Abusatu Balogun & Anor V. Amodu Ayinla Balogun & Ors (1935)
LawGlobal Hub Judgment Report – West African Court of Appeal
Testamentary Disposition—Consistent use of words “Native Lawfromand Custom “—No specific devise of allowance to eldest sonJudgmentas Head of Family–Same paid by trustees—Interpretation ofofWill—Costs out of estate.
Held (Aitken, J. dissenting): There was implied authority that
allowance be paid; appeal dismissed, except as to costs. Held unanimously: On merits appellants allowed costs in Court below out of estate: both parties allowed costs in Appeal Court as between solicitor and client to be paid out of estate.
The facts of this case are sufficiently set out in the judgments.
A. L. Johnson for Appellants.
R.TrV ing (J. Martin with him) for Respondents.
The following judgments were delivered:—
This case arises out of the Will of a wealthy Lugosian trader named Alli Batogun. The Will itself is dated the 27th August, 1932: there was a codicil thereto dated the 17th of June, 1933, which does not affect the questions argued before us; the testator died at Lagos on the 13th of July, J933, and his Will was duly proved on the 24th of October of that year.
The Will itself—I need not refer to the codicil—is an elaborate and exhaustive document., drawn up in accordance with the provisions of English law but making frequent reference to ” native law and custom.” I quite agree that full effect must be (given to all the testator’s expressed wishes in regard to such ” native law and custom “, but I am also very clearly and firmly of opinion that his wishes in regard to any subject dealt with in. his Will can only be ascertained from the words he has used therein. No omissions can he supplied, and no rectifications can be made
We are here to say what the testator has done, not what he ought to have done; and I feel very strongly that we should offer a firm resistance to all arguments that appeal to our emotions rather than to our reason. Now I have already described the testator’s Will as an elaborate and exhaustive document, but the provisions which have given rise to the questions agitated before us may be set out quite shortly as follows :—
Firstly, the devise of the testator’s house known as No. 35 Victoria Street Lagos and ” all plates, furniture, pictures and ” books ” therein, to the trustees ” during the period of twenty-one
years after the testator’s death or such period as is allowed by ” native law or custom,” in trust for the head of his house according to native law and custom to the intent that such house and furniture etc. should be taken to be one in the aggregate and should remain as the testator’s family house ” with the incidents ” of native law and custom thereto attaching :”
Secondly, the direction that the testator’s eldeSt surviving son—the defendant Busari Balogun—should during his lifetime be the head of the family under native law and custom and should occupy and live in No. 35 Victoria Street :
Thirdly, the direction that all ceremonies, be it of marriage or baptism, should take place in No. 35 Victoria Street :
Fourthly, the direction that all the testator’s wives should be allowed to continue in occupation of the rooms occupied by them in this No. 35 Victoria Street house at his death during widowhood and good behaviour along with their children, with further directions to ensure that any rooms falling vacant should be occupied by ” immediate ” members of the family only ; and
Fifthly, a direction that the trustees should on no account lease out, sell or partition amongst the testator’s children thi,. family house. None of the numerous devises and bequests to be found in the rest of the Will and in the codicil appears to throw any light on the meaning of these five provisions, and the only ‘they provisions of the Will that I need mention are those ,onstituting and finally disposing of what the testator calls his residuary trust fund.
That fund is to be constituted out of all his real and personal–fate not otherwise disposed of, and a considerable number of ;monthly or annual payments to the testator’s children and others are charged thereupon. At the end of twenty years from the 7e stator‘s death certain other lump sum payments are to be made -Cerefrom, and the balance then remaining is to be divided amongst -,He testator’s children or the issue of any deceased children in equal shares per stirpes. When that division takes place it would seem that the testator’s estate should be, to use his own expression,
Having thus set out the provisions of the Will out of which the questions before us arise, I can pass on to the questions themselves. The defendants are the executors and trustees of the Will, and from some date which does not exactly appear but which must have .been shortly after the testator’s death, they began to make Busari Balogun, in his capacity of head of the family, an allowance of £10 a month out of moneys belonging to the testator’s estate in their hands. The plaintiffs, who are daughters of the testator and entitled to a share in the testator’s residuary trust fund as well as to other benefits under his Will, objected to such payments and eventually commenced this action for the purpose, inter alia, of restraining the defendants, in their representative capacity, from continuing such payments. The writ of summons itself was very badly drawn, but I do not think the plaintiffs can be blamed for that, and the learned trial Judge did eventually succeed in getting it amended so that it raised the obvious complementary claim for a refund to the testator’s estate of the payments already made to Busari Balogun.
When the action came on for trial before Butler Lloyd, J. on the 31st of January, 1935, evidence was led on behalf of the plaintiffs to place the testators’s Will before the Court, and to show that at least two sons of the testator, in addition to the plaintiffs themselves, objected to the monthly allowance of £10 which was admittedly being made by the executors to Busari Balogun. At the end of the plaintiffs case Mr. Irving submitted that there was no case for the defendants to answer on the ground that since Busari, as head of the family, was required to live in the family house No. 35 Victoria Street, an allowance for entertainment was implied. It is of some importance to bear this ground of submission in mind, as it shows clearly for what purposes learned counsel then considered that Busari Balogun’s allowance was being paid. The learned trial Judge overruled Mr. Irving’s submission on the ground that as the defence was relying ” upon a custom of ” making payments to the head of the family for the upkeep of a ” family house or other similar purposes,” that custom would have to be proved by evidence. The obvious criticism of this ruling is that Mr. Irving was not then relying on any such custom, but was alleging a very different custom, to wit, one of making an entertainment allowance to the head of the family. It is idle to guess at the reasons which led to this metamorphosis, but it is noteworthy that it occurred.
To prove the custom he alleged, or the custom propounded by the learned trial Judge—T don’t know which—Mr. Irving called the Rev. T. A. Ogunbiyi, Chief Obanikoro who is one of the defendants, and Busari Balogun himself. The evidence each of these gentlemen gave may be summarised quite fairly in his own words as follows :-
” Rev. T. A. Ofprnbiyi.—Clerk in Holy Orders: living at Ikeja. am sixty-eight years of age. I am familiar with Yoruba custom and hay evert evidence as to it before. We have a family house at Ebute Er:
and others. I am the head and manager. My father left no will Abusatu I maintain the family house out of the incomings. If a house is left Balogun as a family house by will I should expect the head of the family to keep & ano. it up out of incomings if any. If none he will apply to the executors. v. If he keeps up the prestige of the family the head will be entitled to Amodu an allowance for maintenance and entertainment. I know of no specific Ayinla instance of this. He will look after the children while minors but .not Balogun out of his own pocket. & ore.
Chief Obanikoro.—One of the executors of Balogun’s estate. He was a friend-–of mine and I often visited him. He was a very wealthy man, did things well and entertained a lot. Had he left no will the eldest son would have succeeded as head of the family and to the liabilities which he would meet from the income of the estate.
Alli Balogun provided for his sons approximately equally. Even if an eldest son, if he had a larger share would not be expected to pay out of his own pocket.
The allowance to Busari was known to me, though I did not actually authorise it. I suggested it wasn’t enough. I discussed the matter with Mr. Carr who agreed with me. No member of the family has complained to me.
By Court.—I myself actually suggested an allowance because 1 thought it necessary for expenses in connection with education and maintenance of children and charity and hospitality.
Balogun was not a chief. Chiefs do not usually .make a will. He was a trader. His son should occupy the same position as his father. Balogun disposed of all of his property. I got something as executor. There were many legacies to friends. I know of no other similar case to this.
Busari Balogun.—Eldest son of Alli Balogun. My father lived entirely according to native law and custom. I have now taken on the duties of the head of the house. I have tried to carry on as he did. I have to entertain strangers with money and food. I am on the committee of the mosque. I also look after the minor children some of whom are poorly provided for. I pay the whole electric light bills and conservancy and a yard boy.
Immediately after my father’s death a family meeting was held and an allowance of £10 was agreed to and later by the executors. No one has ever objected.
By Court.–I am in fact losing money over this. £10 is not enough for everything,.I had no more property left.•e than my brothers.
I did not receive £130 as rent from one of my properties. Alakoro Street was devised to my sons. I drevia cheque for £200 for funeral ceremonies of my father. I and another brother bought my father’s car. All the family were present at the meeting immediately after my father’s death. I presided. Plaintiffs agreed then. I have had the £10 ever since my father’s death. I also got £3 a month and some rents. The rents used to be about £8 a month but are less now.
My father left legacies to various retainers. I only do what my father did. Ladipo is ‘the yard labourer. My father had a boy Oye. Tortuga is a boy under age. He is an apprentice tailor. He had £5 lender the will which is not enough. I had to help Bisiriyu as his savants wouldn’t pay.
His mother had an allowance. Biliaminn is a minor. So is Muyibi, he is an apprentice carpenter. They all have a share or rents. Bolaji has £3 and is a scholar at King’s College. Ganiyu also has a house but I am assisting him as his tenants won’t pay.
There has been a number of marriages and baptisms; the family have not contributed for them.
I am familiar with the will. He made provisions for nearly every body. There is a residuary fund.
By Court.—My father had about £5,000 a year.
My private income is about £100.”
One other witness was called for the defence, namely Sabitiyu Balogun, a daughter of the testator; but her evidence is perfectly valueless on the question of native custom. Upon this evidence the learned Judge held that the executors were justified in making the allowance of £10 a month to Busari Balogun in his capacity of head of the family, and the gist of his judgment appears to be contained in the following passages, which I will quote in full :—
” With regard to the facts of this case, there is little to add to what I said in dealing with Mr. Irving’s submission that no case had been made out for him to answer. From the evidence which has now been made out for the defence I am satisfied :
(1.) That the customary head of a family has duties of an onerous nature in connection with family ceremonies, the maintenance of the family house and of needy members of the family, and hospitality to strangers;
- That lie is entitled to reimburse himself for expenditure in connection with these duties from family resources in his control or failing such resources by contributions from members of the family;
- That in the present case the executors made the allowance complained of to the head of the family for the purpose of reimbursing him for expenditure of this nature;
- That the allowance has been spent in a manner intended.
But the question remains were the executors justified, or were they committing a breach of trust, in taking upon themselves to make this payment? In strict English Law they would not be justified in going outside the actual terms of the Will, at any rate without the sanction of the Court, but the legislature has provided in section 20 of Chapter 3 that in matters relating to testamentary dispositions amongst other things no person shall be deprived of the benefit of any existing custom not being repugnant to natural justice, and has given this Court the right to observe and enforce the observance of such custom.”