The Widow’s Position

The inventory begins on the fourth day.

It is not done violently and nobody raises their voice. Two of his brothers and an uncle walk through the house with a notebook, and they write down what is in it. They are polite to her. They explain, when she asks, that this is what is done, that the property must be accounted for, and that arrangements will be made for her and the children in due course.

She does not argue, because she is in mourning clothes and the house is full of people and there is a burial to finish. By the time the last visitors have gone, three things have happened. An application has been made in the name of one of the brothers. The tenants at the shop have been told where to pay. And the notebook, which now includes the car, the generator, two accounts and a piece of land at Akurba, has become the family’s working understanding of what the estate contains.

Everything the law says about her position is correct and none of it has been applied yet. The gap between those two facts is where most Nigerian widows actually live.

(A constructed illustration. The pattern is ordinary; the persons are not real.)

A custom that takes a widow’s house is not weak law. It is not law at all.

For most of the twentieth century the Nigerian authorities on this subject were bleak. In Nezianya v Okagbue (1963) the Supreme Court described a widow’s position under the custom then before it as one in which she might occupy her husband’s property with the consent of his family but acquired no interest in it and could not deal with it — her possession, however long, could not ripen into ownership. That was the received position, and generations of families were advised on it.

It has been overtaken, and the instrument that overtook it is the repugnancy doctrine, which is worth understanding because it is more powerful than it sounds. Customary law is recognised and applied by Nigerian courts, but it is not applied where it is repugnant to natural justice, equity and good conscience, or incompatible with a written law. Repugnancy is not a rule of preference. A custom that fails it is not outweighed; it is void, and a court applying it is applying nothing.

Two things about that doctrine should be stated precisely, because it is easy to overstate in both directions. It does not abolish customary law, and it is not a general judgment on any community. It operates rule by rule, on the particular custom pleaded and proved in the particular case, and the great body of customary law that governs marriage, family property and succession across Nigeria continues to be recognised and applied. What the doctrine removes is the specific rule that fails the test. Equally, once a rule has failed it in the Supreme Court, a family cannot revive it by insisting that it is their custom. Whether it is their custom is no longer the question.

In Anekwe v Nweke (2014) the Supreme Court held a custom under which a widow without a male child could be driven from her matrimonial home to be repugnant and void, in terms that left no room for local variation. In Ukeje v Ukeje (2014) it struck down a custom excluding a female child from her father’s estate as unconstitutional. The Court of Appeal had earlier condemned a custom passing a man’s property to a male relation over his own daughters in Mojekwu v Mojekwu (1997), and though the Supreme Court in that line counselled restraint about condemning a custom in sweeping terms where the point had not been fully argued, the principle was settled beyond argument in the two 2014 decisions.

Alongside that, the legislature has moved. The Violence Against Persons (Prohibition) Act 2015 makes harmful widowhood practices a criminal offence, and a number of states have enacted equivalent provisions. This is a change of register, not merely of emphasis: conduct that was previously described as an unkind custom is now, in the relevant jurisdictions, an offence with a complainant and a charge.

So the legal position is not ambiguous and has not been for over a decade. What follows is not an argument about what the law is. It is an account of why knowing it is not the same as benefiting from it.

A widow’s position is not one right but five, and they are held on different footings, enforced through different processes, and lost in different ways. Treating them as a single grievance is the commonest error in these matters, because it produces one large claim that fails instead of several smaller ones that succeed.

The law described in Act One is good law and it is enforced. The difficulty is that it operates at the end of a sequence whose result is largely fixed at the beginning.

The grant is obtained in the first months, and afterwards every question is addressed to the person holding it.

Institutions act on their own records at once and without adjudicating anything. A bank pays a person with authority. An employer pays a nominee, and a nomination directs payment without conferring any interest in the estate. A land registry deals with its registered proprietor. None of these is deciding the dispute; each is doing what its file tells it to do, within weeks.

Assets are dealt with while the position is unsettled. Vehicles are moved, tenants are redirected, businesses are taken over, accounts are drawn down. A judgment obtained three years later declares an entitlement to a fund that has been spent, and enforcement against relations who have consumed it is a second case.

And the litigation itself is expensive, slow and conducted against people who are, in the ordinary case, the only family her children have. The private cost of a public right is what keeps the old customs operating long after the courts have voided them: not because anybody believes they are lawful, but because insisting otherwise costs more than most widows have.

It is worth saying, because it changes how these matters are best run, that the relations doing this are frequently not acting in bad faith. They believe the property belongs to the family, because that is what they were taught and what they have seen done. They believe the inventory is stewardship. Many of them intend to provide for her and will say so, and some of them mean it. A matter conducted on the premise that they are thieves will usually be longer and worse than one conducted on the premise that they are working from a rule that no longer exists — and the second premise is generally the true one.

None of this is a reason for despair and it is certainly not a reason to concede. It is a reason to act in weeks rather than in years, and to act on Claims Three and Four first, because those are the two that decay fastest.

The custom was declared void in the Supreme Court. It continues to be applied in the compound, because the compound moves first.

Every matter of this kind is decided by what was arranged while he was alive, and the arrangements that work are unremarkable.

Put her name on things. A house held jointly, or in her name, does not enter the estate and is not distributed by anyone. This is the single most effective step available and it costs the price of a properly executed and registered instrument. The funding sub-cluster’s essay on land explains why the deed alone does not achieve it, and why the register is what decides.

Make a will. A widow named in a will does not depend on the customary law of the community, and a will removes the intestacy machinery that Act Three describes. Its limits should be understood: it reaches only what he could dispose of, and it is published on probate.

Settle a trust. A trust holds property outside the estate, provides for her without requiring her to establish her status against his family, and appoints someone other than the family to administer it. Where a household expects the position to be contested, this is the instrument that answers the contest in advance rather than after it. Sibling 09 takes it apart, and the seven-step architecture in the set-up cluster is the build.

Assign the policy rather than nominating under it. The distinction is set out in Sibling 01 and in the funding sub-cluster’s essay on insurance, and it decides whether the money reaches her directly or falls into the estate to be shared.

Write the letter of wishes. It binds nobody. In a family that intends to argue about what he wanted, a document in which he says what he wanted, in his own voice, is the thing most likely to stop the argument before it is filed.

And keep the paper. Not for a dispute — for an administration. The certificate, the title documents, the policy, the share certificates, the account details, and a list of what is hers rather than his. A widow with a file is in an entirely different position from a widow with a memory, and the file is assembled during a marriage, by two people, at no cost.

The law has already decided in her favour. What it cannot do is arrive on the fourth day.