Timothy Tanloju Adesubokan Vs Rasaki Yunusa (1971)

LawGlobal-Hub Lead Judgment Report

ADEMOLA JSC 

This is an appeal from the judgement of Bello, I. in the High Court of the North-Central State holden at Kaduna. The claim in that court against the defendant is for “a declaration that the probate dated 29/6/66 granted to the defendant in the matter of Yunusa Atanda Saibu (deceased) be revoked as the said Yunusa Atanda Saibu was a Moslem, died as a Moslem and left heirs and wives who are all Moslems”. The defendant is the sole executor of the said Yunusa Atanda Saibu. Pleadings were ordered and filed. The relevant paragraphs of the statement of claim are paragraphs 4, 5 and 7 which are as follows:-

“4. The said Yunusa Atanda Saibu being a Muslim was not entitled to make such a will and probate should not have been granted in respect of the will, and as such should be revoked. The said will having contained bequests to heirs.

5. The said Yunusa Atanda Saibu was survived by three children including the plaintiff and one wife, all of whom are Muslims, and his estate had been distributed by the native court at Zaria.

7. WHEREOF, the plaintiff claims that the said probate should be revoked and estate of the deceased be distributed according to Muslim law.”

Paragraphs 3, 7, 8, 9, 10 and 11 of the statement of defence are also relevant. They are:-

“3. Save that the defendant will plead res judicata in respect of the distribution of the estate of the testator by the Native Court of Zaria, the defendant denies paragraph 5 of the statement of claim and puts the plaintiff to the strict proof thereof.

7. The defendant avers that the testator was a native of Lagos and was until his death domiciled in Lagos; he was employed by Nigerian Railways in 1930 at Ebute-Metta, Lagos and the Railways transferred him to Zaria where he died on the 31st August, 1965.

8. The defendant will contend at the trial of this action that the defendant at all material times are not bound by nor are they subject to the native law and custom of Zaria and that they are only subject to the native law and custom of Lagos.

9. The defendant will contend at the trial that the native law and customs of Lagos permit natives of Lagos irrespective of their religions to dispose of all their personal and real property by a will.

10. The defendant will contend at the trial that the testator did not make the will dated 7th July, 1965 under Moslem law, but in accordance with the provisions of the Wills Act, 1837 an Act of general application throughout the Federation of Nigeria.

11. The defendant will at the trial rely on the will dated 7th July, 1965 and its probate granted on the 29th June, 1966.”

The learned trial judge in a considered judgement found the following facts:-

“I may summarise my findings as follows: