JADESINMI v. OKOTIE-EBOH (1996) 1 LRLR Vol 2 012

JADESINMI v. OKOTIE-EBOH 

Citation

(1996) 1 LRLR Vol 2 012

Alternative Citation

(1996) 2 NWLR (Pt. 429) 128

MRS. ALERO JADESIMI..............................................................                        APPELLANT

            AND

1. MRS. VICTORIA OKOTIE-EBOH

2. DR. (MRS.) C. R. AKELE

3. JOHN OKOTIE-EBOH................................................................           RESPONDENTS

FACTS

Chief Festus Samuel Okotie-Eboh married the 1^st respondent in accordance with Itsekiri native law and custom in 1942. They re-married or rather re-affirmed their marriage under the Marriage Act in 1961 while they were still married under customary law. He died in 1966.

After the demise of Okotie-Eboh, letters of administration without Will of his estate were obtained. It was after obtaining the letters of administration in respect of the estate that the two Wills which the deceased had executed were discovered (the first Will was made in 1947 while the second Will was executed in 1964).

In an action initiated in Lagos State High Court, the appellant as plaintiff claimed against the respondents reliefs seeking to revoke the letters of administration and an order declaring the validity of the Will made in 1947. After due hearing, the trial judge held inter alia that the Will made in 1947 was validly made and was not revoked by the 1961 marriage Act. The trial court granted reliefs which the plaintiff sought.

On appeal against the judgment of the High Court of Lagos State by the 2^nd and 3^rd respondents, the Court of Appeal allowed the appeal and set aside the judgment of the High Court. The Court of Appeal held that the Will made in 1947 was revoked by the statutory marriage of 1961.

The plaintiff then appealed against the judgment of the Court of Appeal to the Supreme Court.

HELD

The Supreme Court stated that the deceased is to be taken to have known all the laws which apply to his estate. That is the fallacy of the law. If it was his intention, after contracting the 1961 marriage under the Marriage Act, that he would vary or change or even revoke his 1947 Will, he would have taken such a step long before he was killed in 1966. Since he did nothing of the sort, it must be taken that he had intended that the Will should remain in force irrespective of the 1961 marriage.

Also, it is never intended by practice that a marriage under the Marriage Act should nullify the customary marriage or engagement but rather that it would supplement practice or custom. The parties are of course aware that by applying the Marriage Act to their relationship, their marriage would become monogamous.

The Supreme Court further stated that the circumstances of Nigeria has influence 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.

The Supreme Court therefore held that the Court of Appeal erred in its decision that the Will made in 1947 by the deceased was revoked by reason of the 1961 marriage between the deceased and the first respondent.

Thus, the Supreme Court allowed her appeal, setting aside the judgment of the Court of Appeal and restored that of the High Court.

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