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Women’s Right And Status Under Edo Native Law And Custom: Myth And Realities(1)

Last Update (July 9, 2020)


The provisions of Fundamental Human Rights in our Constitution will be merely theoretical if they cannot be made to create an environment where no citizen is or feels oppressed. Constitutional provisions will not by themselves create this enabling environment when there still exist customary walls and barriers built over centuries which encourage and sustain gender inequalities.”
- Jadesola O. Akande (Professor of law and Executive Director, Women Law and Development Centre, Lagos, 1999) in Preface to her book “Miscellany At Law and Gender Relations.”

I must express my sincere gratitude to the Chairman, Edo State Law Review Commission for inviting me to deliver a paper on the above topic at this Conference in his laudable effort to chart a new course for legal development in Edo State.” I consider the invitation a great honour and privilege.

Women’s right and status are currently receiving the attention of the international community. The position of women in contemporary society has attracted public sympathy and interest. Under our customary laws, women suffer discrimination in marriage, divorce, property ownership, intestate succession etc.

Indeed, most customs demand that a woman should be seen and not heard on serious
family issues even when such issues directly concern her, in other words, a woman must be self-effacing to the point of anonymity.

The topic assigned to me as indicated above posits that myths and realities are discernible in Women’s rights and status under Edo customary law. In other words, there are facts and fictions in women’s rights and status. This paper would highlight some of these facts and fictions. While the emphasis will be on the position in Edo State, the approach will be largely eclectic. In other words, references will be made to the position in other states of the Federation, where relevant. My exposition will reveal that the facts are more than the fictions.

The title of this Paper calls for brief comments of the following: “Rights”, “Status” “Edo”, Native Law and Custom,” and “Myths.”

“Rights” connote just claims. A person is said to have a right when he is acknowledged to be entitled to something to which he has a just claim under the law. The history of human rights as it is today has been founded upon the theories of early philosophers such as Aristotle, Bracton and Dicey.

However, the focus of human rights in developing countries has shifted from civil and political rights to social, cultural and economic rights. Salmond’s definition of a “right” as an interest recognized and protected by the law, respect for which is a duo’ and disregard of which is a wrong “status” is a person’s legal, social or professional position in relation to others. The status of a person is an index to his legal rights and duties, powers and disabilities.

“Edo” is one of the states in Nigeria distinguished by the homogeneity of the people as the same cultural and linguistic affinities exist among them. Many of the communities trace their roots to the ancient Benin Kingdom. The major ethnic groups are Benin, Esan (anglicized as Ishan}, Owan, Etsako and Akoko-Edo, who are grouped as Edo-speaking people even though dialects may vary from place to place.

“Native law and custom’ or customary law is a body of customs and traditions which regulate the various kinds of relations between members of a given community.
It is a mirror of accepted usage.

The Supreme Court in Zaidan v. Mohssen defined customary law from the Nigerian perspective as:
Any system of law, not being common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties
subject to its sway.”

In Uyewumi v. Ogunesan, Obaseki J.S.C. defined it as:
“The me organic or living law of the indigenous people of Nigeria regulating their lives and transactions....”

It suffices to state that the customary laws of a people form the substratum on which their socio — cultural superstructure rests. The mailers with which customary law is principally concerned are simple cases of contract (mainly debt), torts, land, family law and succession.
“Myths” are persons, things etc. that arc imaginary, fictitious, or invented.

Under customary law, the concept of equality of both male and female was not only a mirage but a myth. it is important to stress that when one talks about equality, one does not imply that men and women are the same. Equality prevails when men’s and women’s rights, responsibilities and opportunities do not depend on whether they are born male or female.

The principles of equality and non-discrimination form the cornerstone upon which all human rights are based. Under Edo customary law, discrimination is widespread and perpetuated by the survival of the stereotypes and traditions which are not in tandem with human rights standards, indeed, discrimination is not the exclusive preserve of Edo customary law but a general feature of Nigerian customary law rooted in myths and prejudices as the following two quotations illustrate.

According to Carol Ajie; women suffer all forms of discrimination right from birth, some of it inflicted by other women. The female child at birth is regarded as inferior to the male child and boxed into stereotypes, she does all the chores, useful as she is, her mother risks being thrown out of her matrimonial home if she is unable to produce a male child even though it has been biologically and scientifically proven that the choice of the sex of the child is hinged on the male spermatozoa..

At old age, she is branded a witch and stoned to death if married and childless In the Southern part of Nigeria, if her husband dies even at the ripe old age of 90, she is the first suspect. To prove her innocence she is compelled to go through certain obnoxious widowhood practices such as, must shave her hair, must sleep on the floor with the corpse for days, must drink the water used in bathing deceased. Whereas men don’t go through any of these horrendous mourning experiences when they lose their wives. Widowers re-marry much faster than widows do.”

Again, Professor J.O. Akande observed as follows:

“Women were non-persons. When they were not making babies or performing domestic chores and tilling the soil, they faded into anonymity. They could not own land. They could not hold titles in a society where titles were the ultimate testimony of self-actualization, They were merely pieces of property owned by the men and thus subject to whatever use they were put to.

Some of these our traditions and customs permit the parents of a girl of very tender age to sell’ her into permanent servitude in the guise of marriage without the child’s consent and there are still laws which deny a woman the right to share in her father’s estate and a host of other such discriminatory laws”

A jurist, Hon. Justice G.I.U. Udom Azogu, postulated an interesting myth to underscore the discrimination against women when he observed as follows:

The discriminatory practices against women appear to be conceptualized even as the baby is in the mother’s womb. There is a strong traditional belief that where a pregnant woman has a very long labour, she will deliver a female child, but if the labour is short, then the result will a male child — the explanation being that a male child takes his sword and comes out without wasting time while the female child busies herself collecting cooking utensils, brooms and the like for the servile life spelt out for in the world.”

There is no doubt that under customary law, women were relegated to the status of second class citizens. There is the old adage which states that a woman’s place is in the kitchen. A woman was not allowed to take employment outside the home. This was tantamount to a denial of freedom of movement.

Another custom which highlights the lower status of the Edo woman, in particular, is that a woman is expected to kneel down while presenting her husband with a glass of water or while serving his meals.
One may be tempted to assume that the grim and mind-buggling picture painted above was only true of a distant historical era. However, the reality is that even in this day and age, women still play second fiddle to men. Customary practices are replete with traditions aimed at perpetuating the belief that women are not entitled to the same authority and rights like their male counterparts.

It is, however, salutary to note that in most parts of Edo State, the discriminatory customary practices pin-pointed above have been considerably whittled down in matters concerning property ownership, inheritance/succession, marriage, and divorce. These will now be the focus of this paper.

Under Benin and Esan customary law, a woman has equal opportunity vis a vis a man, to acquire, hold, enjoy and dispose of any personal proper’. This may include money, goods or articles of trade, bicycles and other motor vehicles, poultry farm and contents, turkeys, goats sawmills, etc.

As regards real property (parcels of land or buildings), a spinster has no inhibition as to the acquisition or disposal of same. The fact that a woman was later married, does not affect her legal title to any real proper’ which she acquired before the marriage. Such property remains hers exclusively. In most parts of Edo State, all personal property not brought by a married woman to her husband’s house remains hers. In addition, the husband has no inheritance rights over such property. On the contrary, where personal properties are brought to a husband’s house, the husband has inheritance rights in the absence of children of the marriage.

It is correct to conclude that under the customary law of most parts of Edo State, a woman is not deprived of the opportunity or right to acquire, hold or enjoy property.

Women have been known to institute actions to protect their parcels of land held under Benin customary law. In the case of Madam Agbonifo v. Aiwerioba & Anor. the appellant (a woman) sued and got judgment against the respondents in a Benin High Court for a declaration of possessory title to land held under Benin customary law, in an earlier case of KS. Okeaya-lnneh v. Ekiomado, Madam Ekiomadeo Aguebor (now respondent) as plaintiff in the High Court instituted an action against the defendant (now appellant). Madam Aguebor’s claims were for:

(1) A declaration of title to a piece of land held under Benin native law and custom;
(2) $lOO damages for trespass and
(3) A perpetual injunction.
In Grace Aboinfo v. Ojo - Egbon & Anor, plaintiff’s claims before Obaseki J. (as he then was)were for:

(a) a declaration of title according to Benin native law and custom to the house at and known as No. 2 Agbado Street, Benin City.

To be continued 

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