➥ CASE SUMMARY OF:
Mrs. Victoria Omoregie & Ors. v. Mr. Reuben Omoregie (B/207/2006, 4th day of March 2011)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Inheritance under customary law;
Administration of estate law;
Inheritance under administration of estate law.
➥ CASE FACT/HISTORY
The facts of this case are quite straight forward. The first plaintiff is the biological mother of the 2nd, 3rd and 4th plaintiffs as well as the defendant. They are some of the children she had for her husband Pa Matthew Omoregie who died on the 28th of December 2000. He died intestate leaving vast estate in Benin City and his home town Ohordua. The case of the plaintiffs as can be gleaned from their amended joint statement of claim is that the late Pa Matthew Omoregie having contracted statutory marriage with the 1st plaintiff in his life time, the distribution of his estate on death intestate should be done in accordance with the Administration of Estate Law which recognizes the right of the wife and children to share from the estate. They also seek an account of collections made since 2001 by the defendant who they allege has exclusively been collecting rentals from property. The defendant is the first son of Pa Matthew Omoregie. His case is that his father lived, died and was buried as an Esan man. It is his case that having completed his father’s burial obsequies, the distribution of his late father’s estate ought to be in accordance with Esan native law and custom. Under the custom the first son inherits solely and takes care of the other children. He averred that his father had another wife and denied he has been collecting rentals exclusively since 2001.
Whereof the plaintiffs claim jointly and severally against the Defendant as follows:
(a) A DECLARATION that late Pa Matthew Omoregie was legally married to Mrs. Victoria Omoregie, 1st Plaintiff herein exclusively under the Matrimonial Causes Act.
(b)A DECLARATION that late Pa Matthew was not subject to Esan Customary Law while alive having contracted a marriage with Mrs. Victoria Omoregie, 1st Plaintiff herein in accordance with the provisions of the Matrimonial Causes Act.
(c) A DECLARATION that the applicable law to the distribution of late Pa Matthew Omoregie’s estate or properties is the Administration of Estate Law (Cap 2) Laws of the Defunct Bendel State of Nigeria as applicable to Edo State.
(d) AN ORDER of this Honourable court directing the valuation and the distribution of late Pa Matthew Omoregie’s intestate properties to all the beneficiaries in accordance with the clear and unambiguous provisions of the Administration of Estate Law Cap 2 Laws of the Defunct Bendel State of Nigeria as applicable to Edo State.
(e) AN ORDER directing the defendant to account for the rents of the properties addressed as Nos. 2a, 2b and 2c Lawani Close, New Benin, Benin City being part of late Pa Omoregie’s estate between December, 2000 and the 4th of May, 2007 when the management of the said properties was, by the Order of this Honourable Court vested on the Administrator General and Public Trustee, Edo State.
(f) AN ORDER directing that the total rents received by the Administrator General and Public Trustee, Edo State in respect of the properties addressed as Nos.2a, 2b and 2c, Lawani Close, New Benin, Benin City less expenses on the said properties and payments made to the beneficiaries of late Pa Matthew Omoregie’s estate for their pressing needs during the slubsistence of this suit, be distributed amongst the said beneficiaries of his (late Pa Matthew Omoregie’s) estate in lien with the relevant provisions of the Administration of Estate Law Cap 2, Laws of the Defunct Bendel State as applicable to Edo State.
➥ ISSUE(S) & RESOLUTION(S)
↪️ I. Whether having regard to the marriage or marriages of Pa Matthew Omoregie and his burial should the distribution of his property on death intestate be governed by Esan native law and custom or the English law – the Administration of Estate law?
[THERE IS NO MISJOINDER OF ACTION IN THIS SUIT
‘In the case of UKATTA V NDINA EZE (1997) 49 LRCN 884, 910-911,the Supreme Court held that the guiding principle for joinder of actions is whether the plaintiffs have the same interest in the action, not whether it was similar acts of the that gave rise to different causes of action. defendants In the instant use, is my view that all the plaintiffs have the same interest in this the distribution of their husband and father’s estate. action In the instant case, no case of misjoinder of parties and causes of action has been established. Even where there is established case of misjoinder of causes of action or parties, it shall not defeat the cause of action. I agree that it is a case of gross misconception or deliberate misapplication of the law. There is consensus that Pa Matthew Omoregie married the 1st plaintiff and they had 9 children including the 2nd to 4th plaintiffs and the defendant. What type of marriage? This in my view is the crux of the matter, the fulcrum around which other matters revolve.’
THE STATUTORY MARRIAGE BETWEEN THE 1ST PLAINTIFF AND THE DEFENDANT IS ESTABLISHED
‘In the instant case the plaintiffs asserted the fact of marriage under the Marriage Act between Pa Matthew Omoregie (late) and the 1st plaintiff. They pleaded the fact, gave supporting evidence and tendered a certified copy of their marriage certificate which was admitted without objection and marked exhibit P. I have calmly examined exhibit P. It is a certified copy of certificate of marriage celebrated in the Holy Cross Cathedral, Benin City between Matthew Omoregie, Bachelor and Victor Ebighe, spinster under the Marriage Act. Apart from the names of couple, it bears the names of witnesses to the inarriage, their residential addresses, ages, attestation by officiating minister and witnesses etc.’
‘In my view exhibit P1 is in conformity with form E in the first schedule to the Marriage Act, Cap 218, LFN, 1990. In civil cases, the burden of proof is not static. It shifts. The onus is on the party who asserts to prove to the satisfaction of the court the contentions upon which he rests his case. The issue of group marriage that was not celebrated between 1st plaintiff and late Pa Matthew Omoregie was introduced or asserted in his defence by the defendant. He has to prove it. Apart from the statement during examination in chief, nothing else was done in proof of the said assertion of group marriage. He didn’t tell court he was present when his father and mother group married. He called no witness who was present at the group marriage according to him done yearly in the Roman Catholic Church. – He tendered no original or certified copy of any certificate of such group marriage as required by law. There was no explanation as to whether marriage of his father to his mother could constitute group marriage. I find defendant’s evidence on this issue unsatisfactory and improbable. It is not direct as he was no eye witness. It is not credible and does not induce belief. I reject the defendants evidence on this score. I accept the evidence of the 1st and 2nd plaintiffs which is preferable as they are more cogent compelling and credible. I accept exhibit P as a certified copy of marriage certificate under the Marriage Act evidencing marriage between the 1st plaintiff and late Pa Matthew Omoregie. I hold that exhibit P proves the existence of a marriage between the 1st plaintiff and Matthew Omoregie under the Marriage Act.’
THE 1ST PLAINTIFF IS THE ONLY LAWFUL WIFE OF THE DECEASED
‘Let me refer to one more case, the case of TOWOENI V TOWOENI (2001)12 NWLR (PT 727) 445, 451 R.8 where it transpired during the course of hearing the appeal that the man had taken another woman for a wife while the monogamous marriage was still subsisting. Salami JCA (as he then was) declared the position of law thus: ‘I wish to state, without any further assurance, that the purported marriage between the appellant and the other woman, when the marriage between the parties is still subsisting is not only bigamous but also invalid, null and void.’ Marriage as understood in Christendom is still as was classically defined by Lord Penzance in Hyde V, Hyde – the voluntary union for life of one man and one woman to the exclusion of all others.” The law has not changed. Applying the principles of law stated above to the facts of the instant case I find as a fact and I so hold that the 1st plaintiff is the only lawful wife of Pa Matthew Omoregie. I hold that any other purported marriage while their monogamous marriage subsisted, is bigamous, invalid, null and void and of no effect whatsoever.’
THE DECEASED ABANDONED HIS ESAN CUSTOM BY GETTING MARRIED UNDER THE ACT
‘I find as a fact that Pa Matthew Omoregie first contracted a marriage with Victoria Omoregie, 1st plaintiff under Esan customary law. I also find as a fact that the same spouse contracted a monogamous marriage under the Marriage Act. The latter marriage superceded the former customary law marriage. In other words there is a metamorphosis of the marriage at customary law into a monogamous marriage governed by non-customary law. By his own volition while alive Pa Matthew Omoregie anglicanised himself and opted out of native law and custom of Esan people, and I so hold.’
‘Pleadings relating to customary law of Esan land, evidence of customary law of succession by PW1, DW1, DW2 and the Defendant, the unfettered power of 1st son, customary arbitration, Books on Esan native law and custom, whether or not woman can hold property under Esan native law and custom are totally irrelevant to the just determination of this case. I therefore discountenance them.’]
‘In the light of what has been said above, I find the defendant liable to the plaintiffs and I make the following orders. (a) A declaration that late Pa Matthew Omoregie was legally married to only one wife Mrs Victoria Omoregie, the 1st plaintiff. (b) A declaration that having contracted a monogamous marriage with Victoria Omoregie, late Pa Matthew Omoregie was not subject to Esan customary law. 424 (c) A declaration that the applicable law in the distribution of the estate of Pa Matthew Omoregie is the Administration of Estate Law of Bendel State (defunct) as applicable in Edo State. (d) In the light of (c) above, section 49 (1) of the Administration of Estate law governs succession to the real and personal estate on intestacy.’
‘In Salubi’s case the Supreme Court said it was wrong for the court below having determined the manner of distribution to proceed to share the properties in specie without attempting to value the assets. To avoid falling into that error, I order the Administrator General/Public Trustee who upon court order of 4th May, 2007 has been administering the estate to get a valuer (preferably valuer in the employ of Government) to value the assets. Thereafter, the Administrator General shall share the estate of Pa Matthew Omoregie in accordance with the provisions of the Administration of Estate law of Bendel State (defunct) Cap 2 applicable in Edo State. Under relief 28(e) plaintiffs seek an order directing the defendant to account for rents collected from Pa Omoregie’s estate between December 2000 when their father died and the 4th of May, 2007 when court ordered the Administrator General and Public Trustee to take over management of the Estate.’
‘It is argued for the defendant that having performed his father’s funeral rights, as 1st son he has unfettered rights to manage his father’s property exclusively under Esan customary law of succession. It is contended that 1st plaintiff lacks the locus standi to ask Defendant to account for management of estate. I will quickly say here that since customary law has no relevance and inapplicable to this case, the afore submission has no supporting pegs to rest on. I reject and discountenance it. I find as a fact from evidence that the defendant managed his father’s estate exclusively between January 2001 to 4th May, 2007. The property in the light of our findings above on the death of Pa Matthew Omoregie belonged to his only wife (1st plaintiff) and all the 13 children of late Omoregie. I hold that the defendant who managed the property after his father’s death without court order acted as trustee to the estate and is liable to account to the beneficiaries. I order the defendant to account for all rentals/monies collected from the Estate of Matthew Omoregie between January 2001, and the 4th of May 2007. It is also ordered that the total rents received by the Administrator General and Public Trustee, Edo State in respect of Pa Matthew Omoregie’s estate more particularly in respect of property at Nos. 2 (a)(b)(c) Lawani Close, Benin City, less expenses be distributed to the beneficiaries in accordance with the relevant law above.’
➥ FURTHER DICTA:
⦿ PERMITTING JOINDER OF SEVERAL PLAINTIFFS
In the case C.R.S.N. CORP V ONI AND 6 ORS (1995) 1 NWLR (PT 371) 270, 290, the Supreme Court held that to permit joinder of several plaintiffs or causes of action: The right to relief alleged to exist in each plaintiff should be in respect of or arise out of the same transaction or series of transactions, and Secondly, if separate actions were brought by such co-plaintiffs, a common question of law or facts would arise. In that case the Nigerian Chronicle of 7th August 1986 published in its back page a story captioned ‘Tribune may be shut by Awo;. All the 7 management staff of the publishers of Tribune jointly injured by the publication sued for damages for libel. They succeeded: On appeal on the issue of misjoinder of causes of action the Supreme Court held that there was no case of misjoinder established as all the rights and reliefs arose out of the same publication. In the instant case the core issue is the law that should govern the distribution of the estate of Pa Matthew Omoregie. The parties are his wife (1st plaintiff) and some of his children (2nd to 4th plaintiffs), and the defendant. It does not involve several estate of different persons or several different families. Let me pause and ask – what are the expectations of the defendant? That each of the four plaintiffs, wife and some children or indeed each of the 13 children should file different suits regarding the distribution of same estate? Is it that those who argue that customary law should apply should file different suit from those who argue otherwise? If separate actions were brought by the plaintiffs could it be honestly canvassed that common questions of law and fact would not have arisen in respect of such suits? Can’ it be seriously contended that the right to-relief alleged to exist in each plaintiff does not arise out of the same transaction, in this case marriage I do not see how this can be successfully argued in the circumstance of this case. To hold a otherwise will lead to needless multiplicity of suit which is undesirable and against public policy. In some cases, joinder of several causes of action in the same suit is allowed if both can conveniently be tried together. — Aigbuloko Oyakhirome J.
⦿ HOW CAN MARRIAGE BE PROVED UNDER THE ACT
How can one prove marriage under the Marriage Act? In the case of IJIOMA V IJIOMA (2009) 12 NWLR (PT 1156)593, 609E-F the court held that every certificate of marriage filed in the office of the registrar of marriages of any district, or any copy thereof purporting to be signed and certified as a true copy by the registrar and every entry in a marriage register, book or copy thereof certified shall be admissible as evidence of the marriage to which it relates in any court of justice or before any court of justice, or before any person having by law or consent of parties authority to hear, receive and examine evidence. The burden of proof is on the person who is expected to supply the evidence who asserts a fact required in proof of his claim i.e. onus probandi. Thus a person must prove it. Nwavu & 11 Ors. V Okoye & 19 ORS (2008)18 NWLR (PT 1118)29, 34 r.3. — Aigbuloko Oyakhirome J.
➥ LEAD JUDGEMENT DELIVERED BY:
Honourable Justice J. Aigbuloko Oyakhirome
⦿ FOR THE CLAIMANT
Chief Ukpebor Esq.
⦿ FOR THE DEFENDANT
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)