Ethel Abisogun Vs Akintunde Abisogun And 6 Ors (1963)

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ADEMOLA, C.J.F.

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, 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 pre 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 judgment 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. Macfoy(1909)Renner GoldCoast Report 504, 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.