EQUITY, WOMEN AND CUSTOMARY LAW
According to an article
in The Maravi Post, on 3rd September 2013, the Court of Appeal of Gaborone, Bostwana, in the case
of Ramantele
vs Mmusi & Ors., on the issue of whether daughters can inherit
family property under customary law, held unanimously in favour of four sisters
rejecting a long history of inheritance matters that favoured only males. Under
the Ngwaketse customary law only males had the right of inheritance.
The rationale for the judgment was in accordance
with the principles of justice, equity, and good conscience.
Justice Isaac Lesetedi, the lead judge, wrote in the
court's decision:
"Constitutional values of equality
before the law, and the increased leveling of the power structures with more
and more women heading households and participating with men as equals in the public
sphere and increasingly in the private sphere, demonstrate that there is no
rational and justifiable basis for sticking to the narrow norms of days gone by
when such norms go against current value systems."
According to the Black’s Law Dictionary, third
pocket edition, equity is:
1.
Fairness; impartiality; even-handed
dealing.
2.
It is a body of principles constituting what
is fair and right; natural law.
3.
The recourse to principles of justice to
correct or supplement the law as applied to particular circumstances...
In a broad sense,
equity means fairness. It is hinged on the principles of natural justice,
equity and good conscience.
The essence of equity
is to provide remedies where the remedies provided by common law were defective
or inadequate to meet the justice of the case. Thus, where common law remedies
are adequate, equity will follow the law. However, where there is a conflict
between common law and equity, equity prevails.
Equity in Nigeria can
be traced to England, where it emerged to mitigate the harshness and rigidity
of the common law and its procedures. For details on the relationship and
emergence of equity, see this.
The doctrines of equity
were received into Nigeria law by the enactments of local legislation (such as
ordinance No.3 of 1863) but it was
formally introduced by the Supreme Court Ordinance of 1876 as part of the English
law to be applied in Nigeria[1]
Equity has greatly
contributed to the development of law in Nigeria. Equitable doctrines have been
fully incorporated into our laws. There are plethoras of cases where the
principles of equity were upheld. These include land matters, contracts, lease agreements
and sale of land, inheritance and inter vivos gifts, election matters, e.t.c.
An instance of the
application of equity is on customary law.
Such native laws and customs which were contrary to natural justice, equity and
good conscience were held to be inequitable.
For instance, in the
case of Mojekwu vs. Mojekwu (1997)7 NWLR (Pt.512) 283, per Niki Tobi, JCA held the
“oli-ekpe” custom of Nnewi to be repugnant to natural justice, equity and good
conscience.
Under Nnewi custom a
male child inherits property; and if no male child, the brother of the deceased
owner of property inherits even where the man was survived by female children.
In either case, the person who so inherits, whether the son or brother of the
deceased, is known as the 'oli-ekpe'. He inherits the assets and liabilities of
the deceased.
According to Niki Tobi,
JCA:
"Is such a custom consistent with
equity and fair play in an 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 the 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 civilised world in which we all live
today, 'including the appellant. In my humble view, it is the monopoly of God
to determine the sex of a baby and not the parents. Although the scientific
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."
Also in Mrs Asika vs. Atinaya (2008) All FWLR
(Pt.433) 1293, per Denton-West, JCA held that native law and custom which
discriminates against women are repugnant to natural justice, equity and good
conscience and must be abolished. See also Nnayelugo vs. Nnayelugo
(2008) All FWLR (Pt.401) 897.
From the foregoing and more, equity is fairness and equality. Such a custom or law which discriminates against women and children are repugnant, unjust, unconscionable and should be rendered null and void.
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