Preliminary Thoughts on the Decision of the Court of Appeal in Maimuna Mohammed and Ors v. Nike Mohammed and Ors

By Elvis Evbaruovbokhanre Asia

What is the value of a marriage conducted under the Marriage Act as it relates to the incidents of Islamic marriage? The general consensus in the country is that the Marriage Act, being the only federal statute on marriage—a matter within the Exclusive List of the 1999 Constitution—guarantees monogamous marriage and exclusive inheritance rights. Accordingly, many people, particularly those in cross-cultural and interfaith marriages, have conducted their marriages under the Act. However, the recent decision of the Court of Appeal in Maimuna Mohammed and Ors v. Nike Mohammed and Ors on August 23, 2024, has completely extinguished this expectation. The ruling held that a marriage under the Marriage Act by a Muslim does not prevent him from marrying up to four wives under Islamic law, and that his estate will be distributed in accordance with Islamic law, irrespective of the marriage under the Act. This is true even if the marriage under the Act occurred before any subsequent marriages under Islamic law.

The implications of this decision are significant. Many women who married under the Act for the assurance of monogamous marriage and the right to exclusive inheritance under the Administration of Estate Laws will need to reconsider the status and incidents of their marriages. This decision effectively nullifies that assurance for marriages involving Muslim men, as it insulates Muslims from the incidents of a statutory marriage.

The court, comprised of Muhammed Lawal Shaibu JCA, Abubakar Muazu Lamido JCA, and Mohammed Ahmed Ramat JCA, based its decision on the distinction between customary and Islamic law. The court held that while a Muslim may marry a Christian under the Act, this does not negate his rights as a Muslim to marry up to four wives. The court further held that the Administration of Estate Law of Kwara State does not apply to a person whose estate is governed by Islamic law.

The implied premise of the decision is the assumption that statutory marriage is a Christian marriage, thereby permitting a Muslim who marries a Christian under the Act to also marry under Islamic law. This judgment raises fundamental questions, including:

1. Does the Marriage Act apply only to Christians and those subject to customary law, as implied by the court?
2. Does the right to freedom of religion insulate a Muslim from the incidents of a statutory marriage, as suggested by the court?
3. Does the mere fact that a Muslim is permitted to marry up to four wives invalidate the incidents of a marriage under the Act?
4. What is the value of a marriage conducted by a Muslim under the Marriage Act? Was the court correct in its determination of the effect of statutory marriage in the circumstances of this case?
5. Was the court right to make fundamental pronouncements on the status and incidents of statutory marriage, considering that the matter arose from an interlocutory decision of the lower courts, and by doing so, determined the substantive case?
6. Is the Marriage Act not the only federal statute on marriage (excluding Islamic and customary marriages), which is a matter within the Exclusive List of the Constitution? If so, can a person who chooses to marry under the Act escape the legal significance of that marriage by relying on any other law?
7. Is it fair and just for a man to deceive a woman into marriage under the Marriage Act, with its legal incidents in mind, only to be allowed to shatter that expectation under any other law?
8. Was the Court of Appeal right to constitute a panel of three Muslim male judges to consider these vexed issues?

Considering that this decision could further widen the gulf in efforts to build unity through cross-cultural marriages under the Marriage Act and its constitutional significance, it is hoped that the Supreme Court will have the opportunity to review the decision with a diverse panel of seven justices.