Authored By: Jolaoluwa Rejoice kemikome
University of Benin
1.Brief introduction of the case
Case & citation: Mojekwu v Mojekwu ( 1997) 7 NWLR (pt.512) 283
Names of judges: AKINTOLA OLUFEMISO EJIWUNIMI, NIKI TOBI & EUGENE CHUKWUEMEKA UBAEZONU
Date of judgement: Thursday, 10th of April 1997
Parties: Augustine Nwofor Mojekwu ( Appellant)
Caroline Mgbafor Okechukwu Mojekwu ( Repondent )
Court: Nigeria Court of Appeal, Enugu Judicial Division
A case that over- ruled the customs of the Nnewi people – the illi-Ekpe custom. The case borders on customary land law.
- Facts of the case
The appellant, Mr. Augustine Mojekwu, relying on the oli-ekpe custom practiced in parts of South-Eastern Nigeria, particularly in Anambra State, instituted an action against Mrs. Caroline Mojekwu, claiming entitlement to inherit the property of her deceased husband as the surviving male member of the family. He sought a declaration from the court that he was entitled to the said property in accordance with Nnewi native law and custom.
The closest male relative of Mrs. Caroline’s late husband had been the appellant’s father, who was also deceased. The appellant therefore contended that the right of inheritance automatically devolved upon him as the next surviving male in the lineage.
He argued that the property originally belonged to his late uncle, Okechukwu Mojekwu, who died in 1944. Okechukwu had two wives—Janet and Caroline (the respondent). Caroline had a son, Patrick, who also predeceased the parties. Patrick died unmarried and without any surviving issue.
The appellant sought to invoke the oli-ekpe custom, which provides that only male heirs are entitled to inherit the property of a deceased person. He therefore claimed that, since his uncle’s only son had died without a male child, the land should, by custom, pass to him as the next male heir.
The respondent, however, opposed this claim, maintaining that her late son, Patrick, who inherited the land from his father, had an infant son who survived him, and as such, the property could not lawfully pass to the appellant under the alleged custom.
- Legal issue
- Whether the appellant properly pleaded and proved his entitlement under the claimed custom (the olli-ekpe custom of Nnewi) and whether the trial court failed to evaluate the evidence regarding his status as the surviving male heir entitled to inherit.
- Whether the custom of oli-ekpe (which excludes female heirs) is enforceable or whether it is repugnant to natural justice, equity and good conscience
- Judgement:
Despite the dispute surrounding whether Patrick had a surviving son at the time of his death, the court found that the issue of kola tenancy and the appellant’s reliance on the oli-ekpe custom did not entitle him to inherit the property. The Court held that, even if the custom was applicable, it was repugnant to natural justice, equity, and good conscience, as it discriminated against women and excluded them from inheritance.
Applying the Repugnancy Doctrine, the Court declared that customs which deny female children or widows the right to inherit property cannot stand in modern Nigerian law. The Court further noted that such customs violate the fundamental rights to equality guaranteed under the Constitution of the Federal Republic of Nigeria and international human rights conventions such as CEDAW.
Accordingly, the appeal was found to be without merit and was dismissed. The decision of the trial court, which had upheld the respondent’s right to occupy the property, was affirmed.
In a memorable statement, Niki Tobi, J.C.A. observed that:
“Any form of discrimination against women in matters of inheritance, based on customary law, must be condemned and struck down as being inconsistent with the spirit of equity and natural justice.”
- Legal reasoning/ Ratio Decendi
The Court reasoned that the “oli-ekpe” custom of Nnewi, which reserved inheritance to a surviving male heir to the exclusion of female children was repugnant to natural justice, equity and good conscience, and inconsistent with constitutional guarantees of equality.
Justice Niki Tobi, JCA asked: “Is such a custom consistent with equity and fair play in an egalitarian society such as ours…?”
He held that human beings—male and female—are born into a free world and that discrimination on the grounds of sex is unconstitutional.
On proof and pleading: The Court emphasised that the party relying on a custom must plead it, prove it and satisfy the court as to its content and effect before it can be applied or rejected. Customs cannot be declared repugnant where parties have not joined issue on it or been heard thereon.
- Principles Established
- A customary law or native custom which denies inheritance rights to female children purely on the basis of sex may be repugnant to natural justice, equity and good conscience and therefore unenforceable.
- The “repugnancy doctrine” applies: custom will not be enforced if it is contrary to natural justice, equity and good conscience even if it is traditionally recognised
Conclusion
This case stands as a landmark decision in Nigerian law on gender equality and the application of customary law under the repugnancy doctrine. It boldly challenged the Olli-Ekpe custom that denied women inheritance rights, declaring it repugnant to natural justice, equity, and good conscience. The court’s reasoning reaffirmed that customs must evolve and cannot override constitutional principles of human rights and fairness.
I’m glad that such a decision exists to protect women from discriminatory traditions and promote justice beyond culture or gender. It remains a timeless reminder that law must serve humanity, not enslave it to outdated customs.
