[PDF copy of this judgment can be sent to your email for N300 only. Just order through firstname.lastname@example.org and email@example.com or text 07067102097]
TIMOTHY TANLOJU ADESUBOKAN
FEDERAL SUPREME COURT
17TH JUNE, 1971
SUIT NO. S.C. 25/1970.
BEFORE THEIR LORDSHIPS:
Razaq for the Appellant.
Thanni for the Respondent.
ESTATE PLANNING AND MANAGEMENT
ADEMOLA, C.J.N. (delivering the judgement of the Court):-This is an appeal from the judgement of Bello, 1. in the High Court of the North-Central State holden at Kaduna. The claim in that court against the defendant is for “a declaration that the probate dated 29/6/66 granted to the defendant in the matter of Yunusa Atanda Saibu (deceased) be revoked as the said Yunusa Atanda Saibu was a Moslem, died as a Moslem and left heirs and wives who are all Moslems”. The defendant is the sole executor of the said Yunusa Atanda Saibu.
Pleadings were ordered and filed. The relevant paragraphs of the statement of claim are paragraphs 4, 5 and 7 which are as follows:-
“4. The said Yunusa Atanda Saibu being a Muslim was not entitled to make such a will and probate should not have been granted in respect of the will, and as such should be revoked. The said will having contained bequests to heirs.
Paragraphs 3, 7, 8, 9, 10 and 11 of the statement of defence are also relevant. They are:-
“3. Save that the defendant will plead res judicata in respect of the distribution of the estate of the testator by the Native Court of Zaria, the defendant denies paragraph 5 of the statement of claim and puts the plaintiff to the strict proof thereof.
The learned trial judge in a considered judgement found the following facts:-
“I may summarise my findings as follows:
(1) That a Moslem of Northern State of Nigeria is entitled to make a will under the Wills Act, 1837 but he has no right to deprive by that will any of his heirs, who are entitled to share his estate under the Moslem law, of any of their respective shares granted to them by Moslem [law];
(2) That in the case of a will of moveable, the testator must comply with his personal law, i.e. the native law and custom of his particular locality, unless such personal law is repugnant to natural justice, equity and good conscience or incompatible with any law for the time being in force which does not deprive any person of the benefit of the personal law of the testator; and
(3) That where the testator is a native within the meaning of the Land Tenure Law and the will concerns immovable situated in the Northern States of Nigeria, the testator must comply with the native law and custom, relating to devolution, of the place where the land is situated.”
On these facts, he proceeded in his judgement to set aside the probate of the will.
From this judgement the defendant/appellant has appealed to this Court.
Mr. Razaq for the appellant argued generally and his two main complaints are as follows:-
“(1) That the learned trial judge was in error when he set aside the probate dated 29/6/66 since what the plaintiff/respondent asked for was a declaration that the probate be revoked.
(2) That the trial judge was in error when he said:-
(a) that while a Moslem of the Northern State of Nigeria is entitled to make a will under the Wills Act 1837, he has no right to deprive by that will any of his heirs, who are entitled to share his estate under Moslem law, of any of the shares to which they are so entitled;
(b) that if he disposes of moveable property by will, he must comply with the native law and custom of his particular locality unless such native law and custom is repugnant to natural justice, equity and good conscience or incompatible with any law for the time being in force which does not deprive any person of the benefit of the native law and custom of such testator; and
(c) that where he is a native within the Land Tenure Law and the will concerns immoveable property which is situated in the Northern States of Nigeria, the testator must comply with the native law and custom relating to devolution of the place where the land is situated.
In regard to the first point argued, we see no merit in the complaint about the order made by the learned trial judge since it is clear that in paragraph 7 of the statement of claim (supra) the plaintiff did ask that the probate be revoked. It is trite law that where a relief asked for in the statement of claim differs from the writ, the former supercedes that of the writ.
We now consider the second point raised by Mr. Razaq, namely, that according to the learned trial judge, whilst a Moslem of the Northern States’ origin can make a will under the Wills Act, 1837, he cannot in that will deprive any of his heirs of his entitlement under Moslem law; that the will must conform with the distribution under the Moslem law; if it does not, the scheme of distribution laid down by the Moslem law shall prevail.
Is the learned trial judge correct in his view of the law as it stands at the material time in the Northern States? It is common ground that the definition of “native law and custom” in both section 2 of the Native Courts Law (Cap. 78 of the Laws of Northern Nigeria) and section 2 of the High Court Law of Northern Nigeria (Cap. 49) includes Moslem law. It is also common ground that the Wills Act of 1837 is a statute of general application. The question arises, does this statute apply in the Northern States of Nigeria, and, if so, to what extent? To answer this question, it is relevant to consider sections 28, 33 and 34 of the High Court Law (Cap. 49). These sections provide as follows:-
“28. Subject to the provisions of any written law and in particular of this section and ss. 26, 33 and 35 of this Law:-
(a) the common law;
(b) the doctrines of equity; and
(c) the statutes of general application which were in force in England on the 1st day of January, 1900, shall in so far as they relate to any matter with respect to which the Legislature of Northern Nigeria is for the time being competent to make laws, be in force within the jurisdiction of the Court.”
Section 33, which gives jurisdiction in probate cases and matters arising under the Wills Act, 1837, is material to the present appeal. It provides that:-
“33. The jurisdiction of the High Court in probate cases and proceedings may, subject to the provisions of this Law and especially of section 34, and to the Rules of Court, be exercised by the Court in uniformity with the law and practice for the time being in force in England.”
and section 34(1) which, as can be seen, is relevant has the following provisions:-
“34(1) The High Court shall observe, and enforce the observance of every native law and custom which is not repugnant to natural justice, equity, and good conscience, nor incompatible either directly or indirectly or by implication with any law for the time being in force, and nothing in this Law shall deprive any person of the benefit of any such native law and custom.” (the italics are ours).
Dealing with the last mentioned section, the learned trial judge construed the words “and nothing in this law shall deprive any person of the benefit of any such native law and custom” to mean that m this case the Wills Act shall not deprive the plaintiff of the benefit of Moslem law. He put it in the following words:-
“It seems to me that though there appears to be an incompatibility between the Act and Moslem law when viewed through the spectacles of English domestic law in that an Englishman has no limited capacity to dispose of all his properties by a will in the manner he likes, closer examination of section 34(1) would show that the incompatibility is only apparent under our domestic law. Firstly the application of the Act is limited by the last section of the sub-section, to wit:-
and nothing in this law shall deprive any person of the benefit of any such native law or custom’.
It is clear that this injunction limits the operation of ‘any law for the time being in force’ to the extent of preserving any of the benefit of every native law and custom which is incompatible with that law in force, to which any person is entitled. In other words, the last sentence of the sub-section means, for the purpose of this case, that the Wills Act shall not deprive the plaintiff of the benefit of Moslem law.”
We differ, with respect, with the construction the learned judge placed on these words and considering the other sections to which we have referred with sub-section 34(1) we are of the view that this sub-section could only mean the exact opposite of the construction placed on it by the learned judge. In other words, it means that nothing in the High Court Law shall deprive any person of the benefit of any native law or custom including Moslem law, which is not incompatible directly or by implication with any law for the time being in force, and in the present case the Wills Act, 1837. In construing the words in sub-section 34(I) the learned trial judge appears to have overlooked the significance of the word “such” which qualifies the phrase “native law and custom”. We are clearly of the view that, in the context it is used the word “such” must literally mean “the said”. We are of the view that the word “such” therein refers to the last preceding provision in sub-section 34(1) which enjoins the High Court to observe and enforce the observance of every native law and custom which is not incompatible either directly or by implication with the Wills Act, 1837. Thus, the legislature, having provided for the type of native law or custom which the High Court should enforce in the exercise of its jurisdiction, went on to provide, for the avoidance of doubt, that no person should be deprived of the benefit of that particular type of native law or custom. On this point we call in aid the provisions of s. 17(1) of the Supreme Court Ordinance (Cap. 211 of the Laws of Nigeria 1948) from which sub-section 34(1) of the High Court Law derives its existence. It reads:
“Nothing in this Ordinance shall deprive the Supreme Court of the right to observe and enforce, the observance, or shall deprive any person of the benefit of any existing native law or custom, such law or custom not being repugnant to natural justice, equity, and good conscience, nor incompatible either directly or by necessary implication with any law for the time being in force.”
We cannot believe that it was the intention of the legislature when enacting sub-section 34(I) to provide anything different from the above, and in our view no other interpretation was intended or possible.
The testator in the will, exhibit 1, made some bequests to one of his sons and devised his properties to two others. This he is entitled to do under section 3 of the Wills Act, 1837. The learned trial judge felt that the distribution to his sons should be under Maliki Moslem law which favours equal distribution. In his judgement he said:-
“I shall now consider the question whether the will, exhibit 1, is valid under the Maliki law. It purports to bequeath £5 to the plaintiff, plot H. 15 worth £350 and plot 18 also worth £350 to the other two sons of the testator and in addition it purports to give the other sons jointly and in equal share No. 19 Daunegoro Street, Mushin, Western State together with all the residuary estates of the testator. There is therefore no equality of treatment of the male children of the testator as required by the Maliki Moslem law. The evidence of the plaintiff shows that he has not given his consent to his being discriminated against. The bequests to the children therefore so far as Maliki Moslem law is concerned are null and void and the will would have no effect.”
This clearly violates the provisions of the Wills Act, 1837 under which a testator can dispose of his properties-real and personal-as he pleases. The provisions of the Maliki Moslem law are undoubtedly incompatible with section 3 of the Wills Act, 1837.
As we stated earlier, a proper construction of sub-section 34(1) of the High Court Law can only apply such Moslem law which is not incompatible with the Wills Act. It is therefore clear that the Moslem law which the learned judge applied in this case is incompatible with the Wills Act. It follows that he was clearly in error in setting aside the probate dated 2nd June, 1966 granted to the defendant under the will of the testator.
We must also point out that it does not seem to us that it was properly established before the learned trial judge that the doctrine of Moslem law as expounded by the Maliki sect varies between the Northern States and the Southern States of Nigeria as found by him. In any case, the question hardly arises since there is no provision, to our knowledge, of any law which makes Moslem law, whether of the Maliki sect or any other sect, enforcible, either on its own, as such, or as part of any customary law, in any of the courts of the Southern States.
After the most anxious consideration of this matter, we have come to the conclusion that this appeal must succeed. We therefore allow this appeal and the judgement of the learned trial judge is set aside. Instead, it is ordered that the plaintiff’s case be dismissed, and this will be the judgement of the Court.
As parties agreed that no costs should be awarded in the High Court, no costs will be awarded either in that Court or in this Court.
Appeal allowed: Judgement of High Court set aside.