Marian Asabi Craig V Victoria Emmanuel Craig And Anor (1966)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The appellant was the defendant in an action instituted in the High Court of Lagos by the respondents. The writ was endorsed as follows:-

“The plaintiffs seek a declaration that as the next of kin of Moses Craig, deceased, they are entitled as against the defendant to possession of the house and landed property situate at and known as 26s Ilubinrin, Marina, Lagos.”

By their pleadings the plaintiffs/respondents aver that the property, No. 26s, Ilubinrin, Marina, Lagos, originally belonged to one Moses Olusheye Craig who died intestate on the 8th June, 1957, and was survived by his wife, Mrs Patience Kehinde Craig, to whom he was married under the Marriage Ordinance in 1922. They say that they are a brother and sister of the said Moses Olusheye Craig. Their Statement of Claim also avers that there was no child of the marriage between Craig and his wife but that during the subsistence of that marriage, Craig had a child by name Olushina through his association with the appellant. Mrs Patience Kehinde Craig died intestate on the 6th January, 1958, and the child, Olushina, died on the 16th April, 1960. Paragraphs 12 and 13 of the Statement of Claim read as follows:-

“12. Wherefore the plaintiffs seek a declaration that as the next-of-kin of Moses Olusheye Craig, (deceased) they are entitled as against the defendant to possession of the house and landed property situate at and known as 26s Ilubinrin, Marina, Lagos.

13. In the alternative the plaintiffs seek a declaration that the property 26s Ilubinrin, Marina, is part of the estate of Moses Olusheye Craig, and that as administrators of the intestate estate they are entitled to administer the property as part of the estate of the deceased.”

By her Statement of Defence, the appellant, who was the defendant in the court below, avers that the late Moses Olusheye Craig had other brothers and sisters apart from the plaintiffs, that she was married to him under Yoruba native law and custom in 1925 and that the child, Olushina, born on the 4th April, 1939, was an issue of such marriage and his paternity was fully acknowledged by the late Craig. The Statement of Defence further states that on the death intestate of Craig his interest in the property, No. 26B Ilubinrin, Marina, Lagos, passed to his son, Olushina and that on the death intestate of Olushina in 1960, the defendant inherited the property.

The Statement of Defence further avers that in the alternative, the defendant will claim that she was entitled to succeed to the property as the survivor of joint owners since she had contributed her own money to the cost of the building. The Statement of Defence finally avers that in any case the plaintiffs must fail inasmuch as they had sold the property to a stranger.

The parties called evidence at the trial and the learned trial judge who heard the case did not accept the evidence that the defendant was a joint owner of the property with the deceased nor did he accept the evidence that the defendant was married to the deceased by native law and custom. Rather he took the view that as the deceased was married under the Marriage Ordinance, section 36 of the Marriage Act must apply to the distribution of his estate. He gave judgment in favour of the plaintiffs for the declaration they sought with costs.

A number of grounds of appeal were filed and argued but it is only necessary to refer to those upon which the appeal must turn.

On their writ the plaintiffs claim to be entitled to the declaration they sought as the next-of-kin of the late Craig. ‘this statement is repeated in paragraph 12 of the Statement of Claim. By paragraph 13 of the Statement of Claim, however, they ask for a declaration that as administrators of his estate they are entitled to administer that property as part of the estate of the deceased. The learned trial judge did not seem to have dealt with paragraphs 12 and 13 of the Statement of Claim separately and all that appears in the judgment is the concluding passage which reads as follows:-

“I am satisfied that the plaintiffs have proved their case. I am therefore, obliged to hold that they are entitled to a declaration as prayed.”

Mr Oseni for the appellant has tried to belabour the point that it is uncertain which of the declarations the judge had granted. We observe, however. that paragraph 13 of the plaintiffs’ Statement of Claim did not appear to have engaged the attention of either of the parties throughout the trial and neither of the parties adverted to its contents during the final addresses of counsel to the court. No evidence was led touching the point and the case was fought on the basis that the plaintiffs were claiming as the next-of-kin of the deceased. It is therefore, not unreasonable to conclude that the declaration made by the learned trial judge was for the plaintiffs in their capacity as the next-of-kin of the deceased.

Ground 3 of the grounds of appeal complains that the learned trial judge misdirected himself by holding that there was no issue of the marriage between Moses Olusheye Craig and Patience Kehinde Craig when there was no such evidence before him. The relevant portion in the judgment reads as follows:-