Prior to the European incursions into the territory described today as Nigeria, marriage was contracted under the customary laws of the various local areas and ethnic groups. The conflict between customary law and common law is a theme that permeates the history of colonialism in Africa. In the English speaking colonies, customary law was, according to Allott, recognized as a result of treaties, the economic benefit of allowing traditional leaders to handle traditional disputes instead of government courts, the idea that English law was too advanced to be understood by traditional communities and the fear of conflict.
The so-called repugnancy test was introduced in Nigeria by the end of 19th century via the received English laws to test our customary law for acceptability, and owes its origin to the medieval period and the evolution of English equity. Hooker states that repugnancy is a term used to indicate that customary law will not be admitted if repugnant to justice, morality, or good conscience. However, while bye-laws originate from the people and it is civil in nature, customary laws are based on customs and tradition and therefore may not have universal acceptability like bye-laws.
However, with the advent of colonial rule came the establishment of another system of law, with some local adaptations, which would govern another form of marriage that would serve the interest of the foreigners, and some willing locals that would desire to contract marriage under that new branch of law. This led to the duplication of the marriage laws in Nigeria. We had marriage under the customary law and marriage under the statute. These two forms of marriage have their unique characteristics, and are different with regard to the regulating laws, formation, duties, relationships, rights and liabilities; and even dissolution and inheritance. The statutory laws also empowered the same couple who contracted a customary marriage to also go into a subsequent statutory marriage. The later statutory marriage had been held severally to subsume and supersede the earlier customary marriage. This means that the incidences of the subsequent statutory marriage supervene.
However, very little, if at all any, has been said about a situation where a couple who contracted a statutory marriage decides to go into a subsequent customary marriage. To worsen the matter, the Marriage Act banned and criminalized this practice. It invalidated such subsequent customary marriage.
However, despite this ban, the practice persists and is currently indiscriminately practiced. It has become a norm.
The question now is whether the Marriage Act has what it takes to dictate to customary law how it can operate as in between the same couple in pursuit of dual marriages under the dual systems. While the Marriage Act can determine the requisite status of intending persons before contracting statutory marriage, can the same Marriage Act determine for the Customary Law who comes before it for the contraction of customary marriage?
Section 35 of the Marriage Act states:
Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law, but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.
This section is specific that customary marriage succeeding valid statutory marriage is invalid, criminal, and in fact, no marriage at all. For a couple that undertakes a subsequent customary marriage after an earlier statutory marriage, the earlier statutory marriage is what exists between the couple to regulate their relationship. This is because, according to this section 35, the subsequent customary marriage did not happen.
The literary meaning of this section is that although a couple is statutorily permitted to undertake a concomitant statutory marriage after a prior customary marriage without any further requirements, the same couple cannot undertake a concomitant customary marriage after a statutory marriage as between themselves unconditionally. The couple is therefore required to divorce under the Marriage Act and become unmarried before they can undertake customary marriage. This appears baseless, discriminatory, subservient, divisive, condescending of customary law, and preposterous in law and fact.
The wisdom in the statutory order of procedure of only contracting statutory marriage after an earlier customary marriage rights as in between the couple is to preserve the inherent intendment in the contraction of a statutory marriage. Statutory marriage is monogamous while traditional marriage is polygamous. The two can only coexist in the Nigerian laws as in between a couple if the customary marriage came first. If not, the subsequent customary marriage is a nullity.
It is submitted with respect that only the Customary Law can determine the requisite status of prospective persons that can contract customary marriage, and not the Marriage Act. The Marriage Act can only invalidate statutory marriage not conducted according to the Marriage Act or if conducted according to the statute, an incompatible customary marriage was contracted subsequently. Marriage events under another system of marriage that happen subsequently after a statutory marriage will lie in the competences of the subsequent system of marriage to invalidate and subsume the prior statutory system.
Literature Review.
The Nigerian laws permit the same couple to contract marriage under two different systems of the law, namely Statutory and Customary marriages. The Marriage Act, which regulates Statutory Marriage, permits the same couple to subsequently engage in a Statutory Marriage after a prior Customary Marriage. Customary laws and practices in Enugu state also permit the same couple who had a Statutory Marriage to engage subsequently in a Customary Marriage. The formation and dissolution of this dual marriage, and the rights and obligations of the parties to this order of marriage have been enshrouded in controversies. There is at the moment, to the best of the knowledge of this researcher, any legislation that has specified the mode of formation, dissolution, rights and obligations of the parties to this category of marriage; instead, each form of marriage is regulated separately by its own regulating laws. While the Statutory Marriage is regulated, with regard to its incidents, formation and dissolution, and the relationships, rights, duties and obligations of the contracting parties by the Constitution, the Marriage Act, the Matrimonial Causes Act, Childs Rights Act, the Interpretation Act, the Wills Act etc; the Customary Marriage and its incidental matters are regulated by the customs of the people, the Constitution, and state Customary Laws. However, a large ground has been covered by case laws with regard to the rights and obligations of all the parties involved after the dual marriage, particularly where a Customary Marriage is followed by a Statutory Marriage.
Nothing, however, has been said locally, both in the case laws or our legislation, as regards the rights and obligations of parties to this dual marriage that had a subsequent Customary Marriage posterior to a Statutory Marriage. Where a Customary Marriage is succeeded by a Statutory Marriage, contracted by the same couple, the views of the courts are not in complete agreement. There are basically two views: the minority view, typified by the cases of Asiata v Goncallo and Akparanta v Akparanta, is that the two marriages exist side by side, the relationships, rights, duties and obligations of the parties being regulated by the two laws. On the other hand, the majority view is that the subsequent Statutory Marriage swallows and supersedes the earlier Customary Marriage. This latter view has been expressed in the cases of Ohochukwu v Ohochukwu, Oseni v Oseni and Shediya, Okon v Administrator-General, Cross River State, Jadesimi v Okotie-Eboh & two Others , Ali v Ali, and the opinion expressed by Professor Nwogugu.
Domicile:
Domicile has been defined as the legal, and normally also the factual, relationship between a person and a territorial area subject to one system of law which arises either from his residence there with the intention of making it his permanent home or from its being, or having been, the domicile of some person on whom he is for this purpose legally dependent. It is the basis for institution of matrimonial causes in Nigeria.
Domicile should not be confused with nationality and residence. Residence has been defined as dwelling permanently or for a considerable time, to have ones settled usual abode, to live in or at a place. Thus a person could reside in more than one place at a time. Nationality has to do with the country to which a person owes political allegiance as a citizen. On the other hand, domicile is the persons permanent home; it deals with the legal system which will determine the personal law applicable to an individual. A person can have one domicile at a time; and can only acquire another domicile after abandoning an earlier domicile. Domicile could be by choice, origin or dependency. There is one Nigerian domicile for matrimonial causes even though the Matrimonial Causes Act has imbued a Nigerian with both state and federal domiciles.
Personal Law:
The personal law of a person is the system of law in the domicile of that person that determines the applicable law to the individual. Domicile is the test of personal law in matters of status. Personal law does not necessarily mean personal faith or religion, because an atheist also has a personal law. In Nigerian, there are only two types of personal law, namely Statutory law and Customary (Islamic) law. It is noteworthy that Christian traditions and usage are completely excluded from issues of personal laws. In proper settings and adequate legislations, the courts have construed that Islamic personal laws are subject to the customary practices of the area in question. Thus, pure Mohamedian personal law may not (and in our opinion, need not) be a valid personal law in any part of Nigeria. Even if a pure Islamic law is accorded recognition as a valid personal law in Nigeria as provided, it is not unimpeachable because it must be construed in strict subjection to the validity tests discussed subsequently. Although in Nigeria, personal law is sine qua non in matters of status and regulation of personal effects of an individual, yet, because of the duality of our laws, and the necessary admix of these laws in the plurality of their consequences, no personal law is completely independent of the other; and thus, Nigerian personal laws are not mutually exclusive, sacrosanct and unimpeachable. The streams, although they flow in separate pipes, could still feed the same river.
THE LEGAL FRAMEWORK OF MARRIAGE IN NIGERIA
The legal framework of marriage presents some difficulty in Nigeria because of the dual personal laws capable of application to an individual; thereby necessitating different systems of marriage possible, that run concurrently some times, and admix some other times, with the consequence that a good knowledge of the diversity in the systems and types of marriage, has become indispensable criteria for full understanding of the legal import of a couple contracting any forms of marriage, and in a particular order. In Nigeria currently, and since Independence, there are only two systems of marriage, namely Statutory and Customary systems of marriage. The Statutory marriage is regulated by the federal laws while the Customary Marriages are regulated by the customary laws of the people, and some state laws.
Federal Marital Laws: The Constitution.
The foundation for the regulation of marriage in Nigeria was laid down in the Constitution of the Federal Republic of Nigeria, 1999, as amended. According to the Constitution, at its Second Schedule, Legislative Powers, Part I, Exclusive Legislative List, contains as its Item 61: The formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto.
The necessary legal implications of this provision include:
That the formation, annulment and dissolution of marriages under Islamic Law and Customary Law including matrimonial causes relating thereto are not in the Exclusive Legislative List, and therefore are not regulated exclusively by the Acts of the National Assembly.
That a above, being a provision also not in the Concurrent List of the Constitution, has dispatched the formation, annulment and dissolution of marriages under Islamic Law and Customary Law including matrimonial causes relating thereto to the residual competences of states.
That the constitution recognizes Islamic and Customary marriages as forms of marriage in Nigeria, and
That the formation, annulment and dissolution of any other forms of marriage, not being Islamic and Customary marriage, including matrimonial causes relating thereto, must be regulated exclusively by federal enactments.
Since Independence, however, the only form of marriage ever created and regulated by our federal laws is the Statutory Marriage. The federal laws relevant in this respect include the Marriage Act (which establishes the conditions and formalities for the celebration of a valid monogamous marriage in Nigeria) and the Matrimonial Causes Act (which regulates annulment, dissolution of Statutory Marriage, and other matrimonial causes of Statutory Marriage). Other laws that apply to the incidents of a Statutory Marriage include the Childs Rights Act and received English Laws as far as the local legislation permits.
An important discovery from Item 61is that the conditions and formalities, as well as the regulation of the “matrimonial causes” of a Customary Marriage adequately and properly falls within the scope of the residual competences of the states and their customary groups. An unmitigated implication of this reasoning is that a condition, like the stipulations of the valid age of the parties to a Customary Marriage, for instance, is without the scope of an Act of the Federal Legislature; only states can stipulate the marriageable age for Customary Marriage. Thus, Child Rights Act, 2003, only regulates the marriageable age for Statutory Marriage.
My position is even strengthened by section 29(4) of the 1999 CFRN which provides that for the purposes of subsection (1) of the section, that (a) full age" means the age of eighteen years and above; (b) any woman who is married shall be deemed to be of full age. Our Constitution, thus, recognizes that a marriage could be contracted at an age below eighteen years (which is compatible with some Customary and Islamic practices); and the Federal Legislature cannot validly obliterate this constitutional provision without a constitutional authorization. On this point, and as argued elsewhere in this work, the capacity to stipulate the conditions (including marriageable age) for a valid Customary Marriage is divested from the authorities of the National Assembly; but the marriage customs of the customary groups must pass the validity tests for such customs to become valid and enforceable.
Church Marriage is alien to our constitution and thus not enforceable in our courts. The only forms of marriage recognized by our laws are therefore Statutory, Customary and Islamic marriages. One may then ask: Why include Islamic Marriage and not Christian Church Marriage in the Constitution? The reasons may not be far-fetched. Statutory Marriage was more or less an importation of the English Christian Marriage law (which determines the Personal Law of an Englishman), into Nigeria; as it was a form of marriage readily identifiable with Christian Missionaries. The celebration of the marriage was also in a licensed place of worship and by a Minister of God. Most Christians, however, observe the provisions of the Acts in breech, when they contract the Christian Marriage. The Marriage Act also preserved the validity of Customary Law when it declared:
Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law, but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.
State Marital Laws: State Customary Laws and Customs of the People.
Customary and Islamic law marriages lie within the competences of the customs of the different cultural groupings and ethnicities as guaranteed by the Constitution. Therefore, customary laws are specific to an area, unlike statutes which are for a more general population. The expression, an area suggests that judicial notice cannot be taken in one cultural group and be applied to another cultural group. In a nutshell, it can be argued based on the present circumstances that customary law satisfies the attributes of law. This is because, it is a norm of obligations made by a legal authority, for which there is enforcement by organized agencies for the purpose of serving certain functions as social control, disputes settlement and so on.
While the formation and dissolution of this form of marriage could be validly determined by the customs of the people, subject to the repugnancy and validity tests, the incidents of this form of marriage have become the subject matter of state laws. Thus, some states have attempted to legislate for a uniform cost of Bride Prize etc contrary to the custom of some involved customary groups and peoples. It is beyond contention that any matters within the sole legislative competences of the State House of Assembly (that is to say residual matters) consist of matters not in both the Exclusive and Concurrent Legislative Lists of the 1999 Constitution, as amended. However, the Constitution is specific when it recognized, secured and guaranteed the Customary Marriage as a form of marriage. It therefore appears that where the customary law passes the repugnancy and validity tests, the state legislature may not have been vindicated in any attempt to legislate on or modify the Customary Marriage of a given people, notwithstanding that the state could legislate on any matter in the residual competences.
Conflict and Supremacy of Laws.
The realities of the existence of two systems of marriage law in Nigeria make a conflict of laws inevitable. Which law should take precedence in the situation where there is a conflict? Which law is superior? Which law should regulate the marriage of villagers who contracted Statutory Marriage; is it the statute or the custom of their place? Which law or laws would regulate the relationships, rights, duties and obligations of a couple that contracted under both systems of law? Conflicts may even arise between two native customs. Many views have been expressed with regard to the resolution of conflict of laws regarding marriage law conflicts. Kasumu and Salacuse opine that the courts have to pay more attention to the intention of the parties, as well as their manner of life, to decide which law to apply to their marriage.
Enemo, however, is of the opinion that the form of marriage contracted may determine the applicable law, provided that couples are well advised before entering into any form of marriage. This view may not stand firm in the face of the statement of Cumming Bruce J. that personal intention is irrelevant to the legal consequence of a validly celebrated marriage. Suffice it that the above submission is true, which law would regulate the rights and obligations of a couple that contracted under the two systems of our marriage laws? Is it the statutory or the customary law; and why? It is submitted that the two systems are of equal standing, and one cannot be said to be superior to the other, with both deriving equally from the Constitution as the ultimate source of all laws in Nigeria. Therefore, the supersedence of either of the systems to regulate a concomitant marriage in-between the same couple cannot be discovered by alluding to which form of marriage that is superior to the other. We shall look elsewhere to discover which of the forms of marriage that would supersede and regulate the rights, duties and obligations of such a couple.
The test for the validity of the application of Customary Law appears to have placed the customary laws at a subordinate level to local legislations. This is notwithstanding the statutory guarantees for customary laws which serve a given customary population as opposed to statutes which are mostly civil laws serving admix of customary populations.
All rules of customary law are subject to certain general tests of validity before they can be enforced. There are three such tests. The first is that the customary law is not repugnant to natural justice, equity and good conscience. The second is that it is not incompatible either directly or by implication with any law for the time being in force. The third is that it must not be contrary to public policy.
(a) The Repugnancy Test: The repugnancy test of the Evidence Act of the laws of Nigerian states that a court should not enforce as law a custom which is repugnant to natural justice, equity and good conscience. Therefore, no customary law should obstruct the rules of natural justice like the right to be heard, liberty and freedom of association.
(b) Incompatibility with Local Enactments: Although it has been established that both statutory enactments and customary laws are sources of law in Nigeria, the incompatibility test has undoubtedly ranked local enactments above customary law. This means that customary law which is not compatible with any existing enactment ought not to be enforced by the courts. The argument is that existing customary laws must not be incompatible with any written law .
(c) Public Policy Test: This means that a custom shall not be enforced if it is contrary to public policy. The idea of public policy here implies the principle of judicial legislation or interpretation founded on the current needs of the community. Anything that offends morality is contrary to public policy. That is moral values and ideas which are prevalent in a society as a way of preserving its interest. Where a transaction is contrary to the policy of the laws or public policy, the law refuses to enforce or recognize it on the ground that it has a mischievous tendency so as to be injurious to the interests of the state or the community. This law is predicated on the interest, be it welfare, safety or advancement of the society at large.
While it may be possible to resolve issues of conflict of laws between the federal and state laws with regard to Items in the Concurrent Legislative List by applying both the doctrine of covering the field and the prevailing of federal law over state laws in time of conflict as it pertains items in the Concurrent List CFRN), the same could not be said about a conflict of laws between federal laws and state laws when both organs of government are acting and exercising their powers in their exclusive competences (Exclusive and Residual competences) as both arms of government are empowered to exercise by the CFRN. Thus, it has been recommended by this researcher that Marriage should be regulated either by state laws or the federal laws, and not both at the same time.
Jurisdiction.
The original jurisdiction to entertain matters of Statutory Marriage lies with the High Courts of the State, while the original jurisdiction to entertain matters of the Customary Marriage lies with the customary courts. The original jurisdiction to entertain matters of marriage by the same couple contracting under statutory and customary systems concomitantly, regardless of the order of occurrence of the two marriages, will lie with the High Courts of the states.
THE VARIOUS FORMS OF MARRIAGE IN NIGERIA
The form of marriage contracted by a couple could impact greatly on their relationships, rights, duties and obligations; and the impact of contracting under the two systems concomitantly by the same couple may yet be more complicated for the couple.
Forms of Marriage in Nigeria.
The only systems of marriage recognized and enforceable under Nigerian laws are the Customary (and Islamic) marriage and the Statutory Marriage.
Statutory Marriage.
The formation, dissolution, rights, duties and obligations are regulated by the federal statutes regulating marriage. A statutory marriage is validly contracted if the Registrars Certificate or Special License is validly obtained; and a Marriage Certificate properly issued and filed. Under the statute, husband or wife has the right to their spouses consortium, there is wifes right to use husbands name, right to matrimonial home and sexual intercourse, mutual protection, marital confidence, and the wife is her husbands agent. Testate succession in statutory marriage is regulated by the various statutes regulating testate succession. Under Statutory Marriage, intestate succession in Enugu state is regulated by the Administration and Succession (Estate of Deceased Persons) Law 1987.
Customary Marriage.
The formation, dissolution, relationships, rights, duties and obligations in a Customary Marriage are regulated by the customs and usage of the various customary groups, peoples and ethnic identities.
Hon. Justice Narebor gave a definition of customary law to be;
... a rule of conduct which is customarily recognized, adhered to and applied by the inhabitants of a particular community in their relationship with one another within or outside the particular community and which has obtained the force of law, in that non-compliance with the rule or custom in question attracts adjudication and possible sanction.
Some states legislatures (relying on their residual competences and consequent upon the provisions of Item 61 of Second Schedule of the Constitution) have attempted to make uniform laws (which ought to be independent laws rather than marriage laws) in certain facets of the Customary Marriage system to regulate formation, dissolution, rights and obligations of the parties to the customary marriage. Although various communities exist within the boundaries of particular local governments, such local councils do not have authority to make laws that are customary in nature for the communities. The local governments only make bye-laws for the smooth operation of the local councils. These bye-laws are not binding on the customary courts. In contrast, the various state governments within which local governments exist, makes laws for the courts that operate at the local government level. This is irregular in law and contrary to the spirit of creation of customary jurisdiction and Local Government Areas in the Constitution.
Section 21, Childs Rights Act (which validly regulates marriageable age for Statutory Marriage) has attempted without success to regulate the age of parties to a Customary Marriage. It is submitted, in line with an earlier canvassed position, that any Customary Marriage that passes the validity tests shall stand, notwithstanding that the age of the parties do not comply with the provisions of the Childs Rights Act. If anything, it is only the CFRN or the state legislature, (not the federal legislature), that can validly make a law that can regulate the marriageable age for Customary Marriage in Nigeria; but such an age, not being in the Constitution, and the Constitution, having by implication of the law ousted the National Assembly from making laws regulating Customary Marriage, the Childs Rights Act, it is doubly submitted, cannot validly regulate the marriageable age for Customary Marriage; unless the state involved has adapted the Act as its state law.
Church Marriage.
Section 22 of the Marriage Act provides that: A Minister shall not celebrate any marriage if he knows of any just impediment of such marriage, or until the parties deliver to him the registrars certificate or the license issued under section 13.
This provision (taken together with section 33 of the Act) appears to forbid a Minister to celebrate any marriage until the registrars certificate is made available to him by both parties; and that a marriage celebrated by a Minister without a registrars certificate shall be declared null and void by the court. Section 33(2 & 3) of the Marriage Act states:
(2) A marriage shall be null and void if both parties knowingly and willfully acquiesce in its celebration
(a) In any place other than the office of a registrar of marriages or a licensed place of worship (except where authorized by the license issued under section 13 of this Act). Or
(b) Under a false name or names; or
(c) Without a registrar's certificate of notice or license issued under section 13 of this Act duly issued. Or
(d) By a person not being a recognized minister of some religious denomination or body or a registrar of marriages.
(3) But no marriage shall, after celebration, be deemed invalid by reason that any provision of this Act other than the foregoing has not been complied with
The provisions of sections 22 and 33 of Marriage Act and section 3 of Matrimonial Causes Act limit the validity, and the statutory enforceability, of a marriage celebrated in the church to those celebrated according to the above provisions of the Acts. According to Niki Tobi in Nwangwa v Ubani :
There is so much difference between the celebration of a statutory marriage and that of a church marriage. The celebration of church marriage as in the instant case is not one in accordance with the Marriage Act, and therefore has no statutory flavor. It merely gives divine blessing to the customary marriage which for all intents and purposes remains a marriage under the customary law.
Furthermore, the operation of the new personal law that permits only monogamy, which a man, who was previously subject to a personal law that permitted polygamy, makes his own, precludes him, if the first marriage subsists, from polygamous marriage to a second wife although he has not changed his religion, which permits polygamy. The only relevant determinant of the legal character of marriage is the personal law that is operational and applicable to the couple; not the intentions of the parties or the religion of the parties.
THE LEGAL IMPLICATIONS OF THE SAME COUPLE CONTRACTING MARRIAGE UNDER STATUTORY AND CUSTOMARY LAWS SERIALLY.
The legal implication of contracting marriages under two different systems of the law by the same couple can now be discussed; and the far-reaching legal consequences elaborated upon.
The Concept Of Supersedence.
It has already been stated that the same couple who contracted Customary Marriage can engage, as in-between each other, in a statutory marriage. According to sections 11(1) (d) and 47:
11. (1) The registrar, at any time after the expiration of twenty-one days and before the expiration of three months from the date of the notice, upon payment of the prescribed fee, shall thereupon issue his certificate as in Form C in the First Schedule: Provided always that he shall not issue such certificate until he has been satisfied by affidavit- (d) that neither of the parties to the intended marriage is married by customary law to any person other than the person with whom such marriage is proposed to be contracted.
47. Whoever, having contracted marriage under this Act, or any modification or re-enactment thereof, or under any enactment repealed by this Act, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to imprisonment for five years.
A couple who had Statutory Marriage can also engage in a subsequent Customary Marriage in-between each other. The former practice was in vogue in the past, but the latter is what is now in vogue among members of the Catholic Church in Enugu state. A subsequent Statutory Marriage has severally been held to supersede an earlier Customary Marriage, and the issue of the return of the Bride Price has been viewed as contractual rights rather than as rights arising from the relationship of husband and wife. The contract of marriage is thus separated from the marriage itself.
The Ratio in the Cases of Supersedence.
Ratio decidendi has been described as . that the principle of a case is found by taking account of: (a) the facts treated by the judge as material; and (b) his decision, as based on them.
Running through all the cases concerning the legal effect of the same couple contracting Statutory Marriage after an earlier Customary Marriage (and vice versa), are four basic principles: 1. Domicile; 2. The personal laws of the parties; and 3. The order of contracting of the two marriages. In all the cases, the later marriage always superseded the earlier one.
Domicile and the Applicable Law.
It is clear that personal intention is irrelevant to the legal consequences of a validly celebrated marriage. The personal law of a person is the system of law in the domicile of that person that determines the applicable law to the person. Domicile is the test of personal law in matters of status. It seems at the very least curious that a union originally polygamous, should change its legal character without any conscious act on the part of either of the parties immediately directed to that end. However, this anomaly is no other stranger than many other consequences of the English law which makes domicile the test of personal law in matters of status. Any other specific legislation, having the same intendment, would have had the same effect.
In summary, the domicile of an individual determines their personal law, with no regard to any further intentions that the individual may later form, as to the system of marriage they may find desirable. The persons domicile subjects them to a personal law in tandem with the domicile. The reality of a persons domicile, or the abandonment and taking up of another domicile, irrevocably impresses the person with the prohibitions flowing from the, or change of, domicile. It is however instructive that a Nigerian domicile carries dual personal laws (as against a sole personal law of an English domicile) with regard to systems of law governing marriage. Thus, unlike English domicile that precludes an individual from contracting a polygamous marriage, a Nigerian domicile permits both monogamy and polygamy. The personal law that would regulate the marriage of an individual, domiciled in Nigeria, would not be discoverable merely based on the domicile alone (as it is obtainable with English domicile), but on other elements of the ratio decidendi.
The Personal Law of Parties and the Applicable Law.
The problem that may sometimes arise is the question whether the capacity of the husband to marry is regulated exclusively by the law of the country in which he is domiciled. There has long been controversy between the most respected academic authorities on this topic. Diceys theory of dual domicile, propounded by Dr. Morris, in Diceys , and the views of Professor Cheshire , is qualified by what he terms, the law of intended matrimonial home. This view received its most prominent judicial expression in the observations of Denning L.J. in Kenward v Kenward.
In the past, Nigerian Courts, in contra-distinction to later decisions of the English Courts, held that a non-native had no legal capacity to contract a marriage under customary law in southern Nigeria notwithstanding that such non-native was domiciled in Nigeria. However, capacity to marry should be decided by the parties ante-nuptial lex domicili. In fact, it has been noted that it has been suggested that a marriage shall now be valid if it complies with the parties intended matrimonial domicile. Thus, a marriage, that is not void under the Lex Loci Cerebrationis, and valid by the law of the intended matrimonial domicile, is valid, notwithstanding that it is at variance lex domicili. The English Courts have insisted that a person domiciled in England must have capacity according to English law no matter where the marriage is celebrated, for that marriage to be valid. This same rule applies in Nigeria with equal ferocity.
The Order of which the Same Couple Contracts the two Marriages.
The principle of law applied in the main research cases above could be said to be that, where the same couple contracted marriages under two different systems of the law, the latter marriage supersedes the former marriage; and the relationship between the couple would be regulated by the law of the latter marriage. In both marriages by the same couple, there is no change of domicile, as both spouses are still Nigerians living and domiciled in Nigeria. The personal laws of the couple could still validly be the statutory law or the customary laws. The supersedence of a later marriage may only find explanations outside of the concept of domicile. It might be that the subsequent marriage swallowed the anterior marriage; a sort of a renewal of contract. The effect then becomes a replacement of an old set of contract or obligation with a new one; more like novation in contract law.
The Maxims of Equity and Supersedence.
It has been laid to rest that all reference to, and application of, English Law in matrimonial causes has been repealed. However, Sagay noted that the principles of common law, equity and rules of conflict of laws are still applicable to Nigeria, especially where they are not inconsistent with any statutory law. There is at the moment no statute in Enugu state and in Nigeria generally that regulates or resolves the conflict between Statutory and Customary marriages concomitantly contracted by the same couple. Below are the twelve Maxims of Equity that may be relevant to this work.
1. Equity will not suffer a wrong without a remedy.
2. Equity follows the law.
3. Where there is equal equity, the law shall prevail.
4. Where the equities are equal, the first in time shall prevail.
5. He who seeks equity must do equity.
6. He who comes into equity must come with clean hands.
7. Delay defeats equities.
8. Equality is equity.
9. Equity looks to the intent rather than the form.
10. Equity looks on that as done which ought to be done.
11. Equity imputes an intention to fulfill an obligation.
12. Equity acts in personam.
All the Maxims are relevant to this work but it appears that numbers 3, 4, 8, 9 and 10 would have been crucial in the resolution of the instant conflict. The rationale behind the apparent employment of a civil law principle of contract law, novation, rather than those of Equity, may not be far-fetched from the contractual nature of marriage.
The Intention of Parties to the Marriage and Supersedence.
The decision of the court in Akwudike v Akwudike is rather worrisome. The court held that a marriage which was celebrated without registrars certificate was valid because the wife did not have the knowledge of the legal requirements of a valid marriage under the Marriage Act; and because it was her intention and belief that she was going through a marriage that was recognized by the Church and the Act. This is contrary to the decision in Ohochukwu v Ohochukwu where it was held that the belief, that a monogamous marriage was being contracted because the parties were Christians contracting their marriage in the church, did not convert the marriage to monogamous marriage. Such marriage still remained polygamous notwithstanding the monogamous intents so far as the provisions of the Marriage Act for a valid monogamous marriage were not complied with. It is also dangerous to decide matters based on intentions as the proof of intentions is fluidic and nebulous. It is necessary that courts of justice should act on general rules without regard to the hardship which in particular case may result from their application.
Obiekwe v Obiekwe held that the wife did not willfully and knowingly acquiesce in the irregularity intended by her husband and the officiating minister. This is not supportable, and my position is strengthened by the provisions of section 22 of the Marriage Act. The provisions of Marriage Act which requires that both parties must be culpable before willful and known acquiescence to irregularity could invalidate the marriage, would not avail the wife who ought to have delivered the registrars certificate to the minister with the husband.
I wish to quickly align myself with Palmer J., when he declared that:
Legally, a marriage in a Church is either a marriage under the Act or it is nothing. In this case, if the parties had not been validly married under the Act, then they are either married under the native law and custom or they are not married at all. In either case, the ceremony in the church would have made not a scrap of a difference to their legal status.
The presumption of knowledge and will from the form of marriage engaged, has to be the test, rather that the proof of intention of the parties, which is open to serious abuse, unless fraud is proved. Let the intentions of the parties manifest in the form of marriage they contract. Moreover, it is clear that personal intention is irrelevant to the legal consequences of a validly celebrated marriage.
The Legal Implications of the Same Couple Contracting Marriages under Different Branches of the Law.
From the above analysis, it is obvious that the order of the occurrence of the different marriages would determine which system of law that would regulate the relationships of the parties.
Contracting Customary Marriage Before Statutory Marriage.
It has been held severally that where Statutory Marriage comes after Customary Marriage, the couple would be subject to the statute for the regulation of their relationships, rights and duties in the marriage. In these days of widespread interpenetration of societies in different stages of development, it is not a reasonable presumption that spouses who engage in polygamous marriages will not by personal volition or act of state convert their marriages or have them converted into monogamous unions.
Contracting Statutory Marriage Before Customary Marriage.
No legislation or case laws in Nigeria, and other jurisdictions, have squarely addressed (other than obiter) the legal implication of a couple who contracted as in-between each other a Customary Marriage after an earlier Statutory Marriage. This, however, may be the result of non-proper placement of such an issue before the courts for determination. However, established principles of law, and numerous dicta of judges, have directed our minds to what the courts would say should such an issue arise in our courts.
There is no gainsaying that the couple would be subject to the customary laws of their people for the regulation of their relationships, rights and duties in their marriage.
Sir Jocelyn Simon P., in Cheni v Cheni, in his discussion of the decision in Mehta v Mehta, said, while dealing with the circumstances in which a monogamous marriage may change their character and become potentially polygamous:
“ After all, there are no marriages which are not potentially polygamous, in the sense that they may be rendered so by a change of domicile and religion on the part of the spouses.”
Akintan J.C.A. cited with approval the opinion of Nwogugu:
videlicet, that the relationships the parties enter into, in a Statutory Marriage, are unknown to the Customary Law; and the marriage under the Marriage Act clothes the parties with rights and obligations unknown to Customary Law.
It is submitted that if the above reasoning and principles of law constitute the ratio decidendi of the subject matter of this work, then the same ratio will subsist with the same density and ferocity for a Customary Marriage that succeeds a Statutory Marriage.
This position of mine is strengthened by the observations of Cuming Bruce J. that the rights and obligations of the parties to a polygamous marriage remain unknown to the English Courts.
The ratio, in the latter order of contracting another marriage by the same couple, is not only a corollary, but of equal truth as in the relationships between the parties when Customary Marriage comes subsequently.
It is therefore submitted that a Nigerian court faced with this issue would not hesitate to apply the above reasoning (even in its reverse operability) and dicta in Jadesimi, Ali, Okon, Mehta, Cheni and Nwogugu, supra, in deciding that the later Customary Marriage converts the earlier monogamous Statutory Marriage to polygamy.
Summary of the Recommendations.
The recommendations can now be summarized as follows:
Marriage laws should be dispatched to one organic competence of government. This I call OMEGA ONE solution. Pursuant to this solution, Item 61 of the CFRN should be abrogated so that Marriage should dwell completely within the legislative competences of the States, and the National Assembly with respect only to the Federal Capital Territory (FCT). This position derives from the consideration of the conflict of laws that such initiative would prevent.
Marriage according to the Marriage Act after going through a Customary Marriage is simply superfluous. It is conceded that the existing dichotomy between Statutory and Customary Marriages cannot be wished away with a snap of the finger. Yet, this researcher recommends that only one marriage should suffice for every couple. For any marriage (statutory or customary) to be valid, however, the couple must obtain a Registrars Certificate from the Registry that would specify the intended Personal Law of the couple boldly written on the face of the Certificate. Thereafter, the couple could celebrate their marriage under any form.
There is a need for adequate public enlightenment on marriage, the forms of marriage, the legal implications of the different forms and types of marriage, and ultimately, the legal implication of the same couple contracting marriage under two branches of the law. This effort should be the primary responsibility of government which could employ the services of other agencies of socialization to the same purpose. A populace that is ignorant of their laws is in trouble; not only because they would keep violating the laws, but because the implementation of the law would become exorbitant and depleting of the state resource. It is therefore recommended that government, the Church, families, schools, and civil societies should wake up to their responsibility and educate and enlighten the people on the legal implications of marriage, including the order which the marriage is contracted.
Marriage, like other branches of study (e.g. Catering, Food and Nutrition, Dietetics etc) should be incorporated into the academic curricula of Primary and Secondary schools. Marriage as a course must be made a compulsory requirement for University admission. At the University level, Marriage Courses 101 and 102 would be a General Study course registered by all category of students.
The Catholic Church (and other Churches and even the Mosque) should concern itself with the legal implication of what they do and the form or type of marriage they constitute and propagate. Adherence to the relevant laws governing marriage in Nigeria is the key. This is not only because the Church is situate within a legal State that is always in the habit of concerning itself with the concepts of the Rule of Law and Due Process of the Law, but because the matters of spiritual and physical existences are not mutually exclusive matters; they are both parallel and coterminous; in fact, they flow in different streams that eventually water the same river. The Churchs abdication of its duty to witness, observe, uphold and strictly follow the applicable marriage laws in Nigeria is not only illegal but amounts to causing of confusion in the lives of their adherents, and by implication, anarchy in the society. Church marriage and nothing more, is a nullity in law. The Church must quickly align itself with either the statutory or the customary marriage laws.
It was established in the course of this research that most people in Enugu state who contracted marriage under the Marriage Act, will still opt to undergo a form of Customary Marriage later as a matter of practice and adherence to the custom of their forefathers. This order of marriage, it has been canvassed successfully in my opinion, is a recipe for the creation of a polygamous marriage from a Statutory Marriage by the operation of law. This order converts an existing monogamous Statutory Marriage into a polygamous Customary Marriage instantly with no consideration for the intentions of the parties. Therefore, the Church must reverse this order of marriage if the parties actually desired their marriage to be a valid monogamous union regulated by statutory marriage laws and in consonance with the doctrine of the Church on monogamy, while we wait for the Omega One formula to materialize and take effect; otherwise the couple would be unwittingly (if the conversion order was not an intentional design of a lecherous husband who may wish to marry more wives later) left with nothing more than a customary polygamous marriage subsuming the earlier Statutory and Church Marriages. This conversion could be aptly called Statutory Polygamy.
The Church must as a matter of urgency, and in the earthly and legal interests of its members quickly align itself with one form of marriage recognized by law. It is recommended that the Church shall have protected, jointly, the moral, spiritual, earthly and legal rights and obligations of its members if it aligns its marriage processes and format with the provisions of the Statutory Marriage laws.
What constitute an invalid statutory marriage, other than the provisions of Matrimonial Causes Act, are clearly stated in the Marriage Act and the importation of intentions to these clear provisions of the Acts is unwarranted, and thus not supportable. It is therefore recommended that our courts should always impute intentions of parties into the form of the marriage. Let the form speak the intentions.
It is also recommended that the state legislature should lead a holistic inquiry into how valid laws could be made and employed to regulate the order of contracting two marriages by the same couple in Nigeria.
Higher level of judicial discretion involves judicial lawmaking. Judicial lawmaking includes a situation in which a judge devises or formulates a legal principle to address an aspect of a case before the court because the legislature has not provided a law for the issue. This, of course, gives the courts a charter of liberty to move back and forth as they attempt to pontificate, rationalize and formulate doctrines and principles capable of equal reliability and convictions, although diametrically opposed. Judicial lawmaking has therefore been challenged as ultra vires judicial authority and dangerous for a free society where lawmaking is the province of the elected representatives of the people. It is recommended that legislature quickly render the courts destitute of this untrammeled discretion and latitude to apply doctrines and principles in vacuous situations.
Conclusion.
The position of our case laws concerning the applicable laws that would govern the relations, rights, liabilities, disabilities, immunities and obligations of spouses who contracted a subsequent Statutory Marriage after an earlier Customary Marriage as in-between each other is very clear. The over-reliance of our marriage laws, regarding a second marriage contracted by the same couple, on case laws, needs some judicial, executive and legislative re-evaluation.
The legal implication of a couple who contracted Statutory Marriage, and subsequently contracted a Customary Marriage, as it is currently common amongst members of the Catholic Church in Enugu state, has not yet received any local judicial decision. However, it is obvious from the discourse so far that the subsequent Customary Marriage for all intents and purposes converts the monogamous Statutory Marriage into a veritable polygamous marriage. After all, there are no marriages which are not potentially polygamous. Akintan J.C.A.cited with approval the opinion of Nwogugu, that the relationships the parties enter into, in a Statutory Marriage, are unknown to the Customary Law; and the marriage under the Marriage Act clothes the parties with rights and obligations unknown to Customary Law.
It has been submitted that if the above reasoning and principles of law constitute the ratio decidendi of the subject matter under discussion, videlicet the legal consequence of contracting a Statutory Marriage posterior to a Customary Marriage, then the same ratio will subsist with the same probity and ferocity for a Customary Marriage that succeeds a Statutory Marriage.
This position of mine is strengthened by the observations of Cuming Bruce J. that the rights and obligations of the parties to a polygamous marriage remain unknown to the English Courts; and the afore-mentioned dicta of Nwogugu, Akintan J.C.A. and Sir Jocelyn Simon P., in Cheni v Cheni, in his discussion of the decision in Mehta v Mehta. The ratio, in the latter order of contracting another Statutory Marriage after an anterior Customary Marriage by the same couple, is not only a corollary, but of equal truth as in the relationships between the parties when Customary Marriage comes subsequently. This apparent ratiocinated consequence is not the rationale behind a valid marriage conducted according to Catholic Church tradition, and this seemingly dispensable order of marriage must be discountenanced, jettisoned and compulsorily reversed; as it amounts to serial approbation and reprobation by the Catholic Church.
This position derives independently of Section 35 of the Marriage Act which was cited supra:
Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law, but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.
This section is specific that customary marriage succeeding statutory marriage is invalid, criminal, and in fact, no marriage at all. The earlier statutory marriage is what that exists between the couple to regulate their relationship.
Any argument thus that this provision of the Marriage Act has prohibited subsequent customary marriage falls flat because the Marriage Act cannot regulate the validity of a customary marriage. Marriage Act can only regulate the validity of a statutory marriage in Nigeria. Where the two systems happen on the same couple, it becomes the duty of court to determine the system that operates to regulate the marriage relationships. The import 35 supra is that subsequent valid customary marriage after an earlier valid statutory marriage invalidates the earlier statutory marriage as the Marriage Act prohibits the concurrent existence of both systems on any of the spouses.
It has already been submitted with respect that only the Customary Law can determine the requisite status of prospective persons that can contract customary marriage, and not the Marriage Act. The Marriage Act can only invalidate statutory marriage not conducted according to the Marriage Act. Marriage events under another system of marriage that happen subsequently after a statutory marriage will lie in the competences of the subsequent system of marriage to invalidate and subsume the prior statutory system. This is because the subsequent system subsumed the prior system.
©Awkadigwe Fredrick Ikenna 2014
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