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AKINTUNDE ABISOGUN AND 6 OTHERS
BEFORE THEIR LORDSHIPS:
1 AKINTUNDE ABISOGUN
CUSTOMARY LAW:- Native Law and Custom – Proof of Marriage —Yoruba native law and custom – Acknowledgement of child born out of wedlock by father married under Marriage Ordinance – Whether competent in case of children born before the wedlock but not children born after the wedlock
FAMILY LAW – MATRIMONIAL CAUSES: – Validity of Marriage under the Marriage Ordinance – Voidance of marriage under the Marriage Ordinance due to prior existing customary law marriage – How existence of customary law marriage may be proved – When deemed not proved – Relevant considerations
FAMILY LAW – LEGITIMACY: – Legitimacy of children born of out wedlock – Legitimacy and legitimation – Effect of subsistence of a valid marriage under the Marriage Ordinance on legitimacy of children – Acts considered as legitimation – Relevant considerations
ESTATE ADMINISTRATION: – Probate – Grant of letters of administration pursuant to distribution of personal estate of deceased – Interest of children born within and out of wedlock – Effects of legitimacy, valid marriage and legitimation – Relevant considerations
INTERPRETATION OF STATUTE: Legislation—Marriage Ordinance 1923, s. 33 (1958 Laws of the Federation, Cap. 115, s. 33 (1))
CHILDREN AND WOMEN LAW:- Women/Children and Inheritance – Promiscuous father/husband – Legitimacy of 12 children born out of wedlock to a father married under Marriage Ordinance – Validity of marriage under Marriage Ordinance following a valid and existing customary law marriage by one of the parties – Validity of a customary law marriage subsequent to a valid marriage under the Marriage Ordinance by one of the parties– Effects on probate proceedings pursuant to grant of letters of administration – Implications for inheritance rights
On the death of Chief Akintunde Abisogun intestate, the appellant, who claimed to be his lawful wife, having been married to him in accordance with the Marriage Ordinance, and acting on behalf of, and on the instructions of her daughter then away in the United Kingdom, applied for letters of administration to administer his personal property. The daughter was the only child of the marriage. The first five defendants, who claimed to be the children of the deceased by different women who are not parties to this action, filed on the 22nd day of January, 1960, a caveat. Each of these defendants claimed that his mother was married to the deceased according to Native Law and Custom. On the 3rd February, 1960, the 6th and 7th defendants both filed another caveat against the grant.
The 6th defendant claimed that she was married to the deceased in 1933 according to Native Law and Custom and that she had 5 children by him, all of whom the deceased in his lifetime acknowledged, educated and maintained until his death in October, 1959.
The 7th defendant also claimed that she was married to the deceased in 1954 according to Yoruba Native Law and Custom and that she had two children by him, acknowledged, educated and maintained by the deceased until his death.
The appellant brought an action that the caveats be removed. She lost in the High Court of Lagos, the Judge refused to remove the caveats, hence this appeal.
The defence of the first five defendants was that they are legitimate children of the deceased, their mothers having been married to the deceased according to Native Law and Custom, and that they are entitled to administer the personal estate of the deceased. The 6th and 7th defendants stated that they are wives of the deceased, having been married to him by Native Law and Custom, and that in the interests of their children; they are entitled to administer his personal estate.
It appeared that the deceased lived a promiscuous life until the 30th December, 1930; then he wanted to start a new life; he decided to get married to the appellant in accordance with the Marriage Ordinance. But this new life was short-lived; for in 1944 the appellant and the deceased separated and the appellant went and lived with her mother. The claim by the 6th defendant, in fact, postulated that three years after the deceased had got married to the appellant, he reverted back to his old ways and, indeed, in 1933, added her (the 6th defendant) to the number of his “wives”, for clearly the defendants’ case was that the deceased did not at any time do away with all these women. The defendants built their case on the alleged marriage, according to Native Law and Custom, between the deceased and the mothers of the 1st to 5th defendants and on the acknowledgement by the deceased of the children born to him also, by the 6th and 7th defendants.
Ayodele Pomphilo said the 1st and 5th defendants are her children by the deceased. She said that her marriage to the deceased, according to Native Law and Custom, took place in 1919. There were three others married to the deceased before her in accordance with Native Law and Custom. Later a fifth wife was added to the fold. No attempt was made to prove any of the other four marriages but that of Ayodele Pomphilo in 1919. She gave evidence of it and said that it was performed strictly in accordance with Native Law and Custom. According to her she lived with the deceased and with the four other wives until 1930 when the deceased sent them all to their respective parents under the pretext that the house they lived in was to be redecorated; he kept all the children with him but sent their mothers away. Ayodele Pomphilo maintained, however, that the deceased visited her regularly in her parents’ house even after his marriage to the appellant, and did so for three years before she noticed a change in him and she decided “to take another husband”.
The core of the case for the defendants is that the deceased had gone through a form of marriage with Ayodele Pomphilo in 1919, according to Native Law and Custom, and that as that marriage still subsisted in 1930 when the purported marriage under the Marriage Ordinance with the appellant took place, the latter marriage was void.
The learned Judge in his judgement found that the 1st to the 5th defendants are legitimate children of the deceased having been born to him and acknowledged by him before the marriage of 1930 to the appellant; that they are therefore entitled to share in the property of the deceased. He also found that the marriage of the appellant and the deceased in 1930 was void as he was already married in 1919 to Miss Pomphilo according to Native Law and Custom, which marriage he found proved.
The strength of this second finding is to let in the claim of the 6th and 7th defendants who were claiming for their children who, at the time of the action, were all still minors. If the marriage under the Marriage Ordinance is void, the children of the 6th and 7th defendants, once it was established that they were recognised by the deceased, are legitimate and will be entitled to share in the estate of the deceased.
Before arguing the appeal, Counsel for the appellant sought by way of motion to tender additional evidence which he stated he could not have brought up at the hearing since the point first came up at the hearing and was not specifically pleaded. In consequence of our allowing this additional evidence to be tendered, a certified copy of a marriage certificate of one Miss Caulcrick was admitted as evidence and marked Exhibit FSC 1. The effect of the certificate is no doubt to discredit the witness Ayodele Pomphilo who stated that Miss Caulcrick was one of the deceased’s wives and was still his wife until some years after the deceased’s marriage to the appellant in December, 1930. Miss Caulcrick was already married to one Puddicombe under the Marriage Ordinance before December, 1930.
In his argument before us, Counsel for the appellant did not complain against the decision that defendants 1 to 5 are legitimate children of the deceased and that they are entitled to share in his estate; he conceded this point. His argument was mainly directed to the marriage by Native Law and Custom to the witness Ayodele Pomphilo.
It was agreed that if this marriage was proved the consequences referred to by the learned Judge must follow. Section 33 of the Marriage Ordinance 1923, as re-enacted in section 33 of the Marriage Ordinance 1933, is as follows:-
“A marriage may be lawfully celebrated under this Ordinance between a man and the sister or niece of his deceased wife, but, save as aforesaid no marriage in Nigeria shall be valid which, if celebrated in England, would be null and void on the ground of kindred or affinity, or where either of the parties thereto at the time of the celebration of such marriage is married by Native Law or Custom to any person other than the person with whom such marriage is had.”
We are here not concerned with the incidents of Native Marriage in the sense of what the rites and formalities of a Native Marriage are. This was fully set out in the case In re Adele Sapara Caveatrix (1911) Renner Gold Coast Report 604. In Savage v. Mac/by (1909) Renner Gold Coast Report504, Osborne, C.J., defines what must be proved as essentials to a Native Marriage. The question here is, what standard of proof should a Court require to satisfy itself that a marriage took place in accordance with Native Law and Custom? Ayodele Pomphilo gave evidence that she went through that form of marriage with the deceased; she stated that many of her relatives were present at the ceremony when the dowry was brought to her parents; she referred to some close relations of the deceased who brought the dowry; the three persons she could remember were dead; there were many others, according to her, but she could not remember any of those who were still alive. Then she mentioned a friend of the deceased who was present at the ceremony and who had come with the deceased to see her parents. There was no evidence that this friend Sebastian Pedro was not alive; in fact, Counsel admitted in this Court that he is alive and active, yet he was not called to give evidence. The only other witness called to prove the marriage was Isaac Pomphilo, her brother. Apart from the evidence of these two (brother and sister) there was no other evidence to prove this marriage. Whilst in certain circumstances this evidence may be enough to prove a marriage in accordance with Native Law and Custom, I am of the view that it falls short of the standard of proof required to invalidate a marriage under the Marriage Ordinance, which was celebrated in public after parties to it have sworn to affidavits before the Registrar of Marriages, and one of such parties is not alive to deny an allegation that he had sworn to a false affidavit.
In his summing up of the evidence before him to prove the marriage of Miss Pomphilo to the deceased the learned Judge said this about Miss Pomphilo’s evidence:-
“Her evidence was that in the year 1919 she was married by Native Law and Custom to the deceased. She gave evidence of the traditional rites and formalities and stated that they were all complied with. Her evidence in this respect is substantially corroborated by her elder brother one Isaac Akindele Pomphilo, the present head of the family of Pomphilo I take the view that in the year 1919, as testified by these witnesses, Ayodele Pomphilo was married to the deceased according to Native Law and Custom.”
With respect, I cannot share the view of the learned Judge that to prove a marriage in accordance with Native Law and Custom in order to invalidate another marriage, the “ipse dixit” of one of the parties to the alleged marriage backed up by the evidence of her brother, whilst others alleged to be aware of the marriage are alive, is enough to discharge the onus of proof required to prove such a marriage by Native Law and Custom.
Miss Pomphilo’s evidence was that the deceased in 1930 sent her back to her parents’ house, which she said was at 19 Odunlami Street; it is strange she did not know of the marriage of the deceased to the appellant which was celebrated openly at the Cathedral Church of Christ, a few yards from her home in the same street (Odunlami Street).
In her evidence it would appear Miss Pomphilo later became aware of this marriage at the Cathedral Church of Christ. There was no evidence that she did anything about it. She said:-
“For three years after I learnt of his marriage to the appellant he continued to come to me and to maintain me. Thereafter his visits were not frequent and he was unsteady with me……”
Such was the attitude of a woman who was told to go and live with her parents because the house was to be redecorated. There was no evidence that she made any protests when she became aware of the marriage or that she took steps to invalidate it. There was no evidence that she ever went back to the deceased’s house or that she had any more children by him after she had been put out. It would appear the learned Judge failed to consider these points. I would add that in order to invalidate a marriage celebrated under the Marriage Ordinance on the ground of a prior marriage by Native Law and custom, the latter marriage must be established with a high degree of certainty.
In the view I have taken of this matter, it will not be necessary to consider the marriage by Native Law and Custom of the 6th and 7th Respondents and, as the marriage with the appellant subsisted in 1933 and 1954 when the deceased associated with these two women respectively, the children born of these associations are illegitimate, even though they were acknowledged by the deceased -see Cole v. Akinyele 5 FSC. 84.
This appeal will therefore be allowed. In so far as it applies to the 6th and 7th Respondents, the caveat on their behalf should be removed forthwith. The caveat filed on behalf of the defendants 1 to 5 should also be removed, and the following order is proposed:
That the Probate Registrar in Lagos do grant letters of administration to administer the personal estate of Chief Akintunde Abisogun (deceased) to his widow Mrs. Ethel Adeleye Abisogun together with his children, the first five Respondents/ Defendants in this action, namely:
or such representatives as they may choose to appoint.
Order made against the appellant for costs in the Court below is hereby set aside.
Costs to appellant and to the defendants in the Court below and in this Court to be taxed and to be paid out of the estate.
TAYLOR, F.J.: I concur.
BAIRAMIAN, F.J.: I concur.