The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

Madonna University, Okija, Anambra State, Nigeria.

The Ike-uwa Custom

The customary law of intestate succession applicable in the Igbo tribe of Nigeria

By

Ikpo, David Nnanna Chukwukadibia LL |08|217

Faculty of Law. Nigerian Property Law Assignment. Lecturer: Dr. Onuoha Reginald
28|12|2011

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

All human beings are born free and equal in dignity and rights....
-Article 1 Universal Declaration of Human Rights (1948)

28|12|2011

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

ABSTRACT
Property Law is the body of trite legal principles which governs the control and regulation of ownership and possession of real estate. Property law in Nigeria- like several other branches of law therein, is sourced from the provisions of precedents, municipal legislations, Doctrines of Equity, English Law and customary law. However all these are subject to the provisions of the Constitution of the Federal Republic of Nigeria as the grundnorm. It is thus obvious that Nigerian Legal Systems regards the indigenous customs of the nigerian people. In further pursuance of this, it is pertinent to note that the Nigerian Property Law has within its scope the devolution of a deceaseds property to successors. This is usually carried out in accordance with the deceaseds personal law except when the deceased left a will to govern such a process. The personal law of a deceased varies from state to state; tribe to tribe; ethnic group to ethnic group ,and are individually distinct. This is usually the indigenous customary law of the deceased intestate. However, this is subject to exceptions and surrounding circumstances. In futher elaboration, this paper seeks to investigate the customary law of intestate succession in the Igbo tribe of Nigeria, using the customary law of intestate succession in Nnono-Oboro and Amuvi (both in Abia State) as case study; whether or not it can be can adopted as the personal law of an individual; whether or not it is contrary to the principles of equity, natural justice and good conscience; and whether or not it has been judicially noticed. In further pursuance of this, it profers solutions to guide the custmory law and practices of Nnono-Oboro and Amuvi to a more apt stance.

28|12|2011

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

Table of Content
The Ike-uwa custom:
Nature As it applies in Nnonno-Oboro; As it applies in Amuvi; Adoption of Ike-uwa custom as personal law; Limitations.

Conclusion Reference

28|12|2011

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

The Ike-uwa Custom

Nature
The Nigerian Legal System, in part, is sourced from the several indigenous customary law native to the several ethnic groups in Nigeria. Amongst these is the Igbo ethnic group. It is one of the three major ethnic groups in Nigeria, and occupies the eastern and south-eastern region of therein. Relative to this work, it submitted that the Igbo ethnic group has a general customary law of intestate succession. However, there are slight distinctions as they vary from place to place within the Igbo ethnic region. To futher appreciate these distinctions, the Ike-uwa1 customary law of intestate succession predominant in Nnono-Oboro and Amuvi of Abia State would be considered. They both operate the patrilineal mode intestate succession.2They subscribe to the general customary law of succession of the Igbo ethnic group. Nonetheless, their technical distinctions are butressed as follows:

As it applies in Nnono-Oboro
Nnono-Oboro is an Igbo ethnic group located in the heart of Umuahia, the capital of Abia State. Its indigenous customary law of intestate succession is referred to as Ike uwa- as has been state above. Under this custom when a married man dies intestate, having contracted his marriage under the customary law, his property devolves to the children of the marriage as family property. However, it is held in trust for them by their mother until they have come of age. But in a situation where the man had married more than a wife according to customary law, his estates would be shared by the kinsmen equally amongst the
1 2

28|12|2011

Literally meaning , Partitioning of the Earth. Where the beneficiaries are the those dependent or related to the man and his parternal side of the family.

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

kitchens3, which in turn are to be share equally amongst the children who eat from those individual kitchens. However, in few cases, the full brothers of the deceased man would lay claims on all the totality of the deceaseds estate or have shares partitioned from the latters estate for themselves under the argument that they had succeeded the deceased in his responsibility of catering for the welfare of his nuclear family; and by extension they have also succeeded him in his title to his estate.4 In a situation where the man who died intestate was unmarried, the ike-uwa demands that the mans estate devolves to his parents in equal shares. However, where the man has a child whom, though is not an issue of any marriage5, was publicly acknowledged6 by the man before his death as his responsibility, such child would inherit the deceaseds estate in its totality. But then, if the child has not come of age, the property would be held in trust for such a child by the parents of the deceased. Conversely, an illegitimate child ,who was neither adopted or acknowledged, would not be entitled to any of the deceaseds property. The Ike-uwa customary practice demands that every kitchen7 is entitled to some property whether or not she had children for the deceased. However, a widow would be more at an advantage if she had children compared to one who did not bear any. The widely spread practice here is that the widow who did not bear any children would be entitled to percuniary benefits and permitted to stay in the deceaseds house and farm on the family land. But in the event of the widows death or remarrying, all those benefits would be withdrawn and devolve to the deceaseds siblings. In the case of a widow who had children, she would be given a fair share of the deceaseds estate 8 which she would hold in trust9 for her legitimate children10 or devolve directly to her children as family property or may be partitioned equally amongst them regardless of their gender. Nonetheless, before a female child gets married off, she relinquishes her title 11 or right12 to property which devolves to her mother - if she is still living, or her siblings in equal shares or jointly. This practice equally applies in situations where the deceased intestate is female. If she was married all her personally acquired property devolves absolutely to her husband.
3 4

This means shared per stirpes or amongst the wives of the marriage equally. Though this not fall within the present customary practice but is acknowledged to have been widely spread, at a time, in Nnono-Oboro. 5 Perhaps was conceived outside wedlock or legitimately adopted according to customary law. 6 This means that the child must been dependent and lived with the deceased for a reasonable length of time before the latters demise to be able to rebutt any other notion to the contrary. 7 Wife married according to the custom and tradition of Nnono-Oboro 8 Including real and personal property , as opposed to the situation of a widow who did not bear a child for the deceased 9 If they have not reached the age of adulthood according to the customary law of Nnono-Oboro 10 Issues of the marriage she had with the deceased 11 If it was exclusive to a particular property which devolved to her by virtue of custom 12 In case of property which devolved directly to her and her siblings as family property

28|12|2011

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

But if she was single before her death, all her property devolves absolutely to her father, in the absence of which it would devolve jointly or in equal shares to her siblings. However, is she had a child outside wedlock, two things are to be considered. In a situation where her child was acknowledged by her father before her death, her property would be vested in father in trust for the child.13But if the said child was not acknowledged by the deceased intestates father, her property would ordinarily devolve absolutely on her father and the child would be left at the mercy of the family of the deceased intestate.14 The next point of call is the Ike-uwa custom as it applies in Amuvi.

As it applies in Amuvi
Amuvi is located in Arochukwu in Abia State. It equally operates the patrilineal mode of intestate succession. It also practices the Ike-uwa. However its own practice of this custom is subject to several distinctions and variances which are distinct to Arochukwu and thus applicable in Amuvi. Under this custom when a married man dies intestate, the customary law demands that his extended and nuclear family meet to decide how his property is shared. The predominant practice is that the property in vested in the deceaseds wife in trust for the children15 or in the eldest legitimate son of the deceased. However there are exceptional situations where the elder male relatives of the deceased holds the property in trust for the deceaseds legitimate children. It also applied in a situation where the deceased man had a polygamous marriage. The extended and nuclear family would equally meet to decide how the deceased property would be shared. The predominant practice is that the deceaseds property is shared per stirpes. But then the eldest son of each the wives would take their shares of their choice in the order of their seniority. Nonetheless, the eldest of the deceaseds legitimate sons would be vested with title of the deceaseds residence. Conversely, where any of the wives either did not bear a male child, or had no child at all, she would be permitted to
28|12|2011
13 14

Assuming the said child can not yet be regarded as an adult under the Nnono-Oboro cutom That is if the said child is not yet an adult under customary law. But if the said issue of the deceased intestate is an adult, he/she may lay claims on the formers property as the next of kin.However, this custom is not widespread. 15 If the deceaseds children cannot be regarded as mature enough to take over the deceaseds property under the Amuvi custom. The definition of maturity in the Amuvi custom is more inclined to character than chronological age.

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

live in the deceaseds residence and farm on the deceaseds land until she remarries or dies. This custom also applies in a situation where an unmarried female dies intestate. Here it is imperative that her estate devolves absolutely to her father, in the absence of which it would be vested absolutely on her eldest male sibling or eldest male member of her extended family. In a situation where the deceased intestate was unmarried and had a child out of wedlock, the child would not be specifically entitled to any of the deceaseds property but would be catered for by the deceaseds siblings and her nuclear extended family. Under the Ike-uwa custom of Amuvi, female and illegitimate issues are not entitled to the landed property of the deceased intestate. Nonetheless, the welfare of the legitimate female children are well catered for by their mothers and the elder male members of their nuclear and extended families.

Adoption of Ike-uwa custom as personal law

It has been observed that customary law16 of Nnono and Amuvi may be adopted by an individual as his personal law through integration and acculturation. This practice could be traced to the later part of the eighteenth century and early nighteenth century.17During this period, indigenes of Arochukwu settled in the present present Ikwuano Local Government Area of Nnono, for the purpose of slave trading. As time went on, they stayed there to raise their family and acquired landed property. After the abolition of slave trade, they became farmers and merchants. They traded on cocoa, palm produce such as palm kernel, palm oil, and other farm products. They got themselves integrated into the Nnono custom and through time they were regarded as indigenes of Nnono. Contemporary practice in Nnono has it that an individual could adopt the customary law of Nnono through integration. As regards the former indigenes of Arochukwu, they practiced both the customary law of Arochukwu and that of Nnono until there was a fusion of the both. This was not much of a hazard because they were both basically Igbo customs. Today, the difference cannot be told between them and the original indigenes of Nnono.

28|12|2011

16 17

The Ike-uwa custom inclusive Before the practice of Slave trade was abolished world wide.

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

The same applied to the Northern cattle rearers who migrated to Abia State a long time ago for business purposes. Through time they have integrated themselves with the custom and values of the various communities in which they settled in Abia State. They have acquired several property, prospered in their business and intermarried with the natives of these communities. They are now accorded the same rights as indigenes of some of these communities. To futher butress this, they are permitted to contest Local Government Council elections- and sometimes they win. However, the practice is slightly different in Amuvi. Non-indigenes of Amuvi are allowed to migrate into Amuvi, integrate themselves with the customs therein thus adopting the customs of Amuvi as personal law. However, they are not accorded the full rights of an nkumasa18. Albeit it is observed that the customary practices in Nnono-Oboro and Amuvi do not always strictly conform with the laid down customary law. As result certain aspects of these customs become stale and obsolete with the passing of time.

Limitations
In as much as the Ike-uwa customary law of Nnono and Amuvi are trite and widely spread and accepted practices, their application is subject to certain exceptions and limitations. These exceptions include the following instances: Where the deceased, before his/her death, orally allocated some property to certain individuals, in the presence of his kinsmen.19 The oral or numcupative will of the deceased is usually regarded above the Ike-uwa custom provided that it can be proved by credible witnesses who are still alive after the demise of the deceased. The familys consensus may sometimes be regarded above the Ike-uwa custom. This usually becomes the case when sharing the property per stirpes would lead to unfairness. Here the family may decide to share the property per capita.20 In some exceptional cases, the family may decide to vest landed property in the legitimate female offspring of the deceased on the grounds that she would not get married but stay
28|12|2011

18 19

An original indigene or descendant of an original indigene of Amuvi. Or other credible witnesses 20 Equally amongst the legitimate male offsprings of the deceased. However it still applies that eldest son still makes his choice of the shares before younger his younger siblings.

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

10

remain in the deceaseds house to manage his estate and bear other children who would bear the family name and be regarded as his own children.21 Another limitation is that as time passes, the widely spread definition of fairness and propriety as regards the custom and practice of the Nnono and Amuvi people may be inclined to some alterations and modification. As is unarguable, customary law is flexible and dynamic. Albeit the case, the application of the Ike-uwa custom would be struck out if the deceased had contracted a statutory marriage or christian marriage. This would imply that he/she had adopted the English Law as his personal law. 22 In the event of this, the Ike-uwa custom would no longer hold prominence in the devolution of the deceased intestates property thus letting the statutory law23 of intestate succession hold sway. The Statutes of Distribution provide that if there is a widow and issue, the widow will get one third of the personal property, and that if there are no issues, one half. The Intestates Estate Act provides additional protection in that if a widow has no issue, she will receive all personal property that is not in excess of 500 pounds, or get 500 pounds absolutely and her share in the residue. The rest would go to the next of kin by proximate degree, being either the father or mother of the deceased. In either case, under the English statutes, the widow does not get real property, rather, it devolves onto the heir through the principle of primogeniture. Should the wife die intestate, however, the husband takes everything.24

21

28|12|2011

This usually occurs when the female child is the only offspring of the deceased. But such practice is getting obsolete. 22 Here the rule in Cole v. Cole(1989) 1 NLR p.15 would apply. Here it was held by the Full Court that Christian Marriage clothes the parties to such a marriage and their offspring with a status unknown to native law and that English Law would regulate any intestacy in this situation. 23 The applicable statutes in this light are the English statutes applicable in England and received in Nigeria before 1st January, 1900. These include: Statute of Distribution 1670; Statute of Distribution. 1685; Intestates Estate Act 1980 24 http://www.nigerianlawguru.com/articles/customary%20law%20and%20procedure/WOMEN%20INHE RITANCE%20RIGHTS%20IN%20NIGERIA,TRANSFORMATIVE%20PRACTICES.pdf (31|12|2011)

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

11

Conclusion
The body of the Ike-uwa custom25 has not yet been codified in Nnono but is passed down from generation to generation. It has been generally accepted by the Nnono people. It is submitted that recently, no part of it has been repealed for being repugnant to natural justice, equity and good conscience, nor has been struck out for being incompatible with public policy and superior statutes such as the Constitution. 26 In this light, it has been accepted by the customary and magistrate courts in Abia State. It may thus be infered that the judicial precedents and records of Nnono cases ,on devolution of property, are the only available codification of the Nnono custom. However, the body of the customary law of Amuvi are enshrined in the Arochukwu Archives. From time to time part of the custom is repealed for being repugnant to natural justice, equity and good conscience. Having thoughtfully considered all these, I am of the opinion that the Ike-uwa customs of Nnono and Amuvi are harsh and discriminatory as regards their stance on the rights of the female child, illegitimate children and children born by unmarried women to succession of the property of the deceased intestates property. Relying on the provisions of Nigerias International commitments27, the related aspects of these customs translate to gross discrimination against this category of individuals and thus repugnant to natural justice, fairness and good conscience . To further butress this, it is pertinent to bring to light the provisions of the International Convention on the Economic Social and Cultural Rights. Article 2(1) and 3 of ICESCR states: [R]ecognizing womens rights to be free from discrimination and to equality with men. Human Rights of Women and Children are embodied in International, Regional and National Instruments. Foremost among them is the Universal Declaration of Human Rights (1948)28. It stipulates in Article I that: All human beings are born free and equal in dignity and rights It states further in Article 2 that everybody is entitled to all rights and freedoms set forth in the Declaration without distinction of any kind, such as race, colour, sex, language, religion etc. Of particular importance Article 25(2) which states that Motherhood and Childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.29
25

28|12|2011

Alongside other aspects of the customary law The Constitution of the Federal Republic of Nigeria 1999 as amended. 27 Convention on the Elimination of all Forms of Discrimination Against Women;Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa; Convention on the Rights of the Child and a host of others.
26 28 29

Adopted on 10 December 1948 by the United Nations General Assembly (UNGA). The voting was forty-eight for and none against while eight States abstained. See UN Do. A/811.

th

Women and Childrens Right in Nigeria www.wacol.org

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

12

This is moreso the case as it would, unarguably, be in further pursuance of propriety that the Ezes and families of Nnono and Arochukwu subscribe to the school of thought and stance of the Court of Appeal in Mojekwu v. Mojekwu30 where it declared the oliekpe custom of Nnewi - which demands the exclusion of female children from inheritance, discriminatory. This propriety can be achieved as this would set good instances to the rest of Igbo land, Nigeria and Africa who still practice such discrimatory customs. 31 In conclusion, It is advised that we, in our individual famlies and societies should be committed and steadfast in our struggle for promotion and protection of women and childrens rights. There are no short cuts to lobbying, agitating, and advocating for these rights. Rights entrenched in the International bill of human rights are results of struggle. Nothing but serious commitment is needed to change attitudes and realize equality. According to Peter Meyer Amnesty International, The demand must be constant and vigil unflagging32.33

30 31

[1997] 7 N.W.L.R 283 This could be achieved through a consistent orientation exercise to enlighten the natives of these communities on the evils and impropriety of discrimination of women folk. This also could be achieved through the codification of the customary law domesticating all these International commitments in the Bye-laws of Nnono and Arochukwu-provided Nigeria has domesticated it and it is not inconsistent with Sections 1 and 12 of the Constitution of the Federal Republic of Nigeria 1999. 32 Peter Meyer, The International Bill: A Brief History in the International bill of Human Rights edited by Paul Williams, P. xlv. 33 Women and Childrens Right in Nigeria: www.wacol.org

28|12|2011

The Ike-uwa custom of Nnono-Oboro and Amuvi | Nierian Property Law|LL|08|217

13

Reference
Interviews with Chief & Lolo Onyemachi Ikpo, Ugochinyelu I of Uha luda, Nnono http://www.nationalaccordnewspaper.com/index.php?option=com_content&view=articl e&id=2903:assessing-womens-rights-in-nigeria&catid=57:features&Itemid=85 (31|12|2011)
http://www.nnngo.org/content/nigeria-joins-world-mark-international-widows%E2%80%99day(31|12|2011) Women and Childrens Right sourced from the archives of Woman Aid Collective, Nigeria; www.wacol.org http://www.un.org/womenwatch/daw/beijing/beijingat10/I.%20Human%20rights%20of%20w omen%20(Sep%2009).pdf (31|12|2011) http://www.nigerianlawguru.com/articles/customary%20law%20and%20procedure/WOMEN %20INHERITANCE%20RIGHTS%20IN%20NIGERIA,TRANSFORMATIVE%20PRACTICES.pdf (31|12|2011)

28|12|2011