Timothy Tanloju Adesubokan Vs Rasaki Yunusa (1971)

LawGlobal-Hub Lead Judgment Report

ADEMOLA JSC 

This is an appeal from the judgement of Bello, I. in the High Court of the North-Central State holden at Kaduna. The claim in that court against the defendant is for “a declaration that the probate dated 29/6/66 granted to the defendant in the matter of Yunusa Atanda Saibu (deceased) be revoked as the said Yunusa Atanda Saibu was a Moslem, died as a Moslem and left heirs and wives who are all Moslems”. The defendant is the sole executor of the said Yunusa Atanda Saibu. Pleadings were ordered and filed. The relevant paragraphs of the statement of claim are paragraphs 4, 5 and 7 which are as follows:-

“4. The said Yunusa Atanda Saibu being a Muslim was not entitled to make such a will and probate should not have been granted in respect of the will, and as such should be revoked. The said will having contained bequests to heirs.

5. The said Yunusa Atanda Saibu was survived by three children including the plaintiff and one wife, all of whom are Muslims, and his estate had been distributed by the native court at Zaria.

7. WHEREOF, the plaintiff claims that the said probate should be revoked and estate of the deceased be distributed according to Muslim law.”

Paragraphs 3, 7, 8, 9, 10 and 11 of the statement of defence are also relevant. They are:-

“3. Save that the defendant will plead res judicata in respect of the distribution of the estate of the testator by the Native Court of Zaria, the defendant denies paragraph 5 of the statement of claim and puts the plaintiff to the strict proof thereof.

7. The defendant avers that the testator was a native of Lagos and was until his death domiciled in Lagos; he was employed by Nigerian Railways in 1930 at Ebute-Metta, Lagos and the Railways transferred him to Zaria where he died on the 31st August, 1965.

8. The defendant will contend at the trial of this action that the defendant at all material times are not bound by nor are they subject to the native law and custom of Zaria and that they are only subject to the native law and custom of Lagos.

9. The defendant will contend at the trial that the native law and customs of Lagos permit natives of Lagos irrespective of their religions to dispose of all their personal and real property by a will.

10. The defendant will contend at the trial that the testator did not make the will dated 7th July, 1965 under Moslem law, but in accordance with the provisions of the Wills Act, 1837 an Act of general application throughout the Federation of Nigeria.

11. The defendant will at the trial rely on the will dated 7th July, 1965 and its probate granted on the 29th June, 1966.”

The learned trial judge in a considered judgement found the following facts:-

“I may summarise my findings as follows:

(1) That a Moslem of Northern State of Nigeria is entitled to make a will under the Wills Act, 1837 but he has no right to deprive by that will any of his heirs, who are entitled to share his estate under the Moslem law, of any of their respective shares granted to them by Moslem [law];

(2) That in the case of a will of moveable, the testator must comply with his personal law, i.e. the native law and custom of his particular locality, unless such personal law is repugnant to natural justice, equity and good conscience or incompatible with any law for the time being in force which does not deprive any person of the benefit of the personal law of the testator; and

(3) That where the testator is a native within the meaning of the Land Tenure Law and the will concerns immovable situated in the Northern States of Nigeria, the testator must comply with the native law and custom, relating to devolution, of the place where the land is situated.”

On these facts, he proceeded in his judgement to set aside the probate of the will.

From this judgement the defendant/appellant has appealed to this Court. Mr. Razaq for the appellant argued generally and his two main complaints are as follows:-

“(1) That the learned trial judge was in error when he set aside the probate dated 29/6/66 since what the plaintiff/respondent asked for was a declaration that the probate be revoked.

(2) That the trial judge was in error when he said:-

(a) that while a Moslem of the Northern State of Nigeria is entitled to make a will under the Wills Act 1837, he has no right to deprive by that will any of his heirs, who are entitled to share his estate under Moslem law, of any of the shares to which they are so entitled;

(b) that if he disposes of moveable property by will, he must comply with the native law and custom of his particular locality unless such native law and custom is repugnant to natural justice, equity and good conscience or incompatible with any law for the time being in force which does not deprive any person of the benefit of the native law and custom of such testator; and

(c) that where he is a native within the Land Tenure Law and the will concerns immoveable property which is situated in the Northern States of Nigeria, the testator must comply with the native law and custom relating to devolution of the place where the land is situated.

In regard to the first point argued, we see no merit in the complaint about the order made by the learned trial judge since it is clear that in paragraph 7 of the statement of claim (supra) the plaintiff did ask that the probate be revoked. It is trite law that where a relief asked for in the statement of claim differs from the writ, the former supercedes that of the writ.

We now consider the second point raised by Mr. Razaq, namely, that according to the learned trial judge, whilst a Moslem of the Northern States’ origin can make a will under the Wills Act, 1837, he cannot in that will deprive any of his heirs of his entitlement under Moslem law; that the will must conform with the distribution under the Moslem law; if it does not, the scheme of distribution laid down by the Moslem law shall prevail.

Is the learned trial judge correct in his view of the law as it stands at the material time in the Northern States? It is common ground that the definition of “native law and custom” in both section 2 of the Native Courts Law (Cap. 78 of the Laws of Northern Nigeria) and section 2 of the High Court Law of Northern

Nigeria (Cap. 49) includes Moslem law. It is also common ground that the Wills Act of 1837 is a statute of general application. The question arises, does this statute apply in the Northern States of Nigeria, and, if so, to what extent? To answer this question, it is relevant to consider sections 28, 33 and 34 of the High Court Law (Cap. 49). These sections provide as follows:-

“28. Subject to the provisions of any written law and in particular of this section and ss. 26, 33 and 35 of this Law:-

(a) the common law;

(b) the doctrines of equity; and

(c) the statutes of general application which were in force in England on the 1 st day of January, 1900, shall in so far as they relate to any matter with respect to which the Legislature of Northern Nigeria is for the time being competent to make laws, be in force within the jurisdiction of the Court.”

Section 33, which gives jurisdiction in probate cases and matters arising under the Wills Act, 1837, is material to the present appeal. It provides that:-

“33. The jurisdiction of the High Court in probate cases and p

Other Citation: (1971) LCN/1163(SC)