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ANTHROPOS
111.2016: 49 – 68
Interaction of Customs and Colonial Heritage
Their Impact on Marriage and Children in Nigeria
Nwudego N. Chinwuba
Abstract. – Marriage is regulated by two parallel frameworks in simi v. Okotie-Eboh (1996: 128; S. C.). When one
Nigeria. Some Common Wealth countries have attempted har- speaks of two families, it must be noted that it is
monisation. Inequality and exclusions are phenomena that as-
sail most developing nations. As Nigeria is a country with enor-
not all the time that this entails outlandishness, be-
mous financial and economic potentials, it is not surprising that cause sometimes “families” may be merely repre-
a few would take full advantage of any privilege which is occa- sentative and symbolic, consisting of at least two
sioned by conflicts rather than redefine structures for inclusion. It persons from each side.
is in this light that this article examines illegitimacy as is known English law states, according to one view, “the
in English jurisprudence vis-à-vis local understanding and cus-
toms in the context of the tension generated by colonial herit-
law of England says that marriage is a contract re-
age. [Nigeria, African culture, marriage, child welfare, human sulting in a status” (E. G. M. 1932: 294). It may be
dignity, colonial heritage] said that there are two parts to this statement, one
is the contract between the parties entailed by the
Nwudego N. Chinwuba, PhD, Senior Lecturer at the Depart- mere fact that they have decided to marry one an-
ment of Private and Property Law, University of Lagos, Akoka,
(Nigeria). – The author’s publications are mainly in the fields of
other and the other is the status which this decision
Law. See also References Cited. confers on them by the state. It is from here that the
arguments for illegitimacy are taken. The contents
of marriage in this instance envisage a strict contract
1 Introduction between two parties to which may be added some
symbolic paraphernalia which adds nothing to the
Marriage is the foundation of society (Aguda original envisagement of the contract between the
1971: 1; Rahmatian 1996: 282). The constituents of parties. Concerning Nigerian customary marriag-
marriage receive deservedly serious attention in all es, the reverse is the case and the symbolisms more
societies. It does appear though, that culture and re- than the decision constitute the marriage.
ligion have played larger roles than the law in shap- In Nigeria, where the marriage is statutory, case
ing the content and definition of marriage in many law, although not consistent, appears to treat mar-
societies. For many of the world’s religions, it is a riage as contract (Da Costa v. Fasheun 1986). At
sacrament involving religious and cultural rites. To other times, it is treated as an obligation arising by
a legal mind, the nature of marriage and legitimacy virtue of the provisions of the Marriage Act 2004
of state intervention in it is not free from difficulties. (hereafter MA), (Marquis v. Marquis 1981; Anyae-
Customary marriage in Nigeria is in some sense gbunam v. Anyaegbuna 1963: 320). Thus, when a
a contract not strictly between two parties but two marriage is conducted as if it is under the MA but is
families. It is potentially polygamous and for this not evidenced by a certificate from a Registrar or Li-
reason a double-decked variant of customary and cense under the Act, it is taken to be in breach of the
statutory marriage in one package, developed Jade provisions of the MA and becomes either void or
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voidable by virtue of the provisions of sections 39, ary law marriage which is the preferred framework
46, and 47 of the MA, as well as section 3 (1) (a) of for men. Women and children usually fall prey to
the Matrimonial Causes Act 2004 (hereafter MCA). the negative outcome of this situation.
It does not matter that the marriage has been con- Although the case study is the Nigerian context,
ducted in a church unless such a church has a val- the conflicts and tensions that inhere in these issues
idly issued licence under the MA (Anyaegbunam v. require conversations from beyond the geographi-
Anyaegbunam). Sometimes, if the marriage is a hy- cal boundaries of Nigeria. As Pollock noted (1932:
brid, it is allowed to stand as customary marriage 41), there is need to pay attention to the offshoots
(James Egbuson & Ors v. Joseph Ikechiuku 1977). of the Common law “planted and taken root around
It has been estimated that 9 out of ten men are po- the world.” Furthermore, regardless of whether glo-
lygamous (Ibidapo-Obe 1981), i.e., 95% of men are balisation is to be applauded or condemned, it has
polygamous (Aguda 1971). In Jadesimi v. Okotie- had the undeniable effect of bringing more people
Eboh, the Nigerian Supreme Court, per Uwais, CJN and cultures together. The result for the family law
said, “it is common knowledge that inspite of the practitioner is a world of new and challenging le-
punishment provided under section 47 of the Mar- gal issues as well as new possibilities prompted by
riage Act against any of the parties entering another the cross-fertilisation of legal ideas (Boele-Woelki
customary marriage, the male folk in particular ob- 2008, taken from Blair and Weiner 2003: 3).
serve the restriction more in breach than obedience The article x-rays marriage and its expressions
with impunity” (128). These cases of bigamy are not in Nigeria particularly as it concerns bigamy. While
in the same sense bigamy as is understood in Eng- in Nigeria it may not connote strict contractual re-
lish jurisprudence. In this sense, a man would either lations as in many Western societies, the claim for
marry for the first time under customary law (Agbe- illegitimacy proceeds primarily from this context.
ja v. Agbeja 1985) and then subsequently under the Since the doctrine of illegitimacy envisages use of
Statute or marry under the Statute and then become the state apparatus for enforcement, it will be nec-
a polygamist (Okwueze v. Okwueze 1989). Custom- essary to examine the role of the state in marriage.
ary law marriage, not being usually registered and Some specific issues with respect to relevance of
sometimes not elaborate, can provide a loophole for illegitimacy in modern-day Nigeria in the light of
one party, usually the man, to deny its existence. constitutional provisions and case law are also ana-
While customary law marriage is potentially po- lysed. The discourse is premised on the conceptu-
lygamous, marriage under the Act is monogamous al and practical framework of marriage in Nigeria
and bigamy punishable by 5 years imprisonment which is demonstrated as incompatible with illegit-
(MA 2004: sections 35, 39, 46, 47). There is also an imacy in English jurisprudence. Consequently, the
offence of bigamy in the Nigerian Criminal Code, academic furore over illegitimacy ought to be di-
Act (Section 370 Criminal Code Act; Iriekpen and rected at renegotiating the meaning and content of
Andrews 2011). However, since some foreigners marriage for the woman in modern-day Nigeria. The
were convicted for bigamy, there has been no re- article excludes the discourse on children’s rights.
corded action for bigamy in Nigeria (R. v. Prince-
will 1963 N. N. L. R. 54; 1963 All NLR 31). This is
so even when cases before the courts constitute one 2 Marriage Laws and the Turmoil
and by section 62 of the MCA a court may initiate
the intervention of the attorney general to investi- The celebration of marriage is a hydra-headed event,
gate bigamy.1 usually coming legitimately in four to five packages
This article examines the interaction of customs for one marriage celebration. This is because of the
with the received English law on the subject of il- outcome of each of the marriage types which neces-
legitimacy. It queries the relevance of the common sitates women securing their position in the mar-
law variant in modern Nigerian society. This has riage and ultimately its effect has been to forestall
become relevant because of the increasing tension the man openly becoming polygamous (Jadesimi
from double-decker marriage and its incidents in the v. Okotie-Eboh (1996: 128). A typical marriage of
light of the irrelevance of bigamy to Nigerian legal a southern or northern Christian woman would en-
process. Bigamy appears irrelevant to the legal pro- compass all five events. Aguda (1971: 66 f.; see also
cess because of the polygamous nature of custom- Ekow Daniels 1964: 574, 601–610) provides a suc-
cinct account of the origin of this state of affairs:
1 See, for instance, Okwueze v. Okwueze (1989: 321); Kuforiji
& Anor. v. V. Y. B. (Nigeria Ltd.) (1981); Agbeja v. Agbeja As Europeans commenced to settle here, relatively per-
(1985: 11) CA; Jadesimi v Okotie-Eboh (1996). manently, and in some appreciable numbers, it became
Anthropos 111.2016
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necessary to introduce a system of marriage which would creasingly, the attribute of a monogamous marriage
be more in line with their own personal law. And what in Western societies has shifted from this and is said
was of equal importance, the new converts into Christian to be more obvious in its consequences on divorce
faith were forced to believe that unless they abandoned (Eekelaar 2007).
their customary system of marriage their souls would not Polygyny is the marriage of one man to many
be saved. In most cases those who had more than one wife
women. Its main attribute is that the man is a pa-
were not allowed to take sacrament. Hence the first Mar-
riage Ordinance was passed in 1863. This was replaced
triarch and is usually unaccountable to any of the
by the Marriage Ordinance 1884. … It became necessary women. This is the feature of polygamy, at least
in 1914 to pass a Validation Ordinance which validated under Nigerian customary laws. Thus, there is no
retrospectively certain marriages and extended the pro- question of succession rights for any of the wives.
visions of the Marriage Ordinance to some other parts of Succession is either through the sons of the marriag-
Nigeria. We need not go into details of these here. It is es or through brothers. It must be noted that on this
perhaps only pertinent to note that even today some Ro- front people of western Nigeria now allow devolu-
man Catholic Churches still continue to perform marriage tion of property to female children although wives
ceremonies without complying with the Marriage Act, the are still excluded.
legal validity of which is very doubtful, except as taking Does monogamy in Nigeria change the conse-
effect as marriages under customary law.[2]
quences of marriage for wives in Nigeria? The an-
swer is in the negative. Bigamy is carried out openly.
Ekow Daniels notes that of prime importance In cases of divorce, property is usually not distribut-
was the enforcement of monogamy why many pol- able and, recently, if settlement is to be made at all,
icies were introduced including section 36 of the it is paltry and any claim on property is dependent
Marriage Ordinance which had extraordinary puni- on strict proof by the wife. Intestate succession is
tive measures on succession matters conflicting with ousted at least in federal laws by the expunction of
the new norm (1964). section 36 of the Marriage Ordinance which provid-
There are as many customary forms of marriages ed for automatic intestate succession for the wife of
as are diverse ethnic groups in Nigeria. Customary a polygamous marriage from the current Marriage
marriages are intertwined with African traditional Act. Thus, the motivation for marriage now lies not
religion and beliefs. One peculiar variant is the cer- in the security which marriage provides or in what
emony of marriage amongst the Igbo people of the monogamy has to offer but elsewhere.
eastern part of Nigeria, which expresses a firm be- It is expected that persons of marriageable age,
lief in reincarnation. men or women, should marry. However, for a wom-
Aside from strict customary marriages, there is an marriage determines her status, unless such sin-
also the Islamic-type marriage, based on Islam and gle status is prescribed by the gods or she is pris-
applicable mainly amongst core northern Nigerians tine in a convent.4 Regrettably this position which
and other Moslems spread across the western parts was definitive of the life of the society at a particular
of Nigeria. A more detailed account of marriages point in time, cannot rationally be expected to gov-
and their nature in Nigeria is provided by Rahma- ern life in modern Nigeria for many reasons. One
tian (1996: 283–291).3 Monogamy is the marriage reason is that the population pattern shows that adult
of one man to one woman and is a basic tenet of women outnumber adult men and this is in spite of
Christianity. Most Southerners are Christians. Stat- the fact that the census normally would not capture
utory marriage and Christian marriages capture this the accurate number of female children and rural
tenet. The main attributes of monogamy are to be women (National Population Commission).
found in the securing of the marriage against third Thus, the reality is that the demographic and so-
parties which is achieved through bigamy and in- ciological patterns of the society are such that if the
testate succession rights of the wife or husband. In- norm is monogamy and assuming all men will mar-
ry, some women will be married while others will
2 It must be noted that this is no longer the case with Roman not, even if they were desirous of doing so. As the
Catholic Churches although some other churches continue in
this light deliberately or inadvertently.
society is a patriarchal one, the direction the tide of
3 Islamic marriages and precepts are not within the scope of marriage will flow is reasonably discernable (At-
this article. It is only noted herein that in the core of north- senuwa 2011: 6–8).
ern Nigeria, the Sharia appears to be the basic law regulating
marriages. The state may as in Kano matchmake, as well as 4 Rahmatian (1996: 309, fn. 3); Atsenuwa (2011: 6); Ibidapo-
make financial and sundry provisions for single women and Obe (1981: 128). – See the Nigerian Population Commission
widows to be married off. Christianity does not have any en- website. This is aside from the fact that while men would al-
forcement machinery outside the state apparatus, quite unlike ways be counted, many women, rural and market women,
Islam that has an enforcement machinery vide the Sharia. will not even participate in the exercise.
Anthropos 111.2016
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Marriage is crucial and important for all who are clan as a married couple. It is more or less a taboo
in or aspire to it, whereas on the other hand, there to avoid customary marriage in preference to statu-
are single people, men, women, young, and old (At- tory marriage in Ibo-land” (1981: 128). In Kuforiji
senuwa 2011: 6). While it is expected that people & Anor. v. V. Y. B. (Nigeria Ltd.) Obaseki, the Jus-
will marry, unfortunately, the state does not match- tice of the Supreme Court stated that bigamy even
make and on this point providence not law must though a dead letter law was “in our Statute book.”
largely resolve the fate of the individual. Inspite of Aguda (1971: 120 f.) states the problem suc-
the place of marriage in Nigerian society, nowadays, cinctly:
a few women elect to stay unmarried but would usu-
The vast majority of Nigerian men, may be the percentage
ally opt to have children and some will not elect to is over 95, practice polygamy in one form or the other. A
do so but will be forced to do so if they cannot mar- number of these ostensibly practise monogamy but have
ry (Aofolaju 2012; Egbemode 2012a/b/c). One re- one or two other “wives”. Some of them who are cau-
port from a sociological survey states: tious do not perform “marriage ceremonies” with the oth-
er “wives”. But some in fact do perform these ceremonies
Apart from this, cultural cum societal attitudes often seem to which they in fact invite people who have to do with
to weigh heavily in the mind of Nigerian women in decid- administration of justice including Police Officers, Doc-
ing whether or not to get married or remain single. For in- tors, Lawyers, Ministers of State and Religion, top civil
stance, in a survey by the writer in Mushin and Ikeja areas servants, etc., who do attend such ceremonies with full
of Lagos, it was discovered that majority in polygamous knowledge of the correct situation. The fact is that, as
union in the pool were in the union not so much for the I have said earlier, some of these people themselves have
essence of marriage but to avoid the alleged “social stig- perhaps indulged in a similar breach of the law.
ma” associated with single motherhood. But ironically,
these women are more or less de facto single – mothers. Other male commentators on the subject have
For instance, twenty-five out of forty of them said they expressed similar views.7 Welstaed and Nwogugu
are financially independent, expect little or no financial (2006: 22) ask:
or material provision from their husbands, and are only in
the union for the sake of marital status. Seventeen of them Should the offence of bigamy be retained in our law? A
were in their second marriage. But surprisingly more than positive answer should be given because it reflects our
50% of twenty unmarried ladies in yet another pool would constitutional and legal framework. Once a man is given
rather be in polygamous union than be single mothers.[5] the freedom to move from the monogamous to the po-
lygamous union at will and irrespective of the feelings of
It has been repeatedly argued that the Achilles’ his partner, we would have undermined our legal system.
heel of the MCA is the failure to take into cogni- What is required is the cultivation of strict obedience to
sance the nature and consequences of the custom- and enforcement of the law. There is a role for education
ary-type marriage as potentially polygamous and and enlightenment of women as to their legal rights.
its effect, the result of which has been unfavoura-
ble for women and children. This situation is not to Earlier on the Nigerian Family Law Reform
anyone’s advantage as the circumstances indicated Commission (2004) proposed the removal of biga-
above put pressure on men to take advantage of the my from the law in line with the sociological results
situation while women allow themselves to flow in of the offence, that it had fallen into disuse, but so
the tide rather than be without social protection.6 far there has been no response to the proposal from
While all marriages under customary law are recog- the legislature.
nised by the people and sanctioned by law, with or The Tanzanian Government paper referred to
without a statutory variant, many do not take notice earlier, reported its assessment of a similar situa-
of bigamy. Marriages under the Act are conducted tion in its own jurisdiction:
mainly at the behest of women. The social position
As it is not the basic law of Tanganyika, but certain re-
is clearly in conflict with the legal position. This ligious law, which prohibit polygamy, the Government
is because, as Ibidapo-Obe explains, “observance proposes that when the parties freely agree to convert the
of the customary form of marriage in addition to, nature of their marriage, the law of the country should not
but not in substitution of, the statutory marriage [is prohibit the man from marrying another woman. Such a
required] in order to gain recognition amongst his prohibition of law would be unrealistic, as it will not de-
ter the man from marrying the other woman but will force
5 Peters (1996–98: 25); see also Aluko and Aransiola (2003); him to divorce his first wife. The Government proposes
Gage-Brandon (1992). that in such a case the man should not be forced into a
6 Peters (1996–98: 25); Rahmatian (1996); Aguda (1971);
James Egbuson & Ors v. Joseph Ikechiuku (1977); Okwueze
v. Okwueze (1989); Kuforiji & Anor. v. V. Y. B. (Nigeria Ltd.) 7 Akpamgbo (1977); Nwogugu (1990); Kasunmu (1961); Oye-
(1981). banji (1981).
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position whereby he has either to divorce his first wife, In MO v. RO & Rig Ltd. (2013), the application
or cohabit with the other woman with the inevitable re- was for a declaration of marital status under sec-
sult that their union would be a union not recognised by tion 55 (1) (1) of the Family Law Reform Act, 1986
the law and the offspring of such a union would be ille- (English). MO, the applicant, claimed that she was
gitimate (Government Paper No. 1 of 1969, para 12).[8] married to RO, the respondent, in a customary law
marriage ceremony in Lagos. RO had been previ-
This assessment captures the dilemma of the Ni- ously married to Mary from whom he was estranged
gerian man whose escapades, due to loopholes and and who had remarried. Mary testified on his be-
unaccountability provided by the law, have now ex- half. The respondent denied that there has been any
tended in leaps and bounds (Ikhariale 2013: 17).9 It such marriage, although at some stage (just as in
will be noticed immediately, that while the Tanza- Moses-Taiga) he asserted that if there was such a
nian White paper attributes its own position to re- marriage, it was void by virtue of its being polyga-
ligion, the Nigerian experience, even though it has mous and entered into at a time when he was domi-
religion as the underlining impetus, is precipitated ciled in England. The applicant was a non-native
by the prevailing socio-legal structure of the Nige- from Ghana. While the case was pending, RO insti-
rian society. tuted another proceeding in Lagos. A hearing took
The cases of Moses-Taiga v. Taiga (2005), Ag- place in April 2012 and on May 18, 2012, a decla-
beja v. Agbeja (1985), and Ohochukwu v. Ohochuk- ration was made that no marriage ever took place
wu (1960) are illustrative, all three cases were on between the applicant and the respondent with a
questions of the interrelationship of statutory mar- “perpetual injunction restraining the applicant from
riage and customary one. In the first case, the Eng- asserting or boasting that she was ever married
lish Court of Appeal was faced with the tension of to the respondent under Nigerian law” (2013: 7).
plurality of marriage that affected two Nigerian resi- There were two children born to the parties during
dents in England. It had to differ the question of va- the duration of the relationship, both now distin-
lidity of marriage to Nigerian courts for determina- guished adults. The woman has met the man at the
tion. The respondent was married to another woman age of 24 and this proceeding was conducted at the
by a statutory marriage in Nigeria from whom he age of 60. Jackson, J., while declaring that he could
was estranged. The Court of Appeal in Nigeria held not establish that there was any marriage noted of
that the second purported marriage was either non- RO, “the fact that the respondent can (to say the
existent or a nullity. Prior to this declaration, there very least) take no pride whatsoever in his conduct
were two twins of the relationship (Taiga v. M oses- is, I am afraid, neither here nor there” (2013: 26).
Taiga 2012). A similar case is MO v. RO & Rig This is a typical plight of women who are persuaded
Ltd. (2013). This latter case concerned a Nigerian by the framework of marriages in Nigeria.
man who had married one woman under customary Ohochukwu v. Ohochukwu was the earlier of the
laws in Nigeria. He subsequently travelled to Eng- four cases. Here the parties were married in Nigeria
land where he met and married another woman un- under customary law. In England they entered a val-
der customary law.10 On return to Lagos he married id marriage under the English Matrimonial Causes
this second lady again under the MA. The Nigerian Act, 1950. Having lived in England for three years,
Court of Appeal unanimously held that the second the wife petitioned for divorce on grounds of cru-
marriage was a nullity. These two cases typify the elty. The judge established cruelty as a fact and dis-
dilemma of Nigerian women in the customary and solved the marriage under the Act but concluded
statutory marriage dynamics. The accuracy of the that he could not dissolve the customary law mar-
court’s conclusions on this case will, however, be riage for, as he noted, it was a polygamous mar-
analysed below. riage over which the court had no jurisdiction. This
third case is relevant to demonstrate the difficulty
encountered in dissolving Nigerian marriages which
8 As this paper is concerned with children, comments on the also leads to the frustrations the parties experience,
proposal, and its outcome, the Tanzanian Marriage Act (1971)
is reserved for another occasion, as it concerns women.
i.e., mostly men who would then prefer to carry on
9 This article asks – in response to the news that a governor had disregarding the need to dissolve earlier marriages.
made extravagant gifts to a musician whose marriage cere- When Moses-Taiga v. Taiga arrived in Nigeria
mony was taking place in Dubai – “I learnt that the groom as Taiga v. Moses-Taiga, the Court of Appeal held
has already fathered many children from different women. So that where a person who has a prior subsisting statu-
what is the big deal about such a marriage?”
10 It is perfectly in order to conduct a customary law marriage tory marriage conducts a marriage with another un-
anywhere since what is important are the rituals and symbolic der native law and custom while the earlier statu-
gestures of the ceremony. tory marriage was subsisting, by the provisions of
Anthropos 111.2016
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section 35 of the MA, the latter marriage is invalid. deceased was a mistress or concubine. When the
There is, however, no evidence from the report that “English wife” returned to Nigeria, she was with
the Court then put the Criminal Justice process in child. Although the customary “wife” subsequent-
motion to bring about the application of section 39 ly went ahead to have other children, the Court of
on bigamy (Taiga v. Moses-Taiga 2012 – 3 NWLR Appeal still ruled that the second marriage that was
219 CA). conducted in England according to Nigerian cus-
In Jadesimi v. Okotie-Eboh (1996: 128), Uwaifo tomary law and consolidated with another ceremo-
CJN held unequivocally that where parties marry ny under the MA was a nullity. It followed that this
under customary law and subsequently marry ac- child, whose parents lived as married for well over
cording to the MA, the second marriage merely re- twenty years, had now become “illegitimate.” In this
affirms the first and converts the potentially custom- case, it was the grown-up daughter of the customary
ary marriage to a monogamous one. In this case, “wife” who put the machinery of justice in motion
Okotie-Eboh, who was the first post-independence on behalf of her mother to determine marital status
Minister of Finance, although married to this par- after the death of the “husband.”
ticular woman had several other children from many In Olufemi Marquis v. Olukemi Marquis (1986),
other women. another typical case Professor Olufemi Marquis
It must be noted that in this case the parties were died intestate on May 6, 1982. He had married the
the same. Therefore, this case cannot be determina- first plaintiff in 1960 at St. Mary’s Catholic Church
tive as in a case when the parties are different peo- Sunderland, England. There were four children of
ple. Thus, the question remains on what the position the marriage. Professor Marquis subsequently mar-
is where a man previously married to a woman un- ried a Nigerian woman with whom he lived until
der customary law then proceeds to marry another his death and had three children without dissolu-
one according to the MA. The other issue arising tion of the first marriage. On his death the question
from this case is how the dissolution of a double- arose of who was entitled to a grant of a letter of
decked marriage becomes effective. Would the con- Administration, and it was held that without doubt
version mean that only the statutory marriage neces- the first woman was so entitled, the court describ-
sitates dissolution? The answer is clearly no, as the ing the wife under native law and customs as a mere
case of Ohochukwu v. Ohochukwu demonstrates. mistress and the children of the marriage as illegiti-
The dissolution of the two marriages must be inde- mate (Uzodike 1990: 403; 2011: 28). In Da Costa v.
pendently done. The customary one becomes effec- Fasehun (1981).
tive with the return and acceptance of the dowry by In the case above mentioned, the High Court ex-
the husband’s family, as was done by the estranged pressed a strong opinion that in a marriage parties
wife Mary in MO v. RO & Rig Ltd. (2013: 20). have contracted to live on specific terms and condi-
In resolving the first issue the Court of Appeal tions, and that paternal acknowledgement of chil-
in Agbeja v. Agbeja (1985) held that the custom- dren in a subsequent customary law marriage cannot
ary law marriage superseded the statutory one. The interfere with that contract and thus such children
testimony of the first customary “wife” (second re- “were illegitimate, ‘all and sundry’ who are out for
spondent) was that: a booty.” A respected Nigerian family law profes-
sor, Itse Sagay, commenting on the judgement re-
the deceased went to England in 1951. I had just deliv-
ferred to it as “both unfortunate and grossly incor-
ered. He left me living with his mother at Ilesha. He re-
turned from England in 1952. … I continued to live with rect” and stated: “Where a man has children outside
his mother. When I thought it was time for me to get preg- his marriage, whom he acknowledges, under no cir-
nant I wrote to him saying I would like to come to him, cumstances can such children be regarded as ‘all
or he should come to me. He did not reply. Later I heard and sundry’ ” (1992/1993) Vol. 16, 17 & 18 JPPL 1.
that he had pregnanted a woman in England. I asked him Aguda (1971: 86) decried the situation: “What
and he said it was true. Then I said I did not mind and that does society gain by what we have at the moment –
I could continue to live with his mother. He refused. He penalising the innocent children of women who are
asked me to pack out from his mother’s house. I refused second wives to men who opt to contract marriage
and continued to live there. Then in 1954 I heard that under the Act? The women are not penalised – in
he had married another woman. Then in 1955 I left for fact, they are well received in society, the men are
my father’s house. Up to 1955 the marriage between my-
not penalised because society does not seriously
self and the deceased was never dissolved (1985: 17 – 3
NWLR (Pt. 11) 11, 17). frown upon their iniquity, but it is the children who
suffer in being disinherited. The situation is terri-
The case came to the conclusion that the “Eng- ble and must not be allowed to continue to exist
lish wife” who was married under the Act to the any longer.”
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Lagos, a state in Nigeria, has now expunged big- (2010), the United Kingdom Supreme Court applied
amy for falling into disuse from its statute books in Part III of the Matrimonial Family Proceedings Act,
2012, whereas generally men hailed the action as 1984 (MFPA) to resolve an inequity in the distribu-
the “triumph of common sense” women rejected it tion of the property of a divorced Nigerian/British
and have since proceeded to the courts. It has to be couple. In this case the couple had been married for
noted though, that this has very little significance thirty-eight years, lived and had all five children in
as the offence remains in all Federal Legislations. England. To divorce the woman, the husband turned
There are other circumstances in which single to Nigerian Courts where the wife was awarded a
women bear children such as “woman to wom- mere life interest in a property in Lagos. The wife
an” marriage, succession strategies, etc. Although sought relief under MFPA and got fuller and fairer
“woman to woman” marriage is referred to as a relief.13
marriage, in reality the woman is single for life. By It would also be noticed that all cases were insti-
this custom, sometimes a daughter of the family is tuted by women. This is because many men would
made to bear children for the family while remain- maintain the status quo one way or the other be-
ing single.11 cause usually in Nigeria, unless the man simply
This is usually done because it exists a son pref- throws her out, a woman would rather tolerate the
erence. Thus, where a wife does not bear a male is- situation as having a man’s protection is preferable
sue, her daughter may be made to fall in her shoes to to any incidental psychological or actual injury she
bear such issues. Needless to add that this may never may suffer from remaining in the liaison.
happen as often times, this daughter will have all fe-
male issues. At other times, a woman simply choos-
es to be treated as a man and, therefore, marries an- 3 Marriage, Contract, and the Child
other woman to bear her children. At some other
time, a wife who is unable to bear children marries The majority opinion resp. majority view is that
another woman for her husband (Akpamgbo 1985). marriage in the English law is a contract between
There are other variants, but the Supreme Court of two persons to which civil consequences were at-
Nigeria since the 70s has struck down the custom tached (Marriage Laws 1863: 1). Some, however,
on the repugnancy doctrine.12 have noted that it is neither a contract nor an insti-
Some other customs require women to be sin- tution. In Nigeria and as in Da Costa v. Fasehun,
gle to be entitled to inheritance. Thus, the Ikweres’ marriage sometimes is conceived as a contract be-
of Rivers State of Nigeria are amongst this class. It tween two persons for which the state is a regulator.
follows that a woman may have children but must Under Nigerian customary laws the community had
not be married. This custom, therefore, is a species no specific interests in marriages. It was a private
of the “woman to woman” marriage, although not family arrangement to which members of the com-
cloaked a marriage. munity merely took notice as observers. As has been
Invariably, men would prefer that Nigeria is the noted above, the state intervention is a relatively re-
forum conveniens of adjudications on disputes re- cent introduction in the course of the colonisation.
lating to marriage. In Agbaje v. Akinnoye-Agbaje The consequences of marriage as a contract and
its privileging by the state affect the parties in very
11 Akpamgbo (1985); Uzodike (1990); Oboler (1980); Greene unique ways, bringing with it legal, social, and psy-
(1998). chological benefits when they marry, while they are
12 The custom, however, has support from many notable people married, and when it ends (R – on the application
from that part of the country and, therefore, is obeyed more of Baiai & Ors – v. Sec. of State for the Home De-
in breach than in obedience. To shore up her position on ille-
gitimacy being a safeguard for marriages, Uzodike supports partment 2008).
“woman to woman” marriage, otherwise in the light of her However, the case in Nigeria requires closer
plea for the retention of common law illegitimacy it would scrutiny. A monogamous marriage as a contract has
be difficult to rationalise this custom (1990). This custom
deserves to be put to extinction, albeit, through legislative as
opposed to judicial action. This is because a judicial action 13 The wife in/of Egunjobi v. Egunjobi (1976) was subjected
will never achieve the desired result as the effect of case law to the strictest proof of her contribution and in the relatively
since then has shown and is likely to lead to an unjust out- more recent case of Adaku Amadi v. Edward Nwosu (1992)
come that would bring about disinheritance and perceived the her claim was totally dismissed as she was said not to have
“illegitimating” of people born under the custom. Current ad- shown any material contribution to the matrimonial property.
vocates of the common law illegitimacy may have been born In Ayangabyi v. Ayangbayi (HD/92/77 of Lagos State) 1, the
through this custom as a host of people and clans were born court declined to exercise the inherent jurisdiction by virtue
into this custom, not just in Nigeria but in other parts of Af- of sections 15 and 72 of the Matrimonial Causes Act 2004
rica (Oboler 1980; Greene 1998). (MCA) to settle property on dissolution of marriage.
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a major check which is bigamy and a major conse- a nullity. The deadness of bigamy in Nigeria is well
quence, i.e., succession rights. Indeed, the issues of illustrated by the fact that men would actually ac-
the marriage are not of immediate concern to the in- cuse themselves of an existing offence in the Crimi-
stitution of marriage except as it pertains to divorce nal Code and Marriage Act (see also (MO v. RO &
and succession. In Nigeria bigamy, which forms Rig Ltd. 2013).
the bedrock of sanctity of monogamous marriages, For a contract that would afford notice and ca-
as has been pointed out above, is a dead letter law. veat in law, registration must be uniform and means
Aside from this, the MA has now expunged sec- of notice easily accessible and verifiable. Where this
tion 36 of the previous Marriage Ordinance which is not the case, then a proprietary kind of right that
provided for automatic succession rights for a wid- is enforceable against the whole world cannot ex-
ow of a monogamous marriage. This provision is ist or arise, and if it is said to, it is unjust. Thus, the
reinforced by the provisions on devolution of land consequences of marriage, as aptly spelt out by Bar-
under the Land Use Act which recognises transfers oness Hale in Re P (Adoption Unmarried Couple)
only according to the customary laws of the area 2008, cannot in any good sense apply in Nigeria.
where the land is situate unless a Will provides oth- Even here, as the case so well indicates, the conse-
erwise (sections 24–26). In interpreting Wills in quences of marriage only extend to rights between
Nigeria, the Supreme Court has, however, put its the couple and not necessarily to children. For chil-
stamp of authority on patriarchy by stating that pri- dren, the overriding principle is what is in their best
mogeniture cannot be ousted by a Will (Idehen v. interest as autonomous beings. Thus, in all devel-
Idehen 1991: 382). It follows that monogamy, as oped jurisdictions a separate law is developed to
was known under the English law, is not quite the govern them and regulate their affairs.
same in the Nigerian law, at least, in practice. For Marriage in Nigeria confers only personal rights
a Nigerian man, divorce as a prelude to taking a and in the absence of automatic intestate succes-
second wife is often not an option (Taiga v. Moses sion for a spouse it does not signify the same thing
Taiga 2012: 219). It is easier not to bother with the as marriage under English Law. If marriage is a con-
cumbrous and slow processes of divorce and veer tract, then a breach of it can only justify such an
into the cushion of customary law (Jadesimi v. Oko- award of damages as contract affords specific per-
tie-Eboh 1996). formance and sundry remedies, which is actually
That contract envisages mutuality of rights is a engaged in the Nigerian circumstances.14 It is, how-
trite principle of law. But customary law marriage ever, settled law that a specific performance would
invariably results in a woman being divorced at will. normally only be granted in respect of such con-
In Solomon v. Gbobo 1974), Holden CJ refused to tracts affecting irreplaceable or invaluable items
enforce a rule of customary law that did not give the such as land, and even then this is by principles of
wife the same right. equity. The most readily awarded remedy for the
Customary law marriages have a fluid or flexi- breach of a contract is damages. At any rate at the
ble pattern, usually unregistered and potentially po- point a marriage has or about to hit the rocks, it
lygamous. The statutory variant affords no certain- could not qualify for irreplaceable.
ty or security (Agbeja v. Agbeja 1985). In this case, Assuming that the law would often grant a spe-
the second wife took every precaution by marrying cific performance concerning a breach of the terms
first, under customary law in England and then at of a marriage contract (this may be deduced from
the Marriage Registry in Lagos, yet the marriage the several provisions made towards reconciliation
was held void. Although it must be noted that de- of a couple and divorce as a last resort by the MCA),
claring this marriage a nullity was wrong, because it would still not detract from the society’s right to
since the first marriage that was upheld was custom- exact responsibility and accountability from adult
ary and hence potentially polygamous, the least the parties for a child in or out of wedlock or deprive a
second marriage would be is a polygyny. In respect child of inalienable rights and dignity. The law im-
of Moses Taiga v. Taiga (2005), in the Nigerian t rial plies a contract to accept all the natural consequenc-
the petitioner claimed that there was no marriage es of sexual relations.15 Furthermore, a contractual
and that the ceremony relied on by the wife was relation with one party does not preclude another
one for paternal acknowledgement of the children.
This is very unlikely, as paternal acknowledgement 14 Regarding how Nigerian courts have dealt with distribution
in Nigeria does not necessitate any elaborate cere- of property on divorce see Chinwuba (2011).
15 In the old case of Hegarty v. Shine (1878) it was held that
mony. The petitioner also claimed alternatively that a woman who had sex with a man and contracted a disease
if it was a marriage, then being still married to his having consented to the essential act of sexual intercourse
wife under the Act such a subsequent marriage was consented to all its natural consequences. It is certainly sen-
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contract with a different party (or parties) on other At common law, the view is that the state had an
terms and on such conditions which are acceptable interest not just in the contract between the parties
to the parties. It cannot also justifiably stand to prej- but also in legitimising sexual relations and secur-
udice the rights of an innocent party to whom one ing succession of legitimate heirs to family property
party to the contract extends another contractual re- (R v. Sec. of State for the Home Department 2008).
lationship, insofar as the contractor is not incapaci- The place of property has always been on a ques-
tated from doing so. This latter fact must be easily tionable pedestal in English law.16 In modern times,
ascertainable. testate succession, pre-/anti-nuptials, trust, and the
At any rate, once a child is born, it should always evolution of charity as trust have displaced the high
be recognised that another contract has been formed esteem of marriage. Concerning legitimisation of
implicitly with the child by both parents, whichever sex, this perhaps was based on the almost univer-
of them has gone beyond the terms of the extant sal perception that a woman’s body is an object of
contract. The main consequence of marriage and the sex. Nowadays, the uniqueness of a woman lies in
origin of illegitimacy can be seen to stem from suc- motherhood which in turn has been influenced by
cession to the property of a patriarch. In Nigeria, medical advancements. In Nigeria, since independ-
these consequences are absent as distribution does ence the English law on marriage has not played
not fall in the same manner as the English laws, any significant role on devolution while under cus-
whether by testacy or intestacy. At any rate, the cur- tomary law marriage has no role in the devolution
rent position even with respect to distribution, as has of property. It follows that the legitimacy of state
been seen in the cases analysed above, is that in the intervention in marriage must be looked for else-
absence of a Will the property of a deceased father where.17 As Eekelaar notes, “… whereas marriage
will be divided equally. used to be a socially prescribed context for the ex-
The problem with sanctity of marriage, therefore, ercise of long-term sexual relationships and, in par-
cannot be addressed from illegitimacy and must be ticular, the raising of a family, the strength of that
sought elsewhere. If marriage is a contract, the le- social prescription has declined, for many to vanish-
gitimacy of which is in perfection and notice (also ing point” (2007: 431).
provided for other forms of contract), then breach- It has also been stated, that: “[t]he Law of Eng-
es in relation to same is rationally in damages. The land says that marriage is a contract resulting in a
logic of a civil contract producing a criminal sanc- status … The Catholic Church gives an answer dif-
tion is unclear and as has been demonstrated above fering only in one word; marriage is a contract re-
will remain so to the majority of Nigerians. sulting in a relationship … Now, relationship dif-
fers from status in this: that it is a God-made thing,
which man cannot alter” (E. G. M. 1932: 294).
4 Legitimacy of State Intervention But what does status entail, in fact? It can mean
in Marriages no more than affording notice to other people and
securing the marriage/contractual terms to the par-
In Nigeria, marriage cannot be legitimately per- ties. This has been the main objective of legislation
ceived as providing a legitimisation of sex. The role on marriage in developed nations. The success of
of sex is taken for granted in the normative basis of which has been the subject of much academic writ-
marriage under customs as well as indeed under the ing (Barlow and James 2004). In Nigeria, as has
statute. The same may in fact be said of procreation. been demonstrated, legislation has offered very lim-
Thus, it is not unusual to see wives who have no ited security. When one speaks of status, it is impor-
children in marriage loved by the husband and his tant to find out what this entails. Does the state actu-
family till the end. The resolution was not in divorc- ally add anything new to the standing of the parties
ing her but in polygamy and its variant of “woman after marriage? It appears that the answer is in the
to woman” marriage. Marriage in Nigeria tends to
focus more on a man’s responsibility. Thus a man is
16 It is only recently that tort law has began to shift the empha-
considered a responsible member of society when sis, which English law placed on property, even almost above
he is married. For the woman marriage represents that on the welfare of the person as evidenced by the develop-
respect and acquisition of status in society. Marriage ment of negligence and strict liability torts.
gains her admission to the ranks of protected per- 17 Moreover, it may be that state intervention in marriage and
sons, that is, the security afforded by a man. by implication in sex is overstretched. It may be that it is the
attention on marriage that has elevated sex to an undeserving
height in human relations, because life, whether male or fe-
sible to extend this to the positive aspect of sexual relation- male, can be fully actualised without both and relationships
ships. thrive first in better matters than sex.
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negative and the state adds nothing to the original sued for in modern times for breach of the parties
intendment of the parties to be married other than rights to privacy. The right of privacy for family life
to provide guidelines on breaches of the express and and correspondence is not only enshrined in inter-
implied terms of the contract called marriage. national and regional instruments but also in sec-
One wonders then, whether there is in fact any tion 37 of the Constitution of the Federal Republic
difference between what a state does in enacting of Nigeria.
a Marriage resp. Matrimonial Cause Act and a Bill This mix-up as to what marriage is or is not has
of Sales Act resp. Civil Procedure rules? In respect resulted in placing marriage in a privileged position
of the wedding referred to Western-type marriages on human affairs. In Nigeria, the MCA, for instance,
and the symbolisms for customary-type marriages provides for paternal presumption in a curious man-
one can only wonder whether this is the business ner. By section 84 it provides: “Notwithstanding
of the state as say, for instance, “my taking of the any rule of law, in proceedings under this Act ei-
Holy Communion,” “one’s taking of a blood cove- ther party to a marriage may give evidence proving
nant with a sweetheart,” “or swearing to an oath be- or tending to prove that the parties to the marriage
fore a shrine.” If the state has no business with these did not have sexual relations with each other at any
matters, then the basis of some of the involvements time, but shall not be compellable to give such evi-
of the state in this matter appears worrisome, such dence if it would show or tend to show that a child
as the requirements for divorce which sometimes born to the wife during the marriage was illegiti-
necessitate revelations of very intimate aspects of mate” (Matrimonial Causes Act, Cap M7, Laws of
the parties’ private lives, eliciting a criminal offence the Federation 2004). Other provisions include join-
from the breach of a civil marriage agreement be- ing of adulterers and claims for damages etc.
tween two persons and incarcerating a fourth party This has led to struggles for extension of its priv-
for life who has no remote connection with the mar- ileges to several other relationships. This privileg-
riage agreement. ing is quite in order if the institution is under the
More recently, Munby J. states: “It seems to me auspices of organisations that have the power not
that … these observations about the husband’s duty only to privilege one set of people over others but
to protect and maintain and the wife’s duty of sub- is not run with taxpayer’s funds nor run in trust for
mission have now to be read with very consider- the whole of society. That the state’s intervention in
able caution. Indeed, I doubt they any longer have marriage is based on securing order is not sustain-
any place in our contemporaneous understanding of able because that is the overall function of the state
marriage … as a civil institution whose duties and even for singles.
obligations are regulated by the secular courts of an Lord Millet in the case of Ghaidan v. Godin-
increasingly secular society. For, although, we live Mendoza (2004: 557, 591) makes a noteworthy ob-
in a multicultural society of many faiths, it must servation:
not be forgotten that as a secular judge my concern There is, indeed a paradox at the heart of modern society.
… is with marriage as a civil contract, not as a re- For centuries the civil and canon law, the common law of
ligious vow” (Sheffield City Council v. E & Anor. Europe as it has been called, did not require any form of
2004: EWCH 2808, par. 116). religious or secular ceremony to constitute a marriage.
Affording security has also been the experience Persons who openly set up home together and lived to-
of the role of the law in other areas of civil law such gether as man and wife were presumed to be married; and
as commerce and property. Here it has been work- if they had consummated the marriage they were married;
ing well enough providing rights of preferences and marriage was by habit and repute. The combined effect
pursuits for parties who have deployed the help of of the Council of Trent and the Marriage Acts put an end
the state to secure their contracts by following due to all that. But there is nothing new in treating men and
women who live openly together as husband and wife as
processes. Thus it is not clear why the same princi-
if they were married; it is a reversion to an older tradition.
ple is overstretched with respect to marriage. Secu-
rity, therefore, is not a premise for the state to mix It means that even the English did not find mar-
up itself so intimately with the business of the par- riage in its present form. It is still the habit today
ties or the marriage itself. Some of the provisions of that the woman in cohabiting arrangement is de-
the MCA taken from a mix of the English and Aus- rogatorily referred to as “common law wife.” Love
tralian Acts of a similar era which may still be called was the premise for men and women being togeth-
matrimonial offences, and some which are aimed at er. There is no historical data indicating that the era
keeping the parties against their wishes, such as is- was a chaos. In Nigeria, marriage has always been
sues relating to incapacity to consummate marriage, accompanied by gestures and ceremonies. Uzodike
are in fact interferences for which the state may be states that marriage is meant to be for procreation
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under Nigerian customary laws (Rahmatian 1996: 5 The Relevance of the Doctrine of Illegitimacy
292). But if this were the case, there would be noth- in Contemporary Nigeria
ing like “woman to woman” marriages. Although
viewed on the surface, this institution appears to aid In an inaugural lecture titled “Trends of Human
only succession, this is not quite the case. The cer- Rights Campaign in Family Law” a strong call was
emony is done usually where the wife in issue is in- made for many positions, one was for retention of
valuable. Thus, it is the love between the initial par- the doctrine of illegitimacy in Nigerian jurispru-
ties to the marriage that necessitates the initiation of dence.18 The lecture stated that abolishing the status
the marriage ceremony. of illegitimacy, specifically the common law brand,
The point being made here is that even in tradi- “will undermine the institution of marriage and its
tional Nigerian societies romantic love and affec- role in our social life and structure” (Uzodike 2011:
tion played a significant part in marriages. At this 51, 26–30). The lecture also stated that illegitimacy
time, there were women who for one reason or the should be retained to punish the “parents of an ille-
other were single. Being a single woman, in many gitimate child” for their misdeeds (51, 26–30). Ac-
parts of Nigeria was not abominable even before cording to the lecturer, “although Ige JCA held in
colonisation. Salubi v. Nwariaku that section 42 (2) of the Consti-
The definition, content, and incidents of marriage tution of the Federal Republic of Nigeria abolished
on earth cannot be left to the dictatorship of alien the status of illegitimacy, the writer’s position is that
beings, for if that were the case, it would not need a the language of the constitution is clear enough to
seer to discern that the institution which will evolve show that section 42 (2) is not concerned with the
will end up as a crash site for the vessels of the invad- abolition of the status of illegitimacy but is out to
ers. This is well captured by Borten (2002: 1128): ensure that illegitimate persons shall not suffer any
Reproductive technology, evolving notions of personal
disability or deprivation merely because they were
privacy, and perhaps the recognition that the law cannot born illegitimate. However, until the Nigerian Su-
effectively control sexual activity, have combined to make preme Court rules on the matter, it remains incon-
the case for marriage as regulation of sex less compelling. clusive especially with the differing opinions in the
The legitimate concern with family stability remains, but Court of Appeal (Uzodike 2011: 29).19
there are better predictors of stability than the fact that a As Silberman states, “ideas have consequences
sexual relationship exists between the parties: Cohabita- … even those that may be thought by some to be sil-
tion, joint ownership of property, and the joint custody of ly and those that seem put forward merely for their
children are all factors that indicate the social desirability shock value. Remember ideas have consequences”
of, and a good prognosis for, stability. Yet sex remains the (Atsenuwa 2013: 1, fn. 1). Thus, if a common law
central “term” of the marriage relation to this day accord-
position of the mid ages that has been attacked as
ing to the letter of the law and the assumptions of those
hoping to broaden it to include same-sex relationships. In
barbaric and brutal (Van Doren 1916), a shame
the absence of a practical reason for maintaining a sex- (Henaghan 2008), and reformed both by its patri-
based conception of marriage, irresolvable conflicts over archal judiciary and legislation as well as regional
sexual morality dominate the debate and distract us from and international instrument is being canvassed as
an examination of what it is we realistically expect civil law of modern Nigeria, it must be taken to intend to
marriage to do for society. The banality of M. T. v J. T.’s shock, and as ideas do have consequences, this one
analysis, by casting a harsh light on the sexual basis for requires repudiation.
traditional marriage, can perhaps point us in a new direc- First of all, the Nigerian Supreme Court had ad-
tion, towards a redefinition of marriage and family that is judicated this case which is reported as Re P (Adop-
not only more inclusive, but which even better fosters the tion Unmarried Couple) 2003 – 7 NWLR (Pt. 819)
stability, responsibility, and commitment that we have al-
ways relied on family law to promote.
18 Uzodike takes the position that “adoption is strictly to pro-
Aguda suggests that the scope of the state’s in- vide childless couples who craved to have children with chil-
volvement in marriage should be limited to record- dren and not really to find homes for unwanted and orphaned
children” (2011: 22–25). However, see Re P (Adoption Un-
ing (1971: 123). To this end, he recommends that married Couple) 2008. Women’s inheritance rights should
all marriages, customary, Islamic, and statutory be protected by human rights standards and not the law as it
should engage compulsory registration. This sug- is or as it is under customary law (Uzodike 2011: 35–45, 52
gestion must be taken to mean that the state’s duty §§ 2, 3).
is to provide notice to other persons. In his view, the 19 Section 42 (2) of the Constitution of the Federal Republic of
Nigeria states that “no citizen of Nigeria shall be subjected
question of advantages and responsibilities should to any disability or deprivation merely by reason of the cir-
be left to the parties, their families, and religious af- cumstances of his birth” (Cap. C23, Laws of the Federation,
filiations. 2004).
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