Mrs. Esther A. Osho & Ors. V. Gabriel A. Phillips & Ors. (1972)

LawGlobal-Hub Lead Judgment Report

C. O. MADARIKAN, J.S.C. 

In suit No. LD/451/67 in the Lagos High Court, the present respondents as plaintiffs took out a writ of summons against the appellants claiming:

“(i) a declaration that they as children of Solomon Ajibola Phillips deceased are beneficially jointly entitled to share with the other children of the said deceased from the estate of the said Solomon Ajibola Phillips – deceased.

(ii) An account of all proceeds received as rents from the landed properties of the said deceased.”

Pleadings were ordered and duly delivered. As the issues clearly emerged from the pleadings, we propose to reproduce them. The plaintiffs’ statement of claim read:

“1. The plaintiffs and the defendants are some of the surviving children of the late Solomon Ajibola Phillips who died intestate in February, 1939.

2. That there are other children of the said Solomon Ajibola deceased – namely Olanrewaju Phillips, Akintunde Phillips, Ajoke Phillips, Ibiyemi Phillips, Olatunde Phillips, Oyinkan Phillips, Agboola Phillips, Aina Phillips and Oyebola Phillips who together with the plaintiffs and defendants survived the said deceased.
3. That letters of Administration was granted to the two defendants in consequence of which the personal effect: i.e. moneys and wearing apparels of the said deceased were shared equally amongst all the aforementioned children by the said administrators.
4. The plaintiffs aver that they and their brothers and sisters as per paragraph 2 above were born in their late father’s house, were christened by their late father in the presence of the mother of the said defendants, were brought up and educated by their late father in his house where the defendant’s mother also lived along with the defendants.
5. The plaintiffs aver that the defendants’ mother was never married to their late father under the Marriage Act and or in the alternative the defendants by their conduct and their mother’s are estopped from denying that the said plaintiffs are beneficially entitled to share equally with the other children including the defendants from the profits accruing from the landed properties of their late father.
6. That the said Solomon Ajibola Phillips – deceased on his death left several properties amongst which are the following:-

(1) 38, Ojuelegba Street, Surulere, Lagos.

(2) 16, Makinde Street, Surulere, Lagos.

(3) 2 landed properties measuring 100 by 120 and 50 by 100 at Idi-Araba, Surulere, Lagos.

(4) Landed property at Ibidun Street, Yaba measuring 100 by 100.

(5) Landed property at the junction of Macarthy Street, Lagos and now tenanted by the Ghana Embassy.

(6) 186, Cemetry Street, Ebute-Metta, Lagos.

7. That the defendants have collected substantial proceeds from the lease and sale of some of the aforementioned landed properties without accounting and sharing the said proceeds or any part thereof with the plaintiffs and others listed in paragraph 2 above.
8. That the defendants are now resisting the plaintiff’s claim to share from the profits accruing from their father’s properties.”

The defendants in their statement of defence pleaded as follows:-

“1. Save and except as hereinafter expressly admitted the defendants deny each and every allegation of fact contained in the plaintiffs’ statement of claim as if they are set out seriatim and specifically traversed.

2. The defendants deny paragraphs 1, 2, 3, 4, 5, 6 and 7 of the statement of claim and put the plaintiffs to strict proof thereof.
3. The defendants admit that part only of paragraph 3, alleging the grant of letters of Administration to defendants.
4. The defendants aver that Solomon A. Phillips and Christiana Vaughan were married under the Marriage Act on the 25th April, 1897, according to the rites and ceremonies of the Church of England at the Anglican Church of St. David at Ogbomosho, Nigeria.

“5. That the issues of the said marriage are:

(1) Esther Osho

(2) George Akinyemi Phillips

(3) Joseph Akintunde Phillips and

(4) Stanhope Olanrewaju Phillips and all of whom survived Solomon A. Phillips who died on 27th February, 1939.

6. That Mrs. Christiana Phillips died on the 14th August, 1924 possessed of many houses and landed properties situated within Nigeria.
7. That Solomon A. Phillips survived Mrs. Christiana Phillips under the Marriage Act.
8. That between 14th August, 1924 and 27th February, 1939, Solomon A. Phillips operated and managed the properties of late Mrs. Christiana Phillips and collected rents, compensations in respect of acquisitions by the Government in respect of house and landed properties No. 5 Ojobaro Street, Lagos and landed properties at Yaba. And re-invested the monies by acquiring properties No. 16, Makinde Road, Surulere, 38, Ojuelegba Road, Surulere, land at Ibidun Street, Surulere; lands at Idi-Araba, Surulere, etc.
9. That the issues of the said marriage survived the parties of the said marriage.
10. That Stanhope Olarenwaju Phillips, the last born of the marriage survived Solomon A. Phillips and died later on the 8th November, 1943.
11. That from 1907 to 1919 late Solomon A. Phillips and Mrs. Christiana Phillips together with the issues of the said Marriage lived in the Government Quarters at the Yaba Asylum, now known as Mental Hospital).
12. That the mother and the issues of the said marriage had never at anytime lived under one roof with the plaintiffs and or plaintiff’s mothers.
13. That the issues of the said marriage were not born in the same house with the plaintiffs.
14. That whatever was given to the plaintiffs and category alleging paternity of Solomon A. Phillips was as friends in token of alleged paternity of Solomon A. Phillips.
15. That the defendants and other issues of the marriage had never reckoned with nor deal on any landed property conjointly with plaintiffs and categories alleging paternity of Solomon A. Phillips.
16. Wherefore the defendants aver that the plaintiffs’ action is speculative, mischievous and should be dismissed with substantial costs to the defendants.”

At the trial, the plaintiffs adduced evidence to prove that they and the defendants were the children of one Solomon Ajibola Phillips who died intestate in February, 1939; that during the lifetime of the deceased, all the parties to the action lived with the deceased at Yaba road and subsequently at 38, Oju Elegba Village Road, Surulere, and that the deceased paid their school fees; that after the death of the deceased, the 1st & 2nd defendants were granted Letters of Administration to administer the estate of the deceased, and, as administrators, they gave the plaintiffs their respective shares of the personal property of the deceased. Regarding the most vital issue in the case, the plaintiffs admitted that one Christiana Phillips (now deceased) was the mother of the three defendants, but they denied that she was married to the deceased under the Marriage Act as alleged by the defendants.

For their part, the defendants sought to prove the marriage by producing a copy of the Certificate of Marriage (Exhibit 6). Their defence to the action was two pronged; firstly, that the plaintiffs were not the children of the deceased, and secondly, assuming that they were the natural children of the deceased, that they were not entitled to share in the estate of the deceased inasmuch as they were born during the lifetime of Mrs. Christiana Phillips and the currency of the marriage between her and the deceased.

In a reserved judgment, the learned trial Judge accepted the evidence of the plaintiffs that all the parties to the action were the children of the deceased; that they and their mothers lived with the deceased under the same roof as members of one family; and that after the death of the deceased, all his children shared his personal effects equally amongst themselves. The learned trial Judge also considered the validity of the marriage between the deceased and Mrs. Christiana Phillips, that is, the mother of the defendants; and, for the reasons set out in the judgment, he came to the conclusion that the copy of the Certificate of Marriage (Exhibit 6) did not amount to sufficient proof of the marriage. That notwithstanding, the learned Judge proceeded to consider the plaintiffs’ claim on the basis that a valid marriage under the Marriage Act has been proved; and relying on the case of Alake & Ors. v. Pratt & Ors. (1955) 15 WACA 20, he entered judgment for the plaintiffs in terms of the writ after holding that:

“the defendants’ mother and the defendants themselves as well as their father had shown natural love and affection between them and the plaintiffs as members of one and same family to the extent that the plaintiffs are conclusively established as brothers and sisters of one and same family with the defendants.”

This appeal is from that judgment. Though the arguments before us ranged over an extensive field, yet they may be conveniently considered under two broad heads.

Firstly, it was contended by Chief Williams on behalf of the appellants that the learned trial Judge erred in law in holding that the copy of the Certificate of Marriage (Exhibit 6) did not afford sufficient proof of a valid marriage under the Marriage Act.

In considering the evidential value of Exhibit 6, the learned trial Judge said:

“That Exhibit “6” put in as the Marriage Certificate between late Solomon A. Phillips and Christiana Vaughan was endorsed on the face of it as follows:-

“Extract from the Church Register this 26th of February, 1930 – G. Burton, Archdeacon.”

On the face of it, it is clear it was not the original Certificate of Marriage. Some columns were endorsed as follows

“No entries in Register.”

This shows also that the original Register itself was not fully entered up and also there was no oral evidence from any person who witnessed the Marriage Ceremony. The standard of proof required in Cross on Evidence 2nd Edition pages 538-540 has not been furnished by the defence in support of the legal marriage pleaded by them in paragraph 4 of the Statement of Defence.’

Under Section 32 of the Marriage Act, a marriage could be proved by the production of a copy of the certificate of marriage filed in the office of the registrar. Rightly in our view, Chief Williams conceded that Exhibit 6 does not fall within the section as it is not a copy of the certificate of marriage filed in the office of the registrar.

Chief Williams however argued that in the United Kingdom, certified copies of public documents similar to Exhibit 6 are admissible in evidence as proof of the matters to which they relate, under Section 14 of the Evidence Act, 1851, (herein-after referred to as the U.K. Evidence Act) which provides as follows:

“Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no Statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible in evidence in any court of justice, or before any person now or hereafter having by law or by consent of parties authority to hear, receive, and examine evidence, provided it be proved to be an examined copy or extract, or provided it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted, and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding fourpence for every folio of ninety words.”

Counsel also referred us to Section 116 of the Evidence Act, Chapter 62 of the Laws of the Federation of Nigeria and Lagos, 1958, (hereinafter referred to as the Nigerian Evidence Act) and submitted that by virtue of that section, Exhibit 6 is admissible in Nigeria for the same purpose for which it would be admissible in the United Kingdom.

In reply, Chief Fani-Kayode submitted that the mere production of Exhibit 6 was not sufficient to prove the marriage. He contended that apart from establishing the factum of the marriage, it must also be proved that it was celebrated in a place of worship licensed for the celebration of marriages under Ordinance No. 14 of 1884 which was in force in 1897 when the alleged marriage was celebrated.

We do not consider that it is necessary for us for the purpose of deciding this appeal to make any pronouncement on the provisions of Ordinance No. 14 of 1884 and subsequent Ordinances passed between 1884 and 1900 to which our attention was invited as we are of the view that the case of Wallace v. Wallace (1896) 74 LTR 253 provides a complete answer to the points raised by counsel. In that case, the wife had petitioned for dissolution of marriage on the grounds of desertion and adultery, and as proof of the marriage, the court accepted in evidence under Section 14 of the UK Evidence Act, a copy of an entry in the register of marriages purporting to be signed and certified as a correct copy of the entry by the clergyman of the parish in Dublin where the marriage had been celebrated according to the rites of the Established Church of England and Ireland. It seems to us that in the instant case similar consideration ought to apply, and that Exhibit 6 is admissible under Section 14 of the U.K. Evidence Act. We wish to observe that Exhibit 6 was duly endorsed by Archdeacon G. Burton on the 26th of February, 1930, and that it purports on the face of it to be a copy of the certificate of marriage in respect of the marriage celebrated between Solomon A. Phillips and Christiana Vaughan on the 25th of April, 1897, according to the rites and ceremonies of the Church of England, at the Anglican Church, Ogbomosho.

It now remains for us to consider the effect of the provisions of Section 116 of the Nigerian Evidence Act on the admissibility of Exhibit 6.

Originally, the provisions of Section 116 were limited to documents admissible in the United Kingdom as it then provided as follows:

“When any document is produced before any court, purporting to be a document which, by the law in force for the time being in the United Kingdom would be admissible in proof of any particular in any court of justice in the United Kingdom, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the court shall presume –

(a) that such seal, stamp or signature is genuine, and

(b) that the person signing it held, at the time when he signed it, the judicial or official character which he claims,

and the document shall be admissible for the same purpose for which it would be admissible in the United Kingdom.”

But by the Adaptation of Law (Miscellaneous Provisions) Order, 1964 (L.N. 112 of 1964), an attempt was made to extend its scope to cover documents admissible in any part of the Commonwealth and it was amended to read as follows:

“When any document is produced before any court, purporting to be a document which, by the law in force for the time being in any part of the Commonwealth would be admissible in proof of any particular in any court of justice in any part of the Commonwealth, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the court shall presume –

“(a) that such seal, stamp or signature, is genuine, and

(b) that the person signing it held, at the time when he signed it, the judicial or official character which he claims,

and the document shall be admissible for the same purpose for which it would be admissible in the part of the Commonwealth where the document is produced.”

On a careful reading of the section, it is manifest that the expression

“where the document is produced.”

forming the last five words of the section is otiose. Chief Williams has asked us to ignore the expression and to give effect to the other provisions of the section; whereas, Chief Fani Kayode contended that as it is possible to give effect to the section without ignoring the expression, the whole section should stand.

We are fully aware of the pitfalls besetting a judicial interpreter of statutes as, on the one hand, he must avoid judicial legislation and, on the other hand, he must avoid making nonsense of the statute if the language will permit doing so. The golden rule is to construe the statute UT RES MAGIS VALEAT QUAM PEREAT. In our view, there is no doubt that the main object and intention of Section 116 as amended is to extend its scope to cover all parts of the Commonwealth. We are not prepared to allow the manifest intention of the legislature to be defeated. We therefore propose to construe Section 116 by giving a sensible meaning to it and the only way to do this is to read it as if the expression “where the document is produced” were not there.

The combined effect of Section 116 of the Nigerian Evidence Act and Section 14 of the U.K. Evidence Act will then be that Exhibit 6 is admissible as proof of the marriage between the deceased and Mrs. Christiana Phillips.

The only point which remains to be considered is whether the plaintiffs who were born out of wedlock and during the subsistence of the marriage between the parties under the Marriage Act, are entitled to share in the estate of the deceased and, if so, whether they are also entitled to an account as claimed.

Chief Williams has submitted that children born out of wedlock are illegitimate and not entitled under the Marriage Act to inherit the estate of their father on intestacy. This disability, counsel however conceded, does not extend to the children born before the marriage or after the death of either spouse as they are legitimate. Counsel finally argued that if the proof of a valid marriage is accepted in the instant case, then the plaintiffs being born out of wedlock were illegitimate and must be disinherited.

In reply, Chief Fani-Kayode contended that in as much as the 1st and 2nd defendants, as administrators of the estate of the deceased, had by their conduct manifested that the plaintiffs were the children of the deceased, they were estopped from putting up a line of defence running counter to that by now suggesting or maintaining that the plaintiffs were not the legitimate children of the deceased. The conduct relied upon by counsel included the distribution of a portion of the personal effects of the deceased amongst the plaintiffs as beneficiaries; and extending invitations to them to attend the family meeting of the deceased’s children.

We think that, on the accepted facts of this case, what we need to consider first is the status of the plaintiffs who were born as a result of the association of the deceased with another woman during the subsistence of a valid legal marriage under the Marriage Act. On the authority of the case of O. Cole & Another v. P. A. Akinyele & Ors. (1960) 5 FSC 84, we are in no doubt that the plaintiffs were illegitimate. Cole’s case related to the status of the children of one Albert Abimbola Cole deceased who was married under the Marriage Ordinance (now Marriage Act) and had two children by another woman – one born during the wife’s lifetime and the other shortly after her death. He acknowledged both of them as his children. It was held:

(1) as regards the child born during the continuance of the marriage of the deceased to a wife under the Marriage Ordinance, that it would be contrary to public policy to enable him to legitimate that child by any other method than that prescribed in the Legitimacy Ordinance; and

(2) as regards the other child, that is, the one conceived during the currency of the marriage but born after the death of the wife, that there was no principle of public policy to exclude the rule under which he, as the acknowledged son of his father, born at a time when his father was free to marry, could be regarded as legitimate.

Chief Fani-Kayode however relied on the case of I. O. Ogunmodede & Ors. v. J. A. Thomas & Anor. (FSC.337/1962) decided by this court on the 10th of March, 1966 and argued that assuming that the plaintiffs were illegitimate, yet they could not now be disinherited because the 1st and 2nd defendants who are the administrators of the estate of the deceased had already recognised them as beneficiaries by giving them their shares of the personal property of the deceased.

We need to point out that Ogunmodede’s case did not lay down such principle. The controversy in that case related to the ownership of land claimed by the parties as the beneficiaries of the estate of their deceased ancestor. The question of the legitimacy of some of the parties was also raised but the case was decided on the basis that as one Patience Ajibabi, the predecessor in title of one of the parties to the action, did not deal with the property in dispute all on her own but she regarded it as belonging to herself and the illegitimate children; her husband (that is, the 1st defendant) could not contend after her death that the property was her individual property. After quoting the following recitals appearing in the Deed of Conveyance (Exhibit ‘G’) executed by Patience Ajibabi:

“THIS INDENTURE made the 25th day of October 1946 BETWEEN AJIBABI THOMAS petty trader of Richards Lane, Lagos, Nigeria, FUNLAYO OGUNMODEDE Contractor and AKINOLA OGUNMODEDE Carpenter all of No. 80, Broad Street, Lagos, Nigeria (hereinafter called “the Grantors”) of the one part and ADAMS IDIRIS ANIMASHAWUN Arabic Teacher of No. 4 Atan Road, Yaba District, Colony of Nigeria (hereinafter called ‘the Grantee”) of the other part.

WHEREAS the hereditaments hereinafter described and intended to be hereby granted and conveyed for an Estate of inheritance in fee simple in possession free from incumbrances were seized by one Isaac A. Cole alias OGUNMODEDE now deceased.

AND WHEREAS the grantors aforementioned are the natural heirs and beneficiaries of the said Isaac Akinola Cole Alias Ogunmodede deceased.”

We said:

“On the face of this Exhibit (G), we are of the view that Mrs. Thomas himself in her life time would be estopped from claiming this property as her individual property. It is therefore difficult to see how the 1st defendant her husband, on the death of his wife, could claim that the property devolved on him on the death of his wife, since Section 36 of the Marriage Ordinance (above) would not operate to vest the property in him.”

It is thus clear that OGUNMODEDE’S case is easily distinguishable from the instant case.

Now Section 36 of the Marriage Act provides as follows:

“36. (1) Where any person who is subject to customary law contracts a marriage in accordance with the provisions of this Ordinance, and such persons 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 customary law to the contrary notwithstanding:

Provided that –

(a) where by the law of England any portion of the estate of such intestate would become a portion of the casual hereditary revenues of the Crown, such portion shall be distributed in accordance with the provisions of customary law, and shall not become a portion of the said casual hereditary revenues; and

(b) real property, the succession to which cannot by customary law be affected by testamentary disposition, shall descend in accordance with the provisions of such customary law, anything herein to the contrary notwithstanding.

(2) Before the registrar of marriage issues his certificate in the case of an intended marriage, either party to which is a person subject to customary law, he shall explain to both parties the effect of these provisions as to the succession to property as affected by marriage.

(3) This section applies to the Colony only.”

Applying the provisions of this section to the accepted facts of this case, there can be no question that the defendants being the legitimate children of Solomon Ajibola Phillips deceased by his legal wife had a right to succeed to the property of the deceased to the exclusion of the plaintiffs. The plaintiffs’ claim therefore ought to have been dismissed.

In the result, this appeal must succeed and it is hereby allowed. The judgment of the Lagos High Court in Suit No. LD/451/67 together with the order for costs is hereby set aside and in its place we order that the plaintiffs’ claim be and it is hereby dismissed; and this shall be the judgment of the court. The defendants/appellants are entitled to their costs.

of this appeal which we assess at 120 guineas in the court below and 100 guineas in this court. The costs are to be paid out of the estate of the deceased.

---

SC.180/1969