Democracia directa

But in re The Estate of A g b o r u j a .1 on similar facts, and also in relation to the customary law of

Urhobo, Ames, J., did not see anything wrong w i t h a woman being forced to hand over her children in such.a situation. He held that "there can be nothing intrinsically unfair or inequitable even in the inheritance of widows, where those who follow the custom are pagans, and not Mohammedans or

2

•5

. As wil l be later seen, this so-called "widow inheritance” , and its concomitant - the deprivation of the w i d o w of any benefit in the property left b y her

deceased husband if she refuses to be "inherited” - today remains one of the greatest injustices perpetrated in the name of customary law on Nigerian women. It is difficult to justify application of the rule on the grounds of

religion, as the learned Judge did in the above case. The phrase has been used, however, in a number of cases, especially by the earlier judges, to soften the harsh and discriminatory attitude of customary law towards women. Thus, in Solomon v. Gbobo,^ Holden, C.J., held that a custom whereby the husband could divorce his wife at will, but the wife could not obtain a divorce unless the husband consented, was contrary to natural justice, eauitv and good conscience. Similarly, in Mariyama v.

5

Sadiku E j o . the High Court refused to enforce the application of a rule of Igbirra customary law under w h i c h a wife is forbidden to marry w ithin ten months of

a divorce. If she does so in defiance of the rule, any child born as a result belongs to the former husband. In

1. [1949] 19 N.L.R. 38. 2. Ibid,'p.39*

3. See Chapter X m below, p p . 438-442. 4. [1974]4 E.C.S.L.R.

this case,, the parties had "been separated for .several months before the divorce was granted. The wife remarried after the divorce, but delivered a child within ten months of the divorce. Her former husband was given custody of the child in the trial court, but the decision was reversed in the High Court on the ground that the rule was repugnant. The learned Judge was careful to point out that

"We must not be understood to condemn this native law and custom in its general application...There is a similar provision in Moslem law and also in English law, where there is a presumption in similar cases that the former husband is the father. That pres­ umption must be rebuttable if natural justice is to be done. In this case it has been clearly and absolutely r e b u t t e d •"1

One of the oldest cases in whi c h the repugnancy

2

According to Ibibio customary law (as is the case in most systems:, of customary law) a man-who has paid dowry for a woman is entitled to - custody and legal paternity of all her children whether begotten b y him or not, provided such dowry has not been repaid.

2

In Edet v. E s s i e n . a m a n paid dowry for a

woman w hen she was a child. Later she married another man who had also paid dowry for her, and bore three children by him, one of w hom died. The first husband, whose dowry had not been refunded, was granted custody of her two

surviving children b y the Customary Court in accordance w i t h Ibibio customary law. On appeal, this decision was reversed on the ground that it was repugnant to natural

justice, equity and good conscience that a man should be entitled to the child of another, simply because the dowry he had paid on its mother had not been refunded to him.

This decision alleviated the mental agony of many mothers who would have been deprived of their children

1. I b i d . , p .83.

in similar circumstances• The decision seeped through .to- the Customary C o u r t s , where pudges, although

reluctantly, applied the precedent to similar cases. Unfortunately, however, 'many High Court Judges have

distinguished the decision on its facts, and have refused to follow it even in cases w h ich would have justified the application of the repugnancy rule, independent of the decision in Edet v. E s s i e n .^

An example of such a case is Nwaribe v. R e g i s t r a r . Eastern O r l u .^ In this case, the husband of a woman, 0,

died, and she continued to live in the matrimonial home w i t h the family of the deceased. She became pregnant, but before delivery she married the father of the child, the applicant in the case. The native court, dealing w i t h the formal dissolution of her marriage w i t h the deceased,

awarded the child to the deceased. The Applicant appealed, arguing that the decision of the Native Court was wrong, on the ground that it was against natural justice, equity and good conscience to have" awarded the child to the deceased as against the new husband. Evidence given by the applicant himself indicated that

nU n d e r the local custom of Otulu, a w o man whose husband is dead, cannot be married b y any of the relatives of the deceased but the children born after the death of the deceased are the children of the deceased” .-,

Egbuna, J., held that if the applicant knew that this is the custom of Otulu, and impregnated the woman w h i l s t she was staying in the deceased h u s b a n d !s place, he

could not be heard to complain that the decision of the native court was against natural justice. The Judge quoted w i t h approval a passage from E l i a s ’S'book, "The Nigerian Legal S y s t e m , to the effect that-

”Under ancient customary law marriage was almost always indissoluble, as it was looked upon as a permanent social and spiritual bond between man

li [1932]11 N.L.R. 47. 2. [1964]8 E.N-.L.R. 24. 3. Ibid.; p. 26.

I ♦ |

| and wife on the one . hand and their respective families on the other

The learned Judge held that if a wom a n stays in the matrimonial family after the death of her husband, and becomes pregnant during such period, it is not against | natural justice and equity that the child is regarded as

a member of that household.

W ith the greatest respect, it is submitted that the learned Judge failed to recognize the fact that, whether the widow remained in the deceased husband's family or not, according to Otulu customary law, any child conceived by her belonged to her dead husband. Secondly, the passage he

quoted w i t h approval referred to ancient customary law. Divorce is now prevalent in all Nigerian societies, and in

all types of marriages, even inter v i v o s . Thirdly, the passage quoted referred to societies where the widow is allowed to remarry another member of her deceased

husband's family. In the present case, the law expressly forbade such remarriage. Fourthly, but not the least important, the applicant was not protesting against the decision of the customary court as such, but against the particular rule of customary law which made such a decision legally possible. His knowledge of the law is therefore irr e l e v a n t .

2

As stated elsewhere, the phrase "repugnant to natural justice, equity and good conscience” applies to

"customary l a w ” , and not to its application in specific situations. It is therefore clear that the courts should in all cases consider whether the rule itself is repugnant to natural justice, equity and good conscience, and if they find that it is, then the particular rule should not be enforced, regardless of whether the complainant against the rule knew of its existence or not.

In a country like Nigeria, where men continue to marry women very much younger than themselves, widows may

1. Ibid., p. 26.

2. A.E.W. Park, The Sources of Nigerian L a w . (Lagos, African Universities tress, I$b3, 4th imp. 197b, p. 78.

.be.very young. Any rule of law w h i c h denies remarriage to such widows, or indeed to any widow, must be regarded as repugnant and against public policy. It promotes illicit intercourse. It is also clear discrimination against women, since a husband can marry another w o man during the

life-time of the wife, but she is prevented from remarrying even after her h u s b a n d ’s death. This principle of law is invalidated b y section 39(1) of The Federal Constitution

1978.1 •