As a result of broad customs and traditions regulating the conduct of humans that are found to exist in various parts of the world, there has been necessary alacrity to establish these customs and traditions under salient bodies of rules that have been contained in several customary laws in the present times.
Sir Teslim Olawale Elias’s view on the purview of Customary law permeates Africa in his book “ The Nature of African Customary Law” written in 1956, and he defined law as ‘a body of rules regulating human conduct regarded as obligatory or binding by its members.’
Following the definition of law by Sir Teslim Olawale Elias, the World Intellectual Property Organization defined customary law in 2013 as a rule of conduct, obligatory on those within its scope, established by long usage. Are valid customs which must be of immemorial antiquity, certain and reasonable, obligatory, but not repugnant to statute law, though it may derogate from the common law.’
It is to be noted that the customs and traditions that form the customary law of different localities differ from one another. Nigeria has over 250 ethnic groups having different customs and traditions that affect the customary law of these groups. The customary laws of the Yoruba people differ from those of the Igbo people and the Hausa people.
For a customary law to be regarded as valid in the Nigeria context, it must have passed through the validity test, the validity test may be relayed as follows;
- The customary law must not be repugnant to natural justice, equity, and good conscience.
- That the law so practiced by the host community must not be incompatible with any existing law for the time being in force.
- It must not be contrary to public policy.
It is important to conduct a brief examination of the various validity tests:
THE REPUGNANCY TEST
This test is based on the inherent right of a person to have fair and just treatment by the government or other persons. The principles of natural justice have been crystalized into two norms, which include; audi alterem partem and nemo judex in causa sua. Audi alterem partem means to hear both sides or the other side before a decision or judgment, while Nemo judex in causa sua means no one shall be a judge in his cause or matter upon which he has a conflict of interest. Once a customary law meets these principles of natural justice, equity, and good conscience, then the customary law has met the repugnancy test, and the repugnancy test has been given a verdict in the case of Lewis vs. Bankole (1908) and it has been established in the case that customary law does not fail the repugnancy test because of its non-conformity with the English doctrine.
A Bini customary rule of inheritance which allows the eldest son to exclusively inheriting the deceased father’s living house is not repugnant to natural justice because it is recognized as Bini custom, and this practice has been established in the cases of Inasa vs. Oshodi(1934) and Mojekwu vs. Mojekwu(1997).
THE INCOMPATIBILITY TEST
This test determines whether a customary law is incompatible with any existing law in a state or the extent to which a customary law contradicts any other established law in a state for the time being in force. For instance, it was heldin the case of Mojekwu vs. Mojekwu that the Nnewi custom which excludes a female child from inheriting their father was held to be repugnant and incompatible with the provisions of Section 42 of the Constitution of The Federal Republic of Nigeria (1999 as amended) which warns against discrimination of any form based on sex.
IT MUST NOT BE CONTRARY TO PUBLIC POLICY
Here, customary law must conform to public policy. As stated in the case of Okonkwo vs. Okagbue (1994), it is a trite law that a custom shall not be enforced if it is contrary to public policy. The decision held in the case of Morigbe vs. Egbu, in which a custom permitting women to get married to each other was declared an act against public policy, was accorded reasoning in Section 14(2)(b) of the 1999 constitution as amended.
What emerges from the validity test of customary law is that the customs are subject to certain procedures which must be met before they can be regarded as a valid body of rules. To this end, Section 16(1 & 2) has governed the process of discharging the burden of proof of customary law in Nigeria.
Section 6(1) of the 1999 constitution as amended provides for the exercise of the judiciary power in Nigeria by courts established for such purpose. One of these courts is the customary court of appeal, in which Section 6(5)(a-f) of the Constitution of the Federal Republic of Nigeria
1999 as amended has given a verdict on the exercise of this judiciary power by customary courts. It is to this end that it can be said that the enforcement of the customary law has been validated by the law.
According to Black’s law dictionary; marriage is defined as ‘the legal union between one man and one woman’. This definition can be said to be singled down to only a type of marriage; which is monogamy.
Under the purview of the customary law, marriage is the union between a man and a woman as husband and wife, or between a man and two or more women. There have been several types of marriage processes adopted in different parts of the world. Among the Yoruba people, there is the practice of monogamy; a marriage of one man to one woman, and there is a practice of a man marrying two or more wives (polygyny). This is to note the discrepancies among customary practices regarding marriage.
Also, inheritance is an issue that needs to be discussed under the purview of customary law, there have been several modes of distributing the property of a deceased. Typical examples of processes of inheritance among the various ethnic groups in Nigeria include idi-igi(per stripe) and ori-ojori(per capita) among the Yoruba people, the culture of Nrachi or idegbe which denotes when a woman becomes the male head of a family, and the principle of primogeniture in which succession is passed to the first male child to the exclusion of other children among the Igbo people.
It is appropriate to stop the broad discussion on the customary laws of different locations so as not to go out of the subject which is to investigate the salient customary laws relating to marriage and inheritance within the reach of my locality.
MARRIAGE:
I am a native of Apomu in the Isokan Local Government of Osun state.
I will relay the salient customary rules that guide the institution of marriage and inheritance within this area.
After some dialogue with my grandmother, I have learned about some salient rules that guide the institutions of marriage and inheritance. Also, I have to know about how customs change and how new civilizations have shaped some of the customary laws in recent years.
As it is known that customary law must be validated by the existing law in a state, the customary marriage process must also be validated. The Marriage Act has not provided for the validation process for marriage under customary law, but it has stated what can make a customary marriage to be regarded as invalid.
Section 35 of the Marriage Act states that; “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 in accordance with any customary law, or in any manner apply to marriages so contracted”, while Section 33(1) of the Marriage act states that; “ no marriage in Nigeria shall be valid where either of the parties thereto at the time of celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had.”
According to the primary view of my grandmother on the customary law in my area, and based on the findings from other sources. Marriage is regarded as a union, and a mere relationship between a man and a woman doesn’t validate a marriage under the province of customary law. Before a marriage can be validated, a man must initiate interest in a woman, and this initiation of interest is prompted through the use of ‘Alarina’ or an intermediary who will function as a stop-gap between the man and the woman.
After Alarina has relayed the interest to the woman and after he has completed his duties, if the woman has agreed to the proposal or the woman is interested in the relationship, the suitor will be informed and he may start meeting (courting) with the proposed bride secretly but not frequently. If there is a form of unionism between the two, the lady will have to inform her parents about the suitor.
The suitor will then be invited by the proposed woman’s parents for ‘mon mi n mo o’ which is a form of introduction. The proposed suitor may be accompanied by his family member(s) or friends, and if an agreement is reached between the two sides of the parents, then the suitor may be informed to prepare for the marriage process known as ‘idana’.
The marriage process involves a series of formalities among the two sides or members of the two families (suitor’s/bride’s), which include the formulation of a union among the parents, the picking of a date, payment of the bride’s wealth, the traditional rites including the use of fruits like obi(kolanut), oyin(honey) aadun, ireke(sugarcane) for a prayer session, emotional display by the bride as she renders teary chants known as ‘ekun iyawo’, and lastly, the grand ceremony which entails lots of fun fare and celebrations.
Even though there is no explicit explanation for determining the validity of the customary marriage under the Marriage Act, there have been several requirements that must be met before a customary marriage can be regarded as being valid under the law. Although the customs differ among people of different localities, the family law of Nigeria, which is contained in the Matrimonial Causes Act (2004), has provided the general requirements that a customary marriage must meet to be valid.
The requirements can be discussed as follows:
- Age: it is important to note that there is no generally accepted lower age limit for marriage under customary law. The age at first marriage differs from one group to another. For instance; the minimum age for marriage in the East is 16 years. In the case of Emeakuana V Umeokiako, the High Court of Akwa held that the marriage was void as the age of the bride was put at 15 years which was contrary to the provisions of the Age of Marriage law.
- Consent: the consent of the bride is essential in some customs, for instance; the Supreme Court held in the case of Oransaye v. Osanweyi 1972 that the consent of the bride was the condition precedent to a marriage. Also, the practice of parental consent exists in the old Lagos, Oyo, and Ondo
- Statutory prohibition: this indicates that when a person has already contracted a marriage under the Marriage Act, the person cannot contract a valid customary law marriage, as established in the case of Onwudinjo v Onwudinjo.
- Prohibited degree of affinity: there is often the existence of incest taboos that prohibit two people who are related by blood from marrying each other.
- Status bar: this deals with the prohibition of marriage between free citizens and members of some castes.
- Bride price: this is an essential payment that must be made to the parent or guardian of a bride before a marriage can be conducted. Among the Yoruba people, it is called Idana. The bride price is not based on a uniform price and it varies based on the value placed on it.
Based on the above general provisions by the Family Law, all the above processes must be followed before a marriage can be regarded as valid within the provision of the customary law of my locality. Also, marriage may be conducted based on the provisions of the Marriage Act which defines the institution of marriage under section 7 and regulates it under section 11(1) of its 1990 provisions, and the precepts of Islamic laws. In as much as the appropriate requirements are met, the customary marriage can be validated by the law in practice.
INHERITANCE
The process of inheritance is also accorded some recognition under the province of customary law. Nowadays, the inheritance process cannot be discussed without a view on the process of validating a will.
According to Garner and Black in 2019, inheritance means possessions obtained from a predecessor through laws of intestacy. What calls for the introduction of the laws of intestacy is the absence of a valid process of willing property within the province of the customary law. A will according to the Wills Act 1837 is a testamentary document voluntarily made and executed according to law by a testator with a sound mind, where he disposes of his properties (real or personal) to beneficiaries to take effect after his death.
The failure of a will to meet the appropriate requirements for validity under Nigerian Family law leads to the introduction of the laws of intestacy in Nigeria, the requirements are:
- The testator must have acted voluntarily.
- It must be written. Section 9 of the wills Act 1837.
- It must be duly executed and attested to by at least 2 witnesses. Duly executed in the sense that the testator must append his signature in the presence of at least 2 witnesses and the witnesses must append their signature in the presence of the testator.
- The testator must be of a sound disposing mind.
- The will must adequately describe the property and the beneficiaries of the same.
- It must name the executors of the property.
- The testator must have testamentary capacity i.e. he must be 18 or 21 years & above, depending on the applicable law. Section 7 of Wills Act 1837 and Section 3 of Wills Law, Lagos State.
The laws of intestacy vary from one society to the others in Nigeria. As stated earlier, there is the practice of ori-ojori and idi–igi among the Yoruba people and the principle of primogeniture (male head) and Nrachi among the Igbo people.
The validation of inheritance processes among the Yoruba people which are idi-igi (per stripe) and ori-ojori (per capita) have been given judicial validation in the case of ‘Lewis v. Bankole, 19O8’ and the case of ‘Danmole v. Dawodu,1958’, also the rules guiding inheritance among the Igbos have been validated by the judicial decisions in the case of ‘Ngwo v. Onyejera, 1964’ and in the case of ‘Mojekwu v. Mojekwu’.
There are two basic ways of sharing a deceased man’s estate under the Yoruba customary law, namely; idi-igi (per stripe) and ori-ojori (per capita). In the case of Danmole v. Dawodu (1958), the two ways were succinctly explained as follows:
- That idi-igi is a vital part of the Yoruba indigenous law and custom relating to the distribution of an intestate’s estate
- That idi-igi is the general method of sharing except where there is a dispute among offspring of the intestate as to the extent into which the estate should be divided;
- Where there is such a disagreement, the head of the family is authorized to decide if ori-ojori should in the instant case be used instead of idi-igi;
- That the decision of the head of the family over the choice of method to be used in times of disputes prevails;
- That ori-ojori is a comparatively modern manner of allocation used in times of expediency to avoid litigation.
Following the provisions in the case of Danmole v. Dawodu, the two major inheritance systems that can be adopted in my area are the same as the ones practiced among the Yoruba people as a whole; the systems of idi-igi (per stripe) and ori-ojori (per capita). Due to the inequality of the per capita process which does not consider the number of children given birth to by the wives of the deceased, the practice of ‘idi-igi’ has been the most preferred in recent times as it is deemed as being per justice and equality. In any family, there is a family head which is known as Dawodu, the Dawodu is either a male or a female who succeeds as the head of the family. Dawodu presides over the affairs of the family including the process of inheritance.
Dawodo is the one who determines whether the property should be distributed based on the rule of ‘ori-ojori’ or ‘idi-igi’. ‘idi-igi’ is also used by the people of Apomu, in which the property is divided based on the number of the wives married by the deceased. However, in a case of disagreement, Dawodu has the authority to introduce the process of ‘ori-ojori’ to avoid litigation.
Due to the transformation of the customary law, the use of the process of ‘ori-ojori’ has gone to extinction. However, the process of idi-igi is still in use at present.
By the above expositions, it can be considered right that the influence of customary law has been used to regulate marriage and inheritance practices and it has succeeded in establishing the medium for determining the validity of these transactions.
REFERENCES:
- T Olawale Elias (1972). The nature of African customary law. Manchester: Univ. Pr.
- Dennis-McCarthy, N. (2020). Indigenous Customary Law and International Intellectual Property: Ascertaining an Effective Indigenous Definition for Misappropriation of Traditional Knowledge. Victoria University of Wellington Law Review, 51(4), p.597. doi:10.26686/vuwlr.v51i4.6700.
- Great Britain. Parliament. House Of Commons (1906). Wills Act (1837) amendment. A bill to amend the Wills Act, 1837. London: House Of Commons.
- J O Debo Akande and Nigeria (2000). The Constitution of the Federal Republic of Nigeria 1999. Lagos: Mij Professional Publishers.
- Henry Campbell Black and Garner, B.A. (2004). Black’s Law Dictionary. St. Paul, Minn.: Thomson West.
- Odike, E.A. (2003). Modern Nigeria Family Law with Marriage Act and Matrimonial Causes Act.
- Nwudego Nkemakonam Chinwuba (2022). Family and Succession Law in Nigeria. Kluwer Law International B.V.
- The Evidence Act, 2011.
- Danmole v. Dawodu [1958] (Supreme Court).
- Lewis v. Bankole [1908] (Supreme Court).
Post written by BELLO ABDULLAHI