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