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Widow Inheritance Versus Monogamous Marriage: The Obas’ Dilemma

Published online by Cambridge University Press:  28 July 2009

Itse Sagay
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Extract

The statutory (monogamous) marriage of Oba Oyekan of Lagos to one Miss Akitoye in December 19722, which caused a stir in both social and legal circles, has once more highlighted some of the perennial problems of trying to operate different systems of marriage arising from different cultures and societies within one legal system and jurisdiction. In order to appreciate fully the dilemma which Obas have occasionally had to face because of the multiple system of marriages, and their varying incidents, it is necessary to give a brief outline of these types of marriages. There are three different types of marriage in Nigeria: (i) statutory, (ii) customary and (iii) Islamic marriages. These coincide roughly with (i) Christian culture, (ii) traditional African culture and (iii) Arabic and Islamic culture.

Type
Research Article
Information
Journal of African Law , Volume 18 , Issue 2 , Autumn 1974 , pp. 168 - 172
Copyright
Copyright © School of Oriental and African Studies 1974

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References

2 Nigerian Sunday Times, December 31st, 1972. The term “Oba” amongst the Yorubas of Nigeria is equivalent to the English term, “King”. “Oba Oyekan” therefore means”king Oyekan”. This marriage caused a stir in Nigeria because as a traditional ruler he was expected to marry many wives, some inherited from the preceding Oba and others actually acquired by himself under customary law. By contracting what is referred to in Nigeria as a statutory marriage (a monogamous type of marriage), he would not only appear to have lost his capacity to acquire further wives, but his act would, at least technically, have constituted a criminal offence in Nigerian law if in fact he was already married to any other woman or women under customary law at the time of his statutory marriage.

3 Cap. 115, Laws of the Federation of Nigeria, 1958 Revision.

4 In such a case, the prior customary marriage is converted into a statutory marriage and the former, therefore, ceases to exist in law. See Kasunmu and Salacuse, Nigerian family law, 1966, 100. It has on occasions been stated that in such a case, the statutory marriage “supersedes” the customary marriage. See Dosunmu, J. in Oseni v. Oseni (unreported) Suit No. HD/2/72 of December 18th, 1972, High Court of Lagos.

page 169 note 1 See A. B. Kasunmu, “The Matrimonial Causes Decree, 1970: a critical analysis,” in the Nigerian Journal of Contemporary Law, Vol. 2, No. 1, 98.

page 169 note 2 Ss. 47 and 48 of the Marriage Act.

page 169 note 3 However, in modern times, an Oba’s widow who does not wish to become the wife of her husband’s successor may move out of the palace.

page 170 note 1 (1922) 8 N.L.R. 68.

page 170 note 2 (1898) 1 N.L.R. 15.

page 171 note 1 D. A. Ijalaye, paper presented at the Faculty of Law Seminar, University of Ife.

page 172 note 1 According to Aguda, C. J., (formerly Chief Justice of Botswana) a large majority of Nigerian men who have contracted monogamous marriages have one or two other “wives” to the full knowledge of the public, including officers of the law (who themselves indulge in the practice), but in spite of this hardly any one has been prosecuted for an offence under ss. 47 and 48 of the Marriage Act. See A. Aguda, “Marriage laws in Nigeria” in Select law lectures and papers, 1971, 84. According to Elias, C.J., (formerly Chief Justice of Nigeria) over 90% of Nigerian men who have contracted monogamous marriages have violated the provisions of ss. 47 and 48.