Cyprain Peter Obusez & Anor. V. Mrs. Sylvia Teckia Obusez & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C

The action giving rise to this appeal was filed at the Ikeja Judicial Division of the High Court of Lagos State on or about the 24/5/91. The plaintiffs are the respondents in this appeal and the defendants, the appellants herein. The reliefs endorsed in the writ of summons and repeated in the statement of claims are:

(i) A declaration that the 1st plaintiff and her five children are the only persons entitled to the estate of the late Cornelius Paul Obusez;

(ii) An order that grant of Letters of Administration in solemn form for the administration of the said estate be issued to Mrs. Silva Teckia Obusez and Ademola Giwa Esq. The 1st defendant/respondent filed a 27 paragraph statement of defence and counter-claim.

The 1st defendant/respondent counterclaimed the following reliefs:

1. A declaration that the defendants are the only persons entitled to administer the estate of the late Cornelius Paul Obusez.
2. An order that a grant of Letter of Administration in solemn form for the administration of the said estate be issued to defendants herein.

Only the 1st plaintiff/respondent testified in support of the plaintiffs’ case. The 1st defendant/appellant and two other witnesses testified in support of the defence and counter-claim. After the address of counsel for the parties, the learned trial Judge R. A. Omotoso, J. delivered judgment on the 17/3/93. In the concluding paragraph of the judgment the learned trial Judge held:

“Under Nigeria’s Law of succession touching on succession to the estate of Nigerians who contract marriages under the Marriage Act, the plaintiff and her children are the only persons entitled to the estate of their husband and father. The 1st plaintiff is certainly not a chattel under that law. Further, as beneficiaries of that estate, the 1st plaintiff and children are entitled to a grant of Letters of Administration to administer the estate but because all the children are minor it is lawful and proper that the 2nd plaintiff be appointed a co-administrator with the plaintiff. Accordingly, I make a declaration that the plaintiff and her children are the only persons entitled to the estate of the late Cornelius Obusez. I further order that a grant of Letters of Administration in solemn form for the administration of the said estate be issued to the 1st and 2nd plaintiffs, Mrs. Sylvia Teckia Obusez and Ademola Giwa Esq.

In the event, the counter-claim of the defendants fails and is accordingly dismissed.”

Aggrieved by the foregoing decision, the appellants herein appealed to the court below. In its judgment on the 7/6/2001 the court below dismissed the appeal. The concluding part of the judgment states, in substance, the reasons for the dismissal. The court per Oguntade, JCA (as he then was) stated thus:

“It is not the law that the surviving widow of a deceased person is automatically entitled to the grant of Letters of Administration in respect of the estate of the interstate. See Okon v. Administrator-General, Cross River State (1992) 6 NWLR (Pt. 248) 473. The court has a discretion in the matter. It is a Correct statement of the law that a widow who has been guilty of moral misconduct may be passed over. A widow who since her husband’s death has led an immoral life may also be passed over.

Although there was evidence from the defendant that the 1st plaintiff had conducted herself in a manner considered unacceptable, the trial court did not consider the unchallenged evidence. I have considered the evidence. At the highest, it shows the 1st plaintiff as insensitive and may be unwilling to the rival claims of the larger family of the intestate to share in the intestate’s properties. But I do not see that the conduct or misconduct ascribed to her was sufficiently grave to lead to the conclusion that she was unfit to administer the estate of the intestate. The lower court however should have considered the evidence and make a finding of fact thereon.

In the final conclusion, this appeal fails. It is dismissed. I affirm the judgment of the lower court given on the 17/3/93 … ”

Still dissatisfied the appellants have come on further appeal to this court. The parties have, through their counsel filed and exchanged their briefs of argument. The appellant’s brief dated and filed on the 1/6/04 was prepared by A. J. Owonikoko. The respondents brief dated 7th of March 2006 was prepared by E. O. Akpata-Etomi (Mrs).

In the appellants’ brief of argument Mr. Owonikoko formulated the following three issues for the determination of this appeal.