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Published online by Cambridge University Press: 28 July 2009
Under most customary laws in Nigeria the death of a wife, irrespective of the system of marriage, terminates the marriage. But the death of a husband does not necessarily terminate the marriage. Again, this is true irrespective of the system of marriage. A surviving widow has a number of options open to her. She may elect to remain as a member of her husband’s family or return to her parents. In the former case, she may be “inherited” by a son or relative of her deceased husband or stay on as the wife of her deceased husband. In both instances the original marriage is regarded as continuing directly or indirectly. However, the widow is most likely to return to her parents if her relationship with her husband’s family is less than cordial, especially where it is proved or suspected that she had a hand in the death of her husband.
1 A son cannot inherit (marry) his mother.
2 A widow who has children of the marriage almost invariably remains in her matrimonial home.
3 (1989) 1 N.W.L.R. (Part 97) 254.
4 See Nwogugu, E. I., Family Law in Nigeria, Ibadan, 1990, 1.Google Scholar
5 Green, M. M., Land Tenure in an Ibo Village, London, 1941, 2–3.Google Scholar
6 Suit No. SC/675/65 of 3 January, 1968 (unreported) noted in Kasunmu, , “Proof of polygamous marriage in Nigerian High Courts: Lawal & Ors v. Toman & Ors: re-examined”, (1969) Journal of Islamic and Comparative Law, 27 at 28.Google Scholar
7 See ss. 30(1) and 32 of the Marriage Act (cap. 218).
8 (1961) 1 All N.L.R. 245.
9 See also Abisogun v. Abisogun (1963) 1 All N.L.R. 237, at 243 per Ademola, , C.J.F.; Obele v. Obele (1973) 2 RSLR 4; Osamwonyi v. Osamwmyi (1973) N.M.L.R. 25.Google Scholar
10 Cap. 218, Laws of Nigeria, 1990 Edition.
11 See s. 35 of the Marriage Act (cap. 218). See also In re Grace Spencer Caveatrix (1964) 2 All NX. R. 171; Ogunnmi v. Ogunmni (1972) 2 U.I.L.R. 466. cf. Church, J., “The dichotomy of marriage by customary and by civil rites—a note on a recent Swaziland decision” XI C.I.L.S.A. (1978) 80”,82.Google Scholar
12 In matrilineal communities any child born by a woman, whether married or unmarried, is a legitimate child of her father’s family.
13 (1979) 2 L.R.N. 339.
14 At 345.
15 (1972) N.S.C.C. 172.
16 At 178–179, per Madarkan, J.S.C.
17 (1976) Les.L.R. 281.
18 No. 10 of 1974.
19 See Obek v. Obele (1973) 2 R.S.L.R. 4, Solomon v. Gbobo (1974) 2 R.S.L.R. 30.
20 Nwogugu, op. cit., 63.
21 Sororate marriage is one in which on the death of a wife, the widower may be presented with a substitute by her family without a fresh marriage procedure. In such cases, the first marriage is regarded as continuing with the new wife taking the place of her deceased relative. This type of marriage is now virtually extinct in Nigeria.
22 There was also Lebitla (Ghost) marriage.
23 Poulter, S., Family Law and Litigation in Basotho Society, Oxford, 1976, 153–154. See also S. Poulter, “Marriage, divorce and legitimacy in Lesotho”, [1977] JAL 66.Google Scholar
24 For instance, in Lesotho, s. 34(3) of the Laws of Lerotholi, 1959 prohibits the special customary law marriage of Lebitla a n d Lebota. See also s. 10(1) of the Chieftainship Act, 1968 (Lesotho).
25 See Nwogugu, , op. cit., 63.Google Scholar
26 See Obele, Obele v. (1973)Google Scholar 2 R.S.L.R. 4; Gbobo, Solomon v.Google Scholar (1974) 2 R.S.L.R. 30.
27 A widow will almost invariably elect to remain in the family and household of her deceased husband when there are issues of the marriage, unless there are compelling reasons to the contrary.
28 Elias, T.O., The Nigerian legal System, London, 1962, 298Google Scholar. See also Johnson, S., The History of the Yorubas, Lagos, 1976, 115–116Google Scholar; Obi, S.N.C., The Customary Law Manual, Enugu, 1977.Google Scholar
29 Roberts, S., Botswana: Tswana Family Law, London, 1972. It has been shown that the custom of widow inheritance is also known to the Shona people of Zimbabwe: see j. May, Zimbabwean Women in Customary and Colonial Law, Harare, 1983, ch.11; also Goldin and Gelfand, African Law and Custom in Rhodesia, 292–294.Google Scholar
30 See Nwogugu, op. cit., 223; Kasunmu, and Salacuse, , Nigerian Family Law, London, 1966, 181–182.Google Scholar
31 Nwogugu, , op. cit., 66Google Scholar.
32 See Goncallo, Asiata v.(1900) 1 N.L.R. 41Google Scholar; Ohochukwu, Ohochukwu v. (1960) 1 A11E.R. 253Google Scholar; Akparanta, Akparanta v. (1972) 2 E.C.S.L.R. 779Google Scholar.
33 (1989) 1 N.W.L.R. (Part 97) 254, at 268.
34 Nwogugu, , “Legitimacy in Nigerian Law” [1964] J.A.L. 91. See also Smith v. Smith (1924) 5 N.L.R. 105, where die court held that although the fact that natives married according to the rites of the Church of England raises a presumption that they intend that their lives, their actions and their property should be regulated by English laws and standards, this is not conclusive evidence of such an intention, and that in deciding the question the court shold be guided by consideration of the position in life occupied by the parties and their conduct with reference to the property in dispute.Google Scholar
35 See Younan, Lawal v. (1961) 1 All N.L.R. 245Google Scholar; Bamidek, Adeyemi v. (1968) 1 All N.L.R. 31Google Scholar; Anamah, Jirigho v. (1958) W.R.N.L.R. 195.Google Scholar
36 Nwogugu, , op. cit., 223.Google Scholar
37 Roberts, , op. cit, 108.Google Scholar
38 Poulter, , “Marriage, divorce and legitimacy in Lesotho”, at 78.Google Scholar
39 (1964) 8 E.N.L.R. 24. See also Amachree v. Goodhead (1923) 4 N.L.R. 101, where the court held that a child born by the wife of a deceased man with a paramour before the dowry was repaid belonged to the family of her deceased husband and not to her family.
40 See also In re the Estate of Agboruja (1949) 19 N.L.R. 38.
41 (1975) 5 E.C.S.L.R. 305, at 311. Nwaribe’s case was cited with approval in this case.
42 (1976) 6 E.C.S.L.R. 276.
43 Neither Nwaribe’s case nor Abiakam’s case was cited in this case.
44 (1981) (1) Bot.L.R. 94.
45 See also Molapo, Molapo v. (1971–1973) Les.L.R. 289; (1974–1975) Les.L.R. 116. In Griffith v. Griffith (The Regency case) (1926–1953) H.C.T.L.R. 50, the High Court of Basotho, Lesotho observed that ‘the custom of Kenela (widow inheritance) which flourished formerly is now in a considerable state of disuse and therefore cannot be regarded as a well established custom’. However, the question of the legal status of children of Kenela arrangement was not before the court and the court did not make any pronouncement on this.Google Scholar
46 In the Nigerian legal system, the Supreme Court is the final court of appeal. The Court of Appeal comes immediately before the Supreme Court. Below the Court of Appeal are the High Courts. All these are the superior courts of Record.
47 (1989) 1 N.W.L.R. (Part 97) 254.
48 A second defendant was joined on his application by the High Court.
49 It was also held that under customary law a wife has only a life interest in the property of her husband. Consequently Elizabedi Chinweze left nothing for the appellants to inherit with regards to the property in dispute.
50 At 268.
51 At 270.
52 Issue for determination No. 6 in appellants’ brief, reproduced in the Law Report at 268.
53 This is in agreement with the opinion of Omosun, J., in Yesufu’s case, although the latter case was not cited or considered by the Supreme Court. In fact, none of the earlier High Court decisions on the issue was cited or considered by the Supreme Court in Chinzveze’s case.
54 Uwais, J.S.C., was even more forthcoming in his concurring judgment. He said: “The appellants, though the children of Mrs Elizabeth Chinweze, did not establish any relationship with late Peter Chinweze, apart from living, after his death, in the property in dispute as the children of Mrs Elizabeth Chinweze. They were not the children of Peter Chinweze, since he died in 1939 and the eldest of the appellants—first appellant—was born in 1943, nor were they by any twist of imagination, his heirs under any law—statutory, common or customary” (at 272).Google Scholar
55 See Anyanwu, Abiakam v., above, at 311. See also Nivaribe’s case.Google Scholar
56 It has been argued that “since the effect of an adoption order is to establish the legal relationship of parent and legitimate child between the adopter and the juvenile, it is possible for the parent of an illegitimate child to adopt such a child and confer upon him all the privileges of a legitimate child”. See Kasunmu and Salacuse, op. cit, at 248.
57 S. 39(2) of the 1979 Constitution of Nigeria; s. 41(2) of the 1989 Constitution.
58 See Gaborone, Gaborone v., above. See also s. 11 of the Matrimonial Causes Act, 1965 of England (formerly s. 9 of the Matrimonial Causes Act, 1950).Google Scholar
59 At 261. See also ibid., at 276 per Agbaje, J.S.C. 60 At 278.
61 There is no question that under the adversary system operative in Nigeria, parties are bound by their pleadings; yet the courts are entitled to take judicial notice of a notorious custom.
62 At 268.
63 The Court of Appeal in Okelola v. Boyle (1989) 5 N.W.L.R. (Part 119) 46, at 56 cited Chinweze’s case with approval, although it is not clear from the Law Report whether it considered itself bound by that decision.
64 See Allen, C. K., Law in the Making, Oxford, 1958, 256.Google Scholar
65 S. 14(1) of the Evidence Act, Cap. 62, Laws of Nigeria, 1958 Revision. But under s. 14(2) a notorious custom may be judicially noticed. Similar provisions are contained in the Evidence Laws of die various states of Nigeria. By s. 50(1) of the Courts Act, 1971 (Act 372) of Ghana, the question as to the existence or content of any rule of customary law is one of law, not fact: See Akologo, Abagana v. (1977) 1 G.L.R. 382.Google Scholar
66 Similar provisions are found in ss. 12, 22 and 34 of the Western, Eastern and Northern Regions High Court Laws, respectively.
67 Evidence Act (Fed. and Lagos, cap. 62, 1958 Revision); Evidence Law of Eastern Nigeria, 1963; Evidence Law, Laws of Northern Nigeria, 1963.Google Scholar
68 For details, see Oluyede, P. A., “Judicial approach to customary law” (1968) Vol. III, Nigerian Lawyers Quarterly, Ojo, “Judicial approach to customary law” (1969) Journal of Islamic and Comparative Law 44; Obilade, The Nigeria Legal System, London, 1979, 100–110.Google Scholar
69 See Nwogugu, op. cit., 223. Cf. Poulter, “Marriage, Divorce and Legitimacy in Lesotho”, at 78.
70 (1949) 19 N.L.R. 38. Cf. Anibi, Ailera v. (1951), 20 N.L.R. 46, per Jmowu, J. (as he then was).Google Scholar
71 (1964) 8 E.N.L.R. 24.
72 See also Goodhead, Amadme v. (1923), 4 N.L.R. 101.Google Scholar
73 (1975) 5 E.C.S.L.R. 305.
74 (1976) 6 E.C.S.L.R. 276.
75 According to the learned judge, “a customary fiction which presupposes that the marriage is still subsisting is nothing more than self-delusion and out of touch with present day Nigeria” (at 276).
76 At 268, emphasis supplied.
77 See Ojo, , “Judicial approach to customary law”, at 46.Google Scholar
78 See Oluyede, , “Judicial appraoch to customary law”, 12–13.Google Scholar
79 Per Bairamian, F.J., in Owonyin v. Omotosho (1961) 1 All N.L.R. 304, at 309. Cf. s. 2 of the Evidence Act, Cap.62 1958 Revision.Google Scholar
80 Nigerian Legal System, London, 1962, 5–6; cf. Obilade, Mgaian Legal System, London, 1979, 102–103.Google Scholar
81 (1908) 1 N.L.R. 81.
82 At 100–101.
83 See Essien, Edet v. (1932) 11 N.L.R. 47Google Scholar; Satiku Ejo, Mariyama v. (1961) N.N.L.R. 81Google Scholar; Akologo, Abangana v. (1977) 1 G.L.R. 382.Google Scholar
84 See Amalabimi, Ibrahim v. (1978) G.L.R. 368 (Part 2).Google Scholar
85 See Younan, Lawal v. (1961) All N.L.R. 245, at 250 per Ademola, C.J.F. See also Ibrahim v. Amalabimi (1978) G.L.R. 368 (Part 2) where it was held that illegitimacy is unknown to FraFra Customary Law.Google Scholar
86 See Elias, T.O., “The impact of English Law on Nigerian Customary Law”—A Reprint of the 1958 Lugard Lectures.Google Scholar
87 In the Ghanaian case of Amalabimi, Ibrahim v. (1978) G.L.R. 368 (Part 2) the court noted that after the promulgation of the Republican Constitution of 1960, the customary laws of the various tribal communities became part of the law of the country and the only test for their validity was whether they fulfilled those conditions which under the general law of the country must be satisfied by all customary laws. They were no more subject to the imperial repugnancy provision of natural justice, equity and good conscience.Google Scholar
88 See Danmole, Dawodu v. (1962) 1 W.L.R. 1053.Google Scholar