Greystone Law & Risk

The Joint Legal Action Aid,JLAA is outraged by the pictures and videos emerging from security forces’ attack on protesters across the country.

We demand the immediate arrest and prosecution of all errants officers involved in the excessive use of force against protesters.

We also call on the authorities to immediately end the impunity of SARS which is responsible for these protests in the first place.

A lady shot by the police during today’s in Lagos is currently fighting for her life at a hospital. Nigerians🇳🇬 protesting police atrocities are punished with more callous police brutality.

The organizers of the Lagos have contacted me, and I have given them my full assurances that our law firm, Greystone Solicitors and the entire Legal Team of the Joint Legal Action Aid will offer Pro Bono legal services to anyone/everyone arrested during the protest in Lagos , Ogun, Ondo and PortHarcourt.

Protest is a constitutionally guaranteed right and no one should be arrested or attacked for exercising that right.

To this end, if the Nigeria Police Force or any other security agency decides to violate the Constitution of Nigeria with impunity as they are wont to do, by embarking on illegal arrest and prosecution, Greystone Solicitors and the entire Legal Team of JLAA will defend the protesters in court free of charge.

No government or agency of state is greater than the people.

Feel free to take part in the peaceful protest. Do not be afraid. Nigeria is our country and we will not allow anyone to turn us into slaves in our country.

It is the duty of every patriot to save this nation of ours from rascals masquerading as Law Enforcement agents.

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THE LEGAL REQUIREMENTS OF MARRIAGE UNDER NIGERIA’S MARRIAGE ACT

In Nigeria, there are basically three types of marriage recognised by the law. These are statutory marriage, customary marriage and Islamic marriage. Our focus in this article is on statutory marriage which is regulated by the Nigerian Marriage Act, cap 218, Laws of the Federation 1990.

The Nigerian Marriage Act, cap 218, Laws of the Federation 1990 lays down certain preliminary requirements which are to be fulfilled before the solemnization of marriage under that statute. Persons wishing to get married pursuant to the Act must thereby comply with the legal requirements under the Act; non-compliance of which will invalidate the marriage.

Before the celebration of the marriage, the Act provides that the parties shall sign and give to the Registrar of the district in which the marriage is intended to take place, a notice in the prescribed form. The Registrar shall then cause the notice to be entered in the Marriage Notice Book in his registry. A copy of this will be displayed in the registry for inspection by the public.

After a period of 21 days has expired, the Registrar shall issue his certificate of notice. But the Registrar must be satisfied that there is no cause why he should not allow the parties to be married.

Any person whose consent to a marriage is required or who may know of any just cause why the marriage should not take place, may enter a caveat against the issue of the Registrar’s certificate by writing at any time before the issue of the Registrar’s certificate the word ‘Forbidden’ opposite the entry of the notice in the marriage notice book and include his name, place of abode and the grounds upon which he claims to forbid the issue of the certificate.

The Registrar shall not issue the certificate until such caveat has been pursued and disposed of – Section 14, Marriage Act.

Parties will be deemed to have the capacity to marry if they satisfy the Registrar of the following requirements:

Age.

The Marriage Act does not specify any minimum age limit. It merely states that unless a party is a widow or widower, there is need to obtain the written consent of either the parents or guardians where such person is under the age of twenty one years. The Act further provides in section 49 that whoever shall marry or assist any person to marry a minor under the age of twenty one years, not being a widow or widower, shall be liable to imprisonment for two years.

Consent.

Under statutory marriage or marriage under the Act, parental consent of both the male and female parties is a legal requirement but only in cases where either or both of the parties are under the age of twenty one years. The Marriage Act is silent in relation to the consent of parties themselves but the Matrimonial Causes Act (MCA), 1970 provides for the ‘real consent’ of the parties, that is, consent obtained without ‘duress or fraud’.

Subsisting Marriage

Parties will lack the capacity to embark on a statutory marriage if either of them is already married under the Act to another person and the marriage has not been dissolved by any court of law. Also, section 33 (1) of the Marriage Act provides that no marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any other person other than the person with whom such marriage is had.

It is therefore clear that unless the Registrar is satisfied that there is no subsisting statutory or customary law marriage on the part of any of the parties wishing to marry under the Act, he shall not issue them with a certificate to marry under the Act.

Kindred and Affinity.

Persons intending to get married must ensure that there is no impediment of kindred or affinity between them. The list of prohibited degrees of consanguinity and affinity applies to statutory marriages and it is provided in Schedule 1 of the MCA.

A Registrar will not issue a certificate to marry unless he is satisfied by reason of a sworn affidavit by the parties that there is no such impediment. A marriage between two persons who are within the prohibited degree of consanguinity or affinity is void.

Under section 4 of the MCA, where persons are within the prohibited degrees of affinity and desire to marry, they may apply in writing to a Judge for permission to do so and if the Judge is satisfied that there are exceptional circumstances, the Judge may by an order permit the parties to marry one another.

The prohibited degrees of consanguinity and affinity are as follows:

Consanguinity
Affinity
Marriage of a man is prohibited if the woman is, or has been his:
1. Ancestress or Wife’s mother
2. Descendant or Wife’s grandmother
3. Sister or Wife’s daughter
4. Father’s sister or Wife’s son’s daughter
5. Mother’s sister or Wife’s daughter’s daughter
6. Brother’s sister or Father’s wife
7. Sister’s daughter or Grandfather’s wife
8. Son’s wife
9. Son’s son’s wife
10. Daughter’s son’s wife.

Marriage of a woman is prohibited if the man is, or has been her:

1. Ancestress or Husband’s father
2. Descendant or Husband’s grandfather
3. Father’s brother or Husband’s son’s son
4. Mother’s brother or Husband’s daughter’s son
5. Brother’s son or Mother’s husband
6. Sister’s son or Grandmother’s husband
7. Son’s daughter’s husband
8. Daughter’s daughter’s husband.

Once the parties satisfy the Registrar that there is no impediment to their marriage, the Registrar will issue them with the certificate to marry. On receipt of the certificate, the parties can celebrate their marriage in a church duly licensed for the celebration of statutory marriages or in a marriage registry.

It should not be presumed that every church is a licensed place for the celebration of marriages in accordance with the Act. Under section 33 (2) of the Marriage Act, a marriage shall be null and void if both parties knowingly and wilfully acquiesce in the celebration of a marriage in:
1. i. A place other than the office of a registrar of marriages or a licensed place of worship, or

2. ii. Under a false name, or

3. iii. Without registrar’s certificate of notice.

The granting of a Registrar’s certificate may be waived by the obtaining of a special licence. Section 22 of the Marriage Act forbids a minister of religion to celebrate any marriage until the parties have delivered to him the Registrar’s certificate or a special license from the governor under section 13.

Section 43 imposes a maximum penalty of five years imprisonment for performing a marriage in defiance of the Act.

The sanctity of marriage is crucial to the moral fabric of every society. The Nigerian Marriage Act has clearly attempted to provide very solid benchmarks and requirements that would ensure that the very essence and sanctity of marriage is not violated or trampled upon. In doing this, the Marriage Act is invariably protecting the moral sanctity of the Nigerian society.

THE LAW OF INHERITANCE IN NIGERIA

The rights of a person over his property, whether real or personal survives his death and devolves on his personal representatives by operation of law. These personal representatives may either be executors or administrators.

Executors are appointed by the deceased in his Will to execute the terms of his Will while administrators are appointed by the court to administer the deceased’s estate who died intestate or even testate but without leaving able, willing and ready executors to act.

Personal representatives hold the property of the deceased solely for the purpose of administering it for the benefit of the beneficiaries, by collecting the assets, paying the debts and investing what is left.

The Nigerian legal system can best be described as a combination of Nigerian legislation, English law, customary law (including Islamic law) and judicial precedents. Nigerian colonial experience left her with a plural-legal system.

In this regard, all the African States formerly under British administration share a common experience with regard to their legal and judicial systems. Nigerian legislation therefore consists of statutes and subsidiary legislation. Statutes consist of Ordinances, Acts, Laws, Decrees and Edicts.

With respect to inheritance, the question of legitimacy and legitimization are principally connected with the status of the successor of the deceased. According to Kasumu and Salacuse (Nigerian Family law 1966), legitimacy is the status acquired by a person who is born in lawful wedlock and such a person is regarded as been legitimate from birth.

Since lawful wedlock includes marriage under the Act, as well as customary law, which includes Islamic marriage, any child born during the subsistence of either of these aforementioned marriages is legitimate as was held in Lawal v. Younan [1961] 1 All NLR 254.

Also, if the child is born within 280 days after his parents have obtained a decree absolute, the presumption of legitimacy will still apply to the child.

Under Islamic law, a child is presumed to be legitimate once he is conceived during subsistence of the marriage. It is immaterial whether the child is born after the marriage has been dissolved.

In Nigeria, the concept of legitimacy is very important because of the social stigma that is associated with illegitimacy. At common law as was seen in the case of Galloway v. Galloway (1965) A.C. 229-311, an illegitimate child had no right of inheritance whatsoever with regard to his parent. He is described as filius nullius.

The illegitimate child was a stranger in law not only to his father but also to his mother and all other relatives. He thus, had no legal right to succeed to their property, to receive maintenance “or other benefits deriving from the status of parent and child.”

Also, an illegitimate child has no right to participate in the intestacies of either of his parents. Likewise, neither of his parent had a right to inherit on the intestacy of the illegitimate child. He also had no right to take on the intestacy of a grandparent or brother or sister (whether legitimate or not) and vice versa.

The influence of received English law on customary law is very prominent in the area of personal laws (marriage and inheritance). Laws governing the marriage relationship in Nigeria tend to impact dramatically on women’s legal position and status in many respects including domicile, property rights and legal competence.

Invariably, a woman’s right to property depends on the type of marriage she contracted. There are two types that are recognised under the law: statutory marriages and customary marriages, which include marriages under Islamic law. Therefore, any discourse on women’s inheritance rights in Nigeria must be done in the light of diversity of the legal system.

By reason of the pluralistic nature of the Nigerian legal system, different systems of law apply to determine who succeed and inherit property of deceased persons.

In determining which systems of law is applicable to a particular deceased, it is necessary to determine whether he died testate or intestate, that is having written a Will in his life time or not.

If he wrote a Will in his life time, then the terms of his testamentary instrument automatically displace any existing rules of inheritance, whether under any Customary law, Islamic law or marriage under English law. It is only when he died intestate that the questions; was he a Moslem, was he married under the statute or what was his customary law would arise.

Nigerian law on testate inheritance/succession includes: The Wills Amendment Act, 1937 and the Wills Amendment Act, 1852, regarded as statutes of general application, which were in force in England on January 1, 1900 and the Wills (Soldiers and Sailors) Act, 1918 which deals with the formal validity of Wills.

In some states of the federation of Nigeria, the 1958 Wills Law, CAP 133, Laws of Western Nigeria applies. These states include Oyo, Ogun, Ondo, Osun, Ekiti, Edo and Delta.

This law is essentially a re-enactment of the above mentioned laws on Wills. However, section 3(1) of the Wills Law, 1958 contains a provision not contained in the other Laws mentioned above to the effect that: “The real or personal estate which cannot be disposed by the applicable customary law, cannot be disposed by will”.

Testate inheritance in some states in Eastern Nigeria is governed by the Succession Law Edict, 1987. The provisions of part 4 of the 1987 Edict are similar to those in the Wills Act, 1832 and Wills Law, 1958. It is important to note that these laws apply in respect of the spouses of a statutory marriage and their children.

No disability is placed on widows with regard to inheritance under a testamentary disposition. They are not treated differently from other beneficiaries with regard to their general right of inheritance as their counterparts in England.

The provisions of these laws, however, do not extend to widows who contracted customary law marriage which is a marriage governed by customary law which law is a reflection of the popular consciousness of the people who evolved it.

Legitimization is the process by which a child who has not been born legitimate acquires legitimate status. In Nigeria, legitimization can be achieved either by the subsequent statutory marriage of the parent of the illegitimate child or through the process of acknowledgement under customary law.

Legitimacy by subsequent marriage was first made possible under the provisions of the Legitimacy Act 1929 which applied throughout the whole country at that time. Under the aforementioned statute, where the parents of an illegitimate child marry after the birth of the child, the child becomes legitimate from the date of the marriage.

But if the marriage took place before the date the legislation that is, Ordinance came into effect, then the date of legitimization, will be the date the Act came into effect. The legal effect of legitimization is that the legitimated child acquires the same status with children born in lawful wedlock.

He can effectively participate in the administration of the estate of his parents and also be entitled to inheritance.

However, when an illegitimate person died after the commencement of the Act, and before the marriage of his parents, his spouse, children and remoter issue living at the date of the marriage of his parent will inherit property and take any interest as if the person had been legitimized before his death.

On the other hand, under customary law, a child though born out of wedlock can be legitimized by acts of acknowledgement by his putative father.

The legal effect of acknowledgement was aptly described by Cole, J in Taylor v. Taylor (1960) L.L.R. 286, when he held that “the acknowledgement of paternity by the father ipso facto legitimizes the children and there could not for the purpose of succession be different degrees of legitimacy”.

Testate succession consists primarily of wills. In Nigeria, there is no uniformity of applicable laws relating to wills. Consequently, among the states that were created out of the former western region, the applicable law is the Wills Law.

By virtue of the provisions of the Lagos State (Applicable Laws) Edict of 1972, Lagos State adopted the Western Nigerian Law. On the other hand, the rest of the country consisting of the states from the Northern and the Eastern part, still apply the English Wills Act 1837 and the Wills Amendment Act 1852.

A critical analysis of the provisions of the Wills Law shows that the legislation basically re-enacted the provisions of the Wills Act 1837 and the Wills Amendment Act 1852 together with the provisions of the Wills (Soldiers and Sailors) Act 1918, but with inclusion of some provisions that took into consideration the prevailing customary laws and principles that regulate succession under customary law in the affected states.

Also, Section 15 of the Wills Law provides that every Will made by a man or woman shall be revoked by his/her subsequent marriage. However, the Wills Law exempts a marriage in accordance with customary law from having this effect.

On the other hand, intestate succession basically involves the applications of three systems of laws, like the position with legitimacy and legitimization. These are (a) the common law (b) the Administration of Estate Laws of the various States and (c) customary law.

The crucial question is how does one determine the applicable laws to be applied in cases of intestates’ succession non-customary?

According to Prof. Itse Sagay (SAN) “the factor, which determines which system is to apply in every case, is the type of marriage contracted by the intestate person. In the case of Muslims, the religion practised by the deceased is also relevant”.

Commenting further, the learned Professor stated the principles of law as follows: Thus, if a person contracts a Christian (monogamous) marriage outside Nigeria, the common law of England governs the distribution of his estate.

If he contracts a statutory (Act) marriage in Nigeria, then if he dies domiciled in Lagos or any of the states comprising the old Western Region, then the Administration of Estate Law will govern.

If he contracts a statutory marriage, but dies domiciled in any of the states comprising the former Northern or Eastern Regions, which are yet to enact their own law on non-customary succession, then the common law will also govern the distribution of his estate.

Finally if the intestate person was an indigenous Nigerian and he did not contract a Christian or Act marriage, or even if he did, and no issue or spouse of such a marriage survived him, his estate will be distributed in accordance with the relevant customary law. If the intestate was a Muslim, then Islamic law would govern.

It is imperative to bear in mind that the above stated position of the law is subject to many qualifications. For instance, in cases involving the distribution of immovable properties of intestate persons, the applicable law is the lex situs, in other words, the law of the place where the land is situated.

Therefore, the above generalisation is only correct with respect to movables. Also, where a person who is subject to customary law or Islamic law dies intestate, it is his personal law that will apply to the distribution of his immovable property and not the lex situs