Kharie Zaidan Vs Fatima Khalil Mohssen (1973)

LawGlobal-Hub Lead Judgment Report

ELIAS, C.J.N.

This is an appeal from the judgment of Ovie-Whiskey, J., delivered in Suit No. W170/66 at the High Court, Warri, in which the plaintiff (herein respondent) claimed against the defendant (herein the appellant) in her final amended claim as follows: –

“A declaration that the defendant is not entitled to a share in the residuary estate of the late Y .K. Zaidan-deceased.”

In the alternative, the plaintiffs claim is that the said residuary estate is to be distributed in accordance with Moslem Law”.

In her final amended counter-claim, the defendant sought a declaration that she is entitled to:-

“(1) 5/6 (five sixths) of the residue of the immovable part of the estate of Yussuf Khalil Zaidan (deceased) lying and situate in Warri registered as No. 48 at page 48 in Volume 324, No. 11 at page 11 in Volume 480 and No. 11 at page 11 in Volume 484, of the Lands Registry in the office at Ibadan now at Benin City; together with all the houses, structures, etc., thereon and/or permanently attached thereto:

(2) A further portion of the estate aforesaid equivalent to interest at 2% per annum charged on the said estate from the 22nd August, 1964 (date of the deceased’s death) until payment or appropriation, which has not been made; both reliefs claimed above being based on the Administration of Estates Law Cap. 1 Laws of the Western State of Nigeria, 1959;

(3) 1/4 (one-fourth) of the movable part of the residuary estate of the deceased especially the deceased’s movable property situate in the Lebanon, in accordance with the Lebanese Moslem Law of the school and/or sect known as Jaafarite;

(4) An order for payment over to the defendant of her share of the residuary estate to which she is entitled;

(5) Any other relief and/or order which this Honourable Court may deem fit to grant and/or make in the circumstances.”

It is common ground that the parties are Lebanese Moslems, that the deceased husband, Yussuf Khalil Zaidan, died domiciled in Lebanon and intestate, and that he was survived by the defendant wife also domiciled in Lebanon and by the plaintiff who is his mother who had given her son, Hussein Khalil Zaidan, a power of attorney to sue on her behalf. Hussein Khalil Zaidan has long been resident in Nigeria with his deceased brother prior to the latter’s death, but the mother and other surviving relatives have never been to Nigeria.

It is also common ground that the deceased left an estate consisting of leasehold properties, Nos. 1 – 8 Khalil Road, Warri (see Exhibits J, K and L), and the “Delta Cinema-scope” theatre, Warri; he, however, left no building or house in Lebanon. In their final addresses before the Warri High Court, learned counsel for both parties admitted that the defendant and the deceased were lawfully married in accordance with Moslem law, and both counsel relied on the judgment of the Supreme Mohammedan Jaafarite Religious Court of the Republic of Lebanon (Exhibit H) dated 10th May, 1972 as proof of the validity of the Moslem marriage.

At the hearing, the plaintiff’s attorney and three other witnesses gave evidence, but the defendant did not give evidence nor call any witness. The plaintiff and his witnesses testified that, according to the Koran, the surviving wife of a childless Moslem marriage, takes one quarter of her deceased husband’s estate, while the mother as the only surviving parent takes three quarters after payment of the intestate’s debts (if any) and other necessary expenses. As the defendant had not contradicted this evidence, nor adduced any in support of her counter-claim which the plaintiff strenuously denied in her statement of defence to the counter-claim, the learned trial judge found for the plaintiff on this point. He also found it proved that the defendant and the deceased were lawfully married under the Moslem Law of Lebanon and that they lived as husband and wife until the husband died in Lebanon on 22nd August, 1964. The learned trial judge then observed:

“It is clear from the evidence before me that only the leasehold properties referred to above constitute the estate of Yussuf Khalil Zaidan-deceased. All the estate is situate in Warri in the Mid-Western State of Nigeria. ”