KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND BUTT.JER LLOYD, J. In this case the relief claimed by the plaintiffs-appellants in their writ was as follows:-
“The plaintiffs seek a correct and true account of all the properties “real and personal to which they are beneficially entitled under the “Will of their grandfather Belo Folawiyo and payment to the plaintiffs “of what is found due to them.
“The defendants are the other beneficiaries under the said Will “who are in possession of the assets of the testator and although the “plaintiffs have demanded an account and their share of the assets “in the hands of the defendants, yet the defendants have refused and “still refuse to render any account or give any share of the assets “to the plaintiffs.”
Their claim failed in the Court below and on appeal to this Court their counsel has explained that they do not really want an account and are not seriously claiming a share of past receipts. What they really want is to share, as from the date of the writ, in the future rents and profits of the properties left by their grandfather Belo Foluwiyo. By consent, therefore, the claim was amended to read “The plaintiff's claim is for a declaration that “as from the date of the writ the plaintiffs are entitled to the share “to which their mother would have been entitled if she were alive “in the properties left by Belo Folawiyo.”
The whole case turns upon the construction of the Will of Belo Folawiyo, and this being it is extraordinary that it was never formally put in evidence in the Court below. This omission was remedied by consent in this Court. The will is of such importance that it must be set out in full. It is as follows: -
“This is the last Will and testament of me Belo Folawiyo of “Jagun Tane near Victoria Street, Lagos, Trader, I hereby revoke all “former Wills and Testamentary dispositions heretofore made by me “and declare this to be my last Will, I appoint my son Tijani Folawiyo “of Igbosere Street, Trader and Mustafa Alapafuja of Offin Road, “Trader, Lagos, to be my Executors and Trustees hereinafter called “my “Trustees”. “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.
“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 the rooms in which they are now residing.
“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.
“It is my wish that none of these properties be sold mortgagpd or “in any other way alienated. Should any of my children demand a “Partition or Sale of any of the said properties I desire that he or “she be at once disinherited by my Trustee's of his or her share in my “properties.
“I give the following pecuniary bequests:- “(a) To my son Rufai Folawiyo the sum of Three Guineas. “(b) To Ajatu Ajiwun the sum of Thirty-one shillings and six pence. “(c) To Safu the daughter of Humuliri the Slim of One Guinea. “ (d) To Wulemotu the sum of One Guinea. “(e) To Asatu and Asana my nieces (Daughters of Gbadamosi) who “are now at Oshogbo the sum of Three Guineas jointly.
“(f) To Mustafa Alapfuja (One of my Trustees) the sum of Five “pounds. “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) Muritala and (h) Morinatu. “I give all my wearing apparel to my children in equal shares “except such of shall think fit to distribute among “my nephews and nieces in equal shares. I direct that all my debts “(if any) and funeral and testamentary expenses shall be paid as soon “as conveniently may be after my decease.
“In witness whereof l have hereunto set my hand in Lagos afore “said this 11th day of July, 1929. “Belo Folawiyo My x Mark”. In the Court below it was agreed that the question to be decided was “What is the Mohammedan Law or Custom with “regards to children of a beneficiary taking the share of their “deceased parent under a Will;” but it seems to have been over-looked that the only interest conferred upon the children by the Will was a life interest and no specific evidence was led on either side defining the position when such is the case.
The particular clause which falls for interpretation is:-
“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 herein- “after mentioned in accordance with Mohammedan Law or “Custom relating to Distribution.”
In the Court below argument proceeded upon the question whether Mohammedan Law was to govern the distribution, or local Mohammedan Custom and if Mohammedan Law, what was that low on the point. The learned trial Judge decided that the distribution must be governed by Mohammedan Law and that the law to be applied was Sunni Law and that in accordance with that Law on the authority of the decision of their Lordships of the Privy Council in the case of Moolla Cassim r. Moolla Abdul Raliim (L.R 23 Ind. App: 177 (1905)), the plaintiffs were entirely excluded from the inheritance.
We are of opinion that in coming to this decision the Court below approached the question from the wrong angle, in that it attempted to split up the phrase “Mohammedan Law or Custom”(or as it is misquoted in the judgment “Mohammedan Law and Custom”) into component parts, whereas, in our view, the phrase(whether with the word “or” or the word “and”) should be treated as indivisible and as meaning simply “Mohammedan customary law” or “Mohammedan lawful custom” and we think that both those expressions mean the same thing anti designate the lawful custom or customary law of the particular locality.
We think it unnecessary and obviously not the intention of the testator to impart Mohammedan Law as followed by one particular School of Thought in India; and we know of no authority or principle upon which Sunni Law is to be preferred to Shia Law, which is precisely the opposite on the question at issue.
We hold, therefore, that the interpretation of the Will is to he governed by local Mohammedan Custom, (A reference to page 526 and 527 of Beal’s Cardinal Rules of Legal Interpretation [2nd Ed.:] supports this decision.)
Unfortunately, as has already been pointed out, there was no evidence in the Court below as to what is the “Mohammedan Law or custom” when one of the beneficiaries of a life interest predeceases the testator leaving children him (or her) surviving. We are of opinion therefore that this case must be remitted to the Court below for both parties to be allowed to call evidence upon this point if they wish and for a fresh judgment to be given thereafter.
The appeal is accordingly allowed, the judgment of the Court below, except the order as to costs, is set aside, and it is ordered that the case be remitted to the Court below for additional evidence to be heard and another judgment to be delivered thereafter, the trial Judge directing himself in the manner indicated in this judgment.
It is ordered that the costs of both parties in this Court be paid out of the estate, the appellants, being assessed at thirty guineas and the respondents, at seventeen guineas.