NATHANIEL A. WILLIAMS & Mrs JIMANATU IDRIS
(Administrator & Administratirx of the estate of late Ebun Adeshola Wilson) (PLAINTIFFS)
Mrs M.O. FACADE & THOMAS A.O. WILSON (DEFENDANTS)
(1971) All N.L.R. 530
Division: High Court of Lagos
Date of Judgment: 6th September, 1971
Case Number: SUIT NO. IK/49/1969
Before: Dosunmu, J.
(1) Section 36 of the Marriage Ordinance would apply in this case because the land was not under restriction of Native Law and Custom and Mrs Ebun Adeshola Wilson was married under the Marriage Ordinance and she died intestate at Lagos. There could be no question that she was a person who was subject to Native Law and Custom or Customary Law.
(2) On the death of Mrs Janet Ebun Adeshola Wilson intestate, her real property which is considered personal property for the purposes of distribution under Statutes of Distribution would become the absolute property of her late husband, Mr Ezekiel John Wilson, to the exclusion of all those who claim to be her relations.
(3) Consequently the property in question was not part of the estate of the deceased woman to be administered by the plaintiffs.
Cases referred to:
Oluremi Ogunmodede & ors. v. J.A. Thomas and anor., F.S.C. 337/1962 dated 10th March, 1966.
In re Lambert's Estate, Stanton v. Lambert, (1888) 39 Ch.D. 626.
Act referred to:
Marriage Ordinance, s. 36.
SUIT NO. IK/49/1969.
Ogunsanya for the 1st defendant.
Alakolaro for the Plaintiffs.
Dosunmu, J.:-The plaintiffs are two of the four legal personal representatives of one Ebun Adeshola alias Mrs Janet Ebun Adeshola Wilson who died intestate at Lagos on 20th April, 1948. She was survived by her husband-Mr Ezekiel John Wilson to whom she was married under the Marriage Ordinance. There was no issue of the marriage. The other legal personal representatives are one Mrs Kofoworola Adewunmi who took no part in these proceedings and the 2nd defendant.
The letters of administration which were granted to them on the 8th March, 1969 are in respect of the still unadministered personal property of the deceased because as far back as 20th July, 1948 her husband, Mr Ezekiel Wilson had taken out letters of administration of her personal property. There was not much evidence as to the activities of this man in his capacity as the administrator of his wife's estate. Mr Ezekiel John Wilson himself died intestate on 15th July, 1953. Mrs K. Adewunmi earlier referred to and the 2nd defendant were the legal personal representatives of his estate.
The two plaintiffs who have instituted this action are the blood relations of Mrs Janet Ebun Adeshola Wilson and their co-administrators are the blood relations of the husband-Mr Ezekiel John Wilson. The letters which they obtained as recently as 8th March, 1969 were the result of a settlement reached by the two sides as heretofore there had been disputes between them as to who should administer the estate of the said Mrs Wilson. The relations of the husband put up claim which was resisted by the relations of the wife. At last, however, Court granted letters to the two sides jointly to administer what is still left unadministered of the personal property of Mrs Ebun Adeshola Wilson (Deceased).
The present action concerns a six flat building situate at No 17 Oyewole street, Palm Grove Estate, Mushin which stands on a portion of a large area of land admittedly owned by Mrs Wilson (deceased) under a Deed of Conveyance dated 16th September, 1944-Exhibit C.
The 2nd defendant erected the building on the land after obtaining a deed of conveyance dated 27th October, 1961-Exhibit K. It was executed in his favour by his co-administrator of the estate of the late John Ezekiel Wilson. He has since mortgaged the property to Agbomagbe Bank Ltd. which, in purported exercise of its power of sale, sold the same to the 1st defendant. I understand there is an action still pending in respect of this. But at present I am dealing with a claim for a declaration of title in fee simple to the said piece or parcel of land situate, lying and being at 17 Oyewole Street in favour of the two plaintiffs as administrator and administratrix of the estate of late Ebun Adeshola Wilson. The case of the plaintiffs is as follows: The property in question is the part or portion of a large area of land owned by Ebun Adeshola Wilson up to the time of her death intestate on 20th July, 1948. On the 8th March, 1969 they, the 2nd defendant and Mrs Kofoworola Adewunmi obtained letters to administer her personal property. On 31st March, 1969...they further obtained an order of Court to deal with the real property of the deceased. I believe it is also the case of the plaintiff that the land in dispute which has been the subject of the deed of conveyance in favour of the 2nd defendant is still part of the unadministered property of Mrs Wilson (deceased) which they are authorised to deal with.
During the proceedings, it became clear that it is the 1st defendant who is, in fact, defending this action. The 2nd defendant's interest, if he has any at all, in defending the action is of the barest minimum. The defence of the 1st defendant, put succinctly, is that upon the death of Mrs Wilson (deceased) on 20th July, 1948 her real property which includes the property in question became the absolute property of her surviving husband-Mr Ezekiel John Wilson (see paragraph 4A of her amended defence). Mr Ogunsanya for the 1st defendant maintained this position on the strength of section 36 of the Marriage Ordinance which reads:-
"36 (1) Where any person who is subject to native law or custom contracts a marriage in accordance with the provisions of this Ordinance, and such person dies intestate, subsequently to the commencement of this Ordinance, and leaving a widow or husband, or any issue of any such marriage; also where any person who is the issue of any such marriage as aforesaid dies intestate subsequently to the commencement of this Ordinance:-
The personal property of such intestate and also any real property of which the said intestate might have disposed by will, shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estates of intestates, any customary law to the contrary notwithstanding:
(a) where by the law of England any portion of the estate of such intestate would become a portion of the casual hereditary revenues of the Crown, such portion shall be distributed in accordance with the provisions of customary law, and shall not become a portion of the said casual hereditary revenues; and
(b) real property, the succession to which cannot by customary law be affected by testamentary disposition, shall descend in accordance with the provision of such customary law, anything herein to the contrary notwithstanding.
(2) Before the registrar of marriages issues his certificate in the case of an intended marriage, either party to which is a person subject to customary law, he shall explain to both parties the effect of these provisions as to the succession to property as affected by marriage.
(3) This section applies to the Colony."
After setting down this particular section of the Marriage Ordinance in F.S.C. 337/1962 Oluremi Ogunmodede & 4 others v. J.A. Thomas and another dated 10th March, 1966, the learned Chief Justice who read the judgment of the Supreme Court in that case added:-
"It is clear that the proviso to the section sought to exclude from its application any property which is subject to Native Law and Custom or Customary Law."
It is not the case of the plaintiffs in these proceedings that the large area of land owned by Mrs Ebun Adeshola Wilson during her lifetime was subject to any Native Law and Custom or Customary Law as this will prevent the operation of Section 36 of the Marriage Ordinance. The pleadings are that she acquired the land by purchase and obtained a conveyance in respect of it. (See paragraph 7 of the Amended Statement of Claim). It seems to me that Section 36 of the Marriage Ordinance would apply in this case because the land is not under restriction of Native Law and Custom and Mrs Ebun Adeshola Wilson was married under the Marriage Ordinance, and she died intestate, at Lagos. There can be no question that she was a person who was subject to Native Law and Custom or Customary Law.
In his book "Family Property among the Yorubas" 1958 at page 252 Dr G.B.A. Coker (now a Justice of the Supreme Court of Nigeria) writes:-
"It should however be remembered that Section 36 applies to both parties of the marriage and so the property of a woman married under the Ordinance who dies intestate leaving a husband or issue of such marriage will be distributed in the same way. The real property not otherwise excluded from the operation of the section will be treated as personality and distributed in accordance with the provisions of Statutes of Distribution. In this way property acquired by the wife, whether by purchase of otherwise falling within the section where the husband never remarried under the Ordinance, is almost invariably found in the hands of the members of the husband's family, descending ad infinitum as their own family property, where she had no children of her own."
It seems clear that on the death of Mrs Janet Ebun Adeshola Wilson intestate, her real property which is considered personal property for the purpose of distribution under Statutes of Distribution would become the absolute property of her late husband-Mr Ezekiel John Wilson. (See Re Lambert's Estate, Stanton v. Lambert (1888) 39 Ch.D. 626.
In the case of Oluremi Ogunmodede & 4 others which I referred to earlier, one J. Mosalewa Thomas the 1st defendant claimed to be the absolute inheritor of the real property of his wife, Patience Ajibabi who predeceased him. The learned Chief Justice in the course of that judgment said at page 6 of the cyclostyled report:-
"It appears to us that in considering the succession to the property in this matter, we have to look to the Ordinance for aid, and we shall refer later to Section 36 which deals with succession to intestates property." Later on he added:-
"By virtue of the above section (36) of the Marriage Ordinance, it would appear that the 1st defendant might succeed to the property of his wife Patience Ajibabi who died intestate to the exclusion of her children Dolapo Shyllon 5th plaintiff and David Adams (joined to the appeal by Order)."
The legal position, in this case, as I have said, is that Mr Ezekiel John Wilson became the absolute owner of his wife's real property upon the death of the latter, to the exclusion of all those who claim to be her relations.
In the circumstance therefore the property in question is not part of the estate of the deceased woman to be administered by the plaintiffs. Their claim that they are the owners of the property by virtue of being appointed her legal personal representatives many years after her death cannot stand. Their claim for a declaration will therefore be dismissed together with the other claims for possession, damages for trespass and injunction. These other claims are not supported by any evidence at all.
It is unnecessary to consider the other submissions made by the defence Counsel.