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31 JANUARY, 1921

3PLR/1921/2 (CA)



(1921) 3 NLR 89






Irving for the appellant.

Taylor for the respondent.



FAMILY LAW: – Marriage of Christian Native outside Colony or Protectorate – Presumption of – Succession to property by issue of previous native marriage – applicability of English Law

ESTATE ADMINISTRATION – SUCCESSION: – Legitimacy and succession – Children born of legally recognised marital union – Relevant considerations

JURISPRUDENCE AND INTERNATIONAL LAW: – Slavery – Customarily Married man with daughter taken from Nigeria as slave to another continent – Subsequent conversion and remarriage abroad under Christian law – Subsequent return to Nigeria as freed man – Succession to property of man and his wife – Validity of previous marriage – Legitimacy of pre-slavery daughter and entitlement to succession to property of father as heir – How treated by court

CHILDREN AND WOMEN LAW: – Women/Children and SuccessionWomen/Children and Slavery – Validity of marriage contracted under native law and custom by a man who was subsequently taken abroad as slave and remarried in West Indies under Christian law – Legitimacy of child of the customary law marriage and right to inherit in the estate of Father inuring to wife of his Christian marriage – Relevant considerations – How treated



The judgment of the Full Court consisting of Combe, C.J. Pennington and Van der Meulen, J.J., was delivered on 31 January, 1921, by COMBE, C. J.


This is an appeal from the judgment of the Divisional Court in an action in which the plaintiff, who is the appellant in this Court, claimed the recovery of the possession of the house and land known as No. 3 Andrew Street, Lagos, and the delivery of the title deeds of the said house and land.


The facts admitted or proved are that one Harry Johnson, whose native name was Ajayi, a native of Awe, now in the Province of Oyo, in the Protectorate of Nigeria, married according to native law and custom a woman of the name of Oniketan, by whom he had one child Adegbola, the plaintiff in the action. When Adegbola was about 10 years old Harry Johnson was seized as a slave and shipped to the West Indies, where he lived for about 40 years. His wife Oniketan and his child the plaintiff remained at Awe.


While in the West Indies Harry Johnson was converted to the Christian faith and became a member of the Roman, Catholic Church. According to the evidence of one Mary Anne Williams, who was in the West Indies at the time, Harry Johnson was married to a woman afterwards known as Mary Johnson in a Catholic Church, the ceremony being performed by a white man. The exact date of this marriage cannot be ascertained but from the evidence it must have been prior to the year 1876 as Harry and Mary Johnson were in Lagos in 1876. After the marriage Harry Johnson and Mary Johnson lived together in the West Indies for some three years. They then came to Lagos where they lived together as man and wife, and as a witness states that they, while in Lagos, received the Sacrament in the Roman Catholic Church there is no doubt but that they, considered and the ministers of that Church were satisfied, that they had contracted a Christian marriage. In 1876 Harry Johnson purchased land in Lagos on which he built a house. This land and the buildings thereon are the subject matter of this suit.


At the date when Harry Johnson and Mary Johnson went through the ceremony of marriage in Trinidad, Oniketan, the woman he had married according to native law and custom at Awe, was alive, and Harry Johnson found her and his child Adegbola living on the family land at Awe when he visited Awe after his return to Lagos. He did not take Mary Johnson to Awe or bring Oniketan to Lagos, but his child Adegbola visited him and Mary Johnson in Lagos. Harry Johnson had no child by Mary Johnson and the plaintiff is his only child.


Harry Johnson died intestate in or about the year 1900, and Mary Johnson continued to live in Harry Johnson’s Lagos house after his death until her death in the year 1918. Oniketan is dead but there is no evidence as to whether she died before or after Harry Johnson.


Mary Johnson had made a Will appointing the first defendant her executor and leaving to him Harry Johnson’s house, the property the subject of this action, and the first defendant has mortgaged the property to the other defendants.


The plaintiff claimed that as her father had died intestate, she, as his only child had inherited her father’s land and house in Lagos and was entitled to the possession of the property in question, which the first defendant had refused to give her.


The defendants’ answer to her claim was that Harry Johnson and Mary Johnson were married in Trinidad according to Christian rites; that the law which governed the inheritance of Harry Johnson’s property in Lagos was the law of England and not native law and custom; and that as under the common law of England the plaintiff was not a lawful child of Harry Johnson she did not inherit Harry Johnson’s real property in Lagos and was not entitled to the possession of the property.


On these facts the learned Judge held that, notwithstanding that no certificate of marriage was produced he was bound to presume on the facts before him that Harry Johnson and Mary Johnson had contracted a valid Christian marriage, and that the courts of this Colony must recognize such Christian Marriage. I agree with the learned Judge that such marriage must be presumed on the facts before him. I was at first impressed with the argument that the presumption in favour of the marriage was rebutted by the fact that at the date of the alleged marriage the wife under the native marriage which Harry Johnson had contracted some years before was still living, especially having regard to the fact that under the law now in force in Nigeria no person can in Nigeria contract a valid Christian marriage if he is married to any other person under native law and custom. The law which imposed this prohibition was enacted in 1884 some years after the date on which Harry Johnson contracted a marriage with Mary Johnson, and any argument which can be founded on such prohibition does not apply in this case.


Although there is no direct evidence that the native polygamous marriage which Harry Johnson contracted before he was seized as a slave was dissolved, I think that the proper presumption on the facts is that Harry Johnson, before he contracted his marriage with Mary Johnson, considered that he and his partner to the native marriage were absolved from all obligations to one another founded on the native marriage, and that he was free to contract a Christian marriage with Mary Johnson. Harry Johnson had then been in the West Indies for some 35 years, separated for all these years from his pagan relations; he had changed his status insofar as he had adopted the Christian religion. Under the laws of the country in which he was living, and under which he may have considered he would live for the rest of his life, the polygamous marriage which he had contracted many years before did not preclude him from contracting a Christian marriage. Had he been at Awe he could have dissolved his native marriage with but few, if any, formalities, and he very possibly thought that his pagan wife, if still alive and being deprived of his support, had married someone else or had been taken by his brother as a wife, his relations assuming, as they might well have done, that he was dead. In these circumstances I consider that the learned Judge was right in holding that the presumption in favour of a Christian marriage between Harry and Mary Johnson must be made and that such presumption has not been rebutted.


Having found that Harry Johnson had contracted a Christian marriage with Mary Johnson the next question which the learned Judge had to decide was what law applied to the inheritance of Harry Johnson’s real property in Lagos. Now when native law and custom relating to inheritance is applicable to the circum­stances of the case the Courts of this Colony will always observe such law and custom. But it has been held by this Court in the case of Cole v. Cole, which is reported in Vol. 1 of the Nigerian Law Reports at page 15, that the native law and custom relating to inheritance is not applicable when the deceased has contracted a Christian marriage and leaves a widow of such marriage, and that in such case the common law of England should be applied. The learned Judge in the Court below held that he was bound by that decision and that the English common law and not native law and custom must govern the question as to who inherited the premises, the subject of this action, on the death of Harry Johnson. I agree that the decision of the Full Court in the case of Cole v. Cole covers the facts in this, case and that the learned Judge in the Court below was bound by that decision. This Court is also bound by the decision.


The English common law having been applied, the plaintiff did not inherit the premises in question and is not entitled to the possession of the premises.


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