CASE TITLE: BRIGGS & ORS v. BRIGGS & ORS (2026) LPELR-84472(CA)
JUDGMENT DATE: 15TH JULY 2026
JUSTICES: MUHAMMAD IBRAHIM SIRAJO, JCA
ISHAQ MOHAMMED SANI, JCA
ELEOJO ENENCHE, JCA
DIVISION: PORT HARCOURT
PRACTICE AREA: FAMILY LAW
FACTS:
This appeal borders on the proof of validity of a customary marriage.
By a Writ of Summons the 1st Respondent, as Claimant, brought an action against the 2nd and 3rd Respondents, as 1st and 2nd Defendants, before the High Court of Rivers State, Port Harcourt Judicial Division (the lower Court), Coram: A. Enebeli, J., in Suit No.: PHC/805/2001, for the distribution of the Estate of Late Chief Wenike Opurum Briggs, who died intestate in 1987, amongst others, seeking declaratory reliefs, injunction, and orders of court.
The 1st Defendant, now 2nd Respondent, filed his Statement of Defence alongside a Counterclaim also seeking declarations and orders of court. The 2nd Defendant, now 3rd Respondent, with the leave of Court also filed its Statement of Defence.
The initial suit was between the 1st Respondent, as Claimant, and the 2nd and 3rd Respondents, as Defendants. However, upon an application for joinder by the Appellants, as 2nd set of Defendants, which was granted by the lower Court, the Appellants filed their Statement of Defence alongside their Counterclaim, also seeking declaratory reliefs and orders of court. Upon their application for joinder, which was granted by the lower Court, the 4th-8th Respondents, as 3rd set of Defendants filed their Statement of Defence alongside their Counterclaim, also seeking declaratory reliefs and orders of court.
The Claimant filed several processes in response to the processes filed by the 1st, 2nd and 3rd sets of Defendants. Upon consideration of the action before it, the lower Court entered judgment by way of distributing the estate.
The Appellants being dissatisfied with parts of the decision of the High Court, filed this Appeal at the Court of Appeal.
ISSUES FOR DETERMINATION:
The Court determined the appeal on the following issues:
1. Whether the learned trial Judge was right in his evaluation of the evidence and applicable law in holding that the Appellants were not proved to be the customary wife and children of the late Chief Wenike Opurum Briggs entitled to equal inheritance rights in the estate.
2. Whether the distribution of the estate by the learned trial Judge was fair, equitable, and consistent with the justice of the case.
COUNSEL SUBMISSIONS:
The Appellants submitted that they discharged the burden of proof placed on them under Sections 133 and 136 of the Evidence Act, 2011, by leading credible, cogent, and uncontroverted evidence establishing that the 1st Appellant was lawfully married to the deceased under native law and custom and that the 2nd-6th Appellants were children of the deceased. The Appellants maintained that the evidence of the 1st Appellant, as D.W.2, together with Exhibits C and F, remained unshaken under cross-examination and ought to have been accorded probative value by the lower Court. In support of these submissions, the Appellants relied on Interdrill vs. UBA (2017) 13 NWLR (Pt. 1581) 52 at 68 paras. E-F; Olaniyan vs. Oyewole (2011) 14 NWLR (Pt. 1208) 445 at 488-489 and Chabasaya vs. Anwasi (2010) 10 NWLR (Pt. 1201) 163 at 178 paras. H-A, amongst others.
The Appellants further maintained that the lower Court reached a perverse conclusion by holding that the customary marriage between the deceased and the 1st Appellant was void during the subsistence of the deceased’s statutory marriage. They submitted that only a party to the statutory marriage could challenge the validity of the subsequent customary marriage and that no such action was commenced during the lifetime of the deceased’s statutory wife. The Appellants, therefore, urged the Court to set aside the findings of the lower Court as perverse and unsupported by the evidence on record
On his first issue, the 1st Respondent argued that the learned trial Judge was right on the preponderance of credible evidence in holding that the Appellants are not the wife and children of the late Chief Wenike Opurum Briggs. He submitted that a valid customary marriage must satisfy the essential requirements of capacity, payment of bride price, and proper customary ceremony, including the handing over of the bride, which the Appellants failed to prove.
The 1st Respondent further submitted that the burden of proof rested squarely on the Appellants, who asserted in their counterclaim that they were the customary wife and children of the deceased. He maintained that the law is settled that he who asserts must prove. The 1st Respondent further submitted that the Appellants failed to plead and prove the specific customary law of marriage they relied upon, particularly the Ogba customary law, as required by law. He maintained that customary law is a question of fact that must be strictly proved by credible witnesses conversant with its existence, relying on Adeyemi vs. Omobhude (1993) 2 NWLR (Pt. 311) 291 at 300; Lawal-Osula vs. Lawal-Osula (1993) 2 NWLR (Pt. 274) 158 at 170; and Abisogun vs. Abisogun & Ors (1963) ANLR (Reprint) 235 at 239, amongst others.
DECISION/HELD:
The appeal was dismissed. The judgment and orders of the High Court of Rivers State were affirmed.
RATIO:
FAMILY LAW- MARRIAGE UNDER THE ACT: Whether a person who is married under the Marriage Act can contract a valid marriage under native law or custom
“The evidence before the lower Court showed that the deceased was already married under the Marriage Act to Mrs. Agnes Wenike Briggs and that the said marriage subsisted throughout the period during which the 1st Appellant alleged that a customary marriage was contracted between her and the deceased. By virtue of the provisions of the Marriage Act and the settled authorities on the subject, a person married under the Act lacks the legal capacity to contract another valid marriage during the subsistence of that statutory marriage. Any purported customary marriage entered into during the continuance of such statutory marriage is null, void, and incapable of conferring the legal status of husband and wife on the parties. See Section 35 of the Marriage Act, where the law provides as follows:
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; but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.
See also Mgbodu vs. Mgbodu (2018) LPELR-43770(CA) @ 7-9 paras. B and Adekunle & Ors. vs. Ahmad (2025) LPELR-81978(CA) @ 8-15 paras. F.
Consequently, even assuming that the facts relied upon by the 1st Appellant regarding payment of the bride price, cohabitation, and the birth of children were established, such facts could not in law mature into a valid customary marriage while the deceased’s statutory marriage remained subsisting. The strongest such evidence that could be established would be a relationship outside a legally recognisable marriage. It, therefore, follows that the lower Court was right in declining to accord the 1st Appellant the legal status of a customary wife of the deceased. It is pertinent to note at this juncture that the Appellants failure to provide any cogent evidence in proof that the 2nd-6th Appellants are children of the deceased goes to the root of their case and has become unfavorable to their case.” Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
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