Legalpedia Citation: (2025-03) Legalpedia 53643 (SC)

In the Supreme Court of Nigeria

Fri Dec 13, 1985

Suit Number: SC.101/1984

CORAM

MOHAMMED BELLO – Justice of the Supreme Court

ANDREWS OTUTU OBASEKI – Justice of the Supreme Court

MUHAMMADU LAWAL UWAIS – Justice of the Supreme Court

DAHUNSI OLUGBEMI COKER – Justice of the Supreme Court

CHUKWUDIFU AKUNNE OPUTA – Justice of the Supreme Court

PARTIES

1. Adeniyi Olowu
2. Tunji Olowu
3. Ronke Olowu (For themselves and on behalf of the beneficiaries of the estate A.A. Olowu under Yoruba custom)

APPELLANTS

1. Olabowale Aremu Olowu
   2. Babatunde O. Olowu (Administrators to the estate Of late A.A. Olowu)

RESPONDENTS

AREA(S) OF LAW

Customary Law, Personal Law, Inheritance And Succession, Administration Of Estates, Native Law And Custom, Conflict Of Laws, Change Of Personal Status, Distribution Of Intestate Estate, Cultural Identity, Evidence, Practice And Procedure.

SUMMARY OF FACTS

The case involved the distribution of the estate of Adeyinka Ayinde Olowu who died intestate. The parties to the proceedings were his children who were all born to his Benin wives. Adeyinka Ayinde Olowu, though of Yoruba (Ijesha) origin, had lived in Benin City from childhood until his death and acquired considerable properties there. Evidence showed that during his lifetime, the deceased had applied to the Oba of Benin to be “naturalised” as a Benin indigene, which conferred on him the right to acquire absolute title to landed properties in Benin City as any native of that city.

Following his death, the 1st and 2nd Defendants (now Respondents) were appointed as co-administrators of his estate. The 1st Defendant subsequently distributed the estate according to Benin Native Law and Custom. The Plaintiffs (now Appellants) were dissatisfied with this distribution and brought an action seeking the removal of the Defendants as administrators, nullification of the distribution under Benin Native Law and Custom, and a directive that the estate be distributed according to Yoruba custom of inheritance. They contended that the deceased remained culturally a Yoruba man until his death.

The trial court dismissed the Plaintiffs’ claims, finding that the deceased had voluntarily relinquished his Yoruba cultural heritage and had become a Benin indigene by “naturalisation,” making Benin Native Law and Custom the proper personal law for the distribution of his estate. The Court of Appeal affirmed this decision, and the Plaintiffs further appealed to the Supreme Court.

HELD

The appeal was dismissed.

The Court held that the deceased had acquired Benin status through what was termed “culturalisation” or “naturalisation” in the customary law sense, and that Benin Native Law and Custom was the proper personal law applicable to the distribution of his estate.

The Court found that the Plaintiffs failed to prove why the distribution under Benin Native Law and Custom should be nullified, and also failed to prove the Yoruba/Ijesha customary law of distribution which they pleaded.

The Court awarded costs of N300.00 to the 1st Defendant/Respondent.

ISSUES

1. Whether the judgment dismissing the Plaintiffs’ claim is wrong in law, the Court below having held that the relevant Benin Customary law was not proved at the trial?
2. Whether in the absence of an order of Court, the distribution of the estate of the intestate by one of the two administrators without the concurrence of the other administrator is valid and binding on the other administrator?

RATIONES DECIDENDI

CHANGE OF PERSONAL LAW BY CHOICE — WHETHER A PERSON CAN RENOUNCE HIS CULTURAL HERITAGE AND ADOPT ANOTHER:

The net result is that Plaintiffs failed to prove their case. See Bornu Holding Co. Ltd. v. Bogoco (1971) 1 All N.L.R.324 at p.333 where Lewis, J.S.C., said: ‘A Plaintiff is only entitled to judgment if a trial Judge believes and accepts his evidence and if such evidence supports his case and merely because he rejected the defendants’ evidence did not entitle him to find for the Plaintiff. – Per DAHUNSI OLUGBEMI COKER, JSC

BURDEN OF PROVING CUSTOMARY LAW — ONUS ON PARTY PLEADING IT:

It is my view that both contentions are misconceived, for the onus of proof in either case was on the Plaintiffs who pleaded the facts and relied on them for their case. See Kate Enterprises Limited v. Daewoo Nigeria Ltd. (1985) 2 NWLR 116, pp.127-128; and Vincent I. Bello v. Magnus A. Eweka (1981) 1 S.C. 101 pp. 120-122. – Per DAHUNSI OLUGBEMI COKER, JSC

FAILURE TO PROVE CUSTOMARY LAW — EFFECT ON PLAINTIFF’S CASE:

It has been established, for a very long time now, that in a case seeking declaration of title to land, the onus lies on the Plaintiff to establish the title which he claims, and he would, in that process, have to rely on the strength of his own case and not on the weakness of the defendant’s case. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336. – Per DAHUNSI OLUGBEMI COKER, JSC

DEFINITION OF CULTURAL ASSIMILATION OR “NATURALISATION” IN CUSTOMARY LAW:

In the course of the submissions by learned counsel for Appellants we cut in to point out that he was confusing the term ‘naturalisation’ as understood in International Law and indeed in Constitutional Law with the use made of it by the learned trial Judge. In the latter context for want of a better word the popular use of the expression implies the internal acquisition of a status within a community which assimilates a member of the stranger element to rights and liabilities which within that Community are inherent in indigenes of that Community. – Per JOSEPH OMOTUNDE OKAGBUE, JCA

EFFECT OF CHANGE OF PERSONAL STATUS — APPLICABLE LAW OF SUCCESSION:

The deceased had voluntarily chosen to become a Bini and the evidence relating to the consequences of his choice under Benin native law and custom, I am satisfied the Court of Appeal rightly upheld the decision of the trial Judge. – Per MOHAMMED BELLO, JSC

SUCCESSION TO IMMOVABLE PROPERTY — APPLICATION OF LEX SITUS:

The landed properties are all in Bendel State, the larger part of which are in Benin City. As a general principle of law, succession to immovables is governed by the lex situs, that is, the law of the place where the land is situated. In this case, the customary law of the Benin people. – Per DAHUNSI OLUGBEMI COKER, JSC

ESTOPPEL FROM DENYING FATHER’S CHANGED STATUS — CHILDREN BOUND BY STATUS THAT ENABLED ACQUISITION OF PROPERTY:

All the children of the late A.A. Olowu are estopped from denying that their father though of Yoruba extraction lived and died a Bini man. They are required to abide by that assumption because it formed the conventional basis upon which the late Adeyinka Ayinde Olowu acquired his properties in Benin. – Per CHUKWUDIFU AKUNNE OPUTA, JSC

ROLE OF DAWODU (ELDEST SON) IN CUSTOMARY ADMINISTRATION OF ESTATE:

There have been several decisions of the Courts on the customary law of succession and distribution amongst the Yorubas. The issues of a deceased person on intestacy succeed to his properties. Not his relations: Lewis v. Bankole, I NLR. 82, 102 and S.J. Adeseye & Ors. v. S.F. Taiwo, 1 F.S.C.C. 84 are authorities in support of the view that on the death intestate of the founder of the family, his eldest son, who is the ‘Dawodu’, becomes the head of the family and he takes over the management of the estate of the deceased for himself and other members of his issues. – Per DAHUNSI OLUGBEMI COKER, JSC

MERE SETTLEMENT WITHOUT ASSIMILATION — EFFECT ON PERSONAL LAW:

Subject to any statutory provision to the contrary, it appears from both cases that mere settlement in a place, unless it has been for such a long time that the settler and his descendants have merged with the natives of the place of settlement and have adopted their ways of life and customs, would not render the settler or his descendants subject to the native law and custom of the place of settlement. – Per MOHAMMED BELLO, JSC

CONFLICT BETWEEN PERSONAL LAW AND LEX SITUS — HOW TO RESOLVE:

The principle is that the children of the late A.A. Olowu will not be allowed to take advantage of and enjoy the properties acquired by their father as a Bini man while in the same breath denying his Bini Status and asking the court to apply as it were, the ‘Renvoi doctrine’ which will send the matter back to Yoruba Customary Law for determination. – Per CHUKWUDIFU AKUNNE OPUTA, JSC

CHANGE OF PERSONAL LAW BY CHOICE — COMPARISON WITH STATUTORY MARRIAGE:

The classical case of Cole v. Cole (1898) NLR 15, which has been followed by a plethora of cases since then, converts into an English man or woman for the purpose of distribution of his or her estate upon his or her death intestate any Nigerian irrespective of his or her customary law who contracts a marriage by Christian rites or according to English law. – Per MOHAMMED BELLO, JSC

EFFECT OF POLITICAL CONSTITUTION ON CULTURAL IDENTITY:

Since the attainment of independence and the acquisition of Nigerian citizenship in 1960, the need for naturalisation or culturisation as my learned brother Bello, J.S.C. chose to call it no longer arises. With the promulgation of the Land Use Decree, the greatest asset which each individual ethnic community had has been made available to all Nigerians. – Per ANDREWS OTUTU OBASEKI, JSC

PROVING CONTENT OF CUSTOMARY LAW — BURDEN OF PROOF:

On a careful consideration of the Evidence in this case I do not think that the Benin Native Law and Custom of distribution of a deceased property was proved and is therefore impossible for me to state whether the distribution in Exhibit ‘F’ is equitable in the circumstances or not in accordance with the said law. It is clear however that everyone got something though not exactly what each wanted. – Per DAHUNSI OLUGBEMI COKER, JSC

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)
• Administration of Estates Law, Cap. 1 Laws of Western Region of Nigeria, 1959 (now Cap.2 Laws of Bendel State 1976)
• High Court Law, Cap 44 Laws of Western Nigeria 1959 (now Cap 65 Laws of Bendel State 1976)
• Wills Law, Cap. 172 Vol. 6 Laws of Bendel State 1976
• Land Use Act 1978
• Constitution of the Federal Republic of Nigeria 1979
• Marriage Act, Cap 115 Laws of the Federation of Nigeria and Lagos 1958

CLICK HERE TO READ FULL JUDGMENT