CHIEF MEBURAMI AKINNUBI & ANOR VS GRACE OLANIKE AKINNUBI (MRS.) & ORS
In the Supreme Court of Nigeria
Friday, January 31, 1997
Case Number: SC. 209/1990
ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT (Presided)
IDRIS LEGBO KUTIGI
MICHEAL EKUNDAYO OGUNDARE
UTHMAN MOHAMMED JUSTICE, SUPREME COURT
JUSTICE, SUPREME COURT
SYLVESTER UMARU ONU JUSTICE, SUPREME COURT (Read the Leading Judgment)
CHIEF MEBURAMI AKINNUBI
JOSEPH AKINNUBI (Administrators of the Estate of Rufus Gbadebo Akinnubi, deceased)
GRACE OLANIKE AKINNUBI (MRS.) (As next friend of her five children)
THE PROBATE REGISTRAR
OWENA BANK (NIGERIA) LTD
ARGUING A GROUND OF APPEAL FOR THE FIRST TIME
If a ground of appeal is to be argued for the first time in the supreme court it must be done by leave of court.
INHERITANCE OF A DECEASED’S PROPERTY UNDER YORUBA NATIVE LAW AND CUSTOM
Again, parties are not in dispute over the provisions of the Yoruba Native Law and custom that a widow could not inherit her deceased husband’s property nor could the woman be appointed an administratrix of her late husband’s estate – See: Aileru v. Anibi (1952) 20 NLR 46 and Ajayi Yesufit Suberu & Ors. v. Bakare Sunmonu & Ors. (1957) SCNLR 45; (1957) 2 FSC 33- Per Mohammed JSC.
MOHAMMED, JSC. (Delivering the Judgment of the Court):
This is an appeal from the decision of the Benin Division of the Court of Appeal. The 1st respondent, Mrs. Grace Olanike Akinnubi, as plaintiff, initiated these proceedings before the Akure High Court, Ondo State. From the facts gathered from her pleadings and affidavit verifying the endorsements on the writ, the 1st respondent was the widow of one late Rufus Gbadebo Akinnubi who died intestate in Lagos, on 6th February, 1983. They were married under the Yoruba Customary Law and their marriage was blessed with five children who were all minors when their father, Mr. Akinnubi, died.
The deceased at the time of his death owned a storey building in Okitipupa. The building was let to Owena Bank (Nigeria) Ltd. the 4th defendants in this suit. Sometime in 1986, the 2nd and 3rd defendants who are brothers of Mr. Akinnubi, applied to the Probate Registrar, High Court of Justice, Ondo State, for a grant of Letters of Administration of the estate of Mr. Rufus Gbadebo Akinnubi. The application was published in a Public Notice, by the Probate Registrar, in the Daily Sketch Newspaper. On seeing the publication, the 1st respondent got her solicitor to lodge a caveat against the application. An attempt was made to reconcile the 1st respondent with, the two brothers of her deceased husband over the issue of the grant of the Letters of Administration. At the meeting, she advanced argument, through her solicitor, that she should be made a co-administratrix in the application for a grant of Letters of Administration of the estate of her deceased husband as representing the interest of her infant children. The reconciliation reached deadlock due to uncompromising attitude of the 1st and 2nd appellants.
On 11th July, 1986, the Probate Registrar who is 2nd, respondent, in this appeal, granted Letters of Administration to the lst and 2nd appellants. On hearing about it, the 1st respondent got a warning letter delivered to the 4th defendant giving the bank notice that Letters of Administration had been irregularly granted to the 1st and 2nd appellants and that the bank should not deal with them until the matter was decided by higher authorities.
On 17th October, 1996, the 1st respondent commenced an action against the two brothers of her deceased husband i.e. the 1st and 2nd appellants. She joined in the suit, the Probate Registrar and Owena Bank (Nigeria) Limited who are the 2nd and 3rd respondents, respectively, in this appeal. In the suit she claimed for the following reliefs:-
“1. A declaration that the Letters of Administration granted by the 1st defendant to the 2nd and 3rd defendants on the 11th day of July, 1986, in respect of the estate of Rufus Gbadebo Akinnubi (deceased) is null and void and of no legal effect whatsoever, because the Probate Registrar (the first defendant) ignored a caveat which was lodged by the plaintiff against the appointment of 2nd and 3rd defendants as the only administrators to the exclusion of the plaintiff.
2. An order to set aside the purported grant made by the 1st defendant to the 2nd and 3rd defendants.
3. An injunction to restrain the 2nd and the 3rd defendants from performing the functions and duties of administrators of the said Estate.
4. An injunction to restrain the 1st and the 4th defendants from having any transactions or dealing with the 2nd and 3rd defendants in their capacities as administrators of the said Estate.
5. An order that the estate of the late Rufus Gbadebo Akinnubi be administered by the Administrator-General and Public Trustees of Ondo State of Nigeria.
6. Damages against the 1st defendant for wrongfully and in bad faith granting Letters of Administration to the 2nd and 3rd defendants, and damages against the 2nd and 3rd defendants for wrongfully and illegally obtaining the said Letters of Administration.”
In some of the averments in the 1st respondent’s statement of claim she explained that since the death of her husband she had singlehandedly been responsible for the education and upkeep of the five children of the family to the exclusion of any of the relatives, including the 1st and 2nd appellants. She maintained the five children under extremely hard conditions and sometimes had to resort to hawking fonts and all sorts of vegetable products in open motor parks in Lagos, in order to keep body and soul together.
The 1st and 2nd appellants filed a joint statement of defence and denied all the claims of the 1st respondent. Their denial is best explained in paragraphs 8, 9, 10, 11, 16, 17, 18, 19 and 23 which read as follows:-
“8. The 2nd, and 3rd defendants deny that the plaintiff brought this action as guardian ad litem of the five surviving children of Late Rufus Akinnubi.
Save this denial paragraph 3 of the Statement of Claim is admitted.
9. Further to paragraph 8, hereof, the 2nd and 3rd defendants asserts that the plaintiff has brought this action for her own personal benefit, and without justification under customary law, particularly under Ikale Native law and custom.
10. The 2nd and 3rd defendants further contend that the plaintiff is not entitled to bring this action, nor is she entitled to be appointed a co-administratrix with all or’ any of the 2nd and 3rd defendants.
11. The marriage between the plaintiff and the deceased Rufus Gbadebo Akinnubi was contracted under Ikale Native Law and Custom at Okitipupa in Ikale Local Government Area, Ondo State. The 2nd and 3rd defendants will, in proof of this assertion, rely on the affidavit verifying the endorsements on the writ sworn and filed in this Court by the plaintiff on the 17th day of October, 1986 (17/10/86), in connection with this suit.
16. The brothers of the deceased Rufus Gbadebo Akinnubi, as well as Chief H. O. Kwewumi have been taking care of the plaintiff and the five surviving children of the deceased since 1983.
17. Upon the death of the plaintiff’s husband, late Rufus Akinnubi, the plaintiff, who under Yoruba customary law became part of the deceased’s estate, was allotted or bequeathed according to Ikale Customary Law, to one of the deceased’s brother, by name Crosdale Akinnubi, teacher, of Layelu High School, Ode-Aye, who was expected to perform all matrimonial duties for the plaintiff and act for the surviving children of the deceased as a person in loco parentis.
18. Although the plaintiff did not disagree nor reject the decision of her late husband’s Akinnubi family which was taken at a family meeting at Okitipupa allotting or bequeathing her to the said Crosdale Akinnubi, she, nevertheless, decided to stay and remain in Lagos without the permission or authority of her said new husband.
19. The plaintiff has now deserted her said new husband, Mr. Crosdale Akinnubi.
23. With regard to paragraph 20 of the Statement of Claim, the 2nd, and 3rd defendants maintain that as the marriage between the plaintiff and the deceased was contracted under native law and custom, she (the plaintiff) has. no right to be appointed (or joined with any member of the deceased’s family) as a co-administratrix of the estate of her deceased husband.”
Before the parties completed exchange of pleadings two motions were filed on the 19th of January, 1987. One of the motions was filed by the 1st respondent. It was brought under the inherent jurisdiction of the Court. In it the 1st respondent prayed for the following order:
“a. An order directing the 4th defendant/respondent to pay to the 5th defendant/respondent for the use and benefit of the plaintiff/ applicant three years advance rent of N36,000.00 being N12,000.00 per annum in respect of the property situate lying and being at Broad Street, Okitipupa which is taken on lease by the 4th defendant / respondent and is the subject-matter of the substantive action.
- In the alternative:
an order directing the 4th defendant/respondent to make an interim payment of one year’s accrued tent of N 12,000.00 representing payment for the period 1st October 1985- 30th September, 1986 to the 5th defendant/respondent for the use and benefit of the plaintiff/applicant in respect of the said property pending the final determination of the substantive suit. And for any further or other orders as this Honourable Court may deem fit to make in the circumstances.”
The second motion, which was brought under the provisions of Order 23, rule 2 of the High Court (Civil Procedure) Rules of Ondo State, was filed by the 1st and 2nd appellants. In it the appellants questioned the competency of the 1st respondent to institute this action. The appellants had, earlier in their Joint Statement of Defence, in paragraph 33, indicated that they would raise such legal issues as preliminary points of law for the determination of the trial court before the commencement or during the trial of the suit. In the motion the appellants applied for an order dismissing the 1st respondent’s suit on the following grounds:
“(a) that the plaintiff has no locus standi, of standing, to institute this action, she being under customary law herself a part of her husband’s estate to be administered, and ipso facto, not in law entitled to be appointed an administratrix of her deceased husband’s estate.
(b) that the plaintiff s pleadings disclose no reasonable cause of action, and the action is an abuse of the process of the Court, in that:
(i) the condition precedent, to instituting this action has not been fulfiled, namely, filing in court a Notice to Prohibit the Grant of the Letters of Administration, or Caveat, as required by law,
(ii) No valid ‘Notice to Prohibit the Grant of the Letters of Administration or caveat, was filed in Court, as required by law.
(c) that the action is incompetent, it not having been properly constituted, and that, by reason of the fact that all the parties necessary for the invocation of the judicial powers of this Court are not before it, as the 1st defendant is not a juristic person capable of being sued: See:(1) Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979 (as amended and modified); (2) Oloriode v. Oyebi (1984) 1 SCNLR 390.
(2) Such further order or other order or orders as the court may deem fit to make in the circumstances.
And further take notice that the applicants will, at the hearing of this application, rely on, among other documents, the following:
(1) The plaintiffs pleadings (that is, her Statement of Claim), and
(2) The plaintiffs Affidavit verifying the endorsements on the writ, sworn by the plaintiff and filed in this Court on the 17th day of October, 1986.”
The learned trial Judge fixed the two motions for hearing on the same day. On 18th February, 1987, the two motions were argued, each counsel giving reasons why the order sought by his client ought to be granted. In a well considered ruling the learned trial Judge dismissed all the prayers in the application filed by the appellants and held that the 1st respondent had locus standi to institute her action. The prayer of the 1st respondent, in her motion, was granted in the following terms:
“That the 4th defendant/respondent i.e. Owena Bank (Nig.) Ltd. make an interim payment of one year’s accrued rent of N12,000.00 in respect of the deceased’s property at Broad Street, Okitipupa, Ondo State representing a year’s refit for the period 1st October, 1985 – 30th September, 1986 to the 5th defendant/respondent i.e. The Administrator-General and Public Trustee Ondo State for the maintenance and education of the children of the deceased in this suit i.e. Taiwo Akinnubi, Kehinde Akirmubi, Idowu Akinnubi, Alaba Akinnubi and Babatunde Akinnubi and that any such payment for the maintenance and education of above named children of the deceased in this suit shall be paid to the plaintiff/applicant in this suit i.e. Grace O. Akinnubi pending the final determination of the substantive action in the suit.”
The appellant’s being dissatisfied with the ruling delivered by the learned trial Judge, filed an appeal before the Benin Division of the Court of Appeal. The Court of Appeal, in a unanimous decision dismissed the appeal. The appellants have now come here armed with six grounds for the prosecution of their appeal. Five issues were raised for the determination of the appeal and they read as follows:
“1. Whether the plaintiff/1st respondent, being a widow of a Yoruba Customary Law marriage, can maintain an action to administer, or to participate in the administration of, her deceased husband’s intestate estate.
2. Whether the lower court was right in not holding that the plaintiff/ 1st respondent, being a widow of a Yoruba customary law marriage, could not properly sue in law as she did in the suit.
3. Whether in view of the facts contained in the plaintiffs pleadings and the decision in the case of Aileru & Ors. v. Anibi (1952) 20 NLR 46, the lower court was right in amending the capacity in which the plaintiff brought the action to show that she brought the action as “Next friend to the named children.”
4. Whether the lower court ought to have refused or neglected to consider the issues raised in the appellants’ appeal as to:
(a) The non juristic personality of the Probate Registrar or the improper constitution of the suit and
(b) whether the trial court had power or jurisdiction to order the payment of money out of the proceeds of the deceased’s intestate estate when the said order contravenes specific provisions of the law.
5. Whether the lower court was right in relying on extraneous matters in coming to its decision in the case.”
The issues raised by the learned counsel for the 1st respondent in the respondent’s brief, although couched in a different terminology, were similar, in all respects to the issues raised by the appellants above. Before I consider the submissions of both counsel for the appellants and the 1st respondent it will be instructive to pause and explain why only the appellants and the 1st respondent remain combatants in this suit at this stage. The Probate Registrar who is the 1st defendant and 2nd respondent, in this appeal, had not filed his statement of defence when the appellants challenged the competency of the 1st respondent to institute this action. Owena Bank (Nigeria) Ltd, the 4th defendant filed a Statement of Defence in which it admitted most of the averments in the Statement of Claim which concerned the bank. In paragraph 6 the Bank said:
“The 4th defendant does not want to pay its money to any wrong hand, but will be willing and ready to pay the rent due to whoever is properly and legally authorised to claim same.”
The 5th defendant, Administrator-General and Public Trustee was mentioned once in the motion paper filed by the 1st respondent, and when the learned trial Judge delivered his ruling in which he ordered for an interim payment of one year to be paid to the 5th defendant out of the accrued rents in respect of the property of the deceased. The Administrator-General was to keep the money for the maintenance and education of the deceased children. During the hearing of arguments for the two motions the learned trial Judge ruled that the 5th defendant had been properly joined as a party to the suit. Counsel for the 1st defendant was in court when the two motions were argued but from the record of proceedings he did not make any submission in support or against any of the motions. In short, this being an interlocutory application, therefore the role played by the 1st and the 4th defendants could only be considered when the action was determined on the merits. Thus at this stage the real contest is between the appellants and 1st respondent. The 1st and 4th defendants had to await the outcome of this “preliminary objection as to the capacity of the 1st respondent to sue” before they take pan fully in the proceedings.
I will consider issues 1; 2 and 3 together because, what had been raised there was based on alternative submissions and that decisions in them overlap. There is no dispute over the type of marriage which was solemnized between the 1st respondent and her deceased husband. It was a marriage under native law and custom. There is no dispute either that Mr.Rufus Gbadebo Akinnubi died intestate in Lagos. Again, parties are not in dispute over the provisions of the Yoruba Native Law and custom that a widow could not inherit her deceased husband’s property nor could the woman be appointed an administratrix of her late husband’s estate – See: Aileru v. Anibi (1952) 20 NLR 46 and Ajayi Yesufit Suberu & Ors. v. Bakare Sunmonu & Ors. (1957) SCNLR 45; (1957) 2 FSC 33:
What the appellants want the court to accept and is strongly disputed by the learned counsel for the 1st respondent is that the 1st respondent could not properly, in law, bring her action in the way she did in this suit. The learned counsel seems to have made a vague submission here. I will refer to the decision of the Court of Appeal on this issue and the grounds of appeal against that decision. The Court of Appeal, Per Musdapher, J.C.A., held that the 1st respondent instituted this action not for her own benefit but for the benefit of her children who were under her custody and care. On the issue of her suing as guardian ad litem, the Court of Appeal held that it was an error on the part of the 1st respondent to institute this action as guardian ad litem. The Court, however, referred to the case of Gbogbolulu of Vakpo v. Head Chief Hodo (1941) 7 WACA 164 and held that it was the children that were real plaintiffs in this action and that since they could not sue under rules of court, they could only do so through or by their ’next friend’ who is their mother.
The appellants’ grounds 1 and 2 in this appeal attacked this decision but when submissions were made on the issues formulated on those grounds the counsel for the appellant was too slipshod about the presentation of the argument in support of his averments in those grounds of appeal. I cannot see how the lower court could have been held to err in holding that the 1st respondent’s capacity could be amended to show that she was suing as ‘next friend’ to her-infant children but not as guardian ad litem. I agree entirely with the opinion of the Court of Appeal, Per Musdapher, J.C.A. where the learned Justice held:
“If there is authority to sue, (and I take it, that the children if adults have the authority to sue) and there is a defect relating only to the failure of the plaintiff to correctly state on the writ the capacity in which he has brought the action, then the proper order for the court to make is one amending the writ (and the pleadings) See: Tottenham v. Tottenham (1986) 1 CH 628. If the trial court fails to do this, the Court of Appeal may still make the order of amendment. As the West African Court of Appeal said in Gbogbolulu of Vakpo v. Head Chief Hodo (1941) 7 WACA 164.
“It is the duty of the Courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities
As soon as any question arose as to the capacities of the respective parties, it was, in our view, the duty of the court to make any formal amendment on the claim which will make clear the capacity in which the plaintiff sued provided that could be done without any hardship to either party. The Court has full powers to take this course since it appeared that no hardship would accrue to either party by the heading of the suit being amended even at this stage.”
The issue about the refusal of the Court of Appeal to consider the argument of the appellants on the non-juristic personality of the Probate Registrar had been considered earlier in this judgment, that the Probate Registrar had not filed his Statement of Defence when the appellants moved the trial court, through the motion on notice, challenging the capacity of the 1st respondent to institute this action. The Court of Appeal was confronted with this ground of appeal and it held, quite correctly, that paragraph 1(c) of the motion was not seriously considered by the learned counsel for the appellants during the hearing of the motion. The learned trial Judge, quite correctly, also ruled that the argument had been abandoned. The proceedings before the High Court are clear and, although the appellants’ counsel did refer to the 1st defendant, the Probate Registrar, as not being a juristic person capable of being sued, he failed to make a single submission before the trial court in support of such averment. The learned trial Judge was right therefore to say that the prayer in par
Appellants absent and unrepresented
Respondents absent and unrepresented