Taiwo Aoko v Adeyeye Fagbemi and Anor (1961) ANLR 400 

Taiwo Aoko v Adeyeye Fagbemi and Anor (1961) ANLR 400 

The case of Aoko v Fagbemi decided by the High Court of Western Nigeria in 1961 is one of the earliest constitutional law cases in post-independence Nigeria. Though arising from a seemingly simple dispute of adultery under customary law, the decision became a landmark for clarifying the relationship between customary law and the Nigerian Constitution, particularly on the principle that no person can be convicted for an offence unless that offence is clearly defined in a written law. It also marked one of the first judicial assertions of the supremacy of constitutional fundamental rights over customary practices in criminal proceedings. 

Facts of the Case 

The applicant, Mrs. Taiwo Aoko, was married to the first respondent, Mr. Adeyeye Fagbemi, under native law and custom. In January 1961, she was charged before the Customary Court of Ijebu-Ijesha Grade “D” for committing adultery. According to the prosecution’s case, Aoko had engaged in extramarital relations while still married, without having secured either a judicial separation or an agreement of separation from her husband. 

When the charge was read to her, Aoko pleaded guilty. However, the Customary Court judge did not stop at the plea; he proceeded to hear evidence from the complainant (her husband) and from Aoko herself. The case was adjourned several times for further inquiries, and eventually the court found her guilty of adultery under customary law. She was convicted and sentenced to pay a fine of £2 10s or, in default, to serve one month of imprisonment. In addition, the court ordered her to pay costs and compensation to her husband. 

Dissatisfied with the conviction, Aoko appealed to the High Court of Western Nigeria. Her main contention was that adultery was not an offence under any written law in Nigeria and therefore her conviction was unconstitutional. She relied on section 21(10) of the 1960 Constitution of the Federation of Nigeria, which provided that no person shall be convicted of a criminal offence unless that offence is defined and a penalty prescribed in a written law. The written law was defined to include Acts of Parliament, laws of a legislature, subsidiary legislation, and existing laws, but not customary law. 

Issues for Determination 

The High Court had to determine several important questions: 

1. Whether adultery under customary law, in the absence of codification, could validly constitute a criminal offence in Nigeria. 
2. Whether the conviction and sentence of the applicant by the Customary Court violated her fundamental right under section 21(10) of the 1960 Constitution. 
3. Whether the procedure adopted in challenging the conviction was proper, since the applicant brought her claim by way of enforcement of fundamental rights under section 31 of the Constitution, rather than by the traditional remedy of certiorari.

Arguments of the Parties 

On behalf of the applicant, counsel argued that her conviction was void ab initio because adultery was not a criminal offence under any written law in Nigeria. While customary law might govern civil consequences of adultery—such as divorce, loss of bride price, or compensation—it could not be elevated into a criminal offence in the absence of legislative backing. Section 21(10) of the Constitution entrenched the principle of legality: nulla poena sine lege, meaning no one should be punished for an act not defined by law. Since adultery was not an offense under the Criminal code or any written law applicable in the Western Region, her conviction under customary law was unconstitutional. 

The respondents, particularly the husband, argued that adultery was long recognised as a wrong under customary law and that the Customary Court had jurisdiction to punish it. They contended that the applicant had voluntarily pleaded guilty and should not be allowed to resile from her plea. They further argued that the matter concerned the domestic sphere and the customs of the community, which should not be lightly interfered with by the Constitution. 

Judgment of the Court 

The High Court, in delivering judgment, found in favour of the applicant. The Court held that section 21(10) of the 1960 Constitution was clear and unambiguous: no person shall be convicted of a criminal offence unless the offence is defined and a penalty is prescribed in a written law. Written law, as defined in the Constitution, did not include uncodified customary law. Adultery, while recognised under customary law, had not been codified as a criminal offence under any Nigerian statute at the time. 

The Court quashed the conviction and set aside both the fine and the compensation awarded to the husband. It further ordered that any sums already paid should be refunded to the applicant. 

On the procedural issue, the Court held that the applicant had rightly brought the matter under section 31 of the Constitution, which empowered any person alleging violation of fundamental rights to apply directly to the High Court for redress. Although certiorari was the traditional remedy for challenging the decision of inferior courts like Customary Courts, insisting on that technical route in fundamental rights cases would unduly burden applicants. Since no rules of practice and procedure had yet been enacted by Parliament for the enforcement of fundamental rights, the applicant’s chosen procedure was valid and commendable for being straightforward and effective. 

Legal Significance of the Case 

The importance of Aoko v Fagbemi goes far beyond the facts of adultery. It established several enduring principles in Nigerian constitutional law: 

1. Supremacy of Written Law over Customary Criminal Law 

The case affirmed that only offences defined in written law could ground criminal liability.

This shielded individuals from arbitrary punishment based on uncodified customary norms. 

2. Affirmation of the Principle of Legality 

The judgment entrenched the maxim nullum crimen, nulla poena sine lege in Nigeria. Citizens could no longer be convicted for acts not defined by statute. 

3. Constitutional Supremacy 

The decision reinforced the supremacy of the Constitution over customary law, particularly in the sphere of fundamental rights. Where customary practices conflicted with constitutional guarantees, the latter prevailed. 

4. Protection of Women’s Rights 

Although not framed in gender terms at the time, the case indirectly advanced women’s rights by invalidating a conviction rooted in patriarchal customary notions of morality. 5. Procedural Innovation in Fundamental Rights Enforcement 

The Court’s acceptance of the applicant’s procedure laid the groundwork for a flexible and accessible approach to enforcing fundamental rights in Nigeria. 

Critical Analysis 

The decision in Aoko v Fagbemi can be seen as a progressive one, especially in the context of early post-independence Nigeria. It marked a decisive shift from the dominance of customary norms in the criminal sphere to a constitutional order governed by legality and due process. By quashing the conviction, the Court safeguarded the individual against arbitrary customary sanctions. 

However, the case also highlighted certain tensions. First, it did not completely abolish the relevance of customary law; rather, it confined it to civil matters unless codified. This left unresolved the question of how to harmonise the living realities of customary law with the constitutional demand for legality. 

Second, while the decision protected the applicant, it arguably failed to engage deeply with the broader issue of gender inequality embedded in customary practices surrounding adultery. Under many customary systems, adultery by women attracted harsher consequences than adultery by men, reflecting entrenched patriarchal bias. By treating the case narrowly as a constitutional legality issue, the Court missed an opportunity to interrogate these deeper social inequalities. 

Third, the procedural innovation embraced by the Court, while commendable for its pragmatism, also left uncertainty. The Court acknowledged that Parliament had the power to regulate the enforcement of fundamental rights but had not yet done so. In the absence of clear procedural rules, much was left to judicial discretion, which could lead to inconsistencies in later cases. 

Nevertheless, the case remains a milestone in Nigerian constitutional law. It has been cited in subsequent cases as authority for the proposition that customary law cannot, by itself, create criminal offences. It also set an important precedent for flexible access to remedies in human rights litigation.

Conclusion 

Aoko v Fagbemi (1961) ANLR 400 is a landmark case that transcends its origin as a domestic dispute over adultery. It established the principle that criminal offences in Nigeria must be based on written law, not uncodified custom, thereby securing constitutional protections against arbitrary punishment. It highlighted the supremacy of the Constitution and affirmed the accessibility of fundamental rights enforcement. Though the judgment did not fully confront the patriarchal underpinnings of customary adultery rules, it nonetheless represented an early victory for constitutionalism and human rights in Nigeria. Its enduring legacy is the firm entrenchment of the rule of law, legality, and constitutional supremacy in Nigeria’s evolving legal order. 

Reference(S): 

• Taiwo Aoko v Adeyeye Fagbemi and Anor (1961) ANLR 400. 
• Constitution of the Federation of Nigeria 1960, ss 21(10), 31. 
• Nwabueze, B. O., Constitutional Law of the Nigerian Republic (London: Butterworths, 1964). 
• Obilade, A. O., The Nigerian Legal System (London: Sweet & Maxwell, 1979).
• Okonkwo, C. O., Introduction to Nigerian Criminal Law (Ibadan: Spectrum, 1980).
• Elias, T. O., The Nigerian Legal System (London: Routledge & Kegan Paul, 1963).