>>>>Position of Non-Natives of Nigeria
Position Of Non Natives Of Nigeria
It is relevant to determine whether non-natives of Nigeria possess the capacity to contract customary-law marriages here. The rules which regulate die application of customary law in any particular case are contained in the various High Court Laws. The courts are directed to apply customary law in any civil matter where the parties are natives of Nigeria or persons of Nigerian descent. But in cases between natives and non-natives, the courts are to apply English law or any other law, unless it appears that substantial injustice to either the parties would result from the strict application of such other law.
The position of non-Nigerians was considered in two decided cases. In Savage v Macfoy, Claudius Macfoy, who was born in Freetown, Sierra Leone, of liberated slave parents, came to live and work in Lagos. While there, he purported to marry a Yoruba girl, Susannah Savage, in accordance with Ybruba customary law, in 1900. Macfoy died intestate in 1906. Susannah claimed that as his widow she was entitled to administer his property. Osborne, CI, held that Macfoy was not subject to customary law in Nigeria and therefore had no capacity to contract a valid customary-law marriage. The fact that he had acquired a domicile of choice in Nigeria did not make him subject or entitled to the benefits of customary law. Macfoy's relations with other persons were to be governed by English law, which does not allow polygamy. The learned judge considered the exception in the Supreme Court Ordinance 1876, as amended, which enabled the application of customary law in transactions between natives and Europeans - where injustice would be caused by the strict application of English law. He concluded:. . . 'I cannot hold that that applies to a contract of polygamous union when expressly repugnant to the English law'.
In the subsequent case of Fbnseca v. Passman,w a Portuguese National, Julio Fonseca, came to reside in Nigeria in 1924. He purported to marry an Efik girl in accordance with Efik customary law in 1926. At the time of the marriage, he was domiciled in Portugal. He died intestate. The Efik woman claimed to be his widow and took out a summons to determine whether she or the deceased's creditors should be entitled to Letters of Adrninistration in respect of the deceased's estate. Hedges, J, held that the deceased, being a European, lacked the capacity to contract a customary-law marriage in Nigeria while domiciled in Portugal. The learned judge said obiter that the position would have been the same if the deceased had been domiciled in Nigeria.
It is submitted that the principle which is established by these cases is
that a person who is not subject to customary law cannot contract a marriage
by that law unless he is domiciled in Nigeria.
There is some doubt as to the continued validity of the decision'in Savage v
Macfoy. If the facts of that case were to recur some Nigerian courts might not
now reach the same conclusion. In the Northern States, for instance, Savage
v Macfoy is no longer good law because customary law is now applicable to any
person whose parents were members of any tribe or tribes indigenous to some
part of Africa, or one of whose parents was a member of such tribe.138 Consequendy,
on the facts of that case, Macfoy may now be regarded as a person who is subject
to customary law in the Northern States and may therefore contract a customary-law
marriage. However, in other parts of the Federation the decision may still be
valid, as only Nigerians are subject to customary law in these areas.
