O. Thompson Oke & Anor v. Robinson E.A Oke & Anor (1974)
LawGlobal-Hub Lead Judgment Report
ELIAS, C.J.N.
This is an appeal from the judgment of Obaseki J. delivered in the Warri High Court on March 13, 1970 in which the plaintiffs’ claim was upheld. The amended claim, as endorsed on the writ of summons, reads:
(1) The plaintiffs’ claim as the eldest son and eldest daughter respectively and two of the persons entitled, in the event of an intestacy, to share in the estate of Joseph Egbegberuvwe Oke later of 43 Warri/Sapele Road, Warri, within the jurisdiction of this Honourable Court, who died on the 10th day of December, 1960, to have probate of a pretended will of the said deceased granted on 28th March 1963 revoked, and the letters of Administration of the estate of the said deceased made to plaintiffs on the 4th July 1962 pronounced for as regards its legal force and validity. The writ is issued against the said O. Thompson Oke and Moses Oke as executors and beneficiaries under the said pretended Will.
(2) Alternatively the plaintiffs claim that this Honourable Court shall decree probate of the said Will in solemn form of law.
(3) The plaintiffs’ further claim against the defendants jointly and severally is for a declaration that the defendants are not entitled to share in the immovable part of the residuary estate of Joseph Egbegberuvwe Oke, the parties’ deceased father, comprising the house and property lying and situate at and known as No. 43, Warri/Sapele Road, Warri.
(4) Alternatively the plaintiffs’ claim is for a declaration that the 1st plaintiff as eldest son of the deceased aforesaid succeeds to the said No. 43 Warri/Sapele Road, Warri, to the exclusion of all the other parties to this suit in accordance with Urhobo and/or Itsekiri (Warri) customary law of succession.
Pleadings were ordered and duly filed. A testator, a retired police officer, aged about 96 years, died on December 10, 1960, having devised by Will a property at No. 43 Warri-Sapele Road, Warri, to one of his sons who is the first defendant in the present case, while the second defendant is one of the executors of the Will. The plaintiffs are the eldest son and daughter of the testator whose mother, being an Agbassah woman, permitted her husband (an Urhobo man from Central Urhobo), to build a house and some adjoining apanments on a parcel of her family land, and the husband (testator) lived therein during his lifetime. The defendants are the younger sons of the testator. The plaintiffs, with the consent of the family, took out letters of Administration on July 4, 1962 in the belief that their father had died intestate, but two years after the father’s death, the first defendant deposited a disputed Will on August 17, 1962 with the Probate Registry at Ibadan and he was the principal beneficiary under the Will. Probate of the Will was duly granted to him on March 28, 1963.
The plaintiffs attacked the Will on various grounds, the chief of which were that it was not duly executed according to law and that, at any rate, the testator had no testamentary capacity to devise or otherwise dispose of No. 43 Warri-Sapele Road, Warri, his only landed property and house in which he lived and died, to the first defendant or, indeed, to anyone else save the first plaintiff who alone as the eldest son is legally entitled to inherit the same at all events under the Urhobo and/or Itsekiri customary law of succession. The plaintiffs relied on S.3(1) of the Wills Law, Cap. 133 of the Revised Edition of the Laws of the Western State applicable in the MidWestern State and also S.13 of the High Court Law No.9 of 1964 of the Mid-Western State.
The defendants denied that the testator made no Will or testamentary disposition of his property at No. 43 Warri-Sapele Road that the deceased had no testamentary capacity to devise or dispose of the same to the 1st defendant, that the Will was a forgery as alleged by the plaintiff, that the Will was not duly executed according to law, that the testator was not of sound mind, memory and understanding when the Will was executed, and that the plaintiff is entitled to the house whether or not the deceased died intestate, testate or partially intestate in the house in which the deceased testator lived during his lifetime. The defendant called as a witness Mr. R.O.I. Ogbobine, a qualified Legal Practitioner who is now a Judge of the High Court of the Mid-Western State, who prepared the Will and from whose custody it was produced, and who testified to that effect confirming the deceased testator’s sanity and understanding at the material time.
The plaintiffs called 8 witnesses, while the defendants called 5. Chief George Cousin Mosheshe (P.W.1), a man aged about 78 years gave evidence as to the Urhobo customary law of inheritance, according to which a house in which a deceased father lived during his lifetime must be inherited by the eldest son, if any, and added that the personal effects of the deceased would then be distributed per stirpes among all the children of the deceased father. He concluded his evidence that these rules as to succession could not be varied by the family. Chief Samuel Osawere Ologide (P.W.3) gave evidence that he was a relation of the plaintiffs’ mother who was a member of the land-owning family to which he also belongs. He stated that the plot of land on which the testator built the house in question was given to the plaintiffs’ mother by the oldest man in Agbassah named Ogigide, the grandfather of the plaintiffs’ mother. The 2nd, 4th, 7th and 8th witnesses of the plaintiffs gave corroborative evidence of these facts. The 1st plaintiff gave evidence in support of his contention that the father’s Will was not properly executed and that he was not of sound mind and memory when he executed it, if he did at all; he even asserted that the Will was a forgery. He denied that the Will was ever presented to the family by Mr. Ogbobine as alleged by both the lawyer and the defendant. The 2nd plaintiff also gave similar evidence, admitting under cross-examination that the 1st defendant lived with their father for four years before the latter’s death but that she was the one who really looked after the father all that time. After hearing the evidence of both plaintiffs and defendants, the learned trial judge held that the Will (exhibit ‘A’) satisfied the requirements of the Wills Law (Cap.133) of the Laws of Western Nigeria applicable in the Mid-West, and that it was validly executed. He also held that the testator was of sound mind and memory when he executed the Will. On the issue of the testator’s capacity to devise the house in question, the learned trial judge held that, since the validity of the disposition of the house by Will is to be determined by Urhobo Customary Law, Section 13 of the High Court Law of the MidWestern State did not apply to oust the Urhobo customary law of succession.
It is against this decision that the appellants have appealed to this Court on the following 7 grounds:
(1) That the judgment of the lower Court is against the weight of the evidence.
(2) The learned trial Judge erred in law in holding that the combined effect of S.3(1) of the Wills Law and S .13(1) of the Midwestern Nigeria High Court Law, is to give the High Court power to enforce the restriction placed by customary law on the powers of a testator to dispose by Will under the Wills Law property which he cannot dispose of by Will or instruction to be carried out on his death under customary law, when in fact, no restriction whatsoever is placed by customary law on the powers of a testator to dispose of his real and personal estates by Will under the Wills Law Cap. 133 Laws of Western Nigeria 1959 applicable to the Midwestern State of Nigeria.
(3) The learned trial Judge having said, “I therefore hold the Will has been validly executed” erred in law in holding that, “the customary law I have accepted makes it unlawful to deprive the eldest son of the house where his father lived and died and as such the devise of that house to any other person or child and in this case to the 1st defendant Thompson Oke by Will cannot stand” when in the case the enforcement and observance of Urhobo customary law was clearly directly incompatible with the Wills Law, Cap. 133 Vol. VI Laws of West em Nigeria 1959 applicable to the Midwestern State of Nigeria and also repugnant to natural justice, equity and good conscience.
(4) The learned trial Judge erred in law holding that “the provision in the Will of Joseph Edward Oke (deceased) dated 12th April, 1957 devising the house, No. 43 Warri-Sapele Road, Warri, to Oritsetsegbemi Thompson Oke the 1st defendant is contrary to Urhobo and Itsekiri customary law and as such is invalid and of no effect” in that (according to the learned trial Judge the testator under Urhobo and Itsekiri customary law cannot deprive his eldest son of the house where he lived and died.
(5) The learned trial Judge erred in law in entertaining the 3rd item of claim in the amended claim when under the proviso to S.10(1) of the High Court Law of the Mid-Western State of Nigeria 1964, he could not exercise original jurisdiction in matters of succession, inheritance and devolution of property on death since these matters were and are subject
to the jurisdiction of the customary courts of the Midwestern State of Nigeria.
(6) The learned trial Judge misdirected himself upon the facts when he decreed No. 43, Warri-Sapele Road, Warri in favour of the 1st plaintiff even though the evidence disclosed that there were three (3) separate houses at No. 43, Warri-Sapele Road, Warri, and the deceased could not have lived and died in all three at the same time.
(7) By holding that “The evidence before me has made no distinction between reality and personality and there is no evidence before me on which I can find that an Urhobo man in Warri on his death is to have his property distributed in accordance with Itsekiri custom. I therefore hold that it is Urhobo customary law that will determine succession to the estate of Joseph Edward Oke (deceased)” the learned trial Judge misdirected himself in law and on the facts in that there was no evidence also from the plaintiffs that the property of an Urhobo man in Warri be it reality or personality is governed on his death by Urhobo customary law of succession.
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 S.3(1) of the Wills Law should be tested on appeal. The provision of S.3(1) 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 Subsection 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 would not otherwise have. The introductory phrase “subject to any customary law relating thereto” 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. In the instant case, it is clear that the property in question is part of the family land on the plaintiffs’ mother.
In law, the proper construction to be placed upon it is that the mother was allowed this portion on which she permitted her husband to erect the house so that she and he might live there for the rest of their lives. Being an unpartitioned allotment of her family land, she had no right to give it away to her husband. In Taylor v. William & Anor. (1935) 12 N .L.R. 67, it was held that a woman could not devise her unpartitioned portion of family land to her son, and the view was also expressed that she could not in any other way dispose of it to the son. The son might ultimately inherit the property on the death of his mother, but she could not devise it to him by Will. That proposition of law was founded upon the earlier case of Ogunmefun v. Ogunmefun (1931) 10 N.L.R. 82, in which it had been held that when the grandfather of the testatrix died intestate his absolute fee simple estate had devolved upon his descendants as family property and that the testatrix as one of the latter could not devise her share in her own father’s land to certain of her relatives. Also in Davies v. Sogunro & Ors. (1936) 13 N.L.R. 15, it was held that a member of a land-owning family could not devise his unpartitioned portion by Will. It was claimed that the testator had been married under the Marriage Ordinance and that by virtue of S.36 of that Ordinance, his property must on his death intestate be distributed according to English law. It was held, however, that the testator had no right to dispose by Will of his share in his father’s estate, since S.36 of the Marriage Act did not apply, the customary law of succession being the only applicable law. It seems to us quite clear, therefore, that the testator in the instant case, could not devise the property as he purported to have done to any person other than his first son, in accordance with the Urhobo-Itsekiri customary law of succession. This disposes of grounds 2 and 3 as argued by learned counsel for the appellants.
Mr. Ajuyah’s main contention under ground 5 was that only a customary court can entertain issues of succession as a court of fIrst instance, and that the Warri High Court was wrong to have entertained the present action as it had done. We think that, on the state of the pleadings of both parties, the trial Judge was right in looking at the formal, as well as the essential validity of the Will, that is, including the fact as to whether or not the devise was valid. We appreciate that it sounds apparently contradictory to hold that the Will is validly executed while at the same time questioning the validity of the devise under it; but we think that the two things are different and that, in a case of this kind, the learned trial Judge could not have resolved the issues raised before him by refusing to consider both aspects as he did. At this stage, Mr. Ajuyah decided to abandon his other grounds of appeal.
Dr. Odje, learned counsel for the respondents, made a brief reply in which he supported the judgment appealed from, and referred us to his crossappeal which relates to the question whether the testator really understood the content of the Will. He did not, however, pursue this matter. Learned counsel nevertheless pointed out that the Will in question mentions only the personal effects of the testator and does not include the house, so that if anything were to have passed at all to the Ist defendant, it would be only the personal effects, excluding the house in dispute. We are, however, satisfied that the Will does mention the house (See Exhibit’ A’).
Mr. Ajuyah tried to show that No. 43 Warri-Sapele Road consists of 3 houses and that the respondent could only get the one house in which the testator lived and died, the remaining two going to the appellants. We think, however, that No. 43 Warri-Sapele Road was, for the purposes of the case in hand, regarded by all parties as only one house consisting of a complex of three units.
In view of the opinion that we have expressed in the fore-going, we think that the appeal fails and it is hereby dismissed. We confirm the judgment of Obaseki, J., in Suit No. W/9/65 delivered at Warri High Court on March 23,1970, including the order as to costs. We award to the respondents in this appeal costs assessed at N115 against the appellants.
Other Citation: (1974) LCN/1808(SC)