An Examination of Customary and Statutory Legal Meaning of a Child in Nigeria: A Stream of Two Waters That Do Not Mix

The Nigerian legal system is pluralistic in nature consisting of statutory law, which is derived from received English law and native customary law. The latter is made subservient to the former through the validity tests. This paper examined the position of the two regimes on the meaning and definition of the child and the legal consequences that arise from it. The paper found that while the two legal regimes conceptualise the ‘child’ differently, there is an acute internal divergence of who a child really is, within each of these regimes. The paper recommended both the internal and inter-systemic harmonisation of the meaning and definition of the child within the Nigerian legal system.

conscience or incompatible with any written law on the same subject matter, or contrary to public policy. 1 Thus, on a particular subject matter, the two legal regimes may stipulate different norms, which are not, however, incompatible and therefore, co-exist as separate norms applicable to different sets of people and circumstance.
In Nigeria, customary law and statutory law (received English law) are complete sets of laws, which cover all fields of human existence, including the subject matter of this paper; the meaning of a child. The meaning of child, therefore, exists under customary law and English law. Both legal regimes conceptualize the 'child' differently. They do not only define the 'child' using different parameters but also derive different legal consequences from their varied conceptualizations relating to the civil and criminal capacity of the child, inheritance, proprietary capacity and sociopolitico-legal dimensions of human capacity. These legal consequences subsist within the sphere of influence of the two legal regimes in Nigeria without any substantiate conflict. This paper intends to explain this divergent stream of two water that hardly mix within the confluence of the same jurisdiction in Nigeria on the meaning of a child and the consequences that derive from it. The paper shall forensically analyze the identical yet, distinct provisions on the meaning of the Nigerian child in the extant legal regimes.

Nigerian Child under Customary Law
Customary law in Nigeria is derived from the customs, traditions, and practices of the people, which represent their way of life. To that extent, customary law is multiplied into at least 250 places in Nigeria, representing the approximately 350 ethnic tribes in Nigeria. It differs from people to people, place to place or tribe to tribe. It is indeed is the major shortcoming of Nigerian customary law, which is its absence of homogeneity. 2 Thus, regarding the subject matter of this paper, customary law meaning of a child in Nigeria is multiplicated. Whether or not a person is a child is dependent on the customary law of the area where the issue has arisen for determination. Within the customary law of an area, however, whether or not a person is a child is dependent on the purpose for which the inquiry is being made.
For instance, in several ethnic groups in Nigeria, 3 financial independence and contribution to community and family concerns is a yardstick for determination of adulthood. Children are not required to financially contribute to development projects in the community or contribute to solving family challenges. Thus, a person who has attained the statutory age of adulthood in Nigeria, 4 but is unable to make financial contributions to community development may be presumed under many prevailing native customs in Nigeria to be a child. 5 The same situation applies to family matters. The African extended family system guarantees that every member of the extended family must participate in solving family problems, which include financial contributions. Any member of the family who is given reasonable time, but is unable to make the required contributions towards the resolution of any family issue is considered a child and treated accordingly, especially if he still depends on the parents or relatives for sustenance. 6 The logic of this native custom is that, like children who are funded for by others, any mature person who is unable to meet up with his obligations either to the community or family is not fit to be called an adult, which carries some dignity and responsibilities. The determination of childhood is therefore anchored on the fact that the person whose age has fallen for determination has not attained the mental and social adaptation to his environment to be able to confront and solve the problems of life. An adult who cannot solve his problems without the supervision or intervention of the parents or relatives or another adult is just like a child and is deemed to be one. 7 Their parents and relatives solve their problems and continue to do so until they are matured in belongs to for themselves.
Again, among the Ibo ethnic group of Nigeria, (which the author belongs) to membership of an age grade is evidence of cessation of ISSN 1978-5186 Volume 11 No. 1, January-March 2017 33 childhood. Membership is acquired through initiation, and the effect is that it raises the presumption of adulthood. 8 Thus, in the Eastern region of Nigeria, which is predominated by the Ibos, a male person who has not undergone initiation rites into an age group is not only deemed a child but also presumed to be a woman and treated as such, so long as he remains uninitiated.
Another status determinant in the Ibo native law and customs is the attachment of the first male child to the father's legacy, which requires that he remains a child for family rituals and socio-politico-legal succession as long as the father is still alive. This custom seems to be widely applicable to the different tribes of Nigeria. Thus, among the Jukuns, 9 a father is bound to provide accommodation for his adult male children, especially the first male child who will succeed him. It was illustrated in the case of Awudu v. Daniel 10 where the Nigerian Court of Appeal held that a father was bound to provide accommodation for his first son who was more than 30 years of age. 11 In this case, the 1 st defendant, the father of the plaintiffs bought a piece of land in Wukari town and commenced development at a time when the 1 st plaintiff who was his first son was between one and two years old. The defendant later had another male child (the 2 nd defendant), and four daughters. All the children were begotten at the accommodation (piece of land) in dispute. In 1998, the 1 st defendant divorced the mother of the plaintiffs and in that same year proceeded to sell the building wherein the 1 st plaintiff and his siblings (the four sisters) were born, to the 2 nd defendant. The sale was without notice to the plaintiffs, who filed this suit for themselves and on behalf of the four sisters, seeking inter alia a declaration that the sale was void. The High Court found for the plaintiffs and the defendants unsuccessfully appealed to the Court of Appeal; at which the Court of Appeal held inter alia as follows: Under Jukun native law and custom, a father must provide shelter for his children. Also, a father is not allowed to sell the compound in which his children are living or family land. If he wishes to sell, he must notify them and his wife, but if they refuse, he cannot sell. do not inherit their father's property while he is still alive under Jukun's native law and custom.
In the vast majority of native customs in Nigeria, a male person ceases to be a child on the day of his marriage, and conversely, a mature male person continues to be denigrated as a child if he remains unmarried. In other customs, whether or not a person is a child is a matter of impression and opinion of the people of the area concerned. Thus, a report by the Nigerian Institute of Advanced Legal Studies reveals that in certain customs, a child is a person below 20 years of age, while in others; a child is a person who is below 30 years of age. 12 From the preceding, it is quite clear that there is no readily ascertainable age of cessation of childhood under Nigerian customary laws, because generally, whether or not a person is a child is an issue of circumstance and not age. Notwithstanding, the general rule in most customs is that a child is a person who has not attained the age of puberty, because "native law and custom decree that persons come of age when they reach the age of puberty." 13

Nigerian Child under Statutory Law
Nigerian statutory law is far from cohesive on whom a child is. Various statutes provide for different ages to define a child for different purposes. To determine the issue of parties to crimes and criminal responsibility, the two principal criminal law statutes in Nigeria, the Criminal Code 14 and Penal Codes 15 distinguish between two age categories to define a child. Under the Criminal Code as in the Penal Code, a person below the age of 7 years is doli incapax and cannot be criminally liable for any crime in Nigeria. 16 The Criminal Code further extends this restriction to a male child below 12 years for the offense of unlawful carnal knowledge 17 only. However, for any other offense, a person of below the age of 12 years is not criminally responsible "unless it is proven that at the time 12  of doing the act or making the omission he could know that he ought not to do the act or make the omission. 18 To determine the culpability of a male child in sexual offenses under the Criminal Code, therefore, a child is a person below the age of 12 years. In any other offense, however, a person of above seven years but below twelve is not a child to administrate punishment. The Penal Code contains similar provisions; however, the blanket restriction of liability for male children below the age of twelve for rape is absent. Under the Penal Code, a child of above seven years but below twelve is not criminally liable unless it is proven that he "has attained sufficient maturity of understanding to judge the nature and consequence of that act." 19 In this case, therefore, any person above seven years is not presumed to be a child for criminal liability.
Other statutory criminal provisions that deal with the definition of a child in Nigeria relates to Child Justice Administration. The Nigerian Child's Rights Act, 20 which domesticates the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, defines a child as a person below the age of 18 years. 21 Section 209 of the Act provides that:-The police, prosecutor or any other person dealing with a case involving a child offender shall have the power to dispose of the case without resorting to formal trial by using other means of settlement, including supervision, guidance, restitution, and compensation of victims and encourage the parties involved in the case to settle the case", but where the power is not exercised, and a child is tried and found guilty by the court, the term 'conviction' and 'sentenced' shall not be used in relation to [such] a child. Several statutes on different aspects of civil law also provide for different ages of delineating a person a child based on the subject matter of 18 Ibid. 19 Section 50(b). 20 Cap. C50 Laws of the Federation of Nigeria, 2010. 21 See Article XL(3)(b) & (4) of the UN Convention on the Rights of the Child 1990. It provides that whenever a child (a person below 18 years of age, as defined under Article 1) is alleged as, accused of, or recognised as having infringed the penal law, State parties whenever appropriate and desirable shall seek to promote "measures for dealing with such children without resorting to judicial proceedings" even as "alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their wellbeing and proportionate both to their circumstances and the offence". Article XVII (2)(b) & (3) of the African Charter on the Rights and Welfare of the Child, 1989 on the other hand, provides that whenever a child (a person below 18 years of age as defined under Article II) is accused or found guilty of having infringed penal law, State parties shall "ensure that [such] children are separated from adults in their place of detention or imprisonment" and that "the essential aim of treatment of every child during the trial and also if found guilty of infringing the penal law shall be his or her reformation, re-integration into his or her family and social rehabilitation". the particular law. Good examples are the Labour Act 22 and Electoral Act. 23 Under the Labour Act, a child cannot be employed or engaged to work in any industrial undertaking; and for this purpose, a child is defined as any person below the age of 14 years. 24 The provision expressly mentioned 'industrial undertaking,' which by the maxim expression unius est exclusio alterios 25 eliminates other types of works. The effect, therefore, is that a person below the age of 14 is not a child and may be employed or engaged in any establishment other than an industrial undertaking. Again, a person below the age of 14 years is an adult and can be employed or engaged to work even in an industrial undertaking if it is for training in a technical school where the work is approved and supervised by the Ministry of Education or corresponding Department of Government of a State. 26 The Electoral Act, on the other hand, contemplates that children are not to be part of the electoral process and thus excludes them from voting during elections. It states that a person below the age of 18 years is not entitled to be registered to vote. 27 These categories of persons are, therefore, children to exercise voting rights during elections in Nigeria.
Notwithstanding the above divergent statutory provisions on the meaning of a child in Nigeria, it is submitted that the general rule under Nigerian statutory laws is that a child is a person who has not attained the age 18 years. The Nigerian Child's Rights Act is specific legislation that deals with issues of children, and therefore, its provisions must take precedence over other ancillary legislation that defines the child merely for fringe purposes.

C. Conclusion
We conclude in this paper that even though the two regimes of laws applicable in Nigeria: statutory and customary laws, do not conflict on the definition and application of the concept of a child, there is a need to harmonize these various divergent provisions in Nigeria in order to streamline the approach of the law to children issues. In our opinion, the best approach is to extend the application of the Child's Rights Act on the