Cyprain Peter Obusez & Anor. V. Mrs. Sylvia Teckia Obusez & Anor (2007)
LAWGLOBAL HUB Lead Judgment Report
F. TABAI, J.S.C
The action giving rise to this appeal was filed at the Ikeja Judicial Division of the High Court of Lagos State on or about the 24/5/91. The plaintiffs are the respondents in this appeal and the defendants, the appellants herein. The reliefs endorsed in the writ of summons and repeated in the statement of claims are:
(i) A declaration that the 1st plaintiff and her five children are the only persons entitled to the estate of the late Cornelius Paul Obusez;
(ii) An order that grant of Letters of Administration in solemn form for the administration of the said estate be issued to Mrs. Silva Teckia Obusez and Ademola Giwa Esq. The 1st defendant/respondent filed a 27 paragraph statement of defence and counter-claim.
The 1st defendant/respondent counterclaimed the following reliefs:
- A declaration that the defendants are the only persons entitled to administer the estate of the late Cornelius Paul Obusez.
- An order that a grant of Letter of Administration in solemn form for the administration of the said estate be issued to defendants herein.
Only the 1st plaintiff/respondent testified in support of the plaintiffs’ case. The 1st defendant/appellant and two other witnesses testified in support of the defence and counter-claim. After the address of counsel for the parties, the learned trial Judge R. A. Omotoso, J. delivered judgment on the 17/3/93. In the concluding paragraph of the judgment the learned trial Judge held:
“Under Nigeria’s Law of succession touching on succession to the estate of Nigerians who contract marriages under the Marriage Act, the plaintiff and her children are the only persons entitled to the estate of their husband and father. The 1st plaintiff is certainly not a chattel under that law. Further, as beneficiaries of that estate, the 1st plaintiff and children are entitled to a grant of Letters of Administration to administer the estate but because all the children are minor it is lawful and proper that the 2nd plaintiff be appointed a co-administrator with the plaintiff. Accordingly, I make a declaration that the plaintiff and her children are the only persons entitled to the estate of the late Cornelius Obusez. I further order that a grant of Letters of Administration in solemn form for the administration of the said estate be issued to the 1st and 2nd plaintiffs, Mrs. Sylvia Teckia Obusez and Ademola Giwa Esq.
In the event, the counter-claim of the defendants fails and is accordingly dismissed.”
Aggrieved by the foregoing decision, the appellants herein appealed to the court below. In its judgment on the 7/6/2001 the court below dismissed the appeal. The concluding part of the judgment states, in substance, the reasons for the dismissal. The court per Oguntade, JCA (as he then was) stated thus:
“It is not the law that the surviving widow of a deceased person is automatically entitled to the grant of Letters of Administration in respect of the estate of the interstate. See Okon v. Administrator-General, Cross River State (1992) 6 NWLR (Pt. 248) 473. The court has a discretion in the matter. It is a Correct statement of the law that a widow who has been guilty of moral misconduct may be passed over. A widow who since her husband’s death has led an immoral life may also be passed over.
Although there was evidence from the defendant that the 1st plaintiff had conducted herself in a manner considered unacceptable, the trial court did not consider the unchallenged evidence. I have considered the evidence. At the highest, it shows the 1st plaintiff as insensitive and may be unwilling to the rival claims of the larger family of the intestate to share in the intestate’s properties. But I do not see that the conduct or misconduct ascribed to her was sufficiently grave to lead to the conclusion that she was unfit to administer the estate of the intestate. The lower court however should have considered the evidence and make a finding of fact thereon.
In the final conclusion, this appeal fails. It is dismissed. I affirm the judgment of the lower court given on the 17/3/93 … ”
Still dissatisfied the appellants have come on further appeal to this court. The parties have, through their counsel filed and exchanged their briefs of argument. The appellant’s brief dated and filed on the 1/6/04 was prepared by A. J. Owonikoko. The respondents brief dated 7th of March 2006 was prepared by E. O. Akpata-Etomi (Mrs).
In the appellants’ brief of argument Mr. Owonikoko formulated the following three issues for the determination of this appeal.
One
“Whether section 36 subsections (1), (2) and (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.Two
“If yes, whether section 36 sub-sections (1), (2) 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.”
Three
“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.”
In the respondents’ brief Mrs. Akpata-Etomi also formulated three issues which are a reproduction of the three issues of the appellants.
Both counsel argued issues one and two together. The intestate, Mr. Cornelius Obusez was from Ute-Ukpo near Agbor in Delta State. His wife and widow Mrs. Sylvia Teckia Obusez is from Koko, also in Delta State. They got married on the 8th of July, 1972. It was a marriage under the Marriage Act. There are five children of the marriage. The first child was born on the 30/8/73 and the last on the 6/6/82. Mr. Cornelius Obusez died on the 29/5/88. At the time of his death his first child was 15 years old and the last, 6 years. The evidence shows that although, they lived together, the relationship between the couple was, sometime before and up to the 29/5/88, not quite smooth sailing. Among those who survived the intestate was the defendant appellant his twin brother. In his lifetime the deceased took out Life Insurance Policy with American International Insurance Company Ltd. in 1977. The 1st appellant and the only two children at that time were named the beneficiaries.
Firstly, learned counsel for the appellants invited this court to depart from the principle in Salubi v. Nwariaku (2003) 7 NWLR (Pt.819) 426, (2003) 20 WRN SC 53, submitting that the incidence of marriage under the Marriage Act on a surviving spouse upon which the decision was based is a matter which fall within items 60 and 67 of the Exclusive Legislative List in the 1979 Constitution of the Federal Republic of Nigeria and in respect of which a State House of Assembly had no legislative competence. He contended that the legislative competence of the State House of Assembly was limited to matters in respect of Islamic and Customary Law Marriages. According to counsel, the call for departure from Salubi v. Nwariaku is necessitated by the fact that the point being raised here was not canvassed before this court in that case. It was further argued that section 49(5) of the Administration of Estates Law of Lagos State which is the equivalent of section 36 of the Marriage Act, is by virtue of the aforesaid Constitutional provisions, null and void. It was contended therefore that only the customary law of Agbor that applies in the administration of the deceased’s estate and that by virtue thereof the appellants who are the brother of the deceased ought to have priority for appointment as administrators of the estate.
Learned counsel for the respondents on the other hand opposed the invitation for a departure from Salubi v. Nwariaku (supra). This, she submitted, was because the issue as to the incidence of marriage under the Marriage Act falling within the Exclusive Legislative List in items 60 and 67 of the 1979 Constitution did not arise, the applicable law at all times material to the case being section 49(5) of the Administration of Estates Law of Lagos State. Section 49(5) of the Administration of Estate Law, it is argued, is not a nullity as it never purported to legislate in a matter beyond the legislative competence of the Lagos State House of Assembly.
Learned counsel, Mrs. Akpata-Etomi, further submitted that there was no basis for the application of Agbor Customary Law in the administration of the estate of the intestate since, at all times material to this case, the deceased was married under the Marriage Act and resident in Lagos State and the administration of whose property therefore come within section 49(5) of the Administration of Estates Law of Lagos State. She finally submitted that since Letters of Administration were granted to the respondents in compliance with section 49(5) of the
Administration of Estates Law of Lagos State and under the Non Contentions Probate Rules, the grant was in order. She argued in conclusion that the appeal be dismissed and the judgment of the lower court affirmed. Let me first of all dispose of appellant’s request for this court to depart from Salubi v. Nwariaku (supra). The Head Note of section 49 reads: “Succession to real and personal estate on intestacy”
And section 49(5) states:
“Where any person who is subject to customary law contracts a marriage in accordance with the provisions of the Marriage Act and such person dies intestate after the commencement of this Law leaving a widow or husband or any issue of such marriage, any property of which the said intestate might have disposed by will shall be distributed in accordance with the provisions of this law, any customary law to the contrary notwithstanding,”
Items 60 and 67 of the Exclusive Legislative List in the 1979 Constitution (which are items 61 and 68 of the 1999 Constitution) provide:
60 “The formation, annulment and dissolution of marriages other than marriages under Islamic Law and Customary Law including matrimonial causes relating thereto.”
67 “Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”
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. Similarly I do not think that item 67 of the Exclusive Legislative List of the 1979 Constitution can be construed to include matters beyond those specifically mentioned in item 60. 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. In paragraph 4.20 page 24 of the appellant brief learned counsel submitted as follows:
“The judgment of the lower court was that a wife has a right to exclude relations of his deceased spouse from being co-administrator at his estate simply as a matter of law. And that the spouse can be aided by the court in excluding his husband’s immediate relations who are willing, and bringing in complete stranger. In this case, the twin brother in whose personal house the husband was buried was held disentitled to be a co-administrator of the estate.” He submitted that the decision of the lower court affirming that of the trial court totally ignored what constitutes a family or extended family within the Nigerian con and urged this court not to endorse it. He relied on the works of Family Law in Nigeria by Prof. E. I. Nwogwugwu page 1. He submitted that in view of the unchallenged evidence in support of their pleading in the statement of defence and counter-claim to the effect that the deceased during his life time embraced his Agbor Native Law and Custom and naming of the 1st appellant and his 1st and 2nd children as the beneficiaries in his Life Insurance Policy, the decision of the court below excluding the appellants as co-administrators should be set aside. The substance of the appellants’ argument is that the Agbor Native Law and Custom and not the Administration of Estates Law should apply. 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.”
I agree entirely with the reasoning of the court below on the non applicability of the Agbor Native Law and Custom in the administration of the estate of the deceased. I have earlier in this judgment restated the concluding part of the judgment of the trial court at page 61 of the Record to the same effect. Although the appellants were at the trial at pains to prove the respondent’s insensitivity to the death of her husband, they appear to have conceded her right to Letters of Administration. Their grouse mainly is the appointment of the 2nd respondent whom they describe as a complete stranger. According to them, his appointment to their exclusion was a wrong exercise of discretion that has occasioned a miscarriage of justice. On this question of 2nd respondent the trial court at page 61 of the record held to the effect that the rules do not prescribe that a person so nominated must be a relation of the deceased. In addition, at page 31 of the record, the 1st appellant, testifying as DW 1 said of the 2nd respondent thus: ”The said plaintiff Ademola Giwa I know. He had been a friend of my twin brother the deceased just like any other friend. He is not related to us. He is not even from our State.”
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. I hold in conclusion therefore that the appeal fails and is accordingly dismissed. I make no orders as to costs.
SC.405/2001
