IN THE MATTER OF PROPOSED MARRIAGE BETWEEN SAMUEL AMONIA SPENCER AND WILHEMINA BOYLE
In re GRACE SPENCER (CAVEATRIX)
(1964) All N.L.R. 594
Division: High Court, Lagos
Date of Judgment: 28th December, 1964
Case Number: M/209/64
Before: Taylor, C.J.
A caveat was entered by the caveatrix against the proposed marriage between the applicant, S.A. Spencer, and Wilhemina on the ground that the caveatrix and the applicant had contracted a valid and subsisting marriage according to Native Law and Custom; whereupon the Registrar of Marriages referred the application for the issue of marriage certificate to the High Court for determination.
At the hearing, it was found that the applicant had been knowing the caveatrix sexually since 1956; that between 1960 and 1964 the parties lived together as husband and wife at 2A Lewis Street, Lagos; that in 1962 the applicant took the caveatrix, a pagan, to the Roman Catholic Church where they were both baptised on the same day; that the applicant paid the sum of £20 to the brother of the caveatrix, on behalf of the family, in consideration of his union with the caveatrix. The applicant stated in defence that he was tricked into going to live with the caveatrix whom he never had the intention to marry because she was 10 years his senior.
The caveat ought to remain against the issue of the marriage certificate because the circumstances of this case show that the caveatrix is lawfully married to the applicant by Native Law and Custom of Benin by the payment of the sum of £20 to the caveatrix' brother who acted in the position of the head of the family in the absence of their father, and since the parties had been living together, there would not be a physical but symbolic act of marriage.
Act referred to:-
Marriage Act, Cap. 115, section 15.
Applicant in person
Omolodun, for the Caveatrix.
Taylor, C.J. of Lagos:-On the 5th day of November, 1964, Samuel Amonia Spencer gave notice to the Registrar of Marriages, Lagos of his intended marriage at the Holy Cross Cathedral to Miss Wilhemina Boyle. They are both of age, the former being 26 and the latter 21.
On the 21st day of November, 1964 a caveat was entered by one G.A. Otote of 2A Lewis Street, Lagos.
The matter was therefore referred to the High Court under section 15 of the Marriage Act. It has not however been possible to proceed to determine the case in a "summary way", if by that section 15 means without taking evidence on oath and permitting cross-examination and re-examination. I have had to take evidence on both sides because the question at issue, i.e. whether the caveatrix and Samuel Amonia Spencer had contracted a valid and subsisting marriage according to the Native Law and Custom prevailing in Benin, required it.
The caveatrix on whom the onus lay of proving the existence of such a marriage gave evidence on oath and called three witnesses two of whom were her brother and sister respectively i.e. Caveatrix' Witness 2 was Sunday Otote and Caveatrix' Witness 3, Felicia Otote. In assessing the weight to be attached to their evidence I take this into consideration. They were called to testify as to the performance of the requisites to a valid marriage in accordance with Benin Native Law and Custom. The last witness called gave evidence as an "expert" as to Benin Marriage Custom.
The applicant gave evidence, called his Mother, DW2, Matilda Spencer, Reverend Father Burke and a young sculptor as an expert on Benin Native Law and Custom with respect to Marriage.
I have listened carefully to the evidence of all these witnesses and watched their demeanour, and the following matters which I will now table were to me the decisive factors in the task of trying to find out wherein the truth lay.
(1) In the first instance there was a marked consistency in the evidence of the caveatrix and her witnesses as to the basic essentials of a marriage according to Benin Native Law and Custom in the case of two persons who are of age.
(2) The 2nd and 3rd Caveatrix' witnesses i.e. Sunday Otote and Felicia Otote corroborated her as to how much was paid, to whom it was paid and how the money was sent home to their father through a relative.
(3) The fact undenied that the caveatrix and the applicant:-
(a) were living together as man and wife at 2A Lewis St. as from 1960.
(b) that in 1962 the applicant took the caveatrix who according to him was a pagan, to the Roman Catholic Church where they were both baptised on the same day in November, 1962.
(c) the fact that Rev. Father Burke visited the house and on this I shall say a little more anon
(d) the demeanour of the witnesses for the caveatrix as compared with those of the applicant with the exception of the Rev. Father Burke whose evidence I should say, at this stage, I accept in toto.
Now I am aware that the caveatrix did on occasions prevaricate in her evidence, particularly as to why she signed her name as G.A. Otote instead of Spencer when she entered a caveat; further that the 2nd witness for the caveatrix also prevaricated and I think lied when confronted with the fact that he had often used the name Sunday Ebigbe and not Sunday Otote. Felicia Otote on the other hand was never shaken in cross-examination and the evidence and demeanour of caveatrix' witness No. 4, Augustin Omo-Okon I found more satisfactory as an expert than that of Anthony Efionayi the sculptor, as to the prevailing Native Law and Custom in Benin. I accept it in preference to that of Anthony Efionayi.
It is significant that the applicant, who says he was "tricked" into going to live with the caveatrix, a lady no less than 10 years his senior, and who says he had not the slightest interest in marrying this lady either under Native Law and Custom or the Marriage Act should take the trouble to get the lady he described as a "pagan" to attend the Roman Catholic Church with him and be baptised with him on the same day. Again if he was in fact "tricked" into this union in 1961 by a lady he had been knowing sexually since 1956, it is odd that when he discovered at the close of 1961 and 1962 that the caveatrix had no intention of proceeding to the United Kingdom, that he did not remove bag and baggage and return, from whence he came, to his mother's house. He said that in 1963 his Mother objected to his living with the caveatrix but yet he stayed on till May 1964. The caveatrix deposed that the reason why herself and the applicant attended the Roman Catholic Church and were baptised was in order to "cement" their marriage according to Native Law and Custom by one later to be solemnised in the said Church. The Rev. Father Burke gave evidence that:-
"I have met both the caveatrix and respondent on four or five occasions in all as the Reverend Father attached to this Parish. The main object of my visit concerned the daughter of Miss Otote (not by the applicant). I was concerned to provide a good Christian home for the daughter of Miss Otote who had applied for baptism. I wanted to make sure that the parents were properly married. I visited them at 2A Lewis St. Lagos. I understood that they had been baptised and had accepted the Catholic faith and precepts that having been baptised they were obliged to marry in Church. Mr Spencer refused very vehemently to marry the caveatrix in Church. He gave no reason."
It seems to me that this evidence to a great extent corroborates the evidence of the caveatrix that originally they went to the Roman Catholic Church and were baptised with a view to their getting married in Church.
I must confess that I was never impressed by the evidence or the demeanour of the applicant. His letter exhibit "A" written to the caveatrix on the 22nd November, 1964, one day after the said caveatrix had entered a caveat, and in which he offered:-
(1) to "take up almost immediately an education endowment" for the daughter of the caveatrix,
(2) to pay the rent of and support the caveatrix "as to feeding",
(3) to co-operate with her in solving whatever financial difficulties she claimed to have incurred,
(4) "And to do such things that would assist in your future progress" was not written entirely from an altruistic or philanthropic point of view. In all I am satisfied that the caveatrix is lawfully married to the applicant by Native Law and Custom of Benin by the payment of the sum of £20 to the caveatrix' brother who acted in the position of the head of the family in the absence of their father who is said to have been aged and ill in Benin. I am also satisfied that the caveatrix' brother in that capacity gave her away to the applicant as deposed to, but in this case as the parties had been living together, there would not be a physical but symbolic act. I therefore hold that the caveat shall remain and order that the certificate be not issued by the Registrar. I shall hear parties on the question of costs.
Omolodun: Asks for 40 Guineas Costs. Says out-of-pocket expenses are 5/-
Applicant: Says the caveatrix is not entitled to costs. Says the cost of retaining a lawyer will not be more than £10. Says he has lost over £100 cash and asks Court to take that into account.
Court: I assess costs in favour of the caveatrix in the sum of £10. 15. 0d.