A REVIEW OF THE ISSUES AND DECISION ON THE

SUPREME COURT INVALIDATION OF THE IGBO

CUSTOMARY LAW DENYING FEMALE DESCENDANTS
THE RIGHT OF INHERITANCE: UKEJE V. UKEJE (2014)
11 NWLR (PT.1418) 384
ABSTRACT:

The recent decision of the Supreme Court of Nigeria in Ukeje v.

Ukeje (supra) held that an unknown intestate succession under
customary law of the Igbo people in Nigeria is full of discrimination,
especially to the female and illegitimate children among others. This
review tries to substantiate the celebrated case in the recent time in
Nigeria in contradistinction with the position of the Supreme Court
before the judgment.

THE FACTS OF THE CASE

On 27th December, 1981, Lazarus Ogbonnaya Ukeje, a native of

Umuahia in Imo State (presently Abia State) died intestate. He had
real property in Lagos State and for most of his life was resident in
Lagos State. The 1st Appellant got married to the deceased on 13th
December, 1956. There are four children of the marriage. The
respondent is one of the four. After Lazarus Ogbonnaya Ukeje died,
the 1st and 2nd Appellants (mother and son) obtained letters of
administration for and over the deceased’s estate.

On being aware of this development, the Plaintiff/Respondent filed an

action in court wherein she claimed to be a daughter of the deceased
and by virtue of that fact had a right to partake in sharing of her late
father’s estate. Her claims before a Lagos State High Court were five
(5) reliefs. Pleadings were filed and exchanged.

The Respondent as Plaintiff testified and called her mother as second

witness. Thirteen witnesses gave evidence for the defence. Thirty-four
documents were admitted as exhibits. These included the birth
certificate of the Respondent showing that she is a daughter of the
deceased, L.O. Ukeje, family photographs of the Respondent and her
deceased father and a guarantor form the deceased L.O. Ukeje filled
for the Respondent acknowledging that he was the father of the
Respondent.

The trial court in its judgment found that the Plaintiff/Respondent is a

daughter of the L.O. Ukeje (deceased) and proceeded to grant reliefs
2, 3, and 4. As regards relief 5, the trial court ordered the 1 st and 2nd
Appellants to hand over the administration of the estate to the
Administrator-General pending when the deceased children would
choose 3 or 4 of them to apply for fresh letters of administration.

The Appellants were aggrieved with the judgment of the trial court and
appealed to the Court of Appeal which dismissed their appeal.

The Appellants again were dissatisfied with the judgment of the Court
of Appeal and they appealed to the Supreme Court which upheld the
decisions of the two courts below.

INTRODUCTION:

The law of succession involves the transmission of the rights and

obligations of the deceased person in respect of his estate to his heirs
and successors. It equally deals with the rules governing the
administration of the estate by the personal representatives of the
deceased person including state participation in respect of the real
estate situate within its territory and personal estate of the deceased
person subject to its jurisdiction.

Succession may be testate or intestate. Where a deceased person

made a will, he is said to have died testate. Where a deceased’s
person did not make a will, he is said to have died intestate. In
customary law, this distinction is of marginal importance because
under customary law, intestacy is the rule. The only consideration of a
testate succession under customary law is a nun-cupative will, also
known as death bed declaration.
Inheritance issues are varied across the length and breadth of Nigeria.
The law of succession and inheritance is a reflection of the legal
pluralism inherent in Nigeria. In general, in cases of inheritance of
property of a person who dies intestate in Nigeria, the personal
customary law of the deceased, that is, customary law to which the
deceased was subject governs the distribution of his estate. The
system of customary inheritance varies from one ethnic group to the
other. The class of people who should benefit from intestate
succession and the share of such beneficiary are not free from
problems.

THE IGBO CUSTOMARY LAW:

This review will be an exercise in futility if the Igbo customary law in

question is not examined in the light of the Supreme Court decision in
Ukeje v. Ukeje (supra). The rules of customary law on succession in
Igbo land are not uniform. However, certain similarities can still be
identified. The Igbos of Nigeria are found predominantly in Anambra,
Imo, Enugu, Ebonyi and some parts of Rivers and Delta States. The
cardinal principle of customary law of succession among the Igbos is
primogeniture, that is, succession by the first born of the line. This
principle, which is also prevalent in the customary laws of other ethnic
groups in Nigeria, determines the right to inherit property in Igbo land
and therefore the interest of all persons related in one way or the other
to the deceased. The exception to this rule is in Afikpo and Bende
areas of Ebonyi and Abia States which are bilineal, where women
have full legal capacity to own land and to transmit their rights and
interests to others either intervivos or death.

Under the principle of primogeniture, succession is through the eldest

male in the family who is known as “Okpala, Diokpala or Diokpa”. In
the case of a nuclear family, succession is through the eldest male
child of the deceased. With regard to the extended family, succession
is through the eldest son of the ancestor and so on in that line
irrespective of the fact that the Okpala may in fact be junior in age to
other members of the extended family.
On the death of the founder of a family, his eldest son succeeds him
as the head of the family. The eldest son is entitled to special property
by virtue of his status in the family. He enjoys this property during his
life time to the exclusion of his brothers. He is entitled to reside in his
father’s dwelling house. Subject to accommodation required by his
own family, he may allow his younger brother and sisters to live in this
house with him. He is also entitled to the use of the piece of land
within or surrounding the father’s compound and to harvest the
economic trees in it such as palm, coconut and kola-trees. Other
immovable property which is allocated to the eldest son in addition to
his father’s dwelling house and compound land from one place of
another. Among the Igbos in Okigwe, he is given another piece of
fertile land called ala Iasi Obi. In Orunba, Mbaise, Udoka and Agudo
all in Awka; he is shown a piece of farm land by the administrators of
the estate, in Ogoni; he is entitled to a piece of farm land and in
Annang, he is shown a fertile piece of land and a palm bush. He is
also entitled to the dresses which his father wore in special occasion
together with his walking stick. He also inherits his father’s personal
ofo and other objects of worship. Where a title survives the holder, the
eldest son inherits the father’s title. He is also entitled to the insignia of
a hereditary office which he has no right to sell, being family property.

In Ejiamike v. Ejiamike (1972) ESCL 11, the court found an evidence

that in accordance with Onitsha Customary Law, the eldest son has
the right to manage and administer the real estate of his deceased
father for the benefit of himself and his brothers.

Under some Igbo Customary Law, females do not possess the rights
to inherit and, that is, neither the daughters nor the widows of the
deceased have the right in the intestate estate of the deceased. In
Ugboma v. Ibeneme (1967) FNLR 251, it was held that in accordance
with the custom of the deceased home in Anambra Local Government
Area, women are not entitled to inherit land from their father.

Consequently, the female Plaintiffs have no locus standi in such

action. In Nezianya v. Okagbue (1963) 1 All NLR 352, it was held
that possession by a widow of her husband’s land cannot be adverse
to the right of her husband’s family to enable her acquire an absolute
right to possession of it against the family.

Although a widow cannot alienate any part of the deceased’s estate,

she is entitled to live on the deceased husband’s house as a member
of the family until she remarries or dies. The Diokpa has no right under
native law and custom to dispose of the property occupied by her
without an alternative accommodation so long as she behaves well.

Daughters, like wives, do not inherit under some Igbo customary law.
A daughter can only inherit were she accepts to remain unmarried in
her father’s house with a view of raising sons in her father’s name.
This is known as “Nrachi” or “Idigbe” institution. It usually happens
when the deceased left behind a substantial estate but no surviving
sons or other male issue of the lineage to inherit it. The idea behind
this practice is to save the lineage from extinction. The daughter as an
“Idigbe” or “Nrachi” is entitled to inherit both movable and immovable
property of her deceased father’s estate. The legal interest vests in
her until she gives birth to her own children. However, if she bears
sons and daughters, the sons and not the daughters will succeed her
in accordance with the rule of primogeniture.

Daughters have no right of inheritance over their mother’s landed

property. Where a wife predecease her husband, the sons will inherit
and failing, the husband inherits and failing his male relatives. In some
parts of Igbo land where the intestate died without sons, brothers or
father, his estate is inherited by his eldest nearest paternal male
relation. Such relation is known as “Ori-Ekpe” while the custom is
known as “Iri-Ekpe” custom.

In Mojekwu V. Mojekwu (1997) 7 NWLR (Pt.512) 283, the deceased

had two females surviving him, his male nephews claimed to be
entitled to his estate. The Court of Appeal, per Niki Tobi, JCA (a he
then was) rejected the view that the case was governed by Nnewi
Customary Law but added that even if this were so, such a customary
law which discriminated against women, would not be enforced as it
would be repugnant to natural justice, equity and good conscience.
However, the Supreme Court rejected the decision of the Court of
Appeal and upheld the “Iri-ekpe” custom.

While a daughter is not entitled to inherit her father’s estate, she has
the right to be maintained by the person who inherits her father’s
estate until she marries or becomes financially independent or dies. In
the estate of Agboruja (1949) 19 NLR 38, the court held that the
custom whereby the eldest brother of the deceased or male relative
inherits his deceased brother’s property is widespread throughout
Nigeria. Yet it is not equitable because such male relative would thus
become a new father to the children and be responsible for their
upbringing as if they were his own. It was also held that to be perfectly
permissible that such a male relative of the deceased should be able
to inherit the latter’s wife if she agrees.

The inheritance of the wife and children of a deceased man by his

younger brother, a system known as levirate marriage, is a scheme of
social insurance against neglect and hunger of the decease
dependent.

A CONSIDERATION OF THE DECISION IN THE LIGHT OF OTHER

CIRCUMSTANCES:

The Supreme Court invoked the provisions of section 42(1)(a) and

(2) of the Constitution of the Federal Republic of Nigeria, 1999
(as amended) in Ukeje v. Ukeje (supra) in quashing the unknown
Igbo customary law that disentitles a female child from partaking in the
sharing of her deceased father’s estate. Section 42 of the 1999
Constitution provides that:

“42(1) A citizen of Nigeria of a particular community, ethnic

group, place or origin, SEX, religion, political opinion shall not, by
reason only that he is such a person:
(a) be subjected either expressly by or in the practical
application of, any law in force in Nigeria or any
executive or administrative action of the government,
 to disabilities or restrictions to which citizens of
Nigeria of other communities, ethnic groups, places or
origin, sex, religion or political opinion are not made
subject.

42(2) No citizen of Nigeria shall be subjected to any disability or

deprivation merely by reason of the circumstances of his birth”.

The rationale of the Apex Court’s interpretation of section 42(1)(a)

and (2) of the 1999 Constitution (as amended) applied in Ukeje v.
Ukeje (supra), is that the right of a female child and a child born out of
wedlock to have a share in the estate of their father are constitutional.
The above constitutional provisions relied by the court in this case
divulged two significant issues that must be distilled from the facts of
the case. The first issue is that the Respondent (Ms. Gladys Ada
Ukeje) was born out of wed lock, which may hinder her from
benefitting from the estate of her alleged father under certain rules of
customary law in Igbo land.

By the received English Law, a child born out of lawful wedlock, that
is, under the Marriage Act or some foreign law which prescribes
monogamy, is regarded as illegitimate. This status deprives the child
of the right to maintenance and succession in respect of its natural
father.

Under customary law, if an unmarried mother gives birth to a child,

some social stigma is usually attached to such a pregnancy; which in
Igbo custom is referred to as “Ime Nkpuke”, which literally means
“pregnancy out of the matrimonial home”. The status of that child is
regarded as illegitimate. Sometimes where the natural father of such a
child has accepted paternity, he may be allowed to claim the child
even though he does not marry his or her mother.

Legitimation is a process by which a child who was born illegitimate

acquires legitimate status. The process of legitimation may be
achieved by the subsequent marriage of the parents or by the
acknowledgment by his natural father. Acknowledgement simply
means the recognition of the paternity of a child by his natural father.
Consequently, an illegitimate child may be legitimated by
acknowledgment despite the fact that the parents are not married or
have never been married. To constitute acknowledgment, the acts or
conduct of the illegitimate child’s father must be such as to indicate or
establish his acceptance of the child’s paternity. It has been held in
Young v. Young (1953) WACA, 19, that the maintenance of a child by
his natural father including the payment of school fees constitute
acknowledgment.

It is a well established rule of law that a child born during the

subsistence of a customary or statutory marriage between his/her
parents is legitimate. However, where a child is born to a legally
married man through extra-marital affairs, the question of illegitimacy
arises. More often than not, the mothers of this class of children in
Nigeria believe that their children, though born outside marriage, have
the same inheritance rights to the estate of their father as do the
legitimate children of the marriage. This inevitably leads to litigation,
during which time the courts, in applying the law attempts to reconcile
it with social realities. This recalls the statement of Rubin and E.
Cotran (ed) Annual Survey of African Law, (1968) Vol. 1 pg. 45 that
“illegitimacy as social problem is as old as unresolved as human
existence itself. In attempting to find a legal solution, the courts have
allowed the strict legal rule to override policy and social
considerations”.

However, in consideration of the dual marriage system, the Supreme

Court in Adeyemi V. Bamidele (1968) 1 All NLR 31 at 37, said that...
legitimacy in England is a different concept on legitimacy in Nigeria.
The court also held that the status of legitimacy may have different
implications according to the system of law referred to and it is
appropriate in the context purely and solely of Yoruba customary law
to describe a person as an illelgitimate child of the father since even if
he was born out of wedlock he would be legitimate if his paternity is
acknowledged by the putative father.
The qualification for inheritance is generally traced or dependent on
blood relationship. A person cannot qualify to inherit from a deceased
on any basis outside being of the same blood, whether full or half. In
the case of Ukeje v. Ukeje (supra), at both Court of Appeal and
Supreme Court the paternity of the Respondent is the basic issue
raised for determination before the courts, ”whether the Respondent
as Plaintiff proved that she is the biological daughter of L.O Ukeje
(deceased)”. It was on record of the courts that the Respondent’s birth
certificate was tendered to prove acknowledgement of her paternity by
L.O. Ukeje (deceased). The courts found that there was no evidence
to dispute the fact that the Respondent was born in Lagos on the 5th
of July, 1952 and her birth was registered in Lagos in August, 1952.
Her parents are L.O. Ukeje (deceased) and PW2 (the mother of the
Respondent). I agree with the courts that the Appellant did not rebut
the presumption of regularity and the finding of fact by the trial court,
which is unassailable. I also agree with the courts that from the finding
of fact, L.O. Ukeje (deceased) is the biological father of the
Respondent and her birth certificate is genuine. The Respondent also
tendered form of undertaking and guarantee, which was filled by L.O.
Ukeje (deceased) on 8th January, 1980, when she wanted to obtain a
new Passport, to further proof that her late father acknowledged her
as his biological father. Other documents tendered by the Respondent
to prove the paternity of her late father were Judgment in her divorce
proceeding, where she described herself as “Nee Ukeje” and the
family photographs. I totally concur with the courts that when the issue
is whether the Respondent is the daughter of L.O. Ukeje (deceased),
the family photographs may help to resolve the issue but the birth
certificate of the Respondent is decisive in settling such an issue. This
position of the courts accords with the spirit of the draft man of the
Constitution of the Federal Republic of Nigeria, 1999 (as
amended) in section 42(2). In the words of His Lordship, George
Adesola Oguntade, JCA (a he then was), “the issue whether there
was a marriage between the deceased and the Respondent’s mother
was irrelevant having regard to the provisions of section 39(2) of the
1979 Constitution (now section 42(2) of the 1999 Constitution. This is
because the circumstances of the birth of the Respondent should not
constitute a disadvantage to her in view of the clear provisions of
section 39(2) of the 1979 Constitution”.

The second issue is that the Respondent is a female child, who may
not be able to inherit the estate of her late father under certain rules of
customary law in Igbo land. Since the courts have resolved that the
Respondent is the biological daughter of the deceased, L.O. Ukeje,
from her incontrovertible evidence before the courts, the resolution of
the second issue must be extracted from the facts of the case. It is
the Respondent’s case that she, as a daughter of one L.O. Ukeje
(deceased), is the person entitled to the estate of her late father or
one of the person entitled to share in the estate of the said L.O. Ukeje
(deceased). The Supreme Court rightly observed that was no appeal
on the issue of whether a female child can inherit her later father’s
estate or not but went ahead to pronounce on an issue that was not
raised before it, even though it declared the findings of the Court of
Appeal inviolate. I shall discuss the legality of this declaration in the
later part of this discourse. The issue that was raised in the Court of
Appeal was “what is the applicable law to the distribution of the
unmovable property of a deceased person who dies intestate and if
the answer to issue(1) above is in affirmative, whether the
Plaintiff/Respondent is entitled as a daughter to share in the estate of
his late father, L.O. Ukeje”. The Court of Appeal in resolving this issue
considered the Supreme Court case of Olowu v. Olowu (1985) 3
NWLR (Pt.13) 372, where the deceased, a Yoruba of Ijesha by birth
lived all his life in Benin City. He married Bini women and acquired
property there. He naturalized as a Bini man. He died intestate; the
Supreme Court applied the lex situs principle in holding that his estate
should be distributed in accordance with Benin native law and custom.
In the instant case, late L.O Ukeje lived most of his life in Lagos and
had real property in Lagos. The Court of Appeal in applying the lex
situs principle held that the deceased estate should be distributed
according to the Yoruba native law and custom, which is the lex situs.

According to Yoruba native law and custom, when a man dies

intestate, his properties devolve on all his children who shall share
same equally and the eldest child assumes the position of head of the
family and manager of estate on behalf of all children. The Appellate
Court based on the Yoruba native law and custom held that the
Respondent as the eldest child of her late father, L.O. Ukeje is entitled
to share in the estate of her father by applying the lex situs principle.
The court held further that the relevant Ibo native law and custom
relating to intestate succession is not applicable to all immovable
properties of the deceased estate situate in Lagos at No. 13, Norman
Williams Street, South West, Ikoyi and No. 7, Awoyemi Close,
Surulere, Lagos. In arriving at this decision the court referred to “the
Conflict of Laws” 10th edition, volume 2, Dicey and Morris, pg.
612, rule 98; Duncan v. Lawson (1989) 41 Ch.D 344 and Mojekwu
v. Mojekwu (1997) 7 NWLR (Pt.512) 283 at 299.

It is clear that these two issues are the live issues in the appeal before
the Court of Appeal and having resolved these issues in favour of the
Respondent, the court is precluded from delving into other issues
dealing with adjectival law. They were not relevant to the substance of
the case rather they were largely peripheral to what was expected to
be of concern for decision. Therefore, I strongly opine with greatest
respect to Your Lordships at the Court of Appeal and the Supreme
Court, that it is premature to pronounce that the unknown Igbo
customary law which disentitles, a female child from partaking in the
sharing of her deceased father’s estate is in breach of section 42(1)
and (2) of the Constitution, a fundamental rights provision
guaranteed to every Nigerian on the ground that it ought not to be the
focus of the Supreme Court.

COMMENT:

At the Court of Appeal in Ukeje v. Ukeje (supra) the Appellate Court

was faced with this same dilemma it went through in Mojekwu v.
Mojekwu (supra) and on appeal to the Supreme Court, the Apex
Court intervened and gave an erudite and resounding judgment that
will forever withstand the taste of time in Mojekwu v. Iwuchukwu
(2004) 11 NWLR (Pt.883)196. One would have expected the Apex
Court to maintain its brave and steadfast stand it took in Mojekwu’s
case also in Ukeje’s case in order to continually promote the cause of
justice and uphold its integrity as the last hope of the common man. A
comparative analysis of Mojekwu v. Mojekwu (supra) is necessary in
understanding this review, since the issues that led to both judgments
are similar. The brief facts of Mojekwu’s case (supra) are as follows:
Mr. Okechukwu Mojekwu died intestate leaving behind two female
children, and his nephew claimed ownership of his estate under the
native law and custom of Nnewi. The estate of Mr. Mojekwu
(deceased) was situate and known as No. 61, Venn Road South,
Onitsha govern by Mgbelekeke family kola customary tenancy. In
addition the nephew paid the necessary “kola”, being the
consideration to the Mgbelekeke family who recognized him as a kola
tenant. The issue of whether the native law and custom of Nnewi or
Mgbelekeke family kola customary tenancy apply to the inheritance of
the deceased estate was raised. In determining the applicable law,
both the trial court and the Court of Appeal considered the lex situs
principle in holding that the Mgbelekeke family kola customary
tenancy is the applicable law that governs inheritance of the deceased
estate.

At this point, the Appellate Court ought to have focused on the

substance of the case which is to consider (i) what law governs
Mgbelekeke kola tenancy; (ii) to which class of persons does the
tenancy primarily descend; and (iii) can the present Plaintiff/Appellant
claim to be within that class if the deceased tenant was survived by
children, male or female. The other remaining issues are not
necessary in the circumstance of the case and do not require the
consideration of the court because the court would be seen as
engaging in an unnecessary academic exercise. This Appellate Court
unfortunately embarked upon in Mojekwu v. Mojekwu (supra) and
Ukeje v. Ukeje (supra), and in the process derailed and succeeded in
shooting itself on the foot. After giving judgment in favour of the
Respondent under the Mgbelekeke kola tenancy, the Appellate Court
went further to declare the native law and custom of Nnewi known as
“Oli-ekpe” repugnant to natural justice, equity and good conscience. In
the words of Niki Tobi, JCA (as he then was) in Mojekwu v.
Mojekwu (supra) at pages 304-305:
 “Is such a custom consistent with equity and fair play in
egalitarian society such as ours where the civilized
sociology does not discriminate against women? Day after
day, month after month and year after year, we hear of and
read about customs which discriminate against women folk
in this country. They are regarded as inferior to the men
folk. Why should it be so? All human beings – male and
female – are born into a free world, and are expected to
participate freely, without any inhibition on grounds of sex;
and that is constitutional. Any form of societal
discrimination on grounds of sex, apart from being
unconstitutional, is antithesis (sic) to a society built on the
tenets of democracy which we have freely chosen as a
people. We need not travel all the way to Beijing to know
that some of our customs, including the Nnewi “oli-ekpe”
custom relied upon by the appellant, are not consistent with
our civilized world in which we live today, including the
appellant. In my humble view, it is monopoly of God to
determine the sex of a baby and not the parents. Although
the scientific world disagrees with this divine truth, I believe
that God, the creator of human being, is also the final
authority of who should be male and female. Accordingly,
for a custom or customary law to discriminate against a
particular sex is to say the least an affront on the Almighty
God Himself. Let nobody do such a thing. On my part, I
have no difficulty in holding that the ‘oli-ekpe’ custom of
Nnewi is repugnant to natural justice, equity and good
conscience.”

However, in Mojekwu v. Iwuchukwu (supra), the Supreme Court

upturned the judgment of the Court in Mojekwu v. Mojekwu (supra),
which declared the ‘oli-ekpe’ custom of Nnewi as repugnant to natural
justice, equity and good conscience in the circumstances of the case.
According to the Apex Court, a binding judicial declaration or
pronouncement must be derived from relevant established principles
of the rule of law. There must be a cause upon which such a
declaration or pronouncement is founded. There ought to be a relief
tied to that cause which must be reasonably necessary or relevant for
far reaching a decision in the cause. Also, issues must be joined by
the parties and they should be heard upon those issues by the court;
or when the issue is raised suo motu, the parties should be invited to
address the court on it. In that vein, court should limit itself to issues
joined by the parties on their pleadings. This is essential because to
go outside those pleadings is an aspect of a denial of fair hearing
which may lead to miscarriage of justice. The Apex Court considered
these cases, Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) 373; Kuti
v. Jibowu (1972) 6 SC 147; Odiase v. Agho (1972) 1 All NLR (Pt.1)
170; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1, Usman v. Umaru
(1992) 7 NWLR (Pt.254) 377; Badmus v. Abegunde (1999) 11
NWLR (Pt.627) 493; Ayotebi v. Odudu (1990) 6 NWLR (Pt.157)
384); Ude v. Chimbo (1998) 12 NWLR (Pt.577) 169; Oyekanmi v.
NEPA (2000) 15 NWLR (690) 414.

In Mojekwu v. Iwuchukwu (supra), the Apex Court further held that

these principles apply mutatis mutandis in every situation where the
court is faced with a custom of a people and it conceives that such a
custom may have some elements of repugnancy. It must be
remembered that a custom cannot be said to repugnant to natural
justice, equity and good conscience just because it is inconsistent with
English law concept or some principle of individual right as understood
in any other legal system. So the court must hear the parties and act
with solemn deliberation over all circumstances before declaring or
pronouncing a custom repugnant. The Apex Court admitted that there
may be no difficulty in reaching a decision in some obviously
outrageous or needless discriminatory customs. In some other cases,
it may not be so easy. That is where the repugnancy principle should
be dispassionately considered and applied.

The Supreme Court in careful consideration of the circumstances of

Mojekwu v. Iwuchukwu (supra), did not see any justification for the
Court of Appeal to pronounce that Nnewi native custom of “oli-ekpe”
was repugnant to natural justice, equity and good conscience for the
following reasons”
1. The issue that ‘oli-ekpe’ in question was repugnant was not
joined by parties;

2. The Court of Appeal having felt strongly about the repugnancy,

as can be seen from the emotive and highly homilized
pronouncement, was obliged to draw the attention of the parties
to it, raised it suo motu, and invite them to address the court on
the point;

3. The Court of Appeal itself had reached a conclusion that the

applicable custom was that of kola tenancy of the lex situs. This
was said twice in the leading judgment, as recorded: once the
pronouncement in question and once after. The pronouncement
which was not necessary for deciding that suit can thus be
assessed upon the scenario in which it was made.

4. The learned Justice of the Court of Appeal was no doubt

concerned about the perceived discrimination directed against
women by the said Nnewi ‘oli-ekpe’ custom and that is quite
understandable. But the language used made the
pronouncement so general and far-reaching that it seems to cavil
at, and is capable of causing strong feelings against all customs
which fail to recognize a role for women. For instance, the
custom and tradition of some communities which do not permit
women to be natural rulers or family heads. The import is that
those communities stand to be condemned without a hearing for
such fundamental custom and tradition they practice by the
system by which they run their native communities. It would
appear, for these reasons that the underlying crusade in that
pronouncement went too far to stir up a real hornet’s nest even if
it had been made upon an issue joined by the parties, or properly
raised and argued. His Lordship, Honourable Justice Samson
Odemwingie Uwaifo, JSC, concluded that he found himself
unable to allow the pronouncement to stand in the circumstances
of the case and accordingly disapproved of it as unwarranted.
I totally aligned myself with the above four reasons of the Supreme
Court in Mojekwu v. Iwuchkwu (supra) in disapproving the judgment
of the Court of Appeal in Mojekwu v. Mojekwu (supra). The Supreme
Court would have applied the above four reasons in its recent decision
in Ukeje v. Ukeje (supra). In my humble view, this decision is a bad
precedent in our legal jurisprudence, the Apex Court was in hurry to
pronounce that an unknown Igbo customary law which disentitles, a
female child from partaking in the sharing of her deceased father’s
estate is in breach of section 42(1) and (2) of the Constitution. The
court would have waited for the custom to be properly revisited
judicially in the immediate future to warrant the pronouncement. The
victory of female child in the case in her claims shows unambiguously
that the pronouncement had nothing to do with the merit of the case.

It is on record that the parties in Ukeje v. Ukeje (supra) was not

allowed by the court to join issues with the said that the ‘unknown’
Igbo customary law that was declared to be in breach of section
42(1) and (2) of the Constitution. If the parties were given the
opportunity to join issues with the said unknown Igbo customary law,
the Respondent will also be victorious and her claims would have
been granted by the court. This is because L.O. Ukeje (deceased)
was a native of Umuahia in Abia State (formerly Imo State) and is
subject to the native law and custom of Abia State. According to the
native law and custom of Abia State which is bilineal, a women have
full legal capacity to own land and to transmit their rights and interests
to others either intervivos or death. It is very clear from the judgment
of the Supreme Court that its pronouncement is so general and far-
reaching that it seems to cavil at, and is capable of causing strong
feelings against all customs which fail to recognize a role for women in
Nigeria, not only Igbo land. Also, if issues were joined and argued by
parties, it would have afforded the Apex Court the opportunity of
recognizing the particular outrageous or needless discriminatory
custom of the Igbo people. In that vein, the Apex Court would have
dispassionately considered and applied the repugnancy principle in
determining whether the particular Igbo custom is repugnant and
unconstitutional.
Furthermore, the Supreme Court in Ukeje v. Ukeje (supra) agreed
with the trial court and Court of Appeal that the applicable custom was
that of Yoruba native law and custom of the lex situs. The customary
law of the lex situs permits female children to share equally in the
estate of their father’s estate. This conflicts with the pronouncement of
the Supreme Court, and a pronouncement which was not necessary
for deciding that suit can thus be assessed upon the scenario in which
it was made. Consequently, there was no basis for the consideration
and subsequent pronouncement of the court on the ‘unknown’ Igbo
customary law, which was not in issue.

CONCLUSION:

There is no doubt that the Supreme Court decision in Ukeje v. Ukeje

(supra) has come to stay because its decision is final and an appeal
can only rely to God. I reiterate that it is bad precedent in the principle
of stare decisis in our legal system. By the principle of stare decisis, a
court is bound to follow decisions in previous cases otherwise known
as precedents. The use of precedent is an indispensable foundation
upon which to decide what the law is and of application to individual
cases. The issue as to whether the Supreme Court, being the final
court of appeal of the land, should depart from its previous decision is
linked to the principles of judicial precedent, particularly the principle
of stare decisis. Based on the said principle, the Supreme Court may
depart from or overrule its previous decision under certain
circumstance and in accordance with laid down principles of law, such
as:

(a) Where it is shown or demonstrated that the earlier decision is

either:-
(i) erroneous in law; or
(ii) given per incuriam; or
(iii) that it has become an instrument of injustice.

(b) Where the decision complained of hinders the proper

development of the law in which a broad issue of public policy
was involved; and
 (c) The reasons for the invitation to depart from a previous
decision must be strong, coherent and adequate.

A careful examination of the Supreme Court decisions in Ukeje v.

Ukeje (supra) and Mojekwu v. Iwuchukwu (supra), where similar
issues were raised and the same pronouncements were expected by
the Apex Court, it is unambiguous that the former was premature in
declaring the custom unconstitutional while the later gave the custom
an opportunity to be judicially revisited in the immediate future. These
two conflicting decisions of the Supreme Court have been noted in our
principle of stare decisis and will exist concurrently as persuasive
decision of the apex court until another decision of the court comes up
to either overrule or uphold any of the previous the decisions. Until
that time, the recent decision of the Supreme Court has left our judicial
system in a quandary and we expect the Justices of the Apex Court to
act in the right direction in upholding the course of justice in this area
of our law whenever the opportunity comes in the near future.