The Concept of Matrimonial Home Does not Apply to Customary Marriage

When Mrs. Mutiat Bankole- Oki moved into No. 54 Ladipo Labinjo Crescent, Surulere, Lagos, she assumed it was a matrimonial home because she was married to Chief T.A. BankoleOki SAN (deceased) under customary law. But when there was no love lost between the duo, Chief Oki sold the property to Trimskay Nigeria Ltd. The latter has argued that the customary marriage was not enough to make the property a matrimonial home and the Court of Appeal held in favour of this argument. Facts In this appeal, the ownership of No. 54, Ladipo Labinjo Crescent, Surulere, Lagos (“the disputed property”), was being contested. While Trimskay Nigeria Ltd (“the Appellant”) claimed to have bought the disputed property from Chief T.A. Bankole-Oki SAN (deceased), Mrs. M. Bankole-Oki’s (the Respondent’s) husband, the Respondent claimed that the disputed property was a matrimonial home which could not be alienated unilaterally by her husband.

Chief Bankole-Oki married the Respondent under native law and custom. They both settled in the disputed property. Subsequently, he contracted another marriage under the Act to Chief Mrs. Mutorani Oki.

Thirteen years after the celebration of the customary marriage to the Respondent, Chief Bankole-Oki sold the disputed property to the Appellant. Prior to the sale the Appellant alleged that Chief had provided the Respondent and her children with alternative accommodation but they refused to leave the disputed property. This made the Appellant to institute an action to recover the property and claimed mesne profit. In the action, the Respondent brought a counter-claim for the court to declare that the disputed property was a matrimonial home for herself and her children.

The trial court granted her counter-claim and dismissed the Appellant’s action. In giving its judgment, the trial court was persuaded by the fact that the Appellant failed to ensure the property was vacant (often termed “caveat emptor)” before buying same. Furthermore, the trial court, though found no joint ownership between the Respondent and her husband, considered the property as family property which could not be alienated unilaterally by the latter. The Appellant appealed.

At the Court of Appeal, the Appellant wanted the Court to determine the following questions: 1) Whether the presence of the Respondent and her children on the disputed property when it was purchased can defeat the Appellant’s title, 2) Whether the Respondent’s customary marriage changed her status from being a tenant at will upon purchase of the disputed property, 3) whether the Respondent’s customary marriage created a matrimonial home in the disputed property, vesting her children with the right to inherit same even after its transfer, 4) whether the trial court rightly held that Chief Bankole-Oki evinced an intention to create a permanent interest in the property in favour of the Respondent and her children.

On the first issue the Appellant argued that there was no evidence before the trial court showing joint ownership between Chief Bankole-Oki and the Respondent. While relying on the case of UDE v NWARA, the Appellant maintained that as a purchaser of the property, it stepped into Chief Bankole-Oki’s shoes who owned the property personally. Going further, the Appellant submitted that marriage under customary law did not lead to a creation of matrimonial property as held by the trial court. This submission was supported with the cases of OLOKO v GIWA, AMADI v NWOSU, and NWANYA v NWANYA.

In response, the Respondent submitted that the existence of the customary marriage and another legal marriage was illegal. She argued that customary marriage was statutorily recognised and enforceable if not repugnant to natural justice and decency. Further argued was that the concept of a matrimonial home under native law and custom is accepted as long as it promotes ties which are essential for the growth of the children unlike a polygamous union.

On the issue of the Respondent’s status as a tenant at will, the Respondent submitted from the findings of the trial court that her status as wife to Chief Bankole-Oki had not changed. The latter had not also denied his children but maintained that the Respondent was their mother. This was the basis upon which the trial court held that Respondent and her children were supposed to have shelter, and that the Respondent was not a licensee or tenant at will. In response, the Appellant argued that the Respondent’s privilege to remain in the disputed property was withdrawn after its sale. After the sale, the Appellant classified the Respondent as a tenant at will.

As to whether the customary marriage made the disputed property a matrimonial home with right in the Respondent’s children to inherit same, the Appellant argued otherwise on the basis that the property was already vested in the Appellant by virtue of a sale agreement. This argument was supported with the case of OLOKO v BURANMOH GIWA. The Respondent’s response to this argument was that the fact of her marriage coupled with providing accommodation for her and her children, made her to conclude that she would live with her children for the rest of her life on the disputed property and same would be inherited by her children.

On the question of Chief Bankole-Oki evincing an intention to permanently vest the disputed property in the Respondent and her children, the Appellant argued that the evidence on record showed that Chief purchased the property in his name and for his benefit alone. In reply, the Respondent argued that her husband did not possess the unfettered right to transfer the disputed property which was family property.

After examining the trial court’s judgment, the court refused to align with the position that the disputed property was family property because the Respondent and her children lived there. The trial court had earlier held that the head of a family could not alienate family land alone because it was held in trust for other members of the family. However, in holding to the contrary, the court was influenced by the provisions of section 36 (1) and (2) of the Land Use Act which provides that a person occupying real property does not necessarily assert title or possession to it. Possession, according to the Act, entails the intention to defend such possession against the world except the true owner. Flowing from this statutory position, the court held that the fact that the Respondent and her children lived in the disputed property did not elevate same to the status of a family property.

In determining whether the Respondent was indeed a licensee, the court considered the definition of a licensee under the Blacks Law Dictionary. In that dictionary, it is defined as one who has permission to use another’s premises for his and not the occupiers benefit. According to the court, this definition aptly described the Respondent who was permitted into the disputed property by virtue of the customary marriage. Having failed to establish joint ownership, title, or a tenancy agreement on the disputed property followed with consideration, the court held the Respondent to be a licensee.

The court further held that customary law marriage was a matter of fact to be proved by evidence. According to the court, the Respondent had the burden to establish that by virtue of the customary marriage with Chief Bankole-Oki, an irreversible interest in the disputed property had been created. The Respondent was found to have not established this fact.

In resolving the last question before the court, the court held that if the Respondent and her children claimed an equitable interest to the disputed property, it had to be established by a document; else, such claim would fail. This decision was supported with the case of COKER v OGUNYE.

In the end, the court set aside the trial court’s decision which included the order that the Respondent remain in possession of the disputed property.

In this judgment, it is instructive to note that while the court held that the Respondent had not sufficiently proved the disputed property as family property, the court did not give the indices for determining what constitutes family property. Was it the absence of joint ownership? Or was it the fact that the Respondent’s marriage was a customary marriage and not a legal marriage? Counsel: For the Appellant: Dr. Bamire, T. Odutola, A. B. Munirudeen, A. Bamire (Miss) For AND For the Respondent King Wilson Reported by Modupe O. Otoide; Aluko & Oyebode, Lagos.