JUDICIAL APPROACH TO CUSTOMARY LAW MARRIAGE
By
Hon. Tyo, Emmanuel Oraduen[1]
The Judiciary is the third but most vital arm of government that is exclusively, vested with the powers of interpreting the laws as made by the legislature[2]. Whether or not the Judiciary gets into the back door of legislative buildings to make laws by precedent but live in denial of same, is a topic for another day. The Judicial arm of government to my mind is the most vital because it has the ability to stabilize the society with her sound, qualitative and justiciable decisions. Or destroy a Nation to its roots with its anachronistic, biased and unbalanced Judgments that will breed chaos and anarchy in the society.
This explains why the government must at all times handle all cadre of Judges and Justices of the Superior Courts with love and tender kindness by providing them sufficient welfare packages and conducive environment to keep their minds and thoughts in check on the path of developmental decisions and societal peace in their daily proceedings.
As noble as this judicial function may sound, it does not oscillate from the sky. It is tied to the existing laws as passed by the legislatures. Thus, good laws entail good judicial approach and interpretation to be applied in deserving circumstances.
To begin with, the concept of Customary law has enjoyed over the years both scholarly and Judicial definitions. Obilade, A.[3] defines Customary Law as customs acceptable by members of the community as binding among them. In Oyewunmi v Ogunesan[4],Obaseki JSC (as he then was), defines Customary Law inter alia as:
"The organic or living 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 transaction of the people subject to it. It is said that custom is the mirror of the culture of the people. I would say that customary law goes further and imports Justice to the lives of all those subject to it."
Simply put, acts, habits, conducts, skills and rules of a particular group of persons in a given community that have acquired the force of law is their customary law. Nigeria is a multi-cultural and lingual Nation with over 350 tribes and so it is her divergent customary laws. Therefore, customary law marriage is that union between a man and a woman or more women in accordance with the laid down and acceptable native rites of the latter.
Customary law marriage is one of the three recognized forms of marriages in Nigeria. The other two are the statutory marriage otherwise referred to as marriage under the Act[5] and Islamic marriage. The concern here is on customary law marriage. Customary law marriage pre-dates colonialism in Nigeria, which foisted the statutory form of marriage on Nigerians.
Customary law marriage is potentially, polygamous in nature as it does not place a limit to the number of wives a man can take. One essential feature of a Customary law marriage is that it retains the capacity of adding more wives in a man at his pleasure.[6]
Candidly, the legal status of Customary law in Nigeria is one of the numerous areas that our legislatures have failed right from the 1st Republic to date. I will justify my position.
Nigeria like India for instance was colonized by Britain[7]. Indians wittingly, accepted the white man’s technology but rejected their culture. Thus, placed their customs and culture of marriage amongst others, higher and above those of their colonial masters. In fact, much of what they showcase in Bollywood and televised on one of their entertainment Channels – Zeeworld, which Nigerians pay cable network providers to watch (especially, our women who allow their food to get burnt on fire) is the reverence to their customary marriage.
The reverse however, is the case with Nigeria is that we did not only accept, embrace and surrender to the superiority of the western cultures but jettisoned most, if not all of our Customary values including marriages. Consciously or not, this goofing has continued long after independence as seen replicated in our Statute books.
The legal implication of the above is that statutory marriage or marriage under the Act, is superior to Islamic law marriage as well as the Customary law marriages of the various tribes in Nigeria.[8] Unfortunately, educated and highly enlightened Nigerians proudly, engage in this ‘dance of shame’,😕 considering marriage under the Act (a Western custom) as great achievement. Thus, they look down on their peers who contract Customary marriages even when such is between a man and a woman, for life. This, they do without recourse to the fact that most Nigerians are products of polygamous marriage, that permitted harmonious co-existence amongst the spouses and their children.
Frankly, most married men and women after taking the marital vows in a monogamist style, engage in polygamous affairs consciously or seductively. 1 ask, how many married men and women who took their marital vows under the Act, can cross their hearts firmly, looking up to Heaven where the Holy God lives, to profess that he or she has never taken an opposite sex, who is not his/her spouse to a dark corner of a building or a hotel room and lowered his/her undies? My friend, if you have ever, been caught in such a web or consistently, living in it then you are a polygamist under the cover of the night but a monogamist in the day. Bring your wives home and stop deceiving yourself and the society.
As stated earlier, the legislatures have placed pre-eminence of statutory marriage over the Customary law marriages in different legislations to which the courts are mostly, guided and as illustrated in some few instances below:
Under the Criminal Code[9], only the wife of a statutory marriage is not criminally responsible for an act, which she is actually, compelled by her husband to do in his presence, provided that such an act is not an offence punishable by death or in which grievous bodily harm is an element.
Again, only the wife of a statutory marriage does not become an accessory by helping or assisting her husband to escape punishment; nor is she guilty if in her husband’s presence and by his authority, she assists his confederates to escape punishment. Moreover, the law considers the spouses of a statutory marriage as one and cannot be held guilty of conspiracy between themselves alone[10].
Furthermore, subject to some exceptions as set out in the Criminal Code, neither the husband nor the wife of a statutory marriage is criminally, liable in respect of any act over the property of the other and neither can institute criminal proceedings against the other in respect of the said property[11].
Equally, a husband of a statutory marriage cannot rape his wife. This rule is extended to the husband and wife of a polygamous marriage (wonder why the legislators did not think European absolutely here).
This position is not restricted to the criminal code. The Evidence Act,[12] defines wife and husband to mean respectively, wife and husband of a monogamous marriage. Under the Act too, the wife of a statutory marriage is not competent and compellable witness for the prosecution against her husband except in few offences specified by the Criminal Code.[13]
As described earlier, the wives of the Islamic and Customary law marriages are not accorded such immunity. In fact, the wives of Islamic and Customary marriages are competent and compellable witness for the prosecution.[14]
By and large, since the duty of the Judex is to interpret the laws as made by the legislatures, the above enumerated positions are demonstrated by our Courts. For instance, in Ani v The Queen[15], the Court held that the wife of a person charged with murder is not competent to give evidence for the prosecution if their marriage is a monogamous one. Painfully, this recognition of superiority of statutory marriage over the other forms of marriage by our Courts is with due respect, so annoying that even where the facts are watery, the Courts still look the other way. In R v Dogbe[16], the appellant was convicted of murder. The wife gave evidence for the prosecution. There was nothing to show if she were his wife by Christian marriage or native custom. Her first name was Emilia and she was sworn on the Bible. It was held that the natural presumption must be in favour of the appellant that the wife was not a competent witness without the consent of the appellant, and not in any event compellable. With utmost humility to the learned Justices of the West African Court of Appeal (WACA), who sat on this case, their ratio or reasoning in this case was not based on facts, coming from my practical experience on the Bench of the Customary Court of the FCT. Here, I have seen several divorce cases of parties with Christian names but who were dejure married under their various Customary Laws.[17] So, it will be progressing in error to determine the form or status of a marriage by the English names of the spouses or the instrument of oath adopted by a party in a case before the Court.
On this, I am persuaded by the submission of Hon. Justice Niki Tobi,[18] who argued that:
"The restriction of immunity to only spouses of a monogamous marriage is out of tune with the practical realities of a society, which predominantly practices polygamy, and that the mere fact that a person answers a Christian name and swears on the Bible does not make that person invariably a Christian. That Nigerians, particularly, in the days of the case, were very much found of answering English or Christian names, and that a number of persons swear on the Bible in Court, because of the societal shame in revealing themselves as pagans in a crowded Court of law."
Lest I forget, communication, conversation and gossip between the husband and wife of a statutory and Islamic marriage are privileged. Thus neither can be compelled by a court of law to give evidence of the communication between the spouses[19].
It must be emphasized that European countries treat Customary law marriage and the issues of such union with disdain. Lord Penzance, in adopting the definition of a statutory marriage in the case of Hyde v Hyde[20], refused to entertain a petition by a Mormon from Utah United States of America, for the dissolution of a polygamous marriage.
This necessitated Sir Denis Fitz-Patride’s saying that to boycott polygamy would be to –
" Ignore the great majority of the human race, treating all women among them as were concubines, all children as bastards and all property left by an intestate as escheating or becoming ownerless.[21]
Permit me to say that we Nigerians were enslaved by Britain and 59 years after independence we have continue to enslave ourselves with European customs and norms, to the detriment of our local values especially in the area of marriage as reflected in our laws.[22]
Any European or American mistake is usually a thing of fashion in Nigeria. One wonders why Nigeria was quick in running away from the Western and latest form of marriage – “Gay Marriage” or “Same Sex Marriage”[23], which has gotten for instance, a Royal Assent from the United Kingdom[24].
The point here is that why embrace a foreign system of marriage and place same over and above our own system of marriage i.e., the Customary marriage. Are we so gullible and blind that we cannot see that the European “one man, one woman” form of marriage is a cloak and what I describe as “polygamy adorned in the colours of serial monogamism”? Unlike customary marriages in Nigeria, statutory marriages in the west are quite fragile and easily, broken.
For instance, in 1980 Britain, it is on record that one in four of the radiant brides who took their oath of “for better for worse” end up in crying at the divorce court. Statisticians show that the Canterbury area of Britain has a yearly divorce rate of 4.64 percent of the population; Inner London is second to Canterbury with a rate of 3.59 percent[25].
It is evident therefore, that statutory marriage or marriage under the Act is nothing but social milieu.
By and large, save for the emphasis on the payment of bride price,[26] the other requirements for a valid Customary marriage like consent of the parties, parental consent where the parties are minors, marriage celebration[27] are same with those of a statutory marriage. Why then should our laws and the courts make customary law marriage inferior to the statutory marriage.
Moreover, where these requirements are lacking, the court places no marital obligations on the parties. They can at best be described as concubines. In Chawere v Aihenu[28], it was held that mere living together does not per se, constitute a customary law marriage. Thus, the observation by Osborne C.J in Susannah Savage v Charles Macfoy & Anor[29], that “oko” and “aya” which in Yoruba, mean husband and wife are equally applicable to a man and woman living together, without any marriage ceremony, in my opinion, does not come under the purview of acceptable marriage under native law and custom.
On the whole, there are circumstances that clearly show that customary marriage should prevail but credence is still given to the subsequent marriage under the Act as was seen in Adebola v Folaranmi,[30] where the court held inter alia that:
"The marriage in Trinidad, although it was subsequent to the customary marriage with the plaintiff’s mother, was valid, the Marriage Act of 1884 that no person can, in Nigeria contract a valid Christian marriage if he is married to any other person under native law and custom notwithstanding. (The 1884 Act was enacted after the marriage in Trinidad). Accordingly, the English Common Law of inheritance, applied and the Will of Mrs. Johnson was held to be valid.
Equally, in Claudius James Haastrup v Felix Adebayo Coker & Ors,[31] one Haastrup has married in Sierra Leone, a woman by Christian rites. When both returned to Nigeria, the husband had been made a Chief in Ilesha and several women were married by him in accordance with the Customary law. The first wife married in Sierra Leone had two children and the wives in Nigeria had nine children. One of the two children by the marriage in Sierra Leone took out letters of administration and purported to convey one of the parcels of land belonging to the deceased in Yaba to a third party. One of the nine children on behalf of himself and the other children, sought for a declaration that the land devolved on all the children in accordance with Customary law but Petrides J., rejected their claim.
On the flip side, this discrepancy melted out to customary law marriages in Nigeria by our laws is sadly, extended to the Judges who man the Customary Courts, where dispute emanating from such marriages are ventilated. This is even so when such Judges are eminently, qualified lawyers as it is the case with the FCT Customary Court Judges. This makes one wonder whether the
Customary Court Judges went to a different Law School from the Magistrates or the Honourable Justices of the higher Bench. We all went through the same training and were certified fit and proper, both in character and learning before been called to the Bar by the Council of Legal Education.
Thus, we should be accorded equal opportunities as the others to contribute our quotient to the development of law, as we ascend the hierarchical judicial ladder that softly, lands at the apex building – the Supreme Court of Nigeria. Working in the Customary Court must not be seen as a dead end.
In conclusion, it is time for our Legislatures to repeal these obnoxious laws and the Judiciary to take steps to make Customary marriage by law come to parity with Statutory marriage. If the European Countries will not give us visas to travel to their land because of polygamy, we will tour Africa and nothing will be lost. After all, the vast Nigerians who practice actual polygamy have no business settling in Europe and seldom travel there. Infact, they will run to their ancestral caves for protection in any attempt to force them on board a flight to Europe. If polygamy is not good in their climes, it creates a relative harmonious co-existence in Africa and Nigeria in particular. For us as a Nation to grow and take our place in the comity of Nations, then we must learn to develop along our cultural values. Let me on this adopt the views of my lord, the Honourable Justice M.M. Igbetar – PCCA, Makurdi (as he then was)[32] that:
"It is stating the obvious therefore that any country that throws away its indigenous values to place premium on another will find it very difficult if not impossible to succeed. China is quietly becoming the world superpower because it places high premium on its local values, customs, traditions and justice system."
Customary marriages may be potentially, polygamous, there is nothing shameful or unethical about them. It is our custom and we cannot shy away from the fact that most of us are products of polygamous unions. Through conscious and well-articulated legislation, Customary marriages and Statutory marriage can flow from the same stream of respect and recognition but their waters need not mix.
[1] Hon. Judge, FCT Customary Court, Abuja.
[2] S.6, CFRN, 1999 (as amended)
[3]Th Nigerian Legal System (8th edn., Sweet & Maxwell, 1979) 415.
[4] (1990) 3 NWLR (Pt. 137) 182 @ 207.
[5] Cap. LFN, 2004
[6] This distinguishes it from a statutory marriage which is monogamous in nature and Islamic Law which is also polygamous but restricted to only four wives at a time.
[7] In the 18th century <www.https//rlp.hds.harvard.edu>accessed on Thursday, 12/04/2018
[8] For instance, S.I. of the Criminal Code excludes Customary marriage in its definition. S. 160 of the Evidence Act, removes privileged communication from spouses of a Customary marriage, item 1 of the first Schedule to the FCT Customary Court Act, No. 8 of 2007, disallows the handling of marriages other than Customary, etc.
[9] S.33
[10] Ibid S.10
[11] Ibid S.34, See also, Keshinro v I.G.P (1955) WRNLR 56 11 S.2
[12] Section 2
[13] Ibid, S.160
[14] Ibid, S. 161
[15] (1956 – 84) 10 SCNJ 165
[16] (1947) 12 WACA 184
[17] Eg, Charity James v Emmanuel James (Unreported Suit No. FCT/CCGB/CV/04/2018), Solomon Giwa Yamusa v Sarah Yamusa (Unreported Suit No. FCT/CCGB/CV/20/2017), where the parties in both cases got married under the Igala Native Law and Custom of Kogi State and Kurama Native Law and Custom of Kaduna State, respectively. 17 A Case Book on the Law of Evidence
[18] A case Book on the Law of Evidence
[19] Op.cit S.160 (3)
[20] (Supra)
[21] Ibid
[22] Marriage Act, Matrimonial Causes Act, 1973, SS.2, 160 and 161 Evidence Act, S.1, Criminal Code, etc.
[23] Infra S. 5(1) prescribed 14 years jail term for any Gay activity in Nigeria.
[24] Marriage (Same Sex Couples) Act, 2013
[25] Sunday Mirror, August 31, 1980
[26] Nwogwugu, E. Family Law in Nigeria (3rd edn. HEBN Publishers Plc, 2014) xxxviii
[27] Nsirim V Nsirim (1995) 9 NWLR (Pt. 418) 144, Ashley Agwasim v Beauty Ejivumerewerhaye (2001) 9 NWLR (pt. 719) 395.
[28] (1935) 12 NLR 4
[29] (1909) Ren 504
[30] (1921) 3 NLR 89
[31](1927) 8 NLR 68
[32] ‘The Role and Development of Customary Law in the Nigerian Legal System’ Legal Essays in Honour of Justice Moses A.D. Bello, OFR (Private Law Department, Ahmadu Bello University, 2009) 145
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