DOUBLE DECKER MARRIAGE IN NIGERIA (ISSUES PROBLEMS AND SOLUTIONS)

ABSTRACT

It has become a common practice in Nigeria for parties who intend to contract a statutory marriage to marry first under customary law before the solemnization of the statutory marriage. This practice may be explained by the fact that though Western civilization and culture have permeated Nigerian society, most people, even the most sophisticated understandably regard themselves as bound by the customary law of their place of origin. The Nigerian Marriage Act has given validity to this practice by enabling who are married under Customary Law to marry each other under the statute.

Some legal questions arise from this practice. It is uncertain whether the statutory marriage supersedes, for all intent and purposes, the previous customary-law marriage, or if the customary law marriage is merely put into abeyance to retrieve after the subsequent statutory marriage has come to an end. There is also the question of whether both marriages co-exist.

The purpose of this project will be to examine all this questions and the position of such marriages and the associated problems in Nigeria.

TABLE OF CONTENTS

COVER PAGE………………………………………………….…………    i

CERTIFICATION PAGE………………………………………………. …   iii

ABSTRACT…………………………………………………………………..  iv

TABLE OF CONTENTS………………………..…………………………. v DEDICATION………………………………………………………………… ix

ACKNOWLEDGMENT …………………………………………………….. x

TABLE OF CASES…………………………………………………………… xii

TABLE OF STATUTES……….……………………………………………. xiv LISTOFABBREVIATIONS……………………………………………….. xv

CHAPTER ONE

GENERAL INTRODUCTION

1.5.0    METHODOLOGY..……………………………………………………….   6

1.6.0    LITERATURE REVIEW…………………………………………………   7

1.7.0    DEFINITION OF TERMS…………………………………………………   9

1.7.0    CONCLUSION……………………………………………………………..   9

CHAPTER TWO

GLOBAL CONCEPT OF MARRIAGE EXAMINED

2.0.0    INTRODUCTION……………………………………………………………  11

2.1.0    DEFINITION OF MARRIAGE………………………..……………….……. 12

• CONSTITUTION OF MARRIAGE UNDER NIGERIAN LAW……….. 13

• CONSTITUTION OF MARRIAGE UNDER CUSTOMARY LAW…..… 17

• CONSTITUTION OF MARRIAGE UNDER STATUTORY LAW…..… 22

• LEGAL EFFECT OF MARRIAGE IN NIGERIAN……………..……….. 26

• CONCLUSION……………………………………………………………….. 34

CHAPTER THREE

DOUBLE-DECKER MARRIAGE IN NIGERIA: ISSUES, PROBLEMS AND SOLUTIONS

3.0.0 INTRODUCTION…………………………………………………………….. 36

3.1.0 DEFINITION OF DOUBLE- DECKER MARRIAGE……………………… 36

3.2.0 REASONS FOR DOUBLE- DECKER MARRIAGE……………….…..  39

3.3.0 IMPLICATION AND EFFECT OF DOUBLE- DECKER

MARRIAGE……………………………………………………………….. 44

3.4.0 PROBLEMS OF DOUBLE- DECKER MARRIAGE IN NIGERIA…… 58

3.5.0 TERMINATION OF DOUBLE- DECKER MARRIAGE IN

NIGERIA…………………………………………………………………… 61 3.6.0 CONCLUSION……………………………………………………………… 67

CHAPTER FOUR

PROSPECT OF DOUBLE-DECKER MARRIAGE IN NIGERIA

4.0.0    INTRODUCTION………………………………………………………… 69

• ADVANTAGES OF DOUBLE-DECKER MARRIAGE IN

NIGERIA………………………………………………………………..… 69

• SOCIAL BENEFITS OF DOUBLE-DECKER MARRIAGE IN

NIGERIA …………………………………………………………………. 70

• ECONOMIC BENEFITS OF DOUBLE-DECKER MARRIAGE IN

NIGERIA…………………………………….…………………………….. 74

• JUDICIAL BENEFITS OF DOUBLE-DECKER MARRIAGE IN

NIGERIA…………………………………….…………………………….. 75

4.2.0    CONCLUSION……………………………………….……………………. 77

CHAPTER FIVE

CONCLUSION AND RECOMMENDATION

5.0.0    CONCLUSION……………………………………………………………… 78

• RECOMMENDATION………………………………………………..…… 81

BIBLIOGRAPHY ARTICLES IN JOURNALS ARTICLES ON INTERNET BOOKS

NEWSPAPER REPORT ON THE INTERNET

PAPERS PRESENTED AT CONFERENCE, WORKSHOP AND SEMINAR

TABLE OF CASES

NIGERIA

• Afonne v. Afonne (1975) ECSNLR 195
• Agu v. Agu (unreported) suit no. E SD 70. High court of Enugun
• Akparanta v. Akparanta (1972) 2 ECSLR 779
• Asiata v. Goncallo (1900) NLR 41
• Cheni v. Cheni (1963) 2 WLR 17
• Craigh v. Craigh (1964) LLR 96
• Jadesimi v. Okotiebo (1996) 2 NWLR 128
• Kpelanya v. Tsoka and Anor (1971) NWLR 66
• Obele Iniya v. Obele (1973) 1 NWLR 155
• Odie v. Nweke Obor and anor (1973) ECSNLR 733
• Oku v. Oku (1972) 2 ESCLR 619
• Olusanya v. Ibadiaran (1971) 1 UILR 149
• Sharpless v. Barton (1951) WACA 198
• Solowon v. Chukwuani (1972) 2 ECSLR 619
• Teriba v. Teriba and Rickett suit no. 1/211/67 of 2/7/69, (unreported) Ibadan High court.

UNITED KINGDOM

• Best v. Samuel Fox . & co ltd (1952) 2 ALL ER 394
• Cowley (Earl) v. Cowley (countess) (1901) AC 450
• Cowley v. Cowley (1903) AC 450
• Fasbbender v. A.F (1922) 2 CH 850 at 858
• Fendall v. Goldsmith (1877) 2 PD 263
• Frost v. Aylesbury Diary Company (1905) ALL ER 578
• Hyde v. Hyde (1856) LR IP & D 130
• Mallert v. Dunn (1949) 2. KB 180 ( 1949) L.J.R
• Ohochukwu v. Ohochukwu (1960) 1 ALL ER 253
• Place v. Searle (1932) 2KB 497
• R v. Jackson (1891) 1 QB 671
• R v. Miller (1954) 2 ALL ER 529

TABLE OF STATUTES

NIGERIA

• Criminal Code Act CAP 77 LFN 2004
• Interpretation Act 1964
• Laws of Eastern Nigeria 1963
• Marriage Act CAP M6 LFN 2004
• Matrimonial Causes Act Decree No 18 of 1970
• Native Authority (Declaration of Idoma \Native Marriage law and Custom) Order 1959

LISTS OF ABREVIATIONS

• C: English Appeal Cases
• ALL E.R: All England Law Reports
• C.S.N.L.R: East Central State of Nigeria law Reports
• K.B: Kings Bench
• J.P: Law Journal Probate
• L.R: Lagos law Report
• C.A: Matrimonial causes Act
• A.L.N: Native Authority legal Notice
• NLR: Nigerian law Report
• NWLR: Nigerian Weekly Law Report
• D: Probate Division
• A.C.A: West African Court of Appeal
• L.R: Weekly law Report.

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0    INTRODUCTION

In every community, marriage is considered imperative because it is the foundation upon which the society is founded. Although, marriage has no universally acceptable definition, hence it is dynamic in the sense that it cut across jurisdictions, race and tribes and the definition to be given to the concept will depend very much on the social and religious beliefs of a particular society. Marriage could be said to be the basis of the legal family, the leaned author, E.I. Nwogugu defined marriage as;

“Marriage is a universal institution which is recognised and respected all over the world as a social institution, marriage is founded on and governed by the social and religious norms of society”¹

The fact being stressed here is that there is an element of divinity in the concept of marriage. This fact is evident in the Holy bible when it says thus „a man shall leave hisfather and mother, and shall leave unto his wife and they shall become one flesh‟². Thesanctity of marital institution is also traced to the Qur‟an, the holy book of faithful

• Nwogugu E.I, Family Law in Nigeria (Reviewed Edition Heniman Studies in Nigerian Law) 3^rd Edition 1900
• The Holy Bible, Genesis 2:24 New International Version Zomdervan Publishing House

Muslims where it was said that „marry (other) women of your choice, two or three orfour, but if you fear that you shall be able to do justice (with them) then only one‟³

Double-Decker marriage is nowhere defined in the marriage Act. The dictionary meaning of double-decker however is a vehicle with two decks or a sandwich with two layers of filling. The illustration created is this view is different or separate compartment but is the same bus and piloted by the same driver or separate layers of filling accommodation in one loaf. When one applies this illustration to the issue of marriage, a double-decker marriage would mean two validly permissible marriages contracted by the same person. Statutorily, Section 33 (1) of the Marriage Act (MA) states thus:

“No marriage in Nigeria shall be valid here either of the parties thereto at the time of the celebrities of such marriage is married under customary law to only person other than the person with whom such marriage is had”⁴

Basically in Nigeria, the two forms of marriage a couple contracts simultaneously are also customary law marriage and statutory marriage. This is permissible under Section 33

(1) MA and by this section it can only be between the same person. Although double-decker marriage is not expressly provided for under the law, but can be implied by applying literal and golden canon of interpretation of statute. Hence, double-decker marriage was impliedly created under the law in Nigeria.

• The Noble Quran, Chapter 4v5, Darussalam Publishing and Distributors

• Marriage Act CAP M6 Laws of the Federal Republic of Nigeria 2004

1.1.0    BACKGROUND TO THE STUDY

The essence of marriage in the society cannot be overemphasised, as some marry for the sake of children, some marry to fulfil sexual urge. In advanced country, it is a common phenomenon to see people engage in “contractual marriage” i.e marriage agreement either for months, years or for a specific period. In fact men marry men and women marry women.

In Nigeria, apart from statutory marriage, the other form of marriage is customary marriage. The basic feature of statutory marriage is marriage according to the provision of common law which customary marriage is marriage according to the tradition. In between these two, there appear what we call “a batlike” marriage otherwise known as double-decker marriage.

The issue now is, what is the essence of wasting money on the same marriage twice despite the economic problem prevalent in our country, both socio-cultural and economic associate the double-decker marriage as a pointer to the final associated problem which serves as the basic background for this project.

Therefore, what are the issues, problem and is there any prospect in this double-decker marriage. What is the essence of such marriage since the court has held in Jadesimi v.Okotiebo⁵that the status of customary marriage is also statutorily recognised in Nigeria.

⁵ (1996) 2 NWLR 128

1.2.0    OBJECTIVES OF THE STUDY

Lots of controversies and series of opinions and ideas have accompanied the formation, reasons and necessity for a double-decker marriage. Many have expressed opinions for the necessity of clothing the customary type of marriage with its statutory flavour while to some people, it is basically a waste of money. Therefore, the effort and major objectives of this study will be to examine all the hullabaloos surrounding this common marriage system in Nigeria today. The study will examine the advantage, limitations and reasons why people engage in double-decker marriage. At the end of the exercise, a standing form of model law will be profound by this study based on researcher‟s findings as regards double-decker marriage in Nigeria.

1.3.0    FOCUS OF THE STUDY

The Nigerian legal system as a conglomeration of three distinct forms of laws; the received English law, the customary law and the Islamic law. It should be noted that reception of English law into Nigeria was in two broad forms. Firstly, there were those which were made applicable and enforceable in Nigeria directly and secondly there were those which were received into the country by various local legislators which had formed the bedrock of our present day law.

This project work will therefore examine the statutory provision on marriage and customary law marriage. Efforts shall be made to look at the contraction of both marriages by same parties and the rights such parties can exercise. All these fall within the context of this project work.

1.4.0    SCOPE OF THE STUDY

This study is essentially based on statutory and customary marriage in Nigeria with particular reference to contraction of both types of marriage by some parties which is known as double-decker marriage. Emphasis will also be placed on concept of marriage generally, limitations to double-decker marriage and its validity.

The work is however united by ratifying of materials especially on the statutory and customary law marriage. Even the few available ones have yielded themselves to inconclusive discussions which is part of the thrust of this research.

1.5.0    METHODOLOGY

The methods of research to be employed are basically analytical and critical, by the use of primary and secondary source of law. The primary sources includes statutory provisions, judicial provisions, textbooks and journals.

Secondary sources like opinions of legal writers, essays, seminar lectures and materials from internet are also employed. The sources are essentially in-exhaustive but the foretasted were the means through which the bulk of information was garnered. The Research findings will be further scrutinized by ascertaining or negating their suitability to the current terrain. More importantly, empirical findings were made through an update of events in the globe.

1.6.0    LITERATURE REVIEW

There are plethora of works and authorities on the concept of double-decker marriage. A lot of jurists have one thing or the other to say on this concept.

Nwogugwu E.I⁶ in his book titled “Family Law in Nigeria” is of the opinion that this type of marriage has led to important legal questions and it is uncertain whether the statutory marriage supersedes for all intents and purposes, the previous customary law marriage or whether the customary law marriage is merely put into abeyance, to revive after the subsequent statutory marriage has come to end. There is also the question of whether both marriages co-exist. He has also pointed out two decided cases in which this question arose, “the case of Asiata v. Goncallo⁷ and Ohochucku v. Ohochuku⁸.

Magret Onokah⁹ also made her own contribution on double-decker marriage in her book titled “Family Law” where she gave result of her investigation to the legality of this variant marriage. She also attempted to rationalise its celebration in a system where either a customary law or Act Marriage between the couple with a marriage status. Analysis is also made on the controversy regarding its effects and incidents, which invariably are those of the respective marriage types.

• Nwogugu E.I, Family Law in Nigeria (Reviewed Edition Heniman Studies in Nigerian Law) 3^rd Edition 1900
• (1900) 1NLR 41

• (1960) 1 ALL ER 253

• Magret C, Family Law (Spectrum Law Series) 2003

Barrister Olokooba S.M.¹⁰ in his work titled Termination of “Double-decker” marriage under Nigerian law pointed out the actual meaning of the form of double-decker marriage and what makes it valid. He gave out justification for its validity in Nigeria also the issues and problems of its termination.

Abdulmalik S.M¹¹ in his paper published in Lead City University Journal gave a general note on double-decker marriage on its reason and also its implication and effect. He also gave a short note on its effect on properties acquired during such marriage i.e whether a wife being at a disadvantaged position under customary law marriage does not arise as she will automatically rely on her statutory law marriage.

Therefore, from the aforesaid, it could be seen that the various literature review so far in this study shows the scope and complexity of double-decker marriage which has been properly handled by the various authors. However, the advantages and benefits of double-decker marriage have not been mentioned in any of the materials gathered and therefore not making them sufficient. Premise on that, there is every likelihood that this study will contribute to knowledge in law and in relation to double-decker marriage.

1.7.0    DEFINITION OF TERMS

Quite a number of terms have been used in the course of writing this project. Among those terms and their usages in the study are:

• Olookoba S.M Article on Termination of “Double-Deck” marriage in Nigeria law: Issues, Problemsand Solutions. ( The journal of law and jurisprudence ; Faculty of Law, University of Benin.)

• Abdulmalik S.M, Double-Decker marriage under the Nigerian law(Lead City University Journal) Vol. 1,

Part 1, 2008.

Marriage: this is the union of a man to a woman to the exclusion of all others

Double-decker marriage: two validly permissible marriages contracted by the samepersons under two different systems of law.

Conversion theory: a marriage which is converted thereby losing its characteristics andnature to that which it is converted

Co-existence theory: two forms of marriage which their respective incidents co-exist

1.8.0    CONCLUSION

Hardly can we see any present textbook on family law that contains a lot of double-deck marriage or even recent cases on it. In view of this, available text on marriage in Nigeria as illuminating as they are, are most inadequate in stating the current provision of the incident of double-decker marriage as they stand today in Nigeria.

This research work will critically examine double-decker marriage with a view of improving in materials and particularly the already existing work in this field of study.

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