Marian Asabi Craig V Victoria Emmanuel Craig And Anor (1966)

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COKER, J.S.C.

The appellant was the defendant in an action instituted in the High Court of Lagos by the respondents. The writ was endorsed as follows:-

“The plaintiffs seek a declaration that as the next of kin of Moses Craig, deceased, they are entitled as against the defendant to possession of the house and landed property situate at and known as 26s Ilubinrin, Marina, Lagos.”

By their pleadings the plaintiffs/respondents aver that the property, No. 26s, Ilubinrin, Marina, Lagos, originally belonged to one Moses Olusheye Craig who died intestate on the 8th June, 1957, and was survived by his wife, Mrs Patience Kehinde Craig, to whom he was married under the Marriage Ordinance in 1922. They say that they are a brother and sister of the said Moses Olusheye Craig. Their Statement of Claim also avers that there was no child of the marriage between Craig and his wife but that during the subsistence of that marriage, Craig had a child by name Olushina through his association with the appellant. Mrs Patience Kehinde Craig died intestate on the 6th January, 1958, and the child, Olushina, died on the 16th April, 1960. Paragraphs 12 and 13 of the Statement of Claim read as follows:-

“12. Wherefore the plaintiffs seek a declaration that as the next-of-kin of Moses Olusheye Craig, (deceased) they are entitled as against the defendant to possession of the house and landed property situate at and known as 26s Ilubinrin, Marina, Lagos.

13. In the alternative the plaintiffs seek a declaration that the property 26s Ilubinrin, Marina, is part of the estate of Moses Olusheye Craig, and that as administrators of the intestate estate they are entitled to administer the property as part of the estate of the deceased.”

By her Statement of Defence, the appellant, who was the defendant in the court below, avers that the late Moses Olusheye Craig had other brothers and sisters apart from the plaintiffs, that she was married to him under Yoruba native law and custom in 1925 and that the child, Olushina, born on the 4th April, 1939, was an issue of such marriage and his paternity was fully acknowledged by the late Craig. The Statement of Defence further states that on the death intestate of Craig his interest in the property, No. 26B Ilubinrin, Marina, Lagos, passed to his son, Olushina and that on the death intestate of Olushina in 1960, the defendant inherited the property.

The Statement of Defence further avers that in the alternative, the defendant will claim that she was entitled to succeed to the property as the survivor of joint owners since she had contributed her own money to the cost of the building. The Statement of Defence finally avers that in any case the plaintiffs must fail inasmuch as they had sold the property to a stranger.

The parties called evidence at the trial and the learned trial judge who heard the case did not accept the evidence that the defendant was a joint owner of the property with the deceased nor did he accept the evidence that the defendant was married to the deceased by native law and custom. Rather he took the view that as the deceased was married under the Marriage Ordinance, section 36 of the Marriage Act must apply to the distribution of his estate. He gave judgment in favour of the plaintiffs for the declaration they sought with costs.

A number of grounds of appeal were filed and argued but it is only necessary to refer to those upon which the appeal must turn.

On their writ the plaintiffs claim to be entitled to the declaration they sought as the next-of-kin of the late Craig. ‘this statement is repeated in paragraph 12 of the Statement of Claim. By paragraph 13 of the Statement of Claim, however, they ask for a declaration that as administrators of his estate they are entitled to administer that property as part of the estate of the deceased. The learned trial judge did not seem to have dealt with paragraphs 12 and 13 of the Statement of Claim separately and all that appears in the judgment is the concluding passage which reads as follows:-

“I am satisfied that the plaintiffs have proved their case. I am therefore, obliged to hold that they are entitled to a declaration as prayed.”

Mr Oseni for the appellant has tried to belabour the point that it is uncertain which of the declarations the judge had granted. We observe, however. that paragraph 13 of the plaintiffs’ Statement of Claim did not appear to have engaged the attention of either of the parties throughout the trial and neither of the parties adverted to its contents during the final addresses of counsel to the court. No evidence was led touching the point and the case was fought on the basis that the plaintiffs were claiming as the next-of-kin of the deceased. It is therefore, not unreasonable to conclude that the declaration made by the learned trial judge was for the plaintiffs in their capacity as the next-of-kin of the deceased.

Ground 3 of the grounds of appeal complains that the learned trial judge misdirected himself by holding that there was no issue of the marriage between Moses Olusheye Craig and Patience Kehinde Craig when there was no such evidence before him. The relevant portion in the judgment reads as follows:-

“It should, perhaps, point out at this stage that there was no issue of the union between Moses Craig and Patience Kehinde Craig.”

In the present case, the widow, Patience Kehinde Craig, had died. This was proved by the production of her death certificate, Exhibit B. Although it was pleaded by the plaintiffs that there was no issue of the marriage with Patience Kehinde Craig, there was no evidence whatsoever on this point and the judge was clearly in error to observe that there was no issue of that marriage as if that fact were proved.

Before us, learned counsel for the plaintiffs, Mr Egerton-Shyngle, agreed that there was no evidence on this point and indeed explained that it was an omission. It must be remembered, however, that the establishment of such fact is fundamental to the case of the plaintiffs and it follows therefore that its assumption by the judge without the actual proof of it is a misdirection of a grave nature. Since the judgment Stands on that fact it must be set aside.

Again, for the defendant it was argued that the plaintiffs did not prove that they were the only next-of-kin of the deceased entitled to his property. That point was pleaded in the Statement of Defence but there was no evidence from either of the parties on it during the trial. We observe, however, that in his final address to the court, learned counsel for the defendant did raise the point again.

The learned trial judge did not deal with it at all in his judgment.

We have given considerable thought to the nature of the order to make in the circumstances of this case. The defendant claims to be entitled to succeed by virtue of her relationship with the deceased. The judge had expressly found that she was not his wife. She has clearly not proved that she was entitled to succeed to the estate. She is clearly not entitled to the judgment of the Court since her claims both as the widow of the deceased and successor of the child, Olushina, and as a joint owner of the property with the deceased were rejected, and rightly so in our view, by the learned trial judge. Order 45, rule 1 of the Rules of the old Supreme Court which applied in the Lagos High Court at the time of this action provides as follows:-

“The court may in any suit, without the consent of the parties, non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court.”

It seemed to us, when considering our judgment, that this might be a proper case for a non-suit; but we thought that we ought first to hear learned counsel. And we pause to observe that when the propriety of a non-suit has not been argued, if a trial judge should think of entering a non-suit it is desirable that he should first ask counsel for the parties for the submissions. We invited the learned counsel to state their arguments for and against a non-suit. They referred to Elias v. Disu and others [1962] 1 All N.L.R. 214 and to Dawodu v. Gomez (1947) 12 W.A.C.A. 151. We mean no disrespect when we say that those cases do not solve the question before us since each case must be considered in the light of its own facts.

Inevitably a non-suit means giving the plaintiff a second chance to prove his case. The Court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiffs.

The defendant has no right to keep the house. When the deceased died it passed to those on whom his estate devolved in law; and the trial judge found in favour of the plaintiffs but overlooked the fact that they had omitted to testify that the deceased had no child with his wedded wife-an omission due to the inadvertence of their counsel. There would be no wronging of the defendant if a non-suit was entered, to enable the plaintiffs to repair that omission; but if the suit were to be dismissed, it would mean that they, who are related to the deceased, would be precluded from claiming the house left by him, and might well have the effect of making the defendant, who has no right to it, the virtual owner of the house. In these circumstances it is eminently a case for non-suiting the plaintiffs under the rule.

In a case of this nature the trial court would do well to ask the plaintiffs early to swear an affidavit on the surviving relatives of the deceased and their kinship to him, and to give notice to them to appear if they claim any interest in his property, so as to have all necessary parties before the court. We trust this suggestion will be borne in mind in the event of a fresh suit.

This appeal is, for the reasons already set out, allowed. The judgment of the High Court, Lagos, in suit No. LD/415/63 is hereby set aside and an order of non-suit is entered against the respondents. The appellant will have her costs fixed at 60 guineas in the High Court and in this Court at 37 guineas. Appeal allowed.

Other Citation: (1966) LCN/1319(SC)