Abstract

This paper provides a case law survey of the custom of daughter/widow retention, alternatively referred to as ‘woman-to-woman’ marriage, in Nigeria. Since the empirical survey presenting the patterns is taken from case law, the paper necessarily adopts a socio-legal approach, invoking a need for limited analysis of the cases. Existing studies of the custom emphasise the role of patriarchy, succession and gender socialising in its development. However, a closer look at the custom and ancillary customs from the same ethnic group suggests that the relevance of womanhood to the scheme of society’s affairs, a chance at women’s self-actualisation, and the individual’s dignity, in spite of circumstances of birth, have played more significant roles in the sustenance, perpetuation and acceptance of the custom. Is the custom still relevant? The approach of the Nigerian courts is to abolish this custom vide ‘judicial legislating’. The paper shows that the larger society within which the custom operates accepts its ideals, thereby making African customary law structures that thrive on informal dispute resolution and persuasion the only viable way of resolving the conflicts and calming the tensions emanating from the clash between this custom and modernity. Persuasion through convincing strategies would thus work better than the current attitude of the Nigerian superior courts.