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Adeniyi Olowu & Ors. v. Olabowale Aremu Olowu & Anor. (1985) - SC


icon CASE SUMMARY OF:

Adeniyi Olowu & Ors. v. Olabowale Aremu Olowu & Anor. (1985) - SC

by NSA PaulPipAr
icon LITE HOLDING

The deceased estate is to be distributed in accordance with the Bini native law and custom. The Plaintiffs (herein Appellants) have failed to prove that the distribution is a nullity.
iconAREA OF LAW

Law of Succession
icon TAG(S)

- Distribution.
- Intestate succession.
- Naturalising a culture.
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icon PARTIES

APPELLANTS
1. Adeniyi Olowu
2. Tunji Olowu
3. Ronke Olowu (For themselves and on behalf of the beneficiaries of the estate A.A. Olowu under Yoruba custom)

v.

RESPONDENTS
1. Olabowale Aremu Olowu
2. Babatunde O. Olowu (Administrators to the estate Of late A.A. Olowu)
icon CITATION


icon COURT

Supreme Court
icon LEAD JUDGEMENT DELIVERED BY:

Coker, JSC.
icon APPEARANCES

* FOR THE APPELLANT
- Mr. Lardner, S.A.N.

* FOR THE RESPONDENT
- Chief J.O. Sadoh.
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icon FACT (as relating to the issues)

The parties to these proceedings now on appeal are the issues and beneficiaries of one Adeyinka Ayinde Olowu, whose parents were Yoruba indigenes from Ilesha. He lived apparently from childhood until his death in Benin City. He, like his late father, had considerable business interests in Benin City and acquired landed properties as any indegene of that City. He married Benin women and, it is clear on the evidence and finding of the trial Judge that, the parties themselves are children born by his Benin wives.

It was pleaded by the 1st defendant and evidence was led that during his lifetime, he applied to the Oba of Benin to be “naturalised” as a Benin indigene which conferred on him the right to acquire absolute title to the considerable landed properties in Benin City as any native of that city. The trial Judge accepted the evidence and found as a fact that he became a Benin indigene by choice with the blessing of the Oba of Benin and apparently, the approval of the then Administration.

The Plaintiffs in the High Court at Benin City, claimed for themselves and other issues of the deceased intestate against the two defendants, who were co-administrators of the estate, the following reliefs in their amended statement of claim:-
(a) Removal of the aforementioned Defendants as Administrators and Trustees to the Estate of late Adeyinka Ayinde Olowu.
(b) That the purported distribution of the said Estate by the 1st Defendant alone under Benin Native Law and Custom be nullified, the late Adeyinka Ayinde Olowu was until his death a Yoruba by tribe.
(c) That a directive be given that the said Estate be distributed in accordance with the Yoruba Custom of inheritance.

OR in the Alternative, the Plaintiffs claim is for:

(1) Revocation of the grant of letters of Administration made to the Defendants on 4th day of July 1962 in respect of the Estate of late Adeyinka Ayinde Olowu.
(2) The grant of fresh Letters of Administration to the Plaintiffs.
(3) The Defendants jointly and severally to give an account of the administration of the Estate, of all monies received and expended in respect of the said estate since 4th July, 1962 up to date.

The Court therefore ordered that a fresh account of the administration of the Estate be filed within 6 months from the date of the order. As against this judgment, the Plaintiffs appealed to the Court of Appeal. The appeal was dismissed on the 7th day of July, 1983 on all the five grounds argued including the omnibus ground.

The Plaintiffs have further appealed to this Court on two grounds.
icon ISSUE(S)

1. The relevant issue is which personal law governed the distribution of the estate of A.A. Olowu, deceased.
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icon RESOLUTION OF ISSUE(S)

[APPEAL: DISMISSED]

1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.

RULING:
i. I reproduce what the learned trial Judge found: "I have no hesitation in holding that the late A.A. Olowu is of Yoruba extraction – an Ijesha man. I also hold that he resided in Benin City and acquired considerable properties in what is now known as Bendel State. Evidence was led to show that he naturalised as a Bini on his own volition and hence the distribution was made-according to Bini Native Law and Custom. In effect, their late father renounced his Yoruba cultural heritage and opted for Benin personal law by naturalising as an indigene of Benin City."

The trial Judge further found: "2nd defendant is lieing that he did not tender “Exhibit “3” in “Exhibit “J” and I find as a fact that his father the late A.A Olowu applied to the Oba of Benin for naturalisation which he was granted and that it enabled him to acquire the properties in Benin City. 2nd defendant is estopped from denying that his father naturalised. Strenous efforts were made to disprove that he naturalised. I was neither told nor referred to any law which forbids this. On a careful consideration of the evidence in this case I do not think that the Bini Native Law and custom of distribution of a deceased property was proved and is therefore impossible for me to state whether the distribution in Exhibit “F” is equitable in the circumstances or not in accordance with the said law."

I entirely agree with his view. There was abundant evidence at the trial to support the finding of the trial Judge. The Court of appeal is right to have supported his finding that their late father renounced his Yoruba cultural origin and chose that of a Bini citizen as stated by the Oba of Benin in his letter dated 10th April 1942, addressed to the District Officer, Benin Division that "Mr. A.A. Olowu has applied to become a naturalised Benin. He has Benin women as wives, who have children for him."

He found that the deceased intestate acquired Bini status, thereby relinquishing his Yoruba cultural heritage. It follows therefore that by virtue of this change, his personal law changed to Bini customary law; distribution of his estate on intestacy must necessarily be governed by Bini customary law. He married Bini women who had children for him, he carried on various business activities in and around Benin City. He found also that the change of his status endowed him with the rights and privileges of a Bini indigene and this change in status accords with Benin customary law. Unless this finding of fact is reversed, I hold the view that the trial Judge was right in saying that the applicable customary law for the distribution of the estate is the Benin Native Law and custom. But since the Plaintiffs failed to prove the essential element of that custom, which nullified the distribution, the result was that their claim seeking an order of nullification of the distribution according to the said Benin customary law, must necessarily fail.
icon REFERENCED

Sections 1(3), 4(2) of the Administration of Estates Law, Cap. 1 Laws of Western Region of Nigeria, 1959;
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icon CASE(S) RELATED


icon NOTABLE DICTA

* PROCEDURAL


* SUBSTANTIVE
Put differently, the contention is that the Court should have entered judgment for the Plaintiffs because the 1st defendant failed to prove the constituents of that personal law (Bini customary law) of distribution. But similarly, Yoruba customary law, as postulated by the Plaintiffs, was not proved. The net result is that Plaintiffs failed to prove their case. - Coker, JSC. Olowu v. Olowu (1985)

As a general principle of law, succession to immovables is governed by the lex situs, that is, the law of the place where the land is situated. In this case, the customary law of the Benin people. The Plaintiffs’ case was that the distribution which purported to be in accordance with Benin customary law should be nullifed and, that of the Ijesha customary law should be substituted. No expert was called to say what is and why Ijesha customary law of distribution and succession to land should be applied. Here again, there was complete lack of evidence or decided cases in support of the proposition which the Plaintiffs contended. For the above reasons the Plaintiffs’ case must fail and their appeal must be dismissed. - Coker, JSC. Olowu v. Olowu (1985)

The case in hand is concerned with culturalization by choice which, axiomatically, led to a change of personal law by choice.It may be observed that change of personal law choice is not new to our legal system. It has been with us since 1898. - Bello, JSC. Olowu v. Olowu (1985)

The issue of personal law in the nature of native law and custom is not a matter for the Constitution but has always been a question of fact to be proved by evidence. - Uwais, JSC. Olowu v. Olowu (1985)

I will go further and say that the appellants, the respondents and in fact all the eleven children of the late A.A. Olowu who are now his successors in title in respect of those properties are also estopped from denying that their late father acquired the Status of a Bini man – which Status enabled him to acquire those properties. All the children of the late A.A. Olowu are estopped from denying that their father though of Yoruba extraction lived and died a Bini man. They are required to abide by that assumption because it formed the conventional basis upon which the late Adeyinka Ayinde Olowu acquired his properties in Benin. - Oputa, JSC. Olowu v. Olowu (1985)

The mutuality test of estoppels applies here. Sir Edward Coke called it the reciprocity test. The principle is that the children of the late A.A. Olowu will not be allowed to take advantage of and enjoy the properties acquired by their father as a Bini man while in the same breath denying his Bini Status and asking the court to apply as it were, the “Renvoi doctrine” which will send the matter back to Yoruba Customary Law for determination. If A.A. Olowu’s personal law, his lex patriae, Yoruba Customary law, is excluded as it ought to be on the facts and surrounding circumstances of this case, then the lex situs, the lex loci, the lex domicilii and the lex fori all point to Bini Customary law in the Bendel State of Nigeria. - Oputa, JSC. Olowu v. Olowu (1985)
The end of this brief.


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