Mrs. Adamo Ajibaiye V. Risika T Ajibaiye & Ors (2007)

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TIJJANI ABDULLAHI, J. C. A

By originating summons filed by the Plaintiffs who are Respondents in this appeal the following two questions were sought to be determined as follows:

“1. Whether the documents dated 30th September, 2002 purporting to be the last WILL of Alhaji Disu Ajibaiye is valid having regard to the Wills Law of Kwara State.

2. Whether the Late Alhaji Disu Ajibaiye being a Moslem and Governed by Moslem Personal Law could make the document dated 30th September, 2002 purporting it to be a Will under English Law having regards to the Wills Law of Kwara State.”

Based on the questions stated (supra) the Plaintiffs now Respondents claimed the following reliefs stated hereunder:

“1. A DECLARATION that the document dated 30th September, 2002 purporting to be the Last Will of Alhaji Disu Ajibaiye is invalid null and void and of no effect whatsoever.

2. A DECLARATION that the document dated 30th September, 2002 purporting to be the Last Will of Alhaji Disu Ajibaiye is invalid being contrary to Islamic Laws applicable to the deceased who was a Moslem.
3. A DECLARATION that the Estate of the Late Alhaji Disu Ajibaiye is liable to be distributed to his children, dependants and other likely beneficiaries under Islamic Laws and injunction.
4. AN ORDER setting aside and nullifying the purported WILL dated 30th September, 2002 as being null and void and of no effect whatsoever.
5. AN ORDER revoking the probate that may have been granted to the defendants consequent upon the purported WILL.
6. AN ORDER setting aside and nullifying all actions steps and things purported to have been taken or done by the defendants or anyone of them consequent upon the purported WILL in respect of the Estate of late Alhaji Disu Ajibaiye.
7. AN ORDER compelling the defendants jointly and/or severally to render accounts of monies taken from the Bank Account of the Late Alhaji Disu Ajibaiye either at Union Bank PLC Muritala Mohammed Road Branch, Ilorin or at Union Bank PLC” Ita – Balogun Branch, Lagos.
8. AN ORDER prohibiting the defendants, their agents, privies or persons acting on their instruction from further dealing with the estate of the Late Alhaji Disu Ajibaiye in any way whatsoever whether as executors or in any other capacity whatsoever. ”

The Original summons was supported by a 21 paragraphed affidavit deposed to by one Anota Ajibaiye, the 3rd Respondent in this appeal. The affidavit was deposed and sworn to on the 14th day of June, 2004. Attached to this affidavit was Exhibit A, a copy of the purported Will; a further affidavit in support of the summons deposed to by Olayemi Taiwo, a litigation clerk in the chambers of the plaintiffs’ counsel deposed and sworn to on the 26th day of November, 2004. Attached to this affidavit was the whole of Exhibit A, including page 6 which was inadvertently not included; a reply to the 3rd defendant’s counter affidavit, deposed and sworn to by Anota Ajibaiye on the 2nd day of December, 2004 the 3rd plaintiff at the lower court. Other affidavits were replies to counter affidavits of 1st and 2nd defendants respectively.

On the other hand, the Respondent filed a counter-affidavit deposed and sworn to by P. O. Onyekwelu (Mrs.) a counsel in the chambers of the Respondents’ counsel on the 5th day of October, 2004 and another further counter affidavit deposed and sworn to by the 1st Respondent on 29th Day of November, 2004. Needless to say both parties relied on the averments of the supporting affidavits as well the counter-affidavits. I will make reference to the relevant averments in the course of writing this judgment as and when it is appropriate.

The facts leading to this appeal are that: – The first to fifth respondents were the plaintiffs at the trial court. They are the children of Late Alhaji Disu Ajibaiye who died on 29th of January, 2004 at the age of 90 years. The deceased had three wives and 21 children. He also lived and died as a Muslim. The deceased had properties in Ilorin, Lagos and Ajase-Ipo. He was from Ajase-Ipo in Kwara State. At the time of his death, he was resident in Ilorin and he died in Ilorin but was buried at Ajase-Ipo.

The 3rd defendant (now the sole appellant) was the last and youngest wife of the deceased. The deceased purportedly made a WILL, which only the 3rd defendant (appellant) had information about at the time of his death. The deceased being a Moslem and who never renounced his faith was a person who was subject to Islamic law immediately before his death.

He never renounced his faith even up till the time of his death.

The deceased was purported to have made a WILL dated 30th September, 2002 under the Wills Act of 1837 of England. The said WILL was contrary to the Wills Law of Kwara State and the plaintiffs challenged it at the High Court by Originating Summons in which two questions of law were posed for determination at the trial as stated (supra).

The plaintiffs had to challenge the validity of the purported WILL when they found that it was not made according to Islamic injunction under which their father was obliged to make a WILL.

The plaintiffs contended at the trial court inter-alia, which since there is a local legislation on the issue of making of a WILL for persons subject to the laws of Kwara State that is, WILLS LAW Cap 168 Laws of Kwara State, the deceased could not and should not have made a WILL under the Wills Act of 1837 of England – a statute of General Application which had been abolished in Kwara State. And after listening to the addresses of counsel for the parties the learned trial judge held thus:

“The Will dated 30th September, 2002 purporting to be the Will of a Muslim Alhaji Disu Ajibaiye governed of Muslim personal law disposing by will all his property in accordance with the Wills Act 1837 of England having regards to S. 4(1) (sic) the Wills Law of Kwara State is invalid null and void. Consequently, all the plaintiffs 8 reliefs are hereby granted. ”