Guardian

ELEBUTE died intestate leaving behind a wife he married under the Act who has children for him but he also left behind a mistress, who also has children for him. After his death, the elder male members of his family called the wife and the mistress to a meeting to account to them for the property of the deceased. The wife said that as far as she was concerned, everything her husband left behind belonged to her and her children, while the mistress said that her children should jointly benefit from the property, as the man was fully responsible for them in his lifetime.

Should the wife and the mistress be obliged to account to the family members for the property of the deceased and what are the rights of the children of the mistress?

Legal opinion

Under the law, the nature of a person’s marriage affects the succession to the person’s estate. A marriage under the Act, otherwise known as a monogamous marriage or a Court marriage confers a set of rights on the parties thereto. It also imposes a set of corresponding obligations. Rules of principles governing a marriage under the Act are provided by the Marriage Act.

According to Section 3 of the Matrimonial Causes Act, a marriage is void, if either of the parties is, at the time of the marriage, lawfully married to some other person.

Also, Section 35 of the Marriage Act provides that ‘ any person who is married under this Act or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law’.  See Oshodi v Oshodi, [1963 1 All NLR, 12. Applying the foregoing, to the case at hand, it is crystal clear that Mr. Elebute’s association with his mistress is a violation of the law.

What then is the effect of the violation to the succession to his estate?

The current position of the law is that succession to the estate of an intestate who was married under the Act shall be governed by the Administration of Estate Law applicable to his domicile. For instance, section 49(5) of the Administration of Estate Law of Lagos State, provides that where any person who is subject to customary law contracts a marriage in accordance with the provision of the Marriage Act and such person dies intestate after the commencement of this law, leaving a widow or a husband or any issue of such marriage, any property of which the said intestate might have deposed by will shall be distributed in accordance with the provision of this law, any customary law to the contrary notwithstanding. See also Section 3 (2) of the Administration of Estate Law of Abia State.

A good pointer here is the case of Obusez v Obusez (2007) 10 NWLR, (part 1043) 430,  where Mr. Obusez, who was from Delta state,  got married under the Act and the marriage was blessed with children, who were still young at the time of his death. Mr. Obusez’s marriage with Mrs. Obusez was not a happy one. In fact, Mrs. Obusez was accused of being responsible for the assassination of Mr. Obusez. While alive, Mr. Obusez took out an insurance policy in the name of his twin brother and his first two children as the beneficiaries of that policy. He was later buried in the compound of the first Appellant, who is his twin brother. Mrs. Obusez and the second Respondent, who was merely a friend of Mr. Obusez took out a writ at the High Court of Lagos State, praying the court for a declaration that they were the only persons entitled to the Letter of Administration of the estate of the deceased. The twin brother of the late Obusez filed a defence and also a counter-claim, praying the court for the same relief. The High Court held that in Nigeria, the spouse and children of the marriage under the Act are the sole beneficiaries of the deceased spouse and thus entitled to a letter of Administration. The appeal of the twin brother was dismissed. On further appeal to the Supreme Court, the apex court upheld the decision of the lower court.

The foregoing shows that Mr. Elebute’s estate devolves exclusively on his wife and children, provided that Mr. Elebute was domiciled in a state that has Administration of Estate Law.

Conversely, if Mr. Elebute was domiciled in a state where there is no administration of Estate Law, the position is that his estate will be distributed in accordance with English rule of intestacy succession.

According to the English rule of intestacy succession, the surviving spouse of an intestate shall be entitled absolutely to the personal property of the deceased spouse and in addition, one-third of the residuary estate of the intestate and the remaining two-thirds of the residuary estate for the issues of the intestate. This is because the marriage under the Act raises a presumption that the deceased intends that his estate should be regulated by the English rules of intestate. See the cases of Cole v Cole, (1898),1 NLR, 15 and Agbogu v Abgogu (1995), 1 NWLR,(part 372), 411.

As for the family elders ask both the wife and the mistress to account for the property of the deceased, the position of the law enunciated above put it beyond doubt that only the spouse and children of Mr. Elebute are entitled to the property to the exclusion of the family elders and other members.

As to the mistress and her children, the position at common law is that a child or children born outside wedlock is illegitimate. As such, as strangers to the father, they have no right of inheritance to the estate of the father. Thus, in the case of Esther Osho & Ors v Gabriel Philips (1972) All NLR, 279, the plaintiffs were the surviving children of the deceased, Solomon Ajibola Philips. The mother of the defendants, Mrs. Christiana Phillips, was married to the deceased father under the Act. The father died intestate and a Letter of Administration was granted to the children, Christiana, the legal wife had for the deceased. The plaintiffs who were born out of wedlock filed a claim praying the court for a declaration that as children of the deceased, they were jointly beneficially entitled to share the property of the deceased. The trial court upheld the claims of the plaintiffs, but on appeal to the Supreme Court, the apex court held that the defendants, being the legitimate children of the deceased intestate, have legal right to succeed to the property of the deceased to the exclusion of the plaintiffs who were born as a result of the relationship of the deceased with another woman during the subsistence of the marriage under the Act and were therefore, illegitimate.

However, the position of the law in Nigeria has changed since the coming to effect of the 1979 Constitution. By virtue of the provision of section 39 (2) of that Constitution, which is in pari material with section 42 (2) of the 1999 Constitution as amended, no citizen of Nigeria shall be subjected to any disability or deprivation merely by the reason or circumstances of his birth. This is also the position of section 10(2) of the Child Rights Act, 2003.

Also see the case of Salibu v Nwariaku (2003) 7 NWLR, part 819, 426, where the children born outside wedlock to an intestate who married under the Marriage Ordinance, were held to be jointly entitled to the intestate property with the children born in wedlock.