The kernel of this essay is to show the legal realities of three types of marriage being entered into by a single individual in his or her quest to satisfy Nigerian tradition, religious belief and makes the contract legally binding on parties under the Marriage and the Matrimonial Causes Acts. The essay will center on inheritance following the death of a spouse in Nigeria especially the male spouse where one couple of a male husband and a female wife contracted customary, civil and church or Islamic marriage prior to their living together as husband and wife.
But first, the elaborate Owambe (social party) syndrome and the aso ebi tradition that is usually associated with it have now transcended Yorubaland in Nigeria. All across Nigeria, the rate in which this culture of waste is gaining ground is more than alarming notwithstanding that we are in the 21st century world. High society wedding introduction/engagement, church wedding/reception, birthday parties and burial ceremonies have become so competitive that they are now veritable ways to show off and to prove that a Nigerian is superior to the other in whatever class he or she belongs. When Nigeria was still Nigeria, without prejudice, the Ijebus, Egbas, and Lagosians were the ones incorrigibly noted for doing unlimited social parties. Today, go to Iboland, go to Hausaland, owambe has become fully accepted as a cut across tradition in Nigeria. As recent events would show, even highly educated and those in high public offices entrusted with tax-payers money don’t give a hoot anymore. They show off opulence in wealth-displaying celebrations and social parties to terrorize hoi polloi Nigerians as if all humans, poor or rich are not created by the same God.
Bill Gates, the American super rich and philanthropist who has been spending billions in dollars to fight poverty and disease in Africa, found himself, a few months ago, in a company of the unusual at a wedding ceremony in Lagos, Nigeria. He became astonished as to why Nigerians were terrorizing their own currency all in the name of social party. Even though he was in the midst of the richest and the most powerful economic and political leaders in Nigeria, he was still lonely in that gathering. He was lonely in simplicity and in thoughts. He could not believe the pomp and pageantry being exhibited by a few in a country where over 70 per cent citizens are extremely poor and live below poverty line. I pray that such episode will not make Gates change his mind from continuing those laudable programs he has been doing to help the poor and the sick in Africa.
The one and a half years of military regime of General Muhammadu Buhari and his ‘no nonsense, no smiling’ deputy, General Babatunde Idiagbon of the 1980s tried to put a stop to that malady by first of all abolishing night social parties. The same Buhari of the Buhari/Idiagbon ‘War Against Indiscipline’ (WAI), which was giving hope to Nigerians, has now been caged by Nigeria’s peculiar politics. If it were possible for Babatunde Idiagbon to see what his country has now become, he would turn in his grave. As a subject, the owambe culture is big enough to provoke a full essay on its societal intricacies but that will be reserved for another day.
Be that as it may, there is no doubt that in Nigeria, it is easier to prove the right to inheritance under a statutory marriage than under the other types. This is because there are express provisions in the Marriage Act that stipulate how to share properties of someone who died either testate or intestate. Although it is largely unwritten, in the southwestern part of Nigeria, there is an established rule of sharing the properties left behind by a man who died without a Will and who only contracted customary marriage. It is either by sharing the property according to the number of wives, which is known as the idi igi system, or sharing it on an equal basis according to the number of surviving children, which is called the ori ojori system.
The funny thing is that nowadays, many highly educated men and women who contract Christian marriage in Nigeria would have contracted both customary and statutory marriages to the same partner before proceeding to the church for the church marriage. They do this because they want to satisfy the African culture and tradition about marriage and because Christian marriage without a certificate first obtained from the marriage registry will usually have no legal tooth. In that case, if the man who entered into these different marriages to the same partner dies intestate, leaving properties behind, which of these types of marriage he entered into will be used to share his properties? This is where the confusion would lie if the point is raised by any member of the deceased’s family.
Unlike statutory marriage in Nigeria where the properties left behind are usually shared between a spouse and the children, under the customary law, other family members may also be entitled to inheritance of any of the properties left behind by a deceased person. Going by the old custom at least in the southern part of Nigeria, the junior brother is entitled to inherit even the wife or wives left behind by his deceased senior brother. See the case of Sogunro Davis v. Sogunro Davis (1929) where Beckley J. said: “Yoruba native law and customs deprived the wife of inheritance rights in her deceased husband’s estate because devolution of property follows the blood.” Many customary law systems still deny women the opportunity of owning property, particularly, land to which women have only a right of usufruct. See also the case of Aileru V. Anibi, (1939) 15 NLR 31 where Jibowu J. noted as follows: “Marriage according to native law and custom is recognised by our law and the issue of such marriage is legitimate. There is no question that the plaintiffs are legitimate children of their deceased fathers, but their mothers have not the same status under native law and custom as wives of marriage under the marriage ordinance.” A wife or a widow not being a blood relation of a deceased husband would have no claim to any share in his property.
The Marriage Act Cap 218 Laws of the Federation of Nigeria 1990 recognises the fact that there are other types of marriage in Nigeria and that individually, this Act does not invalidate them if they are contracted first in time. Section 35 of the Marriage Act Cap 218 Laws of the Federation of Nigeria 1990 provides:
“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.”
Going by this section of the Marriage Act, it does not matter whether the second marriage is entered into under the Marriage Act to qualify the person who entered into it as an offender under the law of bigamy. Once the earlier marriage entered into under the Marriage Act is valid and subsisting at the time of the second marriage, even if the second marriage is entered into under the Customary Law, the second marriage shall be void. The purport of the last part of section 35 of the Marriage Act is that a marriage entered into under the Marriage Act itself may not be valid if the person entering into it has already contracted another type of marriage validly. Sections 45, 46, and 47 of the Marriage Act prescribe the punishment for contravening section 35 of the Act. Sections 45, 46 and 47 of the Marriage Act are as follows:
- Whoever goes through the ceremony of marriage, or any ceremony which he or she represents to be a ceremony of marriage, knowing that the marriage is void on any ground, and that the other person believes it to be valid, shall be liable to imprisonment for five years.
- Whoever contracts a marriage under the provisions of this Act, or any modification or re-enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years.
- 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.
So, where a man contracted a three-in-one customary, statutory, and church marriage to just one wife under the Nigerian matrimonial laws and he died without a will, the extended members of his family may go to court to state that the customary marriage, which was one of the marriage contracts the deceased entered into, is not inferior to any of the other types of marriage he also contracted. On the basis of this, they can ask the court to declare that the properties the man left behind be shared under the customary law of marriage to benefit them, especially if the deceased entered into the customary marriage before entering into the other two. Until there is a court decision on this issue in Nigeria, this writer will continue to hold the opinion that each of the three types of marriage should stand individually and separately on its own and that none of them should be taken to be superior to the other.
Islamic marriage properly entered into is also a valid marriage on its own, which will allow the man to marry more than one wife. Where a man, having married under the statute that does not allow more than one wife at a time, still goes ahead to marry the same woman under Islamic law, I think he and his family should be bound by the laws guiding statutory marriage, because it was the first in time in his case. This is not a radically different position from the above customary/statutory/Christian marriage illustration. If at the death of that man, he left properties behind him and there is a problem of sharing them among his beneficiaries, the mode of sharing of the properties as devolving inheritance will also have to be determined by the court whether it should be under the Marriage Act or under Islamic law.