Nigerian law has always been more comfortable with paper than with people. A statutory marriage produces a certificate, a registrar, a stamp, a bureaucratic afterlife. A customary marriage produces witnesses, memory, and decades later, when the deceased’s estate is being carved up by relatives who suddenly remember every obligation of kinship a courtroom full of people arguing about who exactly was standing where when the kola nut was broken.
An Institution of Status, Strictly Proved
Customary law marriage is not a private arrangement the courts take on faith. It is, in the language the courts favour, an institution that creates status it alters inheritance, legitimacy, and who gets to stand at the graveside claiming to be widow rather than concubine. Institutions that create status must be strictly proved. The court does not simply ask “were you married?” and accept the answer with a nod; it asks what the customary law of the particular locality requires, and then demands satisfactory evidence that those requirements were actually met.
This is where litigants routinely come unstuck, because “everybody knew we were married” is not evidence a court is obliged to find persuasive.
The Lawal v Younan Rule
The governing statement of principle comes from Quashie-Idun Ag. J. in Lawal v Younan, dealing with a set of witnesses whose only qualification for testifying to a marriage was having heard about it. His judgment is blunt about the inadequacy of that approach: what the court wants is the person who gave the woman away, the person who witnessed the ceremony, or the person sent to negotiate for her hand not a chorus of women reciting hearsay dressed up as recollection.
“I do not think that it is sufficient to call only the alleged husband or wife to testify as to the marriage, neither do I think that an administrator or a person claiming a benefit in the estate is alone competent to give that evidence.”
Note what this rule is not saying. It does not disqualify the spouses or interested parties from giving evidence at all Nigerian evidence law is not that squeamish. It says their evidence, standing alone, is insufficient where challenged. There is a difference between incompetence and thinness, and Lawal v Younan is a case about thinness.
The Exception Nobody Reads Carefully Enough
The Supreme Court, in Agongo v Aseleke, supplied the necessary corrective: where a party’s evidence of the marriage is uncontradicted, that evidence alone will do. In other words, the strict evidentiary regime of Lawal v Younan is a response to a dispute, not a standing requirement for every customary marriage ever litigated. If nobody is fighting you on the fact of the marriage, the court is not going to manufacture a fight on your behalf and then dismiss your claim for failing to win it.
This distinction matters enormously in estate disputes, where it is common for one relative to concede the marriage in principle while contesting everything downstream of it. Concede the marriage, and the Agongo exception may already have done the work; contest it, and you are back in Lawal v Younan territory, hunting for the person who negotiated the bride price forty years ago and hoping they are still alive and compos mentis.
Why the Register Never Existed
The deeper structural point is that this entire evidentiary architecture exists because Nigeria never built the infrastructure to make it unnecessary. Statutory marriage under the Marriage Act produces a compulsory, centrally reliable registration system. Customary marriage the marriage most Nigerians actually contract, and the marriage that governs succession under most personal law systems in the country produces nothing of the kind. Local government registration exists on paper in various bye-laws, but it is patchy, under-enforced, and rarely treated by courts as determinative. South Africa legislated its way out of this with the Recognition of Customary Marriages Act 1998; Nigeria has debated similar reform of its Marriage Act for years without landing it.
The Home Office’s Selective Righteousness
Here the comparison with England is instructive, and not flattering to England. English customary marriage, such as it is, has always been fundamentally a contract between two individuals. Nigerian customary marriage is not that at all it is a contract between families, negotiated and witnessed by principals who are not the bride and groom, with the couple often almost incidental to the ceremony’s legal architecture. That difference is not a quirk; it is the entire point of the institution, and it is precisely what Lawal v Younan is built to accommodate.
The UK immigration system, when it decides which foreign marriages to honour, is not applying a neutral principle about evidence. It is making a political choice about which forms of foreign marriage it finds palatable. A Pakistani man married to two wives under Pakistani law, entirely unable to contract that same marriage on English soil, will nonetheless see both unions recognised for social security and immigration purposes, because the marriage was validly constituted where it happened. A Nigerian couple married by proxy which fulfils every requirement of Nigerian customary law, negotiated by families, witnessed by elders, entirely valid where it happened is routinely refused that same courtesy. It beggars belief that a marriage doing everything customary law asks of it is treated with more suspicion than a polygamous union the UK would never permit within its own borders. The distinguishing factor is not legal principle. It is which unfamiliar custom the Home Office has decided to find exotic rather than merely foreign.
Witnesses, Scepticism, and the Affidavit Workaround
The scepticism does not stop at proxy marriages. Witness testimony from Nigerian customary ceremonies is treated by tribunals with a degree of suspicion rarely extended to comparable oral evidence from other legal traditions which produces its own perverse incentive. Applicants, sensing that the tribunal wants a document rather than a person, begin manufacturing documents customary law never required in the first place. The sworn oath of marriage is the clearest example: a Nigerian court affidavit, sworn after the fact, gets pressed into service as though it were a marriage certificate, when properly understood it is at most a witness statement given under oath, no more authoritative than the elder who actually stood at the ceremony. The tribunal’s appetite for paper is teaching Nigerian applicants to fabricate the paper trail their own customary law never demanded, rather than to simply produce the witnesses it does.
An Oral Country, a Written State
Underneath all of this sits a civilisational mismatch that no amount of clever affidavit-drafting will resolve. England’s legal tradition is written; Nigeria’s customary tradition, for all the statutes layered on top of it, remains substantially oral. Asking an oral institution to satisfy a written bureaucracy’s evidentiary preferences is not a technical problem with a technical fix it is a gap that has yet to be seriously bridged. Ghana has at least made the attempt, giving proxy marriage a statutory footing rather than leaving it to be litigated case by case. Nigeria’s political class, characteristically, has managed neither Ghana’s codification nor South Africa’s wholesale reform, leaving citizens to negotiate the oral-written divide one contested affidavit at a time a failure of legislative will dressed up, when convenient, as fidelity to tradition.
The Practical Upshot
For anyone doing the unglamorous work of estate administration at the customary level, the lesson is straightforward. Do not wait for the dispute to go looking for your witnesses. The person who gave the bride away, the elder who negotiated on the groom’s behalf, the woman sent to make the initial approach: find them, get their account down, while they are still available to give it. Grief has an unfortunate habit of arriving at the same time as the relatives with the calculators, and by then the only people left to testify are the ones the law — and, increasingly, the Home Office — has already decided are not enough.
Centre for Nigeria Progress 