By Dr George Ogunjimi (Juris Republic)
The first wife would be viewed as the legal wife and the marriage remains valid and if the husband chose to marry another one, he should have married under the customary norms and conditions too.
Traditional marriage is legal in Nigeria by virtue of section 35 of the Marriage Act 1914. The section provides as follows: ‘… 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.
JADESIMI –v- OKOTIE-EBOH & 2 ORS [1996] 2 NWLR (pt. 429) 128 was decided by the Supreme Court of Nigeria. In this case, the deceased, Chief Festus Okotie-Eboh, married the 1st Respondent according to customary law in 1942. In 1947 the deceased made a Will. In 1961, whilst the customary marriage was subsisting, the deceased and the 1st Respondent married under the Marriage Act at a Marriage Registry in Lagos.
The issue was whether the Will of 1947 was revoked by the marriage of 1961 by virtue of section 18 of the English Wills Act, 1837, which is a statute of general application that is in force in Lagos. Section 18 of the Wills Act 1837 provides that every Will made by a man or a woman shall be revoked by his or her marriage.
Section 45 of the Interpretation Act provides that statutes of general application that were in force in England on the 1st day of January 1900 shall be in force in Lagos but that such imperial laws shall be in force so far only as the limits of local jurisdiction and local circumstances shall permit. In his lead judgment, Uwais, C.J.N. said as follows: “…
It is a matter of common knowledge that most people in Nigeria who contract marriages under the Marriage Act, undergo a form of customary marriage earlier as a matter of practice and adherence to the custom of their forefathers……It is never intended by the practice that the marriage under the Marriage Act should nullify the customary marriage…but rather it would supplement the practice or custom.
The parties are however aware that by applying the Marriage Act to their relationship, their marriage would become monogamous….In my opinion, therefore, the circumstances of Nigeria militate against the application of section 18 of the Wills Act, 1837 to nullify a will made prior to contracting a marriage under the Marriage Act…”
This statement is contradictory. By saying that it is never intended by the practice of celebrating a subsequent statutory marriage, the said statutory marriage should nullify the earlier customary marriage, Uwais, CJN was suggesting that the earlier customary marriage is still valid.
This is inconsistent with his statement that by marrying under the Marriage Act, the earlier customary marriage becomes monogamous.
His decision could be explained on the basis that section 18 of the English Wills Act 1837 is subject to section 45 of the Interpretation Act and accordingly, for the purposes of section 18 of the Wills Act, 1837, the word ‘marriage’ does not include a statutory marriage that was contracted after the Will was made and after the same couple had previously contracted a customary marriage (prior to the Will being made).
The Concept of Double Decker Marriage.
In the JADESIMI –v- OKOTIE-EBOH case, Iguh JSC in his judgment said: “…In the first place, it cannot be disputed that pursuant to sections 11 and 47 of the Marriage Act…a man is permitted to marry thereunder a woman to whom he had been legally married under customary law and subsequently go through another marriage under the Marriage Act, the second marriage is clearly valid as a monogamous marriage.
It is also plain that such second marriage under the Marriage Act, converts without doubt, the customary marriage that was “potentially polygamous” to a monogamous marriage….No doubt, under section 18 of the Wills Act, 1837 of England, the marriage, which can revoke or invalidate an existing Will of either of the parties, is a marriage within the English concept.
This connotes a marriage between a man and a woman each of whom at the time of the marriage was unmarried or free to get married and therefore possessed the legal capacity to contract a lawful marriage.
In my view however, the marriage contemplated under section 18 of the Wills Act, 1837 of England cannot conceivably include a subsequent marriage under the Marriage Act…between a man and a woman who are already validly married under customary law and living together as husband and wife before either of them made his last Will and Testament and after which the subsequent marriage under the Act was performed…. I also accept that had the testator not been lawfully married to the 1st respondent as at the time the Will was made, the Wills Act, 1837 would have had full application and effect as envisaged by the British Parliament which enacted it.
In view, however, of the fact that the testator was validly and lawfully married to the 1st respondent under the prevailing local custom, tradition and law, even before the Will in issue was made by him, I cannot accept that the subsequent reaffirmation of his marriage to the 1st respondent under the Marriage Act revoked his said Will….”
His Lordship’s statement that the subsequent statutory marriage converted the earlier customary marriage into a monogamous marriage is contradicted by his subsequent statement that the testator was validly and lawfully married to the 1st Respondent under customary law before the Will was made and accordingly, the subsequent reaffirmation of that marriage by the statutory marriage could not revoke the Will.
It can therefore be said that his Lordship’s ratio is that the statutory marriage could not revoke the Will because it was just a reaffirmation of the earlier customary marriage.
Thus, the statutory marriage was of no legal effect as the parties were already lawfully married to each other at the time they went through the statutory ceremony of marriage.
A recent interesting case is the English case of UDEZE-NWANNIA –v- UDEZE-NWANNIA [2013] EWCA Civ 725. This was a renewed application for permission to appeal to the Court of Appeal against a decree of nullity made in the Edmonton County Court in relation to the Applicant’s statutory marriage to the Respondent.
It was declared void on the ground that the Applicant had a subsisting statutory marriage to one Mrs Angela Udeze when he contracted the marriage with the Respondent. In August 1988 the Applicant went through a customary marriage with Angela in Nigeria and subsequently contracted a statutory marriage with her in Kano, Nigeria.
His case was that he dissolved the customary marriage with Angela extra-judicially before contracting a customary marriage and a subsequent statutory marriage with the Respondent in Benin City in Nigeria in 2006. His case was that this extra-judicial divorce of the customary marriage to Angela also dissolved his statutory marriage to her.
In his judgment refusing the Applicant permission to appeal on the ground that the proposed appeal had no real prospect of success, Patten LJ said that he was perfectly prepared to accept for the purpose of that hearing that a valid customary divorce ceremony recognised under Nigerian customary law is effective to dissolve a purely customary marriage but he was not satisfied that there is any legal basis in Nigerian law for the proposition that a valid statutory marriage can be dissolved merely by a customary ceremony of divorce under Nigerian law.
This judgment is an implied acceptance of the conversion but the major difficulty with the conversion theory is the uncertainty of the status of the parties between the time they contracted the customary marriage and when the subsequent statutory marriage converted it into a statutory marriage.
If Segun and Bolanle contracted a valid customary marriage in 2006 and then contracted a statutory marriage in 2011, according to this theory, in 2011, the statutory marriage then superseded the customary marriage and converted it into a statutory marriage.
When can it then be said that the parties got married to each other? Was it in 2006 or in 2011? What then becomes the status of the parties between 2006 and 2011? Does it mean that they were unmarried to each other between 2006 and 2011?
If there is a statute that confers a benefit on a person on the basis of the length of that person’s marriage, would it mean that the period before 2011 will be ignored?
An Immigration statute might, for example confer on the wife the right to acquire the citizenship of her husband’s country, say after 3 years of being married to him.
If in those circumstances, Bolanle were to apply for the citizenship of her husband’s country in 2012 could her application be rejected on the ground that she had not been married to Segun for a period of five years because she married Titus in 2011 and not in 2006?
The Act does not expressly say that the subsequent statutory marriage converts the earlier customary marriage into a statutory
The position of those who propound this theory is that both marriages co-exist. Thus the dissolution of the statutory marriage in the High Court still leaves the earlier customary marriage valid and subsisting.
Thus, the customary marriage will continue to exist until it is dissolved in a Customary Court or extra-judicially.
Support for this theory can be found in the cases of AKPARANTA –v- APKARANTA (1972) E.C.S.N.L.R. 779 and AFONNE -v- AFONNE (1975) E.C.S.N.L.R. 159. Further support for this view can be found in the Act.
