The case of Okonkwo v Okagbue (( 9 NWLR (Pt 368) 301)) is one of the significant cases on the validity of customary law in Nigeria. Often times, this particular case is used to explain the repugnacy and public policy test of customary law. It was instituted in the high court of Onitsha, but the matter went up to the Supreme Court of Nigeria in 1994. In this page, I will share with you a summary of the case of Okonkwo v Okagbue and the decision of the court on the legal issues raised.
Summary of the facts of Okonkwo v Okagbue
In Okonkwo v Okagbue, the appellant, as plaintiff brought a representative action on behalf of himself and his four brothers against the respondents, as defendants in the high court of Onitsha. The appellant and four others on behalf of whom he instituted the action were the surviving sons of late Nnanyelugo Nnebuchi Okonkwo of Ogbotu village of Onitsha who died in 1931.
The deceased had two sisters, the 1st and 2nd respondents who survived him. But neither of them had any child by their husband or anyone else. On or about 1968, the 1st and 2nd respondents purportedly married the 3rd respondents for and on behalf of their late brother, without the knowledge and consent of the appellant and his said brothers. Based on thhe purported marriage, the third respondent gave birth to six children who all bore the surname of the late Nnanyeligo Nnebuchi Okonkwo and parade themselves as their children.
The 1st and 2nd respondents also held them out as the children of their late brother. The appellant had repeatedly made demands and representations to the 1st and 2nd respondents to not return the children of the 3rd respondents to the people of late Okagbue and late Obiozo who by native law and custom of Onitsha should be the fathers of the late children, but to no avail.
The appellant claimed as follows:
(1)(a) A declaration that under the Onitsha native law and custom, the 1st and 2nd defendants by themselves cannot marry the 3rd defendant for their late brother, Nnanyelugo Okonkwo, and that the arriage is null and void.
(b) that the 3rd defendant is not the wife of late Nnanyelugo Okonkwo.
(2) an order of the court that all the children of the defendants are not issues of late Nnanyelugo Okonkwo.
(3) a declaration that the children (aforesaid) cannot inherit both the real or personal property of the late late Okonkwo or succeed spiritual seat to any seat temporal or spiritual in ogbotu village, through Nnanyelogu Okonkwo lineage, and or in the alternative, that the children of the aforesaid marriage are the children of Okagbue and Obiozo and belong to Ogbeodogwu and ogboli families according to Onitsha native law and custom.
Judgment of the court in Okonkwo v Okagbue
At the conclusion of the hearing, the leanerd trial judge dismissed the appellant’s (plaintiffs) claim. The appellant appealed to the court of Appeal which affirmed the decision of the trial court. The appellant (plaintiff) further appealed to the supreme court. The supreme court unanimously allowed the appeal. The supreme court held that marriage, as it is commonly known, is a union of a man and a woman. That is to say, between two living persons.
A custom that allows a woman to be married to a deceased man as in the instant case cannot be said to be in good conscience or in accord with public policy and repugnant to natural justice and equity. The court held that to claim further that the children of the the 3rd cdefendant had by other mean or men are children of Okonkwo (deceased) is nothing but an encouragement of promiscuity. Consequently, judgment was given for the appellant.