⦿ CASE SUMMARY OF:
Dr. T.E.A. Salubi v. Mrs. Benedicta E. Nwariaku (2003) – SC
Distribution of estate;
Administration of estate law;
1. DR. T.E.A. Salubi (As Administrator of Late Chief Salubi’s Estate in Benin City and self appointed Administrator of Chief Salubi’s Estate outside Benin City)
1. Mrs. Benedicta E. Nwariaku (Nee Salubi), for herself as beneficiary of the Estate of the late Chief T.E.A. Salubi)
2. The Probate Registrar
3. Mrs. Angela Alice Salubi (Joined by Order of the Court of Appeal)
⦿ LEAD JUDGEMENT DELIVERED BY:
E. O. AYOOLA, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– C.A. Ajuyah, Esq;
* FOR THE RESPONDENT
– Chief A.O. Ogbodu (with him Marcel Eriofoloh, Esq.) for the 1st and 3rd Respondents;
– 2nd Respondent unrepresented;
The plaintiff’s case was that the deceased having contracted a marriage under the Marriage Ordinance was not a person to whom native law and custom applied with the consequence that his widow was entitled to two-thirds share of his estate. The 1st defendant’s case, on the other hand, was that the deceased being and having lived as an Urhobo Chief and having died intestate as a matter of deliberate choice as an Urhobo chief, his estate devolved to be distributed in accordance with Urhobo native law and custom under which the 1st defendant as the deceased’s eldest son inherited the deceased’s estate which he could distribute at his discretion.
The trial Judge found that the estate was not to be administered in accordance with either the Administration of Estates Law or native law and custom but as provided for in section 36(1) of the Marriage Ordinance, referred to in the judgments of the lower courts as Act. He preferred the enactment to native law and custom because the deceased and his widow had married in 1932 under the Marriage Ordinance and the deceased was thereby “no longer a person to whom native law and custom is applicable, because by his conscious volition, he has Anglicanised himself and obviously opted out of native law and custom of Ovu people.” He preferred section 36(1) of the Marriage Act (Ordinance) to the Administration of Estates Law because, as he put it, “the Marriage Act as Federal Law is superior and overrides the State law dealing with Administration of Estate of persons dying intestate.” Applying section 36(1) of the Marriage Act, he found that the deceased’s widow was entitled to one-third of the estate and his children to the remaining two-thirds. The learned trial Judge identified the properties comprised in the estate and proceeded to distribute same, allocating properties in Victoria Island, Lagos and one in Benin City to the widow “as forming roughly, one-third of the said estate” and sharing the rest among the deceased’s children. In the event, the trial Judge set aside the letters of administration granted to the 1st defendant and ordered the 2nd defendant, the Probate Registrar, to “give effect to the quantum of distribution” which he had stated.
The Defendant appealed; The Court of Appeal dismissed the appeal, (in part: said the trial court cannot distribute the estate), upheld the trial court’s verdict.
The Defendant has herein appealed again.
1. Whether the estate was to be distributed in accordance with English Law or Urhobo native law and custom?
2. Should the court below have proceeded as it did (i) to order that properties comprising the estate be valued, and (ii) to distribute the properties?
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 was judged in favour of the Appellant.
i. I am of the opinion that the court below was in error when it held that the applicable law governing the distribution of the estate is as prescribed in section 36 of the Marriage Act even though that error was not of significant consequence to the method of distribution of the estate. The applicable enactment is section 49(1) of the Administration of Estates Law, Laws of Bendel State. The court below should have made an order in terms that the estate of the deceased stood to be distributed to all the beneficiaries of the estate in accordance with that Law.
ii. Where a statute of the then Western Region had fully provided for a matter, the intendment was that the provisions of the statute was the applicable law. It is a well known principle that: “If it is clear that it was the intention of the legislature in passing a new statute to abrogate the previous common law on the subject, the common law must give way and the statute must prevail.” (See Craies on Statute Law, 7th Edition). It follows that if there was a conflict between the English common law on the distribution of intestate estate and the provisions of the Administration of Estates Law, the latter must prevail. It has not been suggested in this case that recourse should be had to the common law. The Regional legislature having enacted a law on the subject on which it had full competence, recourse to the legislation of the previous unitary government, albeit on the same subject, or to English law is misconceived. Where there is a conflict between such previous enactment and the later one, the former should be deemed impliedly repealed and the later one should prevail.
iii. The provisions of section 49(5) of the Administration of Estates Law, particularly in the portion rendered in italics in the quotation above, leave no room for any doubt that the estate in this case fell to be distributed in accordance with the “provisions of this Law”, that is, the Administration of Estates Law and not English law or customary law.
2. Issue 2 was judged in favour of the Appellant.
i. Although the plaintiff by her amended statement of claim averred that certain properties were not part of the estate and enumerated properties comprising the estate, with which enumeration the 1st defendant did not entirely agree, at the end of the day there was no relief sought by the plaintiff concerning entitlement to any specific property. No remedy was sought as to who was entitled to what property. The decision of the court below excluding specific properties from the estate or declaring entitlement of beneficiaries to specific property was inappropriate.
ii. The applicable law for the distribution of the estate having been ascertained and stated, that should have been the end of the matter having regard to the plaintiff’s claim. The orders made by the court below that the probate registrar should supervise the valuation of the assets of the estate and take charge of the estate were not claimed and cannot be consequential to a declaration of the applicable law.
iii. I am of the opinion that the letter of administration granted to the 1st defendant having been set aside it is left to the beneficiaries to take appropriate steps for the due administration of the estate. To proceed to proffer suggestions as to what steps may be available to them may be interpreted as a directive of this court and may lead to further confusion. If an advice were to be proffered, it is that consensual approach to the administration of the estate and the distribution of the assets is always a preferred option, if achievable. A consequence of adopting that option may well lead to transfer of the estate by consent of the beneficiaries and the Administrator-General to the Administrator-General, adapting section 32(1) of the Administration of Estates Law to meet the special circumstances of the case.
⦿ SOME PROVISIONS
Section 49(1) of the Administration of Estates Law (Cap. 2, Laws of the Bendel State of Nigeria), as its predecessor of the same title (Cap. 1, Laws of the Western Region of Nigeria , 1959), provides in regard to the distribution of the estate of an intestate who died leaving a husband or wife and issue as follows: “The surviving husband or wife shall take the personal chattels absolutely and, in addition, the residuary estate of the intestate (other than the personal chattels) shall stand charged with the payment of a net sum of money equivalent to the value of one-third of the residuary estate, free of death duties and costs, to the surviving husband or wife with interest thereon from the date of the death at the rate of two and a half pounds per cent per annum until paid or appropriated, and, subject to providing for that sum and the interest thereon, the residuary estate (other than the personal chattels) shall be held- (a) as to one-third upon trust for the surviving husband or wife during his or her life, and, subject to such life interest, on the statutory trusts for the issue of the intestate, and (b) as to the other two thirds for the issue of the intestate.”
Section 36(1) of the Marriage Act as follows: “Where any person who is subject to customary law contracts a marriage in accordance with the provisions of the Marriage Ordinance 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.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
While the formation, annulment and dissolution of marriages other than marriages under Islamic law and customary law including matrimonial causes relating thereto were by item 23 of the Schedule to the 1960 Constitution and Item 60 of the Second Schedule to the 1979 Constitution within the Exclusive Legislative List to be dealt with in Federal laws, succession was neither in the exclusive nor in the Concurrent Legislative List in the Schedule but was a residual matter in the exclusive legislative competence of the States to be dealt with in State laws. – Ayoola, JSC. Salubi v. Nwariaku (2003)
It is a matter of common knowledge that Western Region of Nigeria out of which the then Mid-West State (which was later named Bendel State of Nigeria) was carved enacted its Administration of Estates Law in 1959 and that that Region by a deliberate and forward looking policy of modernizing its statute laws and making it easily accessible to the people ceased to apply statutes of general application in force in England on 1st January, 1900 but, rather, received the provisions of several enactments of England into its legal system by transplanting and domesticating such provisions by its own enactment. – Ayoola, JSC. Salubi v. Nwariaku (2003)
It is a well known principle that: “If it is clear that it was the intention of the legislature in passing a new statute to abrogate the previous common law on the subject, the common law must give way and the statute must prevail.” – Ayoola, JSC. Salubi v. Nwariaku (2003)
Where a statute of the then Western Region had fully provided for a matter, the intendment was that the provisions of the statute was the applicable law. – Ayoola, JSC. Salubi v. Nwariaku (2003)
Residuary estate in cases of total intestacy includes the entire estate of the intestate after payment of funeral, testamentary and administration expenses, debts and other liabilities of the estate. The term residuary estate’ is not used to indicate a distinction between real and personal property. – Ayoola, JSC. Salubi v. Nwariaku (2003)
For my part, I do not see what reasonable objection can be raised to an order that assets of the estate be valued for the purpose of facilitating distribution. Such order in all appropriate case cannot be open to any valid objection provided the parties are at liberty to challenge any valuation made. – Ayoola, JSC. Salubi v. Nwariaku (2003)
It is trite law that the court normally should not grant a relief not sought by the parties. Where a party makes averments but such averments do not relate to any relief sought in the case, the court will not grant a relief which would have followed the averments without an amendment of the claim. – Ayoola, JSC. Salubi v. Nwariaku (2003)
Having regard to the view I hold that the relief properly granted in the case should be confined to the relief sought, it is not expedient to deal with the other issues in the appeal which relate to matters beyond and outside the relief claimed in the case. – Ayoola, JSC. Salubi v. Nwariaku (2003)