THE VEXED ISSUE OF DOWRY AS A BASIS FOR THE VALIDITY OF CUSTOMARY MARRIAGE IN SOUTH-WESTERN NIGERIA – OLAWAYE V. OLAWAYE IN CONTEXT

Abstract

Customary marriage is rife in Africa generally, and Nigeria in particular. The essentials of this form of marriage are ethnographically relative in that more emphasis is placed on one or more of the essentials. Dowry, or more appropriately bride price, for instance, is considered a sine qua non in a discussion of what essentially the features of customary marriage are. In some communities in Africa, the words “bride price” is preferably used. The fact that these two concepts – “dowry” and “bride price” - do not mean exactly the same thing is problematic. Again, that a long customary cohabitation between a man and a woman which leads to the birth of children can ripen to customary marriage under African customary law is also a debatable one. In other words, can there be a customary marriage by prescription? This term paper will, therefore, de-emphasise dowry as a customary marriage essential that forms the basis of validity of a customary marriage. The paper will also explain the dichotomy between the expressions “dowry” and “bride price” with a view to justifying sticking to either of them. The paper will draw on the recent court decision of an Ibadan Grade ‘A’ Customary Court sitting at Mapo, Ibadan, Oyo State. The paper will further rely on relevant provisions of statutes and decided cases. The paper finds that the words or expressions “dowry” and “bride price” are not generally synonymous unless contextually made so. Again, the paper finds that dowry or bride price is not  the most important requirement in customary marriage as consent is the basis on which dowry or bride price is built. The paper recommends that prefatory remarks or annotations must contextually precede the use of either of the words or expressions “dowry” and “bride price” in order to avoid textual ambiguity in their usages. The paper further recommends that where consent exists between a man and a woman who are cohabiting and who have been living together for a long time or who have given birth to children, the law should prescriptively ascribe the status of a husband and a wife to both of them under customary law, and in case of divorce proceedings, the law should not make the existence of dowry or bride price as a condition precedent to the validity of the “customary marriage”