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Family Law

The leading authority on all aspects of family law

14 APR 2014

GE v KE [2014] EWHC 1938 (Fam)

The full judgment is available below.

(Family Division, Hogg J, 5 July 2013)

Marriage - Inheritance - Igbo customary marriage and divorce

The first wife was refused a declaration that she remained married to the husband at the time of his death according to Igbo custom.

The first wife applied for a declaration that she was married to the husband at the time of his death. The second wife claimed that the husband's first marriage had been dissolved by a customary divorce and sought a declaration that she was legally married to the husband at the time of his death. The husband died intestate.

The family were Igbo, people indigenous to South East Nigeria, who had an oral culture whereby important information was not written. A jointly instructed expert in Igbo customary laws relating to marriage and divorce gave evidence during the hearing.

The judge found that there was a valid marriage between the first wife and the husband in 1952. The husband was not present at the ceremony and he was married by proxy with his father standing in for him. They had three children together. The husband later moved to England leaving the first wife in Nigeria with the children.

The second wife met the husband in 1977, they were married in 1982 and lived together until the husband died. The husband's older brother gave evidence that the husband and first wife were divorced in 1960 but no details of the customary divorce were provided.

The expert outlined the steps necessary for a customary divorce: 1) the husband had to tell his kinsmen of his wish to divorce and obtain their approval; 2) the husband's kinsmen must inform the wife's kinsmen and hold a meeting to reach an agreement, and; 3) the wife's kinsmen must return the bride price and the husband's kinsmen must accept the return.

The judge concluded that by 2004 there was a firm belief within the family that the husband and the first wife were divorced. Coupled with the expert evidence that long separations did not occur in Igbo culture, the judge was able to conclude that they were divorced between 1960 and 1982.

The first wife's application for a declaration that she was married to the husband at the time of his death was refused. A declaration was granted that the second wife was legally married to the husband at the time of his death. 

 

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

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Neutral Citation Number: [2013] EWHC 1938 (Fam)

Case No: FD12D00212

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

 

Royal Courts of Justice

Strand, London, WC2A 2LL

 

Date: 05/07/2013

 

Before :

 

MRS JUSTICE HOGG

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Between :

 

 

GE

Applicant

 

- and -

 

 

KE

-and -

AE

1ST Respondent

 

2ND Respondent

 

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

 

John Fox for the Applicant

Jennifer Seaman for the Respondents

 

Hearing dates: 24th to 28th June 2013

- - - - - - - - - - - - - - - - - - - - -

Judgment

MRS JUSTICE HOGG :

Introduction

[1] The matter before me relates to marriage and divorce by custom in Nigeria.

[2] The Applicant is seeking a Declaration that she was married to the deceased at the time of his death on 20 December 2003.

[3] Her application is dated 3 January 2012, and was lodged with the Court on 5 January 2012.

[4] The Respondents are the personal representatives of the deceased.  He died intestate and letters of administration were issued by the Oxford District Registry on 8 July 2004.

[5] The first Respondent denies that the Applicant was still married to the deceased at the time of his death and claims to be his widow, having gone through a ceremony of marriage with him on 16 December 1982 at the Brent Registry Office.  She seeks a declaration that she was legally married to the deceased at the date of his death and is entitled to the rights of the surviving spouse on the deceased's intestacy. The second Respondent is the eldest of the two daughters of the deceased and the First Respondent.

[6] This is a case where I have heard numerous witnesses bearing the same surname.  As a result, not wishing to be over familiar or disrespectful in any way but to ensure clarity, we have referred to the family members by their first name, and where appropriate by the European name.  Thus the Applicant has been referred to as G, the First Respondent as K and the deceased variously as E: (he was also known as Et in the papers).  I propose to continue to use the relevant first names in this Judgment to maintain as much clarity as possible.

The Family Background

[7] Before going into the detail of the evidence it is necessary to understand some of the background and family structure.

[8] The family is based in Onitsha, a town in Anambra state in South East Nigeria.  It is a river port sited inland on the River Niger.  The indigenous people, and in particular this family, are Igbo and speak the Igbo language, and many also speak English.  This particular family is Christian.

[9] During the Biafra War (about 1967-1970) Onitsha and its population suffered considerable upset and hardship.

[10] The town Jos is described as 600 or 800 miles north of Onitsha and it is where E lived at the time of his marriage to G, and where for a time he and G lived afterwards.

[11] E's family is based in a family compound.  I do not know its size.  One witness said it was like Greenwich Park in London; another thought it was a bit smaller.  Suffice it to say it is a large area with a fence of some form around it, and gates within the fence.  Strangers are entitled to enter the compound and walk through it.

[12] Individual members of the family own houses within the compound.  The properties belong to the individuals, and although the properties can exchange hands within the family they cannot be sold to non family members.

[13] According to family history E's grandfather was an elevated position in the locality; he almost became "the king". He had a number of children, including three sons. He, his immediate family, and in particular his three sons occupied the compound.  E's father was the middle son.  He became Chief J According to E Chief J had 25 wives and at least 50 children.  I am not told about the other two sons.

[14] Since then the sons of the three sons have married and had children, and no doubt built their own homes within the compound.  Daughters of the family would have married and moved away to other families.  I was told that the compound is now occupied by many, many family members of all ages, but I was not told the actual numbers.

[15] Over the years E built his own house which was completed in about 1995.  The land had been given to him by his father.  The house was built over a number of years, and it consists of three stories, each storey containing a flat.  Once completed G moved into the first floor flat, and this is where she continues to reside.

[16] E came to this country in 1957 to study and with the intention of returning when completing his studies.  He never returned to live in Nigeria, although he visited on 5 occasions being November/December 1976; November/December 1985; December 1990/January1991; February to May 1994 and December 1995/January 1996.

[17] In 1967 he applied for British Citizenship which was granted on 24 May 1968.  His application form is an interesting document.  In it he states his date of birth as being 16 April 1932, but it is recorded that his passport says he was born on 26 April 1926.

[18] He fails to define whether he is single, married, widower or divorced, but while naming his wife by her Nigerian names says her full name "was", and that "(she) (he)" was born at Onitsha on 12 July 1935.  Much has been made of this part of the form and his crossing out of "is" leaving "was", and it is said on behalf of K and A this is indicative of there having been a divorce.  That is not confirmed as he fails to define his marital status leaving it open.  He failed also to cross out "he" when describing "his wife", and he gives a date of birth which bears no resemblance to her stated age of 90 in August 2012.  Had she been born in 1935 she would have been 77.

[19] I recognise that there are no records of dates of birth for children born in Nigeria in the 1930s or earlier.  I do not know the current situation.  It may be very difficult to know a person's exact date of birth, but older members of the family were able to give their own approximate ages.

[20] In the Certificate of Death E's date of birth was given as 16 April 1932 making him 71 at time of death.  Had he been born in 1926 he would have been 77.  Likewise, if G was born in 1935 as E stated she would be 78 and not 93 as she stated in evidence.  I was able to see G on a video link.  She clearly is elderly, but the link was poor and added to difficulties in considering and assessing her age.

[21] Although in many ways the family is a traditional Igbo family many members are also Christian, and their family culture embraces both aspects of the traditional ways and their faith.

[22] Polygamy is, or was, very much accepted by the Igbo.  E's own father had 25 wives, and various family members who gave evidence supported this by saying that he was a half-brother to E, or the son of a half-brother to E.  Given his background E would have been very aware that polygamy was permitted and accepted in Nigeria.  This is a matter which I have borne in mind when considering the evidence.

E and G

[23] Not until K's skeleton argument was received was there any doubt that there had been a valid marriage by custom between E and G.  The issue was raised during the hearing.  However, Dr Joseph Ichongiri, the jointly instructed expert in Igbo customary law relating to marriage and divorce, dispelled any doubts and confirmed that in his opinion there was no doubt, and accepted there had been a valid marriage between E and G.  The issue was properly not pursued in submissions.

[24] G stated that she and E were married under "Onitsha native law and custom in 1952".  K confirmed that E had told her he had been married to G at about that time.

[25] At the time of the marriage E was working some 800 miles away, and thus was married by proxy.  His father Chief J stood proxy for him and paid the "Bride Price" to G's family.  His half-brother F who gave evidence said he was present at the ceremony.

[26] After the marriage G says she and E lived at Jos.  They had three children: a son A who was born in 1952, and two daughters, C (sometimes referred to as Fl in the papers) born in 1955 and An born in February 1957.

[27] After discussions and agreement between E's father, senior brother P and sisters, and G's two elder brothers, E came to this country to study leaving G and the children in Jos in the family home owned by E.

[28] While in England E seems to have instructed G to sell either the family home, or the market stall he had left her to allow her to trade in textiles.

[29] Both G and A stated that from Jos she and the children moved to live in the family compound in Onitsha.  G believes this was in 1960, and An says this occurred after the house in Jos was sold in 1960.

[30] There is no evidence of G ever leaving the family compound until she visited C and her husband in Lagos between 1985 and 1986.  Following the birth of C's daughter in 1987 she lived with C looking after her grandchild until 1995 when she returned to live in the family compound, and when she went to live in E's newly completed house. Since 1995 she has remained living in the house.

[31] G denies there was ever a divorce between E and herself.  She accepts he did not return to live with her in Nigeria.  She says he never discussed divorce with her, or as far as she was aware with members of her immediate family.  She said no one from either her family or E's family ever discussed divorce with her, no one told her to go back to her family.  But then she told me:

"my husband's father did not want me to go back to my father's house, he did not allow me to go back.  He did not want it to happen, he never wanted me to go.  He did not agree to my leaving and I still stay in his house.  I live there today."

"We did not part ways."

[32] She said she was not divorced in 1960 or at any time, and not after the death of E's father in about 1960.

[33] Her evidence at times was a bit difficult to understand.  She is elderly, and E's Uncle F described her as having dementia: it may be at times she was confused, at times forgetful. To her it must have been an ordeal; it was very difficult for me in Court.  The video link was bad, breaking up and noisy.  G spoke in Igbo: she does not speak English.  An English speaking local lawyer interpreted for her, but from family members in court there were criticisms of the translations to and from her.  It may be also she muddled her husband's father and her husband in describing whose house she lived in within the compound.

[34] She also told me on two occasions she sent money to E in London, but he told her not to do so as "we were suffering from shortages".  He also sent her money at times.

[35] When he visited Nigeria she said he came to stay with her on the early visits either in the compound, or in Lagos when she was with C, and during the 1995 visit while she lived on the first floor of his house, he, K and their daughters stayed in the top floor flat.  This was in part denied by K.

[36] On one occasion she said that when he went back to London he wanted to take her with him, but she refused as the children were happy in Nigeria.

[37] In her evidence G said she and E had discussions about the children, his career, her business, his general family matters and social affairs in Onitsha, but not about divorce.

[38] In about 1975 she and E agreed A should go to him in London to further his education.  It was not a total success and A returned sometime later to Nigeria.  In about 1991 he disappeared and has never been seen or heard of since.  He left a wife and children in the compound.  It is assumed by the family he is dead.

[39] In 1980 her parents agreed that An should also go to London and stay with her father while she furthered her education.  She stayed living with E and K until 1989 when she left his home.  The reasons for her leaving are in dispute and there are allegations and counter allegations between An and K as to what occurred while An lived with E and K.  An continues to live in London.

E and K

[40] E remained living in London.  Ultimately, after some ups and downs he became a civil servant and a respected ‘senior' member of the family and Igbo community in London.  He purchased a house, 13 L Road, in which he lived until his "marriage" with K.  Thereafter he and K purchased their "matrimonial home", 29 M Road, which was conveyed into their joint names.  He retained 13 L Road, which was tenanted, and at times visiting family members stayed there.  In due course, after his death, the house was sold and forms the major part of his estate.  He also had cash savings and stocks and shares.

[41] He did not meet K until 1977 and little is known about his domestic circumstances between 1957 when he arrived here until 1977.  K recounts his comments.  Apparently at some stage he asked G to join him here with the children, but she refused.  He said he had heard rumours from Jos that G was indulging in affairs, which when put to G in cross-examination, she replied, "God forbid I had affairs while he was in England".  K said that a combination of G's refusal to come and the rumours about her behaviour caused him to seek a divorce.

[42] Unfortunately, other than one letter from his brother T, there are no documents emanating from E, or from anyone in Nigeria during the 1960s and 1970s, and there is very little information available from the period to know what E was thinking, saying or doing. 

[43] T wrote to his brother on 8 April 1974.  It was a longish letter about various matters, which are not relevant to the issues before me.  He did mention he had spoken to E's son "A" who had told him that "his mother (G) sold your building at Jos without his knowledge; that he was then small".  T asked A to tell his father the true position.

[44] T then added:

"Everybody in the compound were really happy that you were well, most people believed that you were married to a white woman.  They were surprised when I told them you were still a bachelor and I also told them that you will becoming by December to be engaged to another woman."

[45] It is accepted that whoever she was "the white woman" was not K.  Whether the "another woman" was Eun was not clear, but assuming the "another woman" was an Igbo there would have been no issue or concern about marriage to her whether or not E was divorced given that polygamy is permissible in Nigeria, and within the Igbo culture.

[46] Much has been made of the word and use of the word "bachelor" in the letter from T.  Counsel on behalf of K suggests it means that T knew E was an unmarried man, that he was no longer married to G.  Counsel for G suggests it means that T thought that he was "living a bachelor's existence, married to G but not living with her or any other woman".  Dr Ichongiri was asked and whilst favouring K's explanation, it was a personal interpretation of the word. Ideally we should ask T.  Sadly, T died some time ago.

[47] I am not sure what T meant by the word, and it remains uncertain and of little consequence.  Given the context of the letter either explanation could be valid.

[48] According to K, E and she met in late 1977.  About a year later they started talking about getting married.  She knew that he had been married and by then had three grown up children by his wife.  She moved in with E in late 1979 and "we started discussing how to go about getting married".  Having gone through a customary marriage there were no papers, either to record the marriage or any subsequent divorce.  "E was very particular about doing things properly; to make sure I would have no problems if anything should happen to him".  They went to a solicitor for advice and were told "just go ahead and marry, who is going to know".  E refused to do that.

[49] She said that in 1980 during the period they were discussing their proposed marriage E contacted his elder brother P, the then Diokpa (head of the family), to ask for help to prove that his marriage to G had ended through divorce by customary law.  P replied on 22 July 1980 to the effect that certificates of divorce were not common, but he enclosed a sworn affidavit by himself which he hoped would assist.  In that affidavit of 22 July 1980 P swore, inter alia, that E had been married to G (named with her Nigerian name) "according to Onitsha Native law and custom but which marriage has been desolved for the past 20 years".  He also named the three children of that marriage, and mentioned that the dowry of another named Nigerian lady "Eun" had been returned "before the marriage was concluded" and to "the best of my knowledge E is not married to any woman".

[50] G, An and Uncle F said that they do not believe the contents of the affidavit in respect of the divorce are true, that P was merely helping his brother out of a difficulty.

[51] By the Autumn 1982 K was pregnant with AE.  She and E were wanting to marry, and she says that E wanted it to be legal and valid.  She herself did not want to enter into a marriage which would not be valid in this country.  E therefore swore an affidavit on 18 October 1982 saying he had married G in Onitsha in 1953; that it was by proxy with his father standing on his behalf.  It was a customary marriage with the bride price being paid by his father.  He said there were three children of that marriage, that he left Nigeria in 1957 to study and remained here, and had become a British citizen.  He swore that in 1960 his customary marriage to G was dissolved according to native law and custom, and he is free to enter a valid marriage as he is divorced, and he intended to marry K who was pregnant with his child.  He did not give an account or any details of what he meant by the marriage being dissolved by native law and custom.

[52] E and K then instructed a Nigerian and English barrister to consider P's affidavit and that of E.  That barrister, Mr Ginikanwa, swore an affidavit giving some account of customary marriage and divorce, and saying that he had read the affidavits and was satisfied that the marriage between E and G had been dissolved by customary law.  He further went on to say they had lived apart for more than 20 years, that G had been asked to leave E's family and return to her own, that E had not maintained her or communicated with her for many years and the repayment of the bride price had been waived, and as the children were grown up her family would not be expected to repay it.  In his opinion the marriage had been dissolved and E was free to marry under English law.

[53] It is known that Mr Ginikanwa has been disbarred.  It is also known he admitted to swearing a false affidavit and making a false statement during a hearing in "an action involving himself and his family".

[54] K was challenged about this but said that she and E did not know Mr Ginikanwa, he was not related to the family and that they paid for his services.

[55] On 11 November 1982 E received a letter from the General Register Office indicating that he was free to marry.

[56] E and K were married on 16 December 1982.  E was described on the marriage certificate as "Previous marriage dissolved".  From then on they lived together at 29 M Road until his death.

The Issues

[57] There are two issues before me.

[58] The first issue is whether there was a valid marriage by customary law between E and G.

[59] It is now accepted on behalf of K that there was a valid marriage, and any doubt has been removed.  E himself believed he had been validly married to G, and said so in his affidavit of 18 October 1982. It was his belief in the validity of his marriage which caused him to obtain the affidavits from P and Mr Ginikanwa.

[60] G clearly believes she was validly married to E, and Cousin F has told me the same and that he was present.

[61] Dr Ichongiri also confirmed that on the evidence it appeared to be valid.

[62] I am satisfied on the evidence before me that there was a valid marriage between E and G, and that it took place in about 1952, maybe 1953, in Onitsha, being ‘by custom'.  I recognise there are no documents or records available to substantiate its occurrence or validity.

[63] The second issue is whether there was a divorce between E and G in about 1960, or at any time.

[64] This is the matter I have to decide, and it is far more complicated.  If it occurred it would be ‘by custom' and most unlikely to have been witnessed or recorded in any document.  Certainly no written formal record of divorce has been produced.  At the time the culture in Onitsha was oral, and important information such as marriages and divorces would have been passed by word of mouth between relatives within the family compound.

[65] Unfortunately, no firm clear-cut evidence that there had been a divorce was produced.

[66] K and her daughters could only tell me that they believed that there had been a divorce, and were relying on what E had told them, or sworn in his affidavit.  I do not doubt that their belief is honestly held: the issue is whether E told the truth.

[67] G maintains she was never divorced, but then tells me that her father-in-law would not allow it.  He died in about 1960.

[68] If what G tells me about her father-in-law is correct there is a strong indication that there were difficulties within the marriage at about that time.

[69] G is elderly, and I felt at times was confused while giving evidence.  The circumstances as I have described were difficult for everyone, and more so for her, but I felt what she said about her father-in-law had a ring of truth: he did not want her to leave the family, or be divorced, and he wanted her or allowed her to stay in the family compound.  She volunteered this information.

[70] Her daughters C and An would have been 5 and 3 in 1960 and most unlikely to have known or be aware of adult discussions at the time.  They are very protective of their mother and her status as first wife of E and, on her behalf, state there has never been a divorce.  I accept that at the time they would not have been involved or have known of a divorce, if there had been one.

[71] Dr Ichongiri described the processes which would have been necessary to affect a valid divorce by custom between E and G in about 1960.

[72] To begin with it would not have been necessary for E to be present in Onitsha.  He could have been represented by one of his brothers.

[73] Dr Ichongiri described three steps in the process:

(a) E or his proxy would have had to inform his kinsmen that he wished to be divorced, and to convince them to support him in that wish.  One of the kinsmen to be informed and convinced would have to be the family Diokpa (head of the family).  This is a necessary step.  A divorce could not take place without the approval or consent of E's kinsmen;

(b) The kinsmen of the wife needed to be informed that the husband wants a divorce.  Usually this would be done through his own kinsmen.  A meeting of the two sets of kinsmen would be held to discuss the matter and reach agreement;

(c) The bride price would have to be returned by the wife's kinsmen and accepted by the husband's kinsmen.  The price had to be negotiated in money terms.  Very occasionally the husband could waive the return of the bride price, but this had to be agreed by the wife's kinsmen.  If a waiver could not be agreed the husband had to accept the return of the bride price.  Otherwise there would be no valid divorce.  Once it was paid and received the marriage would come to an end.

Before the return of the bride price the kinsmen normally tried to mediate between the couple to see whether they could be reconciled or their disputes settled in some way.  If mediation failed the next step towards a divorce would be taken and the bride price returned.

Upon divorce, if she had not already left the husband's home and compound she would be sent back to her own family's home.

It was not normal for a divorced wife to remain living in the father's family compound even when she had born a son, or the children were young.

[74] Dr Ichorgiri told me that in Igbo culture the welfare of the children does not count for much.  A wife could be sent back to her father or family and that the children, however young, would be retained within the husband's family to be cared for by his mother, sisters or other female relatives.

[75] He said that it was very shameful for a wife to be sent back to her father or family compound.  Sometimes a compassionate or sympathetic senior kinsman would allow a divorced wife to remain living in the husband's family compound and to remain with her children, particularly if they were young.

[76] He also added that a grown up child, usually a son, but not necessarily so, could bring a divorced wife/mother back to the husband's family compound, and she could live with that child.

[77] He said that if a divorced wife remained or returned to live in the husband's family compound and even in his property against his wishes if the husband was living abroad, it was often very difficult to enforce her ouster from the property or compound.  He would have to rely on others to evict her, which they may not be willing to do.

[78] He was clear that a divorced wife lost her rights as a wife.  G was E's first wife.  She was the first wife in time and with it carried certain privileges.  Only a first wife can be embraced by the husband at an Ozo title taking ceremony (becoming a Chief).  Although G was present she was not embraced by E in 1990 at his Ozo title taking ceremony, although he did embrace his "first" son and his "first" daughter C, according to custom.  He said that if G was present at the ceremony and was divorced she would be there only in her personal capacity and have no role to play, and her presence would be of no consequence.

[79] K and her two daughters were present at the ceremony, E did not embrace K as she was not "the first" wife, even if she was his only wife; only "the first" wife could be embraced.  However, a family photograph of E, K and their daughters was taken, which of no traditional significance, may have been significant to each other given their relationship.

[80] A "first" wife is also expected to play the role of ‘Chief Mourner' at the burial of her husband.  As such she would be expected to sit on the ground on a mat during the ceremonies and to receive visitors.  It would be normal to cut or shave her hair, and wear black mourning cloth.  A number of DVDs were produced of a ritual burial ceremony for E in March 2009.  There has been much debate over the DVDs, and clearly they have been edited in various ways.  In any event as the ceremonies took place over several days they could not have shown everything.  There is a short clip of G sitting on a mattress covered with a mat, propped up against a wall with a pillow.  Her daughters say this represents her role as chief mourner, and ‘first wife'.  She has not had her hair cut, and is not wearing black.  However, Dr Ichongiri commented that some of the strict traditional roles and rites are diminishing, and black is not always worn.

[81] He was of the view that if G was chief mourner at the funeral ceremonies in February 2009 it was very significant, and suggests that G was still married as at the date of the ceremony.  According to Igbo custom a man remains alive until he is ceremonially buried.

[82] Dr Ichongiri provided two reports to the Court.  The first was written in May 2013.  He concluded, having seen the DVD of the Ozo ceremony in 1990, that "all was not well between G and E" at that time.  She did not perform the duties expected of a "first wife", nor was she embraced as such.  This in his mind seemed to cast doubt on the claim that the marriage subsisted even in 1990.

[83] On the other hand he said that having seen the DVDs of the ceremonial burial in 2009 it seemed that G performed the role of Chief Mourner by sitting on a mat, and that this would lend credence to a subsisting marriage.

[84] On 19 June 2013 he provided a further report having called for and viewed the DVDs of the event in London following the Requiem Mass for E soon after his death.  In that DVD K was sitting at a table and the leaders of the Umuezearoli Community in London and the Agbalanze Society of Onitsha London branch each presented her with a cheque as a donation towards the funeral expenses.  Each speaker spoke to her in the second person singular, rather than the second person plural.  There are two separate words for "you" in Igbo.  He said that each speaker would have known the true position between G and E as the information would have been general knowledge in Onitsha, and would have been passed to London by various relatives.  Had it been thought that G was still married to E K would have been addressed in the second person plural.

[85] An says that she had been asked by the leaders of the two societies to whom should the cheques be presented at the event, and she had said to K on behalf of the family.  She added that K was known to be living with E at the time of his death, and for this reason alone was addressed in the second person singular.  An herself was at the event, sitting close to K at the table.

[86] As a result of what Dr Ichongiri heard and saw on that DVD he concluded there was sufficient evidence to support the view that there was no subsisting marriage between E and G at the time of his death.  The language used persuaded him and he now thought that there had been a divorce which was recognised by the extended family.  He remained of that view during his evidence to me.

[87] I asked him about the possibility of G and E becoming separated in about 1960 and remaining separated without a divorce.  That was a concept which was not recognised by the Igbo of Onitsha.  He told me if there were matrimonial difficulties the families would discuss the situation, try to mediate between the couple, and if that failed a divorce would follow.  Lengthy separations did not occur.  There would have been a divorce.

[88] In his report and evidence he was very clear that if there had been a divorce between E and G it would be widely known.  There would be no records, and as such important information had to be widely spread amongst the family so that it be known.  Such information could not be secret.  Moreover, as there would be family meetings and discussions before hand it would be a known fact.  And, in any close knit society there is always talk and gossip.

[89] Initially Dr Ichongiri was in two minds about the issue as to whether or not there had been a divorce.  There has been no direct evidence of one, and no witness has emerged who was present at any family meeting or discussion at the time.

[90] F, on behalf of G, although present at the marriage ceremony was living away from Onitsha in 1960.  He says he would have been told at the time of a divorce had it taken place as he visited the family compound regularly. He feels he would have been told, and thought he would have been involved in any family discussions.  He was not.

[91] J, a brother of E also gave evidence on behalf of G.  He is now about 85 or 86.  He says he is the Diopka of the family in Onitsha, and gave evidence by a telephone link, the video link not being available.  It was a difficult link and difficult to understand what was being said.  He maintained that as far as he knew there had been no divorce between E and G, and she remains living in E's house in the family compound.  He also maintains she played a traditional formal role at the funeral ceremony in February 2009.

[92] P, in his affidavit sworn in July 1980, said the marriage had been dissolved for the past 20 years, but he gave no details of when or the circumstances, and whether he had been involved in any of the family discussions or meetings.  Sadly he cannot be questioned, having died some years ago.

[93] A late witness, M, arrived on the first day of hearing and provided a statement dated the 28 June 2013.  She came to give evidence.  Although she gave evidence on behalf of G, she was keen to say that she was neutral as between the respective parties, but merely wanted to explain what she knew.

[94] She claimed to be a Chief in her own right.  She is a niece of E.  Between 1970 and 1972 she was attending a private secretarial college in London, near to where E was living and visited him regularly.  According to her he told her that his wife and children were in Nigeria and he wanted them to come over to England.  In 1972 she moved into his house at 13 L Road where she lived for a time. He told her on several occasions now he had a home he was going to make arrangements to bring his wife and children to London.  When she visited Nigeria he gave her letters for G and her own father.  Later he told her he had arranged with G for their son to come to London.  Later An came to London.

[95] Some time later she recalled E telling her he was planning to marry K, but there was a problem as he needed documents to show he was divorced from G, and asked her to speak to her father to see if he could help.  She did speak to her father, who later told her that the family were "not happy" with E and she was not to get involved.  She reported to E what her father had said, and E told her he would ask P to help.  In due course he told her P had provided the document.  As the wedding day approached she was invited but her father told her not to attend.  She did not attend, but her husband and children did.

[96] She said that some time after the wedding and AE had been born she visited Onitsha and met G.  She told G that E had married in London.  G was upset by this and cried, saying E had broken promises, and she had sent him money to help him. On later occasions she saw G living in the family compound in a house or hut reserved for women.  Later she saw her living in her current home with C.

[97] She was not present at the Ozo ceremony in 1990, nor in Onitsha in early 2004 or February 2009.

[98] C and An both gave evidence to me.  Both supported their mother's claim to be his widow, and that there had not been a divorce between their parents.

[99] C told me that her father had never said to her he was no longer married to her mother.  He had told her he wanted to marry K, to which she said he could not do so because he was married.  He asked her to obtain a document to say he was divorced so he could marry in England.  She refused.  She denied that there had ever been a divorce, and said the bride price had never been repaid.

[100] She did not accept the contents of P's or her father's affidavits as being true in respect of the assertion there had been a divorce.  She said there had never been the meeting between the families which would have been necessary.

[101] She said her mother had lived in the family compound after about 1960, but stayed with her for a time in Lagos to help with her baby. In 1995 G returned to the compound and went to live in E's house in the compound. She herself joined her mother there in 1999 or 2003 as her mother was unwell.  It is her home in Onitsha.

[102] C was present at the Ozo title giving ceremony in 1990.  As E's first daughter she was embraced.  She said her mother was involved with some of the ceremonials; that she entered on one occasion followed by a woman carrying a tray of fish; that this was significant, and indicated that there was a subsisting marriage between G and E.  Had there been a divorce this would not have occurred.  She accepted that E and G did not embrace.  She said it was not compulsory for the first wife to be embraced.  Had G not been his wife she said E could have ensured she was thrown out of the ceremony, but she was not.

[103] She described the circumstances of early 2004.  Her father's body had been returned to Ontisha for burial: that a formal burial with ceremony was expected.  I understand it takes place over 3 days.  I further understand that her father was due to be placed in the ground beneath the house he had built.

[104] She told me that a telephone message had been received from London from one of the extended family:  she thought from K to one of her Uncles.  The message was to the effect that her father did not want her mother to attend his funeral.  The family were upset and discussed the matter and called for a document written by E from London to that effect.  No such document ever came.

[105] She said there were several meetings of the family.  It was difficult to exclude her mother from the funeral ceremonies as she was still his wife, and had a formal role to play as Chief Mourner, and it was impossible to prevent her playing that role.

[106] She said that as time went by the body was decomposing and a decision was taken to bury E without ceremony and to arrange a ceremonial funeral at a later date.

[107] In January 2009 there were further family discussions and meetings.  She was told that a decision had been reached for a formal ceremonial funeral to take place in March 2009.  She said she telephoned K and An to inform them.  Neither were able to attend.

[108] C said that she helped organise this ceremony.  She played her role as "first" daughter and her mother as "the widow" by sitting on the mat to mourn her husband.  Her hair was shaved two weeks after the ceremonies.  She accepted that the ceremonials were videoed, and her mother for only a short period, as there was no need to have a prolonged clip of her sitting on the mat.

[109] C accepted that there was some correspondence with her father. Her father wrote to her on 28 December 1997.  In that letter E wrote "I would like to know why you have put your mother in my Onitsha house without my permission.  You are well aware I am not married to her.  I have asked her to go back to her family.  What right have you?  Even if you were my first son, you cannot do that.  I hereby, therefore, instruct you to remove your mother immediately from my house.  If you want her disgraced I will help you".  There were other matters in that letter which indicate all was not well between father and daughter.

[110] C replied on 22 April 1998, "Concerning my mother, I know she has offended you.  To err is human and to forgive is divine .... Please try to forgive and forget.  She is only staying there because of the children.  She has nowhere to go to now and at her age.  So please try to forgive and forget.  She is even ready to beg forgiveness if you so want it".

[111] I note there is no challenge to her father's words: "I am not married to her".

[112] Beyond that the correspondence does not take the matter further.

[113] An also gave evidence.  She confirmed that as a child the family had lived in Jos until the home was sold.  Thereafter her mother with the children lived in "an apartment" which belonged to her grandfather in the family compound at Onitsha.  She told me she recalled being told by her mother that she (G) had sent money to her father in London.  She did not know how much, or how frequently.

[114] She thought in about 1976 her father came to Nigeria and she met him for the first time.  He stayed with his brother T as her mother's home was too small, but G cooked for him and they saw each other.  E said he wanted to marry another woman, take a second wife.  G did not object as he would be entitled to marry a number of wives.

[115] It seems that the lady in question was ‘Eun'.  The marriage did not take place.  An believed there had never been a divorce, that her parents were still married at the time of her father's death.  The bride price had never been repaid.

[116] An told me that her father never told her that he had divorced her mother.  She was present when he "married" K.  She said that she challenged her father and K at the time or shortly before that he could not marry K in English law: that her father said as an African man he could marry as many wives as he wished. After K had told him about her challenge to her (K)  E told her "not to worry about his marriage to K as he would not change his love for G and his children".  She said her mother became aware of the "marriage" and accepted it, as it was acceptable in Nigeria.

[117] When E died An told K about the role of the widow, and that G as the widow would perform it by sitting on the mat.  K objected saying she was the widow as E had divorced G and she had a document to prove it.  K also sent a message to Onitsha that E did not want G to be at his burial.

[118] An was present at the Requiem Mass and event afterwards in London and accompanied her father's body back to Onitsha.  K remained in London.

[119] She said that in Onitsha there were family discussions; that the elders asked for G to leave the compound during the funeral ceremonies but that she and C refused that request claiming that their mother was his widow and should play the formal role.  There was a serious dispute concerning these issues and as time went on it became necessary and was agreed her father should be buried immediately without ceremony in the ground under his property, and that a formal burial would occur later.  She did not attend the event in 2009.

[120] Both AE and L gave evidence to me.  Both are impressive young women and naturally supported their mother's position.  They clearly loved their father and revered his memory.  However, both accepted they had no direct knowledge of the events before their birth and could only recount what they had been told by their parents and other family members.

[121] L told me that towards the end of his life E warned her, AE and their mother, that after he died An and C would cause a lot of trouble: he seemed aware of potential disputes arising after his death and wanted to make sure that these did not take place.  He had intended to write a Will, and that the money he had been saving would go to their mother.  He wanted to write his Will himself and not instruct a solicitor to do so, to save money, but he never did so.  L was unable to explain why he failed to make a Will particularly in view of his fears for the future.

[122] The daughters had heard reports that their father had not been buried in the traditional ceremonial way in 2004.  They were told the family elders had not recognised G as his wife at the time of E's death, that she had been asked to leave the compound for the funeral, but her daughters had refused and insisted she should play the role of widow sitting on the mat.

[123] E's nephew AT gave evidence to me on behalf of K.  Like E's daughters he could give little direct evidence of the events which occurred in Onitsha.  He knew and loved E and came to know him well; he gave evidence of the man he knew and what he said.  They had met in London.

[124] AT was present at the Ozo ceremony in 1990 and told me that G did not participate in the ceremony, was not embraced by E. He had learnt it was known and understood by the family that they were no longer married.

[125] After E's death he was involved with some of the arrangements for the funeral in this country but did not travel to Nigeria.  He heard about the dispute between the elders and G's daughters which prevented the formal burial taking place in 2004.  He was also told that the daughters had been "excommunicated by the family" as a result of their behaviour at the time.

[126] He told me, as is apparent, members of the extended family have taken sides, that of G, and of K.  He thought there was opposition to K and her claim to be the widow because she was white and Norwegian by birth; that G was an Igbo and E's money should be returned to Nigeria.

[127] FC, AT's wife, also gave evidence on behalf of K.  She came here in 1977 and has lived here ever since.  By chance she attended the Ozo ceremony in 1990.  She was not from Onitsha and went to watch the celebrations.  She did not see G.  She met K and E in about 1994.  Through them she met AT.  She could not give me any direct evidence concerning a divorce, but she knew E wanted to be buried in Onitsha in the customary way.  She had been told of the dispute in 2004 between the family elders and G's two daughters.  She shared AT's suspicions about the members of the family who support G's claim.

[128] PL, AT's mother also gave evidence on behalf of K.  She is an elderly lady having come here to live in 2007.  Until then she had lived in Onitsha.  She confirmed she was living there in early 2004 when E's body was returned for burial.  She did not take part in any of the family discussions but ‘saw' what was going on, and heard some of the conversations.  She became aware of the situation and heard G's daughters say G would not leave the compound and that she was entitled to be at the funeral. She knew others were saying G was not entitled to be there.  As a result of the dispute there was no ceremonial funeral.

[129] CN, another of E's nephews by another brother, gave evidence on K's behalf.  He was in the family compound during the early weeks of 2004.  He became aware of family discussions and the dispute between the elders and G's daughters.  He was not present at any of the meetings or discussions and only heard from other members of the family.

[130] EM, a cousin of E, gave evidence on K's behalf.  He was present in the compound in February 2004.  G was staying in E's house.  There was a family meeting or meetings in which he took part.  The family members did not recognise G as the wife of E, and said G should not be at the funeral and should leave the compound for its duration.  G was not at the meetings but her daughters were.  They said she would not leave.  They wanted their mother to remain and attend and take part in the funeral ceremonies.  They believed she was still married to their father.  They were very upset about the situation.  The formal funeral was cancelled and the daughters excommunicated by the family as a result of their behaviour.

[131] He was present at the formal burial ceremonies in 2009.  There had been discussions between the family and G's daughters.  There had been a change of attitude by the extended family.  G was allowed to stay in the compound during the ceremonies.  She remained in the house during those ceremonies.  He personally did not see G on the mat.

[132] On occasions when he visited his home in the compound he used to see G sitting outside E's house, but more recently has not done so.

[133] He was clear in his mind that E and G had been divorced.  He was aware that for over 40 years E and G had lived apart.  He knew G had not been embraced at the Ozo title taking ceremony and he was present in 2004.

[134] He told me that a divorced wife can be brought back to their family compound after the husband's death, and could reside in his house which would pass to them.

[135] He also told me that as a young man his mother, who was related to G and came from the same village, had said to him that E and G had been divorced. He said G used to visit his mother but thought at the time that G was not living in the compound.

[136] The final family witness was O.  He is a cousin and stays with K when visiting this country.  He was not present in Onitsha in 2004, but like other family members heard of the dispute over the funeral arrangements.  Any information about other events he had obtained indirectly from various relatives.

Conclusions

[137] I have to reach my conclusions on the balance of probability.

[138] The evidence at times has been difficult and contradictory.

[139] I accept that at the time it was an oral culture, important information was not recorded in writing but passed between the extended family members.

[140] I accept the evidence that if there is to be a marriage, or even a divorce, there would be discussions and agreements made between the members of the two families concerned.

[141] I have also accepted that there was a valid marriage by custom in law between E and G in about 1952, and that there were three children of the marriage.  The son has long since disappeared.

[142] I accept that if a divorce is to occur there are three necessary steps.  The husband has to tell and convince his kinsmen of his wish.  His kinsmen must seek a meeting or meetings with the wife's kinsmen to agree that a divorce is to take place, and that the bride price has to be paid and accepted.  On acceptance of the bride price the marriage is terminated, there is a divorce.  The fact of the divorce would be public knowledge within the two extended families.

[143] I accept that on occasions by agreement the return of the pride price could be waived, but it was a rare occurrence.

[144] I accept that normally upon a divorce, or during the negotiations, the wife would be returned to her own family compound, but that any children would be retained in the husband's family compound to be cared for by members of his family.

[145] Dr Ichongiri recognised that some of the old traditions are and have been breaking down.  He recognised that senior sympathetic members of the husband's family may permit a divorced wife, particularly with young children, to live in the husband's family compound; and that this may well have occurred during the Biafra War.  He acknowledged that older children could bring their divorced mother back to their family compound to live; that if the divorced husband was living abroad and objected to her return it would be difficult to enforce her eviction from the compound.

[146] He said that it was of considerable significance that E did not embrace G at the Ozo title taking ceremony in 1990, although he embraced his son and C.  I accept that evidence.

[147] I asked him about lengthy separations between man and wife and whether such things were acceptable or known within the Igbo culture.  He said "No".  If there were difficulties within a marriage which could not be resolved by mediation or divorce would be negotiated, that lengthy separations without divorce would not occur.  I accept that evidence.

[148] I note also what Dr Ichongiri said about the words used at the event following the Requiem Mass, and what An said in reply.  Both have value.  I do not need to decide which point of view is decisive.

[149] Likewise, I do not need to decide what brother T meant in 1974 by the word ‘bachelor'.  Had he been alive no doubt he would have been asked.

[150] The events in Onitsha in February 2004 in my view are significant.

[151] G was living in the compound in E's property under which he was to be buried.

[152] Her daughters both maintained that there had not been a divorce between her and their father, and as his wife she was entitled to, and had obligations to fulfil as his widow, and should be seen to sit upon the mat.

[153] The family elders wanted her to leave the compound during the funeral ceremonies.  The daughters refused.

[154] There was a significant row which could not be resolved, and the formal ceremony was cancelled.

[155] All the parties accept these facts, and that there was a family row as a result.  I also accept this.

[156] The implication of this row was that the extended family believed that there had been a divorce years before.  The daughters may not have known of this, and were in any event protective of their mother's status.  Had the extended family thought she was the wife of E then there is no reason to doubt that she would have been allowed to perform her wifely duties.

[157] The formal funeral ceremonies took place in 2009.  By that stage E had been dead for more than 5 years, and no doubt the extended family wished to ensure he was formally buried.  Some form of rapprochement had been reached between the daughters and the family.  I accept that G was present in the house and sat upon the mat.  I am not sure what, if any other duty she fulfilled, whether she was required to do more that sit on the mat.  The DVDs were not helpful on this count.

[158] This case has been dogged by distance in time, memories failing, very little direct evidence of events which occurred between 60 and 40 years ago, and much hearsay.  I recognise that the extended family has become divided.

[159] I also recognise that this application for a declaration by G has come very late in the day.  I have not been given an explanation as to why it took so long to be made.  The application even came a month after the date set by Master Teverson of the Chancery Division in his Order dated 21 October 2011, by which time if  did not make a claim for a share of E's estate the Administrators were to distribute her entitlement as the surviving spouse of E.  Again there is no explanation for that delay.  G had been represented by a solicitor at the hearing in the Chancery Division and that date would have been known.

[160] I have come to the view on the evidence before me that there were difficulties in the marriage sometime before the death of Chief J (E's father), that he opposed any divorce, that he allowed G and the children to reside in the family compound after the house in Jos was sold, and would not allow her to return to her family.  He died in or about 1960.

[161] There is no evidence of G leaving the compound or living elsewhere, except when she lived with C in Lagos between 1987 and 1995.  There is evidence that she returned to live in the compound and E's house which had been recently completed in 1995, and that she has lived there ever since.  There is evidence that E objected to this at the end of 1997, but did not enforce her removal.

[162] There are affidavits from P and E saying that he was divorced, no details were given as to the date or the circumstances. The contents of the affidavits are challenged.

[163] The expert was very clear that long-term separation bet

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