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IN THE MATTER OF THE ESTATE OF FREDERICK AKINDELE SOMEFUN— DECEASED
IN RE ADELINE SUBULADE WILLIAMS – APPLICANT
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
10TH DAY OF NOVEMBER, 1941
2PLR/1941/36 (WACA)
OTHER CITATION(S)
2PLR/1941/36 (WACA)
(1941) VII WACA PP. 156 – 157
LEX (1941) – VII WACA PP. 156 – 157
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BEFORE THEIR LORDSHIPS:
BAKER, J.
BROOKE, J.
JEFFREYS, J.
IN THE MATTER OF THE ESTATE OF FREDERICK AKINDELE SOMEFUN — Deceased.
In re ADELINE SUBULADE WILLIAMS — Applicant
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REPRESENTATION
Agusto — for Appellant
Unsworth — for Administrator-General
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Application for revocation of Letters granted to Administrator-General — section 36 of the Marriage Ordinance — Intestate estate of a person who was an issue of a marriage under the marriage Ordinance — Rival claim between his sibling and his widow and child both of which are the issues of a marriage contracted in accordance with customary law — Whether Ordinance precludes succession to the estate from issue(s) of the customary law marriage
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CASE SUMMARY
A who was the issue of a marriage contracted in accordance with the Marriage Ordinance died intestate and was survived by other issue of that marriage and also by a widow and issue of a customary marriage contracted by himself.
The trial Judge stated a case raising the point whether his personal property and any real property of which he might have disposed by will descends to the other issue of the former marriage under the Ordinance or the widow and issue of the marriage of the intestate and which of them is entitled to a grant of Letters of Administration.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: That under section 36 of the Ordinance in the case of succession to the property of the intestate it shall be distributed in accordance with the provisions of the Law of England at the time of the Ordinance relating to the distribution of the personal estate of intestate any law or custom to the contrary notwithstanding.
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MAIN JUDGMENT
The following joint judgment was delivered:-
BAKER BROOKE, AND JEFFEREYS, J.J.
CASE STATED
This is a case stated by the Acting Chief Justice under section 6 of Ordinance No. 47 of 1933 reserving for the opinion of this Court, at the request of the Administrator-General in view of the importance and widespread application of the principle, the question whether he came to a correct decision in finding in favour of the surviving issue of the deceased’s parent’s marriage ‘Under the Marriage Ordinance, Chapter 68 (of whom the applicant is one) on an application for the revocation of letters of administration granted to the Administrator-General and the issue of a fresh grant to her.
The point raised is:-
When a person who is the issue of a marriage contracted in accordance with the Marriage Ordinance dies intestate and is survived by other issue of that marriage and also by a widow and issue by a marriage contracted by himself otherwise than in accordance with the Marriage Ordinance, does his personal property and any real property of which he might have disposed by will descend to the former or to the letter and as corollary which of them is entitled to a grant of letters of administration?
The actual marriage is a customary one. The relevant section of the Ordinance is section 36 which applies only to the Colony. Mr. Unsworth on behalf of the Administration-General in an ingenious argument emphasized the words “shall be distributed” and maintained that the one-third given to the widow under the English law of distribution should include a widow or widows of a customary marriage as in the interpretation of Statutes the singular includes the plural: any other decision would, he claims, have the effect of invalidating a marriage contracted under native law, the validity of which is saved in section 35 of the Ordinance, and also of bastardizing the issue.
We are concerned with the issue of a marriage under the Ordinance and the section 36 lays it down very clearly that in the case of succession to the property of an intestate it shall be distributed in accordance with the provisions of the law of England (at the time of the Ordinance) relating to the distribution of the personal estate of intestates any native law or custom to the contrary notwithstanding.
The provisions of the earlier Ordinance of 1884, section 41 are in the same terms and were enacted at a time when the Court in England did not profess to decide upon the rights of succession which it might be proper to accord to the issue of a polygamous union. The intention of section 36 of the present Ordinance is sufficiently clear and it has been expressed in terms that leave no doubt that “any native law or custom to the contrary notwithstanding”, the property shall be distributed in accordance with the provisions of the law of England which contemplate a monogamous marriage.
In the saving of customary marriage in section 35 it is provided that nothing in the Ordinance shall in any manner apply to marriages so contracted. The answer to the question reserved is therefore that the trial Judge was correct in holding that a person whose right depends on native law and custom and not on English law is excluded from the succession on the death intestate of a person who is the issue of a marriage under the Ordinance.
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