(1985) LPELR – 2604 (SC)

(1985) 3 NWLR (PART 13) 372


Delivered by the Supreme Court of Nigeria on the 13th day of December 1985.



This is a case whereby children of a deceased man who had died intestate disagreed on the native law and custom to be used in the distribution of the estate of their father. Mr. Adeyinka Ayinde Olowu died in 1960 at the University Teaching Hospital, Ibadan. He owned considerable property in Benin, Sapale and Warri in the now defunct Bendel State and Ibadan in Oyo state including five cinema houses, four houses and undeveloped plots of land. His first two children (sons) – Olabowale and Babatunde Olowu – had been administering the estate of their father since  his death without any disagreement until the 25th of February 1973 when the estate was distributed by the first child. The first child, Olabowale distributed the estate according to the Benin native law and custom. The other children disagreed, arguing that since their late father was a Yoruba man of Ijesha origin, his estate ought to be distributed according to the Yoruba Native Law and Custom. Three of the children of the deceased therefore filed a suit against the two administrators of the estate seeking a nullification of the distribution of the estate of their father as carried out by the first son on two grounds:

  1. The distribution of the estate ought to have been in accordance with Yoruba native law and custom;
  2. The distribution purportedly carried out under Benin native law and custom was contrary to Benin native law and custom.


The first son’s (the 1st defendant) case was that though his father was a Yoruba man by birth, he had ‘naturalized’ and become a Bini man before his death. Therefore, his estate ought to be distributed according to the Benin native law and custom which he had adopted before his death. Indeed, the trial court found based on the evidence presented that the late Mr. Adeyinka Olowu had lived from childhood until his death in Benin City. He had considerable business interests and acquired landed properties in Benin City. He married Benin women and during his lifetime, he applied to the Oba of Benin to be ‘naturalized’ a Benin indigene which was granted and which conferred on him the right to acquire absolute title to considerable landed properties in Benin City as any native of the city. The trial court therefore found that having become a Benin indigene by choice with the blessing of the Oba of Benin, his estate ought to be distributed according to the Benin native law and custom. The trial court also held that the plaintiffs did not prove Benin law and custom and it was therefore impossible to ascertain whether the distribution that was carried out on the 25th of February 1973 was done equitably and in accordance with the native law and custom. The case was thus dismissed.


The plaintiffs appealed the decision to the Court of Appeal and after failing at the court of appeal lodged a further appeal to the Supreme Court.



The main issue determined in the appeal is what personal law should apply to the administration and distribution of the deceased’s estate. The court considered whether it was possible for a Nigerian to alter his status under native law and custom by adopting that of another indigenous ethnic group. The court also touched very briefly on who has the burden of proof in a suit.



The ultimate deciding factor that was used in determining the personal law to be applied to distribution of Mr. Adeyinka Olowu’s estate was his choice to ‘naturalize’ as a Benin indigene. C.O Coker J.S.C. delivering the lead judgment speaking on the findings of the trial judge, Omosun J. held thus:

He found that the deceased intestate acquired Bini status, thereby relinquishing his Yoruba cultural heritage. It follows therefore that by virtue of this change, his personal law changed to Bini customary law; distribution of his estate on intestacy must necessarily be governed by Bini customary law. He married Bini women who had children for him, he carried on various business activities in and around Benin City. He found also that the change of his status endowed him with the rights and privileges of a Bini indigene and this change in status accords with Benin customary law. Unless this finding of fact is reversed, I hold the view that the trial Judge was right in saying that the applicable customary law for the distribution of the estate is the Benin Native Law and custom.”


All the justices agreed with this. M. Bello J.S.C stated: “Having regard to the evidence that the deceased had voluntarily chosen to become a Bini and the evidence relating to the consequences of his choice under Benin native law and custom, I am satisfied the Court of Appeal rightly upheld the decision of the trial Judge.” Similarly, M.L. Uwais J.S.C. in his judgment stated: “On the evidence before it the High Court found that the deceased, before his death, changed his status from that of Yoruba to that of Bini. It followed therefore that the Bini Customary Law of inheritance would apply to the distribution of his estate since he died intestate. I think this finding of the trial court is unassailable.”


C.A. Oputa J.S.C. in his judgment took it a bit further and reasoned that since it was his acquired status as a Benin man that gave him the right to acquire most of the properties to be distributed, that status cannot be denied or displaced when it came to the distribution of his estate. Applying the reciprocity test, he held thus: “Since the learned judge also found that it was this naturalization which was granted to Olowu by the Oba of Benin “that enabled him (late A.A. Olowu) to acquire the properties in Benin City” (part of the properties now in dispute), I will go further and say that the appellants, the respondents and in fact all the eleven children of the late A.A. Olowu who are now his successors in title in respect of those properties are also estopped from denying that their late father acquired the Status of a Bini man – which Status enabled him to acquire those properties. All the children of the late A.A. Olowu are estopped from denying that their father though of Yoruba extraction lived and died a Bini man. They are required to abide by that assumption because it formed the conventional basis upon which the late Adeyinka Ayinde Olowu acquired his properties in Benin. See Thompson v. Palmer (1933) 49 C.L.R. 507 at p. 547. The mutuality test of estoppels applies here. Sir Edward Coke called it the reciprocity test. The principle is that the children of the late A.A. Olowu will not be allowed to take advantage of and enjoy the properties acquired by their father as a Bini man while in the same breath denying his Bini Status and asking the court to apply as it were, the “Renvoi doctrine” which will send the matter back to Yoruba Customary Law for determination.”


He went further to say: “The evidence uncontradicted and accepted by the courts below was that Adeyinka Ayinde Olowu though of Yoruba extraction from Ijesha land was born in Benin, lived all his life in Benin, married all his wives from Benin- all the parties to this action are therefore matrilineally of Benin origin. As if to leave no doubt about his desire for absolute assimilation into the Benin cultural group, the late Adeyinka Ayinde Olowu applied to the Oba of Benin to become a Bini indigene. Under the Benin Customary Law, such a request can be made. The Oba in an open ceremony in the presence of his Chiefs granted Adeyinka Ayinde Olowu’s request and conferred on him the Status of a Bini indigene as a result of which he was allowed to acquire most of the properties comprised in his estate. It will be blowing hot and cold to acquire properties as a Bini man and on death to have those properties governed by Yoruba canons of distribution.”


Is it possible for a Nigerian to change the cultural heritage which he acquires by birth? It was A.O. Obaseki J.S.C. that truly answered this question. He stated: “Two questions may be asked. The first is this:
(1) Is there provision in the customary laws of the Yorubas which prevent a Yoruba man from opting in his years of wisdom for his affairs to be subject to the native laws and custom of Benin, i.e. deciding to be subject to Benin Native Law and custom. The second question is:

(2) Is there any provision in the Customary law of Benin i.e. Benin Native Law and Custom which forbids a member of any other ethnic group in Nigeria from being admitted into the community of Benin subject to Benin native laws and customs? 

There is no evidence which enables the Court to answer the questions in the negative. The history of population movement in this country, Nigeria, bears testimony that people moved from place to place before the advent of Europeans. They settled and became assimilated into the community. The present dynasty of the Obas of Benin, the repository of Benin native laws and customs, bears eloquent testimony that a Yoruba man can become a Benin man subject to Benin native laws and custom. The acceptance by the Oni of Ife of the request of the Chiefs of Benin to allow his son Prince Oronmiyan to ascend the throne of Benin and the acceptance by Prince Oromiyan to become the Oba of Benin are historical facts. Similarly, the sojourn of Prince Oranmiyan to Benin City for that purpose though his stay did not last long is also a historical fact. His decision to return home and ceding the throne for his son by a Benin Queen, Eweka I, who was brought up in the tradition of the people is also a historical fact.”


It is important to note that though the judgment of the Supreme Court was delivered in 1985, the application by Mr. Olowu to be a Bini citizen was approved in 1942 (pre-independence). Justice Obaseki made the distinction stating: “It is observed that at the time the deceased sought and obtained this status in 1942, Nigeria was a dependency – a British Colony administered by the British Crown and apart from Lagos which was a British Colony, the other parts of Nigeria constituted a British Protectorate and Nigerians in the Protectorate were accorded the status of British Protected Persons. It should be remembered that it was in 1897 after the punitive expedition that Benin Kingdom lost its independence to the British Crown. On the assumption of sovereignty over Nigeria by the British Crown, Nigerians became British protected persons. They did not become British subject to all the laws in operation in England. They were subject to all the laws of general application in England before 1900; all the statute laws passed by the competent authority in Nigeria and each ethnic group or tribe was also subject to the native law and custom of the particular ethnic group. …On January 1, 1914, the protectorate of Nigeria came into being with the amalgamation of northern and southern Nigeria. In 1914, the Supreme Court acquired jurisdiction throughout Nigeria. 

When, in 1900, the British Government took over from the Royal Niger Company, the administrative control of Nigeria, they decided to preserve as much as possible the existing legal order – native law and custom. In pursuance of this intention, Proclamation No.6 of 1900 provides inter alia:
“Nothing in this Proclamation shall deprive the Supreme Court of the right to observe and enforce the observance, or shall deprive any person of the benefit of any law or custom in the Protectorate, such law or custom not being repugnant to natural justice, equity and good conscience. No party shall be entitled to claim the benefit of any local law or custom, if it shall appear, either from express which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions should be regulated exclusively by English law; and in cases where no express rule is applicable to any matter in controversy, the Court shall be governed by the principles of Justice, equity and good conscience.”

Proclamation No.9 of 1900 had also established Native Courts.
The intention of the British Government to ensure the observance of the native law and custom was further highlighted by Lord Wright in the celebrated case of Oke Lanipekun Laoye and Others v. Oyetunde (1944) AC 170 when he said: “The policy of the British Government in this and in other respects is to use for purposes of the administration of the country the native laws and customs in so far as possible and in so far  as they have not been varied or suspended by statutes and ordinances affecting Nigeria. The courts which have been established by the British government have the duty of enforcing these native laws and customs, so far as they are not barbarous, as part of the law of the land.””


He further held: “Since the attainment of independence and the acquisition of Nigerian citizenship in 1960, the need for naturalisation or culturisation as my learned brother Bello, J.S.C. chose to call it no longer arises. With the promulgation of the Land Use Decree, the greatest asset which each individual ethnic community had has been made available to all Nigerians. See section 1 Land Use Act 1978. Further, the political objectives of the Government of the Federal Republic stated in section 15(1),(2),(3)(a, b, c, d) and (4) has under the 1979 Constitution made such a course of action of no cultural benefit. These sub-sections read:

15(1) The motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress;
(2) Accordingly, national integration shall be actively encouraged whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited’,
(3) For the purpose of promoting national integration, it shall be the duty of the State to –
(a) provide adequate facilities for an encourage free mobility of people, goods and services throughout the Federation; 

(b) secure full residence rights for every citizen in all parts of the Federation;
(c) encourage inter-marriage among persons from different places of origin or of different religious, ethnic or linguistic association or ties or

(d) promote or encourage the formation of associations that cut across ethnic, linguistic, religious or sectional barriers; 

(4) The State shall foster a feeling of belonging and of involvement among the various peoples of the Federation to the end that loyalty to the nation shall override sectional loyalties.”
Despite holding the above, he concluded thus: “However, the 1979 Constitution does not prevent a Yoruba man from acquiring the status and the rights of a Benin man under Benin customary law if the need arises. Similarly, it does not prevent a Benin man from acquiring the rights and status of a Yoruba man under Yoruba customary laws if the need arises. This is in consonance with the provisions of section 17(2)(a) of the Constitution which states: “In furtherance of the social order every citizen shall have equality of rights, obligations and opportunities before the law.”


What term best captures what the late Mr. Adeyinka Olowu did? The trial court as well as the Court of Appeal had stated that he naturalized. Dissatisfied with the term, Justice Bello stated: “The word “naturalization,” which takes place when a person becomes the subject of a State to which he was before an alien, is a legal term with precise meaning. Its concept and content in domestic and international law have been well defined. To extend its scope so as to include a change of status which takes place under native law and custom, when a person becomes a member of a community to which he was before a stranger, may create confusion. I would prefer to describe a change of status under customary law as culturalization. I may add that culturalization with its resultant change of personal law may take place by assimilation or by choice.To Justice Oputa, “The proper expression might have been acculturation. This simply means that a person of one tribe or of one cultural group may adopt the culture of another and entirely different group.”


Reminiscing on a similar case he had sat on as a High Court Judge, Justice Bello considered whether mere re-settlement in a place would bring about a change of personal law. He said: “Strictly speaking, this case on appeal is not a case of a change of personal law by assimilation. I had occasion, as a High Court Judge then, to consider whether mere settlement without assimilation was capable of bringing about a change of personal law. That was in Rasaki Yinusa v. T. T. Adesubokun (1968) NNLR. 97 at page 99 wherein I said: “Counsel for the defendant contends that the testator was a native of Lagos and that the Lagos Yoruba do not follow Moslem law and was therefore entitled to dispose of his estates by will in the manner he did. The first limb of this contention is founded on the presumption that the mere fact of settlement in Lagos by the parents of the testator renders the testator subject to the native law and custom of the Lagos Yoruba. It appears two cases do not support this contention. In Tapa v. Kuka 18 NLR 5, a Nupe Moslem of Bida origin died intestate leaving a house in Lagos it was held that the personal law of the deceased was the Moslem law prevailing among the Nupe tribe and it should apply to his estate. In Re the Estate of Aminatu A. G. v. Tunkwase 18 NLR 88, the deceased was a Moslem of Ijebu origin who died intestate in Lagos, the issue is whether her estate should be distributed in accordance with Moslem law which barred her adopted children or in accordance with the Ijebu native law and custom the latter was held to be applicable.
Subject to any statutory provision to the contrary, it appears from both cases that mere settlement in a place, unless it has been for such a long time that the settler and his descendants have merged with the natives of the place of settlement and have adopted their ways of life and customs, would not render the settler or his descendants subject to the native law and custom of the place of settlement. It has not been shown in this case that the parents of the testator and the testator himself had settled for such a long time in Lagos and have adopted the Yoruba ways of life that if he had died intestate his estate would have been subject to “Idi-Igi” distribution. On the contrary the evidence of an old friend and compatriot of the testator shows that the latter had always regarded himself as a native of Omuaran. I find therefore that the testator was a native of Omuaran subject to the native and custom of Omuaran in the Kwara State.”

In parenthesis, I may point out that the Supreme Court quashed my order setting aside the will which was the subject matter of the suit. The Supreme Court based its decision on the Wills Act 1837 of England as a statute of general application and the interpretation of Sections 33 and 34(1) of the High Court Law of Northern Nigeria: see Timothy T. Adesubokun v. Rasaki Yunusa (1971) NNLR 77. The Supreme Court did not make any pronouncement on my statement of the law that mere settlement without assimilation is not sufficient to change the personal law of the settler. I think, it is still the law.”


Justice Oputa regarded the situation as one of conflict of laws – customary laws. He stated: “This is in a miniature scale a question of conflict of laws. In cases dealing with conflict of laws, there is always a “competition” between the lex patriae of the Roman jurists or what is now known as personal law, the lex situs or lex loci of the property involved, the lex domicilii of the deceased, the lex fori of the forum competens. Nigeria being one nation, one country, will it not be a contradiction in terms of talk of conflict of laws in the same country? Our former National Anthem supplied the answer:-
“Though tribes and tongues may differ in brotherhood we stand Nigerians all.”
There are different “tribes and tongues” in Nigeria – different customary laws dealing with devolution of property on intestacy. Where there is a clash between two or three of these different customary laws and the court has to choose which one should apply, we have an issue of conflict of laws . See Ayisatu Tapa & Anor. v. Yanrata Kuka N.L.R. 5 where it was held that the law to be applied was the personal law of the deceased. In Cole v. Cole 1 A N.L.R. 15 the issue was whether Customary Law or English Law was the applicable law. From the facts and circumstances of that case, it was held that English law of succession will prevail over Customary Law. Much will therefore depend on the facts and circumstances of each individual case.”


Overall, it would seem that the position of the court in this case as with subsequent decisions is to ascertain what law the deceased had intended to govern his affairs. The court would look at facts surrounding the life of the deceased including what type of marriage he had contracted, his place of origin, where he lived most of his life and so on. In the end, each case has to be determined on its own peculiar circumstances.


The second ground upon which the Plaintiffs had asked the court to nullify the distribution was that it was not properly done even according to the Benin native law and custom. The trial court however held that since the plaintiffs did not prove by evidence what the Benin native law and custom on intestacy is, it could not make a finding as to the propriety of the distribution carried out by the first son. Agreeing with the decision of the court, Justice Coker delivering the lead judgment held: “But since the Plaintiffs failed to prove the essential element of that custom, which nullified the distribution, the result was that their claim seeking an order of nullification of the distribution according to the said Benin customary law, must necessarily fail. It must be made clear that the 1st Defendant did not file any counter-claim. The judgment dismissing the Plaintiffs’ claim does not imply that the distribution made by the 1st Defendant was in strict compliance with Benin customary law. All it means is that the Plaintiffs failed to prove why the distribution should not follow the change of the personal law of the deceased intestate and further, that the Plaintiffs failed to prove the Ijesha customary law of distribution which they pleaded. In either case, the result is failure of the Plaintiffs to discharge the onus of proving their case.”


Justice Uwais, hitting the nail on the head stated:“From the foregoing it is clear that the burden of proving that the Bini Native Law and Custom on inheritance did not apply to the estate of the deceased rested with the plaintiffs. The onus of showing that the estate was not properly distributed either according to the Yoruba or Bini Native Law and Custom also fell on the plaintiffs. They have failed to discharge the burden before the trial court. Nor did they succeed before the Court of Appeal in showing that the decision of the learned trial judge was perverse. In the light of such failure both grounds 1 and 2 cannot succeed before us.”


The appeal was dismissed.