Foster-Sutton, P. This is an appeal from a decision of Robinson, J., on three motions, two filed by the respondents, by which they asked (i) for an order that the real estate of one John St. Matthew Daniel, deceased, who died intestate, be partitioned among them; and (ii) for an order requiring the Administrator- General to proceed to distribute the surplus of the personal estate of the intestate among them; and one filed by the appellant in which he asked for an order staying the distribution of the estate of the intestate pending the final determination of an appeal in connection with legitimacy proceedings which was then pending before this Court.
The learned trial Judge ordered that all the real properties of the intestate be partitioned among the respondents, and directed the Administrator-General to pay forthwith all debts and other lawful liabilities and charges due upon the intestate’s estate and thereafter to distribute the surplus of the personal estate among the respondents.
The intestate was a child of Theresa Maria and Mathew Joaquim Daniel who were married in the Wesleyan Methodist Church, Tinubu Square, Lagos, on the 28th September, 1890. The intestate was born to them on the 30th March, 1891, and died on the 25th April, 1948, leaving real and personal property which is said to amount in value to approximately £100,000.
The respondents claim to be the children of the intestate, begotten by him of wives whom they claim he married under native law and custom. The appellant claims to be the legitimate son of Pedro and Comfort Mathew Daniel who were married at the Wesleyan Methodist Church, Olowogbowo, Lagos, on the 19th October, 1909, and he further claims that his father Pedro was the son of Theresa Maria and Mathew Joaquim Daniel and that although his father was born on 20th October, 1884, that is to say, before Theresa and Mathew married, he was alive on the 17th October, 1929, the date upon which the Legitimacy Ordinance (Cap 111) became law, and, therefore, became legitimate by virtue of section 3 of the Ordinance.
Both sides agree that the succession to the intestate’s property is governed by the provisions of sub-section (1) of section 36 of the Marriage Ordinance (Cap 128) which reads:-
“Were any person who is subject to native law or custom contracts a marriage in accordance with the provisions of this Ordinance, and such person dies intestate, subsequently to the commencement of this Ordinance, leaving widow or husband, or any issue of such marriage; and also where 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 native law or custom to the contrary notwithstanding: “Provided that-
(a) were 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 provisions of native law and custom, and shall not become a portion of the said casual hereditary revenues; and.
(b) real property, the succession to which cannot by native law or custom affected by testamentary disposition, shall descend in accordance with the provisions of such native law or custom, anything herein to the contrary notwithstanding:
On behalf the appellant it was argued, firstly, that the decision of this Court in the case of In re Adeline Subulade Williams (1), decisively determines the right appellant, as the lawful nephew of the intestate, to succeed as against respondents, to the: intestate’s estate, and that the learned trial Judge was therefore, wrong in ordering partition and distribution of the estate to respondents; and, secondly; that the learned trial Judge was wrong in not taking evidence in order to ascertain whether the intestate was married in accordance with native law and custom to any of the women in question, and which if any of the respondents were the issue of any of such marriages.
In the case of In re Williams, A, who was the issue of a marriage contracts in accordance with the Marriage Ordinance died intestate and was survived by other issue of that marriage and also by a widow and issue of a customary marriage contracted by himself. The trial judge stated a case for the opinion of this Court raising the point whether the intestate’s real and personal property of which he might have disposed by will descended to the other issue of his parents’ marriage, contacted in accordance with the Marriage Ordinance, or to the widow and issue customary marriage of the intestate.
The Court held that a person whose right depends on native law and custom and not English law is excluded from the succession on the death intestate of a person who is the issue of a marriage under the Marriage Ordinance.
It was admitted by appellant’s Counsel that in the recent case of In re Sarah I Adedovh ten others (2) this Court declined to follow the decision in In re Williams (1) holding that the Court in that case acted per incuriam, In the case of In re Sarah I. Adedovoh (2) the Court held that where the succession to an intestate’s property is governed by section 36 of the Marriage Ordinance the question to be determined in a case such as the one now before us is whether in accordance with the law of England relating to distribution they are children of the intestate, that is to say his legitimate children. The Court also held that their status as such is to be determined, according to the law of England, by reference to the law of the domicile of their parents at the time of their birth. In other words, that the law to be applied in ascertaining whether the respondents, are to be regarded under the law of England as legitimate children of the intestate is not the law of England, but the native law and custom applicable to each of them.
Assuming the facts regarding their status alleged by the appellant and the respondents to have been proved, under the law of England applicable, if the decision in In re Williams (1) is to prevail the appellant would be preferred to the respondents, whereas if the decision in the more recent case to which I have referred is followed, the respondents would succeed to the intestate’s property.
It was submitted that In re Williams (1). was rightly decided and that it followed and has been followed by, a long line of cases,” and we were invited to adhere to that decision in preference to the more recent one. During the course of his judgment in the case of, In,re Sarah I. Adedovoh (2), when referring to In re Williams (1), Verity, C,J., Nigeria, said:-
“I am, nevertheless, gravely concerned by the fact that in this matter there does appear to be an authority in Nigeria contrary to the view put forward on behalf of the appellants in this case: the decision in re Williams. We have been at pains therefore to refer to the record of the hearing of the appeal in that case. The decision of the Court in so far as is disclose by of the Judgment appears to have turned upon the interpretation placed by the Court upon the words of section 36 of the Marriage Ordinance and it might well be that, as I have indicated earlier, the conclusion arrived at by the learned Judges is in itself not to disputed in so far as it is a statement of the law up to a certain point.
“I am in complete agreement that it is to the law of England that the local Ordinance directs that reference should be made, though consider that it is to distribution and not succession that accuracy demands the application of that law. The ultimate resort must be, therefore, to the law of England but to the question as to what is that law upon this very difficult matter but little reference is made either in the course of the argument or in the judgment. Reference was indeed made to the English rule as to distribution in the circumstances of an intestate leaving a widow and children and the learned judges referred in their judgment, obscurely as I have said, to the question of polygamous marriage, but the vital question as to how the law of England would view the position of widow or children was never fully considered nor was any such authority as the judgment of the Court of Appeal in Goodman's Trusts or the important, opinion of Lord Maugham in the Sinha Peerage Case either cited or considered. In thus stopping short at a consideration of the local statute without fully considering what is the law of England to which recourse is to be had thereunder I am of the opinion that the learned judges acted per incuriam and that this Court is not now bound to follow that decision if we are of the opinion that it is wrong after due consideration of those aspects of the law to which their Lordships’ attention was never directed.
“It is my opinion therefore that this Court is now entitled to examine the question as though there were no local authority binding upon it and it is my view that regarding this issue with a desire to give effect to common sense and decency, we should be prepared to hold that the acknowledged principle as laid down in Goodman’s Trusts whereby in relation to the Statute of Distribution the status of persons claiming rights in English law thereunder are determined by the law of the domicile, should be applied in such cases as the present, irrespective of whether the marriage upon which such claims are founded be monogamous or polygamous,”
And further on in his judgment he again reverted to the undesirability of conflicting decisions being given by this Court when he said;-
“I am fully alive to the fact that grave inconvenience may arise from a judgment of this Court in such a matter which reverses a view of the law which has been held for upwards of ten years but when the Court is faced with the alternative of perpetuating what it is satisfied is an erroneous decision which was reached per incuriam and will if it be followed inflict hardship and injustice upon generations in the future or of causing temporary disturbance of rights acquired under such a decision I do not think we should hesitate to declare the law as we find it.”
We have also referred to the record in the case of In re Williams (1) and I have no hesitation in saying that 1 agree with the view expressed by Verity, C.J., that the Court acted per incttriam in that case.
I have given the arguments put forward by appellants’ Counsel most careful anxious consideration and having done so, I am satisfied that this Court is bound by the decision in the case of In re Sarah I. Adedovoh (2). Moreover, I find myself in entire agreement with that portion of the Chief Justice’s judgment which touches the issue with which we are concerned on this appeal.
The question whether the intestate was married to any of the mothers of the respondents in accordance with native law and custom, and if so which if any of the respondents were the issue of any of such marriages was contested by the appellant, both in the Court below and before us, and I am of the opinion that there was insufficient evidence before the learned trial Judge to justify his assumption that the twelve children concerned were the issue of such marriages.
It follows, therefore, that in my view, on the evidence before him, the learned trial Judge erred in making the orders for partition and distribution. That being so I would allow this appeal and remit the respondents' two motions to the Court below for hearing de novo, with a direction that the Court below require the respondents to adduce evidence sufficient to satisfy the Court on the following matters;-
(1) Whether the mothers of the twelve respondents were married to the intestate, John St. Mathew Daniel, in accordance with the native law and custom applicable in each case;
(2) whether the respondents, or any of them, are the issue of such marriages and if so of which such marriages; and
(3) whether by the native law and custom applicable in each case the respondents, or any of them, have the status of legitimate children.
There should, I think, be a further direction that, upon application being made him in that behalf, the appellant be joined as opposer to the two motions.
I would observe that, in my opinion, it would not be sufficient that the allege spouse should herself testify to the bare fact that her marriage was so contracted.
I would also observe that no claim has been put forward in this case by any person as a widow of the intestate, and that the sole issues of fact for the Court below are those I have set out under (1), (2) and (3) above.
de Comarmond, Ag. C.J. I concur. Coussey, J.A. 1 concur.
The appeal is allowed and it is ordered that the costs of the appellant and the respondents, to be taxed, shall be paid out of the intestate
Appeal allowed: order for hearing de novo.