Bola Etuwewe and Anor V Sunday Etuwewe and Etuwewe (1966)

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LEWIS, J.S.C. 

This is an appeal by the plaintiffs from a decision of Ekeruche, J. sitting in the Warri High Court on the 20th January, 1964 in Suit W./57/1961 in which he struck out the claim with 15 guineas costs to the 2nd defendant. On the 31st May, 1966 we allowed the appeal and set aside the decision of the High Court with 40 guineas costs to the appellants and 17 guineas costs to the 1st defendant in this Court leaving by consent the costs in the High Court to be costs in the cause, and we now give our reasons for that decision.

The plaintiffs’ claim, as their claim was finally pursued in the High Court, was-”That an account be taken of all sums received and paid by the defendants, in respect of rents and profits collected by defendants from the undistributed residue of property of late Lord Etuwewe comprising nine shops and the land upon which the said shops stand, situate at Block 11 Plot 2 Sapele as trustees for themselves and plaintiffs. Injunction restraining defendants from further collecting the said rents and profits. Costs.” At the outset, however, at the hearing of the trial, the 2nd defendant took a preliminary objection that the High Court was not competent to hear the suit as it pertained to a matter which was subject to the jurisdiction of a customary court relating to inheritance of property on death and so fell within the proviso of section 9(1) of the High Court Law of Western Nigeria which there applied. The proviso reads as follows

“Provided that, except in so far as the Governor may by Order in Council otherwise direct and except in suits transferred to the High Court under the provisions of section 28 of the Native Courts Ordinance, the High Court shall not exercise original jurisdiction in any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children and inheritance or disposition of property on death.”

The learned trial judge determined that he could not decide this objection without hearing evidence and accordingly reserved his decision until a later stage of the trial. In fact it was not until he came to give his final Judgment that he decided:

“The result therefore, is, if I may with respect borrow from the language of the Federal Supreme Court in its judgment in Exhibit 8, that there is ‘an issue as to inheritance or disposition of property on death to be tried’ as regards the said nine shops and the land on which they have been built. That issue is for a native court to determine, and this court without having the final decision of a native court on that issue cannot deal with plaintiffs’ claim. Plaintiffs’ claim is struck out.”

Both the plaintiffs and the defendants were children of Lord Etuwewe and the plaintiffs had taken an action in the Sapele Mixed Court against the 1st defendant claiming that all four children (the plaintiffs and the defendants) should share the undistributed residue of property of Lord Etuwewe comprising inter alia the property in dispute in the present suit and the plaintiffs’ case was that this issue was finally determined on appeal from the Sapele Mixed Court by the Assistant Local Government Adviser Sapele on review when he held:

“when he (2nd defendant) comes the plaintiffs can if they so desire, take action against him in respect of the shops built on a plot which belongs to all the children.”

The 2nd defendant contended however, that he was not bound by this judgment as he was not a party and with this contention both Mr. Ayoola for the appellants and Mr. Ogbobine for the 1st defendant agreed.

The 2nd defendant’s contention can best be given by quoting paragraph 6 of his Defence:

“6. That the late Lord Enone Etuwewe died intestate on the 26th day of March, 1926 and his whole property movable and immovable were distributed according to Itsekiri native law and customs in September, 1934 among the plaintiffs and defendants.”

What he alleges is that there was a distribution in 1934 of the entire estate of the deceased by which everyone of those entitled to an interest in the estate received his own share as his private property. He is not raising any question of who the persons are that acquired an interest in the estate upon the death of the deceased in 1926-which would be a question of inheritance: he is alleging what is commonly termed a partition or division of the estate in 1931 which is not a question of inheritance upon the death of the deceased.

We are familiar with what happens when a person dies and his estate devolves as family property. Sometimes there is an allocation of a piece of land to X for him to farm and earn his livelihood, and of another piece to Y. Neither X nor Y becomes the owner of the piece allotted to him, but both pieces remain family property; and this is to be distinguished from a partition or division of the estate which gives a successor a piece as his own property.

Then again some pieces may be divided as private property, and something may be left as family property.

What the 2nd defendant alleges here is plainly a division into shares taken as private property, and his case, as developed in his evidence, is that in 1934 the land on which the nine shops are built was given to Madam Okele, the sister of the deceased, as her share and as private property, from whom he obtained it in about 1951 upon payment of a sum of money. We have to observe that the other parties do not dispute that Madam Okele, the sister of the deceased, was a person interested in his estate: what they dispute is the alleged division of 1934. Thus the questions which arise are:-

1. Was there a division in 1934?

2. Was Madam Okele given the vacant land as her property then? 3. If she was, did she sell her property to the 2nd defendant?

(The 3rd question arises from the fact that she died after 1955 without issue, and if at her death the land in question was her property, it would pass to whoever may be the persons to whom it would descend as her successors.) The burden of proof on those three questions lies on the 2nd defendant. Incidentally, his evidence does not accord with his pleading, which does not mention Madam Okele, and it will be for him to ask for leave to amend his Defence.

Those questions, as already stated, are not questions of inheritance or succession or descent of property upon the death of the deceased, and the 2nd defendant’s defence and evidence does not disclose any matter that is caught within the terms of the proviso to section 9(1). There was nothing to bar the High Court in this suit from exercising its original jurisdiction; we therefore set aside the decision under appeal and ordered the case to go back for trial and determination.

Other Citation: (1966) LCN/1316(SC)