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CWLR (1958) 3


LN-e-LR/1958/20 (FSC)



CHILDREN AND WOMEN LAW: – Women/Children and Succession – Off-springs of polygamous marriage – Customary practices relating to distribution of deceased’s estate – Idi-Igi and Ori-Ojori Yoruba customary law practices relating to succession – Need to ensure that preference is given to succession practice which within the peculiar facts of the case would not bring about an outcome that is repugnant to equity, fairness and good conscience






MYLES JOHN ABBOTT, F.J. (Read the Judgment of the Court)



  1. U. KAINE – for the Appellants.

K.A. KOTUN – for the Respondents.


ESTATE ADMINISTRATION – SUCCESSION: – Succession under customary law – Yoruba polygamous family – Custom of dividing estate according to the number of wives – Whether repugnant to equity and fairness – Whether abrogated in place of a system of equal division among all the children of the marriage without regard to the number of wives

CUSTOMARY LAW: – Yorubas – Succession – off springs of polygamous marriage – Distribution of deceased’s property – Idi-igi and Ori-ojori distribution methods as not intrinsically repugnant to equity, fairness and good conscience – When application of one in preference to the other may bring about outcome which is repugnant to equity, fairness and good conscience – Relevant considerations

PRACTICE AND PROCEDURE: – Proof of customary law practice – When a practice is alleged to be abrogated – Burden to prove same – Where two customary practices which are not repugnant to natural justice, equity and good conscience are applicable to a factual situation – Need for court to uphold one that would not bring about an outcome which is manifestly repugnant to natural justice, equity and good conscience

PRACTICE AND PROCEDURE – APPEAL: – Customary law practice – Proof – When an appellate court may take evidence for the first time regarding applicability of customary law practice – When an appellate court may overrule trial court decision regarding applicability of customary law




This is an appeal by the plaintiffs from the judgment of Jibowu, Ag. S.P.J. (as he then was) given in the Lagos Judicial Division of the former Supreme Court of Nigeria on 28th March, 1955.

The matter arose in this way. In September 1940, there died one Suberu Dawodu (hereinafter called “Suberu”). At one time he had four wives, but only three survived him. He had children by each wife. The first plaintiff is a daughter of Suberu by his wife Morinatu. The second plaintiff is a daughter of Suberu by his wife Raliatu (now dead). The third, fourth and fifth plaintiffs who are minors are the children of Bashiru Dawodu (now dead), the son of Suberu also by his wife Raliatu. The first defendant is a son of Suberu by his wife Moriamo (now dead). The second and third defendants are the children of Suberu by his wife Osenatu. The fourth, fifth sixth, seventh and eighth defendants are the children of Atiku (now dead), a son of Suberu also by his wife Moriamo. Atiku predeceased his father. The ninth and tenth defendants are the children of Sariyu, the daughter of Suberu by his wife Osenatu. Sariyu pre-deceased Suberu. The eleventh and twelfth defendants are the children of Amusa, the son of Suberu also by his wife Moriamo. Amuse died after the death of Suberu. Suberu thus had nine children in all and the plaintiffs and the defendants are children and grand-children of Suberu.

It must now be accepted that Suberu died intestate. At one time it was thought that he had made a will and attempts were made both to produce it and to give evidence of its contents, but these attempts were unsuccessful.

Owing to the failure to find Suberu’s will Letters of Administration to his estate were taken out by four members of the family, one representing each wife and, consequently, representing also the branch consisting of the children by that wife.

Suberu’s personal estate was then divided into four parts as were the rents of the realty. No account was taken, for the purpose of distribution, of the number of descendants proceedings from each wife, or, of course, of the total number of descendants of Suberu.

Some seven or eight years ago this method of distribution was objected to by the defendants, who contended that the property should be divided into 9 parts, one part to go to each child of Suberu or, in the case of a deceased child (whether dying before or after Suberu) to be divided between the issues of that deceased child.

Litigation (which for various reasons proved abortive) then took place, and it is said that certain terms of settlement were not implemented. The plaintiffs then began the present proceedings, in which their writ claims partition of property known as 4 Balogun Square, Lagos, of which Suberu died possessed. By their Statement of Claim the plaintiffs ask, in the alternative, that the original method of distribution of property (i.e., into 4 parts) should recommence.

The learned trial Judge rejected the evidence of the 1st defendant (a) that the division into four parts was by mistake, and (b) that he did not know why this method of division was adopted. I consider that the learned trial Judge’s reasons for that rejection were fully adequate.

The learned trial Judge goes on “Distribution of the estate according to the number of the mothers of the children followed principles of native law and Custom” a dictum with which I am in complete agreement, especially in view of events which I shall come to in a moment.

Later in his judgment, the learned trial Judge says this:

‘The question of division according to the number of mothers of the children of an intestate has never, so far as I can discover, been considered by this Court. There have been many cases in which the properties of intestates have been distributed among the children of the intestates, but the basis of distribution had always been the number of children and their relationship with the intestates. In these days no one ever thinks of the number of wives of an intestate in order to ascertain into how many parts the properties left are to be distributed. When the number of the children has been ascertained, the properties are distributed equally among them.”

The learned trial Judge next cites certain cases tried in Nigerian Courts and thereupon reaches the following conclusions:

“It therefore appears that the trend of the decisions in this Court is to apply the equitable rule of equality and each child gets the same share as any other. The old rule of division according to the number of the wives of the deceased and mothers of the children therefore seems to be out-moded, and there can be no doubt that it was neither fair nor equitable to the children.”

The idea behind the old rule was that each wife who had a child was given no cause for jealousy as it was understood that the number of wives would determine the distribution of the properties of the intestate. Under the rule an only child of a wife got the same share as many children of another wife, with the result that the children did not get equal shares of their father’s estate. This does not agree with the modern idea that the basis of distribution is the number of the children of the intestate, which assures equal shares to all the children.

The plaintiff’s case in this action was however, not based on any rule of native law and custom, and the suggestion that it was an attempt to give effect to what they understood to be the wishes of their late father, was denied by the 1st defendant.

I accepted the evidence of the plaintiffs on this point and disbelieve the 1st defendant’s evidence on the point. I have already found that there was no convincing proof that their father made a will and I have ruled out the evidence of Chief Oluwa regarding what he was told by their father as to how his estate was to be distributed. The bottom has, therefore, been knocked out of the basis for the distribution according to the number of the wives. As the other children and grandchildren besides the plaintiffs have agreed that future rents of properties left by their father and grandfather be divided into 9 parts according to the number of the children, I consider that the modern idea of treating the children equally should be applied. It is therefore ordered that future rents accruing from 4, Balogun Square, Lagos, be divided into 9 parts and each child and children of a dead child should have a ninth part share.”

The appeal first came before this Court on 5th November, 1957, when it was pointed out to us, quite correctly, that there was evidence that, at some time in the past, the former custom of dividing an intestate’s property according to the number of his wives had been abrogated and that a division equally between the children without regard to the number of wives, had been substituted therefor. Such evidence as there was is scanty, and there was no evidence of the date of abrogation of the old method of distribution, so this Court decided to hear evidence as to the native law and custom applicable.

This evidence was taken on 12th December, 1957, when three witnesses were called by each of the parties. From them we learnt that the earlier method of distribution was known as “Idi-Igi” and the later as Ori-Ojori, and I shall henceforth in this judgment refer to the two methods by those names. The three witnesses for the plaintiffs/appellants were quite definite that Idi-Igi is still observed in these days and has not been abrogated by Ori-Ojori at any time. The second and third witnesses in addition agreed that Or!-Ojori does not exist and said that the head of the family, in the case of a dispute among the family members, decided which method of distribution is to be adopted. They added that Idi-Igi is the prevailing method.

There was clear evidence before the Court below that there was in this instance a family meeting at which the method of distribution was discussed. No agreement was reached, but apparently the head of the family did not then decide, and these proceedings began.

The witnesses of the defendants/respondents substantially agreed that Idi-Igi was always observed in former times, but stated that it has now been to some extent superseded by Ori-Ojori, the change having come about to preserve cordial relationships between the children. Those who, under Idi-Igi, received a smaller share than their half-brothers and half-sisters felt aggrieved and this often resulted in the estate of the intestate being depleted by the expense of litigation. To avoid this, therefore, Ori-Ojori was adopted in some instances. The upshot of this evidence is, in my opinion, that Ori-Ojori is a fairly recent innovation introduced to avoid litigation.

Having very carefully considered all the evidence now before us, I would hold (i) that Idi-Igi is an integral part of the Yoruba native law and custom relating to the distribution of intestates’ estates; (ii) that Idi-Igi is in full force and observance at the present time, and has not been abrogated; (iii) that Idi-Igi is the universal method of distribution except where there is a dispute among the descendants of the intestate as to the proportions into which the estate should be divided; (iv) that where there is such a dispute, the head of the family is empowered to, and should, decide whether Or!-0jori ought, in that particular case, to be adopted instead of IdiIgi; (v) that any such decision prevails; (vi) that Ori-Ojori is a relatively modem method of distribution adopted as an expedient to avoid litigation.

I would further hold that, although, as the learned trial Judge says, “Equality is equity’, Idi-Igi is not repugnant to natural justice, equity and good conscience. In this particular case, to hold otherwise would be, in my view, to take a decision bearing the stamp of that repugnance, because all interested parties originally agreed to Idi-Igi being adopted, and it was thereafter observed for ten years.

The learned trial Judge did not have the advantage, as we did, of hearing the evidence of competent witnesses as to the native law and custom applicable. Had he had that, I am inclined to the view that he might have come to the conclusion, as I have, that Idi-Igi, and not Or!-Ojori, is the prevailing custom and should be adopted in this case.

In the circumstances, therefore, I would allow this appeal and, subject to leaving undisturbed the order of the learned trial Judge for the leasing of the property, set aside the judgment of the Court below, with the order for costs. I would order that the rents of No. 4 Balogun Square, Lagos, be, as from 8th March, 1954, when the writ in this action was issued, divided into four parts, one part to be paid equally between the descendants of each of the four wives of Subaru. This means drat the rents of the property are to be divided as follows:-

Party Share

1st plaintiff            one-quarter

2nd plaintiff           one-eighth

3rd plaintiff           one-twenty-fourth

4th plaintiff           one-twenty-fourth

5th plaintiff           one-twenty-fourth

1st defendant       one-twelfth

2nd defendant      one-sixteenth

3rd defendant       one-sixteenth

4th defendant       one-sixtieth

5th defendant       one-sixtieth

6th defendant       one-sixtieth

7th defendant       one-sixtieth

8th defendant       one-sixtieth

9th defendant       one-sixteenth

10th defendant     one-sixteenth

11th defendant     one-twenty-fourth

12th defendant     one-twenty-fourth

In their Statement of Claim, the Plaintiffs ask for division, in accordance with Idi-Igi, of rent for the years 1951 to 1954, said to have been retained in full by the defendants. This averment was denied by paragraph 10 of the defence which goes on to allege that the plaintiffs’ share of the rent of £700 (on the basis of Ori Ojori) was paid to them through their solicitor. At the trial, there was a conflict of evidence on the point, but the learned trial Judge came to no conclusion thereon. It is impossible for this Court to say how the conflict should be resolved, and it would appear that unless some compromise can be arrived at, further proceedings will be necessary to resolve the conflict. I trust that this course will not be necessary; it would be a pity to spend more money on litigation. When that question has been compromised or decided, the defendants must make the necessary financial adjustments to ensure that the £700 is divided in the proportions set out in the preceding paragraph.

The appellants must have the costs of the trial to be taxed and the costs of this appeal fixed at £65.



I concur.



I concur.


Appeal allowed.


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