TABLE OF CONTENT
Title Page
-------------------------------------------------------------------------- i
Approval ---------------------------------------------------------------------------
ii
Certification
----------------------------------------------------------------------- iii
Dedication
------------------------------------------------------------------------- iv
Acknowledgement
--------------------------------------------------------------- v
Table of Content
----------------------------------------------------------------- vi
Table of Cases
-------------------------------------------------------------------- vii
Table of Status
------------------------------------------------------------------- viii
List of Abbreviation
------------------------------------------------------------- ix
Abstract
---------------------------------------------------------------------------- x
CHAPTER ONE
INTRODUCTION.
1. What is Customary Law Marriage?
1.1 Features of Customary Law Marriage.
1.2 Types of Customary Law Marriage.
CHAPTER TWO
THE
ESSENTIAL ELEMENT OF MARRIAGE UNDER NIGERIA CUSTOMARY LAW .
2 Bethrothal.
2.1 Capacity of the
Parties.
2.2 Consent of the Parties
and their Parents.
2.3 Bride Price of
Marriage Consideration.
2.4 Solemnization of the
Marriage.
2.5 Consummation.
CHAPTER
THREE
DISTINCTION
BETWEEN VOID AND VOIDABLE MARRIAGE .
3 Dissolution of Customary Law Marriage.
3.1 Modes of the
Dissolution.
3.2 Judicial Divorce.
3.3 Non Judicial
Divorce.
3.4 General Ground for
Divorce.
3.5 When Marriage is
Dissolved.
3.5.1 Return of Bride Price.
3.5.2 Time for Refund.
3.5.3 Responsibility for
Repayment.
3.6 Right to Re-Marry.
3.7 Dissolution on
Death.
CHAPTER FOUR
CONCLUSION.
4 Observations.
4.1 Recommendations.
TABLE OF CASES PAGES
1. Ared Asham v. Nyokk Abang - - - - - 37
2. Bank of England v. Vagliano Brothers (1981) A.C 107
pg 144-145 - - - - - - - - 1
3. Balogun v. Oshodi (1929) 10 NLR 36 at page 50 - - 6
4. Eugen Moribe v. Joshua C. Egwu (1976) 3 Sc. 23 at pg 32- 8
5. Hyde v. Hyde (1886) L.R.I.P 8, 130, 133 - - - 8,10
6. Kharie Zedain v. Fatima Khali Mohssen
(1973) All
N.L.R. 740 pf 753 - - - - - 2
7. Kidney and Anor v. Military of Gongola State
(1988) 1
NSCC 827 - - - - - - 7
8. Lewis v. Bankole (1909) 1 N.L.R at pg 101 - - - 6
9. Mariyama v. Sadiku Ejo (1961) N.R.N.L.R pg 81 - - 6
10. Nachimson v. Nachimson (1930) pg 217 - - - 11
11. Ojisua v. Aiye Belelin (2001) F.W.L.R (pt 66) at 719 - 5
12. Oyewumi v. Ogunesan (1990) 3 N.W.L.R
pt 137 – 182
pg 207 - - - - - - 3
13. Sapara and Anor v. Adel Sapara (1911) RGCR 605 - 14,16,21
14. Okaludo v. Omama (1961) N.W.L.R 147 - - - 15
15. Osamawonyi v Osamawonyi (1972) 1 All N.W.L.R 365 - 22
ABSTRACT
This project work explains the essential element of marriage under
the Nigeria Customary Law. The validity of customary law marriage as a result
of these elements, how this customary law marriage is being performed or
celebrated in the society.
It also contains
the ground in which customary law marriage can be void and voidable including
various ways in which marriage under Nigeria Customary Law can be dissolved in
Nigeria. However, this project work comprises of four chapters.
Chapter one of
this project contains the introduction and nature of customary law marriage in
Nigeria.
Chapter two deals
with the essential elements of marriage under Nigeria Customary Law such as
betrothal, capacity of the parties, consent of the parties, bride price or
marriage consideration, solemnization of the marriage and consummation of the
marriage.
Chapter three
deals with the distinction between void and voidable marriage, dissolution of
customary law marriage, return of bride price and the right to re-marry.
Conclusively,
chapter four deals with the conclusion, possible observations or
recommendations.
CHAPTER
ONE
1.0 INTRODUCTION
For a start, it will be a good
idea to get acquired with the term “customary law”. According to Emiola , the traditional approach to the study of any
subject is to define its features before embarking on the study.
Hence, for easier understanding
of the term “customary law” we have to bisect the term to produce “custom and
law”. Although it has been argued that
law does not have a generally acceptable definition, Thereby leading different
schools to propound their own definition. For example Vinogradoff opines that law is a “set of rules imposed and enforced by a
society with regard to the attribution and exercise of power over persons and
things” 1 Latham C.J. in Author Yates and co-property Ltd v. the
vegetable seed committee 2 defines law where he said “Law
is an enforceable rule of conduct prescribed by a law making authority” …………
Sanni sees law as “……… a body of rules designed or formulated to guide human
conduct or action which are enforced among the members of a given state” 3
For the purpose
of this subject law is a body of rules designed to regulate human conduct in
the society.
Furthermore “custom” can
be defined as a body of rules accepted and
__________________________________________________________________________________________________________________
1. Vinogradoff
Comm-sense in law atp. 59 cited in Elias, the Wature of Africa customary Law
pg. 45.
2. (1945) 7
C.C.L.R 37.
3. Sanni A.O.
Introduction to Wigeria Legal System pg. 2 cited in S.O., Tonwe, O. K. fod,
customary Law.
recognized by people of a particular locality which is binding on
them and is also applicable in their relationship with one another. Custom
was also defined in the case of Okonkwo v. Lucy Okagbue and Ors 4 as:A particular way of behaviour which has been established by a particular group
of people for a long period of time can develop and acquire the force of law or
right.
The combination of these bisected terms makes up customary law.
Customary law is a custom that has been crystallised into law in that every
branch attach customary sanction which takes different forms from society to society,
sanction includes public ridicule communal ostracism or banishment. Customary law was judicially defined by Nigeria Supreme Court in Kharia Zaiden v. Fatima Mohssen 5
as “a system of law not being the common law of England and not being a law enacted
by competent legislature in Nigeria but which is binding and enforceable within
Nigeria as between the members subject to it” Nigerian Customary Law is
defined
“as any rule or body of rules of
human conduct regulating the rights and duties of a particular indigenous society in Nigeria whether by immemorial custom usage or not but which are considered binding by such indigenous society in Nigeria and breach of which are sanctioned by external force particularly to such indigenous group 6 ”.
__________________________________________________________________________________________________________________
4. (1994) 9 NNLR pt. 368, 301
at pg. 345.
5. (1973) All
N.L.R. 940 at pg. 753.
6. Onuj the case for the ro in Statement of
customary law in Nigeria at pg. 3cited in S. O. Tonax
O.K Ed Customary Law in Nigeria
Published in Lagos by Renaissance Publishers 2007. Pg. 6.
Justice Ollenu observed that not every form of social conducts fit into the definition of customary law even if it is well established. Thus, customary laws are customs of a given society which must be obeyed and its violation tends to violate its existence.
Customary
law is not just a law but an organic law of any indigenous society. This was judicially noticed in the case of Oyewumi v. Ogunesan 7 by Obaseki J.S.C. when he said “customary law is the organic law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that the custom is a mirror of the culture of the people.
1.1 WHAT IS CUSTOMARY LAW MARRIAGE?
The word marriage
may be defined or explained in varios ways depending on the culture of a
particular society. However, marriage was generally defined by the supreme court of Nigeria in Eugene Meribe v. Joshua C. Egwu 8 that marriage is the union of one man and a woman thereby creating the status of husband and wife. Also Lord Penzance in Hyde v. 9 Hyde defines marriage as a union of one man and one woman for life to the exclusion of all others.
__________________________________________________________________________________________________________________
7. (1990) 3 N.W.L.R Cpt. 137/ 182 at pg. 209.
8. (1976) 3
S.C. 25, at pg. 32.
9. (188)
L.R.I.P &D 130, at pg. 133.
Marriage can be seen as a universal institution which is recognised and respected all over the world. However “for African people” says Professor John Mbiti 10 “marriage is the focus of existence” he added “marriage is a drama in which
everyone becomes an actor and an actress and not just a spectator therefore marriage is a duty or a requirement from the corporate society and the rhyme of life in which everyone must participate … failure to get married under normal circumstances means that the person concerned has rejected society and the society rejected him in return” thus in the case of Okonkwo v. Lucy Okagbue and Ors 11 ” (supra) where Mahammed J.S.C. (as he then was) gave a graphical development of the institution of marriage when he said “it (i.e marriage) originated in the form of irregular unions. There were marital unions through capture, slavery and purchase, may of such primitive custom have generally given way to the acceptable form of marriage agreement”.
1.2 FEATURES OF CUSTERARY LAW
The features of customary law helps to create a better and broad understanding of the term “customary law” these features are divided into five broad important features and they are as follows:
1. The first feature of customary law is that it is unwritten in nature. Just as the English common law. Hence it is derived from
__________________________________________________________________________________________________________________
10. Mbiti
African Religious &Philosophy (1969) pg. 153 cited in S.O. Tonwe and O.K.
Edu
Customary Law in Nigeria pg. 152
published in Lagos by renaissance publishers 2007.
11. (1994)
9 N.W.L.R (pt. 368) 301 at pg. 346,
cited in S.O. Tonwe and O.K. Edu Customary Law
in Nigeria
pg. 151.
the custom of the people it governs, the restriction of its application to a group of people or locality and its flexibility distinctly mark off Islamic law from customary law and is appropriately recognised by the Nigeria Constitution 12 which provides for distinct application of Islamic law and customary law by separate system of court respectively. This was statutory provided for in the 1999 constitution 13 and by the court in Ojisua v. Aiye Belehin 14.
2. Secondly customary law is customary and acceptable. This is to say it grows from the custom and conduct of the people and is based on the tested traditions of the society it concerns.
The tradition or custom are handed down from generation to generation and are abandoned when whey have out lined their usefulness and ceased to command the obedience they deserved. At a point law loses its judicial foundation and is no longer enforceable that is why it has been described as a “mirror of accepted usage which cannot be decreed or legislated into existence” 15 Though it is largely unwritten, customary law is ascertainable by observing the conduct and attitude of the people subject to it, those responsible for its administration can easily identify its acceptability by the people themselves.
__________________________________________________________________________________________________________________
12. Constitution
of the Federal Republic of Nigeria 1999.
13. See 262 (2)
of the 1999 constitution of the Federal Republic of Nigeria
14. (2001)
F.W.L.R. (pt 66) 910, at pg. 719.
15. Owoniyi v.
Omotosho (1961) I.A.W.L.R 304.
3. Customary law is by large, a moral law. This means that it is a law base on the principle of natural justice and equality. In the general and widest sense, some of the rules of customary law struck down by the application of the doctrine of repugnancy can be explained with reference to history when the rules where mostly equitable by the proper feeling of the time. In the case of Mariyama v. Sadiku Ejo 16 when chastity was a thing of value, it was considered highly immoral and anti-social for any person to seduce the wife of another man while still legally married to the husband. Even in highly developed English jurisprudence few judges would permit a person like Sadiku Ejo to profit from his wrong doing. The accepted principle in law is “Exturpi Egusa Non Oritr Action” which means “an action does not arise from a cause”. Therefore, such cases as were struck down in later years not because the customary law applied in them were inherently unjust but it was because the society have uttered their values.
4. Another feature of customary law is that it is susceptible to changes and is therefore flexible law that has become absolute has ceased to exist and soon abandoned. In Balogun v. Oshodi 17 Webber. J. observed that “The chief characteristic feature of nature law is its flexibility “Also in lewis v. Bankole 18 Osborn C.J observed that “one of the most striking features of the West African Nature Custom…. Is its flexibility it appears to have been
__________________________________________________________________________________________________________________
16. (1961) N.L.R. pg. 81.
17. (1929) 10
N.L.R 36 at pg. 50.
18. (1908)
L.N.L.R. 81 at 101.
always subject to motives of expediency and it shows unquestionable adaptability to altered circumstances without entirely losing its character”. The process of enactment and adaptability is not in all civilized societies. Any law will cease to be a law when it is treated with disdain by the people for whom it has been made.
5. The fifth feature of customary law is that it is universally applicable within the area of its acceptability. That is, its popularity among the people is the main source of its strength and validity. Custom must not be restricted to a kindred group it must be generally applicable in a particular area or locality. In as much as it remains a moral law based on what is socially acceptable, it will continue to enjoy the support of the people section 19 of the Customary Court of Oyo State provides that a customary court shall have jurisdiction over all Nigerians.
6. The last feature is that it must be in existence, this simply means that native law and custom which the court are empowered to enforce must be existing and not that of by gone days.
TYPES OF
MARRIAGE UNDER NIGERIA CUSTOMARY LAW
Two types of marriages are recognised in Nigeria which includes. The monogamous and polygamous type of marriage. Marriage under customary law is essentially polygamous in Africa 20.
__________________________________________________________________________________________________________________
19. Customary
Court Law (Oyo State) S. 21 (3).
20. (1886)
L.R.I. P. &D 130, 133.
These two types of marriage differ fundamentally in character and incident it is important to keep this dualism in view in every consideration of the marriage law in Nigeria to avoid any confusion in every case concerning marriage. The step is to determine the type of marriage involved in order to apply the appropriate law.
(a) Monogamous marriage
(b) Polygamous marriage
(a) MONOGAMOUS MARRIAGE: A monogamous marriage in Nigeria is the same thing as in England. Its the marriage which Lord Penance described in Hyde v. Hyde as …. The voluntary union for life of one man and one woman to the exclusion of all others”.
This definition is divided into three aspects they are:-
i. The marriage must be a voluntary union. Thus there must be
free consent of both parties to the union. The absence of genuine consent will violate the agreement.
ii. The marriage should be a union for life. This does not imply
that the union should be for life unless dissolved not earlier by a process prescribed by law. Marriage which was contracted according to the local law could be dissolved by mutual consent or the will of one of the parties with merely formal condition of official registration was infact a union for life and a monogamous marriage.
iii. It must be a union of a man and a woman to the exclusion
of all others.
The marriage must therefore be monogamous as it does not admit of taking more than one wife during the subsistence of marriage. However according to the Interpretation ACT 1964 21 a monogamous marriage is “a marriage which is recognised by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage.
The law which governs the celebration of monogamous marriage in Nigeria are found principally in the Marriage Act 1914 22 and the Matrimonial Causes Act 2004 23.
(b) POLYGAMOUS
MARRIAGE: A polygamous marriage is a marriage in which a man is entitled to have more than one wife. There is no limit to the number of wives a man
can have under customary law 24 its essential characteristic is the capacity of a man to take as many wives as he pleases. But because of the present deteriorating economic condition in Nigeria and the influence of the Christian religion, fewer Nigerians marry more than one wife.
The character and incidents of this type of marriage is governed by the law prevailing throughout Nigeria. The fact that there may be plurality of wives does not affect the basic promise that the polygamous marriage is usually intended to last for life.