¹ A son cannot inherit (marry) his mother.

² A widow who has children of the marriage almost invariably remains in her matrimonial home.

³ (1989) 1 N.W.L.R. (Part 97) 254.

⁴ See Nwogugu, E. I., Family Law in Nigeria, Ibadan, 1990, 1.Google Scholar

⁵ Green, M. M., Land Tenure in an Ibo Village, London, 1941, 2–3.Google Scholar

⁶ Suit No. SC/675/65 of 3 January, 1968 (unreported) noted in Kasunmu, , “Proof of polygamous marriage in Nigerian High Courts: Lawal & Ors v. Toman & Ors: re-examined”, (1969) Journal of Islamic and Comparative Law, 27 at 28.Google Scholar

⁷ See ss. 30(1) and 32 of the Marriage Act (cap. 218).

⁸ (1961) 1 All N.L.R. 245.

⁹ See also Abisogun v. Abisogun (1963) 1 All N.L.R. 237, at 243 per Ademola, , C.J.F.; Obele v. Obele (1973) 2 RSLR 4; Osamwonyi v. Osamwmyi (1973) N.M.L.R. 25.Google Scholar

¹⁰ Cap. 218, Laws of Nigeria, 1990 Edition.

¹¹ See s. 35 of the Marriage Act (cap. 218). See also In re Grace Spencer Caveatrix (1964) 2 All NX. R. 171; Ogunnmi v. Ogunmni (1972) 2 U.I.L.R. 466. cf. Church, J., “The dichotomy of marriage by customary and by civil rites—a note on a recent Swaziland decision” XI C.I.L.S.A. (1978) 80”,82.Google Scholar

¹² In matrilineal communities any child born by a woman, whether married or unmarried, is a legitimate child of her father’s family.

¹³ (1979) 2 L.R.N. 339.

¹⁴ At 345.

¹⁵ (1972) N.S.C.C. 172.

¹⁶ At 178–179, per Madarkan, J.S.C.

¹⁷ (1976) Les.L.R. 281.

¹⁸ No. 10 of 1974.

¹⁹ See Obek v. Obele (1973) 2 R.S.L.R. 4, Solomon v. Gbobo (1974) 2 R.S.L.R. 30.

²⁰ Nwogugu, op. cit., 63.

²¹ Sororate marriage is one in which on the death of a wife, the widower may be presented with a substitute by her family without a fresh marriage procedure. In such cases, the first marriage is regarded as continuing with the new wife taking the place of her deceased relative. This type of marriage is now virtually extinct in Nigeria.

²² There was also Lebitla (Ghost) marriage.

²³ Poulter, S., Family Law and Litigation in Basotho Society, Oxford, 1976, 153–154. See also S. Poulter, “Marriage, divorce and legitimacy in Lesotho”, [1977] JAL 66.Google Scholar

²⁴ For instance, in Lesotho, s. 34(3) of the Laws of Lerotholi, 1959 prohibits the special customary law marriage of Lebitla a n d Lebota. See also s. 10(1) of the Chieftainship Act, 1968 (Lesotho).

²⁵ See Nwogugu, , op. cit., 63.Google Scholar

²⁶ See Obele, Obele v. (1973)Google Scholar 2 R.S.L.R. 4; Gbobo, Solomon v.Google Scholar (1974) 2 R.S.L.R. 30.

²⁷ A widow will almost invariably elect to remain in the family and household of her deceased husband when there are issues of the marriage, unless there are compelling reasons to the contrary.

²⁸ Elias, T.O., The Nigerian legal System, London, 1962, 298Google Scholar. See also Johnson, S., The History of the Yorubas, Lagos, 1976, 115–116Google Scholar; Obi, S.N.C., The Customary Law Manual, Enugu, 1977.Google Scholar

²⁹ Roberts, S., Botswana: Tswana Family Law, London, 1972. It has been shown that the custom of widow inheritance is also known to the Shona people of Zimbabwe: see j. May, Zimbabwean Women in Customary and Colonial Law, Harare, 1983, ch.11; also Goldin and Gelfand, African Law and Custom in Rhodesia, 292–294.Google Scholar

³⁰ See Nwogugu, op. cit., 223; Kasunmu, and Salacuse, , Nigerian Family Law, London, 1966, 181–182.Google Scholar

³¹ Nwogugu, , op. cit., 66Google Scholar.

³² See Goncallo, Asiata v.(1900) 1 N.L.R. 41Google Scholar; Ohochukwu, Ohochukwu v. (1960) 1 A11E.R. 253Google Scholar; Akparanta, Akparanta v. (1972) 2 E.C.S.L.R. 779Google Scholar.

³³ (1989) 1 N.W.L.R. (Part 97) 254, at 268.

³⁴ Nwogugu, , “Legitimacy in Nigerian Law” [1964] J.A.L. 91. See also Smith v. Smith (1924) 5 N.L.R. 105, where die court held that although the fact that natives married according to the rites of the Church of England raises a presumption that they intend that their lives, their actions and their property should be regulated by English laws and standards, this is not conclusive evidence of such an intention, and that in deciding the question the court shold be guided by consideration of the position in life occupied by the parties and their conduct with reference to the property in dispute.Google Scholar

³⁵ See Younan, Lawal v. (1961) 1 All N.L.R. 245Google Scholar; Bamidek, Adeyemi v. (1968) 1 All N.L.R. 31Google Scholar; Anamah, Jirigho v. (1958) W.R.N.L.R. 195.Google Scholar

³⁶ Nwogugu, , op. cit., 223.Google Scholar

³⁷ Roberts, , op. cit, 108.Google Scholar

³⁸ Poulter, , “Marriage, divorce and legitimacy in Lesotho”, at 78.Google Scholar

³⁹ (1964) 8 E.N.L.R. 24. See also Amachree v. Goodhead (1923) 4 N.L.R. 101, where the court held that a child born by the wife of a deceased man with a paramour before the dowry was repaid belonged to the family of her deceased husband and not to her family.

⁴⁰ See also In re the Estate of Agboruja (1949) 19 N.L.R. 38.

⁴¹ (1975) 5 E.C.S.L.R. 305, at 311. Nwaribe’s case was cited with approval in this case.

⁴² (1976) 6 E.C.S.L.R. 276.

⁴³ Neither Nwaribe’s case nor Abiakam’s case was cited in this case.

⁴⁴ (1981) (1) Bot.L.R. 94.

⁴⁵ See also Molapo, Molapo v. (1971–1973) Les.L.R. 289; (1974–1975) Les.L.R. 116. In Griffith v. Griffith (The Regency case) (1926–1953) H.C.T.L.R. 50, the High Court of Basotho, Lesotho observed that ‘the custom of Kenela (widow inheritance) which flourished formerly is now in a considerable state of disuse and therefore cannot be regarded as a well established custom’. However, the question of the legal status of children of Kenela arrangement was not before the court and the court did not make any pronouncement on this.Google Scholar

⁴⁶ In the Nigerian legal system, the Supreme Court is the final court of appeal. The Court of Appeal comes immediately before the Supreme Court. Below the Court of Appeal are the High Courts. All these are the superior courts of Record.

⁴⁷ (1989) 1 N.W.L.R. (Part 97) 254.

⁴⁸ A second defendant was joined on his application by the High Court.

⁴⁹ It was also held that under customary law a wife has only a life interest in the property of her husband. Consequently Elizabedi Chinweze left nothing for the appellants to inherit with regards to the property in dispute.

⁵⁰ At 268.

⁵¹ At 270.

⁵² Issue for determination No. 6 in appellants’ brief, reproduced in the Law Report at 268.

⁵³ This is in agreement with the opinion of Omosun, J., in Yesufu’s case, although the latter case was not cited or considered by the Supreme Court. In fact, none of the earlier High Court decisions on the issue was cited or considered by the Supreme Court in Chinzveze’s case.

⁵⁴ Uwais, J.S.C., was even more forthcoming in his concurring judgment. He said: “The appellants, though the children of Mrs Elizabeth Chinweze, did not establish any relationship with late Peter Chinweze, apart from living, after his death, in the property in dispute as the children of Mrs Elizabeth Chinweze. They were not the children of Peter Chinweze, since he died in 1939 and the eldest of the appellants—first appellant—was born in 1943, nor were they by any twist of imagination, his heirs under any law—statutory, common or customary” (at 272).Google Scholar

⁵⁵ See Anyanwu, Abiakam v., above, at 311. See also Nivaribe’s case.Google Scholar

⁵⁶ It has been argued that “since the effect of an adoption order is to establish the legal relationship of parent and legitimate child between the adopter and the juvenile, it is possible for the parent of an illegitimate child to adopt such a child and confer upon him all the privileges of a legitimate child”. See Kasunmu and Salacuse, op. cit, at 248.

⁵⁷ S. 39(2) of the 1979 Constitution of Nigeria; s. 41(2) of the 1989 Constitution.

⁵⁸ See Gaborone, Gaborone v., above. See also s. 11 of the Matrimonial Causes Act, 1965 of England (formerly s. 9 of the Matrimonial Causes Act, 1950).Google Scholar

⁵⁹ At 261. See also ibid., at 276 per Agbaje, J.S.C. 60 At 278.

⁶¹ There is no question that under the adversary system operative in Nigeria, parties are bound by their pleadings; yet the courts are entitled to take judicial notice of a notorious custom.

⁶² At 268.

⁶³ The Court of Appeal in Okelola v. Boyle (1989) 5 N.W.L.R. (Part 119) 46, at 56 cited Chinweze’s case with approval, although it is not clear from the Law Report whether it considered itself bound by that decision.

⁶⁴ See Allen, C. K., Law in the Making, Oxford, 1958, 256.Google Scholar

⁶⁵ S. 14(1) of the Evidence Act, Cap. 62, Laws of Nigeria, 1958 Revision. But under s. 14(2) a notorious custom may be judicially noticed. Similar provisions are contained in the Evidence Laws of die various states of Nigeria. By s. 50(1) of the Courts Act, 1971 (Act 372) of Ghana, the question as to the existence or content of any rule of customary law is one of law, not fact: See Akologo, Abagana v. (1977) 1 G.L.R. 382.Google Scholar

⁶⁶ Similar provisions are found in ss. 12, 22 and 34 of the Western, Eastern and Northern Regions High Court Laws, respectively.

⁶⁷ Evidence Act (Fed. and Lagos, cap. 62, 1958 Revision); Evidence Law of Eastern Nigeria, 1963; Evidence Law, Laws of Northern Nigeria, 1963.Google Scholar

⁶⁸ For details, see Oluyede, P. A., “Judicial approach to customary law” (1968) Vol. III, Nigerian Lawyers Quarterly, Ojo, “Judicial approach to customary law” (1969) Journal of Islamic and Comparative Law 44; Obilade, The Nigeria Legal System, London, 1979, 100–110.Google Scholar

⁶⁹ See Nwogugu, op. cit., 223. Cf. Poulter, “Marriage, Divorce and Legitimacy in Lesotho”, at 78.

⁷⁰ (1949) 19 N.L.R. 38. Cf. Anibi, Ailera v. (1951), 20 N.L.R. 46, per Jmowu, J. (as he then was).Google Scholar

⁷¹ (1964) 8 E.N.L.R. 24.

⁷² See also Goodhead, Amadme v. (1923), 4 N.L.R. 101.Google Scholar

⁷³ (1975) 5 E.C.S.L.R. 305.

⁷⁴ (1976) 6 E.C.S.L.R. 276.

⁷⁵ According to the learned judge, “a customary fiction which presupposes that the marriage is still subsisting is nothing more than self-delusion and out of touch with present day Nigeria” (at 276).

⁷⁶ At 268, emphasis supplied.

⁷⁷ See Ojo, , “Judicial approach to customary law”, at 46.Google Scholar

⁷⁸ See Oluyede, , “Judicial appraoch to customary law”, 12–13.Google Scholar

⁷⁹ Per Bairamian, F.J., in Owonyin v. Omotosho (1961) 1 All N.L.R. 304, at 309. Cf. s. 2 of the Evidence Act, Cap.62 1958 Revision.Google Scholar

⁸⁰ Nigerian Legal System, London, 1962, 5–6; cf. Obilade, Mgaian Legal System, London, 1979, 102–103.Google Scholar

⁸¹ (1908) 1 N.L.R. 81.

⁸² At 100–101.

⁸³ See Essien, Edet v. (1932) 11 N.L.R. 47Google Scholar; Satiku Ejo, Mariyama v. (1961) N.N.L.R. 81Google Scholar; Akologo, Abangana v. (1977) 1 G.L.R. 382.Google Scholar

⁸⁴ See Amalabimi, Ibrahim v. (1978) G.L.R. 368 (Part 2).Google Scholar

⁸⁵ See Younan, Lawal v. (1961) All N.L.R. 245, at 250 per Ademola, C.J.F. See also Ibrahim v. Amalabimi (1978) G.L.R. 368 (Part 2) where it was held that illegitimacy is unknown to FraFra Customary Law.Google Scholar

⁸⁶ See Elias, T.O., “The impact of English Law on Nigerian Customary Law”—A Reprint of the 1958 Lugard Lectures.Google Scholar

⁸⁷ In the Ghanaian case of Amalabimi, Ibrahim v. (1978) G.L.R. 368 (Part 2) the court noted that after the promulgation of the Republican Constitution of 1960, the customary laws of the various tribal communities became part of the law of the country and the only test for their validity was whether they fulfilled those conditions which under the general law of the country must be satisfied by all customary laws. They were no more subject to the imperial repugnancy provision of natural justice, equity and good conscience.Google Scholar

⁸⁸ See Danmole, Dawodu v. (1962) 1 W.L.R. 1053.Google Scholar