The High Court of Lagos State, sitting at Ikeja, has delivered a landmark judgment on the intersection of statutory marriage, customary marriage, separation without divorce, and the right of succession, holding that a marriage contracted under the Marriage Act subsists until death despite the parties living apart for 35 years, that no customary marriage can be validly contracted while a statutory marriage is still subsisting, that living apart for decades does not equate to divorce where no divorce proceedings have been instituted, and that a woman who lived with the deceased, bore his children, and cared for him during his illness is, in the eyes of the law, “at best the deceased doctor’s mistress and mother of his daughter” with no right to inherit his estate.
The judgment was delivered on Tuesday, June 17, 2026, by Honourable Justice Oluwatoyin Atinuke Odusanya of Court 50, Ikeja Judicial Division, in Suit No. ID/3364LM/21, between Mrs Adenike Oluyemisi Ajayi and five others (as claimants) and Ms Helen Davies and Tomisin Ajayi (as defendants).
The Facts
Dr Tosin Ajayi, a medical doctor who co-directed First Foundation Medical Engineering Company Limited, died intestate in Lagos State on April 26, 2020.
The 1st Claimant, Mrs Adenike Oluyemisi Ajayi, claimed to be his surviving spouse, stating that they were married under the Marriage Act. The 2nd to 6th Claimants, Tomi Deru (nee Ajayi), Olumide Ajayi, Omolade Soetan (nee Ajayi), Mayowa Okeowo (nee Ajayi), and Bisola Ajayi, are the issues of that marriage.
The 1st Defendant, Ms Helen Davies, claimed that she was also married to the deceased under Kalabari customary law and that she had lived with the deceased as a couple for approximately 25 years, during which period they had three children, one of whom survived, the 2nd Defendant, Tomisin Ajayi.
The Competing Claims
The claimants sought declarations that the 1st Claimant was entitled to the personal chattels absolutely and one-third of the estate; that the claimants and the 2nd Defendant were entitled to apply for and obtain Letters of Administration; that the 1st Defendant was not entitled to any share in the estate; and a perpetual injunction restraining the 1st Defendant from interfering in the management of the estate.
The claimants’ case was that the 1st Claimant was the only surviving spouse, that the 2nd to 6th Claimants were the children of the marriage, that the deceased died intestate, and that since his death, the 1st Defendant had been “meddling in the affairs of the Estate” without justifiable reason, selling several properties and attempting to sell others.
The defendants’ case was that the 1st Claimant was “no more than an estranged spouse” as the parties had been separated for about 35 years before the deceased’s death. The defence stated that the deceased expressed his intention of marrying the 1st Defendant’s mother and thereafter travelled to Port Harcourt to see her, that the deceased carried out all requisite demands under Kalabari custom upon acceptance of his proposal, and that the 1st Defendant lived with the deceased as a couple for 25 years.
The defendants further stated that a search was conducted as to the legitimacy of the 1st Claimant’s marriage which revealed that the marriage certificate in question did not exist in the records of marriages or the archives.
The Key Legal Issues
The case turned on several interconnected legal questions: whether the statutory marriage between the 1st Claimant and the deceased subsisted at the time of death despite 35 years of separation; whether the alleged Kalabari customary marriage between the 1st Defendant and the deceased was valid in law; and whether laches and acquiescence barred the 1st Claimant’s claims.
“Marriage Is Not Dissolved by Effluxion of Time”
The court held that the marriage between the 1st Claimant and the deceased under the Marriage Act subsisted until his death, despite their alleged separation for approximately 35 years. No divorce proceedings were ever instituted by either party.
The court cited the principle that “a marriage whether statutory or customary is not dissolved by effluxion of time,” and held that “living apart for 35 years does not equate to divorce where no divorce proceedings had been instituted.”
The court further found that “there is no iota of evidence anywhere including the controversial affidavit that the deceased learned Senior Advocate made effort or attempted to dissolve the marriage between him and the appellant or that there was any meeting held between both families in connection with the refund of any dowry.”
This finding establishes an important principle: however long married parties may live apart, however complete their separation may appear to the outside world, and however fully one or both parties may have moved on to new relationships, the marriage remains legally subsisting unless and until it is dissolved through the formal legal process prescribed by law. Time alone does not end a marriage.
The Kalabari Customary Marriage: Null and Void
The court held that the purported Kalabari customary marriage between the 1st Defendant and the deceased was null and void because the deceased was already married to the 1st Claimant under the Marriage Act at the time the customary marriage was allegedly contracted.
The court relied on Section 33(1) of the Marriage Act, which provides that no marriage in Nigeria shall be valid where either of the parties at the time of celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had. The court cited Nola & Ors v. Graham-Douglas & Anor (2019) LPELR-48285(CA), where the Court of Appeal held that the provision “gives due respect and credence to a preexisting customary marriage” and that “it provides no dichotomy between a marriage under the Act and under Customary Law.”
The court also relied on Section 35 of the Marriage Act, which provides that any person who is married under the Act, or whose marriage is declared by the Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law.
The court cited the case of Nola & Ors v. Graham-Douglas, where Justice Akeju JCA held: “The union in marriage between the Appellant and her deceased husband was a marriage or union contracted under the Marriage Act, which, till death do us part, does not permit the parties to it, to contract any other marriage, whether Statutory or under the Native Law and custom, as the respondent purportedly did. Such subsequent marriage is of course, null and void.”
Applying these authorities, the court found that since Dr Ajayi was already married to the 1st Claimant under the Marriage Act, any subsequent marriage, whether statutory or customary, was null and void. The purported Kalabari customary marriage was “a farce” and the trial court in the cited authority “rightly declared it to be a nullity.”
The 1st Defendant Was Still Married to Mr Davies
The court made an additional finding that further undermined the validity of the Kalabari customary marriage. The evidence showed that the 1st Defendant’s own mother (DW1) claimed that the Kalabari customary marriage between the 1st Defendant and the deceased took place in 1996. However, the content of Exhibit C7 showed that the dissolution of the marriage between the 1st Defendant and her previous husband, Jimmy Tuoyo Davies, only became absolute in January 1997.
The court held that since the decree nisi was pronounced on May 13, 1996, and only became absolute in January 1997, “technically it could be said that the 1st Defendant was still married to Mr Davies when she purported to have a relationship with Dr Ajayi and allegedly entered into a Kalabari customary marriage if at all.”
This meant that both parties to the purported Kalabari customary marriage were legally married to other people at the time the customary marriage allegedly took place: Dr Ajayi was married to the 1st Claimant under the Marriage Act, and Helen Davies was still legally married to Jimmy Tuoyo Davies. The customary marriage was doubly void.
Laches and Acquiescence: Not Applicable
The court rejected the defendants’ argument that the 1st Claimant’s 35-year silence and acquiescence in the deceased’s relationship with the 1st Defendant barred her claims. The court found that “the doctrine of laches, acquiescence and standing by is found not to be applicable in this case.”
The reasoning is that a statutory marriage creates legal rights that are not extinguished by the passage of time or by the conduct of either party in allowing a de facto separation to continue. The 1st Claimant’s failure to assert her marital rights during the deceased’s lifetime did not operate to extinguish those rights upon his death, because the marriage itself was never dissolved.
“At Best the Deceased Doctor’s Mistress”
The court’s characterisation of the relationship between the 1st Defendant and the deceased was direct: “The relationship of the 1st Defendant and Dr Tosin Ajayi deceased can only at best be described as the deceased doctor’s mistress and mother of his daughter. While both of them during his lifetime could be described as cohabitants or undocumented partners.”
The court found that “the 1st Defendant does not qualify as a surviving wife entitled to participate with the 2nd to 5th Claimants and the 2nd Defendant in the administration of the estate of late Dr Tosin Ajayi.”
The evidence showed that the deceased lived with the 1st Defendant for several years, took care of him when he was ill, and had children for him, “but never actually married him” in a manner recognised by law.
The Orders
The court found in favour of the claimants and made the following declarations and orders:
First, that the 1st Claimant is entitled to the personal chattels absolutely and one-third of the Estate of Dr Tosin Ajayi who died intestate in Lagos State on April 26, 2020.
Second, that the Claimants and the 2nd Defendant are entitled to apply and obtain Letters of Administration of the Estate.
Third, that the 1st Defendant is not entitled to any share in the personal chattels and residuary Estate.
Fourth, an order directing the 1st Claimant to take the personal chattels absolutely and one-third of the Estate.
Fifth, an order directing the 2nd, 3rd, 4th, 5th, and 6th Claimants and the 2nd Defendant to take an equal share of the remaining two-thirds of the Estate.
Sixth, a perpetual injunction restraining the 1st Defendant whether by herself, privies, and servants from interfering in the management of the Estate in any manner whatsoever and howsoever.
The Significance for the 2nd Defendant
Notably, while the court excluded the 1st Defendant (Helen Davies) from any share of the estate and characterised her as the deceased’s “mistress,” it included the 2nd Defendant (Tomisin Ajayi), who is the surviving child of the relationship between the 1st Defendant and the deceased, among those entitled to share in the estate. The 2nd Defendant is entitled to an equal share of the remaining two-thirds of the estate alongside the 2nd to 6th Claimants (the children of the statutory marriage).
This reflects the settled principle that the circumstances of a child’s birth do not determine their inheritance rights under Nigerian law governing intestate succession. A child born outside wedlock has the same right to inherit from a parent who dies intestate as a child born within wedlock.
The Principles Established
The judgment reinforces several important principles of Nigerian family and succession law.
A marriage contracted under the Marriage Act is a “till death do us part” union that subsists until dissolved by a court of competent jurisdiction. No amount of separation, no matter how prolonged, dissolves the marriage. Only formal legal proceedings, specifically a decree of dissolution under the Matrimonial Causes Act, can end a statutory marriage.
A person married under the Marriage Act cannot contract a valid customary marriage during the subsistence of the statutory marriage. Any such customary marriage is null and void ab initio.
A woman who lives with a man, bears his children, and cares for him during illness but is not validly married to him has no right of succession under the Marriage Act upon his death. However long the cohabitation and however genuine the relationship, the law does not confer spousal inheritance rights on a person who is not a legally recognised spouse.
The children of such a relationship, however, retain their inheritance rights and are entitled to share in the estate alongside children of the subsisting statutory marriage.
JUDGEMENT AJAYI V DAVIES TheNigeriaLawyere
Representation
The claimants were represented by Afeez Saliu with Azeez Isiaka. The defendants were represented by A.B. Ariyibi with C.I. Okafor.
The judgment was delivered on Tuesday, June 17, 2026, by Honourable Justice Oluwatoyin Atinuke Odusanya, High Court of Lagos State, Ikeja Judicial Division, Court 50.
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