MR. VICTOR AYEMWENRE EIGBE & ANOR v. MR. BENJAMIN IZIBIU EIGBE & ORS.
(2013)LCN/6714(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2013
CA/B/51/2009
RATIO
WHETHER THE FINDINGS OF FACT MADE BY A TRIAL COURT ARE TO BE PRESUMED CORRECT
There is no gainsaying the fact that there is a rebuttable presumption that findings of fact made by the trial court are correct. Therefore where a trial court unequivocally evaluates the evidence and appraises the facts, it is not the business of the court of Appeal to substitute its own views for that of the trial court, particularly when it relates to the demeanour of witnesses and ascribing weight to their evidence which is the exclusive preserve of the trial court who heard viva voce evidence of the witnesses. See Chief S. O. Awoyoolu & Anor. v. Sufiami Yusuf Aro & Anor. (2006) 2 SCNJ 44; (2006) 4 NWLR Pt.971 pg. 471 and Owie v. Ighiwi (2005) 1 SCNJ 181; (2005) 5 NWLR Pt.917 pg.184. Per HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. MR. VICTOR AYEMWENRE EIGBE
2. MR. JOHN EHIMEN EIGBE Appellant(s)
AND
1. MR. BENJAMIN IZIBIU EIGBE
2. MRS. ESTHER EIGBE
3. MISS OMOYEMWEN EIGBE
4. MISS EBAIDE EIGBE
5. MISS EBHOTUNUMEN EIGBE
6. MISS IHOABHIE EIGBE
(The 3rd – 6th Respondents being infants are suing through their mother and next friend Mrs. Esther Eigbe) Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice E. F Ikponmwen of the Edo State High Court of Justice sitting at Benin City, delivered on the 2nd day of October 2008. The facts which led to this appeal are as follows:
The Plaintiffs/Appellants who are sons of late Peter Kadiri Eigbe (the Testator) instituted a suit by a writ of summons dated and filed on 5th February 2001 against the Testator’s brother, wife and children respectively as defendants at the trial court, claiming the following reliefs:
A declaration that the purported WILL dated 18/5/2000 of the late Mr Kadiri Eigbe who died on 7/9/2000 was not properly and legally executed and that the deceased lacked the necessary animus testandi and the WILL is contrary to Esan Native laws and Customs and thereforc the whole WILL is null and void and of no effect.
ALTERNATIVELY:
a. An order setting aside the device in respect of the Bungalow at No.20 Esan Street, Equate, Irrua, Esan Central Local Government Area, Edo State as contained in clause 4 of the said WILL being inconsistent with Esan Native Laws and customs on in heritance.
b. An order setting aside the devise in respect of the House known as No. 43, Murtala Mohammed Way, Benin city, being inconsistent with Esan Native laws and Customs on inheritance.
c. A declaration that the 1st Appellant being the surviving eldest male child of the deceased, he is the person best entitled under Esan customary law of inheritance to inherit absolutely that whole Bungalow at No.20 Esan Street, Equare, Irrua and No.43 Murtala Mohammed Way, the two houses where the deceased lived and died (Igiogbe).
d. An order of perpetual injunction restraining the whole defendants from dealing with the whole estate as covered by the said WILL. Particularly the properties at No. 20 Esan Street, Equare, Irrua and No.43 Murtala Mohammed Way, Benin City or holding themselves out as owners of the said properties.
The Defendants on the other hand counter-claimed against the Plaintiffs for a declaration that the Will is valid having been properly and legally executed and also asked for an order of account and injunction against the Plaintiffs. The Plaintiffs’ case is that the Testator lacks Testamentary Capacity to have made the will at the time he did because he was very ill at the time it was made. Also, they claimed the testator was dependent on others and could not have made the will without outside influence or interference. Witnesses were called and addresses given by both parties.
At the end of trial, the learned trial judge dismissed the Plaintiffs’ claims and gave judgment in favour of the Defendants granting all the prayers sought in their counter claim as having been proved. Dissatisfied with the judgment, the Appellants brought this appeal by a Notice of Appeal filed on 9th October 2008. The Plaintiffs are now the Appellants in this court.
In their Appellants Brief dated 20th June, filed on 21st June 2011 and settled by Mr. Edward Aibangbee Esq., the Appellants raised the following issues for determination by the court:
1. Whether the learned trial judge properly applied (sic) the evidence to the law in arriving at a decision of ruling that the Testator had the mental capacity to make the Will. (Ground 1 and 2)
2. Whether the learned trial judge was right in holding that No. 43, Muritala Mohammed Way, Benin City did not constitute Igiogbe of an Esan man of Edo State. (Ground 3)
3. Whether the learned trial judge was right in granting the reliefs in the counter-claim of the Respondents. (Grounds 4 and 5)
Similarly, in the Respondents’ Brief dated 28th June 2011 and filed 4th July 2011, settled by Mr. L.O Alenkhe Esq. the following issues were formulated for determination in this appeal:
1. Whether the learned trial judge was right to hold that the Will of Late Peter Kadiri Eigbe made on the 18th May 2000 is valid
2. Whether the learned trial judge was right in holding that the bequest at No. 43, Muritala Mohammed Way, Benin City did not constitute part of the testator’s Igiogbe.
3. Whether the learned trial judge was right in granting the reliefs in the counter claim
A cursory glance at the issues formulated by both counsel shows that the issues are essentially the same. I shall therefore adopt the issues as formulated by the Appellants.
The Respondents’ Counsel filed a preliminary objection to this suit alongside the Respondents’ brief in which he contended that this appeal is incompetent and ought to be dismissed ex debito justiciae. The basis of counsel’s objection is that grounds 1-4 of the Appellants Notice of Appeal are of mixed law and facts because the said grounds questioned the trial judge’s evaluation of the evidence tendered at trial.
The Respondent counsel had argued that when a ground is of mixed law and facts, leave of court must first be sought and obtained before the appeal can be filed. He argued that the ground 5 remaining is an omnibus ground incapable of sustaining the appeal. He cited the following cases: Chief N. P. Ugboaja v. Sowemimo (2008) 10 MJSC 105 R 3, R6 at 120 paras D-E, R2 at 118 paras F-G; Ononuju v. A.G. Anambra State (2009) 5 MJSC 46 R6 at 63 paras F-G; and C.B.N v. Okojie & 5 Ors (2002) 9 NSCQR 612 at 617 paras E.
Appellants Counsel in the Reply brief filed on 18/7/2011 argued that this appeal is against the final decision of the Edo State High Court and hence lie as of right and require no leave to bring it notwithstanding that the grounds are of mixed law and facts as alleged by Respondents’ Counsel. Counsel cited the case of Nigerian Bottling Co. Ltd v. Mr Nwaneri (2000) 14 NWLR (pt.636) 30 at 38 paras D-E; Chief of Defence Staff v. Adhekegba (2009) 13 NWLR (Pt.1158) 332 at 356; Nzidee v. Kootu (2007) NWLR (Pt.1014) 99 at 117 paras F-H.
The answer here is fairly straight forward. By virtue of section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999, an appeal shall lie as of right from the decisions of the Federal High Court or a High Court to the Court of Appeal in cases of final decisions in any civil or criminal proceedings before the Federal High Court or a State High Court sitting at first instance. See Chief of Defence Staff v. Adhekegba (2009) 13 NWLR (Pt 1158) 332 at 356 paras E-H.
The arguments of learned Respondents’ counsel shows a misunderstanding of S.241(1)(a) of the 1999 Constitution. Counsel mistook the purport of S.241(1)(a) and S.241(1)(b). S.241(1)(a) talks about final decisions which is the status of this case. S.241(1)(b) is the section that provides for an appeal involving question of law alone not needing leave of court. S.241(1)(b) does not relate to final appeals but interlocutory appeals. Therefore, the implication of S.241(1)(b) is that where an appeal is not a final one but merely interlocutory, there is no need to seek leave of court where it is on grounds of law alone. However, an interlocutory appeal to the Court of Appeal on grounds of mixed facts and law needs the leave of the High Court or Court of Appeal.
This is a final appeal from the High Court of Edo State and can be brought as of right. S.242 then emphasises this court to give leave in deserving cases to the applicant. In the circumstances, the preliminary objection is completely misconceived and it is hereby dismissed.
ISSUE ONE
Whether the learned trial judge properly applied the evidence to the law in arriving at a decision or ruling that the Testator had the mental capacity to make the Will.
On this issue, the Appellants’ Counsel contended that by declaring the Will as valid, the learned trial judge failed to properly apply the evidence adduced by the Appellants and their witnesses. Counsel submitted that for a Will to be valid, there must be animus testandi, that is, the freewill or intention to make a will on the part of the testator. Counsel submitted that an unbalanced mind or someone subjected to an undue influence can never be said to have a free and uninhibited intention to make a Will as an intention is the soul of a Will. Counsel cited Amu v. Amu (2000) 7 NWLR (Pt 663) 164, 170 para. E-F.
Counsel contended that the Appellants adduced an avalanche of evidence in prove of a possible influence on the testator in the making of his Will. Counsel stated that the Appellants in paragraphs 20, 23 and 38 of the statement of claim pleaded pressure on the testator to make the contested Will (Exhibits C and F).
Counsel argued that the evidence of P.W.2 – the 1st Plaintiff and P.W.5 were cogent and compelling enough and were not impeached by the Respondents. Counsel also argued that the Testator did not have a disposing mind since he could not tell the extent of his properties. He urged the court to hold that from the circumstances related by the witnesses, it was clear that there was unnecessary pressure brought to bear on the testator to make the will. He cited Pg. 102 pg.72
of the book “Wills: Law and Practice” by Dr. Kola Abayomi. Counsel urged the court to re-evaluate the evidence which was improperly evaluated by the trial judge and to hold that the undue influence of his wife who benefited from the will was brought to bear on the testator.
Appellants’ Counsel also submitted that the evidence of acts of the Testator during instruction is material and that the evidence of PW3 and PW5 during trial was very strong circumstantial evidence from which strong influences on the Testator and his lack of a disposing mind can be inferred. Counsel submitted that a will must be voluntarily made without pressure from any quarter whatsoever. Counsel submitted that “if a man makes his will in sickness by the over importuning of his wife” the will shall not be good will. Counsel referred to Wills: law and practice supra at page 102.
Learned Appellants’ Counsel argued that the evidence of P.W.3 showed that it was the incoherence of the testator that made him refuse to draft the will until he was satisfied with the latter’s mental capacity. Counsel also argued that the trial court put the erroneous consideration that the Appellants were jealous of their step mother and half-siblings as an issue in disbelieving the evidence of the Appellants at the lower court. The argument is that the court used extraneous sentimental consideration to arrive at the conclusion that the will was validly made.
Counsel submitted that a trial judge has the duty to properly consider the evidence of parties and decide in whose favour the balance of probability lies. Counsel cited the case of Ogunleye v, Oyewole (2000) 14 NWLR (Pt.637) 290 at 302 paragraphs D-E. He stated that civil cases are decided on the preponderance of evidence. He cited Chukwu Construction Company Ltd v. Uwechia (2000) 2 NWLR Pt. 643 92 at 100 para F-G. Counsel submitted that on this issue, the preponderance of evidence given is clearly in favour of the Appellants and urged the court to so hold.
In response to this issue, Mr. L. O. Alenkhe Esq for the Respondent, submitted that the learned trial judge was right in holding that the Testator’s will dated 18th May 2000 is valid. He contended that based on the evidence adduced before the court during trial, the learned trial judge’s holding is sound in law. Counsel submitted that for a Will to be valid, it must meet the conditions required by law in its form and content. He stated that these conditions are as contained in S.7 (1) of the Wills Law, Cap 172, laws of Bendel State 1976 applicable to Edo State and as established in Oshinowo v. Oshinowo (2005) All FWLR Pt.28t, pg. 1698 R2 and Egharevba v. Oruonghae (2001) 11 NWLR pt.724, 318.
Counsel submitted that the onus of proving that a contested Will meets the requirements of law lies on its proponents and that where this is discharged, it shifts to the its opponents. Counsel referred to the case of Okelola v. Boyle (1998) 2 NWLR Pt.539 Pg.533.
Counsel contended that the Respondents as the proponents of this Will led credible and consistent evidence in discharge of this burden which was believed by the trial judge. He stated that rather than destroy the veracity of the evidence of the Respondents, the Appellants’ evidence supported the case of the Respondents in material particular which the Respondents could rely on in prove of their counterclaim. Counsel cited Owoyemi v. Adekoya (2004) 1 MJSC 33 at 54, Paras E-F,
Counsel stated that the cogent and compelling evidence of P.W.7 (the Solicitor who drafted the Will) on pages 82A – 82C of the supplementary record is a direct and positive evidence to the effect that the Testator was perfectly normal and that the trial court rightly attached weight to this evidence.
Counsel further submitted that even the evidence given by the 1st Appellant equally supports the Respondent’s contention that the Testator was mentally sound to write a Will when he stated thus:
“My father then sent for me and appealed to me to make peace with the 1st Defendant and others. That the 1st Defendant was going to play an important role in his burial if he died”.
Counsel argued that only a mentally sound person can give such advice and if it were true, the evidence is inconsistent with the case of the Appellants.
Counsel further contended that the 1st Appellants admission under cross
examination that all the devises and bequests in the Will are that of the Testator is
also evidence that the Testator was mentally sound and stable. Counsel cited the
case of Adebajo v Adebajo (1973) All NL& 297 R3 (reprint)
Counsel argued that a careful perusal of Exhibit F reveals the coherence of the Testator and his ability to name all his beneficiaries and remember money owed him by the 1st Appellant his son and business associates and the contract which he executed but was yet to be paid for. Counsel submitted that these are clear evidence of a sound mind. Counsel also stated that two medical certificates of fitness (Exhibits E and C) also certified the Testator as being mentally fit to write his Will.
Counsel submitted that the allegation that the Testator was instigated by the 2nd Respondent to write his Will is false, unfounded and not supported by evidence on record.
Counsel argued that the evidence of P.W.5 (the 1st lawyer whom the Testator contacted to write the Will) is inconsequential since he was not instructed to write the Will due to failure to agree on a fee with the Testator. His evidence is therefore prejudicial, malicious and lacked credibility. Counsel further submitted that being a privileged information, P.W.5’s evidence is inadmissible by virtue of S.170 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria 1990 and the case of Ashibuogwu v. Bendel State (1988) 1 NWLR Pt 69, Pg. 138; (1988) NSCC 493; R v. Eguabor (1962) 1 All NLR 287 (Reprint).
Appellants’ Counsel in the reply brief contended that the Respondents’ additional/supplementary record transmitted before this court was not properly done as Respondents’ Counsel brought the supplementary record through a motion. Counsel submitted that this method violates Order 8 Rule 6 of the Court of Appeal Rules, 2007.
Counsel submitted that Respondent did not comply with this rule. Hence, reliance cannot be placed on evidence that is not on record as the court and parties to an appeal are bound by only the unchallenged record of appeal transmitted from the lower court. Counsel cited this court’s decision in Ejiogu v. Irona (2009) 4 NWLR (Pt.1132) 513 at 569 para F-H. Counsel submitted that there are ways by which a party to an appeal can challenge the correctness of the evidence on record and having not done so in this case, the Respondents cannot present an argument on evidence that is not on record. Counsel referred to the decision of Bulkachuwa J.C.A at page 529 paras H-A in Kwashi v. Pusmut (2010) 1 NWLR part 1176.
It is clear that the Appellants are challenging the finding of fact by the trial judge that the will was validly made. At Pg. 136 of the Record, the learned trial judge made this findings of fact:
“The proponents of the WILL are in my view, the defendants. They led evidence to prove it is not a fraud. The testator, Peter Kadiri Eigbe signed the WILL in the presence of two witnesses even the 1st plaintiff confirmed his father’s signature on the WILL. There is no evidence of forgery by any proponents of the WILL to make this court set the WILL aside. The proponents of this WILL have a responsibility to prove the due execution of the WILL and in doing this the 1st defendant testified that he signed the WILL in the presence of the testator, their uncle and the lawyer. He is an executor/trustee of the WILL. The lawyer who prepared the WILL also testified as PW2 and tendered the WILL he prepared as Exhibit H. it is my finding that the WILL is duly executed. The testator was ill before his death. Though the WILL was executed on 18/5/2000 he died on 7/9/2000. The 1st defendant gave a vivid physical description of the testator and his testamentary capacity. According to him on the day the Will was executed, the testator was very cheerful and his only problem was his inability to get around as he was confined to a wheelchair. PW7 who prepared the WILL testified that the testator was health and normal. There is no adverse medical report on the mental capacity of the testator.”
Having read the testimonies of all the witnesses on both sides and the reasoning of the learned trial judge, I am convinced that the Appellants who were Plaintiffs at the trial court never said that the testator had diminished mental capacity but that he was unduly influenced by the 1st and 2nd Respondents to make a Will. I cannot find anything perverse in the findings of fact relating to the testamentary capacity of the testator and the fact that the Will was properly executed. The Appellant made much of the evidence of Mr. Erewele, a legal practitioner. However, his evidence relates to a period long before the Will was executed when the testator was at Irrua in the hospital. He did not see the testator at the time the Will was executed. I agree with the learned trial judge that since the 1st Appellant and his mother did not see the testator at the time the testator made the will, they were not in a position to give credible evidence of his reasons or his mental capacity when he did so. None of the medical reports showed a diminished mental capacity. I have to agree with the learned trial judge that the Appellants failed to contradict on a balance of probabilities, the onus on the proponents of the Will, that the testator was of good mental capacity when he made the Will. I believe as the learned trial judge did, the evidence of the testators elder brother and others who were present when he made the Will. I am particularly struck by the opinion of D.W.1 who was 1st defendant at the lower court, that the testator tried as much as possible to dispose of his property among his descendants as fairly as possible irrespective of his feelings for any of them. At P9.97 98 of the record, this evidence was led by D.W.1 (the 1st Respondent) as follows:
“The Will was made on 18/5/2000 when he was very sound and invited a lawyer who drew up the Will for him. I was not present. He had spinal cord injury which made him immobile from waist down. His brains, hands were also sound. He was in a wheel chair. He could read newspapers, journals, magazines and generally sound till the last moment when he died, h’80 was cheerful and stable”, See pages 97-98 of record.
The learned trial judge held thus on Pg.138 of the record in regard to the evidence of the evidence of the 1st Defendant:
1st Defendant is an elder brother to the testator and from his demeanor, he impressed me as responsible and educated and matured gentleman. I do not perceive him as bitter, rather it is the 1st Plaintiff and his Sister PW2 who impressed me as bitter and unforgiving.
This court in Mudasiru & Ors v. Abdullahi & Ors (2011) on the burden of proof of validity of a will held that
“…the burden to prove the validity of a will is on the person that claims it is valid and seeks to rely on it.” See also Johnson v. Maja (1951) 13 WACA 290 and Nsefik & Ors v. Muna & Ors (2002) 10 NWLR pt.1043 Pg.502.
On the question of proof of undue influence, Lewey J.A held in the case of Johnson v. Maja (1951) 13 WACA 290 at 295 thus:
‘For it must be remembered that something far stronger than reprehensible, or even unnatural, conduct in a husband or father is required in these cases. The immoral conduct of the testator, his preference for his mistress, his neglect of his wife and his failure to make adequate testamentary provision for her are far from being sufficient to show that the execution of his will was obtained by Agnes Jokotade’s undue influence. … it does not, however, amount to undue influence, as I understand the law; nor would it necessarily do as – appellants’ Counsel has submitted – even if Jokotade had been shown to have persuaded the testator to make a will on these lines. For in the words of Sir James Hannen, P., in Wingroove v. Wingroove (5) “to be undue influence in the eye of the law, there must be – to sum it up in a word – coercion… because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend be give his properly to another, though you may disapprove of fie act yet it is strictly legitimate in the sense of its being legal, It is only when the will of the person who fumes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence”.
In this case even if we believe that the 1st and 2nd Respondents persuaded the testator to make the Will, unless there is clear evidence that he was coerced; the Will is valid.
There is no gainsaying the fact that there is a rebuttable presumption that findings of fact made by the trial court are correct. Therefore where a trial court unequivocally evaluates the evidence and appraises the facts, it is not the business of the court of Appeal to substitute its own views for that of the trial court, particularly when it relates to the demeanour of witnesses and ascribing weight to their evidence which is the exclusive preserve of the trial court who heard viva voce evidence of the witnesses. See Chief S. O. Awoyoolu & Anor. v. Sufiami Yusuf Aro & Anor. (2006) 2 SCNJ 44; (2006) 4 NWLR Pt.971 pg. 471 and Owie v. Ighiwi (2005) 1 SCNJ 181; (2005) 5 NWLR Pt.917 pg.184.
The position of law is most apt in the circumstances of this case where the witnesses on both sides gave copious evidence which contradict each other. Unless the conclusion of the trial judge is perverse, I am not at liberty to disturb them. This is moreso that after reading the records and considering the arguments of the Appellants Counsel, I am of the view that the Appellants have not displaced the presumption that the findings of fact relating to the due execution of the Will is correct. See Onu v. Ibrahim Idu and Ors (2006) 6 SCNJ 23; (2006) 12 NWLR Pt.995 Pg. 657.
With regard to the arguments relating to the additional record, it is apt to look at the relevant rules of court. Order 8 r 5 of the Court of Appeal Rules 2011 states as follows:
“Where the respondent considers that there are additional records, which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records to compile and transmit to the court such record to be known as the additional records of appeal.”
Order 7 r 10 provides for extension of time to do what ought to be done. The motion filed by the Respondent was for extension of time to file supplementary record which is allowed by the rules. It was not an attempt to impugn the records transmitted by the Appellants. The argument is misconceived. In the circumstances, the first issue is resolved against the Appellants.
ISSUE TWO
Whether the learned trial judge was right in holding that No. 43, Muritala Mohammed Way, Benin City did not constitute Igiogbe of an Esan man of Edo State,
On this issue, Appellants’ Counsel contended that the Will, particularly clause 4, violates section 3(1) of the Wills Law Cap 172 Laws of the Defunct Bendel State 1996 in that it did not devise the Testator’s Igiogbe to the 1st Appellant being the Testator’s 1st Son as demanded by custom but rather bequeathed same to the 3rd Respondent.
Counsel submitted that by virtue of this provision the capacity of a Testator to make a bequest in a Will is subject to the extent permitted by customary law applicable to the testator, that is, a bequest must not be inconsistent with customary law. Counsel cited Odjegba v. Odjegba (2004) 2 NWLR (PT.858) 566 at 582, para. C-D, F-G. Counsel contended that having been an Esan man, the said Wills Law was applicable to the Testator. Counsel stated that under the Esan customary law which is derived from the Benin tradition, the Igiogbe must be devised to the 1st male son of an Esan man upon his death whether or not he died intestate.
Appellants’ Counsel argued that according to Esan Custom, Igiogbe is the house or houses where an Esan man lived and died. Counsel contended that No. 43, Muritala Mohammed Way, Benin City was the Igiogbe of the Testator and that the Testator only stayed at No. 20, Eson Street, Irrua whenever he went home. Counsel stated that the Appellants gave evidence and called witnesses in proof of this fact. He referred to the 1st Appellants evidence and that of P.W.6 at pages 66, 80-82 of record respectively. Counsel stated that in further proof of their case, Appellant called one Chief Eromosele (P.W.9) who testified on behalf of the Onogie of Irrua before erstwhile Justice R. I. Amaize who was formerly handling the case.
Counsel stated that the controversy in this case is whether the Igiogbe of an Irrua man must be located in Irrua. Counsel argued that the testimonies of P.W.6 and especially that of P.W.9 who testified for the traditional ruler (Onogie) succinctly proved this issue by customary evidence before the trial court but their evidence was ignored and or omitted by the trial judge.
Counsel submitted that by section 14 (1) of the Evidence Act, the existence of a custom can be proved either by it being judicially noticed or by evidence and this burden lies on the person alleging the existence of the custom. Counsel cited Muojekwu v. Ejikome (2000) 5 NWLR (pt 657) 402, 4gg-494, para H-A. Counsel submitted that in this case, the Appellants gave sufficient evidence through P.W.6 and P.W.9 but the trial judge failed to evaluate same. Counsel submitted that since the Respondent other than denying this assertion in their statement of defence, did not present any customary evidence to contradict their evidence, their case has been proved on the preponderance of evidence. Counsel also cited the case of Olowu v. Olowu (1985) 3 NWLR (Pt 13) 372, where the house of the Testator who was not a Bini man but was living in Benin was declared Igiogbe. Counsel thus submitted that the learned trial judge was wrong in not declaring the clause 4 of the Will as being inconsistent with the Wills Law of the defunct Bendel State 1995. In reply to this issue, the Learned Respondents’ Counsel submitted that the trial judge was right in holding that the bequests made in clause 4 of No. 43, Muritala Mohammed way, do not constitute part of the testator’s Igiogbe and hence, the Testator is not compelled by custom to devise same to the 1st Appellant.
Counsel contended that under Esan custom, the Igiogbe which in Esan is called “Ijietokun” or “Ijiogbe” refers to the first house of an Esan man which is usually situate in his home town and not where he subsequently built. Counsel affirmed the custom that it cannot be bequeathed to any person other than the 1st son and stated that it cannot be disposed of but must remain the ancestral home.
However, Respondents’ Counsel contended that the only Igiogbe of the Testator is the house situate at No. 20, Eson Street, Eguare lrrua. He cited Oseni v. Banjulu (2009) 12 MJSC 30 R1; (2009) 18 NWLR pt.1172 pg. 164.
Counsel further contended that where a testator clearly and unambiguously indicated his Igiogbe, such house or building remains the Igiogbe. Counsel cited the case of Egharevba v Oruonghae (2001) 11 NWLR pt. 724 pg.318.
Counsel argued that though not entirely the same, the concept of Igiobe in Esan is similar to that of the Benin customary law. In Benin it refers to the house(s) where a man lived, died and was buried and not where he sojourns and has not assumed an extra territorial application. Counsel referred to the case of Egharevba v. Oruonghae supra where the court of Appeal per Ibiyeye, JCA held that: “A Bini man can have only one lgiogbe which must be situate in Benin Kingdom”
Counsel submitted that Exhibits C and F as well as the above authority constitute overwhelming evidence that the Testator did not intend No. 43, Murtala Mohammed way, Benin City, which is outside his place of origin to be part of his Igiogbe.
Counsel argued that the contention of the Appellants that the Igiogbe can be situated outside the place of origin is misconceived and is not representative of the true position of Esan Customary law on Igiogbe. Counsel contended that the evidence of P.W.5 and P.W.9 whose evidence was admitted through a motion are not tenable. Counsel contended that their evidence was not cogent nor compelling enough to counter the Respondents’ evidence on this issue. Counsel argued that the evidence of P.W.5 is a ridicule of the concept of Igiogbe. Counsel further contended that there was nowhere in the evidence of P.W.9 where he stated that an Esan man can have Igiogbe in Ishan and at the same time have Igiogbe outside Ishan but that P.W.9’s evidence refers to a case where a man has only one Igiogbe which is outside Ishan.
Learned Appellants’ Counsel in the reply brief on this point urged the view that the evidence of the Appellants’ witnesses were not properly evaluated by the trial court.
Counsel submitted that any decision given without proper evaluation of evidence cannot stand. Counsel submitted that decisions must be based on a holistic consideration of the totality of the evidence given in a case in order to determine whether the evidence before the court support a party’s case. Counsel cited the case of Lagga v. Sarhuna (2008) 16 NWLR (Pt.1114) 427 paras A-G. Counsel urged the court to resolve the issue in favour of the Appellants.
This second issue also turns on the finding of fact by the trial judge that the house at No. 43, Muritala Mohammed Way, Benin City is not part of the Igiogbe of the Testator. Having held that the Will was properly executed, the next step is to determine whether there was any disposition therein contrary to the Will Law of Bendel State, which was the applicable legislation when the cause of action arose. S.3(1) of the Wills Law provides as follows:
“Subject to any customary law relating thereto, it shall be lawful for every person to devise off, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either in law or in equity at the time of his death and which if not so devised, bequeathed and disposed of would upon the heir at law of him, if he became entitled by descent” of his ancestornor upon his executor or administrator”.
The alternative relief sought by the Appellants is a declaration that the bequest of the house at No. 43 Muritala Mohammed Way, Benin City was part of the testator’s Igiogbe and thus cannot be bequeathed to anyone else except the eldest son.
It has been held in a plethoral of authorities on this point that a person can make a will, but the devise, bequest or disposition therein shall not be inconsistent with the established customary law and shall at any rate be governed by the relevant customary law. The phrase “relating thereto” as used in the law relates to the customary law in respect of the devise, bequest or disposition. See Lawal-Osula v. Lawal-Osula (1995) 10 SCNJ84, (1995) 3 NWLR Pt.382 Pg. 128; Idehen v. Idehen (1991) 6 NWLR R.198 pg.382 at pg. 433 and 494.During the trial, the Appellants called P.W.9 who testified as a representative of the Onogie of Irrua as to the applicable customary law relating to the Igiogbe of an Ishan man. I have to agree with learned Appellants’ counsel that the evidence of a traditional ruler is the most powerful traditional evidence that can be given to prove a custom. P.W.5, a chief in the town who represented the King of the town, gave evidence thus at Pg. 87A and 87B of the record:
“I am the Odionwere of that Quarters. I am Chief Omoinileon of Irrua. I am in the tenth position amongst the chiefs of Irrua. I am very conversant with the native law and custom of Imua. Under the Irrua custom or tradition, upon the death of an Irrua man and upon the performance of his burial rites by the eldest son, the latter succeeds to the property left behind by the deceased. The concept of “Igiogbe” is known in Irrua tradition and it means the house where the Irrua man lived and died. It is inherited by the eldest son of the deceased… It is where a person lived that constitutes his Igiogbe and not necessarily in Irrua”.
On the other hand, 1st Respondent as 1st Defendant at the trial Court gave evidence as follows on P9.94 of the record:
“My late brother’s house, that is, his ancestral home where he was buried is his first house at No. 20, Esan Street, Eguare Irrua, a storey building, Any other house is not regarded as Igiogbe by Esan Custom”
Clause 3 of the Will shows where the testator regarded as his Igiobe. It is stated as follows:
“I give a storey building and a boys quarters at No. 20, Esan Street, Eguare Irrua (my Igiogbe) where I shall be buried after my death to victor Ayemere Eigbe, my first son absolutely”.
In Idehen v. Idehen where the Igiogbe in Bini Custom was judicially noticed, Karibi-whyte JSC at Pg. 421 of the NWLR held as follows:
“The evidence of the customary law is that the eldest son of the testator is entitled without question to the house or houses known as Igiogbe, in which his father lived and died”
At the trial, the court held as follows at pg. 141 of the record:
“In the instant case, the plaintiffs have the onus to prove that the Benin concept of Igiogbe is the same as Irrua concept. I find that there was no evidence of a 2nd burial as is required before inheritance of Igiogbe in Bini custom. The fact that the testator defined his Igiogbe leaves one in no doubt. The evidence of an elder PW7 on the custom of the testator who was from a different quarter from him can not be regarded as cogent. The plaintiffs had in their pleadings, paragraph 35(a) thereof, specifically stated that for customary law or traditional evidence they will call as witness, the Onogie of Irrua (or his representatives) but failed to do so and no explanation was given for the failure.”
I have made a thorough consideration of this court’s decision in Egharevba v. Oruonghae supra. The facts are almost on all fours with the facts of this case. This court held unanimously that a Bini man can have only one Igiogbe which must be located in Benin Kingdom. I think what was of most consideration in that case as in this case was the fact the testator gave the house in his home town to his eldest son and being regarded as his ancestral home, was thus regarded as his Igiogbe as opposed to another house in another city where he had at one time lived.
In the case under review, I am convinced that the testator categorically identified his Igiogbe by the clause 3 of his Will. Having held that the Will is duely executed, the testator having stipulated the house he considered to be his Igiogbe, situated in his ancestral home, I have to arrive at the conclusion that the house in Irrua is the Igiogbe of the testator. In Idehen v. Idehen, the Supreme Court Justices accepted the concept of Igiogbe and the impropriety of its being devised to anyone else but the eldest male son because it was the house which represented the family home or ancestral home where the eldest son was supposed to reside and preside over the whole family. I agree with the learned Respondents’ Counsel that the concept that there can be multiple houses in different geographical areas or cities can constitute Igiogbe would be a ridiculous interpretation of the Igiogbe custom.
I agree with learned Respondents’ Counsel that the cases of Olowu v Olowu and Idehen v. Idehen cited by Appellants’ Counsel supra are inapplicable to the facts of this case. In Olowu v. Olowu supra, the issue before the court was not the determination of Igiogbe but rather the determination of the applicable Customary Law to the distribution of the estate of the Testator. In Idehen v. Idehen, the Testator, a Benin man recognised two houses in the same location in Benin City as his Igiogbe and bequeathed same to his first son but with a proviso that should the latter predecease him, the bequest should pass to his grandson. It was on that basis that the couRt recognised the two houses as Igiogbe which cannot be bequeathed to the grandson. In the circumstances, the alternative relief sought by the Appellants at the lower court cannot be granted and was rightly refused by the learned trial judge.
This issue is resolved against the Appellants.
ISSUE THREE
Whether the learned trial judge was right in granting the reliefs in the Counter-claim of the Respondents Appellants’ Counsel contended that the learned trial judge gravely erred in law when she granted the reliefs in the Respondents counter claimed by declaring the Will as valid and giving an order for account by the Appellants.
Having resolved issues 1 and 2 against the Appellants, in essence, the findings of fact made by the trial judge have been affirmed. The consequential orders sought by the Respondents as counter-claimants to the effect that the Appellants must render accounts is a natural progression from the findings and orders made by the trial judge which are hereby affirmed by me. The appeal is without merit and is hereby dismissed. The judgment of the Edo State High Court in Suit No. B/77/2001 delivered on 2nd October, 2008 is hereby affirmed. N50,000 costs for the Respondents against the Appellants.
AYOBODE OLUJIMI LOKULO.SODIPE, J.C.A.: I have before now; read the draft of the lead judgment prepared by my learned brother, OGUNWUMIJU, JCA. My lord has dealt with the Issues in the appeal most incisively, and I have nothing to add thereto.
In the circumstance, I adopt the lead judgment as mine. Accordingly, I too find the appeal to be unmeritorious and it fails. The judgment delivered in this matter on 2/10/2008, by the lower is affirmed. I abide by the order relating to costs made in the lead judgment.
TOM SHAIBU YAKUBU, J.C.A.: The draft of the judgment, by my Lord HELEN MORONKEJI OGUNWUMIJU, JCA., was made available to me before now. I perused it. I found myself in complete agreement with the very lucid reasoning and conclusion reached by his Lordship that this appeal is without merits and must be dismissed.
I have nothing useful to add to it. Hence, the judgment of the learned trial judge – E. F. Ikponmwen of the Edo State High Court of Justice Benin City, delivered on 2nd October, 2008, is also affirmed by me. So, the appeal is dismissed.
I, too award N50,000.00 costs to the respondents against the appellants.
Appearances
Mr. Edward Aibangbee Esq.For Appellant
AND
Mr. L.O Alenkhe Esq.For Respondent
