[PDF copy of this judgment can be sent to your email for N300 only. Just order through email@example.com and firstname.lastname@example.org or text 07067102097]
HIGH COURT, LAGOS
29TH MARCH, 1971
SUIT NO. M/153/1969.
Akintoye for the 2nd Respondent/Applicant.
Adeleke for the 1st Respondent/Respondent.
Young for the Applicant/Respondent.
ESTATE ADMINISTRATION AND MANAGEMENT
CHILDREN AND WOMEN LAWS
LAMBO, J.: This is an application under section 28(1) of the Administrator-General’s Law Cap 2 of the Laws of Western Nigeria 1959. The Applicant, Madam Marian Morenike Olubamiwo, who is the 2nd Respondent prays the Court for an order:-
“1. appointing the 2nd Respondent/Applicant (i.e. herself) the legal guardian of Olufunke Olubamiwo;
and for such further order or orders as this honourable Court may deem fit to make in the circumstances”.
The Applicant is one of the two wives of Benjamin Adekanmbi Olubamiwo, who died in Lagos on the 25th March, 1968, and was survived by six children.
Marian Amoke Olubamiwo is the mother of five of the children, two of whom are adults aged 27 and 24 years. The present applicant’s child is an infant aged 3 years. The value of the Estate, the subject-matter of the present application, is £1101-15s-4d. It is alleged in paragraph 11 of the Applicant’s affidavit that a total sum of £487-14s-5d has been paid to the children of the 1st wife whereas in fact only £90 has so far been paid to her infant child.
On the 20th August, 1970, Caxton-Martins, J., made an order that the Administrator-General should recover sums of money wrongly paid out to two adult children of the deceased; the two sums of money were respectively £104-3s-8d and £104-3s-9d. When, however, on the 27th August 1970, the parties appeared before the Court, counsel for the Administrator-General, Mr. Young, is recorded by the learned Judge as having said that:-
“The two sums of 104-3s-8d and £104-3s-9d have not been recovered by the Applicant from the two adult beneficiaries. It would take some time to recover them”.
As the Administrator-General was, presumably, in doubt as to what customary law was applicable to the distribution of the deceased’s Estate, he applied, on the 30th January, 1969, to the Customary Court, Otta, in the Western State, for information. In paragraph 6 of his affidavit filed on the 29th August, 1969, he deposed to having been informed that the Estate should be divided equally between the children of the two wives on the “per stirpes” principle. This information was conveyed to him by the sole President of the Customary Court as follow:-
“OTTA GRADE `B’ CUSTOMARY COURT”
Otta District Council, Otta.
Benjamin Adekanmbi Olubamiwo: Deceased
Referring to your endorsement letter No. OT.B/29/143A of 30th January, 1969, I have to inform you that the principle underlying the distribution of an estate under Native Law and Custom in this area is to distribute the estate equally between the children of the deceased two wives:-
Mesdames Amoke Olubamiwo’s children 50% and Marian Morenike Olubamiwo’s children 50%. (Sgd.) A.T. Ahmed, Sole President
Grade ‘B’ Customary Court, Otta.
No. OT C.C.25/70
Grade ‘B’ Customary Court, Otta. 3rd February, 1969.
Ag. Administrator-General, Administrator-General’s Division, Ministry of Justice, 18/24 Ikoyi Road, Lagos.”
But strangely enough, the acting Administrator-General rejected the opinion, claiming in paragraph 7 of his affidavit:-
“That this information is not acceptable to me on the ground that it is inequitable”.
In my view, the opinion of the acting Administrator-General is totally irrelevant in the matter as, once he referred the matter or opinion as to the customary method of distribution and that opinion was given, he is, in the absence of any other conflicting opinion from the same source, bound by it, and ought to adopt it.
In Danmole v. Dawodu (1958) 3 F.S.C. 46 it was therein held that the Idi-Igi (per stirpes) method of distribution is an integral part of the Yoruba Native Law and Custom and should be adopted in that case. It was also held that “Idi-Igi” is still in force and 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. Where there is such dispute, the head of the family is empowered and should decide whether “Ori-Ojori” ought in the particular case to be adopted instead of “Idi-Igi” and that any such decision prevails. The judgment went on to say that “Ori-Ojori” is a relatively modern method of distribution adopted as an expedient to avoid litigation. Further, that “Idi-Igi” (per stirpes) is not repugnant to natural justice, equity and good conscience. Had the attention of the Administrator-General been drawn to this decision, he probably would not have said, as he did in paragraph 7 of his affidavit aforesaid, that the “per stirpes” method of distribution was not acceptable to him on the ground that it was inequitable.
In my view, therefore, there being no other system of distribution placed before the court, the “Idi-Igi” system, as confirmed by the President of the Customary Court of the community in which the deceased was probably born, would be applicable.
In the circumstances of this case, I would reject the contention of the Ist Respondent/ Respondent that the “Ori-Ojori” (per capita) system of distribution should apply.
In the result, there will be an order on the application as prayed. Costs-£52-10s: to the 2nd Respondent/Applicant payable out of the Estate.