Mrs. Alero Jadesimi V. Mrs. Victoria Okotie-eboh & Ors (1996)
LAWGLOBAL HUB Lead Judgment Report
UWAIS, C.J.N.
By a writ of summons taken out of the High Court of Lagos State holden at Lagos, the appellant, as plaintiff claimed against the respondents, as defendants, as follows as per her Amended Statement of Claim:-
“(a) That the Court shall pronounce for the force and validity of the last will and testament dated the 21st day of August, 1947 of Chief Festus Samuel Okotie-Eboh, formerly known and called Festus Sam Edah) late of Ogorode, Sapele, Bendel State deceased, who died on the 15th day of January, 1966; and
(b) That the Court shall revoke the grant of the said Letters of Administration of the Estate of the said deceased dated the 24th day of June, 1971.”
The facts of the case, which are not in dispute, are briefly thus. The deceased, Chief Festus Samuel Okotie-Eboh was a son to an Itsekiri father and an Urhobo mother. In 1942 he got married to the 1st respondent according to Itsekiri native law and custom. The appellant as well as the 2nd respondent are the children of the marriage. There are of course other offspring of the deceased, of whom the 3rd respondent is one, who were born by women that were not married to the deceased.
In 1947 the deceased made a will at Sapele (Exhibit P1) which was signed by Chief Egboro (P.W. 2) and Mr. Okitikpi (P.W. 3) as witnesses. The will was dated the 21st day of August, 1947 and was deposited at the Probate Registry of the High Court of Lagos State since, as at that date, that was the only Probate Registry existing in Nigeria.
In March, 1961, whilst the customary marriage was subsisting the deceased and the 1st respondent decided to re-marry or rather re-affirmed their marriage by going to a Marriage Registry in Lagos where they got married under the Marriage Act, Cap. 115 of the Laws of the Federation of Nigeria, 1958.
On 15th January, 1966, the deceased, who had been a minister of the Federal Government of Nigeria, was killed during a military coup d’etat which overthrew the Government. Sometime in 1971 the appellant together with the 1st, 2nd and 3rd respondents applied to the High Court of the then Bendel State for the grant of Letters of Administration to enable them administer the proprieties of the deceased in that State. The Letters of Administration were granted. In order that they might be able to administer the estate of the deceased in Lagos State, they got the Letters of Administration issued by the High Court of Bendel State, resealed sometime in 1972 at the High Court of Lagos State. By agreement between them, the appellant and the 1st respondent were to administer the estate in Lagos State while the 2nd and 3rd respondents were to administer the estate in Bendel State. All the children of the deceased, who were known to the appellant, were maintained by the administratrixes and administrator from funds received from the estate of the deceased.
At the time of applying for Letters of Administration the parties to this case were not aware that the deceased had made a will. According to the evidence adduced by the appellant and 1st respondent, sometime in 1974 it was discovered that the deceased made a will in 1947 and that the will was deposited at the Probate Registry of the High Court of Lagos State. Whilst accepting that a will was made in 1947 by the deceased, 2nd respondent called evidence to show that there was another will made by the deceased in 1964 and that both the 1947 and 1964 Wills were discovered in a safe kept in the room of the deceased at Sapele. Mr. Lawrence Okotie-Eboh (D.W. 4) who was a witness called by the 2nd respondent, testified that both the 1947 and 1964 wills were opened and read in 1970 at a family meeting called for that purpose and that the 1st respondent gave the assurance that she would continue to look after all the children of the deceased. That as a result of the assurance the two wills were destroyed by being torn to pieces and thrown away.
However, the learned trial Judge (Agoro, J., as he then was) found that the issues joined by the parties on the pleadings which were for him to decide were as follows:-
(i) Whether the High Court of Lagos State has jurisdiction to entertain the action in this suit.
(ii) Whether the will, Exhibit P1 dated 21st August, 1947 of Late Chief Festus Samuel Okotie-Eboh formerly known as Chief Festus Sam Edah was duly executed as required by law.
(iii) Whether the will, Exhibit P1 dated 21st August 1947 of Late Chief Festus Okotie-Eboh formerly known as Chief Festus Sam Edah could be regarded as revoked by operation of law by reasons of the fact that the previous marriage in 1942 to the first defendant under Native Law and Custom was later on 3rd March, 1961 re-affirmed by another marriage between the same parties under the Marriage Act, Cap. 115, Law of the Federation of Nigeria and Lagos 1958.
(iv) Whether the Customary Laws of Urhobo and/or Itsekiri in the Bendel State of Nigeria could operate to invalidate and render void the will, Exhibit P1 dated 21st August, 1947 of Late Chief Festus Samuel Okotie-Eboh formerly known as Chief Festus Sam Edah.
(v) Whether the action in this Suit was properly constituted by reason of the fact that the plaintiff herein is also the same person shown as the 4th defendant in the Suit.”
The learned trial Judge held that he had jurisdiction to hear the suit and that the 1947 will (Exhibit P1) was validly made by the deceased. He further held that Exhibit P1 was not revoked by virtue of “the marriage on 3rd March, 1961 between the same parties (Late Chief Okotie-Eboh and the first defendant) under the Marriage Act, Cap. 115, 1958” He answered the fourth issue also in the negative. With regard to the fifth issue he held that the action was properly constituted since the appellant was a devisee under the will and an administratrix of the Letters of Administration granted in Bendel State and resealed in Lagos State respectively.
The learned trial Judge concluded his judgment in favour of the appellant as follows:-
“Finally, in view of the decisions which I have reached on the issues raised on the pleadings filed in this action and for the reasons stated herein, thereby pronounce for the force and validity in solemn form of law that the will marked Exhibit P1 dated 21st August, 1947 was duly executed by late Chief Festus Samuel Okotie-Eboh formerly known as Chief Festus Sam Edah as required by the Wills Act 1837 of England which was the applicable law. There will be consequential order that the re-sealing in the Lagos State of the Letters of Administration (Without Will) dated 24th June, 1971 granted by the Probate Registry of the High Court of the then Mid-Western State now Bendel State, be and is hereby revoked forthwith. In view of the special circumstance of this matter, it is ordered that the parties shall bear their own costs of the present action.”
Dissatisfied with this decision, the 2nd and 3rd respondents appealed to the Court of Appeal. In allowing the appeal, the lower Court (Achike, Kalgo and Tobi, J.J.C.A.) concluded its judgment, per Achike, J.C.A. who delivered the lead judgment, with which the other Justices concurred, as follows:-
“However, in view of the conclusion reached earlier in this appeal that the subsequent marriage in 1961 under the Marriage Ordiance, now Act, between the late Chief Okotie-Eboh and the 2nd respondent (i.e. Mrs. Victoria Okotie-Eboh) revoked the 1947 will of the deceased, Chief Okotie-Eboh, by the operation of section 18 of the Wills Act, 1837, it follows that this appeal succeeds and it is allowed. Accordingly, the judgment of Agoro, J. (as he then was) delivered on 24th May, 1988 is hereby set aside.
I make no order as to costs.”
(First parenthesis mine).
In turn, the appellant herein felt aggrieved and brought the present appeal, formulating only one issue for our determination. The issue reads:
“Whether or not the Will of Chief Festus Samuel Okotie-Eboh duly executed by him on 21st August, 1947 has been revoked by operation of law by his subsequent Marriage under the Marriage Act in 1961 to the same woman to whom he had been lawfully and continuously married under customary law since 1942 up to the date he executed the Will and until his death in 1966.”
The 1st respondent herein Mrs.Victoria Okotie-Eboh is unrepresented and no brief of argument has been filed by her or on her behalf. The 2nd respondent filed her brief of argument adopting the issue for determination formulated by the appellant and complaining that the appellant has shifted ground in this Court from her contention in the Court of Appeal. I will come to this later. The 3rd respondent also formulated a single issue for determination in his brief of argument. The issue is slightly at variance with the one raised by the appellant. It states:-
“Whether or not the Will of Chief Festus Samuel Okotie-Eboh said to be executed by him in Sapele on the 21st of August, 1947 has been revoked by operation of law by his subsequent marriage under the Marriage Act in 1961 to the 1st defendant/respondent to whom the said Chief Festus Samuel Okotie-Eboh has been married under customary law, 1942.”
Mr. Kehinde Sofola, learned Senior Advocate has conceded in the appellants brief of argument as well as in his oral submissions that the Wills Act, 1837, of England, applies to this case as a Statute of general application. However, his contention is whether it is proper, in the circumstances of this case and indeed Nigeria, that the provisions of section 18 of the Wills Act should apply to Exhibit P1 since the peculiar circumstances of the present case could not have been contemplated by the Parliament in England when it enacted the 1837 Act. He argued that the Court of Appeal (Per Achike, J.C.A.) could not be correct when it held that the Will made by the deceased stood revoked by the application of the provisions of section 18 of the Wills Act, 1837. In support of the argument, Learned Senior Advocate submitted that three different statutory provisions need to be considered in determining the issues joined in this case. They are, namely, Section 18 of the Wills Act; section 32 of the Interpretation Act, Cap. 192 of the Laws of the Federation of Nigeria, 1990 and sections 11 and 47 of the Marriage Act, Cap. 115, of the Laws of the Federation of Nigeria, 1958. He canvassed that the British Parliament while passing the Wills Act, 1837 could not have contemplated the situation created by the Marriage Act, Cap. 115, for Nigeria. Consequently, he submitted that, the provisions of the Wills Act, 1837 ought to be applied only if the local circumstances so permit. He argued further that had the deceased been lawfully married under the Marriage Act to the 1st respondent at the time of executing Exhibit P1, then, the provisions of the Wills Act, 1837 would have applied fully and have effect as contemplated by the British Parliament in 1837. Learned Senior Advocate submitted that it was to avoid the type of absurdity created by the provisions of the Wills Act, 1837 that the Nigerian Legislature enacted the provisions of Section 32 of the Interpretation Act, Cap. 192. He argued that the incidents of marriage confer status, so that one cannot be partly married and partly unmarried as the outright application of the provisions of Section 18 of the Wills Act, 1837 would bring about. The status of being married under Islamic Law or Customary Law is well recognised in this country and such marriages should not be accorded any status that is inferior to that of marriages under the Marriage Act, Cap. 115. He submitted that it is a notorious fact in this country that persons who got married under the Marriage Act do choose to go through a customary or Islamic Law Marriage thereafter. He submitted that there is nothing wrong in law with such subsequent marriage. Learned Senior Advocate made reference to the provisions of item 60 of part 1 to the Second Schedule of the Constitution of the Federal Republic of Nigeria, 1979, Cap 62 of the Laws of the Federation of Nigeria, 1990, to buttress his argument. He, therefore, submitted that a marriage according to the Marriage Act, Cap. 115 after going through a customary marriage is simply a surplus age.
Still in further argument, Mr. Sofola, submitted that the interpretation given by the Court of Appeal to the provisions of Section 18 of the Wills Act, 1837 has led to absurdity. By the canon of interpretation of Statutes, such absurdity ought to be avoided because it had the result of holding that the deceased was not lawfully married to the 1st Respondent until 1961 when the marriage under the Marriage Act, Cap. 115 took place. To further emphasize the absurdity alleged, learned Senior Advocate submitted that the decision of the Court below had rendered all the acts performed by the deceased and the 1st respondent together as husband and wife since 1942 up to 1961 ineffective, null and void, so that even the appellant and 2nd respondent, who are the product of the association between the deceased and the 1st respondent, would be considered to be bastards. This, he contended, is contrary to Nigerian laws which provide that the relationship between the two persons was lawful and that the children of the relationship have full legal capacities as such.
To further support his contention, Mr. Sofola stated that the Wills Act, 1837 made the provisions under Section 18 thereof in order to protect a woman who married a man after the latter had made a Will. It is in order to avoid any mischief which section 18 might bring about that section 177 of the Law of Property Act, 1925 of England was enacted. He cited the following cases in support of his submissions. Home Building and Loan Association v. Blaisdell (1934) 290 US 398,78 LED 417; Ifezue v. Mbadugha & Anor (1984) 1 SCNLR 427; (1984) 1 All NLR 256 at Pp. 269 and 279; A-G v. Lockwood (1842) 2 M & W 191 at P. 195; Mobil v. Federal Board of Inland Revenue (1977) 3 SC 53 at P. 74 and Ogbunyiya v. Okudo (1979) 6-9 SC 32 at Pp. 48-49.
In reply, Mrs. Obe learned counsel for the 2nd respondent argued, in the brief of argument which she filed on behalf of her client, by referring to section 15 of the Wills Law Cap. 141 of the Laws of Lagos State, 1973 which provides in part as follows:-
“Every will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with customary law) ….”
and contending that a Marriage contracted under the Marriage Act between two persons who are already lawfully married under customary or religious law, provided that neither of such persons is married to a third party under customary law, is valid. She, therefore, submitted that local circumstances permit the application of section 18 of the Wills Act, 1837, and that section 32(b)(ii) of the Interpretation Act, does not exclude the application of the Wills Act, 1837.
Learned counsel further referred to sections 11, 33, 35 and 47 of the Marriage Act Cap. 115 of the Laws of the Federation of Nigeria 1990 to submit that it is the Marriage Act that recognises the validity of Islamic and Customary Marriages and not Item 60 of Part 1 of the Second Schedule to the 1979 Constitution, Cap. 62. She stated that although neither customary nor Islamic nor Act Marriage is superior or inferior to the other different types of Marriage carry different rights and obligations and confer different benefits and have different effects. She disagreed with the argument that going through different marriages is mere surplusage, as contended by the appellant, but that it is an indication that the parties concerned choose to have all the different benefits and obligations attached to such marriages. She argued that no injustice or absurdity or unwholesomeness will or did result from interpreting and applying the provisions of section 18 of the Wills Act, 1837 as was done by the Court of Appeal. Learned counsel submitted that the provisions of section 18 are clear and unambiguous and. therefore, should be taken to have perfectly expressed the intention of the legislature. She finally canvassed that the provisions of section 18 of the Wills Act, 1837 apply in Nigeria notwithstanding that Islamic and Customary Law Marriages and subsequent marriages under Marriage Act might be valid.
Mr. Odebala learned counsel for the 3rd respondent has argued in the brief of argument, which he filed on behalf of his client, that the Wills Act, 1837 is a statute of general application as decided by this Court in Idehen v. Idehen (1991) 6 NWLR (Pt.198) 382 at p. 416. He submitted that section 18 of the Wills Act 1837 is very clear and unambiguous. Similarly the provision of section 32 of the Interpretation Act, Cap. 192 and those of sections 11 and 47 of the Marriage Act are unambiguous. He contended that when all these sections of the Acts are read together they do not create any ambiguity. Learned counsel argued further that a marriage contracted under the Marriage Act is a monogamous marriage. Therefore, the provisions of section 18 of the Wills Act will apply. By virtue of sections 11 and 47 of the Marriage Act, the customary marriage, which by nature is polygamous, becomes monogamous and therefore makes the provisions of section 18 of the Wills Act, 1837 applicable. It follows, therefore, he canvassed, that the subsequent marriage entered in 1961 between the deceased and 1st respondent had the effect of revoking the Will made by the former in 1947.
Although the 3rd respondent did not raise any preliminary objection on whether the appellant can present a case in this Court which is different from the case he presented in the Court below, he argued on the authority of Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 at p. 251 that the appellant should not be allowed to present a new case before us.
I now turn to the objection raised by the 2nd respondent to which I have earlier referred. As a general rule an appellant will not be allowed to raise a question which was not raised or tried or considered by the trial court or the Court below; but where the question involves substantial points of law, whether substantive or procedural, and it is plain that no further evidence could have been adduced which would affect the decision of the points, then, the Court will allow the question to be raised and the point taken in order to prevent an obvious miscarriage of justice – See: Abinabina v. Kojo Enyimadu (1953) A.C. 207 at p. 215; Shonekan v. Smith (1964) All NLR 168 atp. 173;Akpene v. Barclays Bank of Nigeria & Anor (1977) 1 SC 47 and A-G of Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1 at p. 14.
Furthermore, Order 6 rule 5(1) of the Supreme Court Rules, 1985, as amended provides as relevant thus:-
“…………… if the appellant intends to apply in the course of the hearing for leave to introduce a new point not taken in the court below, this shall be indicated in the brief.”
The first point to be considered is whether the appellant in this case has introduced a new point which was not taken in the Court below. This is not the point raised by Mrs. Obe. Rather her contention is that the appellant has shifted ground in this Court from his argument in the Court of Appeal where he argued that the provisions of Section 18 of the Wills Act, 1837 were applicable by virtue of Section 177 of the Law of Property Act, 1925. Learned counsel for the 2nd respondent has not cited any authority or rule of court which supports her contention. However, learned counsel for 3rd respondent also identified himself with her submission. I am not myself aware either of such authority or rule. It is to be noted that the argument of a party in the Court below need not necessarily be the same with his argument in this Court because the appeal in the Court below is invariably an appeal against the decision of a trial court, while the appeal in this Court is a complaint against the decision of the Court of Appeal. It is not always that the decisions of the trial court and the Court below become the same. They may be diametrically opposed as, indeed, is that case with the present appeal. In such a situation the argument to be presented by a party in this Court may differ from the argument canvassed in the Court of Appeal. This is made clearer by the fact that the premises on which the two decisions below were arrived at may be at variance.
Again the appellant here, under that situation, may not be the appellant in the Court of Appeal but respondent and so his argument in the Court below as a reply should not be expected to be presented in this Court. I, therefore, see nothing wrong with the presentation of the appellant’s appeal before us. See: Ogunsola v. NICON (1996) 1 NWLR (Pt.423) 126 at p. 136.
Suppose the view which I have taken on this matter is wrong; this court has the inherent and statutory power under Section 22 of the Supreme Court Act, Cap. 424 of the Laws of the Federation of Nigeria, 1990 and Order 8 rule 12 of the Supreme Court Rules, 1985, to allow the appellant to raise the point complained against even if he had not applied for leave to do so under Order 6 rule 5(1)(b) of the Supreme Court Rules, 1985, as amended.
This is because the point the appellant has raised in the issue formulated in his brief of argument raises substantial question of law and our failure to consider it is likely to occasion miscarriage of justice:- See: Akpene v. Barclays Bank of Nigeria & Anor (supra) and A-G of Oyo State v. Fairlakes Hotel Ltd. (supra) at Pp. 32, 49H and 57A.
I think it is necessary and indeed important at this stage to determine the statutory provisions applicable to this case. Counsel for all the parties have jointly and severally referred to and rely on the provisions of the following enactments in both their oral arguments and their briefs of argument – (1) Wills Act, 1837 of England (2) Wills Law, Cap. 133 of the Laws of Western Nigeria, 1959 (3) Wills Law Cap 141 of the Laws of Lagos State, 1972 (4) Law of Property Act, 1925 of England (5) Interpretation Act, 1964 (6) Interpretation Act, Cap. 89 of the Laws of the Federation of Nigeria, 1958 (7) Interpretation Act, Cap. 192 of the Laws of the Federation of Nigeria, 1990 and (8) Marriage Act Cap. 115 of the laws of the Federation of Nigeria, 1958.
It is not in dispute that the deceased made his will (Exhibit P1) on the 21st day of August, 1947. That the law applicable to the will is, as at the date of its execution, the Wills Act, 1837 of England, being a statute of general application. It is also not in dispute that the deceased and the 1st respondent who were earlier married under Itsekiri customary law went into another Marriage in Lagos under the provision of the Marriage Act, Cap. 115 in 1961.
Therefore, at the time of the death of the deceased in 1966 the Act, and not the customary law, was the law applicable to his marriage with the 1st respondent. The appellant filed her suit in the High Court of Lagos State on the 3rd day of August, 1984 (as per her Writ of Summons). As at that date the law applicable in Lagos State with regard to the application of statutes of general application was the law (Miscellaneous Provisions) Law, Cap. 65 of the Laws of Lagos State, 1973.
However, Lagos State being part of the erstwhile Western Region of Nigeria, when the Wills Law No. 28 of 1958 was enacted for the Western Region of Nigeria, the Wills Act 1837 ceased to apply to that Region with effect from 24th July, 1958. Therefore, the provisions of the Law (Miscellaneous Provisions) Law, Cap. 65, which came into force on 20th January, 1964 do not apply to the Wills Act 1837 as a statute of general application in view of the provisions of section 2 subsection (1) of the Law (Miscellaneous Provisions) Law, Cap. 65 which states:
(1) Subject to the provisions of this section and except in so far as other provision is made by any Federal or State enactment, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the first day of January, 1900 shall be in force in the Lagos State.
It follows that in interpreting the Wills Act, 1837 recourse has to be made to the law in pari materia which preceded the law (Miscellaneous Provisions) Law, Cap. 65, and that is the repealed Interpretation Act, Cap. 89 of the Laws of the Federation of Nigeria and Lagos, 1958, (which came into force on the 9th day of November, 1939).
However, this is a distinction without a difference since the Law (Miscellaneous Provisions )Law, Cap. 65, is mutatis, mutandis the same as the Interpretation Act, Cap. 89.
Now section II subsection (I) (d) and section 47 of the Marriage Act, Cap. is provide:-
“11 (1) The registrar, at any time after the expiration of twenty-one days and before the expiration of three months from the date of the notice, upon payment of the prescribed fee, shall thereupon issue his certificate as in Form C in the First Schedule: Provided always that he shall not issue such certificate until he has been satisfied by affidavit:-
……..
(d) that neither of the parties to the intended marriage is married by native law and custom to any person other than the person with whom such marriage is proposed to be contracted.”
“47. Whoever contracts a marriage under the provisions of this Act, or any modification or re-enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years.”
The foregoing provisions establish that it is lawful for parties married under customary law to contract a marriage under the Marriage Act and that it is an offence punishable with imprisonment for a person married under customary law to get married under the Act to a third party. But section 18 of the Wills Act, 1837 provides:-
“18. Every will made by a man or woman shall be revoked by his or her marriage except a will made in exercise of a power of appointment when the real or personal estate thereby appointment would not in default of such appointed pass to his or her heir, executor or administrator or the person entitled as his or her next of kin under any written law relating to the distribution of the estate of persons dying intestate ..”
The question is whether the will of the deceased made in 1947 revoked following his contracting a valid marriage with the 1st Respondent in 1961 in accordance with the provisions of the Marriage Act, Cap. 115.It is the contention of the Appellant that the will has not been affected by the provisions of section 18 of the Wills Act, 1837. However, the 2nd and 3rd Respondents contend otherwise. The trial court found that the will was valid, but the Court of Appeal found that the will had become revoked as a result of the 1961 marriage. It held as follows, as per Achike, J.C.A:-
“It seems to me, therefore, that the combined effect of sections 11(i) (d) (sic) and 47 of the Marriage Act is that there is no prohibition of marriage under the said Act between two persons who are already married to each other under customary law .
…………
It seems to me therefore that where the same parties have already gone through a form of marriage under customary law and subsequently went through a marriage under the Marriage Act the second marriage is valid as a monogamous marriage and would be so recognised in countries where monogamous marriages predominate. The marriage under the Marriage Act, as it were, converts the customary marriage that was potentially polygamous to a monogamous marriage which, no doubt, is the form of marriage contemplated under section 18 of the Wills Act, 1837.”
So far so good, but the learned Justice of the Court of Appeal concluded thus:
“Applying the unambiguous provisions of section 18 of the Wills Act, 1837, to the circumstance of this case I am satisfied that the will made in August, 1947, Exhibit P1, was revoked by the 1961 Marriage between the late Chief Festus Okotie-Eboh and the 2nd Respondent (now 1st Respondent).”
(Parenthesis mine).
Although the learned justice adverted to the provisions of section 45 of the Interpretation Act, Cap. 89 of the Laws of the Federation of Nigeria, 1958, he nevertheless arrived at the aforementioned conclusion.
Now section 45, subsections (1), (2) and (3) of the Act in question, which are the subsections pertinent to this case, state as follows:
“45(1) Subject to the provisions of this section and except in so far as other provision is made by any Federal law; the common law of England and the doctrines of equity together with the statutes of general application that were in force in England on the 1st day of January, 1990, shall be in force in Lagos and, in so far as they relate to any matter within the exclusive legislative competence of the Federal legislature, shall be in force elsewhere in the Federation.
(2) Such Imperial laws shall be in force so far only as the limits of the local jurisdiction and local circumstances shall permit and subject to any Federal law.
(3) For the purpose of facilitating the application of the said Imperial laws they shall be read with such formal verbal alterations not affecting the substance as to names, localities, courts, officers, persons, moneys, penalties and otherwise as may be necessary to render the same applicable to the circumstances.”
It appears to me from the provisions of section 45 of the Interpretation Act, Cap. 89 that although statutes of general application are applicable, nevertheless their applicability is not without limitations. It is clear from the provisions of subsection (2) (supra) that the application of the statutes could be curtailed by local circumstances as well as local jurisdictions. In the present case the deceased is to be taken to have known all the laws in question referred to above. That is the fallacy of law. If it was his intentions, after contracting the 1961 marriage under the Marriage Act, Cap. 115, that he would vary or change or even revoke Exhibit P1, he would have taken such a step long before he was killed in 1966. However, he did nothing of the sort. It must, therefore, be taken that he had intended that the will should remain in force irrespective of the 1961 marriage.
It is a matter of common knowledge that most people in Nigeria who contract marriages under the Marriage Act, undergo a form of customary marriage earlier as a matter of practice and adherence to the custom of their forefathers. Some refer to such practice as “traditional engagement” while others simply refer to it as solemnization of customary marriage. It is never intended by the practice that the marriage under the Marriage Act should nullify the customary marriage or engagement but rather that it would supplement the practice or custom. The parties are of course aware that by applying the Marriage Act to their relationship, their marriage would become monogamous.
However, it is matter of common knowledge that inspite of the punishment provided under section 47 of the Marriage Act against any of the parties entering another customary marriage, the malefolk in particular observe the restriction more in breach than obedience with impunity. In my opinion, therefore, the circumstances of Nigeria militate against the application of section 18 of the Wills Act, 1837 to nullify a will made prior to contracting a marriage under the Marriage Act.
In holding this view I am further strengthened by the fact that section 15 of the Wills Law of Western Nigeria, Cap. 133 of the Laws of Western Nigeria, 1959, which contains the same provisions as those of section 15 of the Wills Law of Delta, Edo, Lagos, Ogun, Ondo, Osun and Oyo State respectively, exempts the revocation provided for by the Wills Act, 1837 from applying to customary law marriages. The section reads:-
“15. Every will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with customary law) except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not in default of such appointments pass to his or her heir, executor or administrator or the person entitled as his or her next of kin under any written law relating to the distribution of the estate of persons dying intestate.”
It is to be observed that but for the exemption of marriages under customary law, section 15 is word for word the same as Section 18 of the Wills Act, 1837.
I, therefore, come to the conclusion that the Court of Appeal erred in its decision that Exhibit P1 was revoked by reason of the 1961 marriage between the deceased and the 1st respondent. Consequently, the appeal succeeds and I allow it. The decision of the Court of Appeal is set aside and I restore the judgment of the trial court, which arrived at the right decision by wrong reasoning.
Accordingly, I hereby pronounce for the force and validity of the last Will and Testament dated the 21st day of August, 1947 (Exhibit P1) of Chief Festus Samuel Okotie-Eboh (formerly known and called Festus Sam Edah) Late of Ogorode, Sapele, Delta State, who died on 15th day of January, 1966. Secondly, I hereby revoke the grant of Letters of Administration (Without Will) dated the 24th day of June, 1971 made by the Probate Registry of the High Court of Mid-Western State (which later became the High Court of Bendel State (and re-sealed in the Probate Registry of the High Court of Lagos State).
There will be no order as to costs.
SC.188/1992
