Matthew Olajide Bamgbose V. John Bankole Daniel & Ors (1954)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Marriage Ordinance of the Colony of Lagos of 1884—Section 41—Distribution of intestate’s estate—Children of customary marriages—Dw/ndu/iow under Statute of Distribution, 1670, and Act of 1685—Legitimacy by law of country of origin—Nigeria.

Facts

On appeal from the judgment of the West African Court of Appeal dated 2nd June, 1952 (in last preceding pages).

One John St. Matthew Daniel died intestate and his estate fell to be distributed in accordance with section 41 of the Marriage Ordinance, 1884 (not the Marriage Ordinance of 1914 as was assumed in the Court of Appeal in Nigeria, but there is no material difference affecting the appeal); he was born to his parents after their marriage under the Ordinance.

Before their marriage the parents had had a son named Pedro, who (it may be assumed for the purposes of this case) became legitimated by the subsequent marriage of his parents by virtue of the Legitimacy Ordinance, 1929; and Pedro married under the Marriage Ordinance, and the
appellant claimed to be his only child. It was said that John married several wives in polygamous form under native law and custom, and that the respondents were children of his from those wives.

The appellant claimed as lawful nephew of the deceased John to succeed to the whole estate; the respondents claimed as children of the deceased to exclude him. The contest turned on the interpretation of the said section 41 (text in judgment infra) which provides that where any person who is issue of a marriage under the Ordinance 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 estates of Intestates, any native law or custom to the contrary notwithstanding.”

In Nigeria a man may marry more wives than one under native law and custom (so long as there is no subsisting marriage between him and a wife married to him under the Marriage Ordinance) and the children are legitimate.

All the parties in the case were natives of Nigeria and domiciled in Nigeria. (It remained to be proved, under the order of the Court of Appeal, whether the
respondents were children of wives married to the deceased John in customary’ form, but for the purposes of the case it may be assumed that they were.)

The argument for the appellant before the Judicial Committee was (1) that children under the Statute of Distribution, 1670, and the Act of 1685 (which is the relevant law of England for the purposes of the Nigeria Marriage Ordinance) meant children who could claim kinship with the deceased through monogamous marriage (viz. marriage under the Marriage Ordinance), and (2) that the Statute of Distribution could not be applied to polygamous unions because of the difficulty of applying its provisions to a plurality of wives. (Note: in this case there was no claim-by any wife to a share in the estate of the deceased.)

For the respondents the argument was that by the law of their domicile of origin they were legitimate children of the deceased and accordingly came within the class of persons entitled to succeed under the English Statute.

Held

(1) Section 41 of the Marriage Ordinance of 1884 applies the Statute of Distribution to a limited class of persons domiciled in Nigeria, and the effect of the application of the statute in the cases to which it applies is to fix the order of succession according to a table different from that prevailing under native law and custom, leaving it to the Courts to determine, in accordance with the settled principle that the legitimacy or illegitimacy of a child is to be determined by the law of that country which is the country of its origin, where at the time of its birth its parents were domiciled, who are the particular individuals who fall within any particular classin the succession table; and the statute cannot be limited in its local application in Nigeria to children who are the issue of monogamous unions;

(2) Whatever difficulties may arise in the case of the mothers of the children in this case (as to which no opinion is expressed) the claims of the children as lawful children of the deceased must be considered independently and are not affected by the question whether the status of their mothers as wives of the
deceased can or cannot be recognised.

Appeal dismissed.