Hadji I. O. Adeniji & Ors v. Tawa A. Adeniji & Ors (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C.

In this matter which was begun by summons in the High Court of Lagos as Suit No. M/149/67-the claims of the plaintiffs now respondents as finally amended were in the following terms:

(1) The distribution of the personal and real properties contained in the estate of Abudu Karimu Adeniji (hereinafter called the deceased) among the surviving children of the said deceased according to Yoruba native law and custom, applicable in Egbaland or alternatively according to the Muslim law of inheritance.

(2) An order empowering the administratrix and administrators of the estate of the deceased to remit the sum of five hundred and fifty five pounds (555pds) to Hakeem Adekunle Adeniji (one of the beneficiaries who is now studying in the United Kingdom) in accordance with the decision of the whole family at a meeting held on the 29th day of August, 1967.

(3) That provision be made for the costs of the application from the estate. ”

The proceedings were originally commenced by Tawa Adenike Adeniji as the only plaintiff against only four defendants-Hadji Ibrahim Oguntake Adeniji; Nimota Abeo as next friend of Nuraini, Mutiu, Muyinat and Yesufu Adeniji; Madam Falilatu (alias Iya Karimat and Jemilat Adeniji); and Ayisatu Aduke as next friend of Raliat Adeniji.

Subsequently a point was successfully taken that as the matter concerns the distribution of the estate of Abudu Karimu Adeniji (deceased) in accordance with native law and custom, all persons interested in, or are likely to be affected by, the result of the proceedings should be made parties thereto. Consequently, by an order of court, the summons was amended on 12th February, 1968. Thereafter, the names of the parties were as follows:

Plaintiff

I. Tawa A. Adeniji (Administratrix)——————-

2. Issa A. Adeniji –
3. Hakeem A. Adeniji (By their attorney Miss T. A. Adeniji) –
4. Taofiq A. Adeniji – Plaintiff
5. Humuliheri A. Adeniji
6. Yakoob A. Adeniji (By his next friend Madam Khadijat Abeni –

AND

I. Hadji I. O. Adeniji (Administrator) – –

2. Mutiu Adeniji
3. Muyinat Adeniji (By their guardian ad litem Madam N. Abeo) –
4. Yesufu Adeniji
5. Karimat Adeniji – Defendants
6. Jemilat Adeniji (By their guardian ad litem Madam Falilat Abeke)-
7. Raliat Adeniji (By her guardian ad litem Madam Ayisatu Aduke) –
8. Nuraini Adeniji

Pleadings were ordered and duly filed and delivered. It appears that with the exception of the 1st defendant, all the parties involved in the case are the surviving children of the deceased whose estate is the subject matter of this appeal. Tawa Adenike Adeniji, the 1st plaintiff, is the eldest daughter of the late Abudu Karimu Adeniji by his first wife, Khadijat Abeni. She is also an administratrix of the estate. Issa A. Adeniji, the 2nd plaintiff, is the first and eldest son of the deceased by the said first wife. Hadji I. O. Adeniji, the 1st defendant and an administrator of the estate, is a younger brother of the deceased; and the 2nd, 3rd and 4th defendants are the children of the deceased by his second wife, Nimota Abeo.

At the trial the view which the learned trial judge (Adedipe J.) took and with which we respectfully agree was that the issues for determination fell under two main heads, namely:

(i) Who was the head of the family of the deceased ; And

(ii) In view of the dispute among the members of the family over the sharing of the estate, what was the proper method of distributing the estate in accordance with native law and custom

In his judgment, the learned trial judge held that a distinction must be drawn between the family of the deceased comprising the deceased, his wives and children and the larger extended family which would include a brother of the deceased; and he did so. He therefore found that the family of the deceased whose estate was for distribution was constituted by the deceased, his wives and his children and no one else.

As this aspect of the learned trial judge’s findings is of vital importance to our decision in this case, we reproduce hereunder the conclusion reached by him on examination of the evidence in the whole case. He said:

“The first plaintiff, as the eldest child of the deceased, has decided that in order to preserve unity among the children of her late father, the method of Ori-Ojori should be adopted in the distribution of the properties. The first defendant, however, contended that he was the head of the family and the person entitled to determine what method should be adopted in the distribution of the estate. In my opinion, the late Abudu Karimu Adeniji, his wives and children constituted a family unit as distinct from Adediran Adeniji family. While I will concede that Alhaji Ibrahim Adeniji, the first defendant, is the head of the extended Adeniji family, I hold that he is not the head of the family of the deceased. It is clear on the evidence before me that there was a dispute among the members of the family as to the mode of distribution of the estate. If there is a dispute between the parties, whoever is the head of the family will have to decide whether the distribution should be by Idi Igi or Ori-Ojori and whatever his or her decision is, is binding on the family.

On the facts of this case, who is the head of the deceased’s family Is it the first plaintiff, Tawa Adenike Adeniji or the second plaintiff, Issa Adeniji, who is the eldest son of the deceased According to Yoruba law and custom, the eldest male child who is of age is always the head of the family.”

And further:

“I have already said that Issa Adeniji, the eldest son of the deceased, was the head of the family and as such he was the one competent to decide what method to be adopted in the distribution of the estate of their late father.”

The present appeal is against the judgment of the learned trial judge from which the above passage is taken. It has been brought by only the 1st, 5th, 6th and 7th defendants (hereinafter to be referred to respectively as the 1st, 2nd, 3rd and 4th appellants). The 2nd, 3rd, 4th and 8th defendants have not appealed. The 1st to the 6th plaintiffs are the respondents.

Altogether five grounds of appeal were filed. The appeal was, however, argued generally before us and the complaints of the appellants emerged under four main heads which are set out hereunder:

(1) That the learned trial judge erred and misdirected himself in law in holding that the 2nd plaintiff was the head of the family of the intestate.

(2) That the learned trial judge, having found that the 1st plaintiff was not, as she had claimed, the head of the family of the deceased, was wrong in law in not ordering that the estate be distributed in accordance with the Idi-Igi method of distribution of estates according to customary law.

(3) That the learned trial judge, having held as he did, that the 2nd plaintiff was the head of the family erred and misdirected himself in law and on the facts in ordering the distribution of the estate on the Ori-Ojori method of distribution when there was no evidence that the 2nd plaintiff at any time ever decided as required by law that the estate should be distributed. And

(4) Judgment is against the weight of evidence.

It is common ground that the 1st appellant is the brother of the deceased and one of the administrators of his estate. The 2nd and 3rd appellants are the children of the deceased by his third wife, Falilatu Abeke, while the 4th appellant is the child of the deceased by his fourth wife, Ayisatu Aduke. It is also common ground that the contest as to the headship of the deceased’s family was only between the 1st respondent and the 1st appellant. The 2nd respondent, Issa A. Adeniji, according to the learned trial judge, was at all times material to the proceedings undergoing a course of study in the United Kingdom. He was not in Nigeria and had therefore to be represented by an attorney duly authorised in that behalf. There is no evidence that he at any time communicated to anyone his decision as to how the estate should be distributed.

In his submissions on the first ground of appeal, Alhaji Oseni, learned counsel for the appellants contended that the learned trial judge erred in law and misdirected himself when he held that the 2nd respondent was the head of Abudu Karimu Adeniji’s family as that issue was not properly before him, there being no claim by the 2nd respondent that he be so declared. It was further contended that the learned trial judge was not entitled to make such a pronouncement in favour of the 2nd respondent, who never at any time asserted or attempted to prove any such claim; and that the said pronouncement was outside the claims of the parties before the court and contrary to the case put forward by either party to the contest.

We think there is great force in these submissions. The question of the headship of the family of the deceased was only contested between the 1st respondent, as the first child and eldest daughter of the deceased, and the 1st appellant, as the brother of the deceased. The 2nd respondent never at any time asserted any claim to the headship. Indeed, if anything, the fact that he was on the same side of the dispute with the 1st respondent and supported her claim would be a clear indication that he fully supported the case put forward by the 1st respondent. The learned trial judge, having reached the conclusion, which he did, that on the evidence, both the 1st respondent and the 1st appellant had failed to establish their respective claims to the headship of the family, we think it would have been sufficient for him merely to find against them in respect of that issue.

We do not accept nor were we impressed by the proposition quite ingeniously, though unconvincingly, put forward by Chief Akin learned counsel for the respondents, that since the issue was one of succession to the headship of a family under customary law, the learned trial judge was entitled and acted within his right to have held as a matter of legal deduction that the 2nd respondent was the head of the family; and that in reaching that decision the court was merely applying the principle established in Lewis v. Bankole 1 N.L.R. 81. This contention might have been sound if the issue had not been joined as it was, and the contest had not been between two clearly identified individuals, who were parties to the proceedings.

In the present case, the issue of headship was not at large nor was the court required to make a general declaration as to who, among all the members of the family, was the head of the family on the death of Abudu Karimu Adeniji (deceased).

The issue of headship of the family was raised even on the pleadings. In paragraph 22 of the statement of claim the respondents pleaded thus:

“Para. 22. The 1st plaintiff, as the head of the family of the deceased, had decided, in order to preserve amity among the children of her late father, that the method of Ori-Ojori should be adopted in distributing the properties.”

In answer to this averment, the appellants pleaded in paragraphs 4, 17 and 18 of their statement of defence as follows:

“Para. 4. Defendants deny paragraphs 12,16,17,19,22,23,24,25 and 26 of the statement of claim and put the plaintiffs to the strictest proof thereof.

17. In further denial of paragraph 22 of the statement of claim the defendants aver that the 1st defendant is the present accepted head of the family and that he supports the basis of distribution under the Idi-Igi system which accords with what had earlier been decided upon by his predecessor in office.
18. The defendants will contend at the trial that the 1st plaintiff is not, has never been and cannot be the head of the family in this case, having regard to all known practice of Yoruba native law and custom and that her alleged decision even if there was a dispute which led to this litigation, which is denied, would be null and void.”

Issues having thus been joined on the pleadings, evidence was called by either side in an endeavour to establish its claim; and the learned trial judge in reviewing the evidence succinctly summed up the contest between the 1st appellant and the 1st respondent in his judgment when he said:

“The 1st plaintiff, as the eldest child of the deceased, has decided that in order to preserve unity among the children of her late father, the method of Ori-Ojori should be adopted in the distribution of the properties.

The first defendant, however, contended that he was the head of the family and the person entitled to determine what method should be adopted in the distribution of the estate.”

The question of the headship of the family was such a vital issue to be determined by the court as between the two claimants that the whole question of the distribution of the estate was tied up with it. As already pointed out the question was not at large, nor was the court required in general terms to declare who was the “Dawodu” or the head of the family on the death of the deceased. We are not satisfied that the principle of law enunciated in Lewis v. Bankole(supra) was rightly applied by the learned trial judge to the facts and circumstances of the present case. It was not competent for the court to make a case of its own or to formulate its own case from the evidence before it, and thereafter to proceed to give a decision based upon its own postulate quite contrary to the case of parties before him. In Samson Ochonma v. Asirim Unosi (1965) N.M.L.R. 321, it was held that the judge was wrong to have based his judgment on an interpretation of the transaction between the parties therein which neither of them had pleaded or testified to in evidence.

We do not, however, think that the learned counsel for the appellants was on a firm ground when he contended on his second ground of appeal that the learned trial judge, having found that the 1st respondent was not the head of the family, erred in failing to order that the estate be distributed in accordance with the Idi-Igi method of distributing estates on intestacy under the Yoruba customary law. This submission overlooks the fact that the 1st appellant’s claim to the headship of the family was also rejected by the learned trial judge.

In view of the findings of the learned trial judge, it seems to us that the decisions by both the 1st respondent and the 1st appellant as to how the estate should be divided were irrelevant, since neither of them was held to be the head of the family. To hold otherwise would be to give a decision contrary to the principles established in Suwebatu Danmole and four Others v. Issa.Dawodu and 11 Others (1958) 3 F. S. C. 46. which the learned trial judge, quite properly accepted and correctly interpreted although, with respect, he misapplied them.

The most important principles laid down in the case, in so far as they are relevant to the decision of the learned trial judge in the present case, were:

(1) That the Idi-Igi method of distribution of the estate of a deceased person is an integral part of the Yoruba native law and custom;

(2) That since it is a universal method it should be adopted except where there is a dispute among the descendants of the intestate as to the proportions into which the estate should be divided;

(3) That where there is such a dispute the head of the family is empowered to and should decide whether Ori-Ojori ought in the particular case to be adopted instead of Idi-Igi; and

(4) That any such decision must prevail.

This brings us to a consideration of the third and fourth grounds of appeal which are to the effect that the learned trial judge erred in law and misdirected himself on the facts by ordering that the estate be divided in accordance with the Ori-Ojori method of distribution and that such a decision was against the weight of evidence. It was contended by the learned counsel that it was wrong for the court to have ordered that the estate be so distributed in the absence of evidence of any decision having been taken by the head of the family as to the mode of distribution.

It occurs to us that the learned trial judge, having found that there was a dispute as to how to distribute the estate; and that the 2nd respondent was the head of the family, there being no evidence that he as such had taken a decision as to how the estate ought to be distributed, it was not competent for the learned trial judge to have ordered a distribution in the manner in which he did. Indeed it was clearly conceded by Chief Akin learned counsel for the respondents, that there was no evidence that the 2nd respondent had at any time communicated to anyone his decision as to the method of distributing the estate, or indeed that he had ever taken any such decision.

With respect, we hold, that the learned trial judge fell into an error and, indeed, misdirected himself in law when in the underquoted passage of his judgment he said:

“As Issa Adeniji is one of the plaintiffs, I can only infer from this that his decision was that the estate be distributed by the method of Ori-Ojori.”

There was no ground whatsoever for such an inference. On the face of the proceedings, the case was fought on the basis that the 1st respondent was the head of the family and that the decision that the estate be distributed on the Ori-Ojori method was both on the pleadings and on the evidence exclusively attributable to the 1st respondent. The 2nd respondent supported the 1st respondent’s case, and was at all times merrial loal the proceedings in the United Kingdom.

In our view in the absence of a decision by the 2nd respondent, a dispute having arisen as to how the estate should be distributed among its beneficiaries, it follows that the judgment of the learned trial judge cannot be sustained. It would be unjust and inequitable to deprive the 2nd respondent of the opportunity of exercising his right and discharging the obligation imposed upon him by law, as his decision in such a situation must prevail.

For these reasons, this appeal succeeds, and it is allowed. The judgment and order of the learned trial judge in the High Court of Lagos Suit No. M/149/67 dated 29th September, 1969 are hereby set aside. It is ordered that the action by the respondents be and it is hereby dismissed with costs to the appellants in the High Court fixed at 75 guineas and in this Court at 73 guineas. Order accordingly.

Other Citation: (1972) LCN/1467(SC)