MARRIAGE, DIVORCE AND SUCCESSION

THE LEGAL ASPECTS(a)

 

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INTRODUCTION

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1.01   I thank our Bishop, the Rt. Revd Dr. P. A. Adebiyi, and the 10th Anniversary Celebration Committee for inviting me to speak on this very wide topic. I sincerely hope that at the end of our discourse, we all would be better enlightened as regards our rights, obligations and duties under the Nigerian marriage, divorce and succession laws. Let us now try short form definitions and commentaries on the critical words “Marriage”, “Divorce”, “Succession” and “Legal aspects” or indeed “Law”.

 

1.02   “Marriage” by universal definition is the legal relationship between a husband and wife.  It is a union between a man and a woman, at least so we thought until recently.  I shall not for very obvious reasons dwell at any length on other possible definitions of marriage so as not to completely deviate from the theme of our topic.  This paper is predicated on the universal definition of marriage as the union between a man and a woman.  Be that as it may, I would quote a rather interesting definition of marriage which brings into fore the problems the western world and indeed some of our brothers in the continent of Africa, now face in sphere of marriage:

 

“A marriage is an interpersonal relationship with governmental, social, or religious recognition, usually intimate and sexual and often created as a contract. The most frequently occurring form of marriage unites a man and a woman as husband and wife. Other forms of marriage also exist, for example, polygamy in which a person takes more than one spouse, is common in many societies.  Beginning in 2001, the legal concept of marriage has been expanded to include same – sex marriage in some jurisdiction(b)” .

 

The legal concept of marriage has been expanded to include marriage between a man and a man and between a woman and a woman in these so called civilized communities.  Lest we get carried away, this Christian gathering is no doubt a bible reading one.  The Scriptures are clear.  In the Book of Genesis, Chapter 2 Verse 24, we read as follows:

 

“For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh”.

 

 


(a)        A paper presented by Bambo Adesanya SAN, at a Seminar making the 10th Anniversary of the Diocese of Lagos West (Anglican Communion) at the Archbishop Veining Memorial Church Cathedral on the 12th of June 2009.

(b)        Wikipedia – the free encyclopedia

 

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We are even told that the man and wife were both naked and they felt no shame. 

 

See also Matthew 19: 4 – 6:

 

“Havent you read “he replied”, that at the beginning the Creator made them male and female and said “for this reason a man will leave his father and mother and be united to his wife and the two will become one flesh. So they are no longer two, but one. Therefore what God has joined together, let man not separate”.

 

See also what St. Paul wrote to the Corinthians in 1. Cor: 7: 1 – 12:

 

”Now for the matters you wrote about. It is good for a man not to marry, but since there is so much immorality, each man should have his own wife, and each woman her own husband”.

 

I say no more on these for now.

 

1.03   “Divorce” simply put is the legal ending of a marriage. Divorce is the final termination of a marriage, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between two persons(c). A marriage must have legally been in existence before a divorce and consequential issues can arise. Such consequential issues include maintenance, maintenance pending suit, lump sum settlement, settlement of property, division of assets and custody of children. I shall elaborate on these issues.

 

1.04   “Succession” refers to the body of law concerning the distribution of a person’s property after his death. It is invariably woven with the concept of “inheritance” which in simple parlance is the fact of receiving something when somebody dies.

Succession being embedded in inheritance, issues such as primogeniture, where property devolves on the eldest child, ultigeniture, where it devolves on the youngest child, paritable inheritance where every child inherits equally, patrilineal succession where only male children inherit property, matrilineal succession where only female children inherit, come into focus. There would be more on these.

 

1.05   Legal aspects of marriage, divorce and succession can only be highlighted within the confines of our Laws. “Law” in a short point definition, is a whole system of rules that a given set of people bind themselves with and are bound to obey.  Laws come in various forms, it could be the Constitution of the Federal Republic of Nigeria, Laws enacted by the Federal Legislature, Laws enacted by the State Legislatures, Bye-Laws enacted by Local Governments, Customary Laws, Islamic Law, Constitutions of the Church of Nigeria (Anglican Communion), and those of its constituent dioceses, Case Law as decided by Judges over the years, English Statutes applicable in Nigeria and indeed any rules and obligations thrust on the people by bodies with statutory or contractual backing.  I shall therefore discuss our Marriage, Divorce and Succession Laws, within the context of these “Laws”.

 

(c)        Wikipedia – the free encyclopedia

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II

 

MARRIAGE LAWS

STATUTORY/CHURCH MARRIAGE

 

2.01   Basically there are three different types of marriage that a man and a woman can contract in Nigeria.  They are:

 

(a)      Statutory/Church Marriage

(b)     Customary Marriage

(c)      Islamic Marriage

 

I shall first of all deal with the Statutory Marriage.

 

2.02   The Marriage Act, which is a federal legislation makes provisions for the celebration of marriages in Nigeria.  It is clear that the Act is designed only for the celebration of marriage between a man and a woman, and the marriage has to be a monogamous one. A monogamous marriage has been defined in the Interpretation Act(1) as:

 

“a marriage which is recognized 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”.

 

2.02   Marriage under the Marriage Act may be celebrated in any licensed place of worship by any recognized Minister of the Church, according to the rites or usages of marriage observed in such Church.  However, before the Minister celebrates the marriage, the couple shall have delivered to him the certificate of the Registrar of Marriages or the Registrar’s license authorizing such marriage.  Alternatively, the couple may decide not to celebrate their marriage in Church, and contract same before a duly licenced Registrar appointed pursuant to the provisions of the Marriage Act. Noteworthy is the form to be observed by the Registrar whilst performing the ceremony of marriage(2).  I reproduce it:

 

“The Registrar after production to him of the certificate or license shall either directly or through an interpreter address the parties thus”.

 

“Do I understand that you A.B. and you, C.D, come here for the purpose of becoming man and wife?”

 

If the parties answer in the affirmative, he shall proceed thus:

 

 

 


1.         S. 18, Interpretation Act, Laws of the Federation of Nigeria

2.         S. 27 Marriage Act

 

 

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“Know ye that, by the public taking of each other as man and wife in my presence and in the presence of the persons now here, and by the subsequent attestation thereof by signing your names to that effect, you become legally married to each other, although no other rite of a civil or religious nature shall take place, and that this marriage cannot be dissolved during your lifetime, except by a valid judgment of divorce, and if either of you before the death of the other shall contract another marriage while this remains undissolved you will be thereby guilty of bigamy and liable to punishment for that offence”.

 

2.04   The Constitution of the Diocesan Synod of the Diocese of Lagos West (Anglican Communion) which binds those of us who are members of the Anglican Church in the Diocese of Lagos West is also emphatic on this point.  It provides as follows(3):

 

“The Church believes that marriage, by divine institution is a life, long and exclusive union and partnership between one man and one woman.  Its laws and regulations are based on this belief”.

 

Indeed the Church rites at marriage ceremonies state as much.  It is a union that ensures till “death do us part”.

 

2.05   If therefore a woman whilst still in a marriage contracted under statute, contracts another marriage, statutory, or otherwise, she has committed the offence of bigamy. The same applies to a man who whilst still married under the Act, proceeds to take more wives under Customary or Islamic Law.  The Criminal Code Act(4) reads as follows:-

 

“Any person, who having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for seven years. This section of this Code does not extend to any person whose marriage with such husband or wife has been dissolved or declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time”.

 

2.06   The issue of the celebration of marriage in Church is also as important as the capacity of individuals to marry. The Marriage Act insists that a Minister shall not celebrate any marriage if he knows of any just impediment to such marriage, nor until the parties deliver to him the Registrar’s certificate or the licence issued by the Registrar(5). It is a matter of great concern that a number of Churches insist

 

 


3.         Sec. 1, Chapter XXI Constitution of Diocesan Synod of Diocese of Lagos West

4.         S. 270 of the Criminal Code Act

See also The Queen V. Princewill 1963 NWLR 54 where the accused was sentenced to one month imprisonment for the offence of bigamy

5.         S. 22 of the Marriage Act

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on their members getting married in their Churches according to their rites, without due regard to the provisions of the Law. There is certainly no objection to a Church marriage, however before such marriage is solemnized the parties thereto must produce either a Registrar’s Certificate or Licence from the Registrar.  If this is not done, the Minister of Religion is obliged by law not to solemnize the marriage. Indeed in certain circumstances a marriage solemnized in Church without the licence of the Registrar of marriage shall be null and void(6).  The relevant Law reads:-

 

“A marriage shall be null and void if both parties knowingly and willfully acquiesce in its celebration –

 

(a)      in any place other than the office of a Registrar of marriage or a licencesed place of worship (except where authorized by the licence issued under Section 13 of this Act) or

 

(b)     under a false name or names or

 

(c)      without a Registrar’s certificate or notice or licence issued under Section 13 of this Act duly issued or

 

(d)     by a person not being a recognized Minister of some denomination or body or a Registrar of marriage”.

 

2.07   There have been a number of contested cases in Nigerian Courts as to whether marriages contracted in Church without a Registrar’s licence are null and void.  In Obiekwe V. Obiekwe(7), a marriage solemnized in the Holy Ghost Roman Catholic Church Enugu was not declared null and void because the Court found that the couple did not knowingly and willfully acquiesce in the marriage without the requisite licence.  However, the Judge in the course of the judgment made the following remarks(8):

 

“A good deal has been said about “Church marriage” or marriage under Roman Catholic Church Law”.  So far as the law of Nigeria is concerned, there is only one form to monogamous marriage, and that is marriage under the Ordinance.  Legally a marriage in a Church (of any denomination) is either a marriage under the Ordinance or it is nothing”

 

 

The Court also had a word for the Priest who conducted this marriage. He said:

 

 

 


6.         S. 33(2) of the Marriage Act

7.         1963 ENLR 196. See also A/70/61 – Akiwudike V. Akiwudike

8.         Page 199 of 1963 ENLR 196

 

 

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“The fault is entirely that of the officiating Priest who on his own admission made no attempt whatever to explain to the parties this legal position, or even ask them whether they wanted to be married under the Ordinance or not. His attitude seems to be that he knows very little about the marriage ordinance and is not interested! As the law of Nigeria confers upon Priests and Ministers of religion the right to officiate at marriages recognized by the State, it is their duty to make themselves familiar with the Ordinance and to sees that people who come to them to be married understand their legal position”.

 

I am sure that a number of us here present are in potentially null and void marriages.  Others intending to marry should therefore take heed.

 

2.08   Some religious denominations perform what we call “Church blessing of marriage”. These Churches insist that if their members marry under customary law or under the Statute by appearing before the Registrar of marriages, the marriage would only be recognized by the Church either by another Church marriage or Church blessing of the marriage.  Church blessing of marriage does not constitute a marriage under Nigerian Law, nor does it add anything to an existing recognized marriage. In a decided case(9), where a Priest blessed a customary law marriage, he issued a certificate to the parties in respect of the ceremony. It was later contended that there was a valid marriage under the Marriage Act. The Court held that the ceremony was merely the blessing of a customary law marriage, and therefore did not constitute a marriage under Statute.

 

2.09   In another celebrated case, Anyaegbunam V. Anyaegbunam(10), the Supreme Court declared where there is a dispute as to whether a Church service is a service of marriage or a Church blessing of a marriage, the “Certificate of Marriage” issued by the Church would not be evidence of marriage unless it can be shown that the required licence of the Registrar of Marriages was produced and the certificate was in the form prescribed by the Marriage Act.  In this case, the Court ruled in favour of the husband that the Church ceremony was a mere blessing of marriage, and not a marriage under the statute.

 

2.10   Now, the Law makes provision for void marriages and prohibited degrees of consanguity (relationship by birth in the same family).  The Matrimonial Causes Act(11), makes the following provisions:

 

“(i)     Subject to the provisions of this Section, a marriage that takes place after the commencement of this Act is void in any of the following cases but not otherwise, that is to say, where:-

 

 

 


9.         Martins V. Adenugba 1946 48 NLR 63. See also Akparanta V. Akparanta 1972 2 ECSLR 779, 783

10.        1963 ANLR 320

11.        S. 3, Matrimonial Causes Act

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(a)      either of the parties is, at the time of the marriage, lawfully married to some other person;

 

(b)     the parties are within the prohibited degrees of consanguity or, subject to Section 4 of this Act, of affinity;

 

(c)      the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriage;

 

(d)     the consent of either of the parties is not a real consent because – 

 

(i)       it was obtained by duress or fraud, or

(ii)      that party is mistaken as to identity of the other party, or as to the nature of the ceremony performed;

(iii)      that the party is mentally incapable of understanding the nature of the marriage contract;

 

(e)      either of the parties is not of marriageable age”.

 

2.11     By this Law, a woman is prohibited from marrying a man who is or has been her:- 

 

(a) Ancestor (b) Descendant, (c) Brother, (d) Father’s brother, (e) Mother’s brother, (f) Brother’s son, (g) Sister’s son, (h) Husband’s father, (i) Husband’s grandfather, (j) Husband’s son, (k) Husband’s father son, (l) Mother’s husband, (m) Grandmother’s husband, (n) Daughter’s husband, (o) Son’s daughter’s husband, (p) Daughter’s, daughter’s husband.  It is immaterial if the relationship is of full or half blood. The Constitution of the Diocesan Synod of the Diocese of Lagos West has similar provision(12) and extends grounds for nullity of marriage solemnized in Church to include impotence or sexual perversion and bigamy.

 

2.12   The Marriage Act does not state what marriageable age is and this is a fundamental omission in the Law. However the Child’s Rights Act passed into Law in 2003 specifically prohibits the marriage of a person under 18 years, whether male or female(13). The relevant provision reads as follows:-

 

“No person under the age of 18 years is capable of contracting a valid marriage, and accordingly, a marriage so contracted is null and void and of no effect whatsoever”.

 

Furthermore bethrothal of a person under 18 years is completely forbidden. No parent, guardian or any person shall bethroth a person under 18 years to any other person. Such betrothal if it ever happens is null and void.

 


12.        S. 6 Chapter XXII of the Constitution of the Diocesan Synod of Diocese of Lagos West

13.        S. 21 Child’s Rights Act 2003

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          There are criminal sanctions against those who infract the provisions of the law as regards marriage to a child and betrothal(15). The relevant provision of the Law reads as follows:-

 

                   “A person-

                   (a)      who marries a child;

                   (b)     to whom a child is betrothed;

                   (c)      who promotes the marriage of a child or;

                   (d)     who betroths a child;

 

          commits an offence and is liable on conviction to a fine of N500,000, or imprisonment for a term of five years or to both such fine and imprisonment. A child under the Child’s Rights Act is defined as a person under the age of Eighteen. Almost all the Southern States and about ten of the Northern States have adopted and passed into State Law, the provisions of the Child Right’s Act.

 

2.13   The Marriage Act also prescribes punishment for the infraction of other provisions of the Act.  For instance, whoever being unmarried, goes through the ceremony of marriage under the Act with a person who he or she knows to be married to another person, shall be liable to imprisonment for five years(16). If an unmarried woman contracts a marriage under the Act with a man she knows is married to some other woman under statutory or customary law, an offence is committed. 

 

The situation would of course be different if the unmarried woman contracts the marriage under customary law which is not a monogamous form of marriage. If any one makes a false declaration on any form she fills pre-marriage, an offence is committed and she is liable to imprisonment for upwards of five years(17). If any one personates any other person in marriage or marries under a false name or description with intent to deceive the other party to the marriage such a person, shall be liable to imprisonment(18). Again whoever goes through a ceremony of marriage or any ceremony which he or she represents to be a ceremony of marriage knowing that the marriage is void on any ground and that the other person believes it to be valid, shall be liable to imprisonment for five years(19).  A typical example is where a man or woman contracts a monogamous marriage abroad, leaves the other spouse abroad, and marries someone else in Nigeria under the Act.  If this happens an offence has been committed.

 

2.14   Furthermore, whoever contracts a marriage under the provisions of the Marriage Act, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years(20).  Likewise if a person contracted a marriage under the Act and during the continuance of that marriage, contracts another marriage with someone else under customary law, an offence punishable with imprisonment for five years has been committed(21).

 

 

 


14.           S. 22 Child’s Rights Act 2003

15.           S. 23 Child’s Right Act 2003

16.           S. 39 of the Marriage Act

17.           S. 40 of the Marriage Act

18.           S. 44 of the Marriage Act

19.           S. 45 of the Marriage Act

20.           S. 46 of the Marriage Act

21.           S. 47 of the Marriage Act

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2.15   As earlier stated, the Constitution of the Diocese of Lagos West makes provisions relating to marriage and these provisions bind Anglicans within the Diocese. I shall highlight a few of these provisions. Solemnization of holy matrimony by the rites of our Church is reserved for those who are baptized. If the marriage is to be between a baptized person and an unbaptized person, special dispensation of the Bishop is required(22). Any member of the Anglican Church whose marriage has been annulled or dissolved by a Civil Court of competent jurisdiction and who desires to contract another marriage with one whose previous marriage has been annulled or dissolved by a Civil Court of competent jurisdiction, shall if he/she desires to have such a union solemnized by the Rules of our Church during the lifetime of a former partner apply to the Bishop for permission(23). If permission is denied, such solemnization cannot hold. This provision seems to be in consonance with S.107 of the Matrimonial Causes Act which reads as follows:

 

“A Minister of religion shall not be bound to solemnize the marriage of a person whose former marriage has been dissolved, whether in Nigeria or elsewhere, otherwise than by death”.

 

2.16   The Diocesan Constitution also provides that where two persons living together as man and wife under native customary law and without other partners are admitted to holy baptism, their marriage is raised to the status of Christian marriage. The Church formally recognizes this fact and bestows on it a form of blessing(24). Unless under exceptional circumstances and with the direct permission of the Bishop given in writing, no man living as a polygamist shall be admitted to holy baptism.  A baptized person who becomes a polygamist shall not be admitted to confirmation or holy communion(25).

 

2.17   The wives of a polygamist may subject to the provisions of Section 5(5) of Chapter 22 of the Constitution of the Diocese, be admitted to holy baptism and shall not be precluded from confirmation and holy communion solely on account of their marital circumstances(26). This provision seems to apply to women who seek baptism after getting married to a polygamist. However, a baptized member of the Anglican Church who marries a polygamist shall not be eligible for confirmation, whilst a communicant member who marries a polygamist shall be suspended from Holy Communion as long as the union exists, unless under exceptional circumstances, where the permission of the Bishop in writing shall have first been obtained for confirmation or restoration to Holy Communion as the case may be(27). There are some other provisions in Diocesan Constitution dealing with the admission of persons to Holy Communion, which time would not allow me to elaborate on. However, it needs to be stressed that generally admission to Holy Communion by persons in otherwise impaired marital settings is contingent on the couple agreeing to lead a monogamous marital life, and adhering to the tenets of the Church as regards marriage.

 

 


22.        S. 2(i) Chapter XXII, Constitution of Diocese of Lagos West

23.        S. 4 Chapters XXII, Constitution of Diocese of Lagos West

24.        S.3(2) Chapter XXII Constitution of Diocese of Lagos West

25.        S.3(4)(1) Chapter XXII Constitution of Diocese of Lagos West

26.        S.3(4)(2) Chapter XXII Constitution of Diocese of Lagos West

27.        Sec. 5(5) of Chapter XXII, Constitution of Diocese of Lagos West

 

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III

 

MARRIAGE UNDER CUSTOMARY LAW

 

3.01   Nigeria being a multi tribal society, the customs of its people are as varied as the number of ethnic societies.  In other words, there is no single customary law for Nigerians. The various ethnic communities have their different customs as they relate to marriage.  I shall only explore this topic in a generalized form alluding to the accepted customs within a few communities especially as recognized by the Courts of the land.

 

3.02   Marriage under Customary Law is largely polygamous.  A polygamous marriage is the union for life of one man with several wives. There is no limit to the number of wives a man can marry under customary law. Attempts have been made on the past to claim that polyandry (where a woman is entitled to marry two or more husbands at the same time) is part of Tiv custom.  In a decided case(28), the woman married Mr. A under native law and custom and had four children for him. She left Mr. A and took the four children with her and set up home with Mr. B.  She claimed that she was married to both men and that Tiv custom allowed it.  The Upper Area Court of Northern Region agreed that the woman was “a common wife” to both men, and gave the eldest and youngest children to Mr. B, and gave the two other children to Mr. A.  The High Court on appeal overturned the judgment and held that the Tiv custom that allowed polyandry was not proved. In reality, marriage under customary law is essentially polygamous.  However, it is to be observed that most couples initially get married under customary law and the couples thereafter marry under the Act.  This is quite valid provided the marriage is between the same persons.  The legal implication of the marriage is that it would then be a monogamous marriage. When a man is married under the Marriage Act marries another woman under Customary Law, whilst the first marriage subsists the second marriage is void(29).  Where a man is married under customary law with one woman subsequently married another woman under the Marriage Act the second marriage is void(30).

 

3.03   Generally the following are pre-requisites for a valid customary marriage:

 

(a)              Betrothal

(b)              Capacity of the parties

(c)               Consent of parties as well as consent of parents/family

(d)              Marriage consideration/dowry

(e)              Solemnization of the marriage

(f)                Consummation of the marriage

 

 


28.        Kpelanya V. Tsoka 1971 NMLR 86

29.        Towoeni V. Towoeni 2002 F.W.L.R. (Pt. 122) 170

                        Awobodu V. Awobodu 1979 2 LRN 339

30.        S. 47 of Marriage Act

 

 

 

 

 

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3.04   Betrothal is simply an agreement to marry. The two parties agree to marry and their parents or families take over. They make discreet investigation of each others families with a view to deciding if their children should marry into the other family. This processes is carried out by intermediaries and if positive both parties gear up for further ceremonies. Since betrothal is just a mere promise to marry, a breach of the promise to marry is not actionable under customary law(31). However, under the Child’s Rights Act nobody under the age of 18 can be betrothed to another.

 

3.05   Capacity of parties in this context relates in the main to the age of the couple.  There is no doubt that before the year 2003, there was no law against child marriage, most of which occur in the Northern part of the Country. Since the passing of the Child’s Rights Act(32), no marriage of persons below the age of eighteen is allowed under Nigerian Law.

 

3.06   The intending couple have to give their consent to a customary marriage. The Supreme Court in the case of Osamwonyi V. Osamwonyi(33) held that under Bini Native Law and Customs, the consent of the parties was necessary for a valid marriage under customary law.  Furthermore, under the Criminal Code Act(34), it is an offence punishable with seven years imprisonment for any person who with the intent to marry a female person of any age or to cause her to be married by any other person takes her away or detains her against her will. Furthermore, parental consent is necessary before a valid customary marriage can take place.  In Okpanum V. Okpanum(35), the High Court of East Central State of Nigeria held that in order to constitute a valid customary marriage, there must be parental consent and mutual agreement between the parties.

 

3.07   Marriage consideration otherwise called dowry, bride price or even purchase price in some communities is again one of the essential requirements of a valid customary marriage. By whatever name called, the bride price includes any gift or payment in the form of money, natural produce or any kind of property given by an intending husband and his family to the parents or guardian of a female person or account of the marriage. Payment of bride price is an important element in customary law marriage.  In Edet V. Essien(36). The wife of Mr. A who had got married to him under native law and custom left him to live with Mr. B.  The wife had two children for Mr. B from this illicit union. Mr. A consequently claimed that in accordance with customary law the two children belonged to him.  The Court held that it was contrary to natural justice, equity and good conscience to allow Mr. A to claim the children of Mr. B just because Mr. A had been deprived of his wife and without a refund of the bride price he paid on her.

 

 

 


31.        Ayegba V. Ajunwa – Suit No. MD/350/77 of 1/2/80, High Court Markurdi (Unreported)

32.        S. 21 Child’s Rights Act 2003

33.        1973 NMLR 26

34.        S. 361 of Criminal Code Act

35.        1972 2 ECSLR 561

36.        1932 11 NLR 47

 

 

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3.08   Solemnization is an essential ingredient of a valid customary law marriage. It generally involves breaking kola, pouring libation, sharing drinks and other activities. The bride is invariably handed over to the bridegroom and his family.  In another decided case Omoga V. Badejo(37), the Court held that there must be a formal handing over of the bride to the groom in the presence of the two families and witnesses and the acceptance and taking away of the bride to her husband’s house for marriage under Yoruba Native Law and Custom, to be valid.  This notwithstanding, until bride price or dowry is refunded a customary marriage remains intact even if the woman has left the matrimonial home to live with another man(38).

 

3.09   Consummation of the marriage under Native Law and Custom is essential.  Consummation simply means having sex, with a view to making a marriage complete. In traditional societies, the very night of the marriage is eagerly awaited by the groom’s family as he is expected to announce his exploits to his family and state if his wife was found intact or not.

 

IV

 

MARRIAGE UNDER ISLAMIC LAW

 

4.01   Islamic Law marriage possesses most of the features of Customary Law marriage, but nonetheless, I shall briefly highlight a number of issues in respect of this type of marriage which is most prevalent in the northern part of the Country. Islamic marriage like customary marriage is a polygamous one with the man taking up to four wives if he desires.

 

4.02   An Islamic Law marriage to be valid, must have the following pre-requisites:

 

(a)              Consent of the parties

(b)              Parental consent

(c)               Payment of the Saduquat (Sadaki) – dower

(d)              Solemnization

 

4.03   There must be freely given consent to the marriage by the parties. However, under the Maliki School of Islamic Law, a father has the right to conclude a marriage on behalf of his infant sons and virgin girls.  The ceremony is called the Ijbar.

 

4.04   Parental consent is also necessary for a valid Islamic marriage.

 

4.05   Saduquat (Sadaki) or dower is the bride price received by the parents of the bride to be. It is the entitlement of the woman and not that of her parents, though it is paid through the parents.

 

 

 


37.        1985 NCNLR 1075

38.        Eze V. Omeka 1977 1 ANSLR 136

 

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4.06   The marriage needs to be solemnized by a Mallam in the presence of at least two upright Moslem witnesses.

 

4.07   All the other incidents pertaining to a customary law marriage by and large also ensure for Islamic law marriage.

 

V

 

MISCELLANEOUS MATTERS IN RESPECT

OF MARRIAGE LAWS

 

5.01   A Customary Law which obliges a woman to marry one of the relations of her deceased husband would not be regarded by the Courts as unfair and inequitable.  See In the Estate of Agboriya(39).

 

5.02   A rule of customary law that an adulterous wife becomes the wife of the adulterer would not be judicially enforced by the Courts – Chanwere V. Aihenu(40).

 

5.03   Custom whereby a husband is entitled to the children of his wife fathered by another man until bride price is refunded is repugnant to natural justice, equity and good conscience – Edet V. Essien(41).

 

5.04   Woman to woman marriage under any guise would not be sanctioned by the Courts. In Meribe V. Egwu(42) Mrs. A was barren and she married Miss. B for her husband Mr. A, as a wife for the sole purpose of bearing children which Mrs. A claims are her own.  The Supreme Court in that case said as follows:-

 

“In every system of jurisprudence known to us, one of the essential requirements of a valid marriage is that it must be a union of a man and woman thereby creating the status of husband and wife. Indeed, the law governing any decent society should abhor and express its indignation of a woman to woman marriage, and where there is proof that a custom permits such an association, the custom must be regarded as repugnant by virtue of the proviso 14(3) of the Evidence Act and ought not to be upheld by the Court”.

 

5.05   The Criminal Code Act protects the wife of a Christian marriage only from the repercussion of the offence of conspiracy with the husband alone(43). This provision does not ensure for the benefit of a wife of a polygamous marriage.  There is a similar protection from liability of a husband and wife of a Christian

 

 


39.        1949 19 NLR 38 at 39

40.        1935 12 NLR 4 at 5

41.        1932 11 NLR 47 at 48

42.        1976 ANLR 216 at 222

43.        S. 34 of the Criminal Code Act

 

14

          marriage for offences committed by either of them with respect to the other property(44). Likewise no husband or wife of a monogamous and Mohamedan marriage shall be compelled to disclose any communication made to him or her during the marriage by any person to whom he or she is married expect in respect of very grievous offence(45).

 

5.06   For those young men and women who promise to marry their fiance (e) under the Act and break such promise, the guilty part can be sued in the Civil Court for damages for breach of promise of marriage. To succeed in a claim for damages, it has to be proved that the promise was a marriage under the Act by someone who is single, and that that person has failed or refused to honour his or her obligation. In Margaret Uso V. George Iketubosin (1957) WRNLR 187, in awarding £600 as damages, the Court held as follows:-

 

“The Plaintiff is now over thirty, while she is still personable, her attractions are waning. She was tied to this man during the years when the prospects of marriage were greatest. It may well be that as a result of his conduct she will remain unmarried”.

 

          Our youth should take heed.

 

5.07   There are quite a number of other laws relating to marriage which affect both men and women, but on account of time, I would not be able to discuss them in this paper, suffice to say that the aforementioned discourse raises the main issues relevant to all of us in so far as Laws relating to marriage are concerned.

 

VI

 

DIVORCE LAWS

 

6.01   As stated earlier on in this paper there are three types of marriage – Statutory/Church marriage, Customary marriage and Islamic marriage. We shall concentrate on dissolution of marriage as provided for in the Matrimonial Causes Act, Laws of Nigeria enacted in 1970.

 

6.02   Whilst it is the expectation of all parties that marriage should not be rushed into, at the same time it is the expectation of society that parties should not rush out of marriage at the slightest discovery of discomfort or incompatibility. It is for this reason that as a general rule, divorce proceedings cannot be instituted within two years of the solemnization of a marriage. There are exceptions however where the divorce proceedings are based on facts of wilful and persistent refusal to

 

 

 


44.        S. 36 of Criminal Code Act

45.        S. 161 and 163 of Evidence Act

 

15

          consummate the marriage, adultery, commission of rape, sodomy or bestiality. Quite apart from these exceptions, leave of Court could be obtained to institute proceedings within two years of marriage where it is shown that to refuse the leave would expose exceptional hardship on the Applicant or that the case is one involving exceptional depravity on the part of the other party to the marriage(46). Under this exceptional hardship rules are cases such as when the husband committed adultery with the wife’s cousin and infected her with venereal disease(47).

 

6.03   There is only one ground for dissolution of marriage under our Law.  A petition for a decree of dissolution of the marriage may be presented to the Court by either party to the marriage upon the ground that the marriage has broken down irretrievably(48).

 

6.04   The Court hearing a petition for a decree of dissolution of marriage shall hold the marriage to have broken down irretrievably if, but only if, the Petitioner satisfied the Court of one or more of the following facts(49).

 

(a)      That the Respondent has willfully and persistently refused to consummate the marriage. There must be evidence that the Respondent, despite repeated direct and/or indirect requests by the Petitioner for sexual intercourse, refuses (not neglects) to oblige the Petitioner. The fact that a husband habitually uses contraceptives in spite of his wife’s protests does not constitutes a willful refusal to consummate(50). It has been held that a marriage is consummated where the parties have full intercourse even though the husband is sterile.

 

(b)     That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.

It is not enough to show that the Respondent has committed adultery. It has to be shown also that, the Petitioner finds it intolerable to live with the Respondent. Adultery is the voluntary intercourse between a spouse and a third party of the opposite sex during the subsistence of the marriage.

 

The rape of a spouse by a third party or insanity of a spouse can hardly qualify as adultery. It may well be difficult to prove adultery where there is no child between the guilty spouse and the third party. However the circumstances of every case are taken into consideration in deciding whether adultery was committed or not. Breaking into a room where the wife is found half clad sitting on a bed and the third party’s shirt was not properly tucked into his trousers points to the commission of adultery(51). As regards intolerability, the test is subjective and the Court would take into account the feelings of the Petitioner.

 

 


46.           S.30 (1) & (2) of Matrimonies Causes Act

47.           Akere v. Akere 1962 WNLR 323

48.           S. 15(1) Matrimonial Cause Act

49.           S. 15 (2) of the Matrimonial Causes Act

50.           White v white 1948 Probate 330

51.           Adeyemi v. Adeyemi 969 2 ANLR 181

16

In cases of adultery, the person with whom the Respondent has committed adultery must be joined in the action, and in deserving cases, damages may be awarded against him or her for adultery(52).

 

6.05   That since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. The Petitioner must establish, that the Respondent has behaved in a particular way and on the basis of the proved facts, the Petitioner cannot reasonably be expected to live with the Respondent. What constitutes “behavior” which is detestable would depend on the facts of each case. However by way of illustration instances of rape, sodomy, bestiality, habitual drunkenness or intoxication, misuse of drugs, frequent convictions, habitually leaving spouse without support, attempted murder, assaults, insanity, humiliating treatment, nagging, use of juju are either singly or jointly capable of amounting to unreasonable behavior.

 

In Johnson V. Johnson(53), unreasonable refusal of sexual intercourse, nagging habitual intemperate consumption of alcohol and inordinate sexual indulgences of the Respondent with all sorts of women particularly housemaids were held to be weighty and unreasonable acts to expect the Petitioner to put up with.

 

6.06   That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately proceeding the presentation of the petition. Desertion is the separation of one spouse from the other with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse. The four elements stated in the definition above have to be proved before dissolution of marriage on this ground can be decreed - separation of parties, with intention of bringing co-habitation to an end, without reasonable cause and without consent of the other spouse.

 

6.07   That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceeding the presentation of the Petition for divorce and the Respondent does not object to a decree being granted. Mere physical separation is not enough to constitute “living apart”. There is a mental dimension to the issue as it must be proved that there is a clear intention on the part of one or both of the spouses not to return to the other. The period must be an unbroken two years. Furthermore there must be positive evidence that the other spouse does not object to a decree of divorce being granted.

 

6.08   That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceeding the presentation of the Petition. Here, there is no requirement that the other spouse should not object to the Petition being granted. This provision is a “no fault” provision which allow a painless

 

 


52.        S.31 of Matrimonial Causes Act

53.        1972 11 CCCHCJ 94

 

 

17

dissolution of marriage where parties have for over a three year continuous period, gone their separate ways. No further evidence as to cruelty, adultery etc is needed once it is conclusively shown the parties have lived apart for the required period.

 

6.09   That the other party to the marriage has, for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under the Matrimonial Causes Act. This provision relates to a defiance of an earlier court order, mandating the Respondent to resume co-habitation. If there is a continuous dissilience of the order, a ground for dissolution of the marriage exists upon the presentation of a Petition.

 

6.10   That the other party to the marriage has been absent from the Petitioner for such time and in such circumstance as to provide reasonable grounds for presuming that he or she is dead. There is further provision in the Law that proofs that for a period of seven years immediately preceding the date of the Petition, the other party was continually absent from the Petitioner, and the Petitioner has no reason to believe that the other party was alive at anytime during the said period is enough to ground a divorce(54).

 

6.11   Part IV of the Matrimonial Cause Act provides for the making of orders for maintenance, custody and settlements in favour of a husband, wife, children or adopted children of a marriage. In respect of maintenance, the Matrimonial Causes Act(55) makes provision for the maintenance of a spouse or children of the marriage. The Court in making such orders would take into consideration the means, earning capacity, conduct of the parties to the marriage and all other relevant circumstances. It is to be noted that the power of the Court to compel maintenance of a child is generally limited to a child under twenty-one years old. The main area of contention as regards maintenance is the basis for the calculation of the amount due. Up till 1971, it would seem that the old rule that a wife should be granted so much maintenance as would bring her income up to one third of the husband held sway(56). However S.70 of the Matrimonial Cause Act does not lay down any such criterion. In point of fact the position in England has moved generally to a starting point of 50% of the assets of the family going to the other spouse as maintenance and settlement of assets. It would therefore seem that as at now, in most cases the women, are worse off in Nigeria when the issue of maintenance is being considered. There is also provision in the Law(57) for maintenance pending determination of proceedings for divorce.

 

6.12   The Matrimonial Causes Act also makes provision for the custody, guardianship, welfare, advancement or education of children of a marriage(58). In deciding on these issues, the Court shall have regard to the interest of children as the paramount consideration. These interests must of necessity relate to the physical, mental and moral welfare of the children. The wishes of a child, education and religious considerations, conduct of the parents, age and sex of the children, adequacy of arrangement for the child, the wishes of the natural parents,

 


54.        S. 16.(2) Matrimonial Causes Act.

55.        S. 70 (1) Matrimonial Causes Act

56.        Negbenebor v. Negbenegbor 1971 1 ANLR 210

57.        S. 70 (2) Matrimonial Causes Act

58.        S. 71 (1) Matrimonial Causes Act

18

medical and psychological factors, nationality of  the mother, need to put brothers and sisters together, and equality of parents, are all factors to be considered in custody matter.

 

6.13   The Court is also invested with the power to settle property on parties to a marriage(59). The Court settling such property would consider what is just and equitable in the circumstance of each case. The property to be settled may be owned by one or both spouses.

 

6.14   There is also provision in the Law for lump sum payment(60) where a spouse has sufficient capital resource available for lump sum payment, an order may be made such that the spouse would be awarded capital which may be invested to provide income in the future.

 

VII

 

DIVORCE UNDER CUSTOMARY LAW

 

7.01   A customary law marriage may be dissolved either by non judicial divorce or by the order of an appropriate Customary Court. In non judicial divorce, the parties may be mutual agreement or by unilateral action of a spouse end the marriage. In such a cause, the bride price is returned.

 

7.02   In the case of judicial dissolution of marriage, the various customary and certain Magistrate’s Court have jurisdiction to dissolve customary marriage. Technically there are no grounds for divorce under customary law, because divorce may be effected by the mutual consent of the spouses. However there are a number of reasons which are generally regarded a providing sufficient moral cause for dissolving marriage. Adultery (particularly by a wife), loose character, impotence of the husband, sterility of the wife, laziness, ill-treatment and cruelty, leprosy and other harmful disease affecting procreation, witchcraft, addiction to crime and desertion are some of these reasons.

 

The relevant court takes all the circumstances into consideration before dissolving the marriage(61). In most cases there is an order to refund the bride price. In cases where the husband is guilty of willful refusal to maintain his wife, or physical ill-treatment, bride price may not be refunded.

 

VIII

 

DIVORCE UNDER ISLAMIC LAW

 

8.       The Maliki School of Islamic Law in Northern Nigeria is about the easily accessible school of thought in this regard:-               

 

 


59.        S.72 (1) of the Matrimonial Causes Act

60.        S. 73 (1) of the Matrimonial Causes Act

61.        Family Law in Nigeria by Nwogugu, Page 216-219

 

 

19

“Under the Maliki School of Islamic Law in Northern Nigeria, a discontented married woman may obtain her release from the marriage by means of khul. The khul is a dissolution of marriage obtained by the wife with the consent of the husband in return for the payment of compensation to him. The compensation represents the dower, and sometimes other payments which the husband made in respect of the marriage. While primarily the wife pays the compensation, it may be paid by her parents or guardian. Maliki law, on the other hand, allows a court to order a husband to accept khul against his wish where two arbitrators appointed by the court have found that reconciliation is impossible. Another non-judicial mode of dissolution of marriage by one party under Maliki Islamic law in Northern Nigeria is by talaq. The talaq is a means of divorce which is open only to the husband at his discretion. When the talaq is pronounced only once or twice, it may bring the marriage decisively to an end except during the idda period. In the case of the third pronouncement of the talaq, or if the triple form is used in the first instance, the marriage is finally and immediately dissolved unless it can be shown that it was uttered in the heat of anger without any intention to end the marriage(62)”.

 

IX

 

SUCCESSION LAWS

TESTATE SUCCESSION

 

9.01   As earlier on stated, there are three types of marriage in Nigeria against which background the succession laws will be discussed.  Statutory marriage admits one man, one wife.  Customary marriage permits limitless number of wives, whilst Islamic Muslim law marriage allows up to four wives. Before discussing these various types of succession, I wish to draw attention to Clause 5, Chapter (xxii) of the Constitution of the Diocesan Synod of Diocese of Lagos West. It reads:-

 

“ The inclusion of the English Law of Inheritance shall not of necessity be required as a condition of the soleminization of a  marriage; Nevertheless it is the duty of the husband to ensure that at his death, adequate provision is made for his widow and children from his estate”.

 

 

9.02   When a person dies leaving behind property by whatever name described, he or she either dies testate in that he or she made a Will by which he or she disposes of his or her property or he or she dies intestate in that he or she made no Will or the Will he or she made is invalid for any reason recognized by the law.  In either case there are detailed laws that govern the administration and distribution

 


 62.      Family Law in Nigeria by Nwogugu, pages 215

20

of the property of the deceased.

 

9.03   Statutes in respect of Wills are not uniform throughout the country.  In Lagos, Oyo, Ogun, Osun, Ondo, Ekiti, Edo and Delta States, each of these States have their Wills Law which make provisions in respect of Wills. In most of the Northern and Eastern States there are no local legislations, in which case, the Wills Act 1837 and the Wills Amendment Act 1882 of England apply by virtue of their being statutes of general application in Nigeria(63). Just a few of these States have legislation basically along the lines of those applicable in the old Western Region.

 

9.04   The aforementioned laws apply to all persons who make Wills. The most important characteristic of a Will is that it is ambulatory in nature.  It has effect only when the Testator dies(64).  This is why the Testator may completely revoke or alter by addition or subtraction a Will made earlier.  Whilst it is correct to say that a Testator has complete freedom to give his property to whomever he desires, the various Wills Act put certain restrictions. For instance S. 1 of the Wills Law of Lagos State with similar provisions in the old Western Region reads as follows:-

 

          “It shall be lawful for every person to bequeath or dispose of by his Will executed in accordance with the provisions of this Law, all property to which he is entitled, either in law or in equity, or at the time of his death – Provided that the provision of this Law shall not apply to any property which the Testator had no power to dispose of by Will or otherwise under customary law to which he is subject”.

 

This provision debars a Testator from disposing by Will his share of unpartitioned family property which is subject to customary law(65).

 

9.05   Another restriction of the full testamentary power of a Testator is as found in Section 2 of the Wills Law of Lagos State. It is worth quoting:-

 

“Notwithstanding the provision of Section 1 of this Law where a person dies and is survived by any of the following persons –

 

          (a)      the wife or wives or husband of the deceased; and

 

(b)     a child or children of the deceased.

 

that person or those persons may apply to the Court for an order on the ground that the disposition of the deceased estate effected by his Will is not such to make reasonable financial provision for the Applicant.

 

“(2)    In this section “reasonable financial provision” in the case of an application made by virtue of Subsection (1)(a) of the Section by the husband or wife or wives of the deceased (except where the marriage with the deceased was subject of a decree of judicial separation in accordance with any customary law and at the date

 

 


63.        Thomas V. De Souza 1929 7 NLR 81

64.        Okesola V. Boyle 1988 2 NWLR (Pt. 539, 533)

65.        Idehen V. Idehen 1999 6 NWLR (Pt. 198) 382

            Ogunmefun V. Ogunmefun 1931 10 NLR 83

21

of the death the decree was in force and the separation was continuing, means such financial provision as it would be reasonable in all circumstances of the case for husband or wife or wives to receive, whether or not that provision is required for his or her maintenance.

 

 “(3)   An application under this section shall be exercisable only within a period of six months from the grant of the Probate”.

 

Whether this provision is really necessary is open to debate, suffice is it to say that I am not aware of any decided case on the interpretation this Section.

 

9.06   Except in case of Seamen, Mariners and Crew members of commercial airlines under the age of 18 years, no Will shall be valid if made by a person under the age of eighteen years. No Will shall be valid unless the following are satisfied(66).

 

 

(a)      It must be in writing;

 

(b)     It must have been signed by the Testator or by another person in his presence and by his direction;

 

(c)      The Testator’s signature must be made or acknowledged by him in the presence of at least two witnesses present at the same time.  In a decided case(67), the Testator had already signed the Will before witnesses were brought in and he acknowledged his signature in the presence of one witness. The Will was declared invalid. The witnesses must also sign the Will in the presence of each other and the Testator;

 

 

(d)     The Testator must have the mental capacity to comprehend his actions as at the time the Will was made;

 

(e)      There should not be evidence of undue influence on the Testator from any quarters.

 

 

9.07   There is no gainsaying the fact that Wills most especially in respect of vast estates invariably end up in Court for purposes of interpretation. In some cases, some of the spouses and/or children who the Will does not favour challenge the mental capacity of the Testator to make the will. In some cases, it is alleged that the Will was procured by duress, intimidation or undue influence, most times by a favourite wife or child of the Testator. Again in some cases, outright forgery of the signature of the Testator is alleged. In these cases, litigation drags on for years and personal animosity between family members, at times, children of the same father and mother become the order of the day. In order to avoid these types of situation, some property holders have in recent times made bold to divide their property to their beneficiaries in their life time. This at least ensures that all allegations of mental incapacity, forgery etc become irrelevant. Whosoever of the beneficiaries who is not satisfied with what is given to him can in the lifetime of the owner complain and take steps he deems necessary in the life time of the owner. This system of distribution may in the long run make more

 


66.        S.4 of Wills Act of Lagos State

67.        Apatira V. Akanke 1994 17 NLR 149

22

sense than a rancorous setting ending up in endless litigation years after the owner dies. Better still the Church is always available for bequests and gifts for the propagation of the Gospel; as against exhibition of bitter rivalry between siblings on property worked for and amassed by somebody else.

 

X

 

NON CUSTOMARY INTESTATE SUCCESSION

 

10.01 There are basically three systems of law governing intestate succession in Nigeria:-

 

          (a)      The Common Law,

          (b)     The Administration of Estate Law and,

          (c)      Customary Law which includes Islamic Law.

 

If a person contracts a Christian marriage outside Nigeria, the Common Law of England governs the distribution of his Estate. If he contracts a statutory marriage under the Marriage Act in Nigeria and he dies domiciled in Lagos and the States making up the old Western Region, the Administration of Estates Law applies. If he contracts a statutory marriage and dies domiciled in most of the former Northern and Eastern States, the Common Law governs the distribution of his Estates. If the intestate person was an indigenous Nigerian who did not contract a Christian or statutory marriage or even if he had no issue or spouse of that marriage survives him, his estate would be distributed in accordance with the relevant customary law. If the intestate was Muslim then Islamic Law would govern.

 

10.02 The above stated position of the law are general propositions and in peculiar cases, a combination of the applicable laws may be adopted.  The case Cole V. Cole(68) is the authority for the applicability of Common Law to Christian marriage contracted outside Nigeria.  The rationale for this is clearly stated in Coker V. Coker(69) in these words:- 

 

“It must be assumed that he had adopted Christianity which brought about not only an alternation in his relations with his family, but also with regard to his property; there is a change in his legal status and of the law regulating the disposal of his estate.  The intestate estate of a native who contracts a Christian or civil marriage is removed from the operation of native law and succession and brought under Common Law”.

 

10.03 The relevant English Laws that apply in this regard are the Statutes of Distribution 1670 and 1685 and the Intestate’s Estates Act of 1890. Under the provisions of these statutes if a man dies intestate leaving a widow and issues, his personal estate will be distributed as follows:

 

          (a)      One third to his wife.

 

 


68.        1898 1 NLR 15

69.        1943 17 NLR 55

23

(b)     The remaining two thirds being shared in equal portions amongst his children.

 

If the man dies without an issue, the widow is entitled to one half of his personal estate and the other half goes to the father of the deceased.  If there are issues and no widow, the personal property is divided equally between the children. If a woman dies intestate leaving no husband, but leaving issues, her estate goes to her children equally. Where the property concerned is real property, if the man dies leaving a wife, and both male and female children, the eldest male takes the land exclusively of all others. If there is only one male child even if he is the youngest, he takes exclusively. If there is no male child, the female children take equally. If a woman dies intestate leaving a husband the whole of her estate both real and personal goes to the husband.

 

10.04 Where a person contracts a statutory marriage under S. 36 of the Marriage Act (which includes Christian marriage), and such person dies intestate, leaving a spouse or issues of such marriage, both real and personal property would be distributed generally under the Administration Estates Law of Lagos and old Western Region(70). The distribution of estate under this law is a little bit cumbersome. However, generally, where the intestate leaves children, the surviving spouse shall take all the personal chattels absolutely.  As regards all the other properties, one third of same initially goes to the surviving spouse.  Out of the remaining two thirds, the surviving spouse shall take one third of same and the balance of two thirds given to the children. Issues or children include children born to the husband by women other than the one he married under the Act.  This is possible because quite apart from legitimacy rules whereby a father acknowledges a child born outside wedlock as his, the Constitution of the Federal Republic of Nigeria(71) has done away with the concept of illegitimate children in these words:

 

“No citizen of Nigeria shall be subject to any disability or deprivation merely by reason of the circumstances of his birth”(72).

 

There are no longer illegitimate children or bastards under Nigerian Law.

 

10.05 If the intestate leaves no issue and no parents, brother, sister or nieces or nephews, the residuary estate goes to the surviving spouse absolutely. The Act also makes provisions for a number of other situations but it needs to be stressed that the only spouse that can benefit from distribution under the Administration of Estates Act, is the spouse married under the Act. All children of a deceased husband begat by whomever will benefit.

 

10.06 In the Northern and Eastern States, in most parts the rule in Cole V. Cole ensures. The English Rules continue to apply as stated above.

 

 

70.        S. 49(5) Administration of Estate Law of Lagos State

71.        S. 43(2) of Constitution of Federal Republic of Nigeria

72.        See also Salubi V. Nwariakwu 1997 5 NWLR (Pt. 505) 442

 

 

24

XI

SUCCESSION UNDER CUSTOMARY LAW

 

11.01 Succession under customary law is essentially intestate succession, although in certain instances, death bed oral dispositions and often expressed wishes of a deceased person are generally held sacrosanct and observed(73). Succession under customary law applies only to the estate of a person who is subject to customary law, who dies without leaving surviving him, a spouse or child of a statutory or Christian marriage. The rules of succession under customary law vary from community to community.

 

11.02 The customary law which would apply in succession cases, is the personal customary law of the deceased irrespective of where the property is situate or where death occurred(74). If the marriage is an Islamic marriage and the parties regarded themselves as subject to it, then Islamic law of succession would apply(75).These are the general rules. However where the parties show very clearly that they intend the customary law of some other community to govern succession to their estate, the Court would give effect to their wishes.  A good example is found in the case of Olowu V. Olowu(76). In this case, the deceased Olowu was an Ijesha man by birth, but lived most of his life in Benin, married Benin women and was “naturalized” as a Bini by the Oba of Benin and acquired a lot of property in Benin. He died intestate and the Court held that Benin customary law would apply to the distribution of his estate.

 

11.03 Who are the beneficiaries of the estate of a deceased person under customary law? As earlier on stated, the law varies from one ethnic group to another. The cardinal principle of customary inheritance or succession among the Ibos is primogeniture. Under this principle of succession, the eldest male child in the family becomes the Diokpa or Okpala. Where the deceased is a titled person, the first son takes over his father’s title.  He inherits the personal estate of his father but land would be divided among the sons to the exclusion of the daughters. He inherits the father’s dwelling house, but allows other children to occupy rooms therein. The right to succeed to other lands and houses is vested in the sons as a body. In the absence of sons, the right to inherit such property is that of the eldest full brother of the deceased. Female children do not possess the right to inherit land in Ibo customary law, neither do the widows.  This is what obtains in most part of Ibo land although there may be variations in some localities(77).

 

11.04 In Nezianya V. Okagbue(78) the Supreme Court of Nigeria held that the widow of an Onitsha man had no right to let the house of her deceased husband to tenants and demise the property to her grand daughter. She had no son, and as such the husband’s brother was the rightful person to administer the estate.

 

 


73.        Idehen V. Idehen 1991 6 NWLR (Pt. 188) 382 at 418

74.        Tapa V. Kuku 1945 18 NLR 5

75.        Asiata V. Gansello 1900 1 NLR 41

76.        1985 3 NWLR (Pt. 13) 372

77.        Ugbomiu V. Ibeneme 1967 FNLR 257

                        Ejiamike V. Ejiamike 1972 2 E.C.S.L.R 11

78.        1963 1 ANLR 302

25

However, the Court held that the widow was entitled to live in her husband’s house but subject to good behaviour and until she re-marries or dies.

 

11.05 Among the Binis and Ishans of Edo State, the only son or the eldest son is the person entitled to succeed to the Igiogbe, the principal or family house. This property cannot even by a Will be transferred to any other person.  Once the eldest or only son as the case is performs the “Ukpomwan” ceremony after the death of his father, he succeeds to the Igiogbe automatically(79).  The other children are entitled to a share in other properties.

 

11.06 The Urhobos, Ijaws, Itsekiris and Isokos of Delta State has similar rules of inheritance.  In Oke V. Oke(80), the Supreme Court held that under Urhobo customary law of succession, the wife or wives of the deceased Urhobo man are regarded as part of his property to be inherited. The house in which the deceased lived and died could only go to his first son and nobody else.

 

11.07 Under the Yoruba customary law of inheritance, it is the children that inherit the real property of a deceased to the exclusion of the deceased blood relations. The widow again is regarded as part of the estate of the husband to be inherited by the deceased’s family. She could neither be entitled to apply for a grant of letters of administration nor be appointed as co-administrator of the estate of the deceased(81). The head of family reserves the right to decide on what system of distribution should be adopted whether ori-ojori (per capita) or idi-igi (per stripes)(82). There is no discrimination between sons and daughters(83). In Ricardo V. Abal(84), the Court even went further to hold that if a man died leaving two houses and two children male and female, the female if older, has first choice as to the house she wants.

 

11.08 In the Northern States, Islamic law of succession generally applies.  However, in other ethnic communities where Islam is not predominant, patrilineal succession seems to the order of the day. Male children inherit the estate of their deceased father to the exclusion of the female children. The male children inherit the farms and other properties, though the widows are allowed to stay in their husband’s house during their lifetime. Under strict Islamic law, the male children have equal share of their father’s estate, the female children one-half share each and the widows one-eighth of the estate.

 

 

 

 


79.        Arase V. Arase 1981 5 SC 35, 62

80.        1974 3 SC 11

81.        Akinubi V. Akinubi 1987 2 NWLR (Pt. 486) 144 at 159

82.        Adeniji V. Adeniji 1972 ANLR 301 at 309

                        Akinyede V. Opere 1968 1 ANLR 65 at 67

83.        Lopez V. Lopez 1924 5 NLR 50

84.        1926 7 NLR 58

 

 

 

 

 

26

XII

 

MISCELLANEOUS MATTERS IN RESPECT OF

INHERITANCE LAWS AS THEY AFFECT WOMEN

 

12.01 It is clear that many rules of succession under customary law are biased against women or females and the Courts have in recent past risen to the defence of women by declaring some of these customs as repugnant to natural justice equity and good conscience. In Mojekwu V. Mojekwu(85), the Oli-Okpe custom came into focus. The custom permits the nearest paternal male relation of a person subject to Ibo native law and custom who dies intestate without sons, brothers or father to inherit his estate as against his biological female children.  The Court held that the custom is repugnant to natural justice, equity and good conscience.  In doing so the Court held as follows:-

 

“Any form of societal discrimination on grounds of sex apart from being unconstitutional, is antithesis to a society built on the tenets of democracy which we had freely chosen as a people. We need not travel all the way to Beijin to know that some of our customs including the Nnewi Oli-Okpe custom relied on by the Appellant are not consistent with our civilized world in which we live today”.

 

12.02 Under the Ibo customary law, property acquired by a married woman after her marriage goes to her husband on death, whilst the woman cannot inherit property acquired by her husband when he dies(86).

 

12.03 An Onitsha custom which postulates that the Okpala or head of family has a right to alienate the property of a deceased person in the lifetime of his widow is a barbarous and uncivilized which and repugnant to natural justice equity and good conscience(87).

 

12.04 On Onitsha native law and custom whereby a sister could marry another woman as a wife for her dead brother is repugnant to natural justice equity and good conscience. It is a custom that gives licence to immorality and an encouragement to promiscuity(88).

 

12.05 In Mojekwu V. Ejikemie(89) the “Nrachi” custom was the issue. The ceremony enables a man to keep one of his daughters unmarried perpetually under his roof to raise issues, more especially males to succeed him, where he does not have a son.  With this custom performed on a daughter, she takes the, position of a man in her father’s house. Technically she becomes a “man”. The custom legalizes fornication as the woman stays unmarried for the rest of her life, procreating outside the bounds of marriage. A daughter with the custom performed on her has an upper hand over the others without it.

 

 


85.        1997 7 NWLR (Pt. 572) 478

86.        Nwugege V. Adigwe – 1934 NLR 134

87.        Nzekwu V. Nzekwu 1989 2 NWLR (Pt. 104) 373 at 398

88.        Okonkwo V. Okagbue 1994 9 NWLR (Pt. 368) 307 at 388

89.        2000 5 NWLR (Pt. 657) 407, 422 – 423

 

27

She can inherit her father’s property while the others who have not performed the ceremony cannot. The Court in striking down this custom held as follows:-

 

“I must express the point here by which I will continue to stand that human nature in its most exuberant prime and infinite telepathy, cannot support the idea that a woman can take the place of a man and be procreating for her father via a mundane custom.  She stays in the father’s house and cannot marry for the rest of her life even it she sees a honest man that loves her.  I cannot and do not believe that the society as it is presently constituted, will for long acquiesce, in a custom so ludicrous, ridiculous, unrealistic and merciless, more especially as we march into the next millennium”.

 

12.06 In Uke V. Iro(90), the Court of Appeal held that a custom of the Nnewi people that a woman cannot give evidence in relation to land deprives a woman of her constitutional right of equal protection under the law and struck it down.

 

XIII

 

CONCLUSION

 

13.01 I sincerely hope that we are now more enlightened about our rights and obligations under the marriage, divorce and succession laws of Nigeria. It is my hope that we would all be better guided in ordering our affairs.

 

 

BAMBO ADESANYA, SAN

 

 


 (90)     2002 FWLR (Pt. 129) 1453

 

Acknowledgments

 

(a)      Family Law in Nigeria by Professor E.I. Nwogugu

(b)     Nigerian Law of Succession by Professor Itse Sagay SAN

(c)      Customary Law in Nigeria by S.O. Tonwe and O.K. Edu