(B) Consents Of The Parties Marrying in Nigeria Customary Marriage
Two types of consent are relevant to the celebration of customary-law marriage
— consent of the parties and parental consent.
(i) Consent of the parties
Generally, the consent of the parties is an important element in the celebration of customary-law
marriage. Whenever the parties are capable of expressing their consent to the
marriage, such consent is expressly demanded and obtained before the marriage.
In Osamawonyi v Osamawonyi,the petitioner went through a marriage under the Marriage Act with the respondent in Lagos on 21 June 1967. On 6 July 1968, the petitioner filed a divorce petition on the ground, inter alia, that in 1964 the espondent was lawfully married to Patrick Goubadia according to Benin native law and custom and that the said marriage was not dissolved until 14 August 1967 by a Benin customary court, which ordered the refund of £60 (NI20) dowry to the said Goubadia. It was established in evidence that some time before 1966, the said Guobadia in contemplation of a proposed statutory marriage and unknown to the respondent at the rime, paid the respondent's father the sum of sixty pounds (one hundred and twenty naira) as dowry.
On learning about the payment, the respondent in September 1966 rejected any
proposal of marriage by Patrick Gjoubadia and the whole idea of marriage between
them was abandoned. The espondent averred that she never gave her consent to
or entered into a marriage vith the said Goubadia. The Supreme Court, upholding
the decision of the court if first instance, held that the consent of the bride-to-be
was a condition precedent a a marriage under Benin customary law. As no such
consent was given, there vas in feet no subsisting customary-law marriage at
the time the respondent married le petitioner.
The importance of consent of the parties cannot be over-empnasized. If a party
bjects to the marriage, he or she may refuse to go through with the ceremony,
iven in those areas where child marriage is still in vogue, the consent of the
parties required when they come of age. At that point, any party who did not
in fact ansent to the marriage may abrogate the union by abandoning the other
party.
It may constitute an offence to detain a girl of any age against her will with te intent to marry her. Section 361 of the Criminal Code Act'" provides that:
Any person who, with the intent to marry ... a female person of any age, or to cause her to be married ... by any other person, takes her away, or detains her against her will, is guilty of a felony and is liable to imprisonment for seven years.
Originally, this section was intended to combat the practice of marriage by
capture bich was prevalent in some parts of Nigeria. But it may also punish
any person who takes away or detains a girl against her will on the pretext
of marriage contract between him and her family.
The modern trend is for the parties to a customary-law marriage to agree in
Ivance between themselves to marry each other. This agreement is then communicated
to their parents or guardians, who then set in motion the customary law machinery
for effecting the desired marriage.
In Biu, Idoma, Tiv and Borgu Native Authority areas, the consent of the girl
an important element in the celebration of customary-law marriages. It is doubtful
whether as a general rule the absence of consent of a party vitiates the marriage.
Probably the better view is that its absence renders a marriage voidable, and
enables the party who has not consented to contract out of the marriage either
before or after its solenmnization.
>>>> Consent of the parents for Customary Marriages
