Martin V. Johnson & Anor (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Letters of Administration granted to next of kin—Caveat—Allegations of adoption and of appointment to bury and to succeed in accordance with native law and custom.

Held : Findings of trial Judge that, where a claim such as this is based on native law and custom, that particular native law and custom must be established by positive evidence and that the alleged adoption and appointment were not supported by the requirements of native law and custom upheld and appeal dismissed.

The facts are sufficiently set out in the judgment. Wells Palmer for Appellant.

C. W. Clinton for Respondent.

The following judgment was delivered :-

WEBBER, C. J., SIERRA LEONE.

The plaintiff as sister and next of kin of Agnes Florence Martin, who died at Buea, Cameroons under British Mandate, on 23rd October, 1934, intestate, claimed to have, as such, a grant of Letters of Administration of the personal estate of the said intestate.

The two defendants entered a caveat, each claiming to be the person entitled to administer the estate.

The Court below ordered a grant of Letters of Administration to the plaintiff as next of kin and against this order the second defendant has appealed on two grounds namely :-

1. That the judgment is against the weight of evidence.
2. That it is contrary to native law and custom.

The appellant based his claim to administer the estate on three grounds, namely :-

1. That he is the head of the house to which the father of the deceased became attached.
2. That he is the adopted son.

Tb_sat he was appointed by the deceased to bury her and succeed to her property.

The learned Judge very rightly rejected the first ground as he did the same ground upon which the first defendant relied, and as to the other two grounds he was of opinion that the adoption and appointment to bury were not supported by the requirements of native law and custom. The adoption of a son under native law and custom is a ceremony to be performed to which the family are bidden. The adoptor nominates his or her adoptee to the family and the ceremony is over ; and as to the appointment of a person to perform the burial ceremony, not only did the plaintiff profess ignorance of these, but the first defendant also never heard of this alleged adoption and this appointment to bury.

The learned Judge was correct in stating that where a claim such as this is based on native law and custom, that particular native law and custom must be established by positive evidence

I think on the evidence the Judge in the Court below was right in granting letters to the plaintiff as next of kin and that the appeal should be dismissed.

KINGDON, C.J., NIGERIA.

I concur.

PETRIDES, C.J., GOLD COAST.

I concur.