Mojekwu & others v Ejikeme & others (2000) 5 NWLR 402: All men are created equal and should be given equal rights in the society. The constitution of the Federal Republic of Nigeria tries to embody this concept in chapter 4 when it provides for human rights. In most societies through out human history, women have not been accorded the same rights as their male counterparts, in some extreme cases in these societies some of them are seen as mere property. The same holds true for African society where women have equally been treated unfairly by families and is it this Injustice and unfairness that the constitution seeks to prevent.
The law came to protect the defenceless and to give voice to the voiceless. The court of law through out the country have always been quick to call out Injustice and unfair treatment when ever it is brought before them for adjudication. The constitution in Section 42 of chapter 4, provides for the freedom from discrimination of all sorts. This seeks to prevent discrimination on the basis of gender or sex.
The constitution also tries to prevent the discrimination of people on the basis of the circumstances of their birth. The courts of law have so been quick to interpret the laws in such a way that would ensure that the litigatants are given maximum protection.
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Customary law can be said to be custom which due to age long usage has attained the force of law. The courts of law also recognize the existence of the custom and traditions of litigatants. The courts are also very keen to apply these customs so long as they meet the requirements which have been set through precedents. Some of these requirements are :
1. The custom must be proved.
2. The custom must still be existence and practiced by people of the said community.
3. The custom must not be repugnant to equity, natural justice and good conscience.
If the custom is proved to be repugnant to natural justice, equity and good conscience then the courts will not enforce it. The courts have declared that customs which prevent women from inheriting the property of their fathers is repugnant to Natural justice. See mojekwu v mojekwu, Nzekwu v Nzekwu.
Once a custom has been judicially noticed by a court of superior record, it need not be proved again. These principles were made evident in the case of Mojekwu v Ejikeme.
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Issues in Mojekwu v Ejikeme
Whether the trial judge was right when he held that the respondents could not inherit the land of Reuben Moujekwu in light of the Nnewi custom which imposed gender discriminatory rules of succession.
Whether customs which prevent women from inheriting the property of the fathers and getting married are repugnant to equity, good conscience and natural justice.
Whether the Nnewi custom of Nrachi which places a daughter in her father’s house for the purpose of having babies and which prevents a widow from inheriting her husband’s property is repugnant to equity, good conscience and natural justice.
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Fact summary of Mojekwu v Ejikeme
Reuben mojekwu had died in 1996 without any will or any surviving children. The appellants in this case happen to be his two great grand sons and a granddaughter, the granddaughter was born to Reubens daughter Virginia while the great grandsons were born to Virginia’s daughters. The appellants case was that the Nrachi custom was performed on their great grandmother and as such they were the ones who were entitled to inherit the property of Reuben Moujekwu.
The Nrachi custom was such that a man who had no male heir could keep one of his daughters in his house to bear children for him, mostly male heirs. The children would be counted as belonging to her father. The woman who agreed to this arrangement would in effect become entitled to inherit her father’s property.
There was another custom which was practiced in Nnewi called ill-Ekpe which simply stated that if a man died without any surviving issues, his property would be inherited by his brother or his male heir. The respondents were five male members of the Reuben brothers family, who contended that the Nrachi was performed on comfort who was Virginia’s sister. The said comfort died childless as such ended the lineage of Reuben. They argued that the custom stated that the property was to go them. The said action was brought in response to the fact that the respondents went onto the land belonging to Reuben which the plaintiff claimed ownership of. The plaintiff brought action seeking an injunction to restrain the defendants from ever entering unto the land in question, as they the respondents were trespassing.
The court held that the Nrachi system was unenforceable as it goes against all basic tenets of family. The court was of the opinion that the female child did not need to perform Nrachi in other to inherit her father’s property.
The court also held that the custom was repugnant to equity and natural justice as it denied the children born of Nrachi the knowledge of their biological father. The custom was also against public policy in the sense that it promiscuity and prostitution.
The ill-ekpe custom was held by the courts to be discriminatory towards women. The court also stated that fact that the appellants were born out of wedlock was irrelevant since the constitution seeks to prevent discrimination on the basis of circumstances of birth.
The court held that since the appellants had been in possession of the Reuben mojekwu land for many years it would be inequitable to throw them out. The court also held that the appellants being blood relations were entitled to inherit the land. The court declared the Nrachi system repugnant.
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Judgment of the court
The court stated that the Nrachi system was repugnant to natural justice, equity and good conscience as a female child didn’t have to perform the custom to be eligible to inherit property. The court also stated that the custom was against public policy since it promoted promiscuity.
The court declared the ill-ekpe custom discrimatory against women, since it didn’t allow the widow a chance to inherit her late husband’s property. Finally, it was held that the appellants were entitled to the property of Reuben Moujekwu given that they were blood relations who had been in possession for a long time.
Edeh Samuel Chukwuemeka ACMC, is a Law Student and a Certified Mediator/Conciliator in Nigeria. He is also a Developer with knowledge in HTML, CSS, JS, PHP and React Native. Samuel is bent on changing the legal profession by building Web and Mobile Apps that will make legal research a lot easier.