MRS ADENIKE TAIWO (PLAINTIFF)

                                                           v.

                    YEKINI LAWANI MOMODU LAWANI (DEFENDANTS)

                                           (1961) All N.L.R. 733

Action for Partition of Lands, and an Account, or, alternatively, for a Declaration.

Momodu Lawani died intestate in 1929. He had during his lifetime married two wives, one Sadatu, who survived him and was still living at the time of the trial of this action; the other, Iya, who predeceased him.

On his death Momodu was survived by the following children: Yekini and Momodu Lawani, the defendants, his sons by his wife Sadatu; and Marian Omolara Lawani, his daughter by his late wife Iya. The plaintiff is the only child of Marian Omolara Lawani and a grand-daughter of the deceased intestate.

The two defendants were minors when their father died. At the time of his death, Momodu Lawani was possessed of five landed properties including No. 153 Igbosere Road, Lagos. Letters of Administration of the estate were granted to his daughter Marian Omolara Lawani on the 15th of November, 1929; and on the 12th of May, 1930, she was granted authority by the Supreme Court to administer the real estate of which Momodu Lawani died possessed. The court also ordered that she, as the administratrix of the estate, should pay to Sadatu, the mother of the two defendants, the sum of 7s-6d monthly for the maintenance of each of them.

Marian Omolara Lawani died intestate in 1957 survived by the plaintiff. The defendants had attained majority by that date. The defendants, as from that date, collected rents from the tenants in occupation of No. 153 Igbosere Road and appropriated the same to their own use to the exclusion of the plaintiff.

The plaintiff brought this action asking for (a) Partition or Sale of the property; (b) an Account of rents unlawfully collected by the defendants for the period April 1957 to March, 1960 and (c) payment over to her of the amount found to be due her. Alternatively, she sought a Declaration that she was entitled to a half share of the property under Native Law and Custom.

She relied on the Native Law and Custom known as Igikankan and alleged that it was applicable to the Yoruba people of Lagos. She contended that by virtue of Igikankan, her mother was entitled to a half share of the property and she, the plaintiff, was entitled to her mother's share under the same Custom by right of representation.

The defendants contended (a) that there was no Native Law and Custom among the Yoruba people of Lagos known as Igikankan; (b) that even if the court should find that such Custom existed, it should declare the custom to be repugnant to natural justice, equity and good conscience, on the principle that "equality is equity"; (c) that in any case, Marian Omolara Lawani had surrendered her share and interest in the property in 1955 in consideration of the defendants forbearing to bring an action against her for the maladministration of their father's estate.

HELD:

(1) According to the Native Law and Custom of the Yoruba people of Lagos, known as Igikankan, or Idi-Igi, the property of a deceased intestate is distributed among his children according to the number of the mothers (wives of the deceased) of such children and not according to the number of children. Each mother is regarded as constituting a branch of the family for the purpose of succession. An only child of a wife will get the same share as and an equal share with many children together of another wife.

(2) The rule of succession known as Igikankan, or Idi-Igi, which regulates the distribution of the customary estate of deceased intestate Yoruba people of Lagos, is a well recognised and established Native Law and Custom.

(3) Igikankan or Idi-lgi, is not repugnant to Natural Justice, equity, or good conscience.

Judgment for the plaintiff. Declaration granted.

Cases referred to:-

Sawebatu Damarola and others v. Yisa Dawodu and others, 3 FSC46

Ordinance referred to:-

High Court of Lagos Ordinance, Cap. 80, section 27.

ACTION for Partition and Account; or, alternatively, for a Declaration.

Balogun for the Plaintiff.

Esan for the Defendants.

Udoma, J.:-By the Writ of Summons filed on the 4th April, 1960, the plaintiff claimed against the defendants jointly and severally:-

(1)     Partition or sale of the house and landed property situate at No. 153 Igbosere Road, Lagos.

(2)     An account of rent unlawfully collected by the defendants for the period April 1957 to March 1960 and payment over of the amount found due to the plaintiff.

Pleadings were ordered and filed.

On the 3rd July, 1961 the defendants by leave filed an amended Statement of Defence. On the 12th September, 1961 and 26th September, 1961 respectively, the plaintiff was also granted leave to amend her Writ of Summons and Statement of Claim; and the amended Writ of Summons and Statement of Claim included the following particulars of relief claimed:-

Or alternatively, a declaration that the plaintiff is entitled to half share under Native Law and Custom of the above house.

To the alternative claim the defendants by leave pleaded in the following terms:

That the plaintiff is not entitled to half share as claimed under Native Law and Custom because her mother had voluntarily relinquished her interest in the property in dispute, that is, No. 153 Igbosere Road, Lagos as a result of her sale of some of the properties of the late Momodu Lawani.

The facts in this case as well as the identity of the property No. 153 Igbosere Road, Lagos are in the main not in dispute. The issues in controversy between the plaintiff and the defendants which are for determination by the court will appear in this Judgment. The facts which are not disputed are these:-

The plaintiff is the daughter of one Marian Omolara Lawani otherwise known as Mrs Marian Omolara Faturoti, who is now dead. The two defendants are the half brothers of Marian Omolara Faturoti (hereinafter to be referred to as Marian Omolara Lawani). The father of both Marian Omolara Lawani and the two defendants was one Momodu Lawani who is now also dead.

During his lifetime Momodu Lawani was the husband of Sadatu Lawani Taylor, the mother of the two defendants who is still living to this day, and actually gave evidence in this case; and Iya Tappa the mother of Marian Omolara Lawani (deceased).

Momodu Lawani died in April 1929 intestate and left him surviving the mother of the plaintiff Marian Omolara Lawani as his daughter and the two defendants and their mother Sadatu Lawani Taylor. The two defendants were then minors. Letters of Administration of his estate were granted to Marian Omolara Lawani on the 15th November, 1929.

At the time when he died Momodu Lawani was possessed of certain landed properties, namely:-

1. No. 53 Idoluwo Street, Lagos,

2. No. 34 Obun Eko Street, Lagos,

3. No. 89 otherwise known as No. 91 Docemo Street, Lagos,

4. No. 13 Ashogbon Street, Lagos, and

5. No. 153 Igbosere Road, Lagos, which is the subject matter of this action.

The property No. 153 Igbosere Road Lagos, is shown verged 'red' on the plans exhibits 'C1' and 'E', 'C1' being the one put in by the plaintiff and 'E' the one put in by the defendants. By an Order of the then Supreme Court of 12th May, 1930, Marian Omolara Lawani was also granted authority to administer the real estate of which Momodu Lawani died possessed.

It was also ordered by the court, in a subsequent application, that Marian Omolara Lawani as the Administratrix of the estate of Momodu Lawani of which the two defendants were also beneficiaries, should pay for the maintenance of each of the two defendants through their mother the sum of 7s-6d per mensem out of the said estate.

Marian Omolara Lawani died in 1957 intestate leaving her surviving the plaintiff. At her death the two defendants had attained majority, the first defendant being then 40 years of age while the second defendant was 32 years old. Since the death of Marian Omolara Lawani, that is to say, since 1957, the two defendants have been collecting the rents from the tenants of No. 153 Igbosere Road, and apparently appropriating the same to their own use to the exclusion of the plaintiff. It is the plaintiff's complaint that the defendants have bluntly refused to share the rents with her, and have denied her right and interest in the property in dispute. It is because the defendants have refused to share the rent with her that the plaintiff has brought this action against the two defendants.

Now, it is the plaintiff's case that she is the successor in title to her mother's share in the estate of Momodu Lawani; and therefore to her mother's share in the property in dispute. She says that by the Native Law and Custom of the Yorubas in Lagos her mother was entitled to half share in the said property, and that by the same custom she is also entitled to half share in the property aforesaid, as she now takes her mother's place in the family.

The Native Law and Custom of the Yoruba people of Lagos which the plaintiff is relying upon for the purpose of her claim in this case is known as "Igikankan." The plaintiff also says that she is entitled to an account of the rents which the defendants have been collecting from the tenants in occupation of the property in dispute.

The defendants have resisted the claims of the plaintiff on two main grounds. These are:-

(1) That there is no Native Law and Custom among the Yorubas of Lagos known as "Igikankan" under which the plaintiff can claim to be entitled to half the share of or to any share at all in the estate or in any property of Momodu Lawani. And that if by any chance the court should find the existence of such a custom, the court should exercise the powers conferred upon it and hold that such a custom is repugnant to natural justice, equity and good conscience, on the principle that "equality is Equity."

and

(2) That the plaintiff's mother had in 1955 voluntarily surrendered her share and interest in the particular property in dispute to the two defendants in consideration of their forbearing to take action against her for maladministration of the estate of Momodu Lawani.

I propose to examine these grounds separately. In regard to the first ground as to the existence or non-existence of the Native Law and Custom known as Igikankan, the evidence about it was given by Isaac Faturoti who said that he was quite conversant with the Native Law and Custom of the Yoruba people of Lagos. He says that according to the Native Law and Custom of the Yorubas of Lagos on the death of a person intestate, his property is distributed among his children according to the number of the mothers (wife of the deceased) of such children and not according to the number of children. Under this rule, each mother (wife of the deceased) of the children is regarded as constituting a branch of the family for the purpose of succession. He says that under the rule an only child of a wife will get the same share as and an equal share with many children together of another wife; and the result of this is that all such children do not get equal shares of the estate of their father. This rule of succession, he says, is known as "Igikankan."

As an illustration of this particular rule, the witness says that where a man 'A' married to three wives, 'B', 'C' and 'D', and 'B' the first wife has two children by 'A'; 'C' the second wife has only one child; and 'D' has three children, dies intestate; then for the purpose of distributing his property among his children each of the three wives is treated as a branch of the family and the property will be divided among the children into three equal

parts reckoned from the wives. Each share will go to each of the wives' children together. This means in effect that the two children of wife 'B' will together take one-third share of the property, that is equal share with the one child of wife 'C'. The three children of wife 'D' will also together take one-third share of the property.

If the one and only child of 'C', for instance, after entering into the estate and being entitled to the customary share therein, dies leaving him surviving an issue, that issue will be entitled to step into the shoes of that child of 'C' and will take his or her one-third share equally with the children of both 'B' and 'D'.

I have given very careful consideration to the evidence on this Native Customary rule of succession which is known as Igikankan and I am satisfied and find as a fact that Igikankan is a well recognised and established Native Law and Custom of the Yoruba people of Lagos which regulates the distribution of the estate of a deceased Yoruba Lagosian who dies intestate leaving him surviving many wives and children.

The defendants' Counsel, Mr Esan, has urged that the court should exercise its power under section 27 of High Court of Lagos Ordinance Cap. 80 and hold that this custom is repugnant to natural justice, equity and good conscience as the same contravenes the well known maxim of equity, "equality is Equity." I fear I must decline to exercise my powers under the law cited to the court. I have found nothing in this custom which is repugnant to natural justice, equity and good conscience, and I hold that it is not so repugnant. Indeed, there is nothing in the evidence to justify my taking the contrary view.

I am fortified in holding that "Igikankan" is not repugnant to natural justice, equity and good conscience by the Judgment of the Federal Supreme Court in Sawebatu Damarola and others v. Yisa Dawodu and others, 3 FSC 46, in which the custom of succession known as Idi-Igi was upheld. The rule of distribution of the estate of a deceased Yoruba person dying intestate and leaving him surviving many wives and children which was found and sustained in that case is similar in all respects to, and may be said to be "on all fours" with the rule of "Igikankan." Both "Idi-Igi" and Igikankan" would appear to be one and the same customary rule of succession.

I turn now to consider the main defence of the defendants which is the second ground upon which the claim of the plaintiff has been resisted. The evidence as to this was given by the defendants and their mother and is to the effect that prior to her death, the plaintiff's mother, Marian Omolara Lawani, had voluntarily in 1955 surrendered her interest or share in the property in dispute to the defendants. The reason why she did this, the defendants say, was because in February 1955 or thereabouts, they discovered that their half sister, Marian Omolara Lawani who was then the Administratrix of their father's estate was guilty of the maladministration of the said estate in that she had sold certain properties of which their father died possessed without their consent or authority or approval. As a result of that discovery they had retained the services of a solicitor, Mr J.E. David. At their request and on their instructions, Mr David addressed a letter of which exhibit 'L' was the office copy to Marian O. Lawani. They also threatened to sue her to Court.

Thereupon Marian Omolara Lawani agreed to and did attend a family meeting at No. 153 Igbosere Road, which was convened by the Aromire Family at the request of the defendants. It was at that meeting that a settlement of the dispute between the defendants and the plaintiff's mother was effected.

In consideration of their forbearing to take Marian Omolara Lawani to Court for her misconduct, she agreed to and did forgo her share and interest in No. 153 Igbosere Road, Lagos. The defendants say that since that settlement, the property in dispute became their property absolutely, and they immediately entered into possession and collected rents from the tenants in occupation of the said property.

I have found it extremely difficult to accept this story which is put up by the defendants. The incident spoken of by the defendants and their mother, I am satisfied, never took place in the manner narrated to the court by them. I have no hesitation whatsoever in rejecting this story of a family settlement which was said to have taken place at No. 153 Igbosere Road, Lagos, at a meeting convened by the Aromire Family. I find as a fact that no such settlement ever took place, and that the plaintiff's mother, Marian Omolara Lawani never at any time surrendered her share in the property in dispute to the two defendants or to either of them. It is not without significance that Jubrila Akanbi Aromire who was called by the defendants apparently to corroborate this invented story of family settlement positively stated that an attempted settlement at a meeting which was held at No. 153 Igbosere Road convened by him as a member of the Aromire Family and a close friend of Momodu Lawani (deceased) had proved abortive. Both the plaintiff's mother and the defendants' mother fought at that meeting and as a result the meeting broke up in confusion. I must add that on this point, I prefer the evidence of Jubrila Akanbi Aromire to that of the defendants and their mother whom I regard as most unreliable witnesses.

During the hearing a lot of evidence was called for the purpose of establishing presumably that Marian Omolara Lawani was guilty of maladministration of the estate of Momodu Lawani (deceased), and an attempt was also made, how-beit unsuccessfully, to show that the defendants did not get their fair share of their father's property. Having heard the evidence and carefully examined the several documents exhibited in these proceedings I am satisfied, that there was no foundation whatsoever for the charge of maladministration. Indeed, I formed the impression that the two defendants have never had nor have they now, the faintest idea of what constituted the estate of their father and as to the manner in which the administration of the estate had been carried out.

The two defendants did not at any time take any steps to enquire into the estate of their father. They freely admitted, and it was part of their case, that they were too young at the time to know anything about the estate. In addition, and most astonishingly in my view, the first defendant openly admitted that until 1955 when he had attained majority his mother did not disclose to him that she had been receiving on his behalf and for his maintenance the sum of 7s-6d per mensem from Marian Omolara Lawani as had been ordered by the court in 1930. It is to be noted also that when the receipts which she had signed by making her thumb impression thereon, that is, exhibits 'A' to 'A.16' were shown to her in the course of these proceedings, this woman Mrs Sadatu Lawani Taylor attempted boldly to deny her thumb impression, which goes to confirm my impression that she is a most unreliable witness.