IS THE EVIDENCE OF WOMEN ON CUSTOMARY LAW ADMISSIBLE?

Introduction

In many tribes in Nigeria, women seems to be relegated to the background as a matter of tradition, and they are not reckoned with where and when major and critical decisions are taken by men. Beyond this, we have seen instances where women are excluded in matters of inheritance. Thankfully, the Supreme Court has came down heavily on such customs, striking them down as being repugnant to natural justice, equity and good conscience. Effectively, women have legal backing to enjoy rights of inheritance like their male counterparts as well as rights to own real property.

Indeed, the activism to end discrimination against women has gained many grounds. Thus, it came as a shock when a Senior Advocate of Nigeria, Chief Okwuchukwu Ugolo, SAN, recently appeared to argue that the evidence of women on customary law should be held inadmissible and lacking in credibility because they are young women with little or no education. The Supreme Court would have none of that. Below is a brief background to what transpired in the case of Okeke v. Nwigene [2022] 3 NWLR (Pt. 1817) 313.

Okeke v. Nwigene

In this case, one of the customs and traditions of Ekwulobia people in Anambra State, South East, Nigeria was in issue. A man named Ezegoro had three sons. They were as follows (in order of seniority) – Nwanneche, Ibemesi and Okeke. Nwanneche inherited the Obi of Ezegoro upon the latter’s death, and other landed properties (Ana obi) were partitioned among the brothers. The subject of dispute was the Obi, in that Nwanneche had died without a successor. Ibemesi who would have inherited the Obi as the next in line predeceased Nwanneche but Ibemesi had a son called Amuche Nwigene (Nwigene).

While Nwigene was young, Okeke exercised authority over the Obi. When Nwigene came of age, Okeke refused to vacate the Obi, contending that he was next in line after his other two deceased brothers, Nwanneche and Ibemesi.

This controversy became a subject of litigation in a suit filed by Amuche Nwigene and Somadina Emeka Nwigene as Plaintiffs against Clement Okeke). The argument was, who among Nwigene (the son of Ibemesi) and Okeke is entitled to the Obi under the native law and custom of Ekwulobia people?

In the course of trial, three women testified on behalf of Nwigene (as Respondents’ witnesses), stating their own account of the native law and custom of Ekwulobia people regarding the issue, to the effect that Nwigene took the place of his late father, Ibemesi, and was therefore entitled to the Obi.

Okeke argued that since Ibemesi predeceased Nwanneche, Nwigene (Ibemesi’s son) cannot inherit the Obi because Ibemesi never succeeded to the Obi as Diokpala (eldest son).

However, the High Court of Anambra State agreed with the contentions of the Respondents (as Plaintiffs) and held in favour of Nwigene.

Okeke, as Appellant, appealed to the Court of Appeal and failed. He further appealed to the Supreme Court. At the apex Court, the Appellant, through his Counsel, Ugoro, SAN, challenged the evidence of the three women who had testified as witnesses, on the ground that they were young inexperienced women with little or no education.

It happened that in upholding the case of the Respondents at the trial Court, the learned trial Judge made allusions to women who preside as Judges in our courts including those who serve as Presidents and Judges of Customary Courts including Customary Court of Appeal.

The Appellant’s Counsel made this a basis of appeal even at the Supreme Court. He contended that the trial Judge erred when the Court compared the three female witnesses to Judges of Customary Courts in the area who are versed in the customs and traditions of Ekwulobia people. Thus, he argued that by elevating the female witnesses to “Judges”, the trial Court placed undue weight on their evidence without seeking corroboration from persons outside their family.

On 18 June 2021, the Supreme Court upheld the lower Courts’ decisions and noted that the trial Court’s reference to female judges was a mere allusion just to buttress the point that women can validly possess knowledge of native law and custom and being females does not render their evidence inadmissible or not credible. The apex Court upheld the concurrent findings by the lower courts that the native law and custom of Ekwulobia people recognises that when a man dies but survived by a son, he is still deemed to be living in the eyes of the people. Thus, notwithstanding that Ibemesi, the father of Nwigene, predeceased Nwanneche, Ibemesi is deemed to be in existence through his son, Nwigene.

Aboki, JSC held (at page 348):

With due deference to the Learned Senior Counsel, I do not agree that this is the intendment of the two courts below. All they are saying, in my view, is that being of a female gender does not render the evidence of a witness inadmissible, and/or not credible with regard to the customary law, as holding otherwise would go against the grain of Section 42 of the Constitution of the Federal Republic of Nigeria, (as amended). Provided the pieces of evidence are credible, they could be relied upon to prove the customary law in question.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
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