MR. FESTUS OSEMWINGIE & ORS V. MR. OROBOSA OSEMWINGIE & ORS (2012)

MR. FESTUS OSEMWINGIE & ORS V. MR. OROBOSA OSEMWINGIE & ORS

(2012)LCN/5744(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of December, 2012

CA/B/133/2007

RATIO

EVIDENCE: EFFECT OF EVIDENCE OF A PARTY OR HIS WITNESS WHICH FAVOURS THE OPPONENT’S CASE

The law is settled that the evidence by a party or of his witness which favours the opponent’s case is a solemn admission in favour of the opponent’s case. Just See: Adeyeye & Anor V. Ajiboye (1987) 1 SCNJ 1 at 13; Oseni Aboyeji V. Amusa Momoh (1994) 4 SCNJ (pt. II) 302; Olatunji V. Adisa (1995) 2 SCNJ 90 at 102; Okonkwo V. Ogbogu & Anor (1996) 3 SCNJ 190 at 204. Therefore, what a party admits to be true can reasonably be presumed to be so. This is more so where the admission was made on oath. See: Midford Edosomwan V. Kenneth Ogbeyfun (1996) 4 SCNJ 21 at 36; Onisaodu & Anor V. Eleweju & Anor (2006) All FWLR (pt.328) 677 at 687; Adio Fagunwa & Anor V. Adibi & Ors (2004) 7 SCNJ 322. PER TOM SHAIBU YAKUBU, J.C.A.

JUDICIAL PRECEDENCE: DOCTRINE OF STARE DECISIS

Unarguably, the doctrine of stare decisis remains a sine qua non in the hierarchical organogram of our courts in order to ensure the certainty of the state of the law and its application. Hence, the subordinate courts are duty bound and without question, must abide by and remain bound by the decisions of the higher courts. Therefore, it will tantamount to “gross insubordination” for a lower Court to refuse to follow and be bound by a decision on the point of law involved in the matter before him which had already been settled by a higher court.

Indeed the doctrine of stare decisis and the bindingness of judicial precedents are the cornerstone of our legal system. See Abaye V. Ofili (1986) 1 NSCC 94; Chief Aliu Abu & Ors V. Chief Abubakar Zibiri Odugbo & Ors (2001) 7 SCNJ 170; Dalhatu V. Turaki (2003) 15 NWLR (pt.843) 310; L.M.B. Ltd V. P.T.F. (2006) 5 NWLR (pt.974) 463 at 476; Lawani Adesokan & Ors V. Sunday Adetunji & Ors (1994) 5 NWLR (pt.3 46) 540, just to mention a few. PER TOM SHAIBU YAKUBU, J.C.A.

PROBATE: NATURE OF A WILL

INHERITANCE: WHETHER A FATHER CAN DEPRIVE HIS ELDEST SON UNDER BINI LAW TO INHERITANCE

By virtue of OKE V. OKE (1994) 1 ALL NLR 443 and S.3 (1) of the Wills Law of Bendel State, it had been established even later on in AGIDIGBI V. AGIDIGBI (1992) 2 NWLR PT. 221 Pg 98. UWAIFO V. UWAIFO (2005) 3 NWLR PT. 913 Pg. 477, that a Father could not by his will deprive his eldest son who has the right under Bini Law to inherit the principal dwelling house of testator known as the Igiogbe. Any devise of the Igiogbe to any other child except the eldest son of the deceased is void and liable to be set aside. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. MR. FESTUS OSEMWINGIE
2. MR. OSAZUWA OSEMWINGIE
3. MR. OSARO OSEMWINGIE
4. MRS. PATIENCE ENAGBAMA
5. MRS. ABIEYUWA NWOKOLO
6. MRS. HELEN ONICHAKWE
7. MR. AUGUSTINE OSEMWINGIE Appellant(s)

AND

1. MR. OROBOSA OSEMWINGIE
(SUBSTITUTED IN PLACE OF HIS LATE FATHER, MR. DAVID OSEMWINGIE)
2. MR. OGBEMUDIA AKAGBONKHAE
3. MR. ONAIWU AKAGBONKHAE
4. MRS. FELICIA IROGUE ‘A’
5. MR. OSAKPOMWAN OSEMWINGIE Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Edo State High Court of Justice, Holden at Benin City, in Suit No. B/325/1999, delivered on 20th December, 2006.
The 1st respondent was the plaintiff at the Court below, where he claimed that being a Benin man and the eldest son of his father, the late Osemwingie Ehigiator, he was entitled to inherit the property of his deceased father above-mentioned, situate and lying at No. 92, Akpakpava Street, Benin City where his father lived, died and was buried, as his IGIOGBE. However, his father executed a WILL wherein, the said property was given to some of his sons such as the 3rd, 4th and 5th appellants, to the exclusion of the 1st respondent. Hence he claimed the following reliefs, namely:
“(a) A declaration that the Igiogbe consists of the two (2) houses known and called No. 92, Akpakpava Street, Benin City the frontal building which his late father inherited as an Igiogbe from Plaintiff’s grandfather, late Ehigiator Uduebor and the rear building which Plaintiff’s late father built and lived in, died and was buried in.
(b) A declaration that the Plaintiff who is the eldest surviving son of late Osemwengie Ehigiator having performed the funeral obsequies of his late father according to Bini Native Law and Custom is entitled to inherit both houses (the Igiogbe) known and called No. 92, Akpakpava Street, Benin City where his late father and grandfather lived in and died in and were both buried to the exclusion of any other person including the defendants.
(c) An order to set aside and declare as null and void clauses 3, 4, 5, 6, 7 and 13 of the purported WILL of late Mr. Osemwengie Ehigiator dated the 23rd of November, 1990 as if offends against Bini Native Law and Custom and the WILLS LAW CAP 172 of the Laws of Bendel State 1976 as applicable in Edo State.
(d) A Perpetual Order of Injunction restraining the defendants, their agents and/or servants or privies from interfering or meddling with the plaintiff’s proprietary rights over and in the aforesaid properties.”

Pleadings were duly filed and exchanged between the parties. The Plaintiff’s Further Amended Statement of Claim is at pages 7 – 10 of the records of appeal. The 3rd, 4th, 5th, 7th, 8th, 9th and 11th defendants/appellants’ Joint Statement of Defence and Counter-Claim is at pages 44 – 49 whilst the Plaintiff/1st Respondent’s Further Amended Reply to the Statement of Defence and defence to the Counter-Claim are at pages 57 and 58 of the records of appeal. The 12th defendant’s statement of defence is at pages 36 and 37 of the records of appeal.
The Plaintiff/1st Respondent testified for himself after witnesses had given evidence for him. Exhibits A, B & C were admitted in evidence at the instance of the 1st respondent. The 2nd and 4th defendant/appellants with another witness gave evidence for the 3rd, 4th, 5th, 7th, 8th, 9th and 11th appellants, whilst a witness testified for the 12th Respondent at whose instance some documentary exhibits were admitted in evidence.
At the close of evidence viva voce by the parties and their respective witnesses, the learned trial Judge ordered that written addresses be filed and exchanged between the parties. This was done. In his judgment, the learned trial Judge found for the Plaintiff and granted him all the reliefs as per his claim, hence this appeal by the 3rd, 4th, 5th, 7th, 8th, 9th and 11th defendants/appellants.

There are five (5) Grounds of Appeal, which for ease of reference reproduced here below, to wit:
“1. The learned trial Judge erred in law when he held that the entire buildings at No. 92, Akpakpava Street, Benin City comprises the Igiogbe to be inherited by the plaintiff.
PARTICULARS OF ERRORS
(a) The Igiogbe in Benin Native Law and Custom upon which there are judicial pronouncements is the principal house and not the entire compound made up other houses where the deceased the testator lived and died which in the instant case is the last storey building at the back where the Testator lived with his family till his death.
(b) The learned trial judge himself admitted in his judgment that the Testator in his lifetime lived, died and was buried in the second storey building at No. 92, Akpakpava Street, Benin City while he put tenants in the remaining buildings.
(c) The Testator in his lifetime never treated the remaining houses as principal house but rather put the houses into commercial use which was not challenged by the Plaintiff.
2. The learned Trial Judge erred in law when he failed to apply the principles decided by the Supreme Court in Agidigbi v. Agidigbi (1996) 6 NWLR (pt. 454) 300; Imade v. Otabor (1998) 4 NWLR (pt. 544) 20 and the Court of Appeal decision in Uwaifo v. Uwaifo (2005) 3 NWLR (pt. 913) 477 to the effect that the principal house in which the testator lived and died is the Igiogbe and not the compound made up of other houses.

PARTICULARS OF ERROR
(a) The said authorities which are decision of superior courts were cited before the Learned Trial Judge.
(b) The testator in Agidigbi v. Agidigbi supra divided the houses into three wit: house No. 34A, house No. 34B and house No. 34C just like in the instant case where the Testator divided the three houses into three to wit: house No. 1, house No. 2 and house No. 3 which the Learned Trial Judge totally ignore.
(c) The Court of appeal in Uwaifo v. Uwaifo reiterated the principle to the effect that it is the principal house that is Igiogbe and not the remaining houses and affirmed the principle in Agidigbi v. Agidigbi while distinguishing the case of Idehen v. Idehen.
3. The learned Trial Judge erred in law when he misapplied the principles enunciated in Idehen v. Idehen (1991) 6 NWLR (pt.198) 382 to the instant case as the facts in Idehen v. Idehen not applicable to the instant case.

PARTICULARS OF ERROR
(a) The parties in Idehen v. Idehen did not dispute the houses, which constitute Igiogbe unlike the instance case where the parties in their pleadings joined issues as to the properties that constitute Igiogbe.
(b) The houses in Idehen v. Idehen are not situated in the same premises as instance case which the learned Trial Judge failed to appreciate and the commercial use at to which the properties were put into did not arise Idehen v. Idehen.
(c) The Testator in the instant case lived in storey building at the back with the family which he regarded as his principal house while renting the other two houses to tenants making them commercial houses which facts were absent in Idehen v. Idehen which the Learned Trial Judge failed to appreciate.
4. The Learned Trial Judge erred in law when he held that no weight will be put on Exhibit C wherein the Testator classified the houses into three and not two as claimed by the Plaintiff because the parties were not privy to the production of the said exhibit.

PARTICULARS OF ERROR
(a) Exhibit C is the WILL of the Testator wherein the Testator categorically stated that the houses at No. 92, Akpakpava Street, Benin City, are three in number and not two as being propounded by the Plaintiff.
(b) Exhibit C is documentary evidence which is superior to oral testimony being the last WILL of the Testator himself who knew the houses more than any of the parties and their witnesses.
(c) A WILL being the last testament of the Testator, the parties to wit: Plaintiff and Defendants cannot be privy to the said WILL which the trial Judge failed to appreciate.
(d) The trial judge did not visit the locus as was done in Agidigbi v. Agidigbi case to satisfy himself that the houses are two and not three as claimed by the Testator in his WILL.
5. The Learned Trial Judge erred in law when he rejected the classification of the houses into three separate buildings as done by the Testator in Exhibit C which was the last WILL of the Testator.

PARTICULARS OF ERROR
(a) The testator in his WILL classified the houses at No. 92, Akpakpava Street, Benin City into three separate and distinct houses to wit: house No. 1, house No. 2 and house No. 3.
(b) The Learned Trial Judge did not visit the locus to satisfy himself that the classification by the testator was not true as the parties joined issues as to the number of houses at No. 92, Akpakpava Street in that while the Defendants asserted that there are three houses in line with the Testator WILL, the Plaintiff stated the opposite which the Learned Trial Judge failed to appreciate.
(c) Exhibit C which is the last WILL of the Testator is the documentary evidence as to the state of the houses at No. 92, Akpakpava Street, Benin City which was ignored by the Learned Trial Judge.
(d) The legal authority for the reason why the learned trial judge even rejected the classification of the buildings into three in exhibit C as stated by the Testator was not cited by the Learned Trial Judge as same is not trite in law.”

In prosecuting the appeal, the appellants filed an amended brief of argument dated 9th May, 2012 on the same date and it was deemed as properly filed and served by this Court on 21st May, 2012. The 1st respondent’s brief of argument dated 21st October, 2011 was filed on 31st October, 2011 whilst the 2nd, 3rd, 4th and 5th Respondents’ brief of Argument dated 28th November, 2011 was filed on 2nd December, 2011.
The appellants formulated four issues for determination, namely: –

ISSUE ONE FROM GROUNDS FOUR AND FIVE
1. Having regard to the importance of documentary evidence which in the instant case is the last WILL of the Testator wherein he divided the houses at No. 92, Akpakpava Street, Benin City into three, whether the trial judge was right to have rejected the said classification on the basis that the parties were not privy to the said WILL and without visiting the locus in quo.
ISSUE TWO FROM GROUND ONE
2. Having regard to the concept of Igiogbe under Bini Native Law and Custom and the admitted facts brought out during the trial together with the documentary evidence tendered before the lower Court whether the trial judge was right to have declared all the houses at No. 92, Akpakpava Street, Benin City to be Igiogbe to be given to the 1st Respondent.
ISSUE THREE FROM GROUND TWO
3. Having regard to the judicial pronouncements on the concept of Igiogbe as the principal house where the testator lived and died as enunciated in Agidigbi vs. Agidigbi and Imade vs. Otabor and followed by Uwaifo vs. Uwaifo whether the trial Judge was right to have departed from the said binding authorities cited before him and still went ahead to declare all the houses at No. 92, Akpakpava Street, Benin City, as constituting Igiogbe.
ISSUE FOUR FROM GROUND 3
4. Having regards to the unique feature of the case of the Appellants and evidence led at the trial and the pleadings of the parties, whether the trial judge was right to have applied the principles in Idehen v. Idehen to the facts of this case.”
On his part, the 1st Respondent identified two issues for determination, thus:
i. Whether the houses known and called No. 92, Akpakpava Street, Benin city can both be regarded as the Igiogbe(s) of the Testator in view of the fact that the Testator inherited as the eldest son the entire premises and frontal storey building from the Respondent’s grandfather, before subsequently building his own Igiogbe on a part thereof where he later lived, died and was buried in? (Covered by grounds 1, 2 and 3).
ii. Whether the learned Trial Judge was bound to base his judgment only on the so-called classification of the subject-matter (No. 92, Akpakpava Street, Benin City) into three houses as was done by the Testator in Exhibit ‘C’, rather than the totality of evidence adduced before him as regards the number of houses contained therein? (Covered by grounds 4 and 5)”
The 2nd, 3rd, 4th and 5th Respondents formulated a sole issue for determination, that is:
“Whether the WILL Exhibit “C” made on 23rd November, 1990 was not in conflict with the Benin Tradition in the sharing of the property of a deceased Benin man?”
Each counsel for the respective parties, at the hearing of the appeal on 5th November, 2012 adopted and relied on his brief of argument. The appellants urged that the appeal be allowed whilst the respondents urged that the appeal be dismissed.
I adopt the issues identified by the appellants for determination of the appeal because to my mind, the issues formulated by the 1st and 3rd – 5th respondent are subsumed in the appellants’ issues. However, I shall consider appellants’ issues 2, 3 and 4 together first and thereafter consider issue 1 last.
Arguing issue two, Mr. E. O. Afolabi, learned Counsel for the appellants submitted that under Bini Native Law and Custom, the Customary concept of IGIOGBE is that the house wherein a Bini man lived, died and was buried, is the property which is inherited by the man’s eldest son, upon the performance of the burial rites of his father by the said son. He referred to the book: “Bini Native Law and Custom at a Glance”, authored by K. S. Okeaya-Inneh, SAN, at pages 29 & 32 thereof; another book: Edo Cultural Voyage by Chief S. O. U. Igbe at page 133 thereof; Agidigbi v. Agidigbi (1996) 6 NWLR (Pt. 454) 300 at 312; Lawal Osula v. Lawal Osula (1995) 32 LRCN 291 at 3181 Arase v. Arase (1981) 5 SC 33 at 63; Uwaifo v. Uwaifo (2005) 3 NWLR (pt. 913) 477 at 505; Abudu v. Eguakun (2003) 14 NWLR (pt. 840) 311 at 319; Imade v. Otabor (1998) 4 NWLR (pt. 544) 20.
Learned Counsel furthermore, submitted that there was evidence, particularly by the DW1 – one of the deceased Osemwingie’s wives that she and the other wives with their children lived in the storey building at the back, with the husband Osemwingie Ehigiator, until he died there. And further that, her husband had put tenants in the first building and also in the second building comprising 21 rooms. It was the submission of Mr. Afolabi that since these pieces of evidence by the DW1 was not challenged; it ought to have been accepted by the learned trial Judge. He relied on UBA Plc V. Mustapha (2004) 1 NWLR (pt. 855) 443; Okoebor V. Police Council (2003) 107 LRCN 812 at 835.
Referring to Idehen V. Idehen (1991) 5 LRCN 1590, the learned Counsel for the appellants contended that the facts therein are that although the houses were located at No. 92, Akpakpava Street and Oregbeni Street, Ikpoba Hill, Benin city, both parties in that case agreed that the two houses constituted the deceased’s Igiogbe. However, according to Mr. Afolabi, in the instant case, the parties do not agree that all the houses at No 92, Akpakpava Street, Benin City, constitute the Igiogbe of their late father Osemwingie Ehigiator.
With respect to issue three (3), Mr. Afolabi submitted that under the doctrine of stare decisis, the learned trial Judge ought not to have refused to follow the authorities of Agidigbi V. Agidigbi, Lawal V. Lawal and Uwaifo V. Uwaifo – all (supra) and to the effect that it is the house where a Bini man lived and died in, that is his Igiogbe and not any other house in his compound which he had put in tenants for commercial purposes.
He insisted that the refusal of the learned trial Judge to be bound by the above listed authorities was an affront to the doctrine of stare decisis. He referred to Dalhatu V. Turahi (2003) 15 NWLR (pt. 843) 310 at 336; L.M.B. Ltd V. P.T.F. (2006) 5 NWLR (pt.974) 463 at 476.
Regarding issue four (4) Mr. Afolabi, submitted that the learned trial Judge was in error when he relied on the authority of Idehen V. Idehen (supra) because in that case, the issue as to the use of any of the houses for commercial purposes did not arise. And that the eldest son in the instant case did not pre-decease his father as was the situation in Idehen V. Idehen. Further, that the houses in Idehen V. Idehen were not in the same compound or location and that the deceased in the instant case, in his WILL, named the storey building at the back as his house, which was where he lived and died, which was not the situation in Idehen V. Idehen.
P. O. Osemwenkha, Esq., learned Counsel to the 1st respondent, arguing his issue 1, in response to the appellants’ issues 2, 3 and 4, submitted that with the admission in paragraphs 8 and 9 of the appellants’ Joint Statement of Defence, to the effect that their grandfather owned the first property at No. 92, Akpakpava Street, Benin City which was subsequently inherited by their own father Osemwingie Ehigiator, that fact has been established. He referred to Hill Station Hotel Ltd V. Adeyi (1996) 4 NWLR (pt. 442) 294 at 312; Nitel Ltd V. Ikpi (2007) 8 NWLR (pt. 1035) 96 at 109 – 110.
He also submitted that the fact that under Benin Native Law and Custom, it has been firmly established that the eldest surviving son of a deceased Benin man inherits to the exclusion of any other child, the Igiogbe, (the house in which the deceased father lived and died) has received judicial notice by the decisions of this court and the apex Court. He referred to Idehen V. Idehen (1991) 6 NWLR (pt. 198) 382 at 422; Agidigbi V. Agidigbi (1992) 2 NWLR (Pt. 221) 98 at 124; Ogiaman V. Ogiamen (1967) 1 All NLR 245 at 247 and cases and materials on Land Law by Justice R.A.I. Ogbobine.
Learned counsel referred to the findings of the learned trial Judge at pages 137, 138 and 139 of the records of appeal, to the effect that “the premises known and called No. 92, Akpakpava Street, Benin city was originally acquired by EHIGIATOR UDUEBOR the father of OSEMWINGIE EHIGIATOR, i.e. the testator in Exhibit “C”; that “the first storey building and the bungalow behind it were built by EHIGIATOR UDUEBOR the grandfather of the Plaintiff.” And “that the entire premises including the first storey building and the attached building was the Igiogbe of the said EHIGIATOR UDUEBOR, in accordance with the Benin Customary Law” have not been shown to be perverse. He urged that those buildings be not disturbed because they were arrived at after a proper evaluation of the pieces of evidence placed before the learned trial Judge. He relied on Kaukia V. Maigbenu (2003) 6 NWLR (pt. 817) 496 at 517; Thompson V. Arowolo (2003) 24 WRN 1 at 36 – 37; Sule V. Hamidu (1998) 4 NWLR (pt.90) 576 at 520.
Mr. Osemwengha, insisted that the authorities of Agidigbi V. Agidigbi; Arase V. Arase; Uwaifo V. Uwaifo all (supra) relied upon by the appellants are inapplicable to the facts of the instant case. He, instead submitted that it is the authority of Idehen V. Idehen (supra) which is most applicable to the facts of the instant case herein.
Now, we must first re-echo some findings of the learned trial Judge at pages 136, 137, 138 and 139 of the records of appeal in their proper perspective, as they appear to me to be incontrovertible. His Lordship found that:
i. The entire premises at No. 92, Akpakpava Street, Benin City was inherited by Osemwingie Ehigiator, (the father of the 1st respondent and the appellants) from his own father Ehigiator Uduebor, as his Igiogbe;
ii. Ehigiator Uduebor lived and died in the first storey building and was buried in the same premises;
iii. The entire premises and storey building with an attached building was the Igiogbe of Ehigiator Uduebor in accordance with Benin Customary Law;
iv. The second storey building was built by the deceased Osemwingie Ehigiator, the father of the 1st respondent and the appellants;
v. Osemwingie Ehigiator, lived and died in the second storey building and was buried therein as his Igiogbe;
vi. Osemwingie Ehigiator, the eldest son of his father Ehigiator Uduebor, inherited the premises at No. 92, Akpakpava street, Benin City where his father lived and died and was buried within the said premises;
vii. The 1st respondent, being the eldest son of his father the deceased Osemwingie Ehigiator, is entitled to inherit the house wherein his father lived, died and was buried.
Upon a calm perusal of the grounds of appeal herein, I am unable to see where any of the above findings were challenged by the appellants. I am therefore satisfied that the said findings are deemed as duly established and are subsisting/extant. See Calabar V. Ekpo (2008) 2 SCJN 307 at 324 – 325; All Progressive Grand Alliance (APGA) & Anor V. Chief Victor Ume (2011) 3 SCJN 274; Akere V. Governor, Oyo State (2012) AII FWLR (pt. 634) 53 at 81 (SC); Lucky Onowan & Anor V. Iserhien (1976) 9 – 10 SC 95 at 98.
To my mind, the real contention of the appellants is that the learned trial Judge was in error when he held that the entire buildings on the premises at No. 92, Akpakpava Street, Benin City constitute the Igiogbe of the late Osemwingie Ehigiator and that the 1st respondent being the eldest son, was entitled to inherit the said buildings. Furthermore, that the learned trial Judge chose to apply the authority of Idehen V. Idehen (supra) instead of the authorities of Agidigbi V. Agidigbi; Imade V. Otabor; Lawal Osula V. Lawal Osula; Uwaifo V. Uwaifo all (supra) which decided that it is the principal house in which a deceased Benin man lived and died, that is regarded as his Igiogbe and not the entire premises or compound made up of other houses where he did not live and died in. So, whereas the appellants contended that the authority of Idehen V. Idehen (supra) was inapplicable, the 1st respondent, on the other hand posited that it is the most fitting and appropriate authority to the facts of this case, hence it was rightly applied by the learned trial judge.
I think, it is the understanding and interpretation of the decision in Idehen V. Idehen (supra) which will separate the wood from the trees in this contention? So, what are the facts in Idehen V. Idehen (supra)?
The facts in Idehen V. Idehen (1991) 6 NWLR (pt. 198) 382 were that Joshua Iserhienrhien Idehen, a wealthy Benin man died in Benin City in September, 1979. He had made a Will in 1973 wherein he devised to his eldest son, Dr. Humphrey Idemudia Idehen, his two houses at No. 62, Akpakpava Street, Benin City and No. 1, Oregbeni Street, Ikpoba-Hill, where he lived during his life time. Prior to the death of Joshua Idehen, his eldest son – Dr. Humphrey Idehen pre-deceased him. So at the time that Joshua Idehen died, Joseph Osemwingie became his eldest son. He claimed that under the Bini Customary Law, the two properties in which his father lived during his lifetime, known as his Igiogbe, as well as substantially all the properties comprised in the estate of the testator – Joshua Idehen, became his as the eldest son of Joshua Idehen.
The main question for determination at the trial High Court, Benin City in respect of the devise of the Igiogbe of Joshua Idehen was whether the properties had passed to the sons of Dr. Humphrey Idehen who had pre-deceased Joshua Idehen – his father by virtue of Section 28 of the Wills Law or whether such passing of the properties to the sons of Dr. Humphrey Idehen, being incompatible with Bini Customary Law was void and the 1st respondent therein was entitled to the inheritance of the said properties. The trial Chief Judge held that by virtue of the Supreme Court decision in Oke V. Oke (1974) 1 All NLR 443 and Section 3(1) of the Wills Law, a father could not by his Will deprive his eldest son, who has the right under Bini Customary Law to inherit the principal dwelling house of his father where he lived prior to his death, of that right. Hence, the devise of the Igiogbe to the grandson of Joshua Idehen was void and declared that in accordance with Bini Customary Law of succession and inheritance, the 1st respondent Joseph Idehen, as the eldest surviving son succeeded exclusively to the two properties – the Igiogbe of his father – Joshua Idehen.
On appeal to the Court of Appeal, Benin Division, in a majority judgment of 2 to 1, the judgment of the trial Court was affirmed wherein the properties in question that are the Igiogbe of Joshua Idehen were declared for Joseph Idehen. Furthermore, the Court of Appeal declared the entirety of the depositions in the Will of Joshua Idehen void. That was the point or issue upon which Oguntade, JCA, (as then was) dissented.
Upon a further appeal to the Supreme Court, the very narrow issue for consideration was:
“Whether the phrase ‘subject to any Customary Law relating thereto occurring at section 3(1) of the Wills Law of Bendel State is a qualification of the testator’s capacity to make a Will or whether it is no more than a qualification of the subject matter of the property disposed of or intended to be disposed of under the Will.”
The parties in that case all conceded that the two properties, namely at No. 62, Akpakpava Street, and No. 1, Oregbeni Ikpoba-Hill, Benin City, were the dwelling house and Igiogbe of their father and testator Joshua Idehen.
The full complement of seven Justices of the apex court, overturned the majority decision of the Court of Appeal in respect of the nullification of the entirety of the depositions in the Will Joshua Idehen, but affirmed the part of the judgment that the eldest son – Joseph Idehen was entitled under Bini Customary Law to Joshua Idehen’s Igiogbe.
It is clear to me, after a thorough perusal of the facts in Idehen V. Idehen, that the facts therein are certainly not the same as the facts in the instant case. For example, the eldest son herein did not pre-decease his own father as was the case in Idehen V. Idehen. So also is the fact that in Idehen V. Idehen, the parties were all agreed that the two houses therein albeit separately located at 62, Akpakpava Street and No. 1, Oregbeni, Ikpoba-Hill, Benin City, were the dwelling houses of their father Joshua Idehen where he lived and died, and so they constituted his Igiogbe; whereas in the instant case, the bone of contention is that although the properties are located in the same premises at No. 92, Akpakpava Street, Benin City, the parties are not agreed as to which of them was the dwelling house wherein their father – Osemwingie Ehigiator lived and died, as his Igiogbe. I shall return here later.
In Agidigbi V. Agidigbi (1992) 2 NWLR (pt. 221) 98, this Court again was faced with the vexed issue of the Bini Customary Law in respect of succession and inheritance of property of a deceased Bini man relating to the concept of Igiogbe. There were three houses at 34A, 34B and 34C Dawson Road, Benin City, which belonged to Agidigbi Uwagboe – the father of the parties. There was evidence that the said Agidigbi Uwagboe lived in the house at No. 34 C Dawson Road, Benin City, as his permanent abode prior to his death. There was evidence too that whereas the building at No. 348 was unoccupied by anybody; the building at No. 34A was rented out to the Ministry of Education.
The learned trial Judge held that the Igiogbe of Agidigbi Uwagboe was the house at No. 34C Dawson road, where he “lived and died and where he was buried”. The learned trial Judge’s decision was confirmed by this Court at page 575 of the report to that effect. And on a further appeal to the Supreme Court (See Agidigbi V. Agidigbi (1996) 6 NWLR (pt. 454) 300 at 312, the decisions of the trial High Court and this Court were affirmed.
More recently in Uwaifo V. Uwaifo (2005) 3 NWLR (pt.913) 477, this Court again dealt with the same question of the Bini Customary Law relating to succession and inheritance in respect of the concept of Igiogbe.
The late Pa Daniel Ediagbonya Uwaifo had two properties located at Nos. 2 and 4 Ohuoba Street, Benin city. He lived in, died and was buried in the house located at No. 4 Ohuoba Street, Benin City. The other property at No. 2, Ohuoba Street, Benin City was rented out for commercial purposes.
This Court, per my Lord, AUGIE, JCA, at page 509 of the report, succinctly stated that:
“Clearly houses rented out for commercial purposes cannot be regarded as the Igiogbe to be inherited by the eldest son of a deceased particularly as in this case where there are two houses and the deceased lived, died and was buried in one but rented out the other during his lifetime.
I therefore agree with the learned trial Judge that the Igiogbe in this case is that house known and numbered as No. 4, Ohuoba Street, Benin City where the deceased lived, died and was buried.”
In the circumstances of the instant case at hand, the pieces of evidence by the 4th appellant and the DW1 were to the effect that they both lived with the deceased Osemwingie Ehigiator in the second storey building he built at the back and that that was where he lived, died and was buried in. These pieces of evidence were not controverted by the 1st respondent and his witnesses. Instead, the Plaintiff/1st respondent confirmed that his father Osemwingie Ehigiator lived and died in the storey building at the back which he built. And furthermore, that the said Osemwingie Ehigiator was buried in the said second storey building.
The law is settled that the evidence by a party or of his witness which favours the opponent’s case is a solemn admission in favour of the opponent’s case. Just See: Adeyeye & Anor V. Ajiboye (1987) 1 SCNJ 1 at 13; Oseni Aboyeji V. Amusa Momoh (1994) 4 SCNJ (pt. II) 302; Olatunji V. Adisa (1995) 2 SCNJ 90 at 102; Okonkwo V. Ogbogu & Anor (1996) 3 SCNJ 190 at 204. Therefore, what a party admits to be true can reasonably be presumed to be so. This is more so where the admission was made on oath. See: Midford Edosomwan V. Kenneth Ogbeyfun (1996) 4 SCNJ 21 at 36; Onisaodu & Anor V. Eleweju & Anor (2006) All FWLR (pt.328) 677 at 687; Adio Fagunwa & Anor V. Adibi & Ors (2004) 7 SCNJ 322.
I, hold therefore that the deceased Osemwingie Ehigiator, lived, died and was buried in the second storey building in his premises at No. 92, Akpakpava Street, Benin City.
There are pieces of evidence by the 4th defendant/appellant that his father – the deceased Osemwingie Ehigiator had put some tenants in the storey building in the front and also that the “second house i.e. the bungalow, also had various tenants.” The same were confirmed by the DW1 a wife of the deceased Osemwingie Ehigiator, that: “In his lifetime, my husband put tenants in the first building. Tenants also occupied the second building of 21 rooms. Even up till now there are tenants in these buildings. There are no tenants in the third building. In his lifetime, my husband relied on the rents for his upkeep as well as that of his family, and to pay school fees for the children.” See page 85 of the records of appeal.
Again, the Plaintiff/1st respondent admitted in his evidence under cross-examination that his late father had put tenants in the storey building in the front and collected rents from the tenants. Furthermore, that his deceased father put tenants in the whole house and also put tenants in the Oteghodo building which consists of 19 rooms. See page 74 of the records of appeal.
I am satisfied that upon the pieces of evidence by the 4th defendant/appellant; the DW1 and the Plaintiff/1st respondent, the deceased Osemwingie Ehigiator had rented out for commercial purposes, all the rooms in the first storey building and all the rooms in the Oteghodo building (bungalow) to tenants from whom he used to collect rents. I, so hold.
Following from the above, I am of the considered and firm opinion that the facts of this case are more in accord with the facts in Uwaifo V. Uwaifo (supra) and Agidigbi V. Agidigbi (supra) than the facts in Idehen V. Idehen (supra) which was erroneously applied by the learned trial Judge.
I, think the error of the learned trial Judge was predicated on his finding that the premises at No. 92, Akpakpava Road, Benin City was originally acquired by the late grandfather of the Plaintiff/1st respondent – Ehigiator Uduebor. The issue for his determination was certainly not as to the acquisition of the premises, but as to which of the buildings on the premises, was the last dwelling house where the father of the 1st respondent lived, died and was buried in, which constituted his Igiogbe and inheritable by the 1st respondent under Bini Customary Law.
I now return to Idehen V. Idehen again. The learned trial Judge at page 140 of the records of appeal, after having referred to the authorities of Agidigbi V. Agidigbi (supra); Lawal Osula V. Lawal Osula (supra) and Uwaifo V. Uwaifo (supra) said:
“The significant differences between those cases and the instant case are that the testator in each case acquired the land and erected the several buildings. This was the response of P.O. Osemwenkha Esq. with which I am in agreement.
This view is bolstered by the decision of IDEHEN v. IDEHEN supra. In that case, the Supreme Court held that the house built by the grandfather of the parties and inherited by their father as Igiogbe along with the house built by their father in which he lived and died (and was buried) jointly constitute his own Igiogbe which had to be inherited by the eldest son.
It would appear from this decision that the use to which a house inherited as an Igiogbe is put, does not derogate from its status as an Igiogbe. Thus the fact that the father of Plaintiff put tenants in the first storey building does not mean it is no longer the Igiogbe of Ehigiator Uduebor, which has been inherited by his eldest son Osemwingie Ehigiator.”
The learned trial Judge, with respect, clearly misapprehended the ratio decidendi in Idehen V. Idehen which I had earlier in this judgment highlighted. I do not think that I need to rehash them again. The misapprehension of the learned trial Judge has only fulfilled the “prediction” of his Lordship, Kolawole, JCA in Agidigbi V. Agidigbi (supra) that the decision in Idehen V. Idehen would be relied upon by learned Counsel, in future, “on the portion which favours or suits their cases before the lower courts. It is in my experience, not unlikely that conflicting decisions will emerge from various jurisdictions of the courts.”
The above notwithstanding, it is very clear to me that if the learned trial Judge had understood the decision of this court in Uwaifo V. Uwaifo (supra) which seems to be the more recent decision on the Bini Customary Law of Succession and Inheritance with respect to the concept of Igiogbe of a deceased Bini man, he would not have come to the decision that “the use to which a house inherited as an Igiogbe is put, does not derogate from its status as an Igiogbe”. It certainly matters because, if an inherited Igiogbe is rented out for commercial purposes, it cannot be said that the deceased inherited such property as Osemwingie Ehigiator herein did and then lived, died and was buried in the same house which he had rented out, except of course, if he shared the rented accommodation with his tenants. And that certainly defeats the quintessence of an Igiogbe – which is the family seat or ancestral home of the head of the family!
I have considered the submission of Mr. Afolabi with respect to the doctrine of stare decisis and that the learned trial Judge refused to be bound by the judgments of this Court and the Supreme Court, such as Agidigbi V. Agidigbi (supra) and Uwaifo V. Uwaifo (supra).
Unarguably, the doctrine of stare decisis remains a sine qua non in the hierarchical organogram of our courts in order to ensure the certainty of the state of the law and its application. Hence, the subordinate courts are duty bound and without question, must abide by and remain bound by the decisions of the higher courts. Therefore, it will tantamount to “gross insubordination” for a lower Court to refuse to follow and be bound by a decision on the point of law involved in the matter before him which had already been settled by a higher court.
Indeed the doctrine of stare decisis and the bindingness of judicial precedents are the cornerstone of our legal system. See Abaye V. Ofili (1986) 1 NSCC 94; Chief Aliu Abu & Ors V. Chief Abubakar Zibiri Odugbo & Ors (2001) 7 SCNJ 170; Dalhatu V. Turaki (2003) 15 NWLR (pt.843) 310; L.M.B. Ltd V. P.T.F. (2006) 5 NWLR (pt.974) 463 at 476; Lawani Adesokan & Ors V. Sunday Adetunji & Ors (1994) 5 NWLR (pt.3 46) 540, just to mention a few.
However, in the circumstances of this case where a host of legally decided authorities of this court and the apex court such as Agidigbi V. Agidigbi (supra); Arase V. Arase supra); Idehen V. Idehen (supra) and Uwaifo V. Uwaifo (supra) were cited by Counsel in the matter to the learned trial Judge and to his understanding, he felt that a particular decision, out of the lot cited to him, would most appropriately fit into the facts of the case before him and he subsequently applied it whether rightly or wrongly, I do not think it would be a refusal to follow and be bound by the decisions of the higher courts.
In the case at hand, I had earlier in this judgment demonstrated that the learned trial Judge had a misapprehension of the ratio decidendi in Idehen V. Idehen (supra) which he chose to apply to the facts of the case before him, albeit, erroneously. That to my mind, remains in the realm of a mistake of the head and not of the mind. Therefore, I will not say it is a mark of impertinence or rascality/insubordination on the part of the learned trial Judge, in the circumstances.
In any event, I am satisfied and have come to the conclusion that the Igiogbe of Osemwingie Ehigiator, the deceased father of the Plaintiff/1st respondent and of the appellants, is the second storey building wherein he lived, died and was buried at No. 92, Akpakpava Street, Benin City and it is the only property which is inheritable exclusively by the 1st respondent as the surviving eldest son of Osemwingie Ehigiator at his death. Therefore, I resolve issues 2, 3 and 4 each in favour of the appellants.
Issue one, relates to the refusal by the learned trial Judge of the classification in the WILL of the testator – Osemwingie Ehigiator, wherein he divided the houses at No. 92, Akpakpava Street, Benin City, into three, on the ground that the parties were not privy to the said WILL and without visiting the locus in quo.
All learned Counsel herein, in each of their briefs of argument, made trenchant submissions on this issue. I have dispassionately considered them.
The WILL of OSEMWINGIE EHIGIATOR, in question, was received into evidence at the instance of the Plaintiff/1st respondent and it was marked Exhibit “C”.
For ease of reference and appreciation, Exhibit “C” is reproduced here below:
“THIS LAST
WILL
AND
TESTAMENT
OF
MR. OSEMWINGIE EHIGIATOR
PREPARED:
BY: SGD.
For OSAHENI UZAMERE & CO.
LEGAL PRACTITIONERS,
PROSPECT LAW CHAMBERS,
NO. 18B, MISSTON ROAD,
BENIN CITY.
THIS IS THE LAST WILL AND TESTAMENT OF MR. OSEMWINGIE EHIGIATOR OF NO.92, AKPAKPAVA STREET BENIN CITY.
1. I hereby revoke all former testamentary dispositions made by me and declare this to be my Last Will.
2. I appoint Mr. Ogbemudia Akagbonghae of Igui Edaiker Village and Onaiwu Akagbonghae of Igui Edaiken, Benin City to be the executors and trustees of the WILL.
3. I DEVISE TO MY SON Festus Osenmwingie my house (Storey Building) No. 2 and all the appurtenances thereto situate behind the Storey Building known No. 92, Akpakpava Street, Benin City. (For purpose of emphasis the Storey building at No. 92, Akpakpava Street is to be known as story building No. 1, while the second storey building behind is to be known as storey building No. 2, while the building in between is house No. 3).
4. I also devise to my son Osazuwa Osemwingie, 4 rooms in storey building No. 1, at No. 92, Akpakpava Street, Benin City. The said 4 rooms are the rooms upstairs when you go through the inner staircase of the house.
5. I also devise to my son Osaro Osemwingie, 4 rooms upstairs in the storey building No. 1 otherwise known as No. 92, Akpakpava Street, Benin City, when you go into the house from the outside staircase.
6. I give to my daughters except Otiti the remaining 8 rooms in house No. 3 and two stores just by Obasoyen Compound to collect rents from same and share among themselves.
7. I devise to all my sons except Moses, Brodick and David all the 13 rooms and five stores on the ground floor of the storey building No. 1 facing Akpakpava Road Benin City to collect rents from same and share among themselves.
8. I devise to my daughter Taiwo my Television Set.
9. I devise to Felicia – my daughter my standing fan and to Patience my Table Fan.
10. My plot of land measuring 200feets by 84 situate and lying at Ikpoba Water side should be divided into two (2) equal parts and shared between Osaro and Moses.
11. My plot of land measuring 100feet by 100feet, situate and lying at Nosayaba Street should be divided into two equal part and one part is devised to Augustine Osemwingie and Azeyosabor Osemwingie while the other half is devised to Taiwo and Patience.
12. I also devise the premium from my life insurance with Crusade Insurance Co. Limited, to Festus; Osaro and Osazuwa Osemwingie, to share equally.
13. I HEREBY DECLARE that my sons Broderick; and David must not inherit any share out of my Estate. Broderick should be given only N210.00 (Two Hundred and Ten Naira) being money he gave to me twice on two occasions. David on the other hand made me to pay N2, 010.00 (Two Thousand and Ten Naira) to Aramwonka (witch doctor) when he accused me of witch-craft. Also David has been highly disrespectful to me and had dragged me to the Police Station on several occasions. This he had done with the active connivance of his sister – Otiti. Both have joined together to fight and injure me in my lifetime.
14. I also DECLARE that the said Otiti must not inherit any share from my Estate apart from the E40.00 (Forty Pound). She gave to me as her bride price (dowry) and N100.00 (One Hundred Naira) on another occasion. Consequently, N180.00 (One Hundred and Eighty Naira) should be returned to Otiti from my Estate.
My Children being as hereunder – named: –
SONS
1. Broderick
2. David
3. Moses
4. Festus
5. Osaro
6. Osazuwa
7. Agbohai
8. Osakpamwan
9. Efe
10. Augustine
11. Okoko John

DAUGHTERS
1. Otiti
2. Felicia
3. Patience
4. Taiwo
5. Queen
6. Isoken
7. Helen
8. Mary
9. Esther
10. Osazogie
11. Adezuwa
12. Osakioduwa
13. Azeyosagbo.

15. I DECLARE that my main bed should be given to Festus while the other beds are to be shared among my children in order of seniority, starting from Felicia.
I DEVISE AND BEQUEATH all my personal property and all other personal properties of my Estate not hereby or by any (Codicil hereto otherwise specifically disposed to) which I may be entitled to at my death or over which I may have any general power of appointment unto my following children, Festus, Osaro and Osazuwa.
IN WITNESS WHEREOF I the said OSEMWINGIE EHIGIATOR have hereunto set my land this 23rd day of November, 1990.
SGD.

TESTATOR
The contents of this Will were carefully read over in English Language to the TESTATOR by me Sgd. He being blind whereupon he appeared perfectly to understand same.
SIGNED by the above named MR. OSEMWINGIE EHIGIATOR as his LAST WILL in the presence of us present at the same time and at the TESTATOR’S request in his presence and in the presence of each other have hereunto subscribed our names as witnesses.
SIGNATURE: SGD.
NAME: FRANKLIN OJOBOR, ESQ.
ADDRESS: NO. 125 MISSION ROAD BENIN CITY.”

At paragraph 22(c) of the Plaintiff’s Further Amended Statement of Claim, he prayed for:
“22 (c). An order to set aside and declare as null and (sic) void clauses 3, 4, 5, 6, 7 and 13 of the purported WILL of late Mr. Osemwingie Ehigiator dated the 23rd of November, 1990 as it offends against Bini Native Law and Custom and the WILLS LAW Cap. 172 of the Laws of Bendel State 1976 as applicable in Edo State.”
Exhibit “C”, or its face indicate that the houses located at No. 92, Akpakpava Street, Benin City are three, namely:
i. A Storey building No. 1,
ii. A Storey building No.2 and
iii. All appurtenances thereto situate behind the storey building – which is a building between the houses Nos. 1 and 2 – otherwise called house No. 3.
The parties effectively joined issues in their respective pleadings as to whether or not there are three or two buildings at No. 92, Akpakpava Street, Benin City. The Plaintiff/1st respondent, in his evidence-in-chief testified at page 74 of the records of appeal, thus:
“It is not true that there are three buildings at No. 92, Akpakpava Street, there are only two buildings there. The first one has an Oteghodo attached to it.”
Under Cross-examination, the Plaintiff said:
“there are nineteen rooms in the building I call Oteghodo. My father put tenants in all the 19 rooms. My father, at the time he died, was living in the storey building at the back built by him.
The storey building in front built by my grandfather and the storey building built by my father, constitute the Igiogbe in Benin Customary Law, in this instance.”
It is glaringly evident from the ipse-dixit of the Plaintiff/1st respondent, that there are two storey buildings, one built by his grandfather and another built by his own father at No. 92, Akpakpava Street, Benin city. He also said that there is an Oteghodo – a building containing nineteen (19) rooms attached to the fist storey building built by his grandfather.
In his own evidence, Anthony Ehigiator, PW2 and the younger brother of the deceased Osemwingie Ehigiator, testified to the fact that apart from the two storey buildings at No. 92, Akpakpava Street, Benin City, there is also a building called Oteghodo, attached to the first storey building.
The pieces of evidence by the 4th defendant/appellant with that of the DW1 who both lived with the deceased Osemwingie Ehigiator at No. 92, Akpakpava Street, Benin City before the demise of the latter, are that there are two storey buildings situate at the premises in question. They each, also said that there is a bungalow located in between the two storey buildings aforesaid.
The learned trial Judge in his findings at pages 138 – 139 of the records said:
“I accept the testimony of PW1, 2, 3, the plaintiff and 2nd defendant that the first storey building and the building behind it were built by Ehigiator Uduebor the father of Osemwingie Ehigiator. I therefore find and hold that the first storey building and the bungalow behind it were built by Ehigiator Uduebor the grandfather of Plaintiff.”
I am of the considered opinion that following the pieces of evidence adumbrated above at the instance of both parties, it was clear to the learned trial Judge that there were three buildings at No. 92, Akpakpava Street, Benin City. Therefore, the fact that there were two storey buildings and a bungalow behind the first storey building, were not lost in the mind of the learned trial Judge, hence his finding as above reproduced in respect of the bungalow or the building behind the first storey building. In the circumstances, I do not think that the failure to visit the locus in quo, by the learned trial Judge, though desirable, was a minus, on his part, as strenuously argued by learned Counsel to the appellants.
Now, with the findings of the learned trial Judge in respect of the houses located at No. 92, Akpakpava Street, Benin City, being three in number, that is, two storey buildings with another building/bungalow behind the first storey building, was he justified in rejecting the classification by the testator in Exhibit “C” of his buildings as Nos. 1, 2 and 3? Is the testator not the owner of those buildings which he classified as building Nos. 1, 2 and 3? Needed the 3rd – 5th, 7th – 9th and 11th defendants, that is, the appellants herein to have been privy to the making of Exhibit “C” – a WILL, before it has a probative value? I, answer all the questions above posed emphatically in the negative.

A WILL is ambulatory. It can be changed by the testator before his death. However, it is indeed a secret document, kept away from the knowledge of the beneficiaries thereof until the demise of the testator. And which is why, it is usually sealed and kept in the custody of the probate Registrar of the High Court of Justice. It is strictly a confidential document, known only by the testator and a witness with a Solicitor who prepared it for the testator. I think that is elementary enough which does not require any hair- splitting or hard thinking to be comprehended and understood!
For all I have been saying on this issue, I resolve it in favour of the appellants.
However, before I draw the curtain on this appeal, it is pertinent to peruse the contents of Exhibit “C” again vis-Ã -vis clauses 3, 4, 5, 6, 7 and 13 thereof which were declared null and void by the learned trial Judge.
Clause 3 is a bequest to Festus Osemwingie of the Storey building No. 2. Clause 4 is a bequest to Osazuwa Osemwingie, of 4 rooms in the storey building No. 1.
Clause 5 is a bequest of 4 rooms at the upstairs of the storey building No. 1 to Osaro Osemwingie.
Clause 6 is a bequest of 8 rooms in the house No. 3 and two stores just by Obasoyan compound, to the testator’s daughters, except Otiti:
Clause 7 is a bequest of 13 rooms and five stores on the ground floor of the storey building No.1, to all the testator’s sons, except Moses, Broderick and David; Clause 13 is a declaration by the testator that his sons Broderick and David must not have any share in his estate.
Having found and held that the storey building No. 2 is the Igiogbe of the testator – Osemwingie Ehigiator, the bequest at Clause 3 of the said house to Festus Osemwingie not being the eldest surviving son of the testator, could not have been sustained under Bini Customary Law. Clause 3 was indeed null and void and properly struck out by the learned trial Judge. I confirm it.
However, all the bequests contained in Clauses 4, 5, 6 and 7 being not in connection with the storey building No. 2 (the Igiogbe of the testator) are hereby confirmed by me. I hold therefore that the said clauses 4, 5, 6 and 7 were erroneously struck out by the learned trial Judge and the same is ordered as set aside. Clauses 4, 5, 6 and 7 are each restored in Exhibit “C”.
The testator’s declaration at paragraph 13 affects only Broderick, since David, the eldest surviving son of the testator at the latter’s death, by virtue of S.3 (1) of the Wills Law, 1976 of Bendel State, as applicable in Edo State, and Customary Law of Inheritance, succeeded exclusively to the property known as the storey building No. 2 at 92, Akpakpava Street, Benin City.
It is ordered, accordingly. The appeal succeeds in part.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother TOM SHAIBU YAKUBU, JCA. I agree that the appeal be allowed in part. I will add a few words.
By virtue of OKE V. OKE (1994) 1 ALL NLR 443 and S.3 (1) of the Wills Law of Bendel State, it had been established even later on in AGIDIGBI V. AGIDIGBI (1992) 2 NWLR PT. 221 Pg 98. UWAIFO V. UWAIFO (2005) 3 NWLR PT. 913 Pg. 477, that a Father could not by his will deprive his eldest son who has the right under Bini Law to inherit the principal dwelling house of testator known as the Igiogbe. Any devise of the Igiogbe to any other child except the eldest son of the deceased is void and liable to be set aside.
In this case all the evidence led by both parties are to the effect that the deceased rented out the rooms in the house adjourning the one he lived whereas he lived, died and was buried in the second storey building in his premises at No. 92, Akpakpava Street, Benin. I agree with the learned trial Judge and my learned brother’s judgment that Clause 3 in Exhibit C – the Will of Osewingie Ehigiator devising storey building No. 2 to Festus Osewengie whereas David is the eldest surviving son should be struck out not being sustainable under Bini Law. All other bequests in the testator’s Will which do not affect the storey building No. 2 the Igiogbe are hereby restored being erroneously struck out by the trial judge. For the fuller and erudite reasons ably set out in the lead judgment, I too allow the appeal in part. I abide by all the consequential orders in the lead judgment.

TUNDE OYEBANJI AWOTOYE, J.C.A.: My learned brother TOM SHAIBU YAKUBU JCA graciously allowed me to see the draft of the Judgment earlier delivered in this appeal. I agree with his reasoning and conclusion in the judgment. I have nothing more to add. I subscribe to the consequential orders made in the lead judgment.

Appearances

E. O. Afolabi, Esq. (with him: D. A. Uhunwangho, Esq.)For Appellant

AND

P. O. Osewenkha, Esq., (with him: Miss O. Ehioghiren) for 1st Respondent
P. A. Eremosele, Esq. for 2nd-5th RespondentsFor Respondent