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IN RE SARAH I. ADADEVOH AND OTHERS
V.
IN THE MATTER OF THE ESTATE OF HERBERT SAMUEL HEELAS MACAULAY (deceased)
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
23RD DAY OF NOVEMBER, 1951
2PLR/1951/47 (WACA)
OTHER CITATION(S)
2PLR/1951/47 (WACA)
(1951) XIII WACA PP. 304-311
LEX (1951) – XIII WACA 304-311
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
LEWEY, J.A.
JIBOWU, J.
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BETWEEN/MATTER:
IN RE SARAH I. ADADEVOH AND TEN OTHERS — Applicants-Appellants
and
IN THE MATTER OF THE ESTATE OF HERBERT SAMUEL HEELAS MACAULAY (deceased)
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ORIGINATING COURT(S)
Appeal from the Supreme Court, CIV. APP., W.A.C.A. 3552
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REPRESENTATION
F. R. A. Williams — for Appellants
N. N. Q. Sagoe — for Administrator-General
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Distribution of estate of deceased – The deceased the issue of a marriage under Marriage Ordinance himself married under Marriage Ordinance having no issue of such marriage – Rights of other children of deceased by native law and custom and of children of irregular unions
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CASE SUMMARY
The deceased, the issue of a marriage under the Marriage Ordinance (Cap 128), was himself married under that Ordinance, having no issue of his marriage, but a number of children, some of whom were children of several marriages by native law and custom and the others children of irregular unions. All the children were the appellants.
The trial Judge held that the appellants were not entitled to any share in the estate unless it should be shown that in the absence of next-of-kin it would escheat to the Crown.
The issue before the Courts was the right of such children to inherit the personal property of the deceased. Section 36 of the said Ordinance provides that in such circumstances the personal property of the deceased shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estate of intestates any native law or custom notwithstanding. Counsel for the appellants, the said children, argued that in English law the word children means legitimate children, and that the question of legitimacy is to be decided by the law of the domicile, that is, Nigeria. The Court also had to determine the construction to be placed on the words “any native law or custom to the contrary”. In the course of the arguments the Court considered the case of Estate of F. A. Somefun – in re Williams (4), and came to the conclusion that it was wrongly decided per incuriam and should not be followed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. The persons entitled to distribution must be ascertained by reference to the laws of England, and that such laws decided legitimacy according to the laws of the country of domicile.
2. The words “any native law or custom” do not affect distribution according to English law. The effects of these words was that no native law or custom could give to any person entitled to share in the distribution of personal estate a larger or less share than such person would receive under English law.
3. Case to be referred back to the trial Court to ascertain which of the children were legitimate according to native law and custom.
Cases referred to:
(1) Re Goodman’s Trusts (1881), 17 Ch.D. 266.
(2) Sinha Peerage Case, Committee of Privileges, 1939.
(3) Baindail v. Baindail (1946), 1 All E.R. 348.
(4) Estate of F. A. Somefun – in re Williams, 7 W.A.C.A. 156.
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MAIN JUDGMENT
The following judgment was delivered:
VERITY, C.J.
This is an appeal from a decision of Reece, J., on an application by the Administrator General as administrator of the estate of a deceased person seeking a declaration as to the persons entitled to share in the real and personal property of the deceased.
The deceased was the issue of a marriage contracted under the Marriage Ordinance (Cap. 128) and had himself contracted a marriage in accordance with the provisions thereof, and as the matter concerns persons and property in the Colony of Nigeria the distribution of the estate is governed by section 36 of the Ordinance.
The deceased was married under the Ordinance in December, 1898, and his wife died in May, 1899, leaving no issue. It appears that at various times both before and after this marriage the deceased begat a number of children, two of whom predeceased him, by a number of women. Of these children the appellants were cited as respondents to the application for directions, having claimed to be entitled to the estate of the deceased. The learned Judge was satisfied that of the women by whom these children were born, four were married to the deceased in accordance with native law and custom. As to the others he directed that further evidence should be sought as to the nature of their relations with the deceased. He further directed that enquiries should be instituted with a view to ascertaining whether there is any next-of-kin entitled to succeed upon the failure of the appellant’s claim.
It might appear that such directions are in the nature of an interlocutory order only and that the leave of the Judge should have been sought to appeal therefrom, but it is submitted by Counsel that the learned Judge having found that the appellants are not entitled to any share in the estate unless it should be shown that in the absence of next-of-kin it would escheat to the Crown, he has determined finally their rights and an appeal lies without leave. With this submission the Court concurred and the appeal therefore proceeded.
The relevant section of the Ordinance (section 36) which the learned Judge in the Court below applied to the facts as he found them, provides that-
“When any person who is subject to native law and custom contracts a marriage in accordance with the provisions of the Ordinance and such person dies intestate … leaving a widow or husband or any issue of such marriage; and also where any person who is the issue of any such marriage as aforesaid dies intestate …
“The personal property of such intestate and also any real property of which the said intestate might have disposed by will, shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estate of intestates any native law or custom to the contrary notwithstanding.”
In the present case, the deceased having been the issue of a marriage contracted in accordance with the provisions of the Ordinance, it is conceded that section 36 applies to the distribution of his estate, he having died intestate. It is necessary, therefore, to apply to the distribution of his estate the law of England relating to the distribution of the personal estate of intestates.
It is submitted by Mr. F. R. A. Williams, to whom we are indebted for his careful and well-reasoned argument, that the appropriate rule is that set out in Halsbury’s Laws of England (First Edition, Vol. XI, page 19) in the following terms (inter alia):-
“Subject to the rights of the husband or the widow (if any) – the personal estate of an intestate who leaves issue is distributed by equal portions to and amongst the children of such person dying intestate and such persons as legally represent such children in case any of such children be then dead … “
The learned author having further set out certain matters which are not relevant to the present issue proceeds:-
“the word ‘children’ means ‘legitimate children’, The question of legitimacy is one of status to be decided by the law of the domicile; therefore, if a child is legitimate by the law of the country where at the date of its birth its parents were domiciled, the law of England (except in the case of succession to real estate in England) recognises and acts upon the status declared by the law of the domicil.”
Mr. Williams submits that when by section 36 of the Ordinance it is required that the estate of a person who is the issue of a marriage contracted under that Ordinance shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estate of intestates, it is to the rule there enunciated by the learned author of Halsbury’s Laws of England that effect should be given. From this it would follow, he submits, that any child recognised by the laws of Nigeria as legitimate is entitled to share in the estate of the deceased parent. If, therefore, the appellants can be shown to be legitimate children of the deceased in accordance with native law and custom, then not by the application of such customary law, but by the law of England they are entitled to share in the distribution of the estate. Counsel further submitted that the words of the section which apply the law of England “any native law and custom to the contrary notwithstanding” refer solely to the distribution of the estate and not to the right of succession which is determined by the status of the claimants.
This argument was supported by reference to certain decided cases and more particularly Re Goodman’s Trusts (1), in which it was held that a child who was legitimate according to Dutch law, her parents having been domiciled in Holland, although she would have been illegitimate according to the law of England at that time, could claim as a “brother’s child” within the Statute of Distribution. In this case Lord Justice Cotton said:-
“If, as in my opinion is the case, the question whether a person is legitimate depends on the law of the place where his parents were domiciled at his birth, that is, on his domicile of origin, I cannot understand on what principle if he be by that law legitimate he is not legitimate everywhere, and I am of the opinion that if a child is legitimate by the law of the country where at the time of its birth its parents were domiciled, the law of England … recognises and acts on the status thus declared by the law of the domicil.”
In the same case Lord Justice James said:-
“This is a question of international comity and law. According to that law and that comity as practised in all other civilised communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the law of the country of his origin, the law under which he was born”,
and further with particular reference to the Statute of Distribution his Lordship added
“… as the law applies universally to persons of all countries, races and religions whatsoever, the proper law to be applied in determining kindred is the universal law, the international law, adopted by the comity of States, The child of a man would be his child so ascertained and so determined,
The principles thus laid down were referred to by Lord Maugham, L.C., n delivering the leading opinion in the Sinha Peerage Case (2). As reported in the note to Baindail v. Baindail (3), the then Lord Chancellor said:-
it cannot, I think, be doubted now … that a Hindu marriage between persons domiciled in India is recognised in our Court, that the issue are regarded as legitimate and that such issue can succeed to property in this country.. . . . “
In regard to this opinion Lord Greene, M.R., in the course of his judgment in Baindail v. Baindail (3), said:-
“I do get assistance from that paragraph … as showing the way in which these problems were striking a great master of the law.”
It is to be observed that in the case of Goodman’s Trusts (1) the child whose legitimacy in Dutch law was recognised and acted upon was the child of a monogamous marriage and also that in the Sinha Peerage Case, Lord Maughan, followed the paragraph quoted by adding:-
“It seems desirable also clearly to state that nothing in our decision of this petition is intended to apply to a case where the petitioner is claiming as a son of a parent who has, in fact, married two wives, e.g. a Hindu or a Mohammedan who has had a plurality of wives. It is apparent that great difficulties may arise dignity where the marriage from which heirship is alleged to result is one of a polygamous character, using the word polygamous as meaning a marriage which did not forbid a plurality of wives and where there has been, in fact, a plurality of wives.”
His Lordship then made it clear that the difficulties to which he referred related to the special nature of the dignity claimed and added that in that case such difficulties did not arise owing to the fact that the late Lord Sinha had not purported to marry more than one wife and that his marriage was throughout, so far as actual fact is concerned, a monogamous marriage.
In the matter of the distribution of the personal estate, in so far as the children of the deceased are concerned, no such difficulties can arise, for it does not involve what Lord Maughan referred to as “English ideas of heirship”, and it remains to be considered whether or not the fact that the children of a marriage in accordance with native law and custom in Nigeria are the issue of a marriage, polygamous both in its permission of a plurality of wives and, in the present case, the alleged fact of such a plurality, affects the legitimacy of the children in Nigeria and the recognition of such legitimacy by the law of England.
At this point it is necessary for me to consider a case decided by this Court in 1941, Estate of F. A. Somefun – in re Williams (4). In that case the deceased was the issue of a marriage contracted in accordance with the Marriage Ordinance who 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 as to whether the estate descended to the other issue of the former marriage or to the widow and issue of the customary marriage of the intestate. The learned Judges of this Court held that the learned 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”.
In the terms in which this conclusion is stated it appears to me to be irrefutable, save perhaps in so far as the word “succession” is employed, but it begs the question now raised by Mr. Williams in the present case which is whether the issue of a customary marriage are by the law of England entitled to share in the distribution of the estate of an intestate who is the issue of a marriage under the Ordinance. I think it is clear from earlier passages in the judgment that their Lordships were of the opinion that such issue are not so entitled. In passages which with great respect, I must confess I find obscure, it is said:-
“The provisions of the earlier Ordinance of 1884 . . . are in the same terms and were enacted at a time when the Court in England did not profess to decide the rights of succession which it might be proper to accord to the issue of polygamous union.”
It is not clear whether their Lordships intended to convey that at some later date the Court of England did so profess, nor does the judgment proceed to consider the effect, if any, of such profession. It goes no further than to add:-
“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 and 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.”
This would appear to indicate the view that by the law of England the children of a polygamous marriage are not entitled to share in the distribution of an intestate estate, even though by the law of the domicil they are legitimate. Bearing in mind the observations of Lord Justice James in Goodman’s Trusts that the law of distribution “applies universally to persons of all countries, races and religions whatsoever”, it appears open to the gravest doubt whether that law can be said to contemplate solely a monogamous marriage, for in many countries, among many races and in accordance with the tenets of more than one religion, polygamy is to be found.
In Baindail v. Baindail, moreover, the question as to whether the law of England would recognise and act upon a polygamous marriage was considered. An English woman who had married the appellant in that case and who had subsequently discovered that he had some years before this marriage married a Hindu woman according to Hindu rites, the Hindu wife being still alive, sought a decree of nullity. The Master of the Rolls, with whose judgment Lords Justices Morton and Bucknill agreed, held that, although “there cannot be any hard and fast rule relating to the application of the law of the domicil as determining status and capacity for the purpose of transactions in this country”, that is to say, in England, yet on principle it seemed to him that the Courts were bound to recognise the Indian marriage, although polygamous, as a valid marriage and are effective bar to any subsequent marriage in England. It is true that his Lordship expressly refrained from suggesting that for every purpose and in every context an Indian marriage such as this would be regarded as a valid marriage in England, but it is of great assistance to observe the reasons for the adoption, in that case of the principle of applying the law of domicil in determining the status of the husband as a married man. His Lordship, after referring to the consequences of adopting any other course, proceeded:-
“Is it right that the Courts of this country should give effect to a ceremony of marriage the result of which would be to put the respondent in such a position?” (His Lordship was then referring to the ceremony of marriage in England.) “It seems to me that effect must be given in, common sense and decency. On a question which is not covered by authority, considerations of that kind must carry very great weight.”
I am emboldened by these words of so great an authority to consider what is the effect of holding that because the children of an intestate are the issue of a polygamous marriage they are to be excluded from succession to their father’s estate. By the decision of this Court in re Williams the widow and children of the deceased, in spite of the validity of the marriage and the legitimacy m the children by the law of their domicil, native customary law, were excluded from all share in the estate in favour of other issue of the parents of the deceased. In other words, if that decision is to be followed, it means that the widow am, intestate and his children though lawful by the law of the domicil were left destitute while the estate of the husband and father went to the next-of-kin by his parents’ marriage, and this because his parents had chosen one lawful form of marriage rather than another.
Surely this would not be giving effect to “common sense and decency”, and in the absence of authority it was the opinion of Lord Greene that “considerations of that kind must carry very great weight”.
I am, nevertheless, gravely concerned by the fact that in this matter there does appear to be an authority in Nigeria contrary to the view put forward on behalf of the appellants in this case: the decision in Re Williams. We have been at pains, therefore, to refer to the record of the hearing of the appeal in that case. The decision of the Court in so far as is disclosed by the judgment, appears to have turned upon the interpretation placed by the Court upon the words of section 36 of the Marriage Ordinance, and it might well be that, as I have indicated earlier, the conclusion arrived at by the learned Judges is, in itself, not to be disputed in so far as it is a statement of the law up to a certain point. I am in complete agreement that it is to the law of England that the local Ordinance directs that reference should be made, though I consider that it is to distribution and not to succession that accuracy demands the application of that law. The ultimate resort must be, therefore, to the law of England, but to the question as to what is that law upon this very difficult matter but little reference is made either in the course of the argument or in the judgment.
Reference was indeed made to the English rule as to distribution in the circumstances of an intestate leaving a widow and children, and the learned Judges referred in their judgment, somewhat obscurely as I have said, to the question of polygamous marriage, but the vital question as to how the law of England would view the position of the widow or children was never fully considered, nor was any such authority as to the judgment of the Court of Appeal in Goodman’s Trusts or the important opinion of Lord Maugham in the Sinha Peerage Case either cited or considered. In thus stopping short at a consideration of the local statute without fully considering what is the law of England to which recourse is to be had thereunder, I am of the opinion that the learned Judges acted per incuriam and that this Court is not now bound to follow that decision if we are of the opinion that it is wrong after due consideration of those aspects of the law to which their Lordships’ attention was never directed.
It is in my opinion, therefore, that this Court is now entitled to examine the question as though there were no local authority binding upon it, and it is my view that, regarding this issue, with a desire to give effect to common sense and decency, we should be prepared to hold that the acknowledged principle as laid down in Goodman’s Trusts, whereby in relation to the Statute of Distribution, the status of persons claiming rights in English law thereunder are determined by the law of the domicil, should be applied in such cases as the present, irrespective of whether the marriage upon which such claims are founded be monogamous or polygamous.
In regard to the appellants, therefore, the question to be determined is whether in accordance with the provisions of the law of England relating to distribution they are the children of the deceased, that is to say his legitimate children, their status as such being determined, according to the law of England, by reference to the law of the domicil of their parents at the time of their birth. If, as it appears to have been assumed throughout the proceedings, the deceased was a person subject to native law and custom (and only in such cases would section 36 of the Marriage Ordinance apply), then the law to be applied in ascertaining the legitimacy of the children is the native law and custom applicable to him, subject, of course, to such modification and qualifications as may be imposed by statute. It will be necessary for the Court below to hear evidence as to what that law and custom is in this regard. In this connection Mr. Williams submitted that it might be possible to establish that by native law and custom, notwithstanding that no marriage has been contracted thereunder, any child, the paternity of which had been acknowledged by the deceased during his life, would be deemed by such law and custom to be legitimate and that in such case any child would be entitled to share in the distribution of the estate as a child of the deceased. No such thing has been claimed or established in the Court below. I would not exclude its possibility but should such a claim be received at a further hearing the Judge would be at pains to satisfy himself first that such a law and custom is established and secondly, that it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by any necessary implication with any law in force in Nigeria, including therein the rules of the common law as to the unenforceability of claims contrary to public policy, bearing in mind that the encouragement of promiscuous intercourse most always be contrary to such policy.
I would further observe that no claim has been put forward by any person as a widow of the deceased. As to the validity of any such claim I would, therefore, express no opinion, save that it would be governed by the same principles as those which affect the claims of the appellants.
Before proceeding to the precise nature of the order I would make in this case I would observe that it may well be asked what is the meaning and effect of the words in section 36 to which much weight was attached in the judgment in re Williams: “any native law or custom to the contrary notwithstanding”. It is, I think, sufficiently clear in two ways: firstly, that the persons entitled to distribution shall be ascertained by reference to the laws of England relating to distribution, which in the present case includes the children of the deceased in the sense to which I have referred; and secondly, that when the persons entitled have been ascertained, distribution shall be made among them in accordance with the law of England. It is to the law of England in each regard that recourse is to be had and not to native law and custom.
If, for instance, it were in any given case the uncles or brothers of the deceased who were entitled to the estate by native customary law they would not be so entitled under section 36, if by virtue of English law the children were entitled. Similarly, if by native law and custom sons were entitled to a double portion, they would not be so entitled under section 36 if by English law children are to take share and share alike irrespective of sex.
I am fully alive to the fact that grave inconvenience may arise from a judgment of this Court in such a matter which reverses a view of the law which has been held for upwards of ten years, but when the Court is faced with the alternative of perpetuating what it is satisfied is an erroneous decision which was reached per incuriam and will, if it be followed, inflict hardship and injustice upon generations in the future or of causing temporary disturbance of rights acquired under such a decision, I do not think we should hesitate to declare the law as we find it.
I would, therefore, allow the appeal in this matter and remit the application to the Court below with the direction that upon a correct interpretation of section 36 of the Marriage Ordinance (Cap. 128) all those children of the deceased who, by the law of England, would be entitled to share in the distribution of the deceased’s estate, that is to say, those children who are legitimate according to the native law and custom to which the deceased was subject as modified or qualified by statute, shall be entitled to participate in the distribution of the estate in the manner and to the extent prescribed by the Statute of Distributions in force in England at the date of the commencement of the Ordinance; and with further directions that the Court below require that the parties to the application shall adduce evidence sufficient to satisfy the Court as to the legitimacy of the appellants in accordance with such native law and custom, including, in so far as may be necessary to determine the legitimacy of such children, proof that any marriage according to native law and custom put forward in support of such legitimacy was in fact contracted in due form, it not being in the opinion of the Court sufficient that the alleged spouse should herself testify to the bare fact that her marriage was so contracted, without such particulars as shall enable the Court below to determine the validity of such marriage in accordance with such law and custom.
I would further direct that, in the event of any such marriage being established to the satisfaction of the Court below, a sum equal to one-third of the value of the estate falling for distribution be reserved, pending any claim by the widow or widows, the relicts of such marriage, to share in the estate, and until such claims shall be heard and determined. Finally, I would direct that if no such marriage shall be established, and if none of the appellants shall be found to be the legitimate child of the deceased, then that enquiry be made as to the next-of-kin, and if no next-of-kin shall be discovered so that any portion of the estate should escheat to the Crown, then that such portion of the estate shall be distributed in such manner as shall be in accordance with native law and custom and such portion shall not become a portion of the casual hereditary revenue of the Crown if there be any person or persons entitled thereto in accordance with such law and custom.
The costs of both parties to this appeal should be paid out of the estate.
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LEWEY, J.A.
I concur with the judgment and the reasons given and with the observations as to the force and effect to be given to the decision in re Williams.
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JIBOWU, J.
I concur and have nothing to add.
Appeal allowed.
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