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Adeniyi Olowu & Ors. V. Olabowale Aremu Olowu & Anor. (1985) LLJR-SC

Adeniyi Olowu & Ors. V. Olabowale Aremu Olowu & Anor. (1985)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

The parties to these proceedings now on appeal are the issues and beneficiaries of one Adeyinka Ayinde Olowu, whose parents were Yoruba indigenes from Ilesha. He lived apparently from childhood until his death in Benin City.

He, like his late father, had considerable business interests in Benin City and acquired landed properties as any indegene of that City. He married Benin women and, it is clear on the evidence and finding of the trial Judge that, the parties themselves are children born by his Benin wives.

It was pleaded by the 1st defendant and evidence was led that during his lifetime, he applied to the Oba of Benin to be “naturalised” as a Benin indigene which conferred on him the right to acquire absolute title to the considerable landed properties in Benin City as any native of that city. The trial Judge accepted the evidence and found as a fact that he became a Benin indigene by choice with the blessing of the Oba of Benin and apparently, the approval of the then Administration.

The Plaintiffs in the High Court at Benin City, claimed for themselves and other issues of the deceased intestate against the two defendants, who were co-administrators of the estate, the following reliefs in their amended statement of claim:-

“(a) Removal of the aforementioned Defendants as Administrators and Trustees to the Estate of late Adeyinka Ayinde Olowu.

(b) That the purported distribution of the said Estate by the 1st Defendant alone under Benin Native Law and Custom be nullified, the late Adeyinka Ayinde Olowu was until his death a Yoruba by tribe.

(c) That a directive be given that the said Estate be distributed in accordance with the Yoruba Custom of inheritance.

“OR in the Alternative, the Plaintiffs claim is for:

(1) Revocation of the grant of letters of Administration made to the Defendants on 4th day of July 1962 in respect of the Estate of late Adeyinka Ayinde Olowu.

(2) The grant of fresh Letters of Administration to the Plaintiffs.

(3) The Defendants jointly and severally to give an account of the administration of the Estate, of all monies received and expended in respect of the said estate since 4th July, 1962 up to date.”

The trial was on the issues raised in the pleadings filed by the parties. The two defendants, the co-administrators of the estate, each filed a separate statement of defence. 1st defendant was the first or eldest son (and Dawodu), while the 2nd defendant was the second son of the deceased. The two defendants, 3rd P.W. and 2nd Plaintiff, are full blood brothers and sister born by a Benin mother. At the trial, no other issue of their late father or any of his relations, paternal or maternal, testified. The Plaintiffs and 2nd Defendant averred that their late father culturally remained a Yoruba man until his death and, that his estate ought to have been distributed in accordance with Yoruba native law and custom and not according to Benin native law and customs as the 1st Defendant purported to have done. The real issue in the case centered on whether the estate should be distributed according to Benin or Yoruba native law and custom. In other words, the proper personal law of the deceased father.

Paragraphs 24, 26, 27 and 30 of the statement of claim read:-

“24. The Plaintiffs aver that the Estate of the deceased can properly and lawfully be distributed among the children of late Adeyinka A. Olowu in accordance with Yoruba Custom with the senior paternal members of the deceased family presiding.

  1. The Plaintiffs aver that the said purported distribution is most irregular and contrary to both the Yoruba Custom and also the Bini Custom alleged to have been invoked by them.
  2. The Plaintiffs will at the trial produce the purported document of distribution dated 25th February, 1973.
  3. The Plaintiffs aver and will prove at the trial that the Estate of late Adeyinka Ayinde Olowu is governed by Yoruba Custom.

(a) Under a Yoruba custom, the property (real and personal) of the deceased man is divided under the system of ‘IDI-IJI’ (sic) or ‘ORI-OLORI’ under the chairmanship of the Head of the Family (paternal).” The 1st defendant case was that he and 2nd defendant co-administered the estate smoothly together until after the distribution exercise.

He pleaded that it was after the distribution of 25/2/73 that the 2nd defendant, being dissatisfied with his own share of the estate, engineered this action. He further averred that he invited members of the family, with the consent of 2nd defendant, to advise on the distribution of the estate, and that their late father, “Adeyinka Ayinde Olowu became a Bini man in accordance with Bini Custom before his death (and therefore) his estate cannot be distributed in accordance with Yoruba Custom. A fact made abundantly clear in Suits Nos. B/15-20/60 and this shall be founded upon at the hearing of this case,”

The 2nd defendant admitted that the two administrators, that is, himself and his brother, 1st defendant, administered the Estate smoothly until the distribution of the 25th day of February, 1973, which he alleged “was contrary to Ijesha Native Law and Custom and without the consent of the other beneficiaries, except the 1st defendant.” And that in protest, he “walked out of the said meeting.” He averred that his late father had “always applied Ijesha Custom at home.”

The trial Judge received evidence from the parties including the 2nd Plaintiff and her brother, P.W.3, Adekunle Alabi Olowu and the two defendants. Three other witnesses testified on their behalf. The trial Judge did not accept the evidence of 4th P.W., Ayodele Baiye, an Ijebu man and Public Letter Writer, who had resided in Benin City for 33 years. He did not state his qualification as an expert of Yoruba customary law of distribution.

He testified that according to Yoruba Custom generally, on the death of a Yoruba man, the elders of his paternal family would assemble to distribute the estate, at which meeting the most senior paternal member presides. He did not say whether the estate should be distributed either according to “the Idi-Igi” or the “Ori Ojori system” as pleaded by the Plaintiffs in paragraph 30 of the Amended Statement of Claim. No witness was called to give evidence of the particular Ijesha system of distribution pleaded by the Plaintiffs and 2nd defendant.

After a careful review of the evidence and submissions of Counsel, the trial Judge made the following findings of fact:-

“1. Although the reasons for seeking removal of the two administrators were many, but sub subsequentially, the present litigation was sparked off by the distribution of the estate vide Exhibit F and the dissatisfaction that 1st defendant had taken the best of the lot.”

“2. That there was protracted litigation for several years immediately after the death of their father between the Administrators and the paternal relations who claimed the deceased’s property and both defendants co-operated and fought the case to the Supreme Court.”

“3. The 2nd Plaintiff, who alone prosecuted this case, was a minor in 1960 when their father died. She lived with the defendants who paid her fees and maintained her.”

3rd P.W. also was maintained from the Estate while overseas.

  1. “No case of positive misconduct has been proved against the administrators nor was it proved that they committed any act which could justify their removal.”

“5. Although the late A.A. Olowu was a Yoruba man of Ijesha extraction, he resided in Benin City and acquired considerable properties, he naturalised as a Benin of his own volition and hence the distribution was made according to Bini Native law and custom. In his lifetime, the late Olowu applied to the Oba of Bini for naturalisation which was granted and that enabled him to acquire the properties in Benin City.”

“6. Bini native law and custom of distribution was not proved and therefore it was impossible for him (the trial Judge) to make any finding as to whether the distribution in Exhibit F was equitable in the circumstance or not in accordance with the said law.

  1. Everyone of the beneficiaries got something, although not exactly what each wanted.”

“8. The Plaintiffs failed to prove the Yoruba mode of distribution, either Idi Igi or Ori OJori system. Plaintiffs also failed to prove a case for nullification of the distribution.”

“9. The account filed by the Defendants was unsatisfactory because the defendants refused to sign the certificates.” The Court therefore ordered that a fresh account of the administration of the Estate be filed within 6 months from the date of the order.

As against this judgment, the Plaintiffs appealed to the Court of Appeal. The appeal was dismissed on the 7th day of July, 1983 on all the five grounds argued including the omnibus ground. The Plaintiffs have further appealed to this Court on two grounds.

Mr. Lardner, S.A.N., did not attack the findings of fact of the trial Judge nor the decision of the Court below on any issue of fact. The two questions he posed for determination of this Court in the Appellants’ brief are:

“1. Whether the judgment dismissing the Plaintiffs’ claim is not wrong in law, the Court below having held that the relevant Bini Customary law was not proved at the trial

“2. Whether in the absence of an order of Court the distribution of the estate of the intestate by one of the two administrators without the concurrence of the other administrator is valid and binding on the other administrator”

I shall deal first with the second question which in my considered view is completely irrelevant to the issues in the pleadings and should be summarily dismissed. The contention is misconceived both in law and on the facts of this case.

This issue was never raised either in the pleading nor was any evidence adduced at the trial in support of the contention. It was not part of the case of any of the parties, the case of the Plaintiffs was that the “purported distribution was most irregular and contrary to both the Yoruba custom and also the Bini custom alleged to have been invoked “; and further, “that the estate of late Adeyinka Ayinde Olowu was governed by Yoruba custom, under which the properties (real and personal) of the deceased man are divided under the system of “IDI-IJI” (IGI) or “ORI-OJORI” under the chairmanship of the head of the family (paternal) as averred in paragraphs 26 and 30 of the amended statement of claim.

That this is the true position is made clearer in the reliefs sought in paragraph 37 of the aforesaid amended statement of claim, namely (b) and (c), which read:- –

“(b) That the purported distribution of the said estate by the 1st Defendant alone under Bini Native law and custom be nullified, the late Adeyinka Ayinde Olowu was until his death a Yoruba man by tribe.

(c) That a directive be given that the said Estate be distributed in accordance with the Yoruba custom of inheritance.”

The 2nd Plaintiff in her evidence testified as to the cause of action and of the reliefs she was seeking. She said:-

“I am not happy over the affairs of the management of the estate. I do not want both defendants to continue as administrators of the estate. I also want the Court to declare the purported distribution under Bini native law and custom as nugatory and of no effect whatsoever. I want the letters of administration to be revoked. I also want them to give an account of that (sic) management of the estate,”

Later, in her evidence she said:-

“There are 2 customs in the distribution of the estate of a deceased person; one is called “ORI-OJORI”- distribution according to seniority. The 2nd custom is called “IDI-IGI” the property are (sic) distributed according to the number of wives the man has. In either system the paternal relations preside. The custom applies to all property, no matter where they are situated.”

P.W.3, Adekunle Alabi Olowu, another beneficiary and full blood brother of the 2nd Plaintiff and the two defendants, in his own evidence said:-

“My father was a Yorubaman and Yoruba customs were observed in our household until his death. I was not a party to the distribution of the estate of the deceased according to Benin Native Law and custom.”

It must be kept in mind that the witness, like his two brothers and sister Aforesaid, was born by a Benin woman. This witness knew of the cases (suits Nos. B/15-20/1962) which the two defendants successfully fought against his paternal relations in connection with their late father acquired his landed properties in Benin City by virtue of being a naturalised Bini indigene. The 2nd defendant gave evidence and tendered documents in support. In the present proceedings the Plaintiffs and the same 2nd defendant, now say their late father never “naturalised” as a Benin indigene.

From the foregoing it is clear that the issue was really which personal law should be applied in the distribution of the estate. Section 4(2) of the Administration of Estates Law, Cap. 1 Laws of Western Region of Nigeria, 1959 then applicable to Bendel State (now Cap.2 Laws of Bendel State 1976) speaks of “conveyance of real estate devolving on the personal representatives.” No deed of conveyance was pleaded by any of the parties and none was in issue. The properties of the deceased intestate devolved on his issues by operation of law. Section 1(3) of the aforesaid Law clearly excludes matters relating to “distribution, inheritance or succession of any estate where such distribution, inheritance or succession is governed by customary law” The Court is only concerned with issue or issues raised by the parties in their pleadings. The relevant issue is which personal law governed the distribution of the estate of A.A. Olowu, deceased. Was it Benin or Yoruba customary law

The provisions of the Administration of Estate Law are therefore irrelevant. For these reasons, ground 2 fails and is dismissed. The purport of ground one is that the Court below erred in dismissing the appeal and affirming the decision of the trial court, which had dismissed the Plaintiffs’ case, in as much as it found that what constituted Benin customary law of distribution on intestacy was not proved. Put differently, the contention is that the Court should have entered judgment for the Plaintiffs because the 1st defendant failed to prove the constituents of that personal law (Bini customary law) of distribution. But similarly, Yoruba customary law, as postulated by the Plaintiffs, was not proved. The net result is that Plaintiffs failed to prove their case. See Bornu Holding Co. Ltd. v. Bogoco (1971) 1 All N.L.R.324 at p.333 where Lewis, J.S.C., said:-

“A Plaintiff is only entitled to judgment if a trial Judge believes and accepts his evidence and if such evidence supports his case and merely because he rejected the defendants’ evidence did not entitle him to find for the Plaintiff.”

It is my view that both contentions are misconceived, for the onus of proof in either case was on the Plaintiffs who pleaded the facts and relied on them for their case. See Kate Enterprises Limited v. Daewoo Nigeria Ltd. (1985) 2 NWLR 116, pp.127-128; and Vincent I. Bello v. Magnus A. Eweka (1981) 1 S.C. 101 pp. 120-122. In this case, the Plaintiffs failed to lead any evidence in support of either of these two averments and the defence was therefore not obliged to adduce evidence in rebuttal. It is a case of failure of Plaintiffs to prove the averments in paragraphs 26 and 30 of the amended statement of claim supra and a finding in favour of the 1st defendant as pleaded by him in paragraph 16 of his statement of defence.

For sake of emphasis, I reproduce what the learned trial Judge found:-

I have no hesitation in holding that the late A.A. Olowu is of Yoruba extraction – an Ijesha man. I also hold that he resided in Benin City and acquired considerable properties in what is now known as Bendel State. Evidence was led to show that he naturalised as a Bini on his own volition and hence the distribution was made-according to Bini Native Law and Custom.

In effect, their late father renounced his Yoruba cultural heritage and opted for Benin personal law by naturalising as an indigene of Benin City. The trial Judge further found:-

“2nd defendant is lieing that he did not tender “Exhibit Uzzi “3” in “Exhibit “J” and I find as a fact that his father the late A.A Olowu applied to the Oba of Benin for naturalisation which he was granted and that it enabled him to acquire the properties in Benin City. 2nd defendant is estopped from denying that his father naturalised. Strenous efforts were made to disprove that he naturalised. I was neither told nor referred to any law which forbids this. On a careful consideration of the evidence in this case I do not think that the Bini Native Law and custom of distribution of a deceased property was proved and is therefore impossible for me to state whether the distribution in Exhibit “F” is equitable in the circumstances or not in accordance with the said law.”

I have already considered and given reason why the burden of adducing evidence lay on the Plaintiffs to prove why the purported distribution under Benin customary law should be nullified and why the Yoruba customary law should be applied, particularly when the Court had found that the deceased at the time of his death was in the eye of the law a Benin indigene. Okagbue, J.C.A., delivering the lead judgment of the Court below explained what was understood as “naturalisation” in the con as follows:-

“In order to show the Court the procedure whereby a Nigerian who is not a Bini by birth can attain Bini status he referred to page 390 of Exhibit J. He said the defendants did not stop at Exhibit J. but called a Benin Chief to say whether it was possible for a non Bini to acquire Bini status.

In the Course of the submissions by learned counsel for Appellants we cut in to point out that he was confusing the term “naturalisation” as understood in International Law and indeed in Constitutional Law with the use made of it by the learned trial Judge.

In the latter con for want of a better word the popular use of the expression implies the internal acquisition of a status within a community which within that Community are inherent in indigenes of that Community.”

I entirely agree with his view. There was abundant evidence at the trial to support the finding of the trial Judge. The Court of appeal is right to have supported his finding that their late father renounced his Yoruba cultural origin and chose that of a Bini citizen as stated by the Oba of Benin in his letter dated 10th April 1942, addressed to the District Officer, Benin Division that “Mr. A.A. Olowu has applied to become a naturalised Benin. He has Benin women as wives, who have children for him.” Mr. Lardner in his argument has picked on a passage in the judgment of the trial Court which states:-

“On a careful consideration of the Evidence in this case I do not think that the Benin Native Law and Custom of distribution of a deceased property was proved and is therefore impossible for me to state whether the distribution in Exhibit “F” is equitable in the circumstances or not in accordance with the said law. It is clear however that everyone got something though not exactly what each wanted.”

The above statement of the judgment must not be read in isolation. For a proper appreciation, it is necessary to examine the pleadings to discover what were the issues in the case, a close look at the evidence in relation to the findings of fact and the final decision of the trial Judge. He found that the deceased intestate acquired Bini status, thereby relinquishing his Yoruba cultural heritage. It follows therefore that by virtue of this change, his personal law changed to Bini customary law; distribution of his estate on intestacy must necessarily be governed by Bini customary law. He married Bini women who had children for him, he carried on various business activities in and around Benin City. He found also that the change of his status endowed him with the rights and privileges of a Bini indigene and this change in status accords with Benin customary law. Unless this finding of fact is reversed, I hold the view that the trial Judge was right in saying that the applicable customary law for the distribution of the estate is the Benin Native Law and custom. But since the Plaintiffs failed to prove the essential element of that custom, which nullified the distribution, the result was that their claim seeking an order of nullification of the distribution according to the said Benin customary law, must necessarily fail. It must be made clear that the 1st Defendants did not file any counter-claim. The judgment dismissing the Plaintiffs’ claim does not imply that the distribution made by the 1st Defendant was in strict compliance with Benin customary law. All it means is that the Plaintiffs failed to prove why the distribution should not follow the change of the personal law of the deceased intestate and further, that the Plaintiffs failed to prove the Ijesha customary law of distribution which they pleaded. In either case, the result is failure of the Plaintiffs to discharge the onus of proving their case. See the case of Bello v. Ewekasupra. where Eso, J.S.C. stated at p.117-118:-

“It has been established, for a very long time now, that in a case seeking declaration of title to land, the onus lies on the Plaintiff to establish the title which he claims, and he would, in that process, have to rely on the strength of his own case and not on the weakness of the defendant’s case. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336. In that case, the West African Court of Appeal as per Webber CJ. (Sierra Leone), in a judgment with which Kingdom CJ. (Nigeria) and Bulter-Lloyd J. concurred, refused to apply the rule of non-suit, which would normally apply where satisfactory evidence has not been given entitling the plaintiff or the defendant to the judgment of the Court, to a case of declaration of title.

The Court said:-

“The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The Plaintiff must rely on the strength of his own and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.”

See also  A. B. Kotoye V. Mrs. F. M. Saraki & Anor (1995) LLJR-SC

I am of the firm view that this statement of law is as valid today as it was in 1935 when the West African Court of Appeal declared it. See also the observations of this Court as per Nnamani J.S.C. in Aiyedoun T. Jules v. Raimi Ajani (1980) 5-7 S.C. 96 see p. 108 where the learned Justice of the Supreme Court reviewed Kodilinye v. Odu 2 WACA 336; Akunwata Nwagbogu v. Chief M.D. Ibeziako (1972) Vol. 2 Part 1 ECSLR, 335 and Atuanya v. Onyejekwe & anor. (1975) 3 S.C. 161. The plaintiffs averred that the “distribution” is most irregular and contrary to both the Yoruba custom and also the Bini custom alleged to have been invoked by them – vide paragraph 26 of their amended statement of claim. In paragraph 30, they averred and undertook “to prove at the trial that the estate of late Adeyinka Ayinde Olowu is governed by Yoruba custom …..

No where in the amended statement of claim were the constituents of Benin Native Law and Custom of distribution pleaded. Consequently, no evidence was led by any of the witnesses called at the trial to prove any breach of the Benin customary law and custom of the Ijesha people was not proved by the plaintiffs or by the 2nd defendant. Since they were the parties who pleaded these facts, they ought therefore to lead evidence in proof. Their witness was an Ijebu public write who said nothing about Ijesha native custom.

The 2nd defendant in his own amended statement of defence, pleaded in paragraph 19 and 20 as follows:-

  1. The 2nd defendant admits paragraph 26 of the Statement of Claim and avers that under the Ijesha Custom:

(a) All the beneficiaries are invited to a meeting presided over by the senior members of the paternal family on a date to be appointed for the distribution of the deceased’s estate.

(b) The Senior members of the paternal family presided at the distribution of the estate.

(c) All the beneficiaries or their representatives or delegates are entitled to attend the meeting.

It was for the plaintiffs to introduce evidence of the particular element of Bini native custom which rendered the distribution irregular or void. If that fact was pleaded and evidence produced, then the onus will shift on the 1st defendant satisfied the trial judge that the deceased divested himself of his Yoruba cultural heritage for that of a Benin indigene. It was the duty of the trial Judge to decide the point on the preponderance of evidence. See Imana v. Robinson (1979) 3 & 4 SC.1 p. 8 and Section 136(1) & (2) of Evidence Act Cap 62 Laws of the Federation.

Although the 2nd Defendant did not counter claim, the same observation is pertinent and applicable to his defence, in his plea of alleged failure of the 1st Defendant to comply with Bini native custom, namely, that “there ought to be internment followed by burial ceremonies according to Bini traditional before the distribution of the Estate.”

There was no evidence of what effect failure to comply with the said custom would have on the purported distribution. What the trial Judge meant when he stated that he did “not think that the Bini Native Law and custom of distribution of a deceased property was proved and is therefore impossible for him to state whether the distribution in Exhibit F” is equitable in the circumstances or not in accordance with the said law” is a verdict that the Plaintiffs failed to prove the said particular custom which allegedly nullified the distribution of the estate.

The finding that the distribution should be governed by Bini native law and custom necessarily implies rejection of the Plaintiffs’ case and that of 2nd Defendant that the distribution of the estate was subject to Yoruba (or Ijesha) Native law and custom which they failed to prove. See A.O. Odufuye v. Jacob Adeoye Fatoke (1977) 4 S.C. 11 at p.17 .

The trial Judge found that all the issues of the deceased got a share of the estate, although not exactly what he/she desired. So that even if Ori Ojori system had been applied, the distribution was correct.

It was the Plaintiffs to adduce preponderance of evidence to satisfy the trial Court why the purported distribution under the personal law of his choice, that is, Benin customary law ought to be nullified. They should further adduce preponderance of evidence of the particular Ijesha Yoruba customary law which they pleaded. In either of the two averments, the trial Court found that the Plaintiffs failed to discharge that onus. It is necessary for the Plaintiffs to satisfy this Court that the basic finding of fact of the trial court was perverse. In other words, the finding that during his lifetime the deceased intestate abandoned his Yoruba personal status and assumed that of a Benin indigene must be proved to be perversed before the Plaintiffs could succeed in their appeal. In as much as they failed to disprove this finding of fact, their claim cannot succeed. They also failed to plead and lead Evidence or cite any judicial decision that in law, they were entitled to the reliefs which they sought.

Rather, the authorities seem to be in favour of the 1st Defendant. The landed properties are all in Bendel State, the larger part of which are in Benin City. As a general principle of law, succession to immovables is governed by the lex situs, that is, the law of the place where the land is situated. In this case, the customary law of the Benin people. The Plaintiffs’ case was that the distribution which purported to be in accordance with Benin customary law should be nullified and, that of the Ijesha customary law should be substituted. No expert was called to say what is and why Ijesha customary law of distribution and succession to land should be applied. Here again, there was complete lack of evidence or decided cases in support of the proposition which the Plaintiffs contended. For the above reasons the Plaintiffs’ case must fail and their appeal must be dismissed.

There is yet another point. There have been several decisions of the Courts on the customary law of succession and distribution amongst the Yorubas. The issues of a deceased person on intestacy succeed to his properties. Not his relations: Lewis v. Bankole, I NLR. 82, 102 and S.J. Adeseye & Ors. v. S.F. Taiwo, 1 F.S.C.C. 84 are authorities in support of the view that on the death intestate of the founder of the family, his eldest son, who is the “Dawodu”, becomes the head of the family and he takes over the management of the estate of the deceased for himself and other members of his issues.

It is he, 1st Defendant, as the “Dawodu”, who decides which system of distribution should be adopted, be it the “Idi-Igi” or “Ori-Oj’ori” system See Taiwo v. Laani (1961) All NLR (Pt.4) 703 and Dawodu v. Danmole. 3 F.S.C. 46 and the. Privy Council decision reported in (1962) 1 All NLR 702. See also Adeniji & Ors. v. Adeniji & Ors. (1972) 1 All NLR (Pt.1) 298. In the case, it was held that the eldest son was the head of the deceased’s family, and not his eldest child (a daughter) or the brother of the deceased.

In effect, the averment in the amended statement of claim, that distribution according to Yoruba native law and custom must be at a family meeting to be presided over by the eldest member of a paternal relation is not supported by any known or reported decision of the Court. Furthermore, even if that was the custom amongst the Yoruba (of the Ijesha people), in the special circumstance of this case, it is unreasonable to expect any paternal member of the deceased’s family to attend a meeting, to be presided over by one of them, to distribute properties, which they previously believed and claimed to be their own, but lost to the parties in this appeal.

For these reasons the appeal of the Plaintiffs must fail and I will dismiss it with costs fixed at N300.00 to the 1st Defendant/Respondent.

BELLO, J.S.C. (Presiding): I have had the opportunity of reading the judgment just delivered by my learned brother, Coker, J.S.C. For the reasons fully stated therein, I agree the appeal should be dismissed and the judgment of the Court of Appeal affirmed. I shall only add some observations of my own because the appeal has raised for the first time, I think, an issue of great legal importance and consequences, to wit, change of personal law by choice under native law and custom in consequence of what for want of a better word I would venture to baptize as culturalisation.

The Issue for determination is mainly rested on the question: What was the proper personal law at the time of the death of the deceased Adeyinka Ayinde Olowu whose estate was the subject matter of the litigation between the parties

Now, the deceased had died intestate and his estate was distributed under the Benin native law and custom by the 1st Respondent who was the first son of the deceased and a co-administrator of the estate. The Appellants were not satisfied with the distribution and so they instituted the suit as Plaintiffs in the High Court., Benin City, seeking the distribution to be set aside on two grounds. First, they averred that the deceased having been a Yoruba of Ijesha origin, his estate should be distributed in accordance with the Ijesha native law and custom. Secondly, the distribution was contrary to the Benin native law and custom. All the parties were the children of the deceased born by his Benin wives.

The facts found by the trial Court may be summarised: The deceased was a Yoruba of Ijesha origin by birth. He married Benin women, settled and established his home in Benin City. During his lifetime, the deceased applied to the Oba of Benin to be “naturalized” as a Bini, i.e. to be conferred with a Benin status under the Benin native law and custom which permits the conferment of such status. The Oba gave his assent to the request and the deceased became a Bini subject to all the rights enjoyed by and obligations imposed on the Benin indigenes under the Benin native law and custom. As a result of the change of his status, the deceased was able to acquire many landed properties in Benin City.

From the foregoing facts the trial Judge concluded that the deceased had voluntarily relinquished his cultural heritage as a Yoruba and had become a Bini by “naturalisation.” He held that the Benin native law and custom was the proper personal law of the deceased at the time of his death and accordingly the Benin native law and custom was the proper law for the distribution of his estate upon his death intestate.

As regards the allegation that the distribution was contrary to the Benin native law and custom, the trial Judge found the Plaintiffs failed to prove the Benin native law and custom relating to distribution and what aspect of that law and custom the 1st Respondent had failed to comply with. He dismissed the Plaintiff’s claim. The Court of Appeal also dismissed their appeal in that Court. In the course of argument at the hearing of the appeal in the Court of Appeal learned counsel for the Appellants appeared to have mixed up “naturalization under native law and custom” with “naturalization as a Nigerian citizen” which is within the exclusive legislative power of the Federation under Item 10 of the Second Schedule to the 1979 Constitution. Dealing with that aspect of argument Okagbue, J.C.A. stated in his judgment:

“In the course of the submissions by learned counsel for Appellants we cut in to point out that he was confusing the term “naturalization” as understood in International Law and indeed in Constitutional Law with the use made of it by the learned trial Judge. In the latter con for want of a better word the popular use of the expression implies the internal acquisition of a status within a community which assimilates a member of the stranger element to rights and liabilities which within that Community are inherent in indegenes of that Community. In our country it is so generally understood and in order to avoid the sort of confusions into which learned counsel is leading us it must be kept in mind.”

The word “naturalization,” which takes place when a person becomes the subject of a State to which he was before an alien, is a legal term with precise meaning. Its concept and content in domestic and international law have been well defined. To extend its scope so as to include a change of status which takes place under native law and custom, when a person becomes a member of a community to which he was before a stranger, may create confusion. I would prefer to describe a change of status under customary law as culturalization. I may add that culturalization with its resultant change of personal law may take place by assimilation or by choice.

Strictly speaking, this case on appeal is not a case of a change of personal law by assimilation. I had occasion, as a High Court Judge then, to consider whether mere settlement without assimilation was capable of bringing about a change of personal law. That was in Rasaki Yinusa v. T. T. Adesubokun (1968) NNLR. 97 at page 99 wherein I said:

“Counsel for the defendant contends that the testator was a native of Lagos and that the Lagos Yoruba do not follow Moslem law and was therefore entitled to dispose of his estates by will in the manner he did. The first limb of this contention is founded on the presumption that the mere fact of settlement in Lagos by the parents of the testator renders the testator subject to the native law and custom of the Lagos Yoruba. It appears two cases do not support this contention. In Tapa v. Kuka 18 NLR 5, a Nupe Moslem of Bida origin died intestate leaving a house in Lagos it was held that the personal law of the deceased was the Moslem law prevailing among the Nupe tribe and it should apply to his estate. In Re the Estate of Aminatu A. G. v. Tunkwase 18 NLR 88, the deceased was a Moslem of Ijebu origin who died intestate in Lagos, the issue is whether her estate should be distributed in accordance with Moslem law which barred her adopted children or in accordance with the Ijebu native law and custom the latter was held to be applicable.

Subject to any statutory provision to the contrary, it appears from both cases that mere settlement in a place, unless it has been for such a long time that the settler and his descendants have merged with the natives of the place of settlement and have adopted their ways of life and customs, would not render the settler or his descendants subject to the native law and custom of the place of settlement. It has not been shown in this case that the parents of the testator and the testator himself had settled for such a long time in Lagos and have adopted the Yoruba ways of life that if he had died intestate his estate would have been subject to “Idi-Igi” distribution. On the contrary the evidence of an old friend and compatriot of the testator shows that the latter had always regarded himself as a native of Omuaran. I find therefore that the testator was a native of Omuaran subject to the native and custom of Omuaran in the Kwara State.”

In parenthesis, I may point out that the Supreme Court quashed my order setting aside the will which was the subject matter of the suit. The Supreme Court based its decision on the Wills Act 1837 of England as a statute of general application and the interpretation of Sections 33 and 34(1) of the High Court Law of Northern Nigeria: see Timothy T. Adesubokun v. Rasaki Yunusa (1971) NNLR 77. The Supreme Court did not make any pronouncement on my statement of the law that mere settlement without assimilation is not sufficient to change the personal law of the settler. I think, it is still the law.

The case in hand is concerned with culturalization by choice which, axiomatically, led to a change of personal law by choice.It may be observed that change of personal law choice is not new to our legal system. It has been with us since 1898. The classical case of Cole v. Cole (1898) NLR 15, which has been followed by a plethora of cases since then, converts into an English man or woman for the purpose of distribution of his or her estate upon his or her death intestate any Nigerian irrespective of his or her customary law who contracts a marriage by Christian rites or according to English law. The decision in Cole v. Cole was given statutory recognition in Section 36 of Marriage Act, Cap 115 Laws of the Federation of Nigeria and Lagos 1958 in these terms:

“36.(1) Where any person who is subject to customary law contracts a marriage in accordance with the provisions of this Ordinance, and such person dies intestate, subsequently to the commencement of this Ordinance, leaving a widow or husband, or any issue of such marriage; and also where any person who is the issue of any such marriage as aforesaid dies intestate subsequently to the commencement of this Ordinance .The personal property of such intestate and also any real property of which the said intestate might have disposed by will, shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estate of intestates, any customary law to the contrary notwithstanding:

(a) Where by the law of England any portion of the estate of such intestate would become a portion of the casual hereditary revenues of the Crown, such portion shall be distributed in accordance with the provisions of customary law and shall not become a portion of the said casual hereditary revenues; and

(b) real property, the succession to which cannot by customary law be affected by testmentary disposition, shall descend in accordance with the provisions of such customary law, anything herein to the contrary notwithstanding.

(2) Before the registrar of marriages issues his certificate in the case of an intended marriage, either party to which is a person subject to customary law, he shall explain to both parties the effect of these provisions as to the succession to property as affected by marriage.”

It is pertinent to note that the mere choice by the spouses to marry by Christian rites or according to English law or in accordance with the provisions of the Act coupled with the celebration of the marriage, without having any connection or association with England whatever, render the spouses to become English spouses for the purpose of the distribution of their estate if either dies intestate. It is in order to ensure that spouses voluntarily and with full knowledge of the consequences contract such a marriage that section 36(2) of the Act enjoins the Registrar to explain to both parties the effect of the provisions of the Section.

Within my knowledge, this is the first time that a case which raises the issue of a change of personal law as a result of culturalization by choice that has reached this Court for determination. Having regard to the evidence that the deceased had voluntarily chosen to become a Bini and the evidence relating to the consequences of his choice under Benin native law and custom, I am satisfied the Court of Appeal rightly upheld the decision of the trial Judge.

OBASEKI, J.S.C.: I have had the advantage of a preview of the draft of the judgment delivered a short while ago by my learned brother, Coker, J.S.C. I agree with him that the appeal should be dismissed. The facts of the case have been set out in elaborate detail in the judgment of my learned brother that it will only be necessary for me to refer in this judgment to such facts as will highlight the points being considered.

The appeal in the main, is in respect of the distribution of the properties of Adeyinka Ayinde Olowu (deceased). The Appellants unsuccessfully sought in the Courts below, i.e. Court of Appeal and the High Court, the removal of the Respondents as Administrators and Trustees of the Estate of the deceased. It is common ground that the deceased was the father of the parties. It is also common ground that the deceased was of Yoruba extraction his parents who lived and died in Benin City being Yoruba of Ijesha origin. It is common ground that the deceased lived in Benin City for the greater part of his life and acquired a number of landed properties in Benin City and elsewhere in Bendel State. It is common ground that he married Benin women. It is common ground that at the time of his death, his matrimonial home was in Benin City and survived by children born of Benin women. The 1st Respondent contended that at the time of his death, he was subject to Benin Native Law and Custom (i.e. Benin Customary Law) and that Benin Customary Law governed the devolution and inheritance of his properties. In other words, his properties were to be distributed according to Benin Customary Law. The Appellants and 2nd Respondent, however, contended that the deceased died a Yoruba man subject to Yoruba Ijesha Native Law and Custom, i.e. Yoruba Customary Law. As a result of this contention, the Appellant claimed that the purported distribution of the estate of the deceased by the 1st Defendant alone under Benin Native Law and Custom be nullified and that a directive be given that the said estate be distributed in accordance with the Yoruba Custom of Inheritance.

There was evidence which was accepted by the trial Court that the deceased sought and obtained the status of a Benin man subject to Benin Native Law and Custom from the Oba of Benin in his younger days. This was to enable him acquire all the rights of a Benin man in regard to property, life and death under Benin Native Law and Custom

It is observed that at the time the deceased sought and obtained this status in 1942, Nigeria was a dependency – a British Colony administered by the British Crown and apart from Lagos which was a British Colony, the other parts of Nigeria constituted a British Protectorate and Nigerians in the Protectorate were accorded the status of British Protected Persons. It should be remembered that it was in 1897 after the punitive expedition that Benin Kingdom lost its independence to the British Crown. On the assumption of sovereignty over Nigeria by the British Crown, Nigerians became British protected persons. They did not become British subject to all the laws in operation in England. They were subject to all the laws of general application in England before 1900; all the statute laws passed by the competent authority in Nigeria and each ethnic group or tribe was also subject to the native law and custom of the particular ethnic group. Of the Constitution of the protectorate of the Northern and Sourthern Nigeria, the learned authors of the Native and Customary Courts of Nigeria had this to say:

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“By 1899, international issues had made it impossible to leave the Niger territories under the control of the Royal Niger Company. So, since considerable expansion in the Northern areas would be required to forestall French expansion, the British Government decided to revoke the Niger Company’s Charter, to constitute all its territories North of Idah as the protectorate of Northern Nigeria and to join the Niger Coast protectorate and the Royal Niger Company territories south of and including Idah to form the protectorate of Southern Nigeria. The two protectorates were brought into being by the Northern Nigeria Order in Council 1899 and the Southern Nigeria Order in Council 1899 which provided for the office of High Commissioner for each and empowered him to legislate by proclamation both Orders took effect from January 1, 1900.” See The Native and Customary Courts of Nigeria by Keay and Richardson 1966 Ed. page 11.

On January 1, 1914, the protectorate of Nigeria came into being with the amalgamation of northern and southern Nigeria. In 1914, the Supreme Court acquired jurisdiction throughout Nigeria.

When, in 1900, the British Government took over from the Royal Niger Company, the administrative control of Nigeria, they decided to preserve as much as possible the existing legal order – native law and custom. In pursuance of this intention, Proclamation No.6 of 1900 provides inter alia:

“Nothing in this Proclamation shall deprive the Supreme Court of the right to observe and enforce the observance, or shall deprive any person of the benefit of any law or custom in the Protectorate, such law or custom not being repugnant to natural justice, equity and good conscience. No party shall be entitled to claim the benefit of any local law or custom, if it shall appear, either from express which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions should be regulated exclusively by English law; and in cases where no express rule is applicable to any matter in controversy, the Court shall be governed by the principles of Justice, equity and good conscience.”

Proclamation No.9 of 1900 had also established Native Courts.

The intention of the British Government to ensure the observance of the native law and custom was further highlighted by Lord Wright in the celebrated case of Oke Lanipekun Laoye and Others v. Oyetunde (1944) AC 170 when he said:

“The policy of the British Government in this and in other respects is to use for purposes of the administration of the country the native laws and customs in so far as possible and in so far as they have not been varied or suspended by statutes and ordinances affecting Nigeria. The courts which have been established by the British government have the duty of enforcing these native laws and customs, so far as they are not barbarous, as part of the law of the land.”

The learned trial Judge found as a fact that

“Although the late A.A. Olowu was a Yoruba man of Ijesha extraction, he resided in Benin City and acquired considerable properties, he naturalised as a Benin of his own volition and hence the distribution was made according to Bini native law and custom. In his lifetime, the late Olowu applied to the Oba of Benin of naturalisation which was granted and that enabled him to acquire the properties in Benin City.”

The finding is amply supported by oral and documentary evidence. Exhibit Uzzi 3 in Suit B/15-20/62/62 “Exhibit J “page 390 shows the willingness of the Oba to naturalise Mr. Adeyinka Olowu. The letter was addressed to the District Officer, benin Division, Benin City for record purposes. It reads:

“Mr. A.A. Olowu has applied to become a naturalised Benin (2)’He has Benin women as wives, who have children for him. I have no objection to naturalising him provided he submits to all Benin Customs and Laws.

Your Good Friend

Sgd.Oba of Benin.”

The letter was dated 10th April, 1942.

On 20th January, 1943 when the deceased, Mr. A.A. Olowu did not receive a formal reply from the District Officer as earlier hinted by the Oba to the deceased, the deceased wrote a letter “Exhibit Emokpae ‘4’ in Exhibit ‘J’ to the Oba. The letter reads:

“After a long spell, I have very respectfully to re-open a matter which I thought at the last interview I had with you had reached its end. This matter centres round the question of my ardent appeal to naturalised as a Bini.

There had been a series of correspondence from me in the past relating to the subject followed by my personal interviews at the last of which I had your assurance that the appeal was granted and that while you were soon then addressing a letter on this score to the District Officer or the Resident (I do not recollect which) a letter would be forwarded to me in the formal fashion.

This was before the conference time and the hive of activities which attended this historic event gave me the impression that any form of bother in further and successfully prosecuting the matter since I have already had the full assurance of the Omo N’Oba, might be quite unnecessary.

However, this letter of approval has not yet reached me and having expected long enough in vain, hence this reminder.

I have it in my New year Resolution for the year to materialize a long-felt wish in being accepted a full member of the Benin National Group. I may even mention that great leaders in the new-found Edo national Union have made several overtures to me to come and join my forces with this august body to achieve a worthy common goal. But I am sorry to say that I am still barred from accepting what I choose to call a rare privilege, based on true love, since I could show no practical demonstration that I was worthy of such an honour for lack of the proper mandate.

Under the circumstances, I shall be much grateful if the Omo N’Oba N’Edo will feel disposed at an early date to give this question of my naturalisation a more concrete form whereby I shall be better enabled to assess my correct place in the scheme of things and so allign my forces with all that is good and noble in the land. Wishing the Omo N’Oba a successful regime, tending towards the progressive development of this city.

I am,

the Omo N’Oba’s loyal subject

Sgd. Adeyinka A. Olowu.”

Two questions may be asked. The first is this:

(1) Is there provision in the customary laws of the Yorubas which prevent a Yoruba man from opting in his years of wisdom for his affairs to be subject to the native laws and custom of Benin, i.e. deciding to be subject to Benin Native Law and custom. The second question is:

(2) Is there any provision in the Customary law of Benin i.e. Benin Native Law and Custom which forbids a member of any other ethnic group in Nigeria from being admitted into the community of Benin subject to Benin native laws and customs

There is no evidence which enables the Court to answer the questions in the negative. The history of population movement in this country, Nigeria, bears testimony that people moved from place to place before the advent of Europeans. They settled and became assimilated into the community. The present dynasty of the Obas of Benin, the repository of Benin native laws and customs, bears eloquent testimony that a Yoruba man can become a Benin man subject to Benin native laws and custom. The acceptance by the Oni of Ife of the request of the Chiefs of Benin to allow his son Prince Oronmiyan to ascend the throne of Benin and the acceptance by Prince Oromiyan to become the Oba of Benin are historical facts. Similarly, the sojourn of Prince Oranmiyan to Benin City for that purpose though his stay did not last long is also a historical fact. His decision to return home and ceding the throne for his son by a Benin Queen, Eweka I, who was brought up in the tradition of the people is also a historical fact.

However, as said earlier, there is no evidence on record from which any negative answer could be given to the two questions. The learned trial Judge was perfectly justified in his findings which read:

“The 2nd Defendant is lying that he did not tender “Exhibit Uszi ‘3’ in Exhibit ‘J’ and I find as a fact that his father the late A.A. Olowu applied to the Oba of Benin for naturalisation which was granted and that it enabled him to acquire the properties in Benin City. 2nd Defendant is estopped from denying that his father naturalised. Strenuous efforts were made to disprove that he naturalised. I was neither told nor referred to any law which forbids this.”

The Court of Appeal was also justified in affirming these findings and in doing so, it went on to explain the term “naturalisation” in the con of these proceedings per Okagbue, J.C.A.

“In order to show the Court the procedure whereby a Nigerian who is not a Bini by birth can attain Bini status, he referred to page 390 of Exhibit J. He said the Defendants did not stop at Exhibit J but called a Benin Chief to say whether it was possible for a non Bini to acquire Bini status

In the course of the submissions by learned counsel for Appellants, we cut in to point out that he was confusing the term “naturalisation” as understood in International Law and indeed in Constitutional Law with the use made of it by the learned trial Judge. In the latter con, for want of a better word, the popular use of the expression implies the internal acquisition of a status within a community which assimilates a member of the stranger element to rights and liabilities which with that community are inherent in the indigenes of that community.”

I would say that the rights and liability are birth rights and liabilities of members of the Bini Community. It was not the deceased alone who acquired these rights, his children in addition acquired them as birth rights.

In 1960, when Adeyinka Olowu died, Bendel State was part of Western Region of Nigeria. As the distribution, inheritance or succession to the estate of the deceased was governed by customary law, the administration of the estate was not affected by the Administration of Estates Law Cap. 1 Laws of Western Nigeria 1959. See section 1(3). When in 1963 Bendel State ‘(then known as Mid-Western Nigeria) was created, the law, Section 1(3) of the Administration Estates Law continued to be applicable and is now repeated in the Laws of Bendel State 1976 Administration of Estates Law Cap.2. It is also specially provided in the High Court Law of Bendel State that the High Court shall observe and enforce the observance of every customary law which is applicable and is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by implication with any written law for the time being in force. It is also provided that nothing in the High Court Law shall deprive any person of the benefit of any such customary law. See Section 12(1) High Court Law Cap 44 L/WN. 1959. See Section 13(1) High Court Law Cap 65 L/Bendel State 1976.

The High Court that determines that customary law is applicable is under a duty to apply the particular customary law which is appropriate in that cause or or matter. See Section 12(4) of the High Court Law Cap.44 L/WN. 1959. See section 13(4) High Court Law Cap 65 Vol. 3 Laws of Bendel State 1976.

This provision of the High Court law makes applicable the personal law of an individual in causes or matters dealing with succession and inheritance. Even under the Wills Law Cap. 172 Vol. 6 Laws of Bendel State 1976, the benefit of the customary law is preserved for the persons entitled. In defining the appropriate customary law paragraph (b) of subsection 4 of Section 14 of the High Court Law provides

“in causes and matters arising from inheritance the appropriate customary law shall subject to paragraphs (a) and (d) of this section be the customary law applying to the deceased.”

See Oke & Anor. v. Oke & Anor. (1974) 1 All NLR. 443. That case brought into focus the fact that in exercising the right to make a will, regard must be had to the provisions of the customary law applicable. Elias, CJN. Delivering the judgment of the Supreme Court said at page 449:

“Mr. Ajuyah, learned counsel for the Appellants, pointed out that the learned trial Judge, in declaring the devise to be invalid, had observed that the effect of Section 3(1) of the Wills Law should be treated on appeal. The provision reads:

“subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his Will in manner hereinafter required, all real estate and all personal estate which he shall be entitled to either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator’.

The learned counsel submitted that this sub-section should be read as meaning that the customary law relating to succession is subject to the power of the testator to dispose of his property by Will; he further submitted that the testator’s interest was by descent. We do not think that this sub-section can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the sub-section) of the relevant customary law from its provision; there is also the specific reference to “real estate” – an expression that cannot by any stretch of the imagination be applied to the property in question. The Section clearly contemplates an absolute estate of freehold or leasehold of which the testator died possessed and of which he could dispose by Will or otherwise. It is not to be supposed that Section ‘3(1) of the Wills Law can confer upon a testator the testamentary capacity to devise property by will which the testator will not otherwise have. The introductory phrase “subject to any customary law relating to” necessarily makes the power given to a testator under the subsection dependent upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estates by will is limited by the extent, if any, to which its exercise is permissible under the relevant customary law.”

This case of Oke & Anor. v. Oke and Anor. (supra) illustrates the extent the High Court will go to enforce the observance of the relevant customary law. In that case, a provision of testamentary disposition (devise) in a will was declared invalid for contravening the provisions of the relevant applicable customary law. In the instant appeal, there is no iota of evidence before the Court to establish the Benin Native Law and Custom contravened. Indeed, none was pleaded. It was not enough to plead that the distribution contravened Benin native law and custom. If the provisions of Benin Native ‘law and Custom had been pleaded and the Court had found that the distribution set out in Exhibit F offended the provisions, the Court would have in like manner as it did in Oke & Anor. v. Oke and Anor. (supra) set aside the offending distribution.

Since the attainment of independence and the acquisition of Nigerian citizenship in 1960, the need for naturalisation or culturisation as my learned brother Bello, J.S.C. chose to call it no longer arises. With the promulgation of the Land Use Decree, the greatest asset which each individual ethnic community had has been made available to all Nigerians. See section 1 Land Use Act 1978. Further, the political objectives of the Government of the Federal Republic stated in section 15(1),(2),(3)(a,b,c,d) and (4) has under the 1979 Constitution made such a course of action of no cultural benefit.

These sub-sections read:

15(1) The motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress;

(2) Accordingly, national integration shall be actively encouraged whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited’,

(3) For the purpose of promoting national integration, it shall be the duty of the State to –

(a) provide adequate facilities for an encourage free mobility of people, goods and services throughout the Federation;

(b) secure full residence rights for every citizen in all parts of the Federation;

(c) encourage inter-marriage among persons from different places of origin or of different religious, ethnic or linguistic association or ties or

(d) promote or encourage the formation of associations that cut across ethnic, linguistic, religious or sectional barriers;

(4) The State shall foster a feeling of belonging and of involvement among the various peoples of the Federation to the end that loyalty to the nation shall override sectional loyalties. ”

However, the 1979 Constitution does not prevent a Yoruba man from acquiring the status and the rights of a Benin man under Benin customary law if the need arises. Similarly, it does not prevent a Benin man from acquiring the rights and status of a Yoruba man under Yoruba customary laws if the need arises.

This is in consonance with the provisions of section 17(2)(a) of the Constitution which states:

“In furtherance of the social order every citizen shall have equality of rights, obligations and opportunities before the law.”

I too will and I hereby for the above reasons and the reasons so ably set out in the judgment of my learned brother Coker, J.S.C. dismiss the appeal with costs to the 1st defendant/appellant fixed at N300.00.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Coker, J.S.C. I agree with him that this appeal should be dismissed:

The appellants herein were the plaintiffs in a suit which they brought against the respondents herein as defendants in the High Court of Bendel State sitting at Benin City. The plaintiffs, by their amended statement of claim, claimed as follows:

“(a) Removal of the aforementioned defendants as Administrators and Trustees to the Estate of Late Adeyinka Ayinde Olowu.

(b) That the purported distribution of the said Estate by the 1st defendant alone under Bini Native Law and Custom be nullified, the Late Adeyinka Ayinde Olowu was until his death a Yoruba by tribe.

(c) That a directive be given that the said Estate be distributed in accordance with the Yoruba custom of inheritance.

OR in the alternative, the plaintiffs claim is for:

(1) Revocation of the grant of letters of administration made to the defendants on 4th day of July, 1962, in respect of the Estate of Late Adeyinka Ayinde Olowu.

(2) The grant of fresh letters of administration to the plaintiffs.

(3) The defendants jointly and severally to give an account of the administration of the Estate, of all monies received and expended in respect of the said estate since 4th July, 1962, up to date.”

All the parties to the case were the sons and daughters, of full blood, of late A.A. Olowu who died in 1960 at the University Teaching Hospital, Ibadan. The deceased who was Yoruba from Ilesha in Oyo State lived and worked in Benin before his demise. He owned considerable property in Benin, Sapele and Warri in Bendel State and Ibadan in Oyo State. The property included 5 cinema houses, 4 houses and undeveloped plots of land. The deceased died intestate and the defendants were appointed by the High Court of Western Nigeria as the administrators of his estate in accordance with the provisions of the Administration of Estate Law, Cap. 1 Laws of Western Region of Nigeria, 1959, which was then the law applicable to Bendel State as integral part of the Western Region of Nigeria. The 1st defendant purportedly distributed the estate according to Benin Native Law and Custom. Hence the cause of the plaintiffs action.

The plaintiffs contended that the deceased was a Yoruba and that his estate should not have been distributed in accordance with Bini Native Law and Custom but Yoruba Native Law and Custom. The 1st defendant replied that the late A.A. Olowu had renounced his status as Yoruba and in its place adopted that of the Binis. He contended that the proper law of inheritance to apply to his estate was the Bini Native Law and Custom.

Broadly speaking that is the gist of the dispute between the parties. The learned trial judge (Omosun, J.) found for the defendants but granted part of the plaintiffs’ claim in the alternative which asked for the rendering of an up to date account from the date of the grant of the letters of administration to the defendants, that is the 4th day of July, 1962.

Not satisfied with the judgment the plaintiffs appealed to the Court of Appeal. They did not succeed there too. Hence they appealed further to this Court.

Originally 2 grounds of appeal were filed. These, without their particulars, read as follows:

“1. The learned Justices of the Federal Court of Appeal erred in law by dismissing the appeal and affirming the order of the Court below without deciding the real issue which was in controversy between the parties thereby erroneously proceeding post haste to a refusal to grant the reliefs sought in the suit by the plaintiffs/ appellant particularly as to the nullification of the purported distribution of the estate as contained in Exhibit “F”

  1. The learned Justices of the Federal Court of Appeal erred in law when as did the court below, they omitted to advert to or pronounce on those matters which did and are capable of nullifying the purported distribution of the Estate or Exhibit “F” which evidenced the same.”

With the leave of this Court a third ground was added. It reads:

“The learned Justices of the Federal Court of Appeal misdirected themselves in law in holding that the distribution of the estate of the intestate Ayinde Olowu, by the 1st defendant alone, he being one of the two administrators of the estate, is valid and binds the plaintiffs.”

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The relief sought from the appeal was also amended, with leave, to read:

(1) An Order allowing the appeal setting aside the judgment of the Federal Court of Appeal and entering judgment for the plaintiffs/ appellants in the following terms:

(a) An Order that the purported distribution of the estate by the 1st defendant alone under Bini Native Law and Custom be nullified.

(b) An Order directing the two administrators namely the two defendants/respondents wind up the estate of the intestate Adeyinka Ayinde Olowu under the supervision and direction of the High Court Bendel State.”

In the appellants’ brief of argument, the issues for our determination in this appeal are stated as follows:

“1. Whether the judgment dismissing the plaintiffs’ claim is not wrong in law, the courts below having held that the relevant Bini Customary Law was not proved at the trial

  1. Whether in the absence of an Order of Court the distribution of the estate of the intestate by one of the two administrators without the concurrence of the other administrator is valid and binding on the other administrator

with respect, these have departed from the import of the grounds of appeal filed and do not in my opinion, accurately summarise the points raised in the grounds.

In arguing grounds 1 and 2, Mr. Lardner, learned Senior Advocate for the appellants, based his submissions on the particulars of the grounds. The complaints under ground 1 are firstly that the Court of Appeal failed to pronounce on the proper law applicable to the distribution of the estate. Is it the Bini Customary Law that applied or the Yoruba Customary Law Secondly, that in the light of the evidence before it the Court of Appeal should not have refused to grant the relief sought by the plaintiffs.

It needs to be pointed out that the grounds of appeal filed and argued before the Court of Appeal did not call for a pronouncement on the proper law of distribution which applied to the estate in dispute. The point argued was whether a Nigerian could alter his status under a native law and custom by divesting himself of his natural custom and adopting that of another indigenous ethnic group, as allegedly done in this case by the deceased. The plaintiffs based their argument on the provisions of the Constitutions of the Federal Republic of Nigeria 1979, which under item 10 of the Exclusive Legislative List classified citizenship and Naturalisation as Federal subjects. That argument was, to say the least, irrelevant since the deceased died in 1960 long before the 1979 Constitution was promulgated. Secondly, the issue of personal law in the nature of native law and custom is not a matter for the Constitution but has always been a question of fact to be proved by evidence. See Liadi Giwa v. Erinmilokun (1961) All NLR. 294 at p. 296. In that con the Court of Appeal had, therefore, no obligation to determine the proper law applicable to the estate of in dispute. The exercise had been carried out by the trial court whose function it was to determine questions of fact. On the evidence before it the High Court found that the deceased, before his death, changed his status from that of Yoruba to that of Bini. It followed therefore that the Bini Customary Law of inheritance would apply to the distribution of his estate since he died intestate. I think this finding of the trial court is unassailable.

With regard to the 2nd ground of appeal, learned counsel for the appellants, attacked Exhibit F which was not signed by the 2nd respondent because he could not agree with the 1st respondent in the manner in which the distribution was made. The 2nd respondent felt that the 1st respondent took more than his (1st respondent’s) due share of the estate. With respect, this ground of appeal is also misconceived. At no time was the Court of Appeal called upon to consider the validity of Exhibit F. In fact the trial court did not see sufficient reason to nullify it (Exhibit F) for the following reasons:

“On careful consideration of the evidence in this case I do not think that the Bini Native Law and Custom of distribution of a deceased property (sic) was proved and is therefore impossible for me to state whether the distribution in Exhibit “F” is equitable in the circumstances or not in accordance with the said law. It is clear however that everyone got something though not exactly what each wanted’..The plaintiffs have not adduced cogent evidence in support of these arms of the claim and I will not nullify the distribution or direct that the distribution be made according to Yoruba Custom.”

It is necessary to stress the issues joined between the parties. The plaintiffs averred that the deceased died with the status of a Yoruba and had never renounced his Yoruba custom for the Binis’. Therefore, the law of inheritance which applied to his estate was the Yoruba customary law of “Idi-Igi” or “Ori-Ojori.” The distribution made by the defendants was irregular and contrary to both the Yoruba and Bini customs. The defendants also failed to render account of their administration of the estate. The 1st defendant, in a separate statement of defence from that of the 2nd defendant, denied the averments made by the plaintiffs and pleaded in paragraphs 7, 8 and 16 thereof as follows:-

“7. In further answer to paragraph 8 of the statement of claim that 1st defendant avers that though the late Adeyinka Ayinde Olowu was a Yoruba by birth he opted to be a Bini man in accordance with Bini Custom before he died. This was as far back as 1942. The letter of the Oba of Benin dated 10/4/1942 in this regard will be relied upon at the trial of this suit.

  1. The ceremony referred to in paragraph 7 above took place in the OBA’s palace in the presence of Bini Chiefs.”
  2. With reference to paragraph 24 of the statement of claim the 1st defendant avers that the late Adeyinka Ayinde Olowu having become a Bini man in accordance with Bini Custom before his death his estate cannot be distributed in accordance with Yoruba Custom. This fact was made abundantly clear in suit No. B/15-20/62 and this shall be founded upon at the hearing of this case.”

In his amended statement of defence, the 2nd defendant appears to agree with the plaintiffs that the deceased did not change his status and that the Ijesha (Yoruba) Native Law and Custom on inheritance applied to the distribution of the deceased’s estate. Paragraphs 17, 18, 20, 22 and 23 of the amended statement of defence read thus:

“17. In further answer to paragraph 24 of the statement of claim, the 2nd defendant avers that in his life time the late Adeyinka Ayinde Olowu always applied Ijesha Custom at home.

  1. In further answer to paragraph 24 of the statement of claim, the 2nd defendant will contend at the trial that the Ijesha Native Law and Custom is the proper custom to be applied in the distribution of this Estate.
  2. The 2nd defendant in further answer to paragraph 26 of the statement of claim avers that even the Bini Custom which the distributors of the said Estate purported to have applied was not complied with. That under Bini Native Law and Custom, there has to be interment followed by Burial Ceremonies according to Bini tradition before distribution of the Estate. That at the distribution the younger brother of the deceased known as the Okaegbe presides.
  3. The 2nd defendant admits paragraph 30 of the statement of claim to the extent that Yoruba Custom is applicable to the distribution of the Estate of the late Adeyinka Ayinde Olowu – but avers that the particular Yoruba Custom is the Ijesha Native Law and Custom.”

From the foregoing it is clear that the burden of proving that the Bini Native Law and Custom on inheritance did not apply to the estate of the deceased rested with the plaintiffs. The onus of showing that the estate was not properly distributed either according to the Yoruba or Bini Native Law and Custom also fell on the plaintiffs. They have failed to discharge the burden before the trial court. Nor did they succeed before the Court of Appeal in showing that the decision of the learned trial judge was perverse. In the light of such failure both grounds 1 and 2 cannot succeed before us.

The third ground of appeal was not argued by learned counsel for the appellant having sensed that the Court was not with him with regard to grounds 1 and 2. It was evidenced by the learned counsel of the appellant that the particulars of the alleged misdirection set out under grounds 1 and 2 would form the argument in support of the ground. It is also pertinent to point out that throughout the argument before the Court of Appeal no reference was made to section 4 subsection (2) of the Administration of Estate Law Cap 1 Laws of Western Region of Nigeria, 1959. Nor was the point raised earlier or argued before the High Court. In itself the 3rd ground of appeal has not raised any fundamental point of law, such that would invoke our practice to allow the point to be argued even if not raised in the Courts below – Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR, 393 at pp. 409 and 433. It suffices, therefore, to say that the ground lacks merit.

In the result, I too would dismiss this appeal with N300.00 costs to the respondents. The 1st defendant shall, if it is not already done, render account from the 4th day of July, 1962, when the letters of administration were granted to the defendants, as ordered by the trial court.

OPUTA, J.S.C.: I have had the privilege of a preview of the lead judgment just delivered by my learned brother Coker, J.S.c. I agree with him that the appeal should be dismissed. I therefore adopt his arguments and conclusions as mine.

There is however one aspect of the case which I found rather fascinating and which, like my learned brother and Presiding Justice, Bello, J.S.C., I too would like to comment upon. It is the issue dealing with the choice of law – Yoruba Customary Law or Bini Customary Law – to be applied to the distribution of the estate of the deceased, Adeyinka Ayinde Olowu. This is in a miniature scale a question of conflict of laws. In cases dealing with conflict of laws, there is always a “competition” between the lex patriae of the Roman jurists or what is now known as personal law, the lex situs or lex loci of the property involved, the lex domicilii of the deceased, the lex fori of the forum competens. Nigeria being one nation, one country, will it not be a contradiction in terms of talk of conflict of laws in the same country Our former National Anthem supplied the answer:-

“Though tribes and tongues may differ in brotherhood we stand Nigerians all.”

There are different “tribes and tongues” in Nigeria – different customary laws dealing with devolution of property on intestacy. Where there is a clash between two or three of these different customary laws and the court has to choose which one should apply, we have an issue of conflict of laws . See Ayisatu Tapa & Anor. v. Yanrata Kuka N.L.R. 5 where it was held that the law to be applied was the personal law of the deceased. In Cole v. Cole 1 A N.L.R. 15 the issue was whether Customary Law or English Law was the applicable law. From the facts and circumstances of that case, it was held that English law of succession will prevail over Customary Law. Much will therefore depend on the facts and circumstances of each individual case.

Now turning to the case now on appeal to this Court, the question will now be asked – what were the facts as pleaded and proved The appellants who were plaintiffs in the court of first instance claimed in their amended Particulars of Claim as follows:-

“(a) Removal of the aforementioned defendants as Administrators and Trustees of the Estate of late Adeyinka Ayinde Olowu.

(b) That the purported distribution of the said Estate by the 1st defendant alone under Bini Native Law and Custom be nullified, the late Adeyinka Ayinde Olowu was until his death a Yoruba by tribe.

(c) That a directive be given that the said Estate be distributed in accordance with the Yoruba Custom of inheritance, OR in the alternative, the plaintiffs’ claim is for:-

(1) Revocation of the grant of Letters of Administration made to the defendants on 4th day of July, 1962, in respect of the Estate of late Adeyinka Ayinde Olowu.

(2) The grant of fresh Letters of Administration to the plaintiffs.

(3) The defendants jointly and severally to give an account of the Administration of the Estate of all monies received and expended in respect of the said Estate since 4th July, 1962, up to date.”

From the pleadings and the evidence led at the trial it is not in dispute:-

  1. That the plaintiffs and the defendants are children of the late Adeyinka Ayinde Olowu.
  2. That the late Adeyinka Ayinde Olowu left behind a total of eleven children.
  3. That the late Adeyinka Ayinde Olowu was “a Yoruba by tribe. ”

On the premise that the late Adeyinka Ayinde Olowu “was a Yoruba by tribe” the plaintiffs pleaded in paragraphs 24, 26 and 30 of their amended statement of claim as follows:-

“24. The plaintiffs aver that the Estate of the deceased can properly and lawfully be distributed among the children of Late Adeyinka A. Olowu in accordance with Yoruba Custom with the Senior paternal members of the deceased family presiding.

  1. The plaintiffs aver that the said purported distribution is most irregular and contrary to Yoruba custom .
  2. The plaintiffs aver and will prove at the trial that the Estate of Late Adeyinka Ayinde Olowu is governed by Yoruba Custom i.e.

(a) Under a Yoruba Custom, the properties (real and personal) of the deceased man is divided under the system of ‘Idi-Igi’ or ‘Ori Ojori’ under the chairmanship of the Head of the family (paternal).”

The 1st defendant on his part admitted that his late father, Adeyinka Ayinde Olowu, was a Yoruba by birth but averred in paragraphs 7,8 and 16 of his Statement of Defence as follows:-

“7. The 1st defendant avers that though the late Adeyinka Ayinde Olowu was a Yoruba by birth he opted to be a Bini man in accordance with Bini Custom before he died. This was as far back as 1942. The letter of the Oba of Benin dated 10/4/1942 in this regard will be relied upon at the trial of this suit.

  1. The ceremony referred to in paragraph 7 above took place in the Oba’s palace in the presence of Bini Chiefs.

16….. the 1st defendant avers that the late Adeyinka Ayinde Olowu having become a Bini man in accordance with Bini Custom before his death his estate cannot be distributed in accordance with Yoruba custom. This fact was made abundantly clear in suit No. B/15-20/62 and this shall be founded upon at the hearing of this case.”

I have on purpose set out paragraphs 24, 26 and 30 of the amended statement of claim and paragraphs 7, 8 and 16 of the statement of defence of the 1st defendant because I want to comment on one of the major issues arising from the pleadings of the parties, that is, the issue of Conflict of Laws – which law is the law applicable to the administration and distribution of the estate of the late Adeyinka Ayinde Olowu Is it Yoruba Customary Law or Bini Customary Law – each with its peculiar procedure and canons of distribution

The learned trial judge Omosun, J. had this to say on this aspect of the case:-

“I have no hesitation in holding that the late A.A. Olowu is of Yoruba extraction, an Ijesha man. I also hold that he resided in Benin City and acquired considerable properties in what is now known as Bendel State. Evidence was led to show that he naturalised as a Bini of his own volition and hence the distribution was made according to Bini Native Law and Custom. Ex.”J” was tendered to reinforce this view and I find as a fact that the father of 2nd defendant, the late A.A. Olowu applied to the Oba of Benin for naturalisation which he was granted and that it enabled him to acquire the properties in Benin City. Pages 388 and 390 of Exhibit J refer. 2nd defendant is estopped from denying that his father naturalised. Strenuous efforts were made to disprove that he naturalised. I was neither told nor referred to any law which forbids this. This judgment must not be mistaken to mean that Idi Igi or Ori Ojori customs do not exist among the Yorubas The plaintiffs have not adduced cogent evidence in support of these arms of their claim and I will not nullify the distribution or direct that the distribution be made according to Yoruba customs.” The above findings of the learned trial judge simply means that the late Adeyinka Ayinde Olowu though of Yoruba extraction lived and died a Bini man and that Bini Customary Law and canons of distribution were properly applied to the administration and distribution of his estate.

In his finding above, Omosun, J. held that “the 2nd defendant is estopped from denying that his father naturalised.” To my mind, that is putting it mildly. Since the learned judge also found that it was this naturalization which was granted to Olowu by the Oba of Benin “that enabled him (late A.A. Olowu) to acquire the properties in Benin City” (part of the properties now in dispute), I will go further and say that the appellants, the respondents and in fact all the eleven children of the late A.A. Olowu who are now his successors in title in respect of those properties are also estopped from denying that their late father acquired the Status of a Bini man – which Status enabled him to acquire those properties.

All the children of the late A.A. Olowu are estopped from denying that their father though of Yoruba extraction lived and died a Bini man. They are required to abide by that assumption because it formed the conventional basis upon which the late Adeyinka Ayinde Olowu acquired his properties in Benin. See Thompson v. Palmer (1933) 49 C.L.R. 507 at p. 547. The mutuality test of estoppels applies here. Sir Edward Coke called it the reciprocity test.

The principle is that the children of the late A.A. Olowu will not be allowed to take advantage of and enjoy the properties acquired by their father as a Bini man while in the same breath denying his Bini Status and asking the court to apply as it were, the “Renvoi doctrine” which will send the matter back to Yoruba Customary Law for determination. If A.A. Olowu’s personal law, his lex patriae, Yoruba Customary law, is excluded as it ought to be on the facts and surrounding circumstances of this case, then the lex situs, the lex loci, the lex domicilii and the lex fori all point to Bini Customary law in the Bendel State of Nigeria.

In his judgment, the learned trial judge rightly observed (as I quoted above):-

“Strenuous efforts were made to disprove that he (A.A. Olowu) naturalised. I was neither told nor referred to any law which forbids this.”

May be as was rightly pointed out by the Court of Appeal per Okuagbue, JCA, the words “naturalised” and “naturalisation” were loosely used by the learned trial judge, definitely not as understood either in International Law or even in Nigerian Constitutional Law. The proper expression might have been acculturation. This simply means that a person of one tribe or of one cultural group may adopt the culture of another and entirely different group. Each cultural group in Nigeria has its own customary canons of distribution of property “on intestacy.” I, on purpose, put the expression “on intestacy” in quotes because, strictly speaking, testamentary disposition is alien to Customary Law. It is an innovation introduced by our received English law and the Wills Act.

The evidence uncontradicted and accepted by the courts below was that Adeyinka Ayinde Olowu though of Yoruba extraction from Ijesha land was born in Benin, lived all his life in Benin, married all his wives from Benin- all the parties to this action are therefore matrilineally of Benin origin. As if to leave no doubt about his desire for absolute assimilation into the Benin cultural group, the late Adeyinka Ayinde Olowu applied to the Oba of Benin to become a Bini indigene. Under the Benin Customary Law, such a request can be made. The Oba in an open ceremony in the presence of his Chiefs granted Adeyinka Ayinde Olowu’s request and conferred on him the Status of a Bini indigene as a result of which he was allowed to acquire most of the properties comprised in his estate.

It will be blowing hot and cold to acquire properties as a Bini man and on death to have those properties governed by Yoruba canons of distribution. That was why the 1st defendant/ respondent in Suit No. B/15-20/1962 fought and successfully, resisted all attempts by his paternal relations to have his father’s properties distributed in accordance with Yoruba canons of distribution.

From the evidence accepted by the courts below and not seriously challenged in this Court, one is left with the inevitable conclusion that Adeyinka Ayinde Olowu lived a Bini man and died a Bini man. Whatever this lex patraie was (here Yoruba) his status as a Bini man remained until he died. His successors in title, be they his children or his Yoruba relations, cannot alter that status. They are all estopped from denying that the late Adeyinka Ayinde Olowu died a Bini man and that the applicable law is Bini Customary Law.

It is for all the reasons given above and the fuller reasons in the lead judgment of my learned brother Coker, J.S.C. that I will also dismiss this appeal with costs to the 1st defendant/respondent which I assess at N300.00.

Appeal dismissed.


SC.101/1984

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