended to protect the rights of all Africans irrespective of their gender or status is predicated upon 

the principles of the African Charter which are: ‘freedom, equality, justice and dignity’. The Charter 

provides for equality between men and women and prohibits discrimination based on sex, religion or   

status.34  In addition to the foregoing, the African Charter on Human and Peoples Rights as well as all 

its protocols have the force of law in Nigeria and can be fully enforced by Nigerian Courts by virtue of 

its domestication through the African Charter on Human and Peoples Rights (Ratification and 

Enforcement) Act35 in so far as it is consistent with the constitution36 

 

Constitution of the Federal Republic of Nigeria 1999 (as amended) 

The National Legal framework on protection of Nigerian Citizens including women against all forms 

of   discrimination is anchored principally on the   Constitution of the Federal Republic of Nigeria, 

1999.37Specifically section 42 (2)38 of the constitution  provides that no citizen of Nigeria shall be 

subject ever to any form of discrimination on account of his/her place of origin, sex, religion or political 

                                                           
25CEDAW Art. 2. 
26Registered Trustees v MHWUN [2008] 34 NSCQR 321 (SC).   
27JES v Brawal Line [2010] 44 NSCQR 243 (SC). 
28UDHR 1948. 
29Ibid Art. 1. 
30UDHR Art. 2. 
31Ibid Art. 7. 
32JES (n27) 243 
33ACHPR 1979 
34Ibid Art. 2 
35African Charter on Human and Peoples Rights (Ratification and Enforcement) Act LFN 2004 
36CFRN 1999 s1 (3).  
37CFRN 1999 (as amended) 
38CFRN 1999 s42(2) 



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opinions. In addition, section 34 of the same constitution,39guarantees the dignity of human person as a 

fundamental right and prohibits any body from subjecting any Nigerian including women to inhuman 

treatment, forced labour or servitude. It is argued that forced inheritance of a widow by male members 

of her deceased husband’s family under Itsekiri Customary law is a form of slavery or servitude which 

has been outlawed by this constitutional provision. 

 

4. Succession under Itsekiri Customary Law 

Succession rights under customary laws (inclusive of Itsekiri Customary law) is applicable to the estate 

of a deceased person who was subject to customary laws during his lifetime and  dies without leaving 

behind a  spouse or a child of a statutory or  Christian marriage.40 It is the norm rather than the exception 

that most marriages among itsekiri people are contracted under customary laws thereby making it 

imperative for the estate of a deceased Itsekiri man to be distributed in accordance with the native law 

and custom of Itsekiri Nation upon his demise 41.The current system of customary laws of inheritance 

/succession under Itsekiri Culture is heavily skewed in favour of male folk and to the detriment of 

women folk with the widow of a deceased Itsekiri man being at the receiving end of the most 

dehumanizing and discriminatory violations of human rights.  

 

Widowhood Inheritance Rights Under Itsekiri Customary Laws 

Under the current system of customary laws practiced by the Itsekiri, the widow of a deceased man is 

placed in so lowly a position that she is bereft of any rights of inheritance to her deceased husband’s 

properties save for those given to her to the knowledge of her husband’s family during his lifetime. 

The practice is of such alarming properties   that a widow is not only excluded from any share in her 

deceased husband’s estate, but is in fact  construed as an integral  part  of her deceased husband’s 

property to be shared and inherited  by his relatives. Explaining this system, Ogbobine,42stated  the 

position thus:  

Traditionally, among the Itsekiri, the widow … if she had children was inherited by 

her husband’s male kin except his father….Firstchoice is /her  step son failing which 

she goes to her brother-in-law , and when none is available, other members of the 

husband’s  patrilineal are considered. This happens if the husband’s family did not 

want to lose the woman either because she was industrious or productive. 

 

The rationale behind the exclusion of itsekiri women from inheritance of their deceased husband’s 

property was further stated by Ogbobine as follows: ‘in theory among the Itsekiris, she is part of the 

property to be shared or inherited on the death of her husband and she cannot therefore share in the 

estate of the deceased’ 43 This unfortunate Inhuman practice which runs contrary to the entrenched 

rights guaranteed by the spirit, letters and interdiment of the Nigerian Constitution,44has nonetheless 

been given judicial recognition by the courtswith respect to similar customary practices by the Yoruba 

people  who are one of the neighbours to the Itsekiris. In the case of Akinnubi v Akinnubi45 the Supreme 

Court of Nigeria held, inter alia thus: 

It is a well settled rule of Native Law Custom of the Yoruba that a wife could not 

inherit her husband’s property. Indeed under Yoruba customary law, a widow under 

an intestacy is regarded as part of the estate of the deceased husband to   be 

administered or inherited by the deceased’s family… there are no disputes over the  

Yoruba Native law and customs that a widow could not inherit her deceased husband’s 

property. 

 

                                                           
39CFRN s34 
40Itse E Sagay, Nigerian Law of Succession:  Principles, Cases, Statutes and Commentaries (Malthouse Press Ltd. Lagos 2004 

257) 
41Pessu, (n15) 11. 
42Ogbobine (n17) 83 
43Ibid 17 
44CFRN 1999 ss. 34, 42 
45Akinnubi v Akinnubi [1997] 2 NWLR (Pt. 486) 144 



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Providing further insight on the practice of widowhood inheritance under Itsekiri Customary Laws 

Omoneukarm quoted in Sagay,46stated that ‘the eldest son who was generally the next of kin by custom 

had the largest claim. The house, most of the furniture and wives passed to him and he could already 

use the family lands held in trust’. It is evident from the above that under itsekiri customary law widows 

of a deceased man are categorized as properties of their husband to be inherited by his son or family 

members after the death of her husband. A question that arises herein is, what is the effect, under Itsekiri 

Custom where a woman rejects or refuses to marry her deceased husband’s relative to whom she is 

shared? Ogbobine,47 stated the position under Itsekiri custom thus: 

               it is not uncommon for widows to reject any offer to remarry from her dead husband’s 

family should a situation like that arise, she would be allowed to go away… she would 

not be allowed to remove the husbands property except those specifically given to her 

by the husband while he was alive.   

 

These practices under Itsekiri custom obviously violate the provisions of the Protocol to African Charter 

on Human and Peoples Rights on the Rights of Women in Africa.48 Specifically, article 21 of the 

Protocol provides as follows: ‘A widow shall have the right to an equitable share in the inheritance of 

the property of husband. A widow shall have the right to continue to live in the matrimonial house. In 

the case of remarriage, she shall retain this right if the house belong to her or she has inherited it for her 

lifetime alone’ 49 

 

Laudable as this protocol is, it however limits the inheritance right of a widow in respect of her 

husband’s property to her lifetime alone.It is argued from the foregoing that this protocol has 

shortcomings in resolving discriminatory succession/ inheritance practices against women under Itsekiri 

Customary Laws. 

 

Inheritance of the Matrimonial Home 

It is not unusual under Itsekiri custom and several other customs in Nigeria for a man and wife to live 

together in their matrimonial home, and for the woman or her family to even contribute towards building 

the house. Inspite of this, a widow is precluded from inheriting her matrimonial home upon the death 

of her husband irrespective of whether or not she contributed personally or was assisted by her own 

family in providing land or funds for building the matrimonial home. In the case of Oke v Oke,50 the 

Plaintiff sued claiming to inherit their father’s residence as against the Defendant who is the eldest son 

of the deceased. The Plaintiff contended that the land on which the house was built was allocated to his 

mother by her father who in turn gave it to her husband to erect a building. It was further contended by 

Plaintiff that their deceased father had by will bequeathed the house to him. In its decision on who was 

entitled to inherit their deceased father’s residence under Itsekiri/Urhobo customary law, it was held by 

the Supreme Court of Nigeria that under Itsekiri /Urhobo Customary Law, the residence of a deceased 

man devolved upon his death to his eldest son and that the testamentary disposition of a deceased Itsekiri 

man was subject to the customary law under which he lived and died51 

 

Widower’s Inheritance Rights over Deceased Wife’s Property 

In the past and even in modern times, women married to Itsekiri men have, through their own efforts or 

with the support of their husband, owned realproperties in their own name at the time of their death. It 

is also not unusual for wives to sometimes predecease their husband leaving behind properties. Just as 

it is with widows, under Itsekiri Customary Laws, a deceased woman’s husband is barred from 

inheriting any of his deceased wife’s property. Under the custom, it is the children of the deceased wife 

that have exclusive right of inheritance over their mother’s property to the exclusion of the husband. 

Where the woman had no issue for the man, her property goes to her biological siblings or relatives 

irrespective of whether the husband contributed substantially to building or acquiring the real property 

or whether he even built it for his deceased wife. Apart from the husband, no member of his family can 

                                                           
46Sagay (n40) 269. 
47Ogbobine (n17) 
482000 {www.au.org} accessed June 18 2020 
49Protocol to African Charter (n48) Art. 21. 
50Oke v Oke [1974] ANLR 401 (SC). 
51Wills Law Delta State 2008 s3(1) 



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partake in sharing of the property and even the deceased woman’s step children are excluded. RAI 

Ogbobine,52stated this old  rule of  Itsekiri Customary Law as follows: 

In the case of a deceased woman, her children inherit her property but until the property 

is shared, the eldest child whether male or female takes absolute control of their mothers 

estate. Nobody in the husband’s family is allowed to participate in the sharing of the 

property. Neither a wife nor the husband can inherit the property of the other spouse on 

the death of either of them; such property is for the children and never for the surviving 

spouse. Some share may also be given to her younger brothers and sisters. 

 

From the foregoing, it is evident that the men appear to also suffer discrimination with regard to their 

deceased wife’s property by being excluded under Itsekiri Customary Law from sharing in same even 

where they substantially contribute to acquisition of the property. However, it is argued that unlike the 

widows, widowers are not on the death of their wives construed as part of the estate of the deceased 

woman to be shared and inherited by members of her family. It has been posited by A. Tedeye,53  that 

this custom is predicated upon the  assumption that the husband would predecease his wife and as such 

would  not usually be present to inherit his  deceased wife’s  property. Henotes  that this inheritance 

practice against husbands where their wife predecease them is being challenged  in several quarters in 

Itsekiri land especially in instances where the deceased woman has no child for her husband and the 

man either substantially contributed to or acquired the property for his wife during  the marriage.54 he 

further remarked that in contemporary times, some men have resorted to  self-help in enforcing their 

rights to their deceased wife’s property either for themselves or the  step children of the deceased who 

cared for her during her life time. 55 It is argued that beyond the legal route, women should be mobilized 

to collectively advocate for their rights of inheritance to their deceased husband’s property as custom is 

not static but dynamic and the  courts will usually give effect to  the current living custom  of a particular 

people inclusive of the Itsekiris.56 Since exclusion of men from inheriting their deceased wife’s property 

is being resisted in certain instances, same should apply in an even larger scale to the women who also 

contribute their own quota in assisting their husbands to acquire and retain such properties.  It is also 

argued that since the present generation are opposed to customary inheritance practices under Itsekiri 

Custom relating to widows and widowers inheritance, it should be reformed so as to ensure its validity 

as it has been held by the Supreme Courtthat courts will only enforce a custom when it  is not outdated 

custom with which present generations cannot be linked57 

 

Children’s Inheritance Rights over Deceased Fathers Property 

One notable feature of Itsekiri customary law of inheritance is that both male and female children have 

rights of inheritance over their deceased father’s property in equitable shares, although the eldest son is 

usually given preference as he has the exclusive right to inherit the deceased father’s residence.58 

Another feature of the system is that all children of the deceased are entitled to inherit irrespective of 

whether they were born by the wives of the deceased or by his concubines. In providing further insight 

into this custom I.E Sagay,59quoting Omoneukarin stated that ‘both the children born in wedlock and in 

concubinage in theory had equal rights, but the former were, want to insist on a better consideration. 

The eldest son who was generally the next of kin had the largest claim’. With regards to children to the 

deceased man in concubinage, the Itsekiri customary laws provides for methods of ascertaining whether 

a child is the legitimate child of the deceased upon his death. These tests as stated by Ogbobine,60 that 

the deceased man introduced the child’s mother to some important members of his family before his 

death as having a child or children for him. 

a. He paid the hospital bills during the period of pregnancy and at the birth of the child. 

b. He was fully or largely responsible for education of the child. 

                                                           
52Ogbobine (n17) 109. 
53A Tedeye‘Widow’s and Widower’s Inheritance Rights in Itsekiri Custom’  (Unpublished Paper presented at Seminar  for 

selected Itsekiri Youths (DAELI Sapele 2010 4) 
54Ibid 6 
55Tedeye (n53) 7. 
56Oyewunmi v Ogunesan [1990] 3 NWLR (Pt 137) 182 (SC). 
57Agu v Ikewibe [1991] 3 NWLR (pt. 180) 385 (SC). 
58Oke (n50) 
59Sagay (n40) 269. 
60Ogbobine (n17) 111. 



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c. The man introduced the child to some of his relatives and friends. 

d. After birth of the child, he allowed the mother to participate in functions organized by members 

of the family such as marriages, burials etc. 

e.  It was known that the woman had prepared food for him or he had eaten in the 

woman’sresidence. 

f. He had   allowed his mother or female relations to assist the woman after delivery of the child 

g. He gave the child a name. 

h. He made other significant utterances that were sufficient to infer that he is the father of the 

child. 

 

It is argued that since Itsekiri Custom is embracing with respect to inheritance rights of children, it 

should be reformed to embrace widowhood inheritance rights. 

 

Transformative Case Law on Widowhood Inheritance Rights 

In the recent judgment of the Supreme Court of Nigeria in the case of Anekwe v Nweke61the apex court 

appears to have come to the rescue in terms of discriminatory inhuman inheritance practices against 

women especially widows and daughters under customary laws. The court reversed itself and departed 

from its earlier judgment in a plethora of cases, 62 and held that the Igbo customary law practice, and 

indeed all customs in Nigeria, which barred a daughter and wife from inheriting the property of their 

deceased father/husband was unacceptable in a civilized society and repugnant to natural justice, equity 

and good conscience.  The facts of this case were that the respondent as plaintiff at the High Court of 

Anambra State in her amended statement of claim filed on the 30th day of May 2000 sought the 

following reliefs:  

 Wherefore the plaintiff claims against the defendants jointly and severally, as follows:  

(a) A declaration that the plaintiff is the person entitled to Statutory  

(b) Right of Occupancy of the piece or parcel of land which is situate at AmikwoVillage  

Awka and Verged Red in her plan no: TLD/AND/92 and filed with this statement or 

claim.  

(c) An injunction restraining  the defendants, their servants or agents from further trespass 

on the said piece or parcel of land  

(d) An order of court compelling the 2nd defendant to remove part of his building 

constructed into the plaintiff’s land  

(e) An order of court compelling the defendants to share the Nwogbo Okonkwo Eli family 

lands averred in Paragraph 16 of this statement of claim. 63 

 

In its decision, the trial high court found in favour of the plaintiff/respondent and granted the 

declaration/injunction while at the same time dismissing the counter-claim of the defendants. 

Dissatisfied, the defendants/appellants appealed to the Court of Appeal which dismissed their appeal. 

Being further dissatisfied, the appellants appealed to the Supreme Court.  In determining the appellant’s 

appeal, one of the questions determined by the Supreme Court was whether the custom of Awka people 

of Anambra State which denies a woman of her right to her deceased husband or father’s property is 

repugnant to natural justice, equity and good conscience. Delivering its landmark judgment on this 

issue, the Supreme Court per Ogunbiyi JSC held:  

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

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

constitute, 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 respondent is not 

responsible for having only female children. The craze for male children for which a 

woman could be denied her right to her deceased husband or father’s property is 

repugnant to natural justice, equity and good conscience.64 

 

                                                           
61Anekwe v Nweke [2014]: 234 LRCN 34 (SC); [2014] LPELR 22697 (SC). 
62Mojekwu v Iwuchukwu[2004] 18 NSCQR 184 (SC). 
63Anekwe (n61) 
64Ibid 



ACARELAR 2 (2021) 

Page | 9  
 

In his own concurring judgment in this case which roundly condemned the Awka custom and other similar 

customs that disinherited a woman from inheriting her deceased husband or father’s property, Ngwuta, JSC 

held thus: 

My Noble Lords… the craze for male children for which a woman could be denied her 

rights to her deceased husband or father’s property is not justified by practical realities of 

today’s world. Children, male or female, are gifts from the creator for which parents should 

be grateful. The custom of Akwa people is barbaric and takes the Awka communities to the 

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

be abolished. 65 

 

The Supreme Court not only declared the Awka custom that denies a woman the right to inherit her husband 

or father’s property as ‘the height of man’s inhumanity to woman’, ‘uncivilized’ ‘and return to the era of the 

cave man’, it emphatically stated its distaste for this discriminatory custom by declaring it repugnant to 

natural justice, equity and good conscience. The apex court went further to state that those practicing such a 

custom in any community in Nigeria should be decisively and punitively dealt with to serve as a deterrent to 

others. The court roundly stated its position in this regard thus:  

Any culture that disinherits a daughter from her father’s estate or wife from her husband’s 

property by reason of God’s instituted gender differential should be punitively and 

decisively dealt with. The punishment should serve as a deterrent measure and ought to be 

meted out against the perpetrators of the culture and custom. 

 

It is submitted that by its far- reaching pronouncement  on the subject matter of discrimination against 

widows and daughters in most cultures of Nigeria, this judgement of the Supreme Court appears to be a 

judgement in rem which is applicable to both parties and non parties to the suit, 66 as it can be generally 

applied with respect to any culture or customary law in Nigeria (inclusive of Itsekiri Customary Law) that 

disinherited a widow from inheritance rights over her deceased husband’s property or estate.   

 

The above decision of the Supreme Court in the Anekwe’s case has revolutionized the law on 

widowhood/female inheritance/succession rights under the various customary laws in Nigeria and 

introduced a new vista and judicial basis   for equitable rights of women to inherit their deceased husband or 

father’s property. The Supreme Court went further to give legal teeth to its decision abolishing such 

discriminatory customary law practices against widow’s and daughters by holding that the perpetrators of 

such uncivilized practices should be decisively punished to serve as a deterrent to others. 

 

5. Conclusion and Recommendations 

This paper concludes as follows: The judgment of the Supreme Court of Nigeria in the case of Anekwe v 
Nweke has revolutionized the customary law landscape of Nigeria and has reinforced the constitutional and 

natural rights of widowsof a deceased man to inherit their husband’s property. Inhuman and uncivilized 

Customary practices which saw widows as chattels to be inherited, have been abolished and declared 

repugnant to natural justice, equity and good conscience. This paper makes the following recommendations: 

The customary marriage practice of paying bride price on women which provides a cultural foundation for 

discrimination and gives the men a wrong feeling of proprietary rights and ownership of their wives should 

be abolished. In the alternative a system where the husband provides gifts for   his wife and her family at 

marriage should be encouraged.   The National Assembly and States Houses of Assembly should urgently 

pass legislations making it a criminal offence to discriminate against widows/females in any form, and 

providing stiff punishment for such discrimination. Courts in Nigeria should fully invoke the provisions of 

Section 42 of the constitution as well as other laws and domesticated international conventions to protect 

women and ensure that their inheritance rights under customary laws are fully enforced. Human rights groups 

and women advocate should lead the struggle to ensure that governments at all levels are alive to their 

constitutional duties of protecting the fundamental rights of citizens, especially women and girls. Women 

should be mobilized to carry out advocacy and peacefully protest and seek changes in widowhood 

inheritance rights and other discriminatory customary law practices against women under Itsekiri Customary 

Law. Immediate steps should be taken to domesticate CEDAW in Nigeria so as to ensure its full applicability.  

 

                                                           
65Anekwe (n61) 
66Adeniran v HRH Oba Ibrahim [2018] 76 NSCQR 111 


