ASAOLU & ORS v. OMOREGIE & ANOR
(2020)LCN/14353(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, June 26, 2020
CA/B/29/2002
Before Our Lordships:
Helen Moronkeji Ogunwumi juJustice of the Court of Appeal
Samuel Chukwudumebi Oseji Justice of the Court of Appeal
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Between
- MR. OMOREGIE ASAOLU 2. ANTHONY EDOSOMWAN 3. MR. IKPONMWONSA ODIASE 4. MR. ALBERT ODIASE 5. MRS. OROBOSA ATU (NEE OMOREGIE) 6. MRS. OSAYOMORE OSARUMWENSE (NEE OMOREGIE) 7. MISS GUNMENDIA OMOREGIE 8. MRS. EGHIANHUWA OSAGIEDE (NEE OMOREGIE) 9. MISS ETIOSA OMOREGIE 10. MR. OGHOGHO OMOREGIE APPELANT(S)
And
- HENRY OMOREGIE (SUBSTITUTED IN PLACE OF HIS LATE FATHER MR. G.A. OMOREGIE) 2. THE PROBATE REGISTRAR RESPONDENT(S)
RATIO
WHETHER OR NOT THE ELDEST SON IS ENTITLED TO THE IGIOGBE UNDER BENIN NATIVE LAW AND CUSTOM
In a long line of cases, the Supreme Court has held that the eldest son is entitled to the Igiogbe – that is the house where the testator or deceased lived, died and was buried being the ancestral home or house of the deceased. See ARASE V. ARASE (1981) 5 SC 33, IMADE V. OTABOR (1998) 4 NWLR (PT. 544) PAGE 20, UWAIFO V. UWAIFO (2013) 10 NWLR (PT. 1361) PAGE 185 AT 206. In UWAIFO V. UWAIFO (SUPRA) Ogunbiyi JSC held as follows at page 206:
“Under Benin Native Law and Custom, “Igiogbe” meant a principal house where a deceased Benin man lived and died; the right to inherit and possess such property vest only in the eldest son. The tradition takes precedent over and above the wishes of a deceased father no matter how strong he feels against his son as the prospective heir. It is a right vested in the eldest son and which cannot be divested by means of disinheritance.” PER OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Edo State High Court delivered on 30/1/2001. Notice of appeal was filed on 12/2/2001 and the Appellants rely on the amended notice of appeal filed on 8/5/2019 and the amended Appellants’ brief filed on 8/5/19 deemed properly filed on 8/5/19. The Appellant also filed Reply brief on 8/5/2020 deemed filed on 27/5/2020. The 1st Respondent’s amended brief was filed 24/1/2020. The 2nd Respondent, the Probate Registrar did not file any brief. On the day this appeal was heard, the Probate Registrar was absent but there was proof of service to the effect that the office was served on 21st May, 2020 by e-service. Since the appeal is more than 15 years old, the Court decided to proceed with the business of the day.
The 1st Respondent in this appeal was the Claimant at the trial Court and his claims can be found in the Amended Statement of Claim which can be found at pages 46 – 47 of the Record as follows:
1. A DECLARATION that the document dated 14th day of February, 1984 purporting and/or pretending to be the WILL of Mr.
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Alfred Omoregie Odiase who died on the 11th August, 1993 at Benin City is null and void for not being the act of the deceased as well as for non-compliance with the relevant statute relating to WILLS.
2. A DECLARATION that in accordance with Benin Customary Law of succession the Plaintiff as the eldest surviving son of the deceased Mr. Alfred Omoregie Odiase succeeds exclusively at all events to the houses and/or all that properties lying and situate at No. 102, Lagos Street, Benin City and No. 41B, now No. 81B New Lagos Road, now known as Ibrahim Babagida Road, Benin City within Benin Judicial Division.
3. A DECLARATION that the Plaintiff the eldest surviving son of his late father is the only person entitled to letters of Administration under Benin Native Law and Custom relating to the estate of late Mr. Alfred Omoregie Odaise.
4. AN ORDER of perpetual injunction restraining the Defendants their agents, servants and/or privies from administering, expanding, disposing of or dealing in any way whatsoever with the deceased’s estate or any part thereof.
5. AN ORDER of perpetual injunction restraining the probate Registrar his servants,
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agents and/or privies from issuing letters of Administration with the Will annexed to the executors of the purported WILL or to any other person whosoever apart from the Plaintiff.
6. And any order or further orders as this Honourable Court may deem fit to make in the circumstances of the case.
The Appellants (as Respondents at the trial Court) counter claimed as follows:-
i. A declaration that the property known as No. 41 now No. 81B New Lagos Road {also know as Ibrahim Sabogida Way, New Benin, Benin City} as a whole or in its entirely is not the Igiogbe of late Alfred Omoregie Odiase.
ii. A declaration that the last WILL and Testament of late Alfred Omoregie Odaise dated 14/2/84 is valid and proper and should be accorded due respect and enforcement as such.
iii. An order of perpetual injunction restraining the Plaintiff {the eldest son of the Testator} by himself, his agents or any acting at his instigation or direction from administering, expanding, interfering with, taking any step or dealing in any way whatsoever with the said Testator’s estate or any part thereof in any manner inconsistent with the provisions of the
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Testator’s said Last WILL and Testament dated 14th February, 1964.
iv. An any other relief or order that this Honourable Court may deem fit to grant or make in the circumstances of this case.
As shown from the Counter Claim of the Appellants, the Appellants tried to save the WILL while the 1st Respondent wanted the WILL set aside and declared void.
The plaintiff at trial was Godwin Ekhator Omoregie who was undeniably the oldest son of his father the testator who died and left a Will, which he challenged. The learned trial judge held on page 105 of the Record that the 1st Respondent was entitled to both houses where the deceased lived and died and the house he had not lived for several years. That is the bone of contention here. The learned trial judge found the Will to be valid but set aside some of the bequests therein as being contrary to the Wills Law of Edo State.
Dissatisfied with the judgment and orders made, the Appellants have appealed to this Court.
In the amended Appellants’ brief settled by Olayiwola Afolabi Esq., Counsel identified 2 issues for determination. They are:
1. Whether the trial Court was right
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when it held that the 1st Respondent is entitled to the two houses in the face of the testator’s WILL.
2. Whether the 1st Respondent who never performed the customary rights conditional on inheritance of the Igi Ogbe is entitled to the said property.
In the brief settled by G.E. Ezomo Esq., Learned counsel for the 1st Respondent identified a sole issue for determination as follows:
Whether the 1st Respondent was entitled to the 2 Igiogbes as ordered by the learned trial judge.
I will take the issues as distilled by learned Appellants’ counsel but in reverse order for the determination of this appeal.
ISSUE ONE
The Appellants’ counsel argued on this point that the 1st Respondent’s father never performed the necessary and compulsory traditional rites as first born which made him entitled to the Igiogbe. Counsel submitted that the 1st Respondent did not complete the funeral rites of his father in strict or substantial compliance with Bini Native Law and Custom. Counsel cited IDEHEN & ORS V. IDEHEN & ORS (1991) 6 NWLR (PT.198) PAGE 382 AT PAGE 424, AIGUOKUNRUEGHIEN V. IMARUAGHERU (2015) ALL NWLR (PT.785)
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AT 269 to support the contention of the necessity for the performance of the 1st and 2nd burial of the deceased by the eldest son in order to lay claim to the Igiogbe. Counsel argued that the pleadings of the 1st Respondent did not indicate that he had actually paid money in lieu of the 2nd burial and that any evidence in that regard should be disregarded. He urged the Court to disregard the evidence of the 1st Respondent in that regard. The Appellants also tried to rebut the evidence of P.W.2 Pa Andrew Okungbowa Osemwengie by stating that the evidence adduced by P.W.2 not having been pleaded is inadmissible. Counsel insisted that the trial Court should not have glossed over the issue of the 2nd burial rites given the importance to the Igiogbe inheritance custom. On this issue, learned 1st Respondent counsel argued that it is erroneous for the Appellants to say that the facts relating to the 2nd burial was not pleaded by the 1st Respondent. Counsel further submitted that the facts relating to the traditional rites were pleaded in paragraphs 10 and 11 of the statement of claim.
Learned 1st Respondent’s counsel argued that the Appellants in their
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pleadings at trial never challenged paragraphs 10, 11 and 14 of the 1st Respondent’s pleadings relating to the funeral obsequies of the testator and the automatic right of inheritance of the 1st Respondent’s father to the two houses of the testator under Bini Law and Custom. Counsel urged this Court to take as admitted by the Appellant all the material averments in the 1st Respondent’s pleadings relating to the Igiogbe and the waiver of legal necessity for the 1st Respondent to prove what is already admitted by the Appellants.
Counsel also argued that the learned trial judge in the judgment found that there was actually no dispute by that parties that the burial ceremony of Late Alfred Omoregie Odiase was carried out under Christian rites and Traditional rites and those findings cannot be disturbed by this Court unless they are found to be perverse.
OPINION
I have read carefully the record of proceedings at the trial Court. I am particularly swayed by the evidence of P.W. 2 Andrew Okungbowa Osemwengie who swore that the 2nd burial took place in kind which consists of yams, goats, hot drinks etc given to the family. He insisted
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that the 1st Respondent’s father had done the 2nd burial of his father in kind to the family. D.W.1, Daniel Osabuohien Edobor at line 20 of page 87 of the record confirmed while being led under examination in chief that the burial ceremony of the deceased was completed. On the other hand, D.W.2 Paul Ikponminose Odiase insisted that the 2nd burial did not take place. However, I believe the evidence of P.W. 2 who was the family member in charge of organising the funeral rites of the deceased when he confirmed that the extended family was satisfied with the customary rites of the second funeral as performed by the 1st Respondent. I find that the learned trial judge was right to have held that the 1st Respondent had performed all necessary rites to inherit the “Igiogbe”. The issue is resolved in favour of the 1st Respondent and against the Appellant.
ISSUE TWO
The Learned Appellants’ counsel submitted on this issue that the learned trial judge was wrong to have declared two houses as ‘Igiogbe’ to be given to the 1st Respondent’s father having regard to the judicial authorities on Igiogbe to the effect that it is
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a house and not houses that constitute an Igiogbe. Counsel cited AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (PT.454)3 where the concept of double or multiple Igiogbe was canvassed and the Apex Court refused the concept and stated that the Igiobe is limited to only one house which is the principal house of the deceased. Counsel further argued that in the case of AGIDIGBI V. AGIDIGBI (SUPRA), the issue for determination was whether more than one house could be the Igogbe even in the same compound just as in the instant case where all the three houses are in the same compound. The Supreme Court agreed in that case that only one of the three buildings in the compound where the deceased lived and died could be the Igiogbe.
Learned Appellants’ counsel cited ARASE V. ARASE (1981) 5 SC 33, IMADE V. OTABOR (1998) 4 NWLR PAT 554 PAGE 20, UWAIFO V. UWAIFO (2013) 10 NWLR PT 1361 PG. 185 AT 206.
Learned 1st Respondent’s counsel on this point argued that from the state of the pleadings, evidence led, and the address of counsel on both sides, the bone of contention in this case is the House at No. 81B New Lagos Road, Benin City. He argued that the Appellants had
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tacitly conceded the house at No.102 Lagos Road which they regarded as the ancestral home of their father as the Igiogbe to which the 1st Respondent was entitled.
OPINION
On this point, of the disposition of the testator’s property having regard to the provisions of the WILLS Law of Edo State, the learned trial judge held at page 103 – 104 of the Record as follows:
“The testator obviously was mindful of the peculiar position of the plaintiff hence it could be notice that he bequests made in respect of house No. 102 Lagos Street in paragraphs 1, 2, 3, 4 and 4(a) of Exhibit ‘g’ of his WILL all have reversionary rights to the plaintiff or his child after the demise of the beneficiary. I am satisfied that those purported devise to the beneficiaries must be set aside as the property is definitely an “Igiogbe”. The bequests are accordingly declared in void. In paragraph 10 of Exhibit ‘B’ the testator devised to his son Izevbuwa Omoregie a building to the left portion of his plot at 102 Lagos Street known as 102B Lagos Street, which in my view is not the principal house and is not part of the
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Igiogbe this devise is valid. Plaintiff did not contest that house No. 102B, Lagos Street is part of the principal house No. 102 Lagos Street.”
From the above, it is clear that the learned trial judge found and held that both houses were the “Igiogbe” of the testator to which the first male son was entitled.
In a long line of cases, the Supreme Court has held that the eldest son is entitled to the Igiogbe – that is the house where the testator or deceased lived, died and was buried being the ancestral home or house of the deceased. See ARASE V. ARASE (1981) 5 SC 33, IMADE V. OTABOR (1998) 4 NWLR (PT. 544) PAGE 20, UWAIFO V. UWAIFO (2013) 10 NWLR (PT. 1361) PAGE 185 AT 206. In UWAIFO V. UWAIFO (SUPRA) Ogunbiyi JSC held as follows at page 206:
“Under Benin Native Law and Custom, “Igiogbe” meant a principal house where a deceased Benin man lived and died; the right to inherit and possess such property vest only in the eldest son. The tradition takes precedent over and above the wishes of a deceased father no matter how strong he feels against his son as the prospective heir. It is a right vested in the
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eldest son and which cannot be divested by means of disinheritance.”
The claim at the trial Court and the counter claim both indicate that both parties as I said earlier tacitly agreed that the Igiogbe is the ancestral home of the deceased at 102 Lagos Street, Benin. Their grouse is the appropriation of the houses and shops at 41B or 81B New Benin by the father of the 1st Respondent as the 2nd Igiogbe. This appeal is thus against the order awarding both houses to the 1st Respondent’s father.
This Court in VICTOR AYEMWENRE EIGBE & ANOR V. BENJAMINE EIGBE & ANOR (2013) LPELR – 20292 (CA) held that a Bini man can only have one Igiogbe and not two. The same stand was taken by this Court in IGORI V. IGORI & ORS (2013) LPELR – 21027 (CA), (2014) ALL FWLR (PT. 729 PAGE 1154. This stand has been validated by the Supreme Court in AGIDIGBI V. AGIDIGBI (1996) LPELR -248 (SC) (1996) 6 NWLR (PT. 454) PAGE 300.
In AGIDIGBI V. AGIDIGBI SUPRA, the Supreme Court agreed with the concurrent findings of facts and law made by the trial Court and the Court of Appeal and in fact quoted the trial Court copiously where it was held
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that although three distinct houses were involved, the evidence before the Court was that only one of the three houses namely No 34C was the Igiogbe of the testator. The Court held that the devise (WILL) made by the testator to devise DAWSON Road to all his children was void to the extent that it purports to devise No. 34C (the Igiogbe) to anyone else except the Appellant (1st son).
The facts of this case makes it a hybrid. The main house at No. 102 Lagos Street was the Igiogbe of the testator’s father. In that sense, it is the ancestral Igiogbe. The testator did not live there for years until his death. He lived, died and was buried at his personal house at No. 41B New Lagos Road. As I said there seems to be tacit agreement that the ancestral Igiogbe is the Igiogbe of the testator.
However, Let us look closely at the testamentary disposition. This is because the learned trial judge found some of its provision valid and declared same null and void. In the Will, Exhibit B at the trial, the main House at 102 Lagos Street Benin was given by the testator to the 1st Respondent. All parties agree that that was the testator’s father’s
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Igogbe. The smaller shops in that house were also given to Edna Imade Omoregie and Imayuse Omoregie to revert back to the 1st Respondent on the death of the beneficiaries. The 2nd house at No. 102 with a separate roof was given to one Emmanuel Omoregie in his life time but to revert to 1st Respondent on his death. Another house known as No. 102B, Lagos Street was given to Izevbuwa Omoregie absolutely. Clearly the testator intended to give the main house and the reversionary interests in the shops and the other semi detached house at No. 102 to the 1st Respondent. Whereas No. 102B was meant for a 3rd son as indicated in paragraph 10 of the Will. In respect of House 41B, New Lagos Road, New Benin, Orobosa Omoregie and Oghogho Omoregie (both women) were to take the house and their siblings of full blood were to have usufuctory possession while radical title would revert back to them after the death or moving away of their siblings.
It is my humble view that the intendment of the WILL and the testator is that No. 102 Lagos Street the ancestral Igiogbe would be the Igiogbe of the testator hence the bequest to his eldest son. Applying the principles in
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AGIDIGBI V. AGIDIGBI Supra, it is clear that the 1st Respondent is entitled to No. 102 Lagos Road simplicita and not other separate buildings in the compound. I hold that the sole Igiogbe of the testator is the main house at No. 102 Lagos Street, Benin. Any device that sought to give possession of any portion of it to other beneficiary (even with usufuctory possession) while alive is sold. The semi detached house with a separate roof also belongs exclusively to the 1st Respondent being part of the main house. All the shops attached or in No.102 belong exclusively to the 1st Respondent No. 102B which is a distinct house separate from No. 102 was rightly devised to another beneficiary. It is my humble view that ALL the devises made in respect of No. 41B New Benin Road are sacrosanct to the beneficiaries thereof pursuant to the WILL. Therefore, the appeal succeeds in part. It is hereby ordered as follows:-
1. The main house at 102 is the Igiogbe and belongs to the 1st Respondent without any encumbrances.
2. The adjourning or semi detached building to it also belongs to the 1st Respondent without any encumbrances. Any bequests of shops etc to any
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other beneficiary is void.
3. All other bequests in respect of the separate house No. 102B at Lagos Street not part of the Igiogbe being a separate house on the land is valid.
4. The 1st Respondent is not entitled to any part of the houses, land or shops at 41B New Benin Road. The counter claim in that regard succeeds.
Appeal allowed in part. Parties to bear their own costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, H.M. OGUNWUMIJU, JCA. I agree with the reasoning and conclusion to the effect that this appeal should be allowed in part.
I also allow the appeal in part and I abide by the consequential orders made in the leading judgment.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JCA.
I agree that this appeal has merit and I allow it in the manner set out in the leading judgment.
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Appearances:
E.O. AFOLABI with him, MRS. F.O. IGBINEWEKA For Appellant(s)
G.E. EZOMO – for 1st Respondents For Respondent(s)