MONICA OZOMARO & ORS v. MICHAEL OZOMARO & ANOR (2014)

MONICA OZOMARO & ORS v. MICHAEL OZOMARO & ANOR

(2014)LCN/7049(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of March, 2014

CA/B/336/2010

RATIO

WHETHER A PROPERTY BELONGING TO A MAN WHO WAS SUBJECT TO CUSTOMARILY LAW AND DIED INTESTATE MAY BE DEEMED VESTED IN THE DECEASED FAMILY AS A WHOLE

Where a property belonging to a man who was subject to customary law, died intestate and there was no sharing of his property, the property are deemed vested in the deceased’s family as a whole until it is partitioned between the members. It is the partitioning of property that confers individual rights on the family members. See Yesufu v. Adama (2010) 5 NWLR (Pt. 1188) pg 552. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

POSITION OF THE LAW ON WHETHER A WILL MAY BE DEEMED A DOCUMENT OF TITLE

Basically or essentially a Will is a written instrument or document executed in accordance with the requirements or formalities put in place by relevant statutes or laws whereby a person makes a disposition of his property (real and/or personal) and which takes effect after the death of the maker. It would appear that it is against the backdrop of what a Will is, that the position of the law is that a Will is not a document of title. Therefore that a Will no matter the age, can only transfer whatever title its maker or the testator had, see the decision of this court in FALOMO v. ONAKANMI (2005) 11 NWLR (Pt. 935) 126. PER AYOBODE OLUJIMI LOKULO-SODIPE, 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. MONICA OZOMARO
2. OMOEFE OZOMARO
3. MRS. OROWO OMORODION
(Sued as Executors of the Disputed Will of late Dr. Christian Ozomaro) Appellant(s)

AND

1. MICHAEL OZOMARO
2. HON. P. C. P. EZEANI
(Sued as an Executor of the Disputed Will of late Dr. Christian Ozomaro) Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 23/3/2010 by the High Court of Delta State holden in Ozoro Judicial Division (hereafter simply referred to as “the lower Court”) presided over by Hon. Justice E. I. Oritsejafor (hereafter simply referred to as “the learned trial Judge”). In its judgment, the lower Court found the claims of the Plaintiff (now 1st Respondent) before it to have succeeded in part and consequently made some declarations and an order of perpetual injunction in favour of the 1st Respondent.

The instant case was contested by all the parties on record on pleadings which they filed and exchanged. Learned counsel for the 1st Respondent in cataloguing the pleadings upon which the case was contested before the lower court made reference to a 2nd Amended Statement of Claim filed by the 1st Respondent and which is on pages 10 – 16 of the records. Suffice it to say that it is an Amended Statement of Claim that the lower court reckoned with in its judgment. Thus it re-produced the reliefs claimed by the 1st Respondent in his Statement of Claim and as re-produced in paragraph 32 thereof.
Hence, the reliefs sought by the 1st Respondent in the instant action as set out in the judgment on pages 101 – 104 of the records are:-
“1. A DECLARATION that the document dated the 15th day of January, 2002 purporting and/or pretending to be the will of Dr. Christian Olufemi Ozomaro (“The Deceased”) who died on the 15th day of June, 2004 is a forged document, invalid, null, void and of no effect whatsoever, as same is contrary to the Customary Law and Tradition of the Isoko People of Delta State.

2. A DECLARATION that in accordance with Isoko Customary Law of succession and Inheritance, the Plaintiff as the eldest son of the Deceased (late Dr. Christian Olufemi Ozomaro); succeeds exclusively at all events to the house lying and situate at and known as No. 16 Agbamu Street, Ugborikoko, Bendel Estate (now known as DDPA Estate) Effurun in Uvwie Local Government Area of Delta (sic) State in addition to the lion’s and/or disproportionately large share of the remaining part of the Deceased’s Estate which the Plaintiff shares with the other children of the Deceased in accordance with Isoko Customary Law of Succession and Inheritance.

3. AN ORDER directing the defendants by themselves and their privies to render to the plaintiff the account of the rent and other income and proceeds from the real and personal properties of late Dr. Christian Olufemi Ozomaro (the deceased) controlled, managed and administered by the defendants from 15th June, 2004 till the determination of this suit.

4. A DECLARATION that the plaintiff, the 2nd and 3rd defendants are entitled to a grant of a letter of administration of the Estate of the deceased to administer the estate as follows:
(1) The Deceased’s dwelling house at No. 16, Agbamu Street, Ugborikoko Bendel Estate, (now known as DDPA Estate) Effurun, in Uvwie Local Government Area of Delta State to be exclusively given to the plaintiff (the eldest son of the Deceased) being the dwelling house (Ughen) of the deceased before his death.

(2) The deceased’s half plot of land measuring approximately 70 feet by 200 feet (i.e. 70 feet by 100 feet) situate, lying and being at Urumodu Quarters, Ozoro in Isoko North Local Government Area of Delta State to be given to Master Eguolo Ozomaro.

(3) The deceased’s plot of land measuring approximately 120 feet by 60 feet with a foundation thereon situate, lying and being at Shibiri Town in Ojo Local Government Area of Lagos State to be given to Mr. Omoefe Ozomaro.

(4) The deceased’s plot of land measuring approximately 100 feet by 50 feet situate, lying and being at St. Mary’s Clinic Road, off Airport Road, Ugborikoko, Effurun Town in Uvwie Local Government Area of Delta State to Mrs. Orowo Omorojor (Nee Ozomaro).

(5) The deceased’s half plot of land measuring approximately 70 feet by 200 feet (i.e. 70 feet by 100ft) situate, lying and being at Urumodu Quarters in Isoko North Local Government Area of Delta State to be given to given to Mr. Michael Orojere Ozomaro.

(6) The deceased’s house at No.12 Esivode Street, Okumagba Avenue Warri, Delta State consisting of five (5)flats to be shared as follows:

(a) The four (4) bedroom flat upstairs to be given to Miss Okeoghene Ozomaro.

(b) The three (3) bedroom flat (front) upstairs to be given to Miss Majiro Ozomaro.

(d) The three (3) bedroom flat (back) downstairs to be given to Mis Emefeluo Ozomaro.

(e) The self-contain downstairs to be given to Master Eguolo Ozomaro.

(f) the deceased’s father’s house along NDC Road, Opposite AGGS, Ozoro in Isoko North Local Government Area of Delta State to be used generally by all the members of the Ozomaro family strictly for residential purposes only as it is the family’s house.

7. The residue of both the real and personal estate of the deceased to be shared among all the children of the deceased while the plaintiff has the lion’s and/or the disproportionately large share of the residue of the deceased’s personal and real estate.

5. PERPETUAL INJUNCTION restraining defendants and their privies from disturbing, molesting, harassing, encroaching into, trespassing or otherwise preventing the plaintiff from enjoying his own share of the estate/properties of the deceased”

The 1st Respondent who claims to be the eldest son of Dr. Christian Olufemi Ozomaro (hereafter simply referred to as “the testator”), by the instant case, in the main is challenging the Will made by the testator. The testator is said to be an indigene of Ozoro and the 1st Respondent specifically pleaded reliance on the Isoko customary law of succession and inheritance in the proof of his case. Though the Appellants and the 2nd Respondent who were sued jointly as executors of the disputed Will filed separate pleadings (in that the 2nd Respondent filed a separate pleading), they all asserted the validity of the Will of the testator and propriety of the devises made therein by the testator.

Parties called witnesses and tendered documentary evidence at the hearing of the case. The 1st Respondent testified in his own behalf and called four other witnesses. The Appellants called one witness and the 1st Appellant also testified in her own behalf. The 2nd Respondent testified in his own behalf and called no witness. After evaluating the totality of the evidence before it, and having had the benefit of the addresses of the parties, the lower court entered judgment for the 1st Respondent in the following manner:
“I hold that the plaintiff’s claim succeeds in part and hereby DECLARE:
“1.(i) That the devise contained in clause 4 of the will of Dr. Christian Olufemi Ozomaro made on the 15th day of January, 2002, is void on the ground that the same was made in breach of and contrary to the customary law and tradition of the Isoko people of Delta State.

(ii) That the devise contained in clause 10 of the will of Dr. Christian Olufemi Ozomaro made on the 15th day of January, 2002, is void on the ground (sic) the house the subject matter of the devise does not belong to the said Dr. Christian Olufemi Ozomaro.

2. That in accordance with Isoko customary law of succession and inheritance, the plaintiff as the eldest son of the deceased Dr. Christian Olufemi Ozomaro succeeds exclusively to the house lying and situate and known as No. 16 Agbamu Street, Bendel Estate (known as D.D.P.A. Estate), Ugbodkoko, Effurun, Delta State.

3. I hereby make an order of perpetual injunction restraining the defendants and their privies from disturbing, molesting, harassing or otherwise preventing the plaintiff from enjoying the said house (Ughen) of his deceased father at No.16, Agbamu Street, Bendel Estate (known as D.D.P.A. Estate), Ugborikoko, Effurun, Delta State.

No order as to costs.”

Being aggrieved with the judgment of the lower Court the Appellants lodged the instant appeal against the same by a Notice of Appeal dated 11/5/2010 and filed on 12/5/2010. The Notice of Appeal contained five grounds of appeal. The relief which the Appellants seek in this Court is “An Order allowing the appeal and setting aside the Judgment delivered on the 23rd day of March, 2010 by the Honourable Justice E. L. Oritsejafor sitting in the High Court of Justice, Ozoro, Delta State leading to this appeal.”

In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument dated 27/10/2010 and filed on the same date was settled by Patrick Oganwu. 1st Respondent’s Brief of Argument dated 24/11/2010 and filed on the same date was settled by John Okoriko Esq. The appeal was entertained on 17/1/2014 and learned lead counsel respectively for the parties adopted and relied on the Brief of Argument of their clients as hereinbefore identified in aid of their positions in the appeal. Furthermore, learned lead counsel for the Appellant citing Order 18 Rule 9(4) of the Rules of this Court, urged the Court to deem the 2nd Respondent to have duly argued the appeal on the basis of his Brief of Argument dated 30/12/2011 and filed on 2/2/2012 but deemed to have been properly filed and served on 30/10/2012.

Learned counsel for the Appellants formulated four issues for the determination of the appeal in the Appellants’ Brief of Argument. They read thus:-
“1. Whether by virtue of the Isoko Customary Law of the inheritance and succession (sic), late Dr. Christian Ozomaro was not exclusively entitled to the house contained in clause 10 of the disputed will upon the death of his father, late Pa. Vincent Ozomaro? (Ground 2 of the Notice of Appeal).

2. Whether the learned trial judge was right when he held that the device contained in clause 4 constitutes the “Ughen” of late Dr. Christian 0zomaro? (Grounds 1 & 4 of the Notice of Appeal)

3. Whether the doctrine of resulting trust does not apply where sufficient evidence abound to show that the 1st Defendant (co-appellant) contributed to the building of the device contained in clause 4 of the disputed Will? (Ground 3 of the Notice of Appeal)

4. Whether the reliefs granted the 1st Respondent by the trial Court is in tandem with the 1st Respondent’s claim before the trial Court? (Ground 5 of the Notice of Appeal)”

Learned counsel for the 1st Respondent formulated three issues as arising for determination in the appeal in the party’s Brief of Argument. They are: –
“1. Whether, on the well entrenched legal principle/maxim of nemo dat quod non habet, the Deceased could, by the disputed Will/testamentary disposition will out a property which does not belong to him.

2. Whether, from the totality of the overwhelming evidence before the Court below, the Isoko Customary Law of succession and Inheritance which exclusively gives the dwelling house (Ughen) of a deceased man to the eldest son has extra-territorial application for the 1st Respondent to be exclusively entitled to dwelling house of the deceased herein lying, being and situate at No. 16 Agbamu Street, Ugborikoko Bendel Estate, (now known as DDPA Estate) Efturun, in Uvwie Local Government Area of Delta, a place outside Ozoro town where the deceased permanently lived and died.

3. Whether from the totality of the pleadings and evidence before the Court below, the reliefs granted the 1st Respondent by the Court below are in tandem with the 1st Respondent’s claims in his Amended Statement of Claim.”

No Issue for the determination of the appeal was formulated in what the 2nd Respondent titled a Brief of Argument. Indeed, the 2nd Respondent expressly adopted the Appellants’ Brief of Argument as his submissions in the appeal and concluded by urging this court to allow the appeal.

There are authorities galore as to the position a respondent in an appeal, should maintain. It is for him to defend the judgment appealed against. This is because a respondent who has not appealed is deemed to have no grouse or complaint with the judgment in question. This again is against the backdrop of the position of the law that an appeal is the only way of having whatever a superior court such as the lower court has done wrong in its judgment corrected. Therefore before a party can be heard to urge an appellate court to allow an appeal, the party in question must have a valid appeal in which he has successfully challenged what the lower court has done wrong to warrant the reversal of the judgment of the lower court thereby allowing the appeal. The 2nd Respondent was sued as a Defendant in the very action in which the Appellants were sued as Defendants. Indeed all the defendants before the lower court having had their names set out were sued as executors of the disputed Will of late Dr. Christian Ozomaro. The judgment in the instant case was entered against all the Defendants apparently in the capacity in which they were sued (i.e. as executors of the disputed Will of the testator). I would not pretend to know what strategy the Appellants are up to by three of them (as executors of the disputed Will) now appealing against the judgment in favour of the 1st Respondent (who took all the four executors of the disputed Will to court); and one of their own (i.e. the 2nd Respondent). The strategy smacks of a confused comprehension of the law by learned counsel for the Appellants. Suffice to say that if the 2nd Respondent (who was the 4th Defendant in the instant case instituted by the 1st Respondent) is aggrieved with the judgment of the lower Court, he should have lodged his own appeal against the same, as the Appellants on record would appear not to want him with them as an appellant. Anything short of this, the 2nd Respondent cannot but support the judgment of the lower court. Against the backdrop of all that has been said, the purported Brief of Argument of the 2nd Respondent supporting the instant appeal must necessarily be discountenanced and is hereby discountenanced for the purpose of determining this appeal.

APPELLANTS’ ISSUE 1:
Dwelling on the issue, learned counsel for the Appellants submitted that the 1st Appellant made out her defence to the case of the 1st Respondent through DW1 and made references to portions of the evidence of the said witness on the printed records considered to be relevant. Having also referred to portions of the evidence of the 1st Appellant on the printed records, learned counsel submitted that the testator, was exclusively entitled to the house at NDC Road, Ozoro (hereafter simply referred to as “the NDC Road house”) as the evidence he had referred to, established the fact that the testator built the same. He also submitted that the testator was exclusively entitled to the NDC Road house, in accordance with the Isoko customary law of succession and inheritance. This is because parties are agreed concerning the manner in which the “Ughen” of a deceased Isoko man should be inherited and as there was ample evidence that the testator lived in the house having apparently inherited it and hence his living in it. That by operation of the Isoko customary law of inheritance and succession, when a man dies, his first son automatically inherits the house his deceased father lived and died upon performing the burial rites. In other words, the ‘Ughen” of a deceased Isoko man is not one of the properties to be shared by the family rather it devolves automatically on the eldest surviving son. That it is clear from the evidence before the lower court that the testator was the 1st son of his father and that at all material time before his death, the testator was in actual occupation of the NDC Road house in accordance with Isoko customary law of succession and inheritance. Also, that there was evidence that the said house was built from DPC level to completion by testator. In the light of these facts, learned counsel submitted that the testator was exclusively entitled to the NDC Road house. That inheritance of “Ughen” in Isoko land is not determined by family decisions but the customary law of Isoko land. Stating that the testator was alive as at the time his father, Vincent Ozomaro died and was buried at Jos, learned counsel submitted that the implication by the customary law of Isoko land is that the testator succeeded exclusively to the NDC Road house. That the family of the testator could not have transferred the house in question the younger brother upon his demise. That such a situation would amount to disturbance of the customary law of succession and inheritance in Isoko land. That a property forms part of the estate of a deceased person once the property is exclusively divested to the person. Learned counsel submitted that having regard to the pool of evidence before it, the lower court ought to have held that the NDC Road house was exclusively owned by the testator, in accordance with the Isoko customary law of inheritance and succession. That the mere reference by the testator to the said house as his father’s house in the Will does not alter the position at law. This is particularly so as the customary law of a people is the mirror of accepted usage which is not subject to the whims and caprices of a particular individual and the case of Yusuff v. Dada (1990) 4 NWLR (Pt. 146) 657 at 659 was cited in aid. That in determining the beneficiary of an estate under the customary law of a people, recourse is not to be had to the terminology employed by a testator in drafting his/her Will but rather the court should look at the very nature of the property in question. That if the court is satisfied that such property by its very nature qualifies as an “Ughen” as is the case in the instant situation, the court has a duty to ignore the wordings of such Will and give it its customary nomenclature. This court was urged to hold that the testator was exclusively entitled to the NDC Road house prior to his death in accordance with the customary law of inheritance and succession in Isoko land.

APPELLANTS’ ISSUE 2:
Dwelling on this issue, learned counsel for the Appellants accused the lower court of missing the point as to what constitutes “Ughen” in Isoko land when it held that the venue where service of songs took place is a factor in determining what constitutes “Ughen” in Isoko land. This is more so as trial court never paid particular attention to the salient issue of territoriality of the “Ughen” of a deceased Isoko man. The lower court was accused of using a non-existent extra-territorial Isoko custom of “Ughen” outside Isoko land when there was no evidence before it to show that Isoko custom of what constitutes “Ughen” applies extra-territorially. That the extra-territorial application of the custom is one that ought not to have been inferred from the general custom of succession and inheritance in Isoko land. It is the stance of learned counsel that customary law is a question of fact and is to be proved by the party asserting it and the case of Abiodun v. Erinmilokun (1961) All NLR 294 (old edition) was cited in aid. He submitted that the 1st Respondent who had the duty of proving this unique and novel custom, failed to call evidence in the proof of the same and yet the lower court premised its judgment substantially on the presupposed existence thereof. Having reiterated his stance regarding “Ughen”, learned counsel submitted that it was not true that the NDC Road house is a family house as claimed by the 1st Respondent as the “Ughen” which is exclusively inherited by the first son of a deceased Isoko man cannot double as a family house owned by all members of the family. He contended that the testator can validly will the property contained in clause 4 of the Will as same is not in conflict with the customary law of succession and inheritance of Isoko people. He stressed that where it is shown as in this case that a testator has two houses, one in his ancestral home and the other outside his ancestral home, the court ought to take the one in his ancestral home as the principal house (Ughen) particularly when it was clearly shown that the testator lived in the house in his ancestral home before he died. That there can be only one “Ughen” of a deceased Isoko man (if any).

APPELLANTS’ ISSUE 3:
Learned counsel for the Appellants dwelled on the question of resulting trust under this issue. In the main it is the stance of learned counsel that the 1st Appellant having spent her own money on the house at No. 16 Agbamu Street, Delta Estate it cannot be said that the testator exclusively owned the same. Indeed, that the testator admitted that the 1st Appellant contributed to the acquisition of the property financially by Clause 11 of the Will. That this being the case, the property contained in clause 4 of the said Will was contemplated by the testator as one of the properties for which the 1st Appellant made financial contributions and therefore ought to be a joint owner of the said property. Learned counsel accused the lower Court of failing to evaluate the entire provisions of the Will to determine whether the testator acknowledged the contributions of the 1st Appellant to the house at No. 16 Agbamu Street, Effurun. That the failure in this regard, has led to serious miscarriage of justice. This court was urged to look at the entire provisions of the Will particularly Clause 11 in arriving at a just resolution of this issue. Also stating that the lower Court admitted in the judgment that the 1st Appellant made financial contributions to the acquisition of the house at No. 16 Agbamu Street, Effurun, learned counsel submitted that it was wrong for the court to hold that since the title deeds of the said property bears the name of the testator alone, the 1st Appellant cannot lay claim to co-ownership. That having believed the fact that the 1st Appellant contributed financially to the building of the said house in question, the doctrine of resulting trust became applicable to uphold the equitable interest which qualifies the 1st Appellant as a co-owner of the said property, In effect learned counsel submitted that having regard to the financial contributions made by the 1st Appellant the house at No.16 Agbamu Street (hereafter simply referred to as “the Agbamu Street house”) is not one that qualifies as “Ughen” for the reason that it is not exclusively owned by the testator.

APPELLANTS’ ISSUE 4:
Dwelling on this Issue, learned counsel for the Appellants submitted that the lower Court granted reliefs in its judgment to the 1st Respondent which said reliefs are not covered by the 1st Respondent’s claim as formulated in paragraph 32 of his 2nd Amended statement of claim at pages 14 to 16 of the records and as re-produced on pages 1 to 4 his Brief of Argument. That the case of the 1st Respondent both in his evidence-in-chief and under cross examination is to the effect that the purported Will (i.e. Exhibit “G”) of his late father was a forged document and that same remains invalid, null, void and of no effect whatsoever. That these reliefs were the bases on which the case was fought in the lower court and the reliefs were claimed jointly and severally. That the declaratory reliefs contained in paragraph 32 sub-paragraphs 2, 3, and 4 of the 2nd Amended Statement of Claim were not alternatives to the relief contained in paragraph 32 sub- paragraph 1. That the lower Court was therefore bound to construe as a whole the reliefs upon which the case was fought and therefore not to have granted the 1st Respondent the reliefs he never claimed alternatively both as set out in the pleading upon which the case was fought and also not supported by the evidence of the 1st Respondent both in chief and under cross- examination. It is the stance of learned counsel that the lower Court acted without jurisdiction when it pronounced certain clauses in Exhibit “G” i.e. the forged Will contrary to Isoko native law and custom and the case of Stowe v. Stowe (2000) FWLR (Pt. 24) 1424 at 1228, amongst others was cited in aid.

1ST RESPONDENT’S ISSUE 1:
Learned counsel to the 1st Respondent argued at length in response to Appellants’ Issue 1 in the Brief of Argument of the 1st Respondent. It is the stance of learned lead counsel that the position of the Appellants on the question of ownership of the NDC Road house has no basis having regard to the evidence the 1st Respondent and his witnesses adduced. Learned counsel submitted that the evidence of DW1 in respect of the NDC Road house is self contradictory. This is because in one breath, he said he started the building from the foundation level and in another breath, he admitted that the foundation of the house was there before he continued building from there. In any event, that under cross-examination, the 1st Appellant confirmed the fact that the foundation of the NDC Road house was built by the father of the testator. That even if the house in question was built to completion by the testator, this only went to show that he made improvement to the existing foundation laid by his own father (i.e. late Vincent Ozomaro) and which is in consonance with the averment in paragraph 14 of the Appellants’ Statement of Defence. Learned counsel submitted that modernization/improvement carried out by the testator on the house in question which is a family house, could not make the testator its exclusive owner to warrant its being devised in the disputed Will.

Stating that the 1st Respondent is not disputing the capacity of the testator to have made the disputed Will, learned counsel however made it clear that the stance of the 1st Respondent is that the disputed will ought to have been made in accordance with the prevailing customary law and tradition relating to succession and inheritance of the Isoko people at the time it was made. Learned counsel submitted that there was overwhelming evidence that the NDC Road house belonged to the testator’s father and that this much the testator confirmed in Clause 10 of the disputed Will. It is the stance of learned counsel that the position of the Appellants that the house in question automatically belonged to the testator since he was the person who completed it and that he therefore had the right to dispose it is most unfounded. This is because, any improvement carried out on a family house by any member of the family does not automatically vest that person with the legal right to ownership of the said house to the exclusion of other members of the family and the cases of Buraimoh v. Karimu (1999) 9 NWLR (Pt. 618) 310 at 328; and Shelle v. Ajason (1957) 2 FSC 65 at 67, were cited in aid. Learned counsel submitted to the effect that as the NDC Road house belonged to the testator’s father despite whatever improvements he might have carried out to it, it followed that the testator not being the owner of the house in question could not have disposed of the same by his Will. That the law is trite to the effect that one cannot give what he does not have – Nemo dat quod non habet and the case of Egbuta v. Onuna (2007) 10 NWLR (Pt. 1042) 298 at 316 was cited in aid.

It is also the stance of learned counsel for the 1st Respondent that the alleged occupation of the NDC Road house and the manner of application of the Isoko customary law of inheritance, to the occupation on the ground that it became the “Ughen” of the testator is most untenable. This is because the testator was not shown to have inherited the house in question in accordance with Isoko customary law of inheritance and succession. That he did not perform the burial rites of ISAKARA which is a condition precedent to the inheritance of the “Ughen” by the eldest son of a deceased person in Isoko land. That in the circumstances, the disputed Will by which the testator purported to dispose of the house which does not belong to him, is null, invalid and unenforceable to that extent and consequently cannot pass any title to the purported beneficiaries of the said house as named in the disputed Will.

1ST RESPONDENT’S ISSUE 2
Learned counsel for the 1st Respondent dealt with the question as to whether the totality of the evidence before the lower court established the Isoko customary law of succession and inheritance which gives the dwelling house (Ughen) of an Isoko man exclusively to the eldest son, has extra-territorial application to enable the 1st Respondent to be exclusively entitled to the Agbamu Street house of the testator in Uvwie Local Government Area of Delta, a place outside Ozoro town.

It is the stance of learned counsel on this issue that the testator by Clause 4 of the Will acknowledged the house in question as his place of permanent abode. He thus argued to the effect that the 1st Respondent as the eldest son of the testator is entitled to the house in accordance with the Isoko customary law and tradition relating to succession and inheritance. That this is so whether or not the dwelling house is located in the home town of the testator. Learned counsel submitted that as the version of the customary law pleaded and relied on by the Appellants was diametrically opposed to that of the 1st Respondent, it became necessary for parties to establish their respective versions of custom relied upon to the satisfaction of the lower court with cogent, convincing and credible evidence and the case of Okundaye v. Oyegun (1994) 4 NWLR (Pt. 598) 71 at 216, was cited in aid. Having referred to the evidence on the printed records, learned counsel submitted that while the 1st Respondent proved the version of the custom he relied upon, the Appellants did not. Learned counsel made the observation that throughout the length and breadth of the entire pleadings of all the parties and evidence of all the witnesses, it was common ground which was clearly admitted by all parties that the deceased did not own a personal house/building at Ozoro. That aside from the vacant plot of land at Oruamudo Quarters, Ozoro, which the testator had in his life time, the other landed property he is alleged to have had is the NDC Road house which the testator allegedly completed. Learned counsel also stated that another fact which parties do not dispute is that the testator permanently lived and died in the Agbamu Street house. He referred to Exhibits “B” and “Q”, as confirming this positions. He stated that the 1st Appellant’s effort to create a case of joint ownership of the said dwelling house with the testator failed as she did not prove how she came to be a joint owner and the cases of Idundun v. Okumagba (1976) 9-10 SC 227; and Morenikeji v. Adegbosin (2003) 8 NWLR (pt. 823) 612 at 661- 662, were cited regarding the methods of proving ownership to land. It is also the stance of learned counsel for the 1st Respondent that the doctrine of resulting trust argued by the Appellants is unfounded in the light of Clause 4 of the Will. He also stated that the contention of the Appellants that the lower Court admitted in its judgment that the 1st Appellant contributed to the acquisition of the Agbamu Street house is misplaced. This is because the lower court never believed the evidence of the 1st Appellant in that regard. That the use of the words “may well be true” is a finding of probability in the evidence of the 1st Appellant in this regard. In any event learned counsel submitted that for the 1st Appellant to have assisted the testator in developing house under reference by making financial contributions as she claimed, did not in any way transform or qualify her as a joint owner of the said house with the testator and the case of Buraimoh v. Karimu (supra) was cited in aid as well as NWABUEZE: On Land Law. That aside from Exhibits “B’ and “Q” which confirm the Agbamu Street house as the dwelling house of the testator, evidence of all the witnesses in the case (including that of DW1 and the 1st Appellant), also corroborate the fact that the testator until his death permanently lived and died in the Agbamu Street house. That in fact the 1st Appellant still lives there permanently after the death of the testator. Stating that the 1st Respondent adduced uncontradicted evidence regarding the custom and tradition of the Isoko people that the dwelling house devolves on the eldest son to the exclusion of the other children, and that this right is bestowed on the eldest son after the performance of the post-burial rites of “ISAKARA”, learned counsel submitted to the effect that the right of the 1st Respondent to inherit the Agbamu Street house was duly established and cited in aid the case of Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382 at 424. That this right of devolution on the eldest son of a deceased person in Isoko land is unchallengeable and cannot be waived and the case of Uwaifo v. Uwaifo (2005) 3 NWLR (pt. g13) 47g at 504 was cited in aid. That as it is undisputed that the 1st Respondent is the eldest son of the deceased, learned counsel submitted that he is exclusively entitled to the “UGHEN” which is the Agbamu Street house. In the circumstance, that Clause 4 of the Will which purported to bequeath the said “Ughen” to the 1st Appellant being inconsistent with the age-long, acceptable and prevailing custom and tradition of the Isoko people relating to succession and inheritance cannot stand. Notwithstanding the fact that the testator if he so wished can bequeath his properties to any one he likes, this must however be done in accordance with and subject to the customary law and tradition of the Isoko people relating to succession and inheritance. That since the customary law and tradition of the Isoko people relating to succession and inheritance enjoined the testator to bequeath his “Ughen”, which is the Agbamu Street house, to the 1st Respondent, bequeathing the same to the 1st Appellant is invalid, null, void and unenforceable and automatically renders the disputed Will void to that extent and the case of ldehen v. Idehen (1991) 6 NWLR (Pt. 198) 382 at 409 was cited in aid.

Learned counsel for the 1st Respondent also argued extensively on the aspect of the 1st Respondent’s case that according the Isoko customary law and traditional relating to succession and inheritance, it is the permanent place of residence of the testator before his death and not necessarily his place of origin which determines the “Ughen”. He submitted that in the circumstance, the Isoko customary law of succession and inheritance which exclusively gives the dwelling house “Ughen” of a deceased man to the eldest son, has extra-territorial application for the 1st Respondent to be exclusively entitled to the Agbamu Street house which is lying, being and situate in Uvwie Local Government Area of Delta, a place outside Ozoro town. That it is not the place of origin of the testator, that determines the “Ughen” and the cases of Agidigbi v. Agidigbi (1996) 6 NWLR (Pt. 454) 300 and Uwaifo v. Uwaifo (supra) were cited in aid. That, the mere fact that the deceased hailed from Ozoro town does not automatically mean that his “Ughen” must be situate at Ozoro. By way of illustration, learned counsel argued that if a man hails from a particular community in Isoko land and the man happens to have about two or more houses within the community, the mere fact that all the houses are within the same community does not automatically qualify all the houses to be the “Ughen” of the man simply because they are located within his community. That if such a man eventually dies, it is the house in which he permanently lived and died that will constitute his “Ughen” which will then devolve on the eldest son to the exclusion of the other children of the deceased. That in the same vein, where a man has no house of his own either within his community or outside his community, and he eventually dies as a tenant, then he has no “Ughen” to bequeath to his eldest son. That these situations go to confirm the position of the law as already established in the case of Uwaifo v. Uwaifo (supra) that it is the evidence led at the trial in proof of the permanent place of residence of the testator before his death that determines the “Ughen” of such testator. This is particularly so, when the testator in the instant case did not own any house of his own at Ozoro and did not permanently live at Ozoro all his life. Learned counsel submitted to the effect that by the combined effect of the provision of Section 3(1) of the Wills Law of the defunct Bendel State as applicable to Delta State and the cases he had hereinbefore cited, it is undoubtedly true that the disputed will of the deceased was purportedly made in flagrant violation of the customary law and void to that extent of its inconsistency with the customary law and tradition of the Isoko people. This court was urged to accord recognition to the Isoko customary law of succession and inheritance as established by the 1st Respondent by holding that the disputed Will was actually invalid to that extent; same having been made contrary to the customary law and tradition of the Isoko people. This court was urged to resolve this Issue in favour of the 1st Respondent.

1ST RESPONDENT’S ISSUE 3:
This Issue deals with the question as to whether the reliefs granted the 1st Respondent are in tandem with his claims in the Amended Statement of Claim. Dwelling on the issue, learned counsel referred to the reliefs set out in the 2nd Amended Statement of Claim on pages 14 – 16 of the records as the reliefs which the 1st Respondent claimed in the instant case. He stated that the reliefs granted the 1st Respondent are reliefs 1, 2, 3, 4 and 8 and re-produced the same. It is the stance of learned counsel that the evidence before the lower court justified the granting of the said reliefs. That even though the 1st Respondent did not establish the alleged forgery of the disputed Will, he established by credible evidence that Clauses 4 and 10 of the disputed Will were made contrary to the customary law and tradition of the Isoko people relating to inheritance and succession and that the testator could not devise what did not belong to him. It is the stance of learned counsel that it is trite law that a Will can be valid, but where certain clauses contained in it were made contrary to the prevailing customary law of the affected litigants, the court can declare such clauses null, void and of no effect while retaining or saving the remaining valid clauses of the disputed Will. That this was what the lower court did in the instant case and the decision of this Court in Uwaifo v. Uwaifo (supra) at pages 500 – 501 was cited in aid. That the reliefs granted by the lower court, also accord with the original reliefs sought by the 1st Respondent in the Amended Statement of Clam. For instance that relief 1 was elaborately couched in two limbs to accommodate the reliefs of forgery and invalidity of the disputed Will for not conforming with the customary law and tradition of the Isoko people relating to inheritance and succession. That the other reliefs claimed are also in tandem with the decision of the court below. That no matter the angle from which one looked at the reliefs as sought in either the Amended Statement of Claim or in the 2nd Amended Statement of Claim, the reliefs granted by the lower Court in favour of the 1st Respondent are borne out by the evidence before that court. That consequently, the authorities of Stowe v. Stowe (2000) FWLR (Pt. 24) 1424 at 1418; Fabiyi v. Adeniyi (2000) FWLR (Pt. 18) 196 at 198-199; and Jeric Nigeria Ltd v. UBN Plc (2001) FWLR (Pt. 31) 2913 at 2016, though good law for the purpose of the legal principles enunciated therein, are not applicable and relevant to the circumstances of the instant case. This Court was urged to discountenance the cases and hold that the lower court was right to have granted the 1st Respondent the reliefs it did. This Court was urged to dismiss the appeal.

I intend to resolve the issues formulated for the determination of the appeal in the following manner: –
1. Appellants’ Issue 1 vis-a-vis 1st Respondent’s Issue 1;
2. Appellants’ issues 2 and 3 vis-a-vis 1st Respondent’s Issue 2; and
3, Appellants’ issue 4 vis-a-vis 1st Respondent’s Issue 3.

APPELLANTS’ ISSUE 1 VIS-A-VIS 1ST RESPONDENT’S ISSUE 1:
Although the 1st Respondent given his pleadings and the reliefs eloquently challenged the validity of the disputed Will, it is in my considered view apparent from the evaluation of the evidence by the lower court that the court found the propounders of the Will i.e. the Appellants, to have established its validity. The burden is clearly on the propounders of the Will in the instant case to prove its validity and this they undoubtedly did. In this regard, see the recent judgment of this Court delivered on 7/3/2014 in Appeal No. CA/B/113M/2007 – OKOLONWANI & ANOR. V. OKOLONWANI & ORS (unreported) and the case of ADAMU V. IKHARO (1988) 4 NWLR (Pt. 89) 474, amongst others cited therein.

The NDC Road house, the subject matter of the issues under consideration undoubtedly formed part of the properties which the testator devised in his Will. The Will of the testator is Exhibit “G”. Clause 10 thereof relates to the house in question. It reads thus: –
“I DIRECT that my late father’s house along N.D.C. Road, Opposite A.G.G.S., Ozoro, which I and my wife, Mrs. Monica Ozomaro completed when it was just few blocks from foundation and rebought (sic) part of the land from the landowners who refused our building on the same, consisting of (8) rooms downstairs and two bedroom flat and four (4) rooms be shared as follows (since I built the house without any support from my brothers and sisters):

(a) The eight rooms down stairs to be given to my brothers and sisters.

(b) The two bedroom flat in front upstairs to my wife, Mrs. Monica Ozomaro and her children since she has been occupying it, and

I am of the considered view that the position of the law that a document speaks for itself and thus the intention of the maker of a document is to be discovered from the ordinary meaning to be ascribed to words in the document in question, is applicable to a Will in as much as it is a document. Against the backdrop of this, I cannot but say that the testator clearly did not consider himself to have derived title to the NDC Road house by virtue of inheritance of the same as the first son of his own father. He unequivocally assumed ownership of, or title to the house in question because part of the land on which the house stands was “rebought” from the land owners who disallowed him and his wife from building thereon; and as he (testator) built the house in question without financial support from his brothers and sisters. DW1 testified amongst others to the effect that he met a foundation on the land and that he continued with the building of the house from that level and that the said house was completed in 1987. The 1st Appellant was questioned in connection with the NDC Road house under cross-examination. I hereby re-produce relevant portions of her evidence on pages 79 – 80 in relation thereto:
“…My late husband owned the house at NDC Road, Ozoro. I am aware the property of my husband’s father, Mr. Vincent Ozomaro was shared when my husband was alive. The house at NDC Road, Ozoro belonged to my husband before he died because the foundation that was faulty was there for years and the family called him to build it because it belonged to him. The foundation on this land was built by my father in law late Vincent Ozomaro. My husband was not the only child of his father Vincent Ozomaro. It is not true that the property of my father in law, Vincent Ozomaro was shared after the death of my husband. Vincent Ozomaro’s property was shared when my husband Dr. Christian Ozomaro was alive. It is not true that in 2004, I approached my husband’s family to share the property of my husband… My late father in law, Vincent Ozomaro died before I married my husband. It is not true that his properties were shared in 1980. It was in 1983 that his properties were shared. That was when the family gave my husband the property at NDC Road, Ozoro as the senior son to build on. There was a faulty foundation on the land at the material time, my husband commenced building on the NDC Road land in 1987 and completed the house in that same year 1987. I did not state that the NDC Road house was a family house…”

The Will of the testator – Exhibit “G” was made on 15/1/2002. The question is, if the NDC Road house was already the testators as at 1987 by which time he had re-purchased part of the land on which the house stands, and also completed it, why then did the testator not simply state these facts in his will. In other words, why did the testator arrogate or lay claim to the house in question by virtue of the facts of the re-purchase of part of the land on which the house stands from the landowners and building the house solely, if title to it had devolved on him by his having inherited the house as his “Ughen” or by virtue of its having being shared to him? The inference regarding the NDC Road house from the evidence adduced by the 1st Respondent vis-a-vis the evidence of DW1 and the 1st Appellant, is that the testator never had title to the NDC Road house by inheritance. The 1st Respondent clearly established this fact through the evidence of his witnesses to the effect that it was after the death of the testator that the properties of the testator’s father – Vincent Ozomaro were shared. It would appear not to be in doubt that the testator having not been shown by the Appellants to have performed the Isoko custom regarding the inheritance of his father’s house cannot be said to have been entitled to the house in question as his “Ughen” as contended by learned counsel for the Appellants. In this regard, I cannot but observe that while the 1st Respondent adduced evidence as to what the eldest son of a deceased Isoko man must do customarily before the property of the deceased person devolves on such eldest son as the “Ughen”, there was no contrary evidence on the issue from the Appellants that in the circumstances can justify any finding to the contrary. Also the testator having died before the properties of his father were shared as eloquently established by the evidence adduced by the 1st Respondent, he cannot be said to have acquired title to the same consequent to its having been shared to him. The family of PWs 1, 2 and 3 and that of the testator are undoubtedly related. Except for the ipse dixit of 1st Appellant regarding how the testator came about the NDC Road house, no member of the testator’s family testified in support of the case of the 1st Appellant that the testator owned the house in question by inheritance or purchase. In the light of the evidence before the lower Court regarding the NDC Road house, I am of the considered view that the said court could not have properly found otherwise than that the house did not belong to the testator exclusively. A finding which I too, must say finds sufficient credence in Clause 10 of Exhibit “G” which I have re-produced hereinbefore. The 1st Respondent in my considered view has conclusively showed that the NDC Road house upon the death of the testator’s father was family property and that at all times after the testator’s father died remained so. Indeed, that the house in question never lost its character as family property as at 15/1/2002 when Exhibit “G” was made. That instead of the house losing its character as a family property; on the contrary it remained so even after the testator died.

Learned counsel for the 1st Respondent has more than adequately shown that a family property does not lose its character as such even if it has been solely improved by a member of the family. And I dare say a member of the family and his spouse. Indeed, I believe that any member of a family who decides to put up a building on family land even if he succeeds in keeping off other members of the family therefrom in his lifetime, has only suppressed the issue from being raised only for as long as it pleases no other member of the family to raise the question of the true ownership of the land by the family. In other words, the possession or exercise of acts of possession over family property no matter the length of time, cannot ripen into exclusive ownership by any person without the family character of the property being obliterated either by purchase from other members of the family or their conscious and voluntary act of relinquishment of their interests therein to the person in question. This is clearly not the situation in the instant case. The lower Court in my considered view never found the 1st Appellant and the testator to have exclusive ownership of the NDC Road house. Indeed, the lower Court made a finding that cannot accommodate any such finding when it stated on page 135 of the records thus: “For these reasons’ I cannot accept the story of 1st – 3rd defendant (sic) and I do not believe the 1st defendant (i.e. 1st Appellant) and her only witness, that the house at NDC Road, Ozoro, was owned exclusively by her husband, Dr. Ozomaro”. The point is if the money allegedly spent by the testator could not found title to the house in question in him, it is inconceivable how whatever the 1st Appellant could have spent in conjunction with the testator on the house could achieve the same purpose. Vesting of title to family land/property cannot arise on the basis of the number of those who chose to invest their money on family property while the property remains so. The family nature of the property must first be destroyed before acts of possession in the nature of building on the property can give the semblance of title.

Accordingly, the 1st Respondent having successfully established the aspect of his case that the NDC Road house is family property and the Appellants having not remotely established the fact that the house at any time after the death of the testator’s father till 15/1/2002 when Exhibit “G” was made became the exclusive property of the testator, it follows that the testator was not exclusively entitled to the house it being family property and could not have properly devised it. The principle of law as rightly stated by learned counsel for the 1st Respondent is nemo dat quod non habet.
Flowing from all that has been said is that issue 1 is resolved against the Appellants.

APPELLANTS’ ISSUES 2 AND 3 VIS-A-VIS 1ST RESPONDENT’S ISSUE 2:
The main question in contention under the Issues is the Isoko customary law on succession and inheritance as it relates to “Ughen”. The instant action was decided by the lower Court on 23/3/2010. The Evidence Act Cap. E 14, LFN, 2004 makes provisions regarding “custom” in Sections 14 and 15. I consider it pertinent to set out the provisions in question. They read thus: –
“14.(1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence; the burden of proving a custom shall lie on the person alleging its existence.
(2) A custom may be judicially noticed the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in the area look upon the same as binding in relation to circumstances similar to those under consideration.
Provided that in the case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.
15. Every fact is deemed to be relevant which tends to show how in particular instances a matter alleged to be a custom was understood and acted upon by persons then interested.”
Given the nature of custom as stated in the Evidence Act (supra) the courts have maintained the consistent position that custom is a question of fact that must be proved by evidence unless the said custom has been judicially noted. See in this regard the decision of this Court in APPEAL NO.CA/B/113M/2007 – OKOLONWANI & ANOR V. OKOLONWANI & ORS (unreported)(supra) wherein Ogunwunmiju, JCA; stated thus:-
“…It is trite law a customary law is a matter of fact to be pleaded and proved by evidence except where such law has been of such notoriety and has been judicially noticed. It is desirable that a person other than the person asserting a customary law should testify in support of the law. See Magomya v. A.G. Adamawa State (2007) 5 NWLR (Pt. 1028) Pg 567 at 582, Lipede v. Shonekan (1995) 1 NWLR (pt. 374) Pg 668.”

It is definitely not in dispute in the instant case that parties are agreed that “Ughen” as a concept is known to the Isoko customary law of succession and inheritance. It is also clear from the respective cases of the parties on the pleadings that the concept of “Ughen” under the Isoko customary law of succession and inheritance has not acquired any notoriety like that of “Igiogbe” under Benin customary law. Without prejudice to this, the 1st Respondent and the Appellants are however ad idem that the testator by Isoko custom must have what qualifies as “Ughen” and that the same is exclusively for the eldest son of the testator being an Isoko man. Though parties would also appear to be ad idem that the “Ughen” is a building that must be exclusively owned by an Isoko man, they are equally not agreed as to the building that constitutes it i.e. the “Ughen”. In this regard the Appellants’ stance is that the permanent residence of a deceased Isoko man at or in his home town where he was buried is what constitutes the “Ughen” of the deceased Isoko man under Isoko customary law of succession and inheritance. On the other hand, the stance of the 1st Respondent is that the “Ughen” of an Isoko man is where he permanently lived and died irrespective of whether or not it is located in the home town of the deceased Isoko man.

In apparent compliance with the position of the law, the parties adduced evidence in relation to their respective versions of the Isoko custom of succession and inheritance and the lower court dutifully evaluated the same. In this regard the lower court first resolved the issue as to whether or not it is where the testator in the instant case permanently lived and died that constituted his “Ughen”. For this purpose the lower court embarked upon an elaborate evaluation of the evidence adduced by the parties as can be seen on pages 133 – 136 of the records and made a specific finding that it did not believe the story of the 1st Appellant that she built jointly or owned jointly with the testator the Agbamu Street house or property. The lower court preferred and believed the evidence of the 1st Respondent and PW3 that the Agbamu Street house was the permanent house of the testator at the time of his death. And found the evidence to be fortified by Exhibit Q and Clause 4 of the testator’s Will.

The Appellants being the ones dissatisfied with the finding of the lower Court regarding where the testator permanently lived at his death and its exclusive ownership by the testator, have the duty to establish the wrongness of the findings. And this they must demonstrate to be so in the light of the evidence which the lower court acted upon. In doing this, learned counsel for the Appellants having referred to two portions of the evidence of PW3 submitted that from the evidence of the witness the trial court ought to have held that the NDC Road house is the “Ughen” of the testator. This is a wonderful submission having regard to the fact that if the stance of learned counsel were correct, then on the showing of the Appellants in that regard, the testator could not have devised that particular building in the manner he did in clause 10 of Exhibit “G”. Be that as it may.

The question as to where the “Ughen” of the testator is, was clearly not addressed by the testator who it would appear did not consider the 1st Respondent worthy of inheriting any part of his properties despite his being his eldest son. However the lower court did find that Exhibit “G” gives an insight as to the “Ughen” of the testator. That he referred to the Agbamu street house as “my dwelling house”. And in my view, in confirmation of the position of the 1st Respondent that this was where the testator lived permanently and died, the 1st Appellant under cross-examination stated on page 79 of the records thus:
“Apart from the house at Oledi Street, Warri, the only other house my husband has in Warri is the House we live in at No. 16 Agbamu Street, Bendel Estate Ugborikoko, Effurun.”

Learned counsel has argued to the effect that the lower court was wrong to have found the holding of the service of songs at the Agbamu street house a place outside Isoko land as lending credence to its finding that the testator lived permanently at the said No.16. Agbamu Street. That it will be absurd to hold the venue where service of songs took place as the “Ughen”. This is because if the testator had been a tenant at No, 16, Agbamu Street, it would mean that the place constituted the “Ughen”. I cannot but state that this reasoning is not only faulty but does not take into cognizance the facts on ground. The lower court never based its finding as to the “Ughen” of the testator on the venue of the service of songs. The court only stated that the venue of the holding of the event went to lend credence to its finding in that regard. And I must say that I do not see how the lower court was wrong in this regard. The disclosure in the poster announcing the service of songs i.e. Exhibit “B” certainly went to show where the family of the testator as constituted by those who issued it considered to be where the testator lived at all material times before his death. Learned counsel for the Appellant would appear to have lost sight of the fact that the Appellants adduced absolutely no evidence suggesting the fact that the testator lived permanently in Ozoro; while the 1st Respondent led evidence that went to show that it is not as if the testator does not come to Ozoro, but that he comes there on visits only. Hence the possession of some rooms in the NDC Road house by the testator. Suffice it to say that in the light of the evidence adduced before the lower court and which in my considered view the lower court properly evaluated, it could not have properly found the “Ughen” of the testator to be any other place save his house that he disclosed to be his dwelling house in Exhibit “G”. Furthermore, it would appear to be an afterthought for the 1st Appellant to be asserting in this case that she contributed to the acquisition of the Agbamu Street house. Like the lower court did observe, the testator who would appear not to shy away from acknowledging the contributions of his wife to his undertakings, would not have hidden the fact of the 1st Appellant being a joint owner of the house if that had been the case. In any event, it is my considered view that the Appellants having accepted the validity of the Will, actually cannot argue against any declaration therein.

The very custom of Isoko people pleaded by the 1st Respondent regarding the “Ughen” is that it is the house in which the testator permanently lived and died. The 1st Respondent never pleaded that the house must be in Isoko land. The custom as pleaded attaches to the person of an Isoko man and not to Isoko land. The Appellants are the ones whose version of the Isoko customary law on succession and inheritance restricted its application to Isoko land. Learned counsel for the Appellants has in the Appellants’ Brief of Argument stated that customary law is a mirror of accepted usage of a people not subject to the whims and caprices of a particular individual and cited in aid the case of Yusuff v. Dada (supra). It is clear on the printed records that while the 1st Respondent proved the customary law of the Isoko man as it relates to the “Ughen”, the Appellants did not. The version of customary law pleaded by the 1st Respondent glaringly admitted of its application outside Isoko land as it was not remotely suggested that the “Ughen” must be situated in the testator’s home town not to say Isoko land. This is unlike the situation in Benin as it applies to Igiogbe.

I am of the considered view that the lower court having found the 1st Respondent to have proved the version of the custom he pleaded, the only reason upon which the lower court can properly rely in not enforcing the said customary law as pleaded and established by the 1st Respondent is, if the said court considered it to be contrary to public policy and not to be in accordance with natural justice equity and good conscience.

The 1st Respondent in the instant case is the first son of the testator. There is no evidence that the testator disowned him at any time in his lifetime. The testator glaringly never devised anything on the 1st Respondent and no reason for this was given in Exhibit “G”. It is as if the 1st Respondent does not exist. It would appear that the customary law of Isoko land on succession and inheritance that give the first son of an Isoko man the exclusive right to the house in which the Isoko man permanently lived and died, is to take care of persons such as the 1st Respondent who are not only disinherited by being denied anything in a testators Will but also by a person such as the testator who has apparently refused to situate his permanent dwelling place within Isoko land. The pertinent question is, if the testator can properly make devices of his property outside Isoko land to Isoko persons such as the 1st Appellant and her children, why should someone such as the 1st Respondent who is also an Isoko person and who has a right be virtue of his birth to inherit the testators “Ughen”, also not be able to have as his birth right that which is due to him because the testator has decided to situate it outside Isoko land. On my part I see no justice in such a situation. And on the contrary I see the custom of the Isoko people on succession and inheritance as established by the 1st Respondent to be clearly equitable in nature and good in conscience not being against any known public policy. Against the backdrop of all that has been said I therefore cannot fault the finding of the lower court recognising the custom established by the 1st Respondent which entitles him to inherit the testators “Ughen” although the testator did not situate it in Isoko land.
Flowing from the above is that Appellants’ Issues 2 and 3 are resolved against them.

APPELLANT’S ISSUE 4 VIS-A-VIS 1ST RESPONDENT’S ISSUE 3:
The complaint of the Appellants under this Issue in the main is that the lower court was wrong to have granted the 1st Respondent any of the reliefs he sought as the lower court found his entitlement to the relief for a declaration that the Will of the testator was forged not to have been established and therefore dismissed the same. The Appellants’ counsel submitted to the effect that all the other reliefs sought by the 1st Respondent ought to have been dismissed as they were not claimed in the alternative. I don’t intend to dwell on the response of the 1st Respondent on this issue again.

I have hereinbefore reproduced the claims/reliefs which the 1st Respondent sought as set out in the judgment of the lower court as well as the reliefs the court granted.

True it is that the first of the reliefs, the 1st Respondent sought is for the Will he disputed to be declared invalid, null, void and of no effect being a forged document. It is interesting that the ground of the alleged forgery is that the Will is contrary to customary law and tradition of the Isoko people of Delta State. I can only say that it would have been amazing if the lower court had ever granted the declaration having regard to the ground on which it was predicated. I have read the other reliefs sought by the 1st Respondent and I do not see how they can be said to have been predicated on the success or failure of the first of the reliefs. They are different and severable reliefs. Hence, the lower court could properly consider the entitlement of the 1st Respondent to any or all of them on the basis of its findings.

The reliefs granted the 1st Respondent are as set out on pages 144 -145 of the records. In my considered view, they are glaringly grounded in the findings which I have before now found the lower Court to have properly made. In the circumstances, I sincerely do not see how the lower Court can be said to be wrong in the declarations it made as well as the injunction it granted.

Flowing from the above is the fact that Appellants’ issue 4 is resolved against them.

In the final analysis, the appeal is unmeritorious as all the issues formulated by the Appellants for its determination have been resolved against them. Accordingly, the appeal is hereby dismissed and the judgment of the lower court delivered on 23/3/2010 is affirmed.
I make no order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment delivered by my learned brother LOKULO- SODIPE JCA and I agree with the reasoning and conclusions therein. However, I shall add a few points. Let us do a flashback into the events that culminated into this appeal.

The 1st respondent is the eldest son of late Dr Christian Olufemi Ozomaro (hereinafter called the testator). The 1st appellant is the wife of the testator though not the mother of the 1st respondent. The testator, who hailed from Ozoro town of Isoko North Local Government Area of Delta State, prepared a Will on 15th, January 2002. He lived in No. 16, Agbamu Street, Ugborikoko, Bendel Estate, now known as DDPA Estate, Effurun, Delta State and died there on 18th June, 2004. The deceased was buried on 2/07/2005. After the burial, the 1st appellant accompanied by a lawyer and policeman presented a Will alleged to be that of the testator to the Ozomaro family members.

The family vehemently opposed the Will. The respondents at the lower Court challenged the Will and sought for several reliefs. Both parties presented their evidence before the court and the trial Court held that:

1.(i) That the devise contained in clause 4 of the Will of Dr. Christian Olufemi Ozomaro made on the 15th day of January, 2002 is void on the ground that the same was made in breach of and contrary to the customary law and tradition of the Isoko people of Delta State.
(ii) That the devise contained in clause 10 of the Will of Dr. Christian Olufemi Ozomaro made on the 15th day of January, 2002 is void on the ground (sic) that the house the subject matter of the devise does not belong to the said Dr. Ozomaro.
(2) That in accordance with Isoko customary law of succession and inheritance, the plaintiff as the eldest son of the deceased Dr Christian Olufemi Ozomaro succeeds exclusively to the house lying and situate and known as No. 16, Agbamu Street, Bendel Estate (known as D.D.P.A estate), Ugborikoko, Effunrun, Delta State.
(3) I hereby make an order of perpetual injunction restraining the defendants and their privies from disturbing, molesting, harassing or otherwise preventing the plaintiff from enjoying the said house (Ughen) of his deceased father at No. 16 Agbamu Street, Bendel Estate (Known as D.D.P.A estate), Ugborikoko, Effunrun, Delta State.

The appellant, aggrieved by the decision of the trial Court, filed a notice of appeal on 12/05/2010. The appellant’s brief of argument was filed on 27/10/2010 while the 1st Respondent’s brief was filed on 24/11/2010. The parties adopted their briefs on 17/1/2014.

The major complaint of the respondent at the trial Court was that the testator cannot, by virtue of Isoko custom, devise the house in which he lived and died to any other person other than his eldest son. The testator had, devised his apartment at No 16 Agbamu Street, Bendel Estate (known as D.D.P.A estate) to his wife, the 1st Appellant. Respondent contended that the said house according to the Isoko custom, is the Ughen of the deceased and as such only the deceased’s eldest son is entitled to inherit it. The trial court found in favour of the 1st respondent.

The ‘Ughen’ of an Isoko man can be likened to the ‘Igiogbe’ of a Bini man. It is the house wherein the deceased lived permanently up to the time of his death. It symbolizes the ancestral abode of a testator wherein the testatator’s eldest son shall reside and attend to his late father’s family matters. However, I will not go as far as the sweeping statement of my learned brother LOKULO-SODIPE JCA that the ‘Ughen’ of an Isoko man could be located anywhere since it was not remotely suggested that the Ughen must be situated in the testator’s home town. I am mindful of the decision of the Court of Appeal per Ibiyeye JCA in Egharevba v. Orounghae (2001) 11 NWLR Pt. 724 Pg. 318 on the Bini Igiogbe that:
“It is settled that a Bini man only has one Igiogbe and such Igiogbe must be situate in Benin Kingdom”
The position in Egharevba’s case has been adopted by the Courts in Igori v. Igori & Ors (Unreported) Suit No. CA/B/195/2009 delivered on 25th June 2013 and Eigbe v. Eigbe & Ors (unreported) Suit No CA/B/51/2009 delivered on 8th March 2012.
However, in the circumstances of the case at hand, the bone of contention was not the Igiogbe but the Ughen custom. Though both customs are similar, the Isoko Ughen custom has not been judicially settled. The evidence of both parties in this appeal is that the Ughen is a permanent residence of an Isoko man until the time of death. However, the 1st respondent included in his evidence that the Ughen is recognised irrespective of whether it is located in the testator’s home town or not.
Can we then conclude that the Ughen of a testator must be located in Isokoland? If we are to follow the reasoning in Egharevba’s case, we will conclude that a property can only be the Ughen if located in Isokoland. However, we must be mindful of the fact that the decision in Egharevba’s case was on the Bini lgiogbe and not Isoko Ughen. Again, the property claimed by the appellant in Igori v. Igori as Igiogbe was located in Lagos so the Igori case is clearly distinguishable from the case at hand. The Court of Appeal in upholding the decision of the trial Court in Igori v. Igori (Supra), held that the Igiogbe cannot be located in Lagos or indeed anywhere in the country or the world, as claimed by the appellant.
I am of the humble view that the Ughen or Igiogbe must be located at a place territorially contiguous to the ancestral abode, which may be located in the same area, town, local government or even state of origin of the testator. That is why it must be the house where the father of the claimant lived and died and which the eldest male child must inherit so that he can in turn have a place where he would preside over family matters. The house in this case is located in Effunrun, a town territorially contiguous to the home town of the testator which is Delta State.

I am of the view, that in the peculiar circumstances of this case, taking into consideration that the devise in controversy is a house in the nearest town to the ancestral home of the testator, much as I would not go as far as to agree with my learned brother that the Ughen or Igiogbe can be situated anywhere in or outside the country, the house at Efurrun devised to the 1st Respondent cannot be so devised being the Ughen of the testator.

The 1st appellant also claimed resulting trust in respect of the house in NDC Road, Ozoro in Isoko North Local Government Area of Delta State. What is a resulting trust? A resulting trust has been described by the Supreme Court in Madu v. Madu (2008) 2 – 3 SC Pt. II 109, (2008) 6 NWLR Pt. 1083 Pg. 206 following the decision of Lord Browne-Wilkinson in Westdeutsche Landebank Girozentrale v. Islington London Borough Council (1996) 2 A.E.R. 961 at page 990 as:
“(a) where A makes a voluntary payment to or pays (wholly or in part) for the purchase of property which is vested in either B alone or in the joint names of A and B, then there is a presumption that A did not intend to make a gift to B; the money or property is held in trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B, in shares proportionate to their contributions.
(b) Where A transfer property to B on express trusts, but the trust declared do not exhaust the whole”

Could it be said that there was a resulting trust in favour of the first appellant here? Let us be mindful of the fact that the property in question was built by the late Vincent Ozomaro (father of Dr Christian Olufemi Ozomaro) but was never shared to any of his children up to the death of Dr Christian Olufemi Ozomaro. Even the testator acknowledged the family ownership of the property in clause 10 of the Will [Exhibit G) where he stated that:

“I DIRECT that my late father’s house along N.D.C. Road opposite A.G.G.S, Ozoro, which I and my wife, Mrs Monica Ozomaro completed when it was just few blocks from foundation and rebought (sic) part of the land from the landowners who refused our building on the same, consisting of (8) rooms downstairs and two bedroom flat and four rooms be shared as follows (since I built the house without any support from my brothers and sisters”

What this implies is that the property remained the joint property of the Ozomaro family. Where a property belonging to a man who was subject to customary law, died intestate and there was no sharing of his property, the property are deemed vested in the deceased’s family as a whole until it is partitioned between the members. It is the partitioning of property that confers individual rights on the family members. See Yesufu v. Adama (2010) 5 NWLR (Pt. 1188) pg 552.

I am of the view that there can never be a resulting trust between A and B, B being the beneficiary, in respect of a property except A had an individual right to the property in question. This is simply founded on the principle of nemo dat quod non habet. A man cannot give what he does not have, or what does not ab initio, belong to him. In the instant case, the property belonging to the Ozomaro family and which was not partitioned or vested in any individual member of the family, no member of the Ozomaro family can lay claim to it or devise it out or take steps vesting rights on the property in another party under the guise of a resulting trust.

On the whole, I agree with the decision of my learned brother in the lead judgment.

I agree with and affirm the judgment of the trial court in suit No. HCZ/67/2007 delivered on 23/3/10 by E. I. Oritsejafor J.

TOM SHAIBU YAKUBU, J.C.A.: I had the opportunity to have read the draft of the judgment prepared and just delivered by my Lord, HON. JUSTICE A. O. LOKULO-SODIPE, JCA. I am in complete agreement with the erudite reasoning contained therein which culminated in the conclusion that the appeal has no onions and therefore liable to dismissal.

I, too dismiss it and affirm the judgment of the Delta State High Court, by E. I. Oritsejafor, J., of 23rd March, 2010.
Each side to bear own costs.

Appearances

Patrick Oganwu with A. OdhigboFor Appellant

AND

John Okoriko with Henry Obafemi for the 1st RespondentFor Respondent