ADMINISTRATOR-GENERAL v MARIAN AMOKE OLUBAMIWO & Another (SUIT NO. M/153/1969) [1971] NGHC 13 (29 March 1971)

**ADMINISTRATOR-GENERAL** **(****APPLICANT/RESPONDENT)** **_v._** **MARIAN** **AMOKE** **OLUBAMIWO** **(1st** **RESPONDENT/RESPONDENT)** **MARIAN** **MORENIKE** **O****LUBAMIWO** **(2nd** **RESPONDENT/APPLICANT)** **(1971)** **All** **N.L.R.** **429** **Div****i****si****o****n:** High Court, Lagos **D****at****e** **o****f** **Judgment:** 29th March, 1971 **C****as****e** **Num****b****er:** SUIT NO. M/153/1969 **Before:** Lambo, J. Civil Action. **_HELD_**** _:_** (1) The "Idi-Igi" (_per_ _stirpes_) method of distribution is an integral part of the Yoruba Native Law and Custom. It is still in force and is the universal method of distribution except where there is a dispute among the descendants of the intestate as to the proportion into which the estate is to be divided. Where there is such dispute the head of the family is empowered and should decide whether "Ori-Ojori" ought in the particular case to be adopted instead of "Idi-Igi" and any such decision prevails. "Ori-Ojori" is a relatively modern method of distribution adopted as an expedient to avoid litigation. "Idi-Igi" is not repugnant to natural justice, equity and good conscience. (2) The opinion of the Administrator-General was totally irrelevant in this matter as, once he referred the matter for opinion as to the customary method of distribution and that opinion was given, he was, in the absence of any other conflicting opinion from the same source, bound by it, and ought to adopt it. (3) Had the attention of the Administrator-General been drawn to the decision in _Danmole_ _v._ _Dawodu_ he probably would not have said that the "_per_ _stirpes_ " method of distribution was not acceptable to him on the ground that it was in inequitable. (4) Consequently, there being no other system of distribution placed before the court, the "Idi-Igi" system, as confirmed by the President of the customary Court of the Community in which the deceased was probably born, would be applicable. _Ap_ _p_ _l_ _i_ _c_ _a_ _t_ _i_ _o_ _n_ _g_ _r_ _a_ _n_ _t_ _e_ _d_ _._ _Cas_ _e_ _s_ _re_ _f_ _err_ _e_ _d_ _to_ _:_ _D_ _a_ _n_ _m_ _o_ _l_ _e_ _v_ _._ _D_ _a_ _w_ _od_ _u_ , (1958) 3 F.S.C. 46. CIVIL ACTION SUIT NO. M/153/1969. _Akintoye_ for the 2nd Respondent/Applicant. _Ade_ _l_ _ek_ _e_ for the 1st Respondent/Respondent. _Yo_ _u_ _n_ _g_ for the Applicant/Respondent. Lambo, J.:-This is an application under section 28(1) of the Administrator-General's Law Cap 2 of the Laws of Western Nigeria 1959. The applicant, Madam Marian Morenike Olubamiwo, who is the 2nd respondent prays the court for an order:- "1. appointing the 2nd respondent/applicant (i.e. herself) the legal guardian of Olufunke Olubamiwo; 2\. that the applicant/respondent (i.e. The Administrator-General) shall pay the 2nd respondent/applicant the half share of the Estate of the Deceased due to Olufunke Olubamiwo, and 3\. restraining the applicant/respondent from paying the children of the 1st respondent/respondent more than their own half share of the Estate; and for such further order or orders as this honourable Court may deem fit to make in the circumstances." The applicant is one of the two wives of Benjamin Adekanmbi Olubamiwo, who died in Lagos on the 25th March, 1968, and was survived by six children. Marian Amoke Olubamiwo is the mother of five of the children, two of whom are adults aged 27 and 24 years. The present applicant's child is an infant aged 3 years. The value of the Estate, the subject-matter of the present application, is £1101-15 _s_ -4 _d_. It is alleged in paragraph 11 of the applicant's affidavit that a total sum of £487-14 _s_ -5 _d_ has been paid to the children of the 1st wife whereas in fact only £90 has so far been paid to her infant child. On the 20th August, 1970, Caxton-Martins, J., made an order that the Administrator-General should recover sums of money wrongly paid out to two adult children of the deceased; the two sums of money were respectively £104-3 _s_ -8 _d_ and £104-3 _s_ -9 _d_. When, however, on the 27th August 1970, the parties appeared before the court, Counsel for the Administrator-General, Mr Young, is recorded by the learned Judge as having said that:- "The two sums of £104-3 _s_ -8 _d_ and £104-3 _s_ -9 _d_ have not been recovered by the applicant from the two adult beneficiaries. It would take some time to recover them." As the Administrator-General was, presumably, in doubt as to what customary law was applicable to the distribution of the deceased's Estate, he applied, on the 30th January, 1969, to the Customary Court, Otta, in the Western State, for information. In paragraph 6 of his affidavit filed on the 29th August, 1969, he deposed to having been informed that the Estate should be divided equally between the children of the two wives on the "_per_ _stirpes_ " principle. This information was conveyed to him by the sole President of the Customary Court as follow:- "OTTA GRADE 'B' CUSTOMARY COURT" _No_ _._ _O_ _T.__C_ _.__C_.25/70 Grade 'B' Customary Court, Otta. 3rd February, 1969. The Secretary, Otta District Council, Otta. _Ben_ _j_ _ami_ _n_ _A_ _dek_ _a_ _nmb_ _i_ _O_ _lub_ _a_ _miw_ _o_ _:_ _Dec_ _e_ _ase_ _d_ Referring to your endorsement letter No. OT.B/29/143A of 30th January, 1969, I have to inform you that the principle underlying the distribution of an estate under Native Law and Custom in this area is to distribute the estate equally between the children of the deceased two wives:- Mesdames Amoke Olubamiwo's children 50% and Marian Morenike Olubamiwo's children 50%. (Sgd.) A.T. Ahmed, Sole President Grade 'B' Customary Court, Otta. Copy to: Ag. Administrator-General, Administrator-General's Division, Ministry of Justice, 18/24 Ikoyi Road, Lagos." But strangely enough, the acting Administrator-General rejected the opinion, claiming in paragraph 7 of his affidavit:- "That this information is not acceptable to me on the ground that it is inequitable." In my view, the opinion of the acting Administrator-General is totally irrelevant in the matter as, once he referred the matter or opinion as to the customary method of distribution and that opinion was given, he is, in the absence of any other conflicting opinion from the same source, bound by it, and ought to adopt it. In _Danmole_ _v_ _._ _D_ _awodu_ (1958) 3 F.S.C. 46 it was therein held that the Idi-Igi (_per_ _stirpes_) method of distribution is an integral part of the Yoruba Native Law and Custom and should be adopted in that case. It was also held that "Idi-Igi" is still in force and is the universal method of distribution except where there is a dispute among the descendants of the intestate as to the proportions into which the estate should be divided. Where there is such dispute, the head of the family is empowered and should decide whether "Ori-Ojori" ought in the particular case to be adopted instead of "Idi-Igi" and that any such decision prevails. The judgment went on to say that "Ori-Ojori" is a relatively modern method of distribution adopted as an expedient to avoid litigation. Further, that "Idi-Igi" (_per_ _stirpes_) is not repugnant to natural justice, equity and good conscience. Had the attention of the Administrator-General been drawn to this decision, he probably would not have said, as he did in paragraph 7 of his affidavit aforesaid, that the "_per_ _stirpes_ " method of distribution was not acceptable to him on the ground that it was inequitable. In my view, therefore, there being no other system of distribution placed before the court, the "Idi-Igi" system, as confirmed by the President of the Customary Court of the community in which the deceased was probably born, would be applicable. In the circumstances of this case, I would reject the contention of the 1st respondent/respondent that the "Ori-Ojori" (_per_ _capita_) system of distribution should apply. In the result, there will be an order on the application as prayed. Costs-£52-10 _s_ : to the 2nd respondent/applicant payable out of the Estate. _Ap_ _p_ _l_ _i_ _c_ _a_ _t_ _i_ _o_ _n_ _g_ _r_ _a_ _n_ _t_ _e_ _d_ _._