A Critique of the Judicial Attitude Towards Matrimonial Property Rights Under Customary Law in Nigeria's Southern States

Abstract

Thus far, recent judgments on women’s property rights delivered by the Nigerian Supreme Court have been perceived as a development of customary law. This article argues that these judgments mask the indifferent attitude of apex courts to women’s matrimonial property rights under customary law. This indifference is evident from the Supreme Court’s failure to address the preservative philosophy of property rights and the unsuitability of this philosophy to contemporary conditions. To bring this failure into critical focus, the article primarily uses case analyses to critique divorce and succession judgments delivered by the Supreme Court and Court of Appeal. It finds that apex courts prefer the repugnancy test over the Bill of Rights, using a balancing act that shields the customary law of matrimonial property from constitutional scrutiny. Among other measures, the article suggests that customary law should be unequivocally subjected to the Bill of Rights, and legislation should be enacted to regulate customary laws of succession, marriage and divorce.