The Repugnancy Test and Esan Inheritance Practices: Protecting Culture Without Violating Fundamental Rights in Nigeria

Abstract

Section 18(3) of the Evidence Act 2011 empowers Nigerian courts to refuse enforcement to any custom contrary to public policy or offending natural justice, equity and good conscience. Esan inheritance custom in Edo State rests on male primogeniture: the eldest surviving son performs the second burial rites, takes the Igiogbe and controls the residue, while daughters and widows take nothing as of right. Using the doctrinal method, this paper asks whether the repugnancy test can correct that exclusion without dismantling the institution it regulates, and argues that it cannot, because the test is colonial in origin, indeterminate, inconsistently applied, negative in remedy and invisible outside the courtroom. The paper separates the seniority principle that organises Esan succession from the sex qualification attached to it, which imposes a disability on the female child within the meaning of section 42(1) of the Constitution. It examines Idehen v Idehen and Lawal-Osula v Lawal-Osula, which protect the Igiogbe against even a valid will, alongside Ukeje v Ukeje and Anekwe v Nweke, which void discriminatory succession customs, and shows the two lines unreconciled, no reported decision having placed an Esan or Bini daughter’s claim before the Supreme Court. Drawing on South African, Ghanaian and Kenyan experience, it recommends an Edo State Succession and Family Property Law distributing the estate equally among all children irrespective of sex and vesting the Igiogbe in the eldest surviving child, male or female, as a status asset held on trust. It rejects repeal of section 18(3).