By HW Emmanuel J. Samaila
I was taught and I have read several textual and judicial authorities where it was stated or held that the payment of bride price (more commonly referred to as “dowry”) is one of the formal requirements in the process of creating a valid marriage under customary law.
It is indisputable that customary practices differ from one locality to another. In fact, even among a particular ethnic group, there may be varying hues of a customary practice. Therefore, it could be misleading to assume that a particular custom is well-established, especially if it has been judicially noticed, as this does not take into cognizance the fact that customary law is “a mirror of accepted usage[1]”, a description which aptly captures its transience.
What constitutes the custom of any group of people is a matter of fact. A party in an action is at liberty to state what the applicable custom is and it is open to the other party to disprove it. Parties, even when unrepresented, ought to be led to give evidence of their custom which, except it has been declared repugnant, is judicially enforceable.
Among the Gbagyi people resident within Chikun LGA in Kaduna State, the non-payment of bride price prior to or after a cohabitation without marriage between a man and a woman renders their relationship a mere friendship devoid of the status of a valid marriage. The length of the cohabitation or the fact that they have children is inconsequential.[2] While their marriage custom falls under the well-established principle that the payment of bride price is one of the preliminary requirements in the process of creating a valid customary marriage, there is at least one exception.
Under the Adara marriage custom, at least among the members of the tribal group resident within Kajuru LGA in Kaduna State, cohabitation by a man and a woman constitutes a valid marriage if the husband had first sought and obtained the consent of his wife’s father to marry his daughter. The Adara people place more emphasis on the obtainment of this consent than on the payment of bride price as generally practiced by other ethnic groups. They value and wish for a peaceful and blissful marriage whose pleasantness will cause the husband to subsequently pay the bride price on his own volition at his convenience or whenever beckoned to do so by his in-laws.
There is a general understanding among the Adara people that the unpaid bride price is a debt owed by the husband which may be demanded from him if unpaid at the time he seeks to divorce his wife. The payment of the bride price, unless waived by the woman’s family, is one of the conditions to be satisfied in the process of finalizing the divorce between the couple’s families.[3] This is an exception to the general customary practice where it is only damages that the parents of a woman may demand from the man who cohabited with but refused to marry their daughter.
It is notable that the Court had no reason to declare the custom of making the payment of bride price a condition for the dissolution of a marriage as repugnant as it is the Adara people’s unique and commendable way of putting a premium on the relational aspect of the union than on its transactional side.
Each case for the dissolution of a customary marriage ought to be considered on its own particular and peculiar set of facts. Ignorance of the peculiarities of each marriage custom will invariably occasion a miscarriage of justice as necessary effect will not be given to the applicable custom.
I have held per incuriam, in at least two cases for dissolution of marriage under Adara custom, that there is no valid marriage between the parties because there was no proof of the payment of bride price.[4] This was in my earlier days on the bench when my mind was overwhelmed with the well-established principle that the payment of bride price is one of the formal requirements in contracting a valid marriage under customary law. I guess the parties in those cases must have left the Court wondering why their custom was not applied to resolve their dispute. Given the nature of the locals, I believe they returned home and followed their non-judicial divorce procedures and moved on with their lives. There was no report of an appeal against any of those decision up till the time I was transferred to another Court. Fortunately, I had the opportunity at the same Court in a different suit to apply the appropriate Adara marriage custom and hold that a valid marriage exists between the parties even though the bride price was not paid in the process of its creation.[5]
The need to be wary of assuming that a customary practice is well-established cannot be over-emphasized. Indeed, the payment of bride price is not always a formal requirement in the process of contracting a valid customary marriage.
HW Emmanuel J. Samaila – Upper Customary Court, Kaduna State. Email: samailaemanuelj@gmail.com
[1] Per Bairamian F.J. in Owonyin v. Omotosho (1961) 1 All N.L.R. 304 at 309; (1961) 2 SCNLR 57
[2] CCKM/CV/84/2013: Blessing Micah v. Micah Bawa (Unreported) delivered on 12 December, 2013; CCKM/CV/60/2014: Blessing Anvagah v. Anvagah Barthlomew (Unreported) delivered on 10 September, 2014.
[3] Elizabeth Samaila v Samaila Wakili [CCKM/CV/22/2013: (Unreported) delivered on 7 May 2013; CCKM/CV/93/2012: Amina Douglas v. Douglas Akawu (Unreported) delivered on 27 May, 2013; CCKM/CV/44/2013: Helen Irmiya v. Irmiya Nuhu (Unreported) delivered on 17 May, 2013.
[4] CCKJ/CV/10/2012: Sarauniya Habibu v. Habibu v. Wabai (Unreported) delivered on 10 April, 2012; CCKJ/CV/55/2012: Asabe Maijama’a v. Maijama’a Ali (Unreported) delivered on 10 December, 2012
[5] CCKJ/CV/60/2012: Naomi Habila v. Habila DanMallam (Unreported) delivered on 12 December, 2012.