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  • 2003-05-12
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Salubi vs. Nwariaku

DR. T. E. A. SALUBI

( As Administrator of Late Chief Salubi’s Estate in Benin City and self appointed Administrator of Chief Salubi’s Estate outside Benin City)

V

1.      MRS. BENEDIATA E. NWARIAKU

( Nee Salubi), for herself as beneficiary of the Estate of the Late Chief T. E. A. Salubi)

2.      THE PROBATE REGISTRAR

3.      MRS. ANGELA ALICE SALUBI

( Joined by order of the Court of Appeal )

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

UTHMAN MOHAMMED, JSC

UMARU ATU KALGO, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

EMMANUEL OLAYINKA AYOOLA, JSC ( Read the Lead Judgment )

SC.120/1997

FRIDAY, 28TH FEBRUARY, 2003

ADMINISTRATION OF ESTATE - Administration of Estates Law of Western Region of Nigeria and of former Bendel State - Sources of

ADMINISTRATION OF ESTATE - Estate of an intestate who died leaving a wife or husband and issue - Distribution of under section 49(1) Administration of Estate Law

ADMINISTRATION OF ESTATE - Intestate properties - Distribution of Whether the court can share in specie without a valuation of the assets

ADMINISTRATION OF ESTATE - Letters of administration - Proper approach when set aside

ADMINISTRATION OF ESTATE - Marriage Act section 36(1) and

Administration of Estate Law, section 49(5) - Difference between

ADMINISTRATION OF ESTATE - Residuary estate - Meaning of

COURT - Reliefs - Reliefs not sought by parties - Whether court should grant

PRACTICE AND PROCEDURE - Reliefs - Reliefs not sought by parties Whether court should grant

STATUTE - Administration of Estate Law, section 49(1) - Estate of an intestate who died leaving a wife or a husband and issue - Distribution of thereunder

STATUTE - Administration of Estates Law of Western Region of Nigeria and of former Bendel State - Sources of

STATUTE - Common Law of England and Equity vis-a-vis statutes of the then Western Region - Status of

STATUTE - Marriage Act, section 36(1) and Administration of Estate Law, section 49(5) - Difference between

STATUTE - Marriage Ordinance of 1914 - Status of

STATUTE - Statute abrogating the previous common law on a subject Effect of

WORDS AND PHRASES - ‘Residuary estate’ - Meaning of

Issues:

1.            Whether the estate of Late Chief Salubi, an Urhobo man, who died intestate should be distributed in accordance with English Law or Urhobo Native Law and Custom.

2.            Whether the court below should have proceeded as it did

(i) to order that properties comprising the intestate estate of Late Chief Salubi be valued, and (ii) to distribute the properties.

Facts:

This suit was commenced at the trial court in respect of estate of

Chief T. E.A. Salubi who died intestate. He was survived by his widow who he married under the Marriage Ordinance, two children born of him by the widow and two other children born of him outside wedlock but whose paternity he acknowledged and who were in his life time raised by his wife in the matrimonial home as children of the family. Upon his death, letters of administration were granted to his widow and the 1st defendant (his son outside wedlock); however his wife declined to be an administrator.

Dissatisfied with the manner in which the 1st defendant had been managing the estate of the deceased, the eldest surviving child of the deceased, the plaintiff for herself and as beneficiary of the estate of the deceased sued the 1st defendant claiming;

1.            Orders to set aside the letter of administration granted to Dr. Salubi and that the estate of the deceased be distributed to all the beneficiaries of his estate “in accordance with Administration of Estate Law and the Marriage Ordinance Law which governs the estate of person whose marriage is governed by the Ordinance law; and other relevant applicable laws.” and

2.            An order compelling the Probate Registrar (“the 2nd defendant”) “to effect the distribution of the estate of the late Chief T. E. A.

Salubi to all beneficiaries under his estate as ordered by court.”

The plaintiff’s case was that the deceased having contracted a marriage under the Marriage Ordinance was not a person to whom native law and custom applied with the consequence that his widow was entitled to twothirds share of his estate. The 1st defendant’s case on the other hand was that the deceased being and having lived as an Urhobo Chief and having died intestate as a matter of deliberate choice as an Urhobo chief, his estate devolved to be distributed in accordance with Urhobo native law and custom under which the 1st defendant as the deceased’s eldest son inherited the deceased’s estate which he could distribute at his discretion.

The trial court at the conclusion of hearing, however, applied section 36(1)  of the Marriage Ordinance on the ground that the deceased was no longer subject to native law and custom having contracted a marriage under the Marriage Ordinance. The trial court found that the widow was entitled to one-third of the estate and his children to the remaining two-thirds. The court then identified the properties and distributed same, allocating properties in Victoria Island, Lagos and one in Benin City to the widow as forming roughly, one-third of the said estate and shared the remaining amongst the children. The court further set aside the letters of administration and ordered the probate registrar to give effect to the quantum of distribution. The 1st defendant appealed to the Court of Appeal while the widow of the deceased, with the leave of court, cross-appealed. The Court of Appeal held that the applicable law is section 36(1) of the Marriage Act and also ordered that a valuation of the whole estate be made by a qualified estate valuer under the supervision of the probate registrar who should then take charge of the estate. Further dissatisfied, 1st defendant appealed to the Supreme Court.