3PLR – ASERE V. ASERE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ASERE

V.

ASERE

COURT OF APPEAL (IBADAN DIVISION)

WEDNESDAY, 24TH APRIL, 1991

CA/1/39/ 87

3PLR/1991/52 (CA)

 

BEFORE THEIR LORDSHIPS

MOHAMMED MUSTAPHA ADEBAYO AKANBI J.C.A. (Presided and Read the Leading Judgment)

IBRAHIM KOLAPO SULU-GAMBARL.J.C.A.

EMANUEL OBIOMA OGWUEGBU. J.C.A.

 

BETWEEN

1. MRS. TITILAYO ASERE
2. JOSHUA ASERE ANOR.

AND

1. MRS. BIBIANA OLUFEMI ASERE
2. OLUFUNMILAYO ADEGBAMIGBE (NEE ASERE)

 

REPRESENTATION

S.A. Oriade ESQ. – for the Appellants

H.B. Fabunmi, ESQ (with him, H.A.O. Ajakaiye ESQ) – for the Respondents

 

MAIN ISSUES

ESTATE ADMINISTRATION/PLANNING:– Application for letters of administration – Who may apply – Discretion of Court to grant – How exercised

FAMILY LAW – MATRIMONIAL CAUSES:– Presumption of marriage under the Marriage Act – When not proper – Relevant considerations

CHILDREN AND WOMEN LAW: Women/Children and inheritance – Application for letters of administration over estate of deceased husband and father who died intestate – Disputes between different women who had children for deceased asserting their marriage to deceased person and entitlement to share in his estate – How treated

PRACTICE AND PROCEDURE – APPEAL:– When to make an order of retrial – Whether court in such cases need not go into the merit of the case

PRACTICE AND PROCEDURE – EVIDENCE:- Deficiency, error, defect, omission or discrepancy in an affidavit or as between the oral testimony and the documentary evidence tendered by or against any witness at the trial or if there is an apparent conflict in the evidence of a witness – Whether it is the duty of the witness himself to proffer any explanation he may have or adduce such evidence as may assist the Court to resolve the conflict – Whether it is not the duty of a trial court all on its own to start looking for explanation not brought out by evidence adduced in court or to find excuses and answer for unresolved conflict in evidence of a witness

 

 

MAIN JUDGEMENT

AKANBI, J.C.A (Delivering the Leading Judgment):

On 9th August 1981, Samuel Layiwola Asere died intestate. He left behind substantial property including the house in which he lived at E7/690/ Agugu Area, Ibadan, an uncompleted building at Iwo Road, Ibadan, and a house at Aserifa Ola Layout, Old Ibadan – Ife Road.

 

Not unexpectedly, attempt was made to take out letters of administration of his estate from the High Court Registry. The applicants were Mrs. Bibiana Olufemi Asere and her only daughter Mrs. Olufunmilayo Adegbamigbe. The application was made for their beneficial interest and the following children of the deceased namely (i) Olufemi Asere, (ii) Olufunke Asere and (iii) Adedeji Asere who were said to have been born out of wedlock to the deceased by Mrs. Deborah Abeje Asere and Mrs. Titilayo Asere the first and second defendants respectively in this case.

 

Again not unexpectedly, both Deborah Asere and Titilayo Asere resisted the application for the Issuance of letters of administration to Bibiana Asere and her daughter. They entered a caveat against the grant. On 23rd August 1982, Titilayo Asere withdrew her notice but filed instead a counter affidavit on 8th April 1983 in opposition to the application for a grant of the letters of administration. Deborah Asere also filed a similar affidavit. So also Joshua Asere who is a brother to the deceased Samuel Olayiwola Asere. Matters indeed had approached a crisis. There was no hope of an amicable settlement. It was evident that the line of legal battle had been drawn.

 

Mrs. Bibiana Asere and her daughter Olufunmilayo Adegbamigbe (here­inafter called plaintiffs) took their case to the High Court seeking the following:­

“(a)    A declaration that the plaintiffs have a prior right and/or are better entitled as against the defendants to a grant of letters of adminis­tration to administer the Estate of Late Samuel Layiwola Asere.

(b)     An order that letters of administration in respect of the adminis­tration of the estate of the said Samuel Layiwola Asere be granted exclusively to the plaintiffs.

(c)     An order that the defendants give an account of the properties of the estate which fell into their hands since the death of the deceased.

(d)     any other order or orders which the court may deem fit to make having regard to all the circumstances of this case.”

 

In their statement of claim, they pleaded inter alia:­

“17.   The 1st and 2nd defendants were Mistresses to the deceased and were not and could not have been married to the deceased under any form of law.

18. In fact the 2nd defendant, formerly known and called Suwebatu Aduke in her ignorance instituted a divorce proceedings against the deceased at the Ibadan City Number 6 Grade B Customary Court, Holden at Mapo Hall, Ibadan in suit Number 165/74 sometimes in 1974 and on the 20th day of June 1974, divorce was granted to her on no re-payment of dowry. The Plaintiffs will rely on the proceedings and judgment in this matter at the trial of this suit.
19. Even if the 2nd defendant were married to the deceased, which averment the plaintiffs deny, the 2nd defendant had since 1974 determined the marriage as stated above.
20. The Plaintiff will contend at the trial of this action that none of the defendants is entitled to a grant of letters of Administration of the Estate of the deceased, since the 1st and 2nd defendants are not the wives of the deceased and since the third defendant is a half-brother of the deceased and the 4th defendant is not a relation of the deceased.
21. During his lifetime, the deceased made adequate provisions for the Welfare of the 1st and 2nd defendants and their children.
22. For the 1st defendant, the deceased built two houses at Iraye, Ile-­Ife. One of the building was completed before the death of the deceased and the 1st defendant had been living in it. The second building was built up to decking level before the deceased died and the 1st defendant decked the house only two weeks after the death of the deceased from monies she previous collected from the deceased.
23. In addition to the above, the deceased also gave to the 1st defendant his Peugeot 404 Car Registration Number LY 1784 which he had been making use of when he purchase another car.
24. The deceased also established a thriving business at Agbeni for the 2nd defendant and made her financially comfortable before he died.
25. Notwithstanding the above facts, the 1st and 2nd defendants, as well as the third defendant to whom the deceased owned no obligation, are still desirous of participating in the Administration of the Estate of the deceased.
26. On or about the 26th day of October 1981, the Plaintiffs for themselves and for the benefit of all other children of the deceased –

(i) Olufemi Asere

(ii) Olufunke,

(iii) Adedeji Asere-

applied to the High Court of Ibadan for the letters of Administration of the estate of Samuel Layiwola Asere deceased, but to their astonish­ment, the 1st and 2nd defendants filed caveat against the grant of the application.

29. The 3rd defendant has also collaborated with and has handed over the keys of the deceased house at Aserifa Ola Layout Old Ibadan Road lie-Ife to the 1st defendant as a result of which the 1st defendant has started laying false claims to the property.
30. The 1st and 2nd plaintiffs are competent, capable and willing to administer the estate of the deceased in granting letters of Ad­ministration.
31. The plaintiffs completed application forms are retained in the probate Registry Pending the outcome of the case.
32. The Plaintiffs and the defendants cannot jointly administer the estate of Samuel Layiwola Asere harmoniously and/or at all. 36. The children of the deceased above named and born out of wedlock will be well catered for out of the estate of the deceased.”

 

The 1st defendant in her statement of defence also averred interalia:­

“4.     The 1st Defendant avers that she is one of the three surviving widows of Samuel Layiwola Asere, late, of Macmillian Nigeria Publishers Ltd., Ibadan, the other two surviving widows of the deceased being the 1st plaintiff and the 2nd defendant.

5. The 1st Defendant says that she was once married to one Mr. Adeyemo under native law and custom but became divorced from the said Adeyemo in 1963 at the Grade “C” Customary Court, Eranyiba, Enuwa, Ile-Ife.
6. The 1st defendant was remarried in the same year 1963 to the deceased Samuel Layiwola Asere under native law and custom.
7. 1st Defendant avers that the following people who are members of the family and/or friends of the late Samuel Layiwola Asere, hereinafter referred to as “the deceased” witnessed the marriage between her and the deceased.

(i)      Mr. Abiola Ogundeji of No.^–135, L.A. Road, Akarabata Layout, Ile-Ife.

(ii)     Late Pa Joseph Adekunle Asere, father of the deceased

(iii)    Mrs Ijaduola Fabowale (Nee Asere) of Fagunwa com­pound, Modakeke.

(iv)    Alhaja Odunola Abake (Nee Asere) of No. 9 Tokunbo Street, Lagos

(v)     Mrs. Abigail Segilola (Nee Asere) of No. 7 Itasin Street, Modakeke.

(vi)    Mrs. Julianah Faderera (Nee Asere) of U.T.C. Depart­ment Stores, Cocoa House, Ibadan.

(vii)   Alhaja Sabitiyu Amope of Aderemi Road Ile-Ife.

8. That I begat one son, by the name of Olufemi Asere for the deceased on 14th April 1964 at Modakeke.
9. That the deceased had not built a personal house of his own at the time we were married in 1963 and we both lived together in my personal house.
10. When the deceased completed his personal building at Aserifa Ola Layout, Old Ibadan Road, Ile-Ife both he and the 1st Defendant moved in there. 1st Defendant says that she was the only one of the three wives the deceased had who lived with him at Ile-Ife throughout his lifetime.
11. 1st Defendant avers that although the deceased had his place of work at Ibadan he always came back home to his Aserifa Ola Layout, Old Ibadan Road Ile-Ife residence to spend his weekends.
12. The 1st Defendant says with reference to paragraph 15, 16, and 17 of the statement of claim that she was married to the deceased under customary law and repeats the facts and circumstances stated in paragraph 4, 6, 7 and 8 above.
13. The 1st Defendants says that since the death of the deceased she has been solely responsible for the maintenance at Ibadan and did not return to the deceased until the month of April, 1971.
14. The 1st Defendant says with reference to paragraph 25 and 26 of the Statement of claim that the plaintiffs for their own selfish reasons applied to the Probate Registry, High Court of Justice, Ibadan for letters of administration to the estate of the deceased falsely declaring themselves as the only widow and daughter of the deceased respectively.
15. The 1st Defendant says that all the children of the deceased, namely (1) Olufunmilayo Adegbamigbe (Nee Asere) (2) Mr. Olufemi Asere (3) Miss Olufunke Asere and (4) Master Adedeji Asere have interest in and are equally entitled to the real and personal proper­ties of their late father.
16. The 1st Defendant says with reference to paragraphs 34, 35 and 36 of the Statement of claim that it will be highly prejudicial to the interest of the other three children of the deceased if letters of administration are granted to only Plaintiffs.
17. The 1st Defendant further says that on Thursday 5th January 1984, all the parties interested in the administration of the estate of the deceased, including the 1st Plaintiff, and their Solicitors met at the office of the Probate Registrar, High Court of Justice, Iyaganku, Ibadan where it was agreed that the 1st Plaintiff together with the 1st and 2nd and 3rd defendants should be appointed jointly as administrators of the deceased’s estate and granted letters of administration accordingly.
18. The 1st defendant says that she is not accountable to the plaintiffs in any way whatsoever.”

 

In their reply to the statement of Defence, the plaintiff denied the material averments in the statement of defence, as did the 1st defendant with regard to the several allegations contained in the statement of claim and specifically re-.stated in the following paragraphs thus:­

“4.     The 1st defendant was never at any time married to the deceased under native law and custom as alleged in paragraph 5 of the 1st defendant’s statement of defence. If any union took place between the deceased and the 1st defendant, it was an illicit association.

6. The Plaintiffs aver in respect of paragraph 10 that Aserifa House is not the deceased first house. By 1967, the deceased and the 1st plaintiff had completed their house at E7/690 Agugu Area Ibadan, Oyo State into which they moved and lived therein. Aserifa house, old Ibadan Road Ile-Ife was built years after the above-mentioned house by the deceased and the 1st plaintiff.
7. As regards paragraph 19 of the 1st defendant’s statement of defence, the plaintiffs aver that only the plaintiffs are entitled to the house at E7690 Agugu Ibadan the house at Iwo Road, Ibadan and the one at Aserifa Ola Layout Old Ibadan Road IIe-Ife because they were jointly built by the 1st plaintiff and the deceased as they kept a joint purse and all accounts and business carried on by the deceased and the 1st plaintiff are in the name of 2nd plaintiff. In fact, the house at Iwo Road was built in the name of the 2nd plaintiff and it is her sole property.
8. The plaintiff further aver that the deceased registered the 2nd plaintiff’s name as his next of kin at his place of work at Macmillan Nigeria Limited and in his life Insurance policy with British American Bank and these facts are adduced to controvert the averments in paragraph 19 of the 1st defendant’s statement of defence that the 2nd plaintiff and the three other children are jointly entitled to the personal property of the deceased.
9. The Plaintiff deny the averments in paragraph 21 of the defendant’s statement of defence and say that the 1st plaintiff did not agree to jointly administer the Estate of the deceased together with the 1st, 2nd and 3rd defendants. In fact she protested and sent a letter dated the 31st day of January, 1984 to the Chief Registrar, High Court of Justice, Ibadan to this effect. The Plaintiffs will rely on this letter at the trial of this action.”

 

The 3rd and 4th defendants also filed copious pleadings. They averred that they are brother and cousin of the deceased respectively and reemphasized that the first plaintiff, the first and 2nd defendant were all validly married to the deceased under native law and custom and it was a fallacy for the 1st plaintiff to say that she married under the Marriage Act. They also alleged that all the children of the deceased were born “in wedlock under native law and custom and that since the death of their father Samuel Layiwola Asere the plaintiff had not shown any concern or interest in their education and well being, and that in view of her “hatred” for 1^st and 2nd defendants and their children, it is ‘not likely’ that they will benefit from the proceeds of the estate if letters of administration were granted to the plaintiffs’ solo. They asserted that as brother and cousin of the deceased they are entitled under native law and custom to participate along with others in the administration of the estate of the deceased.

 

These then were the facts which in the main emerged from the pleadings. However, when the case came up forbearing on 2nd July, 1985 counsel for the 1st defendant Mr. Adedeji provoked an issue, the resolution of which has resulted in this appeal. It was Mr. Adedeji’s contention for the 1st defendant that the jurisdiction of the Court would depend on the type of marriage contracted by the parties. For according to him, if the marriage between the deceased and the 1st Respondent was in accordance with native law and custom, the trial court would have no jurisdiction but if made under the Marriage Act, then jurisdiction would vest in the court. This alleged issue of jurisdiction was accordingly with the concurrence of Mr. Fawole (as he then was) for the 2nd to 4th defendants submitted for adjudication and determination in limine

 

After noting that a prior determination of the issue of jurisdiction was “a reasonable and true saving device,” the learned judge proceeded to take evidence. The first plaintiff gave evidence and called one witness Mr. Akinwemi Folorunsho Apara to testify on her behalf. The gist of their evidence was that she and the deceased married under the “Marriage Ordinance” at the Magistrate’s Court Registry, Iyaganku in Ibadan on 2nd May 1955, According to 1st plaintiff some 10 days after, precisely on 12/5/55, she again went through another ceremony of marriage known as “Parlour Marriage” or Marriage under the Native law and custom,” and finally at the Union Baptist Church Ekotedo, Ibadan, they held a “thanks giving” service. Under cross-examination, she admitted being the deponent in Exhibit 1 where she stated inter alia –

“That I am the legal wife of the late Mr. Samuel Olayiwola Asere having been married to him under Native Law and Custom on 12th May, 1955.

 

There is also this averment in paragraph 8(a) of the same affidavit:­

8. That after our marriage on 12th May, 1955, we have lived together in the underlisted hired premises before moving to our own house at E7.690 Agugu area, Ibadan.

(a)     From 12th May 1955 to 1960 – as Tenants at Oke Sent, Ibadan

(b)     From 1960 to 1962 – as Tenants at Mr.Akinkunmi’s house at Agugu, Ibadan.

(c)     From 1962 to 1967 – as Tenants as Mr. Olayide’s house at Agugu, Ibadan.

(d)     1967 – We moved to our own house at E7/690 Agugu Area, Ibadan.

 

1st Plaintiff said that she was unable to produce her certificate of marriage because it was stolen when thieves burgled their house and attempts to obtain a certified true copy proved abortive. However, her only witness Mr. Apara testified that he was an eye-witness to the marriage at the Marriage Registry Iyaganku, Ibadan even though he could not remember the year of the marriage. He confirmed the story of the “thanksgiving service” at the Union Baptist Church Ekotedo but was unable to remember the name of the Registrar of the marriage or the officiating Minister of religion at the church. He was not a witness to the “parlour marriage” between the deceased and the 1st plaintiff.

 

None of the defendants gave evidence or called any witness to testify. After the addresses of counsel, the learned trial judge in a ruling of some considerable length delivered on 13th Sept. 1985, said:

“I am convinced this is a case in which I should presume from evidence before me that a marriage under the Marriage Ordinance was celebrated between 1st plaintiff and her deceased husband, Asere on 2/5/55. I have listened to the 1st plaintiff’s story and I have also received evidence from Mr. Apara. Contrary to both counsel to the defendant, I find nothing discrediting in Mr. Apara’s evidence. I have watched his demeanour and I have no hesitation in accepting his evidence as being true.”

 

The learned judge said that he believed the story that 1st plaintiff’s marriage certificate was stolen and that in the absence of any rebuttal evidence, it was correct to presume that the 1st plaintiff and the deceased married under the Marriage Ordinance.

 

As regards the averment in paragraph 2 of Exhibit 1, the affidavit of the 1st plaintiff to which I had earlier alluded, this is what the trial Judge said:­

“Both Exhibit 1 and attachment were prepared by a solicitor, no doubt. The minister who swore to an affidavit said that the purported native law and customary marriage took place on 12/5/55. He is silent on when the thanksgiving service which he conducted at Union Baptist church, Ekotedo, Ibadan took place nor said anything of marriage of 2/25/55. In view of the evidence of the chronology of events given before me, and which evidence I believe, I find no fault with paragraph 2 of Exhibit l. Even if there be any fault, I can surely not penalize the 1st plaintiff for the inadequacies or inefficiency of her lawyer whom she expected to give her the optimum assistance and guidance in the preparation and presentation of her case.”

 

I pause to observe that the explanations offered by the learned trial judge was not part of the evidence before him. The 1st plaintiff never accused his lawyer that he wrote down what she did not say or that she did not understand what she deposed to and what is more there was no evidence that the lawyer who prepared Exhibit I suffered from any “inadequacies or inefficiency.”

 

To my mind if there is any reason to be given for any deficiency, error, defect, omission or discrepancy in an affidavit or as between the oral testimony and the documentary evidence tendered by or against any witness at the trial or if there is an apparent conflict in the evidence of a witness, it is the duty of the witness himself to proffer any explanation he may have or adduce such evidence as may assist the Court to resolve the conflict. It is not the duty of a trial court all on its own to start looking for explanation not brought out by evidence adduced in court or to find excuses and answer for unresolved conflict in evidence of a witness.

 

But be that as it may, after noting that there is not as yet any law in Nigeria which says that “once a woman has children for a man, the woman becomes a wife” and that in any case 2nd defendant had been divorced, the trial judge came to the firm conclusion in his ruling that­

“There was a marriage on 2/5/55 under the Ordinance between the 1st Plaintiff and the deceased Samuel Olayiwola Asere at the Marriage Registry, Iyaganku, Ibadan and I shall so treat it for purposes of the substantive action. I, therefore, rule that I have jurisdiction to hear the case.”

 

These observations/findings of the trial judge have been the subjects of complaint in the 4 grounds of appeal filed on behalf of the 2nd to 4th defendants. Curiously enough Mr. Adedeji who appeared for the 1st defendant did not file any appeal-gin this matter and did not file any brief. The result was that he could not be heard. So he remained a passive onlooker throughout the proceedings in this appeal.

 

Be that as it may, briefs of argument were filed and exchanged between 2nd to 4th defendants (hereinafter called appellants) and the 1st and 2nd plaintiffs (hereafter referred to as respondents). The ground without the particulars read:­

“(1)   The learned trial judge erred in law in failing to hold that the marriage celebrated by the plaintiff and Samuel Olayiwola Asere (deceased) on 2nd day of May 1955 was a marriage under Customary Law.

(2)     The learned trial judge erred in law or otherwise misdirected himself in law in holding that he presumed from the evidence before him that a marriage under the Marriage Ordinance was celebrated between 1st plaintiff and Mr. Samuel Olayiwola Asere on the 2nd day of May 1955.

(3)     The learned trial judge erred in law or otherwise misdirected himself in law in holding that he would use his ruling that 1st plaintiff was married under the Ordinance to Mr. Samuel Olayiwola Asere in 1955 in determining the substantive action.

(4)     The Ruling or decision of the learned trial judge is speculative and unwarranted having regard to the totality of the oral and documentary evidence.”

 

Following these grounds, three issues were identified for determination by appellants’ counsel and they may be rephrased and summarized thus:

(i)      Whether inspite of the failure of 1st respondent to produce an original or certified true copy of the Marriage Certificate from the Marriage Registry. Iyaganku Ibadan, a presumption of marriage under the Act or Ordinance can still he made in her favour.

(ii)     Whether the fact that a Nigerian has married under the Act or Ordinance per se inconclusive proof that the English Law of succession should govern the distribution or devolution of his estate it he died intestate.

(iii)    Whether in spite of the assertion of 1st plaintiff in Exhibit 1 that she was legally married under native law and custom. the trial judge was right to hold that she married under the Act or Ordinance.

 

For the respondents, the following issues were raised –

“(a)    Whether the 1st respondent proved that her marriage to her deceased husband was under the ordinance or customary law.

(b)     Whether from the facts marriage under the Ordinance could be presumed in this case.

(c)     Whether the 1st respondent on the facts could be said to have admitted that her marriage was one under native law and custom and whether there was anything on record on her part which amounted to approbation and reprobation.”

 

The arguments of Appellants’ Counsel in support of the issues posed in his written brief may be summarized thus:

(i)      The 1st respondent failed to establish by legally acceptable evidence that her marriage with the deceased was under the Act or Ordinance and neither Exhibit A. B, and Exhibit 1 established the fact of marriage under the Act. Nor did the evidence of Mr. Apara her only witness conclusively established that fact. On the contrary Exhibit I not only contradicted her oral evidence and that of her witness but also showed clearly that her marriage was contracted under native law and custom.

(ii)     That having regard to the totality of the evidence, then non-production of a marriage certificate or a certified true copy in the circumstances of the case, tells strongly against the 1st respondent and does not – justify the presumption that the marriage was under the Act or Ordinance. What is more, it was argued that the presumption of a valid marriage is made for the purpose of enabling the children of persons who have been living together as husband and wife to share in the estate of their parents.

(iii)    That in any case the fact that a Nigerian who died intestate has married under the Act is no evidence that he intends that the English law of succession should be applied in the distribution of his estate and that having regard to the lifestyle of the deceased in this case, it cannot be said that he had any such intention.

(iv)    That the trial judge was in error to have said that he would determine the substantive issue in the case before him on the basis that the marriage between the 1st plaintiff and her deceased husband. was contracted under the Act/ordinance since Exhibit 1 which she deposed to showed that the deceased’s style of life did not support the view taken by the court.

 

In the oral submission of Mr. Oriade for the appellants, he re-emphasized these points and went on to say that it would be wrong to deny the other children of the deceased their legitimate right on the basis of “a presumption of law which does not exist.” He says further that the right to take out letters of administration is not dependent on an applicant’s marital status: and to that extent it was wrong of the learned trial judge to say that he would use his ruling that 1st respondent was married under the Act as the basis for the crucial determination of who and who should be entitled to take out letters of administration from the Registry. The implication of the conclusion reached by the Judge, it was submitted, is that (i) the trial judge had already made up his mind that 1st respondent and her daughter are entitled to take out the letters of administration. (ii) that by the said ruling other descendants and/or wives of the deceased have been excluded from consideration by this “prema­ture” determination of the marital status of the 1st respondent.

 

In his own submission Mr. Fabunmi for respondents said that contrary to the submission of appellants’ counsel, there was clear and unchallenged evidence that 1st respondent married under the Ordinance; and that the appellants had not produced any evidence to support their contention that her marriage was a customary law marriage. In the circumstance, he said the trial judge was right to have accepted her unchallenged evidence.

 

As regards the non-production of a certificate of marriage, Counsel said that it is not essential in every case to produce a certificate and evidence of an eye­witness to the marriage, is admissible as secondary evidence, in proving the marriage vide Section 94(e) and 96(c) of Evidence Act. Rayden on Divorce p.529 at 22 Lyell v. Kennedy (1889) 14 App. Cases 437,448/449; Wolfenden v. Wolfenden (1946) Probate 61, (1945) 2 All ER 539.

 

On the issue of presumption of marriage, it was submitted that the learned trial judge was perfectly right to presume that the 1st respondent married under the Act. The presumption, it was said, was founded on the evidence properly led that the 1st respondent went through a ceremony of marriage with her deceased husband in the Registry, that a certificate of marriage was issued though lost and that the two spouses co-habited for several years before the husband died. In those circumstances, the trial judge could not be faulted for taking that view of the matter.

 

Finally, as regards exhibit I. it was argued that the trial judge was right not to have attached any weight or given cognizance to it since the purpose of putting that exhibit in evidence was not disclosed until the address of Counsel for the 1st defendant was made to the effect that the 1st respondent never deposed to the fact that her marriage was made under the Ordinance. Learned counsel again submitted that-

“Since appellants did not tender Exhibit I and since it was not part of their case, they cannot make an issue of it.

 

Again pausing here for a comment, I think it will not be correct to say that Exhibit 1 was not tendered. It was. If not, it could not have been made and exhibit in the case; and it is apparent to me that the reason why 1st respondent’s attention was drawn to her signature thereon, is to show that she had as a matter of fact on a previous occasion sworn to the fact that she contracted a legal marriage under native law and custom on 12/5/55 and indeed there was the additional information in that affidavit that was the date she began co-habiting with her late husband at Oke Seni, Ibadan. The key point is that she did not in Exhibit I go as far as saying that an earlier marriage under Ordinance had been conducted. All these were matters before the trial court and no doubt the trial judge appreciated the difficulty created by Exhibit I, hence the laborious effort made by him to explain off the conflict between her evidence viva voce and Exhibit 1. I have already said that the attempt to shift the blame on Counsel who was said to have prepared Exhibit I is not borne out by the evidence on record and as such would be of no avail.

 

On the complaint that the trial judge was wrong to say that he would use his ruling that 1st respondent married under the Act to determine who was entitled to take out letters of administration, Mr. Fabunmi has argued that that statement by the trial judge had been misconceived as it relates to an intention, which is yet to be carried out, and that the ground of appeal relating thereto is purely “academic.” In his oral submission, learned counsel said that the statement is a mere surplusage since it is clear from the judgment that the main issue as to whether or not 1st respondent married under the Ordinance had already been decided positively in favour of the respondent.

 

I must first observe that the argument in this appeal has ranged far and wide, and the learned trial judge clearly went beyond the narrow issue of determination whether or not the 1st respondent married under the Ordinance or the Customary Law. He delved into issues which having regard to the state of the pleadings of the parties, ought in my view, to have been left for the final determination of the case of the parties.

 

For my part, having regard to the ultimate order I may have to make at the end of the day, I prefer not to stray into those areas which are hardly relevant to a decision as to who is entitled to take out a letter of administration in the circumstances of this case.

 

There is no doubt the Court has a discretion as to persons to whom administration is to be granted. The discretion has to be exercised on the basis of the materials before it, and it shall be the duty of the Court to have regard to the rights of all persons interested in the estate of the deceased persons or the proceeds of the sale thereof. If the deceased died wholly intestate as to his estate, administration shall be granted to someone or more persons interested at the residuary estate of the deceased, upon application being made by them. See section 26 of the Administration of Estate Law Cap. I Law of Oyo State 1978.

 

In my view, the paramount consideration is for the court to examine the claims of the applicants, define their interest to the estate and decide whether or not they are entitled to a grant. Thus the relevant consideration in the case on hand should have been whether the 1st and 2nd respondents are the only persons entitled to be granted letters of administration in respect of the estate of the deceased Samuel Olayiwola Asere having regard to all the circumstances of the case. But even granted that the issue of the type of marriage is a vital factor for consideration. and that marriage may be presumed from the fact of cohabitation over a long period, can it be said that the presumption can be extended to determine the type of marriage, i.e., whether it is under native law and custom or under English Law? I think not. However be it, the trial judge in this case, as I said before, has in arriving at his decision stated that the marriage between the 1st respondent and her deceased husband Samuel Asere was made under the Act. He also said that the conclusion would be the basis for the further determination of the rights of the parties to the issuance of letters of administration. In so saying, he has clearly forestalled the chances of the respondents to assert any claim to their being considered as persons interested in the estate of the deceased or the proceeds thereof. This observation of the learned trial judge in my view strikes at, or shall I say, knocked off the baton off the appellants’ case. It has gone beyond deciding the narrow issue of jurisdiction. For that reason and for all I have said earlier on, I am of the view that the trial judge was wrong in his conclusion. It will, therefore, be pointless to send the parties back to his court for the errors I have highlighted are in my view sufficient to make this appeal succeed. I may however re-iterate that I have not gone into the several issues raised by the parties as I am of the view that the proper order to make in this case is to allow the appeal, set aside the decision of the learned trial judge and order a retrial of the case before another Judge, and I so order. And this shall be my Judgment. I make no order as to costs

 

 

SULU-GAMBARI, J.C.A.:

I entirely agree with the judgment just read by my learned brother, Akanbi. J.C.A., a draft of which I have had the privilege of reading.

 

I have nothing more useful to add thereto.

 

 

OGWUEGBU, J.C.A.

I agree.

Appeal allowed.