Abstract
Nigeria today, has two legal regimes that exist and operate side-by side. One is the customary law, while the other is English Laws and English type of Laws. The two legal regimes have been able to determine who a child in Nigeria is. This paper critically reviewed the determination of who a child is, under the two regimes and observed that while the determination under English Laws and English type of Laws is easy, specific and certain, the determination under customary law is not. It however concludes and makes a case that in spite of the seeming difficulty under customary law, the determination under customary law is not inferior to the determination under English Laws and English type of Laws. This appears so because the determination of who a child is, under English Laws and English type of Laws also has some elements of uncertainty as in under customary law and again, the determination under customary law appears not to have failed the validity tests set by English Laws and has therefore been allowed to exist along side the determination under English Laws and English type of Laws.
Nigeria today, has two legal regimes that exist and operate side-by side. One is the customary law, while the other is English Laws and English type of Laws. The two legal regimes have been able to determine who a child in Nigeria is. This paper critically reviewed the determination of who a child is, under the two regimes and observed that while the determination under English Laws and English type of Laws is easy, specific and certain, the determination under customary law is not. It however concludes and makes a case that in spite of the seeming difficulty under customary law, the determination under customary law is not inferior to the determination under English Laws and English type of Laws. This appears so because the determination of who a child is, under English Laws and English type of Laws also has some elements of uncertainty as in under customary law and again, the determination under customary law appears not to have failed the validity tests set by English Laws and has therefore been allowed to exist along side the determination under English Laws and English type of Laws.
1. Introduction:
Nigeria witnessed the ‘incursion’ of the ‘whiteman’ into the legal sphere of the country in 1863, when in that year, Ordinance No. 3 introduced English Laws, as having been ‘received’ in Nigeria. By the reception of English Laws in Nigeria and the use of English type of Laws even till today, Nigeria has both of them as part of her laws. However before the Ordinance, there was in existence, an indigenous legal system commonly known as native laws and customs or customary laws.
In customary laws, are found all that the English legal system has provided for, introduced to Nigeria and ‘received’ in Nigeria in 1863. Again, all that the English type of Laws in use in Nigeria today have provided for, the customary laws have also provided for.
When English Laws were ‘received’ and applied in Nigeria, English Laws allowed the continuous existence and operation of customary laws, but that for such laws to be in operation, it must pass the validity tests, set by English Laws.[1]
In this introductory part of this work, English Laws and English type of Laws have been used. English Laws have been used to mean the received English Laws of 1863, while English type of Laws have been used to mean Nigeria Laws of English type, made from after the reception of English Laws in 1863 to the present day. However, from the next aspect of this work, both types of laws shall for the sake of convenience, be referred to as ‘English Laws’.
The determination of who a child is in Nigeria exists under customary law before the introduction of English Laws. Although it has not been subjected to validity tests, the humble opinion is that it does not have anything in it that is repugnant to natural justice, equity and good conscience or that is contrary to any law in Nigeria or that is contrary to public policy. From this humble opinion, the contention therefore is that the determination of who a child in Nigeria is, under customary law has passed the validity tests and therefore subsists side-by-side with determination under English Laws.
This paper shall critically review the determination of who a child in Nigeria is, under the two regimes, with a new to finding out whether one is superior to the other. It shall after the finding draw some conclusions in respect thereto.
2. Determination of who a Nigerian child is, under Customary Law:
Customary laws are largely unwritten and is rarely found in a written form as to be cited and relied upon in all matters dealing with them, including determining who a Nigerian child is. There are therefore no statutes that contain customary laws, to be cited and relied upon as a reference material. Customary laws are ways of life and no way of life is uniform or common to all peoples. The effect is that there is no uniform customary law of determining who a child is. Under the customary law a person could be said to be a child in these circumstances:
(a) Where the circumstances calling for the determination of the age of a person are such that the person is perceived as not having attained the mental and social adaptation to his/her environment as to be able to solve the various problems which may confront him/her when he/she is not directly supervised by adults[2].
(b) Where a person is dependent on his/her parents for livelihood or sustenance[3].
(c) Where a person cannot financially contribute to village or communal projects[4].
(d) Where a person has not been initiated into an age grade society[5].
(e) Where a person’s father and or mother is still alive[6]. It is for this reason that Nigerian parent’s treat their offspring’s as children, no matter how old the offspring’s are and may even have been married. Adults are regarded as children by their parents. It is then not a surprise that a Report from the Nigeria Institute of Advanced Legal Studies research indicated that 48.2% of parents in their sample said that any person under 20 years is a child. In that same Report, as much as 14.3% of the parents in their sample said that anyone who is below 30 years is a child[7].
From these instances, it is not age, but circumstance that is used as yardstick in determining whether or not a person is a child. The yardstick produces different ages within which a person could be said to be a child and has actuated why a person that is almost 30 years is termed, a child.
In the case of customary laws as decided by case laws, a Nigerian child does not have a maximum age limit. Customary laws constitute ways of life of the people and since ways of life of the people differ from people to people and from place to place, there is therefore no uniform customary law[8]. The effect therefore is that there cannot be uniform case laws on the age bracket within which one could be said to be a child. The age bracket within which one could be said to be a child in an area may be different from the age bracket within which one could be said to be a child in another area. Since it is the custom of an area that determines who a child is and custom differs from place to place, the courts are guided by evidence of the prevailing custom in an area, to determine who a child is. In the absence of such evidence, the courts use the test that any person who has not attained the age of puberty is a child. The locus classicus on this point is the case of Labinjoh v Abeke[9]. The facts of this case shall now be examined, to establish this point. However, before that is done and for a better understanding of same, a brief analysis of the background of the case shall be made: In Nigeria and under the common law, an infant or a minor or a child is a person who has not attained the age of 21 years. Under the Infants Relief Act 1874, a statute of general application that governs the contractual liability of infants, an infant is not bound in contract that is for non necessaries. The Act did not stipulate the age bracket within which a person could be termed an infant. Enough of the background.
Turning to the facts of this case, the plaintiff, an adult, sued the defendant, an 18 year old girl for £48 13s 3d being the balance of the value of the goods sold and delivered to the defendant. The defendant contended that as the Infants Relief Act did not stipulate who an infant is, and as she was below 21 years of age, she was an infant under the common law and being such an infant, was not bound in contract in respect of trade, the contract not being a contract of necessaries as provided for in section 1 of the Infants Relief Act. She contended that the contract of trade between her and the plaintiff was an English transaction and was therefore governed by the English Laws of Infants Relief Act and the common law. The trial court found for the defendant. The plaintiff appealed to the Divisional Court whereat the court was also of the view that the transaction was English and governed by the Infants Relief Act but that since the Infants Relief Act did not stipulate the age bracket within which a person could be said to be an infant, an infant under native law and custom is a person who has not attained the age of puberty and that native law and custom shall apply to the parties as they are Nigerians. The court held that the defendant has attained the age of puberty and so was bound by the contract in respect of trade. The defendant appealed to the Full Court.
The Full Court did not as the two lower courts did, find that the transaction was English. The court rather found that the transaction was customary and that being so, Infants Relief Act and determination of who an infant is, within English law shall not apply, rather what shall apply is the customary law and that the determination of who an infant is and whether an infant is bound by the contract of the type that the defendant entered into shall be established from the facts elicited from the native law and custom of the defendant. The Full Court remitted the case back to the trial court to make a finding on whether the transaction was customary and if it was, what the position of the customary law on the matter is.
From this decision, it is clear, that the Full Court did not disagree with the Divisional Court that under the customary law an infant is a person who has not attained the age of puberty. What the Full Court disagreed with, was that
(1) It was certain that it was English transaction and
(2) Being an English transaction governed by the Infants Relief Act which was silent on who an Infant is, resort must be had to the customary law to determine who an infant is.
As the Full Court never disagreed with the Divisional Court that native law and custom decrees that persons come of age when they attain the age of puberty, the case law has since the early part of last century when this case was decided, been that an infant is a person who has not attained the age of puberty.
The test of who has not attained the age of puberty is a fluid one as it cannot produce a uniform age or even uniform age bracket of or within which a person could be said to be a child.
This non uniformity of age in determining who a child is, is buttressed by the fact that the age of attainment of puberty on which it is based, is not uniform between people of different sexes. Specifically, females attain puberty at ages younger than those of their male age mates.
Again, even between people of the same sex, some may grow, develop and attain puberty before their age mates.
3. Determination of who a Nigerian child is, under English Laws:
A Nigerian child contemplates at least two circumstances. The first is a circumstance where the person concerned is a citizen of Nigeria[10], in which event, it is immaterial that the person may be an adult. This is so for whosoever that is a Nigerian citizen is a Nigerian child, whether or not the person is an adult. For sure, an adult, or a son or daughter of any age, given birth to by his/her Nigerian parents is a Nigerian citizen and so a Nigeria child. A person is a Nigerian citizen and therefore a Nigerian child if
a) The person was born in Nigeria before the date of independence i.e. 1/10/1960 and either of the parents or any of the grandparents .belongs or belonged to a community indigenous to Nigeria.
b) The person was born in Nigeria after the date of independence and one of the parents or any of the grandparents is a citizen of Nigeria.
c) The person was born outside Nigeria and one of the parents is a citizen of Nigeria.
d) The person being a woman is or has been married to a citizen of Nigeria or the person whether man or woman is of full age and capacity, born outside Nigeria and any of the grandparents is a citizen of Nigeria. For any of these persons to be a Nigerian citizen or Nigerian child the President of the Federal Republic of Nigeria must register him/her as such, on being satisfied that such a person is of good character, has shown a clear intention of his/her desire to be domiciled in Nigeria and has taken an oath to be faithful and bear true allegiance to the Federal Republic of Nigeria and shall preserve, protect and defend the Constitution of the Federal Republic of Nigeria[11].
e) The person, not being a Nigerian has applied to the President to so be, and to be granted a certificate of naturalization and the President grants the application.
However, for the President to grant the application, the President must be satisfied that the applicant is a person of full age and capacity; that the applicant is of good character; that the applicant has shown a clear intention of his/her desire to be domiciled in Nigeria; that in the opinion of the Governor of the State wherein the applicant is or proposes to reside, the applicant is acceptable to the local community in which the applicant is to live permanently and has been assimilated into the way of life of Nigerians in that part of the Federation; and that he/she is a person who has made or is capable of making useful contribution to the advancement, progress and well-being of Nigeria. Additionally, the applicant must also satisfy the President that he/she has taken an Oath to be faithful and bear true allegiance to the Federal Republic of Nigeria in the words set out in schedule seven to the Constitution of the Federal Republic of Nigeria, 1999; and that he/she has immediately before the date of his/her application either has resided in Nigeria for a continuous period of 15 years or has resided in Nigeria continuously, for a period of 12 months and during the period of 20 years immediately preceding that period of 12 months has resided in Nigeria for periods amounting in the aggregate to not less than 15 years.
However, a Nigerian child also contemplates a restrictive circumstance, where statutes or case laws describe a Nigerian as a child. Where it is a statutory description of a child, almost always, the statute provides the age within which a person could be said to be a child. For instance,
a) Under the Children and Young Persons Laws, a child is a person under the age of 14 years[12]. The Laws however struck a clear distinction between a child and a young person by providing that while a child is a person below 14 years of age,[13] a young person is a person up to 14 years of age but below 18 years of age[14].
b) Under the Criminal Code,[15] and for the purpose of conviction for unlawful carnal knowledge, a male child, is a person under the age of 12 years. They cannot be convicted of unlawful carnal knowledge because the law in its wisdom presumes that as people who are under the age of 12 years and therefore children, they are incapable of having carnal knowledge[16].
c) Under the Penal Code[17] and for the purpose of conviction for an offence, a child is a person under the age of 7 years. Such children cannot be convicted of an offence[18].
From these examples, one could notice that not only do statues provide different age brackets as ages within which one is a child but the statutes provide particular circumstances of being a child. To be a child therefore depends on the provision of the statute and the particular circumstance contemplated by the statute.
With these different age stipulations, English law as evinced from the different stipulations in statutes has also left the determination of who is a Nigerian child in a fluid state as in under the customary law. The effect therefore is that the age bracket within which a Nigerian could be referred to as a child is dependent on the issue at stake and the provision of the statute in respect thereto.
Sometimes, the courts describe who a child is. This envisages circumstances where the courts have been called upon to do so. The circumstances include a circumstance where the transaction (the subject matter of litigation) bothers on English law but the English statute governing the transaction never explained who a child is. In this circumstance, the answer lies on what the courts would pronounce as the age of childhood. This again would be discretionary so that there would not be a uniform upper age limit. This discretion of the courts in determining who is a child is, is dependent on the subject matter of litigation before it and its peculiar facts.[19]
Again, as in under statutory determination of who a child is, there is no known age limit. The age of childhood is dependent on each suit before the court wherein, it is to be determined.
By the coming into existence of the Child’s Rights Act 2003, which is a comprehensive enactment on the Nigerian child, its provision on who a Nigerian child is, has become the final verdict on the matter. The Act in its section 277 described a Nigerian child as a person below the age of 18 years. The Child’s Rights Act provision is not on a subject matter on which the Federal parliament could make legislations for the entire country. The effect therefore is that the age of below 18 years as the age of childhood only applies to the Federal Capital Territory and States in the Federation that have enacted the Child’s Rights Act as State Laws and provided for below 18 years as the age a person could be said to be a child. Where therefore a state has a State Law on Child’s Rights but in that Law stipulates the age of childhood as higher or lower than below 18 years as provided for in the Act, that stipulated age inspite of the provisions of the Act becomes the age of determining who a child is, in that State. Again, if a State adopts the Child’s Rights Act as a State Law but increased or reduced that age of childhood to provide for age different from under 18 years, provided for in the Act, the provided age becomes the age of determining who a child is. From all these therefore, in Nigeria, there is no uniform age of determining who a child is, under English Law.
Again, below 18 years as the age a person could be said to be a child, provided for in the Child’s Rights Act contemplates the determination of who a child is, from a very broad perspective. As already noticed, in some enactments, the peculiar provisions therein determine the age of childhood and peg the age of a child as being far below 18 years. In such circumstance the determination of who a child is, is from a very narrow perspective. Narrow perspective in the sense that outside that peculiar circumstance as provided for in the enactment, the person, though above that age but still below 18 years ceases to be a child for the purpose of that particular provision of the Law, although still a child within the general and broad contemplation of who a child is, as defined in the Child’s Rights Act. Under section 30 of the Criminal Code[20] for example, a person under the age of 12 years cannot be convicted of the offence of carnal knowledge. The intent of that provision of the Code appears to be that such a person is a child incapable of doing what he has done. The implication therefore is that above 12 years (and still below 18 years provided for in the Child’s Rights Act) he ceases to be a child for the purpose of committing that offence.[21]
With respect to these provisions that peg the age of a child below 18 years, but used a number that is below 18, as the upper limit, there is a conflict between such provisions and that of the Child’s Right Act to the extent that above that age but below the 18 years provided for in the Child’s Rights Act, such a person could be said not to be a child, for the purpose of the provision in the enactment. However, liberally appraising the scenario, one could contend that there is no conflict as long as the age provided for is below 18 years provided for in the Child’s Rights Act as the age of childhood. From this liberal appraisal, all ages provided for that are below 18 years of age no matter how far below 18 years of age they are, validly constitute the age of childhood. The effect is that, there are various ages below 18 years, of asserting that a person is a child.
4. Conclusion:
So far, what has been observed is that the determination of who a child is, under customary law is difficult. The difficulty stems from the fact that the determination of the age of a child is dependent on what the native law and custom of an area has said, which undoubtedly differs from place to place and from people to people. From this therefore, there could be as many ages of childhood as they are the number of places and people.
The position under English Laws is different. The age of childhood is dependent on the provisions of statute or the pronouncement of court where the parties before it have agreed that they be governed by English Laws or where the transactions between the parties are of the type that is governed by English Laws. There is consistency under English Laws for where the determination of the age of childhood has been provided for in a statute, it so remains and must be resorted to[22], and where it has been determined by a court of competent jurisdiction, the judicial decision in similar circumstances becomes resorted to, as a judicial precedent[23]. Inspite of the apparent consistency and ease of determining the age of childhood under English Laws, it also (as in under customary laws) has some elements of uncertainties. The uncertainties have been exemplified in this work to the effect that different statutes have provisions that agree with that of the Child’s Rights Act that a person below 18 years of age is a child, but rather than use 18 years of the Child’s Rights Act as upper limit, use ages less than 18 years, as upper limit.
The determination of the age of childhood that is dependent on different upper age limits that are below 18 years, but not 18 years is akin to the determination of the age of childhood under customary law, that is dependent on the custom of a people or of the area that provides for different ages. To the extent to which the determination of childhood under English Laws is not easy, specific and certain as also under customary law, the determination of who a child is, in Nigeria, under customary law is not inferior to same under English Laws. Furthermore, the fact that the reception of English Statutes in Nigeria in 1863 has allowed the existence of customary law on passing the validity tests (which the determination of who a child is, has passed, it has been contended in this work) has allowed the determination of who a child is, in Nigeria to remain in both regimes. Customary Law determination of who a child in Nigeria is, having been allowed to remain by English Laws and to exist side-by-side with the determination under English Laws cannot be said to be inferior to the determination of same under English Laws.
[1] The validity tests set by English Laws are repugnancy test, incompatibility test and public policy test. Respectively, the tests are that such indigenous laws shall not be repugnant to natural justice; equity and good conscience; shall not be incompatible with any English type of Laws, that is in force in Nigeria and shall not be contrary to public policy.
For more reading on the reception and application of English Laws in Nigeria and the validity tests of Customary Law, see Obilade, The Nigerian Legal System, (London: Sweet & Maxwell, 1979), pp. 69-81, 100-110; Okonkwo, (ed), Introduction to Nigeria Law, (London; Sweet & Maxwell, 1980) pp.1-8, 41-46; Park, The Sources of Nigeria Law, (London; Sweet & Maxwell1981), pp.14 -42, 65-82; and Odike & M.A Ajanwachuku, Fundamentals of Nigeria Legal Methods, (Enugu; Tink Graphics, 2008) pp.29-34, 38.
[2] S.B.A, Oloko, “Introduction: Protection and Violation of Child Right in Nigeria”, in UNICEF, Child Protection in
Nigeria: Summary of Research Findings on Protection and Violation of Children’s Rights, (Lagos: Jeromelaiho &
Associates Ltd,) p. 1.
[3] O.M Onibokun, “Child Protection Measures: Review of Policies and Laws Protecting Children from Abuse in
Nigeria”, in UNICEF, Child Protection in Nigeria: Summary of Research Findings on Protection and Violation
of Children’s Rights, (Lagos: Jeromelaiho & Associates Ltd,) p. 47.
[4] I.A. Ayua and I. Okagbue, (eds.), The Rights of the Child in Nigeria, (Lagos: Nigerian Institute of Advanced
Legal Studies, 1996) p.30.
[5] Ibid.
[6] This is a rule of customary law in some parts of Ibo land
[7] O.M. Onibokun, loc.cit.
[8] Obilade, op.cit., p. 83; Okonkwo (ed.), op.cit p. 41; Labinjoh v Abeke(1924) 5 NLR p. 33.
[9] (1924) 5 NLR p. 33.
[10]Who a citizen of Nigeria is, is contained in sections 25, 26 and 27 of the Constitution of the Federal Republic of
Nigeria, 1999
11 This is popularly known as “Oath of Allegiance”. Ibid., the seventh schedule.
[12] Section 2 of Children and Young Persons Law, Cap19, Laws of Eastern Nigeria, 1963; section 2 of Children and
Young Persons Law, Cap C. 10, Laws of Lagos State, 2003.
[13] Ibid.
[14] Ibid.
[15] Cap. C. 38 Laws of the Federation of Nigeria, 2004
[16] Ibid., section 30
[17] Cap 47 Laws of Northern Nigeria, 1961.
[18] Ibid., section 50 (a)
[19] For example, under the Common Law and for the purpose of contract, an infant or a person who has not attained
the age of majority, generally referred to as a child, is a person who has not attained the age of 21 years: Sagay,
Nigerian Law of Contract, (London: Sweet & Maxwell, 1985), p. 399.
[20] Note 15, loc.cit.
[21] For another example of further reducing the age of childhood, see section 50(9) Penal Code, Cap 47 Laws of
Northern Nigeria, 1961. See also sections 49(3); 51; 59(3); 40(2) and 41 of the Labour Act Cap L.I, Laws of the
Federation of Nigeria, 2004.
[22] Subject to an amendment of the statute altering the age or removing the age, in which event the age limit ceases
to be a statutory provision.
[23] For more reading on judicial precedents also known as stare decisis. See again Obilade, op.cit pp.111-135;
Okonkwo, op.cit pp.13-38; Odike & Ajanwachuku, op.cit pp.40-48.