Ebun-Olu Adegboruwa

On Friday, March 8, 2019, the world rose in unison to celebrate the International Women’s Day, deliberately set aside to highlight the social, economic, cultural and political achievements of women, with the theme #BalanceforBetter. The main goal is that of building a gender-balanced world. All over the world, women have faced very challenging times, in business, ministry, marriage, career and politics, leading to the global resolve to create deliberate efforts to achieve gender equality, in major if not all areas of human endeavour.

Recently, a story went viral, of the decision of the High Court of Oyo State, wherein the Married Woman Property Act of 1882 was implemented to achieve equity in the distribution of the estate of a couple going through divorce. Expectedly, this has generated a lot of debates for and against. The facts of that case as reported by the Nigerian Tribune, are as follows:

“The provisions of the Married Woman Property Act 1882 formed the basis of the pronouncement of the Chief Judge of Oyo State, Justice Munta Abimbola, on Friday in a property suit between a divorced couple, Toyin Arajulu, formerly known as Mrs Toyin James and her former husband, Mr James Monday.

Mrs. Toyin Arajulu had filed the suit against her ex-husband, Monday James, who she married under native law and customs in 1997 and for whom she had four children. She claimed that while she was married to him, they had put resources together and built two flats of three bedrooms at Ayedun in Akure, Ondo State and procured a plot of land at No 7, Fadana Biala Estate, Olodo, Ibadan, where they built a three-bedroom flat and a storey building which is still under construction before their divorce in July 2014.

She averred that before the divorce, her husband had moved out of their matrimonial home in Olodo but only came constantly to try to forcibly eject her and the children, usually accompanied by thugs who attacked her and her children. She added that on August 15, 2014, one of her children, Bidemi James, was wounded in one of the episodes of attempted violent eviction and the sum of N530,000 from her business taken by her ex-husband and his accomplices. She claimed that he had concluded plans to sell off the joint property without her consent and had continued to victimize her and the children, asking the court for a declaration that the property is jointly owned by the two of them and an order that the landed property with the three-bedroom flat and uncompleted storey building be sold and proceeds divided equally between them and an order of perpetual injunction restraining James from harassing her and the children.

In his counter-claim and defence, the ex-husband stated that when he bought and constructed the Akure property, his wife was a full housewife and had no contribution to the project, adding that the situation was the same for the Ibadan property as his wife only signed as a witness as she had no job and only depended on what he gave her to take care of the children when he travelled out of the country. According to him, she was only trying to fraudulently take over his property, adding that her claims were vexatious, gold digging and an abuse of court process.

Justice Abimbola, while ruling on the case, held that the landed property at No 7, Fadana Biala Estate, Olodo, Ibadan, together with the three-bedroom flat and uncompleted storey-building is jointly owned by the two. On the second relief that both buildings be sold as requested by Toyin, Justice Abimbola held that, “I will not give such orders in respect of the two buildings.
“Section 18 also enjoins the court to treat such property as a joint property if the issue has to do with the maintenance of a matrimonial home. My order to this effect is that the completed three-bedroom flat on the land be retained as the matrimonial property and the four children are entitled as beneficial owners by way of a resulting trust created for them by their parents. The mother, as long as she remains unmarried, is directed to be in possession undisturbed in order to take care of her children.

“The uncompleted storey-building is ordered to be sold by both parties and the proceeds divided in equal share. The half share shall go to the wife for the maintenance of the children. A divorced wife has no business being maintained,” Justice Abimbola held.

The court also restrained James from harassing Toyin any further or disturbing the quiet possession of the property by her and the children, holding that, “the rationale is that a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman, of her own volition, leaves the matrimonial home. Also, a divorced woman is not entitled to any maintenance allowance but maintenance of the children by way of settlement.”

Of course the above decision was met with applause by women and activists, given the monumental deprivations being suffered by women all over the world, arising from gender oppression. But it is not yet uhuru for our women, as it would seem that the Oyo High Court judgment may not stand the test of time, especially on appeal. First, the English law that was applied by the court was promulgated to regulate marriages celebrated under the Marriage Act, not customary marriage. Second, our courts have already laid down the mode of distribution of estate under native law and custom, as stated in several cases. Third, in many parts of Nigeria, especially in the North, marriage is governed by Islamic law, not English law.

Beyond the Oyo High Court judgment however, Nigeria must fashion out a deliberate policy of passing legislation that will protect the interests and assets of women in marriage, especially in customary marriages. Too many repugnant customary practices conspire to deny and frustrate women as equal partners in the business of marriage and general inheritance matters. In the South East for instance, the Supreme Court has risen to the occasion several times to annul and strike down very odious customary practices that seek to deny female children of the estate of their deceased father, on account only of their sex, contrary to the clear provisions of section 42 of the 1999 Constitution prohibiting discriminatory practices on ground of sex.

A good example of the change being advocated can be taken from the Bible, as stated in the book of Numbers chapter 27. It is the story of a man called Zelophehad, who died without a son surviving him but had five daughters. It was the custom in Israel then that daughters could not inherit the assets of their deceased father. But these brave women met together and decided to fight that law, as recorded in Numbers 27:3-4:

“Our father died in the wilderness … and had no sons. Why should the name of our father be done away from among his family, because he hath no son? Give unto us therefore a possession among the brethren of our father.”

Moses took the matter to God and God vindicated the courage of these women and asked Moses to abolish that law, in Numbers 27: 7-8:

“The daughters of Zelophehad speak right: thou shalt surely give them a possession of an inheritance among their father’s brethren, and thou shalt cause the inheritance of their father to pass unto them. And thou shalt speak unto the children of Israel saying, if a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter.”

So, if God Himself has abolished discriminatory practices against women on the ground of sex, then we cannot in our own clime, be perpetuating inequality against women in marriage and denigrating them by saying that they were at home raising children. In Yoruba native law and custom for instance, the widow of a deceased man is regarded as part and parcel of the estate of the man, to be distributed and passed on to his surviving brothers. It is offensive, particularly where the issue of love and affection do not count as consideration for the union.

The case of Mrs Toyin Arajulu has at least served to expose the weakness of our culture as deficient in the protection of women in marriage, especially customary marriages, where the oppression and deprivations against women is most prevalent. The National Assembly and the Houses of Assembly of the States must as a matter of national emergency rise up to this challenge by enacting legislation that will abolish repugnant customary practices against women’s rights. God has abolished it, the Constitution prohibits it and it should not be allowed in any society of reasonable people. Women are human too.

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