Nigeria is a fairly heterogeneous country by region, religion, class structure, politics, and customary laws. Historically, it is the most populous country in Africa, the largest democracy in Africa, and the fourth-largest democracy in the world, with about 49.36% of the population being female (Trading Economics, 2015). With the existing notion of “African customary law,” what affects the rights of Nigerian women logically affects a significant portion of African women (Ojilere & Gan, 2015b).

The contents of some Nigerian customary laws are mirrored in other African countries, hence the notion of African customary law (Omotola, 2004), which Mamdani (1997) prefers to describe as a part of Africa’s legacy of colonialism and who joins Ranger and Hobsbawm (1983) in contesting the oft-claimed “ancient origin” of African tradition and customary law.

Over the years, the subjugation of women and disrespect for women’s rights have become global (Ezer, 2006). In Nigeria, based on local beliefs in ancient mythology (Ojilere & Gan, 2015b), male primogeniture (Edu, 2016),¹ patriarchy (Makama, 2013), and gender bias (Ojilere, 2009; Ojilere & Chukwumaeze, 2010), women are typically considered as inheritable “properties” of men rather than their equals (Staveren & Ode bode, 2007).

Most African communities, though erroneous (Mamdani, 1997), view customs and practices which subjugate women and deny them property inheritance rights as part of ancient, static, and “unchangeable” gender norms (Lambrecht, 2016). In Nigeria, however, the ownership of land or other immovable property usually flows from inheritance, government allocation, purchase, or gift. Sections 34, 42, and 43 of the 1999 Nigerian constitution (as amended) respectively guarantee the fundamental right to human dignity, freedom from discrimination, and the right to own property anywhere in the country. Remarkably, these protections are gender neutral. It is therefore unreasonable that under customary law women and girls cannot inherit property from a husband’s or father’s intestate estate (Kolawole & Adeigbe, 2016). Such exclusion naturally impedes women’s capacity to support their children’s education and economic development (Mutondoro, Ncube, & Addah, 2016).

It is important to note that not all customary laws victimize women. However, it is commonplace, especially in South-Eastern Nigeria, for male family members to dispossess women of landed property when their husbands die (Eboh, 2016) and these brave women often resort to litigation. Relying on two landmark judgments of the Supreme Court of Nigeria, namely Anekwe v. Nweke (2014) and Ukeje v. Ukeje (2014), this paper highlights the new and progressive judicial decisions that are serving to uphold women’s rights to inherit immovable property under customary law.

This change in laws actually derives from compelling local and international agitation for the globalization of women’s dignity and human equality (Dibie, 2016). Positive reforms for women rights have also been enacted in Tanzania, Kenya, Rwanda, Uganda (Dancer, 2017; Manji, 2015), and South Africa (Diala, 2014). However, with the Nigerian, indeed African, conservatism on traditional matters (a reason why women’s access to land and landed resources has not automatically improved even with gender-progressive laws [Dancer, 2017; Durojaye, 2013; Mutondoro et al., 2016; Ranger & Hobsbawm, 1983]), only time will show if, how, and to what extent these reforms will permeate the lives of people, especially the rural dwellers who view customary law as a sacred and “unchangeable” ancestral legacy.

Apart from the issues that arise from not bearing a male child who will continue the family lineage, women in Africa suffer denial of rights, discrimination, abuse, divorce, or outright abandonment in marriage, including expulsion from a husband’s house by the husband himself or by his family, with or without divorce (Okonofua, Harris, Odebiyi, Kane, & Snow, 1997). Women who are married under Nigeria’s Marriage Act do not suffer such abuse without proper divorce. This is because while the property rights of women of customary law marriages are regulated by native law and custom, couples who marry under the Marriage Act are not subject to the inheritance procedures of customary law. For instance, under section 69 of the Matrimonial Causes Act Chapter M 7 Laws of the Federation of Nigeria 2004, “‘marriage’ includes a purported marriage that is void, but does not include the one that entered into according to Muslim rites or other customary law.”² Consequently, a widow of a statutory marriage can inherit her husband’s property (Ekhator, 2015).

Nonetheless, cases abound of widows who, although married under the Marriage Act, were nevertheless barred by male relatives from their deceased husbands' assets (Ezeilo, 1998); hence, Anyogu (2016) cites marriage as “the (other) reason” why women’s dignity and property rights are violated in Nigeria. In the Nigerian case of Oloko v. Giwa (1939), the court held that a widow had no right of land ownership or succession under the customary law, but that she had a right of residence in the family house during her widowhood, conditional upon her good behavior. This confirms a higher vulnerability of widows of customary law marriages; hence, statutory marriage is considered “a progressive step” for protecting the rights of divorcees and of widows when their husbands die (Ezejiofor, 2011, p. 145).

Notably though, not all Nigerian or African customary laws violate women’s property rights (Tsikata, 2016). For instance, Yoruba women in Nigeria can inherit from their parents, brothers, or sisters under native law and custom but usually not from their deceased husbands (Aluko, 2015). This custom is considered rather friendly to the unmarried woman/girl and not to the married woman (Familusi, 2012). Under Islamic law, women similarly inherit certain portions of their deceased father’s estate, though some voluntarily concede this right to their brothers (Kabeer, 1999).

The customary law of the Akan (Asante) people of Ghana favors women because property inheritance is matrilineal and descent is traced through the female lines (Aidoo, 1977). Furthermore, the Asante Kingdom is headed by a King known as the Asante-hene who occupies the famous matrilineal “golden stool” (Adu-Agyem, Agyapong, & Agyei, 2013; Bolaji, 2016; McLeod, 2014) but whose selection, office, and authority must be approved, blessed, and conferred exclusively by the Queen Mother (Hagan, 1968) who is revered as the kingdom’s most prominent socio-cultural, spiritual, and political leader (Aidoo, 1977; Akyeampong & Obeng, 1995). The general reverence for womanhood in Asante mythology is reflected in the Asante proverb: Obaa na owoo obarima, Obaa na owoo ohene (meaning, it is a woman who gives birth to a man, it is a woman who gives birth to a king) (Aidoo, 1977).

Among the Kalbeo people of Northern Ghana, a male family head who has only daughters may appoint one of them not to marry but bear children at home to continue the family lineage (Kaunza-Nu-Dem, Tijani, Millar, & Humphrey, 2016). Similarly, a well-to-do woman who is childless may keep other women as “wives” to bear her children. In both cases, the women are seen as “men” and they enjoy land ownership rights like other men in the community.

In Zimbabwe, women constitute 52% of the national population and enjoy significant rights of land use and management, albeit with very limited direct access to land through inheritance or purchase (Chigwenya & Ndhlovu, 2016). This is similar to Kenya, where ambiguity or uncertainty regarding women’s rights to acquire, own, or use land inhibits effective investment in property and the management of land (Joireman, 2008).

Contemporary feminists also show possibilities for women under customary law and customary tenure regimes in Africa. According to Cotula (2007), contemporary changes in land tenure systems have created a new concept of “winners and losers” whereby competition for land is so liberalized and monetized that anybody of means, irrespective of gender, can gain control of and access to valuable resources, including land. Such individualization and commercialization of land effectively diminishes the perceived legitimacy of customary systems which disadvantage women. This feminist perspective supports the finding of South Africa’s Constitutional Court in Alexor Ltd & Another v. Richtersveld Community and Others (2003) that, “indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life.”

On the other hand, Ossome (2014) argues that most rural African women have a limited and narrow understanding of the registrable interests employed in titling programs, and that for the vast majority of married women, interests in family land are held on account of marriage only, which for most women is based on customary law. Similarly, Toulmin (2009) posits that conventional land registration systems in sub-Saharan Africa have generally not worked well because they are usually complex, expensive, and slow to implement; hence, poorer and vulnerable groups like women tend to be excluded from getting formal title for the land on which their home is built or on which they farm.

This mixed feminist ideology on women’s right to property under African customary law underlines women’s vulnerability regarding land ownership rights in Nigeria and beyond.

The phrases “Nigerian customary law,” “customary law,” “native law and custom,” or “customary law in Nigeria” are used interchangeably (Oba, 2002). For most jurists, anthropologists, lawyers, and scholars, customary law has no specific definition (White, 1965). Grammatically, “customary” means a generally accepted behavior, a tradition; that is, doing things “in accordance with custom or habitual practice.” It is one of the legacies of Nigeria’s colonialism and a source of the pluralistic legal system practiced in most African states (Ndulo, 2011).

Customary law in Nigeria is, therefore, a generic term which describes the Islamic law of the Yoruba of Western Nigeria and the predominantly Muslimdominated Hausa of Northern Nigeria as well as the native law and custom of the predominantly Christian-dominated Southern Nigeria (Alkali, Jimeta, Magashi, & Buba, 2014). In these systems, Nigerian women’s right to equality and property inheritance have been violated (Diala, 2014), even though the Islamic Qur’an 4.7 grants proprietary rights to men and women (Olomojobi, 2015), albeit in different ratios.

Unlike in some African countries, Nigerian customary laws are uncodified and “largely unwritten” (Elias, 1972). However, adherents believe they were handed down by their forefathers from time immemorial (Agbai v. Okogbue, 1991). In contrast, other scholars (Mamdani, 1997; Ranger, 1997; Ranger & Hobsbawm, 1983) have argued instead that many traditions reflected in the so-called customary law are neither of ancient origin nor sanctioned by long usage, but were “invented” comparatively recently by Africa’s European colonialists.

Nonetheless, under the repugnancy doctrine (Asiedu-Akrofi, 1989),³ introduced by British colonialists (Uweru, 2008), customary law is recognized in Nigeria alongside other sources of law, namely, case law (judgments of superior courts), parliamentary legislation, and the statutes of general application (English colonial laws which have not yet been repealed). Consequently, customary law governs kinship, personal status, land tenure, inheritance, and communal resources in Nigeria (Malemi, 2012) and most Africa countries (Joireman, 2008). Unfortunately, they commonly disadvantage women because they are made by men (Effeah, Mbachu, & Onyebula, 1995).

In Bhe v. Magistrate Khayelitsha; South African Human Rights Commission v. President of the Republic of South Africa; Shibi v. Sithole (2005), the South African Constitutional Court distinguished between “official customary law” and “true customary law,” and described true customary law as one which recognizes and acknowledges “the changes which continually take place,” while official customary law is a rather “poor reflection, if not a distortion of the true customary law” (Claassens & Mnisi, 2009).

The Nigerian legal system is mixed and lacks uniformity. It consists of the 1999 Constitution (as amended), the received English law/common law, Acts of the National Assembly, Islamic Shari'a law, and customary law, each being irreconcilably different in terms of their concept of justice, procedural law, substantive law, and worldview (Oba, 2013). There is also no uniformity of Nigerian customary laws on succession (Itua, 2012). Instead, courts across Africa recognize them as a second body of law, alongside statutory law; hence, customary law continues to have an overwhelming influence on indigenous people in both rural and urban areas since it generally regulates their personal affairs such as marriage and inheritance (Joireman, 2008).

This was justified in Oyewunmi v. Ogunesan (1990), where the Supreme Court, per Obaseki, JSC, defined customary law as:

The organic or living law of the indigenous people of Nigeria, regulating their lives and transactions; it is organic in that it is not static, is regulatory in that it controls the lives and transactions of the community subject to it sway.

Similarly, in Kharie Zaidan v. Fatimah Khalil Mohsen (1973), the Supreme Court, per Elias, CJN, defined customary law as:

A system of law, not being the common law (of England), and not being a law enacted by a competent legislature in Nigeria, but which is enforceable and binding within Nigeria as between parties subject to its sway.

Consequently, couples who contract a statutory marriage would still be expected to marry under customary law or Islamic law as the case may be (Imam-Tamim, Mohd Zin, Ibrahim, & Che Soha Yusoff, 2016), and upon intestacy, the “personal law” of a deceased, that is, the customary law to which he was subject, governs the distribution of his estate (Oni, 2014). Prior to 2014, Nigerian courts in Suberu v. Sunmonu (1957), Nezianya v. Okagbue (1963), Akinnubi v. Akinnubi (1997), Nzekwu v. Nzekwu (1989), and Obusez v. Obusez (2001), upheld, albeit erroneously, the validity of some customary laws which denied women the right to inherit their deceased husbands’ estate and denied girls the right to inherit their deceased fathers’ estate. Remarkably, the recent landmark decisions of the Supreme Court of Nigeria in Anekwe v. Nweke (2014) and Ukeje v. Ukeje (2014) reversed this discriminatory customary practice, thereby confirming that judicial activism is paramount for the sustainable guarantee of women’s rights to equality, dignity, and property.

Section 43 of the Nigerian Constitution guarantees citizens’ rights to acquire and own immovable property anywhere in the country. Section 34 (1) (a) guarantees respect for human dignity and prohibits torture and inhuman or degrading treatment, while Section 42 thereof guarantees the right to freedom from discrimination, deprivation, or disability by reason of ethnicity, religion, place of birth, gender, or circumstance of birth. Cumulatively, these provisions underline Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which empowers women to own or alienate immovable property anywhere. The same applies to Article 2 of the African Charter, which affirms every individual’s right to enjoy the rights and freedoms recognized and guaranteed thereunder without distinction of any kind such as sex, social origin, fortune, birth, or other status.

Unfortunately for Nigerian women, these rights are inhibited by some socio-cultural and other factors such as stereotypes; constitutional provisions ignored or not translated into practice; ignorance of legal rights; lack of political will to bridge the gap between high-level commitments and actual implementation practice; and the inability to localize international law (Merry, 2009).

Nigerian customs, especially among the Ibo, abhor women’s right to inherit property (though they may acquire such by purchase for the men to own and inherit) (Obi, 1963). One such custom is Nrachi (Igbo vernacular meaning “to fill-up”; “to seal”; “a complement” or “supplement” [indicating that the daughter would fill-up the male-child “vacuum” in her father’s household]). It is alternatively known as Nhachi (Igbo vernacular meaning “replacement” or “to replace”). The other discriminatory custom is Oli-Ekpe or Ili Ekpe (Igbo vernacular for “the inheritor,” or “one entitled to inherit”).

These customs/rites determine the rules of inheritance and succession to property under customary law, especially in South-East Nigeria (Dada, 2014). Among the Nnewi people of Anambra State, Nigeria, the Nrachi or Nhachi ceremony permits a man who has no male child to keep one of his daughters at home to remain unmarried for the rest of her life and bear children, especially males, on his behalf to succeed him (Worugji, 2013). Such a daughter technically becomes a “man” in her father’s household, and may then be counted among the Oli-ekpe or Ili-ekpe, that is, inheritors of intestate property under customary law (Obidimma & Obidimma, 2015).

These rites are symbolic, mainly “theoretical” and rarely observed in practice; hence, Lastarria-Cornhiel (1997) describes them as deliberate acts of privatization intended to institutionalize patrilineal control of land to the exclusion and disadvantage of women. They inhibit Nigerian women from participating in home ownership (Adegoke, Adegoke, & Oyedele, 2016) and demean their dignity and self-worth (Ojilere, 2015; Okafor, 2014) in breach of relevant constitutional provisions.

In Nezianya v. Okagbue (1963) and Akinnubi v. Akinnubi (1997), previous Nigerian superior courts endorsed the custom which held women to be part of a deceased’s estate to be inherited by the males (unfortunately, this practice still exists in Cameroon [Pemunta, 2017] ). The Nigerian Court of Appeal later adopted an emerging approach against both customs. In Mojekwu v. Ejikeme (2002), Mojekwu v. Iwuchukwu (2004) and Motoh v. Motoh (2011), it declared unconstitutional and void the Oli-ekpe custom of the Nnewi and Awka people which entitled a male cousin of a deceased to inherit his property to the exclusion of his biological daughter where the deceased had not performed the traditional Nrachi ceremony for her. It held that a daughter could inherit her deceased father’s estate without the Nrachi ceremony having been performed.

Similarly, in Timothy v. Oforka (2008) the court emphasized that:

No law or custom that stands in the way of our Constitution should be allowed to stand tall no matter the circumstance. With regard to the customary law divesting women of the right to inherit property, it is pertinent to note that it is one of the laws or customs which stands in the way of our Constitution in that it permits the males to inherit and own property to the detriment of the females whom it perceives are not capable of inheriting landed property. This is nothing other than a needlessly discriminatory custom which ought to be deprecated in the strongest of terms not only because it is grossly unconstitutional but also because it is repugnant to natural justice equity and good conscience.

The custom equally contradicts the essence of core international human rights instruments (Durojaye, 2013), even though Engeland (2014) argues that positive law should not oppress indigenous populations because the denial of local culture and systems of laws can be destructive for a community.

Notably, these discriminatory practices ordinarily emanate from an Afrocentric socio-cultural or religious conservatism whereby, relative to the male primogeniture rule (Kolawole & Adeigbe, 2016), women/daughters are considered inferior and subordinate to men/sons (Nnadi, 2013; Omotola, 2004).

Two notable judgments of Nigeria’s Supreme Court consolidate earlier ones by the Court of Appeal on the unconstitutionality and nullity of Ibo customs which disentitled women from inheriting property under customary law. Because judicial precedent and court hierarchy are consequential in Nigeria (Diala, 2014), those two judgments have become the locus classicus on Nigerian women’s property rights under customary law.

First, in Anekwe v. Nweke (2014), the plaintiff was a widow. She instituted an action at the Awka Division of the Anambra State High Court in 1991, praying for a declaration that she was entitled to statutory right of occupancy of a parcel of land that she inherited from her husband. The defendants were half-brothers of the plaintiff’s late husband. They had told the plaintiff to vacate the property because she had six female children only and no male child, and that under Awka customary law she had no right to inherit land unless she purchased same with her money.

The plaintiff refused to vacate the land and insisted that she was entitled to inherit her husband’s property even though she had no male child. She averred that the Ozo Awka society (a traditional elders’ council of Awka people) had earlier arbitrated the dispute and confirmed her right to inherit and remain on the land, even without a son. She further averred that both the High Court and Appeal Court had given judgments in her favor. The defendants were nonetheless dissatisfied and finally appealed to the Supreme Court.

The court identified the crux of the appeal as thus: whether the respondent (plaintiff) who had no male child could inherit the property of her late husband. It answered this in the affirmative and condemned the existing custom of the Awka people for being punitive and uncivilized, saying it “merely promotes the selfish domination by the men to suppress the inheritance rights of women” (Nnochiri, 2014). It specifically remarked that:

• 1. For a widow 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 barbaric, worrying and flesh-skinning.
• 2. One would expect that the days of such obvious differential discrimination are over, and 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 dealt with as a deterrent to the perpetrators of such culture and custom.
• 3. A custom of this nature in the 21st century will only tend to depict the absence of the realities of human civilization (Nnochiri, 2014).

This decision was later invoked in Mgbodu v. Mgbodu (2015) when a Court of Appeal in Enugu ruled that the birth circumstances of a Nigerian citizen cannot constitute a valid ground for disabling, depriving, or denying them the right to inherit or partake in the inheritance/administration of the estate of their father/husband to which they are ordinarily entitled.

In the second landmark case, namely, Ukeje v. Ukeje (2014), the plaintiff, Miss Gladys Ada Ukeje (a daughter of Mr. Lazarus Ogbonna Ukeje, who died in 1981) sued Mrs. Lois Chituru Ukeje, (widow of the deceased) and her son, Mr. Enyinnaya Lazarus Ukeje in the Lagos State High Court, claiming that as one of the children of the deceased, she ought to benefit from her father’s estate notwithstanding customary law to the contrary. The trial court and the Court of Appeal found for her but Mrs. Lois Chituru Ukeje and her son further appealed to the Supreme Court, which also affirmed the earlier judgments and dismissed the appeal.

It also voided the Ibo customary law which disentitled female children from inheriting land or immovable property of their deceased fathers as repugnant to natural justice, equity, and good conscience, and violating both Section 42 (1) (the right to freedom from discrimination on the basis of sex or circumstance of birth) and Section 42 (2) (the right to acquire and own immovable property) of the Nigerian Constitution.

These judgments confirm, inter alia, that judicial activism (progressive judgments of courageous judges) is fundamental for invalidating obnoxious customary practices and reversing negative cultural beliefs which threaten women’s equality and property rights. They also place Nigeria’s Supreme Court on a par with its rights-sensitive counterparts in South Africa (Kapiszewski, Silverstein, & Kagan, 2013) and India (Mate, 2014). The quest to globalize human rights, gender justice, and fundamental freedoms, pursuant to local and international agitation, must have weighed heavily on the court’s mind in deciding the instant cases.

The Supreme Court is Nigeria’s highest court⁴ and its decisions are final and form the basis of case law as a source of law in the country. They are binding on all persons, institutions, and authorities in Nigeria,⁵ and based on the doctrine of stare decisis (judicial precedence), all other courts must apply them in determining women’s property rights under customary law.

Notably, the extraordinary power of courts to issue prerogative writs is particularly compelling and may even void existing legislation which is inadequate, misinterpreted, commonly unenforceable, or lacking “the willingness to secure women’s dignity, equality and property rights” (Aniekwu, 2006). This further confirms the certainty of judicial activism in securing women’s rights globally.

The decisions in Anekwe v. Nweke (2014) and Ukeje v. Ukeje (2014) reiterate the repugnancy doctrine in relation to the validity of customary law and underline a refreshing position on Nigerian women’s dignity and property rights (Chinwuba, 2015) but with obvious gaps. Diala (2014) observed, and rightly so, that the judgments failed to specifically abolish the male primogeniture rule in South- East Nigeria but merely declared it inconsistent with relevant constitutional provisions. This may raise technical doubts regarding the intention of the judgments to finally and permanently resolve the primogeniture issue across Nigeria. The judgments may also seem parochial because they do not define their territorial reach or make reference to protecting the property rights of women in other parts of Nigeria (Diala, 2014). However, since neither case was a class action, and considering the privity rule, the court may have been careful not to give judgment to a stranger or grant to a party what was not prayed for.

Despite these gaps, this new judicial approach to Nigerian women’s equality and property rights surpass even the situation in Botswana, which is one of Africa’s two most enduring (Good, 1999), politically stable, and liberal post-independence democracies (Leslie, 2006), where the concerted agitation by the NGO Emang Basadi (“Stand Up, Women!”) seeking to persuade the government to change discriminatory laws and policies against women still faces serious challenges (Leslie, 2006).

It also surpasses the situation in Kenya, where the official law permits women to own and inherit land (Harrington, 2008) but does not particularly eliminate institutional, informational, or cultural barriers which prevent women from claiming those rights (Kameri-Mbote, 2006), a reason why its 2012 land reform is considered neither positive nor transformative (Manji, 2015).

Many socio-legal factors inhibit Nigerian women’s property rights. Customary law and statutes on women’s property rights across Africa are not even uniform. Some are supportive, others are inhibitive or even entirely prohibitive, but in all, the judiciary remains the arbiter (Ojilere & Gan, 2015a).

Dedication to patriarchy, primogeniture, and the practice of customary intestacy/succession by most rural people pose serious challenges to existing constitutional guarantees on equality and non-discriminatory property rights, and even the advancement inherent in Ukeje and Anekwe. Statutory provisions and exclusions which ordinarily limit sustainable women’s rights to inherit property, even under a will, may equally be invoked to circumvent the judgments. For instance, Section 49 (5) (b) of the Administration of Estates Law 1959 provides that:

Any real property, the succession to which cannot by customary law be effected by testamentary disposition, shall descend in accordance with customary law, anything herein to the contrary notwithstanding.

Section 3 (1) of the Wills Law of old Bendel State, Cap 133 Laws of Western Nigeria 1958, applicable to Lagos, Ogun, Osun, Ondo, Oyo, Edo, and the Delta States, also provides that:

Subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of by his will executed in a manner hereinafter required, all real and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law.

These exceptions make women more vulnerable by holding customary law superior to testamentary dispositions, thereby tilting towards primogeniture and patriarchy, albeit only slightly. Given this exclusion, land which is mostly governed by customary law is rarely disposed of by will (Nwogugu, 2014) because in most African societies, matters of marriage, inheritance, and traditional authority are strictly governed by customary law (Ndulo, 2011). Thus, in Uwaifo v. Uwaifo (2013) the Supreme Court held that in line with section 3 (1) of the Wills Law of old Bendel State, the Igi-ogbe custom of the Bini people, which gives the eldest son of a deceased the exclusive right to inherit the family homestead, overrides a father's testamentary wish to the contrary.

It is also challenging that under Section 46 (1) of Nigeria’s Constitution, only the high courts have original jurisdiction on actions for the enforcement of fundamental rights,⁶ and such matters can only lie with the Supreme Court on final appeal from the Courts of Appeal under Section 233 (1). The economics of litigation from a High Court to the Supreme Court may be unaffordable and discouraging for a poor widow disentitled of property, except in rare cases when some spirited persons or NGOs come to the rescue (Onouha, 2007).

Also in relation to the economics of litigation, Section 46 (4) (b) of Nigeria’s constitution does not enshrine “legal aid” as a justiciable fundamental right nor does it impose any positive obligation on the state to provide legal aid. It merely empowers the National Assembly to make provisions for the rendering of financial assistance to any indigent citizen with a view to enabling her to engage the services of a legal practitioner.

Specifically, the Legal Aid Act, Cap L9 Laws of the Federation of Nigeria (2004) empowers the Legal Aid Council to render legal aid to “needy persons” standing criminal trials or those pursuing civil accident claims only. Unfortunately, the second Schedule to the Act, which makes a list of eligible instances for legal aid, does not include civil actions for the redress of violation of women’s dignity or property rights. Lack of legal aid may, therefore, threaten sustainable women’s property rights in Nigeria. It is equally challenging that the Nigerian Constitution makes no provision for NGO participation in the monitoring of violations of women’s equality and property rights, as is desirable. Instead, the government sometimes stigmatizes some human rights activists and allied NGOs as “opposition campaigners” and “enemy institutions” seeking the collapse of the existing political status quo (Ogunniran, 2010).

There is also no special Constitutional Rights Court in Nigeria; hence, actions for breach of women’s equality or property rights may suffer delayed justice due to oft-congested Cause lists. This is unlike India’s Supreme Court and South Africa’s Constitutional Court, which are both special first instance courts for writ petitions and matters relating to the Bill of Rights (fundamental rights), respectively. Relatedly, the epistolary jurisdiction of courts in India permits courts to take cognizance of and hear writ petitions based on personal letters addressed to the court or mere media reports of fundamental rights violations (Baxi, 1985; Bhagwati, 1984).

On a social note, leaving aside issues of impecuniosity, reluctance, and timidity (Onouha, 2007), patriarchy is one major threat to legislative and judicial advances on women’s property rights across Africa. Silence, fear of stigma, and the misconception (often promoted by elderly women) that it is immodest for women to ‘intrude’ in property and inheritance issues ordinarily reserved for men also encourage denial of women’s property rights. Women are often pressurized by their families and communities not to seek formal legal recourse for rights violations but to resolve them domestically (Gedzi, 2012). In parts of Ghana, women who refuse such advice are threatened with spiritual affliction (Gedzi, 2012). Wrong and negative interpretation of customary law by men, who are usually its makers, beneficiaries, and trado-political custodians (Leal, 2015) also inhibits women’s property rights.

The dogged devotion and unwillingness to abandon traditional rites/beliefs, especially in a mixed/plural legal system like Nigeria’s, raise pertinent concerns regarding the interrelatedness of customary law and women's rights. Oni (2014) posits that the perceived dichotomy in dignity and property rights in Africa are largely “man-made” and not ancestral or inherent in customary law (Claassens & Mnisi, 2009); hence, the rampant agitation for women’s equality in property rights across Africa (Peters, 2004). This strengthens the idea of abandoning the “official customary law” imbued with discrimination for a robust and flexible “living customary law” endorsed by reformist courts (Claassens, 2013). This will synchronize cultural understanding and legal reform (Richardson, 2004), though Enabulele and Bazuaye (2019) argue that determining the validity or judicial enforceability of native law and custom lies solely in the assent of the people and not of courts.

In Nigeria and most of Africa, women suffer inequality or denial of property rights on the basis of local land tenure systems which usually draw their legitimacy from local traditions commonly termed “customary” (Cotula, 2007). Unfortunately, most women are reluctant, financially handicapped, or too timid to be able to decisively litigate these customary violations unless with the assistance of NGOs (Onouha, 2007).

The Nigerian Supreme Court judgments in Ukeje and Anekwe confirm that unless constitutional rights are transformed into actual judicial remedies, their theoretical content will remain diminished or else denuded of any real value (Oputa, 1989). This is possible through the codification and unification of customary laws; the harmonization of principles of natural justice with customary laws; the decisive application of natural justice principles; and public enlightenment, as well as broad public support for NGOs and allied civil society groups supporting women’s rights. It is also to be hoped that, in subsequent cases, Nigerian courts will link women’s dignity, equality, and property rights to Section 33 of the 1999 Nigerian Constitution: that is, the right to life. This is the common practice of the Indian courts underscored in Khedat Majdoor Chetna Sanghat v. State of M. P. (1995) and Maneka Gandhi v. Union of India (1978).

To guarantee women’s dignity, equality, and property rights, the Nigerian legislature should, in addition to the current appellate jurisdiction of the Supreme Court on fundamental rights cases, confer original jurisdiction upon it pursuant to Section 232 (2) of the Nigerian Constitution,⁷ as is the case in India. Such original jurisdiction will generally liberalize access to justice in Nigeria and particularly promote judicial activism in repositioning women’s equality, dignity, and right to inherit immovable property under customary law (Ojilere & Gan, 2015b).