A look at the Law of Extinction in Nigeria
CASE SCENARIO
Abimbola and Olamide Oluseyi have been separated for about 10 years now. Olamide who got retrenched from his place of work at the time got an invitation from his friend in Cameroon to come work there. Olamide within a week of losing his job took off to Cameroon and has since then never been heard of or seen by anyone. Abimbola neither knew the friend who invited her husband nor his contact address in Cameroon.
Seven and a half years later Abimbola remarried at the Ikoyi Marriage Registry to Andrew Moshodin after a series of attempts to return the bride price to Olamide’s family proved abortive. Abimbola moved to her new home with her two children Jide and Tunde aged 12 and 8 respectively. Upon agreement between the couple, Andrew effected the change of surname for Jide and Tunde to his surname and obtained a declaration of birth Certificate for the two children using his name. Andrew, who lives and works in the United States, obtained the said documents to enable him process travel documents for his family to join him in the United States.
A week before the family’s departure to the United States, Olamide surfaced from nowhere, laying claim to Abimbola as his wife on the ground that the bride price has not been returned and therefore their marriage still subsists. He equally filed a petition to the Commissioner of Police, Lagos State against Andrew for attempted kidnap of his children and for falsely laying claim to them as their father through falsification of documents to that effect.
- What are the various key issues involved in this scenario?
- With the aid of statutory provisions and case law (if any), is the claim by Olamide of subsisting marriage between him and Abimbola valid?
- What defence is available to Abimbola with respect to Olamide’s claim of subsisting marriage between the two of them.
- What defence would avail Andrew and Abimbola in terms of claim relating to the children particularly the claim of attempted kidnap and falsification of documents.
- Key Issues
- Whether Abimbola’s separation from Olamide Oluseyi is recognised by the law.
- Whether the change of surname of Jide and Tunde is valid.
- Whether the declaration of birth certificate for the two children using his name is valid
- Whether the law recognises return of bride price as the termination of marriage
- Whether the attempt to relocate the children amounts to kidnapping under the law
- Is the claim by Olamide of subsisting marriage between him and Abimbola valid?
From the facts of this case, Olamide’s claim of a subsisting marriage is valid.
ANIONWU & ANOR v. ANIONWU & ANOR (2009) LPELR-8754(CA) provides that before there can be a valid customary marriage, dowry must be paid to the bride’s family. According to the facts, Abimbola was trying to return the bride price which means that Olamide fulfilled this Obligation.
Section 35 of the Marriage Act states that:
“Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law; but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.”
Thus, the law recognises the validity of marriages contracted under customary law.
- What defence is available to Abimbola in light of Olamide’s claim?
Abimbola may be availed by counter claiming that Olamide deserted her and the children.
Section 18 of the Matrimonial Causes Act provides that :
“A married person whose conduct constitutes just cause or excuse for the other party to the marriage to live separately or apart, and occasions that other party to live separately or apart, shall be deemed to have wilfully deserted that other party without just cause or excuse, notwithstanding that that person may not in fact have intended the conduct to occasion that other party to live separately or apart.”
Applying this to the facts, Olamide’s conduct in taking off for Cameroon caused him to live apart from Abimbola for 10 years and as a result he is deemed to have willfully deserted Abimbola without just cause, notwithstanding that he may not have intended for them to live apart.
In Nwankwo v Nwankwo (2014) LPELR-24396(CA), the Court established that there are two types of desertion: Simple desertion which occurs where the deserting party abandons the matrimonial home and Constructive desertion which occurs where the spouse remains in the home but has abdicated all matrimonial responsibility and has thus by his conduct expelled the other spouse.
It can be reasonably concluded that simple desertion took place when Olumide abandoned the matrimonial home for 10 years.
- What defence would avail Abimbola and Andrew on claims of document falsification and attempted kidnap of the children?
Abimbola and Andrew can defend themselves by stating that they are acting in the best interests of the children. Section 1 of the Child’s Right Act provides that their best interest should be paramount consideration in all actions.
In the absence of their father Olamide, the children were under the sole care of their mother for several years. When their mother remarried, they came under the provisions of their step father Andrew.
Section 2 of the Child’s right Act provides that a child is to be given protection and care that is necessary for his well-being. In taking the necessary steps to bring the children under his care by changing their surname, Abimbola and Andrew were considering the children’s well being.
OBSERVATIONS
Your key issue 1 is apt though the argument thereunder is highly debatable. The issue 1 raised by you should premised on a very fundamental principle of law clearly shown by the facts provided in the scenario. One thing a lawyer must never fail to reckon with is the fact that words in any given situation, case or scenario are not for cosmetic purposes. They are meant as pointers to the resolutions of issues, the ultimate solution or resolution of the diverse issues in any given situation are hidden in the facts of the situation’
The facts of the scenario showed that Olamide had been gone for about 10 years and no one ever heard of or seen him. Abimbola remarried 7 and a half years later after the disappearance of Olamide. By the provisions of section 164 (1) of the Evidence Act which provides as follows:
A person shown not to have been heard of for 7 years by those, if any, who if he had
been alive would naturally have heard of him, is presumed to be dead unless the circumstances of the case are such as to account for his not being heard of without assuming his death; but there is no presumption as to the time when he died, and the burden of proving his death at any particular time is upon the person who asserts it.
The question that ought to arise therefore is whether the presumption of death in the above section does not work in favour of Abimbola in the light of the facts of the case? Abimbola never heard from Olamide for over 7 years neither did she know his whereabouts and the contact of the person who invited him to Cameroon. Naturally Abimbola ought to hear from Olamide her husband and father of her two children, were he alive. The Presumption of death therefore works in favour of Abimbola and therefore her subsequent marriage to Andrew under the Act is valid. Olamide being presumed dead, the customary marriage between him and Abimbola was thus extinct and Abimbola was therefore free to remarry there being no subsisting marriage between her and Olamide. Attempts to return the Bride price amounts to surplusage and is of no consequence Olamide having been presumed dead by Law.
2. Consequently, the claim of Olamide of subsisting marriage between him and Abimbola is not valid and not supportable by law in the light of the foregoing.
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3. Thus key issue 4 in your answer does not arise given the argument above.
4. Key issues 2,3 and 5 are the same and ought to be considered under one broad heading. The key issue that is paramount here and perfectly covers the three issues raised differently by you, is the interest of the children. The question that ought to drive your argument and indeed be the foundation thereof is ‘WHETHER OR NOT THE ACT OF ANDREW WAS DONE IN THE BEST INTEREST OF THE CHILDREN’
The facts of the case shows thus:
Upon agreement between the couple, Andrew effected the change of surname for Jide and Tunde to his surname and obtained a declaration of birth Certificate for the two children using his name. Andrew, who lives and works in the United States, obtained the said documents to enable him process travel documents for his family to join him in the United States.
Certain critical facts are obvious from the above, namely, that the act of Andrew was done upon an agreement between him and Abimbola, his wife and mother of the two children involved in this matter. Another critical fact is the intention -which is to enable Andrew secure seamless travel documents for the children to enable them travel with their mother to join Andrew in the United States of America where he resides and works. Andrew most especially certainly had the option of leaving the children behind in Nigeria while he takes his wife with him to America to live with him. He however considered the best interest of the children would be to take them along with his wife to America hence the processes put in place by him such as affidavit of declaration of birth and change of the children surname to his bearing in mind his wife now bears his name and Olamide being presumed dead. See also section 166 of the Evidence Act. Abimbola and Olamide have not cohabitated for over 10 years and especially for over 7 and a half years before the subsequent marriage of Abimbola. Therefore the existence of a valid and subsisting customary marriage cannot be presumed in this case.
It is forcefully argued that the provisions of section 1 (1) of the Child’s Rights Act (which is impari material with section 1 of Child’s Rights Law of Lagos State) provided
In every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration,
was complied with by Andrew as his action was in the best interest of Jide and Tunde the children in question. Therefore the allegations of falsification of documents or attempted kidnapping made by Olamide is totally baseless and not tenable.
The above arguments answered all the questions raised in the scenario.particularly questions 2, 3, and 4
Please note section 18 of the Matrimonial Causes Act and indeed the whole of the Act is not applicable to the marriage between Olamide and Abimbola being a customary marriage and not under the Act. Therefore your argument under question 3 is not maintainable
Your argument in respect of question 4 is very correct and apt.
