Custody of Children of Traditional Marriages and the “Chichidodo”.

Custody of Children of Traditional Marriages and the “Chichidodo”. Daily Law Tips (Tip 739) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction: 

There are several forms of marriages in Nigeria. Some are lawful and some are unlawul (like, same sex marriages). Among the lawful marriages in Nigeria are English marriage, Customary marriage and Islamic marriage. Since English marriage can be celebrated in a court premises (Marriage Registry), it is often referred to as “Court Marriage”. Customary marriage is also known as traditional marriage, native marriage and local marriage, among other nicknames.

Participants (couples) under a customary marriage have nothing to do with Courts, Marriage Registries, lawyers and any formal documentation for their customary marriages to be valid and lawful. It takes only consent and payment of dowry (bride price) for a customary marriage to be valid.  However, issues of children in Nigeria are regulated by federal and state laws, and not customary laws and customs.

So, it is always a surprise for couples married under customary marriage to be forced to manage the custody of their children under federal/state laws and not under customary law. It is more surprising since customary marriages are terminated only under customary law but the custody of children of customary marriages are handled under federal/state laws. This work showcases the lawful options for the custody of children born in a customary marriage.

The “Chichidodo” in Custody of Children of Customary Marriage: 

The Ghanaian author, Ayi Kwei Armah in his work (The Beautyful Ones Are Not Yet Born) introduced the bird (Chichidodo) that hates human excrement but feeds on maggots that grow on human excrements. This contrast is a reflection of the facial expressions of my clients, when informed that custody of their children will be managed under Federal/State laws and not under the customs and customary laws that govern their customary marriages. It is always a shock.

Children like any other human being have fundamental human rights. Fundamental human rights are contained in the Constitution of Nigeria. The constitution of Nigeria mandates all governments in Nigeria (Federal, State and Local Government) to ensure that children “ … are protected, against any exploitation whatsoever, and against moral and material neglect”. The affairs of children in Nigeria are also regulated by federal law (Child Rights Act) and similar state laws (Child Rights Laws). The primary essence of the federal and state laws on child rights is to protect the best interest and welfare of every child in Nigeria. To this end, every customary law, custom, religious teachings and codes in Nigeria bow to the federal and state laws in Nigeria on issues of child rights.

The marriage that brought about the birth of a child notwithstanding, the custody of a child in Nigeria is managed under the Child Rights Act or the respective Child Rights Laws of states in Nigeria. Also, whether a child is born under any form of marriage or not, the custody of the child is regulated by the above-mentioned laws. Every custody matter must be resolved by a court of law (Magistrate or High Court) having in mind the best interest and welfare of the child. So, any institution, person, office, group or court that is to decide the custody of a child “the best interest of the child shall be primary consideration.” Even a Customary Court that can terminate a customary marriage according to customs and customary law, cannot decide custody of a child without having in mind the best interest and welfare of the child as stipulated in the Child Rights Act or the Child Rights Laws.

Hence, a couple married under traditional marriage can determine the custody of their child/children by approaching a Customary Court, Magistrate Court or High Court with an application for custody. This may lead to sole custody (only one parent has the full custody of the child) or joint custody (both parents have the shared custody of their child). The argument that under customs and customary laws, that fathers must take custody of their children (especially, their male children) is rubbish and does not apply in any part of Nigeria. It is the parent that will protect and provide for the best interest and welfare of a child that will be granted the custody of a child. And, both parents of a child have equal rights over their child. Custody of a child is not a customary issue, even where the child is born under a customary marriage, rather it is a Child Rights issue and only the courts have the final say on such.

Conclusion: 

Traditional (customary) marriages are lawful and valid in Nigeria. No federal or state law regulates customary marriage. Although, there are few states that have made laws to regulate dowries (bride price) to avoid exploitation of bride grooms. Above all, every custom, customary marriage and customary law must not violate the constitution of Nigeria. Customary marriages can be terminated (divorced) by customary processes (often by a simple return of dowry/bride price). Also, customary marriages can be divorced by applications to the Customary Courts (this is the best option for people that want written proof of their divorce). There is no need to approach any Magistrate Court or High Court for termination/divorce of a customary marriage, since such courts lack powers over customary marriages.

However, where there is need for custody of a child (or children) born under customary marriage, it cannot be handled by custom, customary laws and customary processes rather it must be handled according to the Child Rights Act or its equivalents in states across Nigeria. This entails approaching a Customary Court or Magistrate Court or High Court for a custody order. The Customary Court Laws of various states in Nigeria emphasize on the place of the “best interest of a child” in making of orders for custody of a child. Above all, the courts must make an order for custody only in the best interest and welfare of a child as mandated by the Child Rights Act or the various Child Rights Laws of states in Nigeria. Like the bird, Chichidodo, federal and state laws control the custody of children of customary marriage although, the federal and state laws have no interest in customary marriages in Nigeria. However, this Chichidodo attitude is necessary for the uniformity in prioritization of the welfare and best interest of children in Nigeria, instead of allowing the often abusive and masculine customs and customary laws across Nigeria.

My authorities, are:

1. Section 1, 2, 3, 4, 5, 6, 17(3)(f), 33, 34, 37, 39, 40, 41, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1 and 2 of the Child’s Right Act and its equivalent in states across Nigeria.
3. Section 22 (11) of the Customary Courts Law Cap 41, 2006
4. Section 28 of the Customary Law of Lagos State 2011
5. Section 16 (11)) of the Customary Court Law of Enugu State and and other similar provisions in Customary Court Laws of states in Nigeria
6. The judgment of the Supreme Court of Nigeria (on types of marriages in Nigeria) in the case of CHINWEZE & ANOR v. MASI & ANOR (1989) LPELR-851(SC).
7. The judgment of the Supreme Court of Nigeria (on application of customary law) in the case of ANLA v. AYANBOLA & ORS (1977) LPELR-24887(SC)
8. The judgment of the Supreme Court of Nigeria (on meaning of customary law) in the case of USMAN v. UMARU (1992) LPELR-3432(SC)
9. The judgment of the Supreme Court of Nigeria (on whether a father has absolute right to custody of child under customary law) in the case of OKWUEZE v. OKWUEZE (1989) LPELR-2539(SC)
10. The judgment of the Court of Appel (on meaning of “Custom” and “Customary Law”) in the case of ”ANUNOBI v. NWANKWO (2017) LPELR-43774(CA)
11. The judgment of the Court of Appeal (on whether a father has absolute right to custody of child under customary law) in the case of OKAFOR v. OKAFOR (2016) LPELR-40264(CA)
12. The judgment of the Supreme Court of Nigeria (on the meaning of customary law) in the case of ZAIDEN Vs MOHSSEN (11973)) ALL NLR Page 740
13. The judgment of the Supreme Court of Nigeria (on the definition of “child” and the maximum age for a custody order) in the case of FEBISOLA OKWUEZE Vs PAUL OKWUEZE (11989) 3 NWLR Part 109 page 321.
14. The judgment of the Supreme Court of Nigeria (on how to prove Benin customary marriage) in the case of OSAMWONYI V. OSAMWONYI (1972) LPELR-2789(SC).
15. Court of Appeal’s judgement (on how to prove customary marriage in Nigeria) in the case of MOTOH v. MOTOH (2010) LPELR-8643(CA).
16. Court of Appeal’s judgment (on types of marriages in Nigeria and how to prove customary law marriage) in the case of OBIOZOR v. NNAMUA (2014) LPELR-23041(CA).
17. Justice Folashade Aguda – Taiwo, “Guardianship And Custody Of Children;aCustomary Perspective” (National Judicial Institute, 11 March 2019) <https://nji.gov.ng/wp-content/uploads/2019/03/PAPER-PRESENTATION-ON-GUARDINSHIP-AND-CUSTODY-OF-CHILDREN-UNDER-CUSTOMARY-LAW.pdf> accessed 17 February 2021.
18. Onyekachi Umah, “Custody of a Child In Customary Marriage: How and To Whom?” (LearnNigerianLaws.com, 29 September 2020) <https://sabilaw.org/custody-of-a-child-in-customary-marriage-how-and-to-whom/> accessed 17 February 2021
19. Onyekachi Umah, “Factors That Court Consider Before Granting Custody Of Child To Any Person.” (LearnNigerianLaws.com, 3 March 2020) <https://sabilaw.org/factors-that-court-consider-before-granting-custody-of-child-to-any-person-daily-law-tips-tip-517-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 17 February 2021
20. Onyekachi Umah, “Forget Hollywood & Nollywood: In Nigeria, Marriages Cannot End By Signing Of Divorce Papers.” (LearnNigerianLaws.com, 23 July 2020) <https://sabilaw.org/forget-hollywood-nollywood-in-nigeria-marriages-cannot-end-by-signing-of-divorce-papers-daily-law-tips-tip-616-by-onyekachi-umah-esq-ll-m-aciarbuk/> accessed 17 February 2021.
21. Onyekachi Umah, “How To Prove Traditional Marriage In Nigeria” (LearnNigerianLaws.com, 20 May 2020) <https://sabilaw.org/how-to-prove-traditional-marriage-in-nigeria-daily-law-tips-tip-573-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 17 February 2021
22. Onyekachi Umah, “Customary Marriages In Nigeria Are To Be Registered In Court.” (LearnNigerianLaws.com, 13 September 2018)  <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-183-customary-marriages-in-nigeria-are-to-be-registered-in-court/> accessed 17 February 2021.

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