Intestate Succession Under the Akwa Ibom Administration of Estates Law

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 1st day of March, 2024

Before Their Lordships

John Inyang Okoro

Helen Moronkeji Ogunwumiju

Ibrahim Mohammed Musa Saulawa

Tijjani Abubakar

Emmanuel Akomaye Agim

SC/25/2015

Between

1.  EYEI UDUAK USORO

2. NDIANAENIE UDUAK USORO

3. MBEBETMBAK UDUAK USORO

4. UBON UDUAK USORO

5. EDU UDUAK USORO

6. COMMISSIONER FOR LANDS AND TOWN     APPELLANTS

    PLANNING, AKWA IBOM STATE

And

1.  EBUKIDIOK UDUAK USORO

2. NTEOWO UDUAK USORO

3. ENAMIDEM UDUAK USORO    RESPONDENTS

(Lead Judgement delivered by Honourable Emmanuel Akomaye Agim, JSC)

Facts

Chief U.J.U. Usoro of Ikot Akpan Odung, Itak, Ikono Local Government Area of Akwa Ibom State of Nigeria died intestate in 2007 leaving behind 4 wives, 19 children and 4 major landed properties namely: (1) Itak Nursery and Primary School, (2) Palatial Guest House at Ikot Ubehe, (3) Mma Jenny Building and (4) Agrifeed Mill at Ikot Ubehe, Nug Dor Itak junction along Uyo – Ikot Ekpene Road. The 1st – 5th Appellant are his male children by his 2nd wife, while the Respondents are his male children by his 4th wife.

Sometime in 2012, the Akwa Ibom State Government embarked on the dualisation of Uyo-Ikot Ekpene Road, and the project affected the Agrifeed Mill. The property was earmarked for demolition. A dispute arose as to who as between the 1st – 5th Appellant and the Respondents was entitled to the Agrifeed Mill, and thus, entitled to receive compensation from the Akwa Ibom State Government for the proposed demolition. The Respondents subsequently discovered that, the 1st Appellant had been listed by the Consultant to the Akwa Ibom State Government as the person to be paid compensation. Further to this, the Respondents filed an action against the Appellants at the High Court of Akwa Ibom State. 

The claim of the Respondents was that their father, while alive, had shared his properties amongst his children per wife, and had donated the Agrifeed Mill to the Respondents being his children by his 4th wife. They sought a declaration that they are entitled to the right of ownership of the Agrifeed Mill, and thus, entitled to collect all compensation sums due for the demolition of the same from the Akwa Ibom State Government. They also sought injunctive orders against the Appellants.

The 1st – 5th Appellant, on the other hand, claimed ownership of the Agrifeed Mill, and they claimed that after their father’s death, the entire Usoro family including the 1st – 5th Appellant, the Respondents, their other brothers and step brothers together with the elders and family head of the larger Usoro family met in June 2009, and shared the deceased’s properties amongst the children based on their respective mothers, in accordance with the custom and tradition of the Nnung Udoe Itak people. They claimed that the sharing was presided over by their uncle who was the then family head of the Usoro Family, Professor Etop Usoro, was reduced into writing and signed by all members of the Committee of Usoro family, elders and the family head. They claimed that the children of the 1st wife were given the Itak Nursery and Primary School; the Appellants as the children of the 2nd wife were given the Agrifeed Mill; the children of the 3rd wife were given the MMA Jenny Estate; while the Respondents as the children of the 4th wife were given the Palatial Guest House. The 1st – 5th Appellant counter-claimed for a declaration of title to the said Agrifeed Mill, and injunctive orders against the Respondents. They also sought an order, directing the 6th Respondent to pay the compensation sum for the demolition of the property to them.

Following conclusion of trial, the trial court delivered its judgement in which it held that the late Chief U.J.U. Usoro did not distribute his properties amongst his children before he died or give the disputed Agrifeed Mills to the Respondents, and dismissed their claim. The trial court however, granted the 1st to 5th Appellant’s counterclaim, and found that that the said Agrifeed Mills was given to them as they claimed. 

Aggrieved, the Respondents appealed to the Court of Appeal. Following the filing, exchange and adoption of the parties’ respective briefs of arguments, the Court of Appeal delivered its judgement in which it allowed the appeal in part. The Appellate Court allowed the appeal against the part of the trial court’s judgement granting the counter-claim, and held that the 1st to 5th Appellant failed to prove their counter-claim. The Court of Appeal however, dismissed the appeal against the part of the trial court’s judgement that dismissed the Respondents’ claim. 

Dissatisfied with the decision of the Court of Appeal, the Appellants filed an appeal at the Supreme Court.

Preliminary Issue

The Court before considering the merits of the issues raised for determination in the appeal, considered a preliminary issue regarding the notice of appeal filed by the Appellants.  

On this point, the Court held that the grounds of the appeal set forth in the Appellants’ notice of appeal were obviously grounds of pure fact and grounds of mixed law, and the notice of appeal also stated that the appeal is as of right on those grounds. The Supreme Court referred to the instances when an appeal will lie from the decision of the Court of Appeal to the Supreme Court as of right, as provided in Section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999. The Apex Court held that since the grounds of appeal do not involve questions of law alone, and the decision appealed against is not one as to the interpretation of the Constitution, or one on whether a person’s fundamental rights has been infringed, or one affirming a sentence of death imposed by a court, or any of the questions listed in Section 233(2)(e) of the 1999 Constitution, it cannot be brought as of right. The Court held that the appeal, being one involving only complaints of facts or mixed law and facts, can be validly brought only after the leave of court to bring it has been obtained by virtue of Section 233(3) of the 1999 Constitution. The Apex Court held that since the Appellants did not first obtain the leave of the Court to appeal before filing the appeal, the appeal is incompetent.

Regardless of the finding on the incompetence of the appeal however, the Apex Court proceeded to still consider the merits of the appeal. 

Issue for Determination 

The Supreme Court considered the following issue, in its consideration of the merits of the appeal: 

Whether the lower court was not in error when it dismissed the 1st – 5th Appellant’s counterclaim

Arguments

Counsel for the Appellants argued that the Court of Appeal having found the case of the Respondents unmeritorious, ought to have affirmed the decision of the trial court granting the Appellants’ counter-claim.

Conversely, Counsel for the Respondents argued that the Court of Appeal rightly held that the Appellants’ counter-claim which was founded on the Professor Etop Usoro’s Committee’s recommendation, did not scale the judicial hurdle. He contended that the purported sharing of the 4 major properties of the late Chief U.J.U. Usoro required the consensus of all the members of the family before it can be valid, and the Appellants failed to prove that the consent of the Respondents was obtained when the Committee purported to give the Agrifeed Mill to the 1st – 5th Appellant. 

Court’s Judgement and Rationale

The Apex Court held that by virtue of Sections 1, 3 and 4 of the Administration of Estates Law Cap 2, Laws of Akwa Ibom State 2000, all property to which a deceased person was entitled for an interest not ceasing on his death, shall, on his death, devolve on his heirs and assigns as joint owners. The Court held that since the properties of a deceased intestate devolve on his heirs as the joint owners, the consent required for a valid partition of the properties amongst them is the consent of all of them, and the consent or lack of consent of their uncles or other members of the extended family is of no relevance.

The Court held further that a joint owner cannot be bound or forced to give his or her consent to a partition of a jointly owned property by the decision of the extended family, and this is because his consent must be voluntary. The Court referred to its decision in BARUWA v OSOBA (1996) LPELR – 13680 (SC) and ADEGOKE v OLOFIN (2019) LPELR – 48766 (SC). The Apex Court agreed with the Court of Appeal that, the absence of the Respondents from the meeting of the Prof Etop Usoro Committee as admitted by the 1st – 5th Appellant’s witness, showed that there was no consensus of all the joint owners of the disputed property on the decision reached in that meeting. His Lordships held that the lack of consensus on the giving of the disputed property by the Professor Etop Usoro Committee to the 1st – 5th Appellant, was further shown by the fact that the dispute continued even after the decision of that Committee.

The Supreme Court by a majority of 3:2 thus, affirmed the decision of the Court of Appeal.

Dissenting Opinion 

Their Lordships, Honourable Justice John Inyang Okoro and Honourable Justice Helen Moronkeji Ogunwumiju however, gave dissenting opinions on the point that the Court of Appeal, having agreed with the trial court that Respondents failed to prove that their father donated the Agrifeed Mill to them inter-vivos, ought to have affirmed the success of the case of the Appellants and their claim of ownership of the Agrifeed Mill which they proved was shared to them after the death of their father. Their Lordships opined that the Court of Appeal ought to have affirmed the Appellant’s counter-claim, particularly as there was evidence that the Respondents had knowledge of the meeting held by the Prof Etop Usoro Committee in 2009 and its outcome, and had ratified the sharing formula adopted at the meeting by their subsequent actions. 

On the whole, having initially held that the appeal was incompetent, the Supreme Court by a majority of 3:2 Struck Out the appeal.

Representation

Mfon Udeme Esq. with A. E. Billy for the Appellants. 

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)