CYPRAIN PETER OBUSEZ & ANOR V. MRS. SYLVIA TECKIA OBUSEZ & ANOR

Legalpedia Citation: (2007-04) Legalpedia 18349 (SC)

In the Supreme Court of Nigeria

Fri Apr 27, 2007

Suit Number: SC.405/2001

CORAM

Aloysius Iyorgyer Katsina-Alu Justice of the Supreme Court of Nigeria

Umaru Atu Kalgo Justice of the Supreme Court of Nigeria

Niki Tobi Justice of the Supreme Court of Nigeria

Aloma Mariam Mukhtar Justice of the Supreme Court of Nigeria

Mahmud Mohammed Justice of the Supreme Court of Nigeria

Walter Samuel Rkanu Onnoghen Justice of the Supreme Court of Nigeria

Drancis fedode tabaiJustice of the Supreme Court of Nigeria

PARTIES

CYPRAIN PETER OBUSEZ
EDWARD OBUSEZ

APPELLANTS

MRS. SYLVIA TECKIA OBUSEZ
ADEMOLA GIWA

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, FAMILY LAW, SUCCESSION, ADMINISTRATION OF ESTATES, INTESTACY, STATUTORY INTERPRETATION, JURISDICTIONAL COMPETENCE, CUSTOMARY LAW, MARRIAGE LAW, CONFLICT OF LAWS

SUMMARY OF FACTS

The case revolves around disputed succession rights to the estate of the late Cornelius Paul Obusez, who died intestate on May 29, 1988. The deceased had married the 1st respondent (Mrs. Sylvia Teckia Obusez) under the Marriage Act on July 8, 1972, and they had five children together. The appellants are the brothers of the deceased, with the 1st appellant being his twin brother.

The respondents initiated an action at the High Court of Lagos State seeking a declaration that the 1st respondent and her five children are the only persons entitled to the estate of the late Cornelius Paul Obusez, and an order that Letters of Administration be granted to the 1st respondent and the 2nd respondent (Ademola Giwa). The appellants filed a counter-claim seeking a declaration that they are the only persons entitled to administer the estate and an order granting them Letters of Administration.

The appellants contended that despite the statutory marriage, the deceased was still bound by Agbor Native Law and Custom regarding the distribution of his estate. They also emphasized that the deceased was buried in the personal residence of the 1st appellant, and that the 1st appellant was named as a beneficiary in the deceased’s life insurance policy alongside the deceased’s first two children.

The High Court ruled in favor of the respondents, granting them the reliefs sought and dismissing the appellants’ counter-claim. The Court of Appeal subsequently affirmed this decision, leading to the present appeal to the Supreme Court.

HELD

The appeal was dismissed unanimously by the Supreme Court.
The Court held that Section 49(5) of the Administration of Estates Law of Lagos State was validly enacted by the competent legislature and was the applicable law for determining succession to the intestate property of persons married under the Marriage Act who died while residing within Lagos State.
The Court affirmed that Section 49(5) deals with succession to intestate property and not with matters falling within the Exclusive Legislative List under the 1979 Constitution, particularly items 60 and 67.
The Court rejected the appellants’ invitation to depart from its earlier decision in Salubi v. Nwariaku (2003) 7 NWLR (Pt.819) 426, finding that the principles of law stated therein remained applicable.
The Court recognized that by contracting marriage under the Marriage Act, the deceased had opted out of the system of customary law succession in case of intestacy.
The Court affirmed that since the deceased was subject to customary law but contracted marriage under the Marriage Act and died intestate, the distribution of his estate would be governed by the Administration of Estates Law of Lagos State, not by Agbor Customary Law.
The Court found that the appointment of the 2nd respondent (Ademola Giwa) as co-administrator was appropriate, as there was evidence that he had been a friend of the deceased.

ISSUES

Whether Section 36 subsections (1), (2) & (3) of the Marriage Act, and Section 49(5) of the Administration of Estates Law, Laws of Lagos State which both confer a right on surviving spouse married under the Marriage Act, to one-third of the estate of the spouse who died intestate as in this case, are concurrent statutory provisions on incidence of non-Customary or Islamic Marriage?
Whether Section 36 subsection (1) and (3) of the Marriage Act falls within items 60 and 67 of the Exclusive Legislative List under the Constitution of the Federal Republic of Nigeria, 1979, as to render a similar provision under Section 49(5) of the Administration of Estates Law, Laws of Lagos State inconsistent with the Marriage Act, as impliedly repealed, and therefore null and void by virtue of Section 4(3) and (5) of the Constitution?
Whether the judgment of the lower court which affirmed exclusion of appellants as persons entitled to administer the estate of the deceased Cornelius Obusez occasioned a miscarriage of justice?

RATIONES DECIDENDI

LEGISLATIVE COMPETENCE – DISTINCTION BETWEEN MARRIAGE LAWS AND SUCCESSION LAWS

I have examined the above provisions carefully and I am of the view that Section 49(5) of the Administration of Estates Law Lagos State does not purport to legislative on matters preserved for the National Assembly in items 60 and 67 of the Exclusive Legislative List in the 1979 Constitution. Section 49(5) of the Administration of Estates Law deals specifically with ‘succession to real and personal estate on intestacy’ as clearly shown in the caption or head note. While item 60 on the Exclusive Legislative List also speaks specifically of the formation, annulment and dissolution of marriage other than marriages under Islamic Law and/or Customary Law. The Constitutional provisions in items 60 of the Exclusive List, in my view, pertains and limited to the formation, annulment and dissolution of marriages and cannot be expanded to cover cases of succession to, distribution and administration of the estate of an intestate. – Per FRANCIS FEDODE TABAI, J.S.C.

APPLICABLE LAW – DETERMINATION OF SUCCESSION RIGHTS FOR PERSONS MARRIED UNDER THE MARRIAGE ACT

At page 165 of the Record, the Court below restated the purpose of Section 49(5) of the Administration of Estate Law when it said: ‘I am satisfied that the clear intention of the law maker as manifested in the passage underline above is that customary law should be excluded in relation to the estate of persons to which the provision applies.’ The court after restating a portion of the judgment of the trial court, and Salubi v. Nwariaku said: ‘It would have sufficed to appreciate that the Bendel State Legislature meant to and did legislate to exclude the applicability of Customary Law on the intestacy of a person who married under the Marriage Act.’ – Per FRANCIS FEDODE TABAI, J.S.C.

RELATIONSHIP BETWEEN SECTION 36 OF THE MARRIAGE ACT AND SECTION 49(5) OF THE ADMINISTRATION OF ESTATES LAW

In Salubi v. Nwariaku (2003) 7 NWLR (Pt.819) 426 at 453, (2003) 20 WRN SC 53, Ayoola, JSC succinctly brought out the difference between the two statutes: ‘The only difference in the two provisions is that while Section 36(1) of the Marriage Act incorporated English Law (fixed at the date of the enactment 1914) into our laws of intestate succession by reference, the later statute has directly and not by reference substantially incorporated the contents of the then Current English Law on the subject in its provisions with the consequence that it was not necessary to search for what the English law on the matter was.’ – Per NIKI TOBI, J.S.C.

EFFECT OF MARRIAGE UNDER THE MARRIAGE ACT ON CUSTOMARY LAW SUCCESSION RIGHTS

In the light of the foregoing, I entirely disagree with learned counsel for the appellants that by items 60 and 67 of the Exclusive Legislative List of the 1979 Constitution, the issue before the court is expressly reserved for the National Assembly to the exclusion of the State House of Assembly. Accordingly, I hold that the cases cited by counsel on pages 10 and 11 of the brief are not relevant. I should now consider whether Section 36(a) anticipates the appellants. It does not. The subsection provides for the application of English law and that was the decision in Cole v. Cole (1898) 1 FNLR 15 which the Court of Appeal correctly referred to. The second part is whether customary law applies in the distribution of the estate of Obusez. The answer is, No. By contracting the marriage under the Marriage Act, the deceased intended the succession to his estate under English Law and not under customary law. – Per NIKI TOBI, J.S.C.

PLACE OF BURIAL AND LIFE INSURANCE POLICY – EFFECT ON SUCCESSION RIGHTS

I realise that two of the appellants claims of succession to the estate were based on the fact that the deceased was buried in the personal residence of the 1st appellant and the life policy of the deceased where he made his first and second children and the 1st appellant as beneficiaries. I know of no law, which says that succession to property is determined by the place of burial of the deceased intestate or by a life policy made inter vivos. The fact that the deceased did not make the 1st respondent a beneficiary of his life policy does not mean that she cannot benefit under Section 36(1) of the Act. Conversely, the fact that 1st appellant is a beneficiary of the life policy does not ipso facto make him a beneficiary of the estate of his twin brother. – Per NIKI TOBI, J.S.C.

APPOINTMENT OF NON-RELATIVES AS ADMINISTRATORS – DISCRETION OF THE COURT

Having regard to the uncontested fact that the 2nd respondent had been a friend of the deceased there is good cause for his appointment as the 2nd Administrator to the estate of the deceased. On the whole I do not see any strong reason for interfering with the judgment of the court below. – Per FRANCIS FEDODE TABAI, J.S.C.

INTERPRETATION OF THE CONSTITUTION AND STATUTES – NEED FOR PLAIN MEANING

The function of a court of law is to interpret the provisions of the Constitution in the clear tenor of the words contained in it. Court of law has no jurisdiction to import into the Constitution or impute into the Constitution words which are not used therein. That will not bring out the intention of the makers of the Constitution and it is the duty of the court to interpret the Constitution in line with the words used and the intention of the makers of the Constitution.” – Per NIKI TOBI, J.S.C.

PLAIN MEANING RULE – APPROACH TO INTERPRETING CLEAR PROVISIONS

These specific clear and unambiguous provisions both of the Constitution and the Administration of Estate Law of Lagos must be accorded their ordinary grammatical meaning which alone speaks and discloses the intention of the law makers. See Udoh v. O.H.M.B. (1993) 7 NWLR (Pt. 304) 139; 7-UP Bottling Co. Ltd. v. Abiola & Sons (Nig.) Ltd. (1995) 3 NWLR (Pt. 383) 257. In my view the construction of the Constitutional and Statutory provisions does not affect the decision on Salubi v. Nwariaku and there is therefore no basis for any departure there from. – Per FRANCIS FEDODE TABAI, J.S.C.

EXCLUSION OF CUSTOMARY LAW IN INTESTATE SUCCESSION AFTER MARRIAGE UNDER THE MARRIAGE ACT

It is very clear from subsection 5 of the Section 49 of the said law that the intention of the law maker is that customary law be excluded in relation to the estate of person to which the subsection applies. It is also very clear that the above provision deals with succession to intestate property of a person married under the Marriage Act who died intestate while residing within Lagos State and is consequently within the legislative competence of the enacting authority. – Per WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

APPLICABLE LAW FOR DETERMINING SUCCESSION RIGHTS – FOCUS ON ADMINISTRATION OF ESTATES LAW

The position of the law as regards the application of Section 49(5) of the Administration of Estates Law of Lagos State is clearly stated in the judgment of Ayoola, JSC in the case of Salubi v. Nwariaku (2003) 7 NWLR (Pt.819) 426, (2003) 20 WRN SC at 69 as follows: ‘The source of Section 49(5) was itself Cap. 115 of the Laws of the Federation and Lagos, 1958 modified to signify the end of incorporation of English Law by reference. The provisions of Section 49(5) of the Administration of Estate Law, particularly in the portion rendered in italics in the quotation above, leave no room for any doubt that the estate in this case fell to be distributed in accordance with a provisions of this law’ that is the Administration of Estate Law and not English Law or Customary Law.'” – Per WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

SECTION 49(5) OF THE ADMINISTRATION OF ESTATES LAW – SCOPE AND APPLICATION

I hold the view that both Sections 36(1) of the Marriage Act and 49(5) of the Administration of Estates Law of Lagos State deal with succession to intestate property and have nothing to do with any form of marriage settlement or incidence of marriage and that Section 49(5) in particular has nothing to do with matters falling within the exclusive legislative list under the 1979 Constitution particularly items 60 and 67 thereof.” – Per WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

EFFECT OF STATUTORY MARRIAGE ON CUSTOMARY LAW SUCCESSION – OPT-OUT PRINCIPLE

The facts of this case being as they are, there is no basis for the invitation by learned counsel for the appellants for this Court to revisit its decision in the case of Salubi v. Nwariaku supra as the facts and principles of law stated therein are applicable to the facts and principles of law relevant to the determination of the instant case. The deceased by contracting marriage under the Act opted out of the system of Customary Law of succession in case of intestacy. – Per WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

RATIONALE FOR APPLICATION OF ADMINISTRATION OF ESTATES LAW TO PERSONS MARRIED UNDER THE MARRIAGE ACT

It follows, therefore, that by virtue of the said marriage and upon the death of the deceased intestate the provisions of the Administration of Estate Law, Laws of Lagos State becomes applicable particularly as the deceased and 1st respondent together with the children of the marriage resided in Lagos State at the time of the death of the deceased intestate… the intention of the law maker is that customary law be excluded in relation to the estate of person to which the subsection applies. – Per WALTER SAMUEL NKANU ONNOGHEN, J.S.C.