Matthew Olajide Bamgbose V. John Bankole Daniel & Ors (1952)

Marriage Ordinance (Cap. 128), section 36 (1)—Distribution of intestate’s estate—Issue of customary marriage.

Facts

The above named deceased, John St. Matthew Daniel, was bom to his parents after they married in church (viz. under the Marriage Ordinance). Before their marriage, they had another son named Pedro, who later married in church and had a son, Matthew Oladije Bamgbose, the above appellant. John himself did not marry in church. He died intestate.

After his death a number of persons, John Bankole Daniel and eleven others, No. 1 respondents above, claimed his estate as being his children bom of wives married to him under native law and custom; but their claim was opposed by the above appellant relying on the decision in In re Adeline Subulade Williams, 7 W.A.C.A. 156, and seeking meanwhile to establish his relation to the deceased John by proceedings under the Legitimacy Ordinance for a decree that his own father (Pedro, bom before the parents married) became legitimated as a son to the parents of the deceased John by their subsequent marriage.

The above appellant failed in the Supreme Court and lodged an appeal in the proceedings under the Legitimacy Ordinance.

To revert to the proceedings relating to the estate of John, the deceased. The above respondents moved the Court for an order that the real estate be partitioned amongst them and for another order requiring the Administrator-General to distribute amongst them the surplus of the personal estate; and the above appellant moved the Court for an order staying the distribution of the estate until his appeal in the legitimacy proceedings should be determined. The Supreme Court ordered partition and distribution amongst the respondents, and the appellant appealed.

In this appeal both sides relied on section 36 (1) of the Marriage Ordinance,
which provides that:—

” Where any person who is subject to native law or custom contracts a marriage in accordance with the provisions of this Ordinance, and such person dies intestate, subsequently to the commencement of this Ordinance, 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 subsequently to the commencement of this Ordinance—

“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 estates of intestates, any native law or custom to the contrary notwithstanding

“Provided that. . . ” (text in the judgment on appeal infra).
The appellant relied on the interpretation and application thereof in In re Adeline Subulade Williams, 7 W.A.C.A. 156 (which excluded persons whose rights depended on native law and custom, and was favourable to appellant’s claim), the respondents on the later decision (which was favourable to their claim as appears below) in In re Sarah I. Adedovoh and ten others, W.A.C.A. cyclostyled report dated 23rd November, 1951, declining to follow the decision in In re A. S. Williams as one given per incuriam.

The Court of Appeal was now being asked to say which was the right decision on the meaning and effect of the section aforesaid, which was the fundamental point of substance in the dispute.

If the Court of Appeal adopted the later decision there was still the question of whether the respondents were in fact children of customary marriages as they
claimed.

Held

(1) The decision in In re A. S. Williams was given per incuriam; the later decision in In re Sarah I. Adedovoh and ten others was the right decision and the one binding the Court in applying section 36 (1) of the Marriage Ordinance: the status of the respondents—that is to say, whether they are the legitimate children of the intestate—is to be determined, according to the law of England, by reference to the law of the domicile of their parents at the time of their birth, viz. the native law and custom applicable to each of the respondents.

(2) The evidence that the respondents were legitimate children of the intestate
under customary law was inadequate, and the orders for partition and distribution should not have been made.

Appeal allowed: order for hearing de novo.