In the Ukeje judgment, the Supreme Court of Nigeria abolished the Igbo custom of male primogeniture, which prohibited female children from sharing in the intestate estate of their father. This judgment was hailed as revolutionary. But nearly ten years afterwards, what normative impact has it spawned?
In May 2023, Rivers State became the first state in Nigeria to ‘domesticate’ the Ukeje judgment by enacting a law that enables women to share in family property. Aside from this legislation, not much change has emerged from the judgment. Informed by my empirical studies of customary law, I argue that the relative lack of change is partly because a key element is missing in the judicial reasoning in the judgment.
For context, the judgment arose from an appeal by Mrs Lois Chituru Ukeje and Enyinnaya Lazarus Ukeje, the widow and first-born son of the late Lazarus Ogbonna Ukeje. The respondent was Ms Gladys Ada Ukeje, an allegedly illegitimate daughter of Ogbonna, who died intestate in Lagos in 1981. Ada had sued Chituru and Enyinnaya at the Lagos High Court, seeking to be included among the beneficiaries of Ogbonna’s estate. The trial court upheld her claim. Chituru and Enyinnaya appealed to the Lagos division of the Court of Appeal. They lost. Undeterred, they appealed to the Supreme Court.
In colloquial terms, the Supreme Court judgment was a ‘no-brainer,’ given that the prohibition of female inheritance clearly conflicts with section 42(1)(a) and (2) of the 1999 Constitution. As the supreme law in Nigeria, the Constitution supersedes all other laws and customs. In what follows, I show why it is unhelpful for judges to use the Constitution to abolish customs without an in-depth sociological explanation.
Social origins of the Igbo custom of inheritance
Just like other indigenous laws, the Igbo custom of inheritance emerged in close-knit, agrarian societies that emphasised clan welfare. In these societies, families cooperated in agriculture, hunting, and defence. Property ownership was communal and consisted mainly of land, livestock, huts, craftworks, and tools for farming, fishing and hunting. This sort of setting is nothing like our individualistic modern life. Contrariwise, rights and duties were subject to the family’s best interest and social organisation favoured clan preservation through the male primogeniture rule.
The primogeniture rule gives the first-born son the right to inherit his deceased father’s estate, followed by the next senior son, uncles and other males in the deceased’s lineage. It is thus a preservationist and organisational rule with political, military, and spiritual connotations. It required an authority figure (the family head) to safeguard the extended family from invasion, serve as a mediator with the ancestors, and ensure the economic maintenance of widows, unmarried daughters, and teenage sons. Significantly, it ensured that heirs also inherited the deceased’s social status, including their duty to care for the family. In this context, primogeniture is significant for inheritance.
Significance of primogeniture for female inheritance
Firstly, a woman leaves her family after marriage and joins her husband’s family. In precolonial times, this exogamous process ruptures her patrilineal kinship ties and brings her into the cocoon of care in her husband’s family. In the rare event of divorce, she was reabsorbed into her father’s house. Thus, women did not need inheritance rights in their father’s families. In any case, there was nothing to inherit since the property was mostly communal. In fact, only items of adornment could be considered personal property.
Secondly, family heads in precolonial times were trustees legally responsible for the maintenance of every family member. In essence, property and inheritance rights were motivated by the need to perpetuate lineages and preserve wealth within the family.
Given its nature, male primogeniture operated well in its unique social setting. This was until European colonialism came along.
‘Things fall apart’
Like elsewhere in Africa, colonialism revolutionised Igbo societies. Among others, it introduced Christianity, which emphasised the individual rather than the group. Colonialism spread an individualistic mindset in schools, industries, and the civil service. Along with urbanisation and technological changes, colonialism dismantled the agrarian basis of social life and damaged its foundation of group welfare.
For example, urban migration and individual income replaced subsistence agriculture and group production of wealth. Today, heirs inherit property without an accompanying duty of care to family members. Also, some divorced women do not return to their father’s houses. But the custom of primogeniture remained the same. This explanation is missing in the judicial approach to African customary law.
Why the missing link matters
Judges need to explain how the social origins of indigenous laws differ from modern conditions. By abolishing the Igbo custom of inheritance without situating it in changed social conditions, judges fail to market law reform to the champions of tradition.
There is a serious need to explain to traditional communities why some ‘customs and traditions’ cause hardship in modern conditions. For example, a married woman had no basis for claiming property rights in the past, whereas she should make such claims today based on her contributions to family property through her independent income and spousal support.
A judicial explanation of the origins of customary laws is also needed because of hypocritical attitudes towards discriminatory customs. Africans have embraced colonially induced changes ranging from technology to work, food, and fashion. Yet, some people cling to agricultural customs under the guise of maintaining tradition. Judges should use future disputes about indigenous laws to explain how dissonance between modern conditions and the social origins of customs causes hardship to women, girls and younger males.
 Ukeje v Ukeje (2014) 11 NWLR (PT. 1418) 384.
 For reactions to the decision, see Tony Okafor ‘Female inheritance: Supreme Court, Igbo culture in head-on collision’ 20 September 2020 <https://punchng.com/female-inheritance-supreme-court-igbo-culture-in-head-on-collision/>.
 AC Diala ‘Reform of the customary law of inheritance in Nigeria: Lessons from South Africa (2014) 14(2) African Human Rights Law Journal 633-654; AC Diala ‘A butterfly that thinks itself a bird: the identity of customary courts in Nigeria’ (2019) 51(3) Journal of Legal Pluralism and Unofficial Law 381-405.
 N Okoro The customary laws of succession in Eastern Nigeria and the statutory and judicial rules governing their application (1966) 4.
 L Mbatha ‘Reforming the customary law of succession’ (2002) 18 South African Journal on Human Rights 259.