CUSTOMS THAT ALLOW MARRIAGES BETWEEN WOMEN OR WITH DEAD PERSONS; THE POSITION OF THE LAW. DAILY LAW TIPS (Tip 525) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

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Succession has been among the factors that placed unfounded value on male children over female children in Nigeria. By some traditions, bereaved wives without male children are allowed to marry women to ensure male children are born for/to their deceased husbands. At times, this practise extends to even dead sons, where parents marry wives for them to ensure their dead sons have deemed children. Well, in it all, women are at the worst receiving point, they are discriminated against, treated as lesser human beings, pushed into communally authorised prostitution and even made to participate in mundane search for male children and perpetuity. Systematically, older women are turned to cajoling tongues and convincing tools in the hands of desperate men and the society at large. There is too much unreasonable pressure on the females.

As expected, the Nigerian courts have not closed their eyes to such inhuman practises. Below is the decision of the Court of Appeal on such customs that allows a woman to bring another woman into the marital home of her late husband who dies without a surviving son to enable the line of succession of the late husband to continue, is repugnant to natural justice, equity and good conscience and as such abolished.

“The fulcrum in which the case of the respondent/claimant rested at the lower Court was belief that the Okonkwo Agwaraonye who died in 1948 was his father even though he was born in 1964. That strange belief was sustained by a custom which allowed a woman to marry a woman. Hanna Obiala (DW2) clearly explained what happened thus under cross-examination. “Okonkwo Agwaraonye is my father, it has been long my father died. My father was buried in his compound. Yes I know also Nweke Agwaraonye. She is my mother. She died about 23 years ago, my mother was buried in her own place Umuhu Okabia. When my father was alive, he married only my mother. My mother had no son and after my father’s death my mother married Mgbafor to stand in the name of my father.” The defence and counter claim of the defendant stood or fell with the custom being flaunted by him. It is clear from the evidence that Obi Unachukwu was the biological father of the defendant. The defendant only claimed to be the son of Okoronkwo Agwaraonye through the custom which allowed marriage between a woman and a deceased woman (sic). This custom cannot stand. In MERIBE V. EGWU (1976) 3 S.C. S.O Madarikan J.S.C. had this to say on the custom; “In every system of jurisprudence known to us, one of the essential requirements for a valid marriage is that it must be the union of a man and a woman thereby creating the status of husband and wife. Indeed the law governing any decent society should abhor and express its indignation of a woman to woman marriage; and where there is proof that a custom permits such an association, the custom must be regarded as repugnant by virtue of the provision to Section 14(3) of the Evidence Act and ought not to be upheld by the Court.” See also OKONKWO V. OKAGBUE & ORS (1994) 9 NWLR (Pt. 308) 301. Now the defendants defence and counter claim were based on the repugnant custom under which he was able to deny his real paternity and claim his perceived father. The claim and defence of the defendant were rightly rejected by the lower Court. By virtue of Section 18(3) of the Evidence Act 2011, any custom that is contrary to public policy or not in accordance with natural justice, equity and good conscience shall not be enforced. The custom relied upon by the defendant/Appellant is inenforceable as it is contrary to public policy, good conscience, natural justice and equity. Learned Appellant’s counsel in his Reply Brief had argued that OKONKWO V OKAGBUE (Supra) cited by the Respondent was decided 33 years after the marriage was contracted. He submitted that a judgment of Court could not have retrospective effect. He cited LAGOS TRAFFIC MANAGEMENT AUTHORITY & 3 ORS V. JOHNSON O. ESOZOBO (2017) 5 NWLR (Pt. 1559) PG 354 @ 382. He added that the issue of repugnancy did not arise in 1961. I respectfully disagree. The doctrine of repugnancy had been in existence long before 1961. See ELEKO V. NIGERIAN GOVERNMENT (1931)ALL E.R 44 at 50-51, LANIPEKUN LAOYE V. AMAO OYETUNDE (1944) A.C. 170 at 172-173. A custom that is barbarous cannot be allowed to stand. See also AGBAI & ORS V. OKOGBUE (1991) 7 NWLR PART 204 at 391 where Wali J.S.C. has this to say; “It is not in dispute not can it be disputed that native law and customs which are found by the Court to be barbarous and therefore contrary to the repugnancy claim to wit – contrary to natural justice, equity and good conscience will not be enforced.”Per AWOTOYE ,J.C.A ( Pp. 22-25, para. C )

My authorities are:

1. Section 42 of the Constitution of the Federal Republic of Nigeria, 1999.

2. The 2018 decisiosn of the Court of Appeal in the case of MR GODWIN OBI (OKORONKWO) V. CHIEF HYGINUS UGBOR (2018) LPELR-44420(CA)

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