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JARINATU FOLAWIYO AND OTHERS
V.
RUFAI BELO FOLAWIYO AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
24TH DAY OF OCTOBER, 1944
2PLR/1944/82 (WACA)
OTHER CITATION(S)
2PLR/1944/82 (WACA)
(1944) X WACA PP. 259 – 260
JELR 84154 (WACA)
LEX (1944) – X WACA PP. 259 – 260
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
FRANCIS, J.
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BETWEEN:
1. JARINATU FOLAWIYO
2. ASHIAWU FOLAWIYO
3. MORIAMO FOLAWIYO
4. SADATU A. FOLAWIYO
5. MURITALA FOLAWIYO
6. MORINATU FOLAWIYO – Defendants-Appellants
AND
1. RUFAI BELO FOLAWIYO
2. SAFURATU FOLAWIYO
3. WULEMOTU FOLAWIYO – Plaintiffs-Respondents
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ORIGINATING COURT(S)
Appeal by defendants from judgment of Supreme Court
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REPRESENTATION
Philip Oddie — for Appellants
E. A. Akerele — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING — WILL:- Interpretation of Will — Limited and general use of the word ”children” in various clauses
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CASE SUMMARY
Belo Folawiyo provided in clause 2 of his Will that his trustees should let the property specified in that clause and distribute the rents among his “sons and daughters hereinafter mentioned”. In clauses 3 and 4 he provided that his trustees should hold certain houses for the benefit of his “children” for life. And in clause 7 he named the appellants and two others as his “children for the purposes of distribution under this Will ‘.
It was agreed that Belo Folawiyo was the father of all the parties in the suit. The respondents were not named in clause 7; they claimed that though clause 7 cut them out of the distribution under clause 2, it did not affect their right to a share under clauses 3 and 4. This view was adopted by the trial Court against the contention of the appellants.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. the word ”distribution” in clauses 2 and 7 and the words ”sons and daughters hereinafter mentioned” in clause 2, showed that the word ”children” in clause 7 was limited to the provisions of clause 2, whilst “children” in clauses 3 and 4 was intended to be general and comprised them all in regard to these two clauses.
2. The definition of “my children” in clause 7 is, limited to “the purpose of distribution”, and that, whereas the testator contemplated distribution under clause 2 where he actually used the word he did not have in contemplation any distribution under clauses 3 and 4 but intended to leave two family houses for the “use and benefit” of all his children for life.
3. In clause 2, although the word “children” is not used, the “sons and daughters” who are to benefit by “distribution” are limited to those “hereinafter mentioned” — a plain reference to the subsequent provisions of clause 7. If the testator had intended a similar limitation to apply to clauses 3 and 4 he would naturally have included similar words of limitation in those clauses. He did not do so, and this leaves no doubt that he did not intend such limitation to apply.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
This Appeal raises the question of the correct interpretation of certain clauses in the last will and testament of Belo Folawiyo deceased, agreed for the purposes of argument to be the father of all parties to the suit.
The clauses in question are –
“2. I Devise to my Trustees in fee simple to Hold in Trust for my sons and daughters the following properties:-
“(a) One (1) Plot of Land at 30 Egerton Road Alakoro
(b) One house at 45 Agarawu Street now occupied by the Syrians, and
(c) one house at 4 OJobaro Street all in Lagos and To Let or Lease the said properties and pay the rents and profits arising therefrom to my sons and daughters hereinafter mentioned in accordance with Mohammedan Law or Custom relating to Distribution.”
3. I Devise to my Trustees in fee simple my house at 14 Jagun Lane, Lagos to Hold the same in Trust for the use and benefit of my children for life but to permit my brothers and sisters during their lifetime to continue to occupy the rooms in which they are now residing.
4. I Devise to my Trustees in fee simple my house at 20 Jagun Lane, Lagos aforesaid wherein I am now residing to Hold the same in Trust for the use and benefit of my children for life.
7. My children for the purpose of distribution under this Will are:-
(a) Muniratu,
(b) Tijani,
(c) Jarinatu,
(d) Ashiawu,
(e) Moriamo,
(f) Sadatu Ashake,
(g) MuritaJa and
(h) Morinatu.”
(The numbering is ours)
The Plaintiffs-Respondents contend that, whilst the effect of clause 7 is to cut them out from a share of distribution under clause 2, it does not affect their right to a share with the Defendants-Appellants in the “use and benefit” of the two properties mentioned in clauses 3 and 4 respectively.
The learned trial Judge upheld this contention. The Appellants contend that clause 7 applies equally to the properties mentioned in clauses 3 and 4 as to those in clause 2 and point out that in fact rents derived from the two properties have accrued for distribution.
After careful consideration of the arguments on each side we agree with the view taken by the learned trial Judge in the Court below. The definition of “my children” in clause 7 is, limited to “the purpose of distribution”, and we think it clear that, whereas the testator contemplated distribution under clause 2 where he actually used the word he did not have in contemplation any distribution under clauses 3 and 4 but intended to leave two family houses for the “use and benefit” of all his children for life. Further in clause 2, although the word “children” is not used, the “sons and daughters” who are to benefit by “distribution” are limited to those “hereinafter mentioned” -a plain reference to the subsequent provisions of clause 7. If the testator had intended a similar limitation to apply to clauses 3 and 4 he would naturally have included similar words of limitation in those clauses. He did not do so, and we think that this leaves no doubt that he did not intend such limitation to apply.
For these reasons the appeal is dismissed with costs assessed at 12 guineas against the Appellants jointly and severally.
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