MR. HENRY OSARUMWENSE OBASOHAN v. MR. JULIUS OSARENOMA OBASOHAN JNR}
(2019)LCN/12819(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of March, 2019
CA/B/110/2017
RATIO
ARBITRATION
“‘An Arbitration’ simply means ‘a reference to the decision of one or more persons either with or without an umpire of a particular matter in difference between the parties’ per Ogbuagu, JSC in Agala v. Okusin (supra) at 448. The Supreme Court, per Karibi-Whyte, JSC, extensively stated the meaning of customary arbitration in the case of Raphael Agu v. Christian Ozurumba Ikewibe (supra) at 407 as follows: In the first place a customary arbitration is not an exercise of the judicial power of the Constitution not being a function undertaken by the Courts. Secondly, customary law is by virtue of Section 274(3), 4(b) an ‘existing law’ being a body of rules of law in force immediately before the coming into force of the Constitution 1979. Thus customary law which includes customary arbitration was saved by Section 274(3) & 4(b) of the Constitution 1979. See Giwa v. Inspector-General of Police (1985) 6 NCLR 369, Enyinnya v. Commissioner of Police (1985) NCLR 464.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. HENRY OSARUMWENSE OBASOHAN Appellant(s)
AND
MR. JULIUS OSARENOMA OBASOHAN {JNR} Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment):
The respondent was the claimant in Suit No. B/108/2011 instituted in the High Court of Edo State, Benin Judicial Division, where he claimed in paragraph 67 of his 2nd further amended statement of claim against the appellant, then defendant, the following reliefs:
A) A declaration that the claimant is the first son of late Julius Edomwonyi Obasohan and as such best entitled to perform the ‘Akor’; (final burial) of his father and thereafter inherit his late father’s Igi-Ogbe known as No. 81, Sakponba Road, Benin City, Edo State.
B) A Declaration that the claimant is the person best entitled to apply and be issued the certificate of occupancy of all that piece or parcel of land measuring 100ft x 100ft lying, being and situate at No. 81, Sakponba Road, Benin City which he inherited from his father as Igiogbe.
C) An Order of perpetual injunction restraining the defendant whether by himself, his agents, servants, privies, assigns, administrators, executors and whosoever connected with the defendant in any manner whatsoever from further interfering with the claimant?s right and enjoyment of all that landed property measuring 100ft x 100ft with the buildings thereon lying, being and situate at No. 81, Sakponba Road, Benin City, Edo State, the property of the claimant.
D) An Order setting aside the portion of the sharing document of late Julius Edomwonyi Obasohan?s property spitting No. 81, Sakponba road, Benin City into two for the claimant and defendant. The claimant being the rightful person to inherit the entire property known as No. 81 Sokponba Road, Benin City measuring 100ft x 100ft the said property being an Igi-Ogbe which only the claimant is entitled to it.
ALTERNATIVELY
i. A declaration that the sharing of Late Julius Edomwonyi Obasohan’s properties by the Okaegbe of Obasohan family and members of Obasohan family was based on the understanding reach by the family to share the property known as No. 81 Sokponba Road between the claimant and the defendant to avoid the acrimony the issue of the defendant’s paternity will generate.
ii. An Order of this Honourable Court upholding the sharing of Late Julius Edomwonyi Obasohan’s properties by the Okaegbe of Obasohan family and family members of Obasohan?s family as just and equitable.
iii. An Order of this Honourable Court restraining the defendant from reneging from the agreement reached by the claimant and defendant coupled with the letter both of them wrote to the family of Obasohan leading to the amicable settlement of the defendant paternity and the consequent sharing of the property known as No. 81, Sokponba Road, Benin City.
iv. An Order of perpetual injunction restraining the defendant his heirs, servants, agents, privies, executors, administrators and howsoever described from further interference with the interest and enjoyment of the claimant in respect of the said property shared to him measuring 40ft by 100ft lying and situate at No. 81 Sokponba Road, Benin City.
v. A Declaration that the claimant is a person entitled to apply to relevant Government agencies and to be issued with the certificate of occupancy in respect of all that piece or parcel of land measuring 40ft by 100ft lying and situate at No. 81 Sokponba Road Benin City being part of his shares from his late father?s properties.?
The appellant filed an amended statement of defence and counterclaim wherein he counterclaimed as follows:
(A) A declaration that under Benin native law and custom, the defendant/counter claimant as the eldest surviving son of his late father, Mr. Julius Edomwonyi Obasohan and upon the performance of the burial rites inherited to the exclusion of all the other children, the Igiogbe of his late father which is situate and known as No. 81, Sakponba Road, Benin City where his late father lived and died.
(B) A declaration that the purported sharing of the Igiogbe No. 81, Sakponba Road, Benin City between the claimant and the defendant by the Obasohan family is against Benin Native Law and Custom and invalid.
(C) An Order of this Honourable Court, setting aside the purported sharing of the Igiogbe No. 81, Sakponba Road, Benin City between the claimant and the defendant by the family.
(D) An Order of this Honourable Court granting the defendant exclusive possession and ownership of the said house, No. 81, Sakponba Road, Benin City.
(E) An Order of perpetual injunction restraining the claimant his servant, agents workmen, privies from further trespass unto the said house situate and known as No. 81, Sakponba Road, Benin City.
(F) A declaration that the defendant is the person entitled to the granting of a statutory right of occupancy and issuance of certificate of occupancy over all that land measuring 100ft by 100ft together with the house thereon situate and known as No. 81, Sakponba Road, Benin City.
Judgment of the trial Court, after the taking of evidence and addresses of counsel, was delivered on the 9th day of February, 2017 in favour of the respondent. Being dissatisfied, the appellant filed a notice of appeal which contains 3 grounds and the notice covers pages 399 to 402 of the record of appeal.
In the appellant?s brief, filed on 13/04/2017, two issues for determination have been distilled as follows:
1. Whether the learned trial judge was right in law and on the facts in holding that the parties were not bound by the Customary Arbitration of the Oba of Benin regarding the subject matter of the Igiogbe.
2. Whether the learned trial judge was right in law and on the facts in holding that the Obasohan family could not accept the appellant as the legitimate son of the late Julius Edomwonyi Obasohan.
The above two issues have been adopted by the respondent in his brief filed on 21/06/2018. To determine the appeal I also adopt the two issues as formulated by the learned senior counsel for the appellant.
ISSUE NO. 1
Whether the learned trial judge was right in law and on the facts in holding that the parties were not bound by the Customary Arbitration of the Oba of Benin regarding the subject matter of the Igiogbe.
Learned senior counsel for the appellant submitted that the respondent did not seek a relief that customary arbitration, which the trial Court dealt with on pages 34 to 38 of its judgment (pages 389 ? 394 of the record of appeal), be set aside. He contended that the respondent ?simply sought enforcement of the proprietary rights that had accrued to him with regard to the property situated at No. 81 Sakponba Road, Benin City, Edo State pursuant to the agreement entered into in respect of the same properly by the Obasohan family between himself and the defendant/appellant herein.”
The learned senior counsel argued that there is nothing on record to show that any of the parties stated that he did not submit voluntarily to the customary arbitration.
After summarizing the facts by the case, the learned senior counsel for the appellant submitted that the trial Court ought not to have set aside the customary arbitration decision presided over by the Oba of Benin. He contended that since ‘the parties are ad idem (agreed) that under the Bini Native Law and Customs the Igiogbe is inherited by the first son of the deceased, ‘the decision of the customary arbitration stands’. On the submission that under Bini Native Law and Custom, the Igiogbe is inherited by the first son of the deceased, learned Senior Advocate of Nigeria representing the appellant referred to the locus classicusofArase v. Arase (1981) 5 SC 33 and that the case of Abudu v. Eguakun (2003) 14 NWLR (Pt.840) 311.
Whilst urging the Court to resolve this issue in favour of the appellant, learned counsel submitted that in setting aside the customary arbitration decision, the trial Court acted without jurisdiction by granting a relief which was not sought by the respondent.
In response, learned counsel for the respondent submitted that the reliefs granted by the trial Court were within the reliefs claimed in the 2nd further amended statement of claim.
The learned counsel for the respondent also argued that the finding of the trial Court, in respect of the customary arbitration, was based on the evidence before the Court. He urged the Court to resolve this issue in favour of the respondent because the elements of a valid arbitration do not exist in this case. On the conditions for a valid customary arbitration, learned counsel referred the Court to the cases of Agu v. Ikewibe (1991) LPELR ? 253 (SC); Assampong v. Kweku (1932) 1 WACA 192 and Philip Njoku v. Felix Ekeocha (1972) 2 ESLR 199.
As a preamble, it is now settled that under Bini customary law, the house where a deceased person lived, died and was buried is called ‘Igiogbe’ and it is automatically inherited by the first son of the deceased if and when he (the eldest son) performs the second or final burial rights of his late father. The Supreme Court lucidly stated this Bini customary law in Jimoh Abudu v. Johnson Eguakun (2003) 14 NWLR (Pt. 840) 311 at 319; per Belgore, JSC (as he then was) as follows:
By the customary law of Benin, upon the death of a father the eldest son takes over his estate as a trustee for all the deceased’s children pending the performance of the second (final) burial rites. After performance of these rites, the eldest son automatically inherits the main seat of the deceased father; that is, to say the house where the deceased lived, died and was buried. This house is called ‘IGIOGBE’, and does not vest unless the second burial rites are performed by the eldest child. The ‘Igiogbe’ passes, by way of inheritance on distribution of the estate to the eldest son of the deceased. But until the distribution is done the ‘Igiogbe’ will not vest except the eldest son performs the final burial rites; otherwise the eldest son retains all the estate including the ‘Igiogbe’ in trust for himself and the children of the deceased. Arase v. Arase (1981) 5 SC 33, 62; Ogiamen v. Ogiamen (1987) 1 All NLR 191; (1967) NSCC 189, 192, 193; Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372; Idehen v. Idehen(1991) 6 NWLR (Pt. 198) 382, 386, 388).
The dispute in the trial Court was basically on who, between the respondent and the appellant, was the first son of the deceased ? late Julius Edomwonyi Obasohan, who died intestate in 2002 as to be entitled to inherit his Igiogbe lying, situate and being at No. 81, Sokponba Road, Benin City, Edo State.
While the respondent claimed to be the first son of the deceased, he stated that his deceased father informed him ‘many years ago’ that:
(i) he was a casual friend to the appellant’s mother who was older than him by about 10 years and who had grown up children with another man;
(ii) at a time the appellant’s mother told him that she was pregnant and was trying to rope him with the pregnancy and he denied vehemently because he knew fully well that he was not responsible for the pregnancy;
(iii) when the appellant was eventually born, it was obvious that he was not his child and he refused to accept him as his child;
(iv) his father Pa H.I. Obasohan, however, took the appellant and he started to live with him (Pa. H.I. Obasohan) and this reason the relation between him and his father became estranged;
(v) his father had to send the appellant away from his house because of ‘his strange characters’ amongst other reasons.
See paragraph 22 of the 2nd further amended statement of claim.
The trial Court further summarized the respondent?s case as follows:
During the burial of Julius Edomwonyi Obasohan (claimant father) the defendant showed up to participate in the burial. Inspite of the objection by claimant to the presence and participation of the defendant in the burial of his late father, the Obasohan family decided that the defendant be allowed to participate in the burial programme of late Julius Edomwonyi Obasohan for peace to reign and to give the defendant a base and cover up shame having come from London.
The claimant further alleged that the Obasohan family told him that since his father’s burial will be a Christian burial, there will be no special function for any of the children to perform.
It is further alleged that after the first burial, the defendant started to demand that the property of late Julius Edomwonyi Obasohan be shared. The Obasohan family though reminded the defendant that the ‘Akor’ which is the second and final burial rites of late Julius Edomwonyi Obasohan had not been performed, however, proceeded to share the property of late Julius Edomwonyi Obasohan wherein his Igiogbe was shared between the defendant and the claimant with the defendant given 60% of the Igiogbe and 40% given to the claimant. Other properties were shared amongst the other children.
The sharing of the Igiogbe between the defendant and claimant was accepted by both of them who put their acceptances in writing. With the sharing the claimant dropped his objection with pressure from family but the defendant did not stop there, instead he went to the Oba’s palace to complain that his inheritance, his exclusive ownership of the Igiogbe of his late father had been denied him by his father’s family. The palace reversed the sharing of the Igiogbe between the defendant and claimant done by the Obasohan family and directed that the entire Igiogbe be given to the defendant as the eldest surviving son of his late father Julius Edomwonyi Obasohan, a directive the Obasohan family obeyed.
The claimant felt aggrieved and filed his action.
The claimant concedes that defendant is older than he is.
The lower Court then proceeded to state the appellant’s case on pages 362 to 363 of the record of appeal as follows:
The defendant on the other hand alleged that late Julius Edomwonyi Obasohan is also his father. That he was born out of a relationship between his father and his mother though his father did not marry his mother. He said while growing up he lived with late Julius Obasohan’s father, Pa. H.I. Obasohan a No. 81, Sakponba Road, Benin City. He said, the house at No. 81, Sakponba Road, Benin City built by his great grandfather Pa Obasohan Erhunmwunse as his Igiogbe which devolved on his grandfather Pa. H.I. Obasohan as the eldest surviving son and later devolved on his father late Julius Edomwonyi Obasohan as the eldest surviving son of Pa. H.I. Obasohan.
It is further alleged that his great grandfather, grandfather and father all lived died and were buried at No. 81, Sakponba Road, Benin City in accordance with Benin Native Law and Custom. Defendant alleged that as the first son of late Julius Edomwonyi Obasohan, he led the other children of his father including the claimant to perform the burial rites of his late father in accordance with Benin Native Law and Custom. But that at the sharing of the properties of late Julius Edomwonyi Obasohan (his father), the Obasohan family after recognising him as the eldest son of his father as he was senior to the claimant, still shared the Igiogbe at No. 81, Sakponba Road, Benin City between the claimant and himself and made both of them to give written undertaken of acceptance or acknowledgement of the sharing by the family. Defendant reported the sharing of the Igiogbe to the Oba of Benin who after hearing the matter gave a decision that the sharing of the Igiogbe by the Obasohan family was invalid as it was against the Benin Customary Law and directed that the Igiogbe be inherited by the defendant who is older than the claimant.
The customary arbitration referred by the learned senior counsel for the appellant was pleaded in paragraphs 26 to 29 of the appellant’s amended statement of defence and counterclaim as follows:
26. The defendant aver that the family and the claimant first suggested the sharing of the Igiogbe between claimant and the defendant. The defendant refused and the family then told the defendant that they will not share the properties until the defendant consent to same and this the reason defendant consented.
27. The defendant aver that the family then went ahead to share defendant late father’s properties amongst the children including the Igiogbe which they shared between defendant and claimant. Defendant will at the trial rely on a copy of the sharing by the family.
28. The defendant aver that after the said sharing of the Igiogbe by the family, the defendant then went to report the matter to the Oba of Benin who then summoned the family and after hearing from everybody the Oba told the family that it is against Benin Native Law and Custom to share the Igiogbe, No, 81, Sokponba Road, Benin City between the claimant and the defendant and that the defendant being the eldest son and upon performance of the burial rites that the defendant inherit the said Igiogbe to the exclusion of all the other children.
29. The defendant aver that claimant also told the Oba of Benin that defendant consented to the sharing and that the defendant mother did not make fire for the defendant father and the Oba of Benin also decided that the defendant cannot consent to the sharing of the Igiogbe and that such consent if any was uncustomary and invalid under Benin Native Law and Custom and that the issue of making fire has nothing to do with inheritance.
In his reply, the respondent, after denying the averments in paragraphs 26 – 29 of the appellant’s amended statement of defence and counterclaim, averred in paragraphs 19 – 22 of his further amended reply to statement of defence and counterclaim as follows:
19. The claimant says that he was the one oppressed by the family in the sharing as the defendant is not entitled to any share of his late father’s property yet the family gave him a large portion and because the claimant don’t want to go against the family decision and secondly the claimant don’t have the money to challenge the whole thing in Court, he decided to allow the family decision to stand.
20. That claimant avers that he was surprised to hear that after all the favourisms shown to the defendant by the family members, he went ahead to summons the family members to the Oba of Benin’s place.
21. The claimant states that he was in Abuja where I resides at the material time and did not receive any summons from the Oba of Benin hence he did not respond to the summons. The claimant was not in the palace on that day and it was after the Oba’s decision that he heard that the defendant summoned the extended family members to the Oba’s palace in respect of the share of the claimant’s late father’s property and that the Oba had decided that the family should do ‘Akor’ for the defendant and give him claimant’s late father’s entire Igiogbe. Hence the claimant instructed his lawyer to file an action in Court in protest to that decision.
22. The claimant says that he know as of fact that the defendant is a palace boy having grown up from the palace and as such the palace chiefs will definitely favour him in such a matter.
When the averments in the appellant’s amended statement of claim are juxtaposed with those in the respondent’s further amended reply, it is obvious that ab initio the respondent denied any voluntary submission to the customary arbitration pleaded by the appellant.
It has been held by the highest Court in Nigeria, the Supreme Court, that customary arbitration, subject to some conditions, is recognised and valid under Nigerian Law. See Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563;Raphael Agu v. Christian Ozurumba Ikewibe (1991) 3 NWLR (Pt. 180) 385 and Mr.Melford Agala & Ors. v. Chief Benjamin Okusin & Ors. (2010) 10 NWLR (Pt. 1202) 412.
‘An Arbitration’ simply means ‘a reference to the decision of one or more persons either with or without an umpire of a particular matter in difference between the parties’ per Ogbuagu, JSC in Agala v. Okusin (supra) at 448.
The Supreme Court, per Karibi-Whyte, JSC, extensively stated the meaning of customary arbitration in the case of Raphael Agu v. Christian Ozurumba Ikewibe (supra) at 407 as follows:
In the first place a customary arbitration is not an exercise of the judicial power of the Constitution not being a function undertaken by the Courts. Secondly, customary law is by virtue of Section 274(3), 4(b) an ‘existing law’ being a body of rules of law in force immediately before the coming into force of the Constitution 1979.
Thus customary law which includes customary arbitration was saved by Section 274(3) & 4(b) of the Constitution 1979. See Giwa v. Inspector-General of Police (1985) 6 NCLR 369, Enyinnya v. Commissioner of Police (1985) NCLR 464.
It is well accepted that one of the many African customary modes of settling dispute is to refer the dispute to the family head or an elder or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point. This is a common method of settling disputes in all indigenous Nigerian societies.
It is this kind arbitration which the Court considered in Assampong v. Kwelu & Ors. (1932) 1 WACA 192. In Phillip Njoku v. Felix Ekeocha (1972) 2 ECLR 199 Ikpeazu, J., held that:
‘Where a body of men, be they Chiefs or otherwise, act as arbitrators over a dispute between two parties, their decision shall have a binding effect, if it is shown firstly that both parties submitted to the arbitration. Secondly that the parties accepted the terms of the arbitration, and thirdly, that they agreed to be bound by the decision, such decision has the same authority as the judgment of a judicial body and will be binding on the parties and thus create an estoppel.’
This is a good and acceptable definition of customary arbitration. (Emphasis supplied by me)
The conditions precedent for a binding customary arbitration were laid bare by the Supreme Court in Agala v. Okusin (supra) at 448 as follows:
(a) there must have been a voluntary submission of the dispute by the parties to the non-judicial body;
(b) the parties must have agreed to be bound by the decision of the non judicial body as final;
(c) that the decision was in accordance with the custom of the people or of their trade or business; and
(d) that the arbitrators reached a decision and published their award.
See also Inyang v. Essien (1957) SCNLR 112; Njoku v. Ekeocha (1972) 2 ECSLR 199; Idika v. Erisi (supra); 1988) 3 SCNJ 208; Agu v. Ikewibe (supra) and Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514.
In this case, the alleged customary arbitration by the Oba of Benin, pleaded by the appellant, is very amorphous, vague and inconclusive. For example, the fact that the parties voluntarily submitted to the customary arbitration by the Oba of Benin was not pleaded. The fact that the parties agreed to be bound by the alleged customary arbitration was not pleaded. Further, the appellant did not plead that the award by the customary arbitrator was published. Without these facts, being conditions precedent to a valid customary arbitration, the trial Court was right when it stated and held as follows:
‘From the evidence of the claimant witnesses and defendant it is clear that the Obasohan family was reported to the palace by the defendant and subsequently summoned there to answer to the claim against them. There was no agreement between the defendant and the Obasohan family to voluntarily submit themselves to the palace for a peaceful resolution of the matter the defendant took to the palace. The scenario in the palace amounted more to an intervention by the palace to settle the defendant claim without fully hearing both sides or granting the Obasohan family fair hearing. Furthermore, the palace decision was not published for both parties to have their copies. With these lapses, I cannot uphold the customary arbitration by the Oba’s palace as binding on the claimant or the Obasohan family. It is immaterial that the Obasohan family executed the decision of the palace by giving the defendant the Igiogbe at 81, Sakponba Road, Benin City. The customary arbitration at the Oba’s palace is hereby set aside and of no consequence having not met the conditions? precedent to rely on it as estoppel.’
In its judgment, the trial Court granted the respondent the following reliefs:
I enter judgment in his favour as follows:
(a) That Claimant is the first son of late Julius Edomwonyi Obasohan and the person best entitled to perform the ‘Akor’ (final burial of his late father and thereafter inherit his late father’s Igiogbe known as No. 81, Sokpoba Road, Benin City, Edo State.
(b) The claimant is the person entitled to apply and be issued the Certificate of Occupancy of all that piece or parcel of land measuring 100ft by 100ft lying and situate at No. 81, Sakponba Road, Benin City, which he inherited from his late father as Igiogbe.
(c) The defendant whether by himself, his agents, privies, assigns, executors or whosoever are perpetually restrained from interfering or further interfering with the claimant right and enjoyment of all that landed property measuring 100ft by 100ft with the buildings therein lying, being and situate at No. 81, Sokponba Road, Benin City Edo State.
(d) Cost of 50,000 awarded against the defendant in favour of claimant.
The reliefs granted by the trial Court were within the reliefs sought by the respondent.
I hereby resolve this issue in favour of the respondent and against the appellant.
ISSUE NO. 2
“Whether the learned trial judge was right in law and on the facts in holding that the Obasohan family could not accept the appellant as the legitimate son of the late Julius Edomwonyi Obasohan.”
Mr. Ade Okeaya-Inneh (SAN), learned senior counsel for the appellant, submitted that the trial Court ‘fell into three fundamental errors’ by holding that the Obasohan family could not accept the appellant as a legitimate son of late Julius Edomwonyi Obasohan. According to him, the three fundamental errors are:
a. In reaching the decision, the learned trial judge disregarded the findings of the customary arbitration of the Oba of Benin which was not in contention and which had directly determined the issue of the legitimacy of the appellant having determined that he was entitled to the Igiogbe. The family had already accepted the decision. (See pages 6-7 of the judgment of the Court below and 361-362 of the record).
b. The learned trial judge relied on cases relating to the native laws and customs of the Asaba people in the case of Okolonwamu v. Okolonwamu (2014) LPELR 22631 and the cases of Adeyemi v. Bamidele(1968) NSCC, Bamgbose v. Daniel 14 WACA, Alake v. Pratt 15 WACA which were decided under the Marriage Act and the English Received law to decide a fundamental issue of inheritance under Bini native law and custom.
c. There was no proof of Bini law and custom as required by Sections 16, 17, 18 and 70 of the Evidence Act and not witnesses who were conversant with the customary practices of the people on the issue of legitimacy gave evidence at trial to show proof of practices relating to the way and manner legitimacy/paternity is dealt with under Bini native law and custom.
Learned senior counsel then contended, inter alia, as follows:
‘It is submitted with respect that the issue of legitimacy of the appellant which appeared to be a burning and unsettled issue within the Obasohan family was put to rest by the decision of the customary arbitration presided over by the Oba of Benin. It is trite that under Bini native law and custom, the first son inherits the Igiogbe. It is also trite that the Igiogbe is the house the father lived and died in. It is undisputed tha No. 81 Sokponba Road is the property referred to as the Igiogbe in this case, it is undisputed that the customary arbitration determined that the appellant was entitled to the Igiogbe, it is further undisputed that none of the parties to their appeal sought the reversal or setting aside of the decision of the Oba of Benin.’
On the other hand, Mr.Olayiwola Afolabi, learned counsel for the respondent, submitted that the decision of the trial Court is supported by the evidence, both oral and documentary, on record.
In view of my decision on the first issue, which borders on the customary arbitration decision of the Oba of Benin, the arguments of the learned senior counsel for the appellant to the effect that the said customary arbitration decision had ‘put to rest’ the ‘issue of the legitimacy of the appellant’ is of no moment and it is longer helpful or useful to the appellant’s case.
The trial Court extensively reviewed the evidence and pleadings of the parties and concluded that the respondent had shown, by oral and documentary evidence, that ‘his father did not in his life time accept paternity of the defendant’ and that the onus shifted to the defendant/appellant ‘to show how late Julius Edomwonyi Obasohan acknowledged paternity of him’. See pages 360 to 378 of the record of appeal. The trial Court then proceeded to resolve the matter in a very commendable manner as follows:
Acts of a putative father sufficient to prove paternity have been held to include paying of hospital bills, upkeep of the child and upholding the child to his family as his child etc. From the defendant pleadings and evidence, such acts of late Julius Edomwonyi NObasohan towards him are:
1. His late father (Julius Edomwonyi Obasohan) and late mother had a relationship and he was born out of that relationship by his mother for his father.
2. During his birth, his late father was present and he gave him the name ‘Henry’ meaning a leader, that his birth was acknowledged and accepted by his father and the entire Obasohan family. The entire Obasohan family acknowledged, recognized and accepted him as the first and eldest son of his father. While growing up he lived with his grandfather, Pa. H.I. Obasohan at No. 81, Sakponba Road, Benin City who acknowledged and recognized him as the first son of his father.
3. At a time during conversation with his late father, he told him that the claimant and his siblings are jealous of him.
4. In 1989, 1993 and 1996, he came to Nigeria, and while in Nigeria he visited his father with his wife and children and in 1996 his late father and late mother resolved their differences. After this my late father then continued to visit and see his late mother in her home at No. 15, Avielele Street, G.R.A., Benin City.
It is the law that the father must have accepted paternity during his life time, in unmistakable terms. See Okolowan?s case (supra). Throughout the length and breath of defendant?s evidence there was nothing to show that late Julius Edomwonyi Obasohan cared for him (defendant) in anyway either by sending upkeep allowance through relatives to his mother or introducing him to his family as his son. Rather it was the opposite that happened as can be seen from the evidence of claimant and his witnesses that late Julius Edomwonyi Obasohan in his life time openly and vehemently rejected the defendant as his child and went round to tell members of his family that defendant was not his child. He even denounced his father?s accepted of defendant into his home by severing his relationship with his father.
The evidence of Moses Edo (DW1) was silent on the issue of defendant paternity before the death of Julius Edomwonyi Obasohan. The defendant evidence on the acknowledgement of his paternity before the death of Julius Edomwonyi Obasohan stands alone. It is not corroborated by any member of the Obasohan family or even an independent person.
Defendant has not been able to deny or rebut the evidence of PW1, PW2 and PW6 regarding what transpired between late Julius Edomwonyi Obasohan and Pa. H.I. Obasohan when Julius Edomwonyi Obasohan severed the relationship of father and son with his father Pa. H.I. Obasohan while the defendant lived with Pa. H.I. Obasohan and restored same after defendant was removed from the home by his mother. The defendant did not also deny or credibly rebut the evidence of claimant and P.W.5 Sunny Omo Egharevba that it is the claimant that late Julius Edomwonyi Obasohan in his life time acknowledged as his first son.
The defendant under cross examination admitted that he saw Exhibit P1 where he was not named as a child of late Julius Edomwonyi Obasohan or grandchild of Pa. H.I. Obasohan when he visited Nigeria. One would have expected that he would have taken up the issue with late Julius Edomwonyi Obasohanwhe he was alive then, but there is no evidence from defendant that he took any such step to resolve the issue. In the absence of any evidence from defendant, I believe that he accepted as true that all the names of those listed as grandchildren of Pa. H.I. Obasohan are his true grandchildren. It is also the evidence of defendant that while in Nigeria, in 1996, his late father and mother resolved their difference after which his late father continued to visit his late mother at No. 15, Avielele Street, G.R.A, Benin City.
Again the evidence of defendant on this issue stands alone. If as he said, his father and mother resolved their differences and his father continued to visit his mother, how come no member of the Obasohan family knew about this and none testified to this fact on his behalf.
The defendant said Julius Edomwonyi Obasohan named him ‘Henry’. His evidence again stands alone. There is no evidence from any member of his mother’s family or any member of Obasohan family that he or she witnessed the naming of the defendant as ‘Henry’. On the other hand, PW1 a senior member of the Obasohan family under cross examination said thus:
‘I am not aware that it was Julius who named the defendant Henry. In our family, any child to be named is brought to the family house for the naming ceremony.’
This piece of evidence was not disputed or rebutted by the defendant and his witness.
Futhermore, the evidence of PW1, PW2 and CW6 (sic) is that defendant’s mother had brought the defendant to Pa. H.I. Obasohan (claimant’s grandfather) because late Julius Edomwonyi Obasohan had refused to accept defendant as his child and even after taking the defendant to claimant’s grandfather’s home late Julius Edomwonyi Obasohan still reject the defendant. Defendant did not also rebut this evidence. It is clear from the claimant’s case that from the onset, Julius Edomwonyi Obasohan never accepted defendant as his child and did not exhibit or perform any conduct/duty or acts to support the fact that defendant was his child.
The findings of the trial Court are amply supported by the evidence on record and I find not basis to disturb them. The law is that an appellate Court should not lightly interfere with the findings of a trial, unless the findings are perverse and cannot be supported by the evidence on record. See Woluchem v. Gudi (1981) 5 SC 291; Ebba v. Ogodo (1984) 1 SCNLR 372; Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661 and Okelola v. Boyle (1998) 2 NWLR (Pt. 539).
It also important to note that the appellant, save from his strong reliance on the alleged customary arbitration of the Oba of Benin, did not adduce any satisfactory evidence of his legitimacy under Bini customary law. Therefore, the argument of learned senior counsel that the trial Court erred when it relied on cases relating to the native laws and customs of people other than Bini people has no legal or logical justification. The cases relied upon by the trial Court are cases which laid down general principles of law and, subject to the facts of each case, the principles so laid down in those cases are of general application.
In the case of Lawal & Ors. v. Messrs A. Younan & Sons (1961) All NLR 245 at 250; per Sir Adetokunbo Ademola, CJ; the former Federal Supreme Court distinguished between illegitimate and legitimate children in England and Nigeria by stating elaborately as follows:
Now to what extent have these laws been applied to illegitimate children, or how far can illegitimate children claim under the Act? In England prior to 1934 when the Law Reform Act was passed, an illegitimate child could not claim under the Acts: Dickson v. the North Eastern Railway Co. Lt. vol. 9 New Series, 1863. This latter Act certainly does not apply to Nigeria as it is a statute, though of general application, passed after 1900. When considering the present action therefore, it is not possible to go beyond English Law in 1900. This raises the question; who are illegitimate children in Nigeria? Unlike in England, legitimate children in Nigeria are not confined to children born in wedlock or children legitimate by subsequent marriage of the parents. In Nigeria, a child is legitimate if born in wedlock according to the Marriage Ordinance.
There are also legitimate children born in marriage under Native Law and Custom. Children not born in wedlock (Marriage Ordinance) Or who are not the issues of a marriage under Native Law and Custom, but are issues born without marriage can also be regarded as legitimate children for certain purposes. If paternity has been acknowledged by the putative father see Bamgbose v. Daniel 14 WACA 111 at page 115 and Alake v. Pratt 15 W.A.C.A. 20. On the face of this, it is clear that legitimacy in England is a different concept to legitimacy in Nigeria. In the instant appeal, there was evidence in the Court below on which if the Court accepted it, it was possible to say that the children on behalf of whom the claim was made were dependent on their deceased fathers. The trial Judge did not expressly find that they had been acknowledged by their fathers, but he held that they were entitled to share in the estates of their father, which implies a finding of legitimacy under Native Law and Custom, and there was evidence to justify the inference that they had in fact been acknowledged.
Therefore, in Nigeria, irrespective of the circumstances of his birth, a child ‘would be legitimate if his paternity is acknowledged by the putative father’. See also Aderinola Adeyemi & 6 Ors. v. Alhaji Shittu Bamidele & Anor. (1968) NSCC 26 at 30, per Coker, JSC.
This Court, in the case of Chibueze Okolonwamu & Anor. v. Mrs. Theresa Nkem Okolonwamu & Ors.(2014) LPELR 22631 per Ogunwumiju, JCA; held that there are three recognized ways, which are disjunctive, of establishing or proving legitimacy of a child. His Lordship stated in that case as follows:
Paternity of a child can be determined by three major ways which are akin to the ways of proving legitimacy of a child. They are:
(1) Paternity by existing Marriage: A child born during the pendency of a valid marriage between a couple is automatically presumed to be legitimate.
(2) Paternity by subsequent Marriage to the mother: this occurs when a child is born at a time when the mother was not married to the father and after whose birth the mother and father entered into a valid marriage.
(3) Paternity by acknowledgement by the father accepting paternity of the child: This includes paying for the hospital bills and upkeep of the child, introducing the child to his family as his child etc.
The parties in this case are in agreement that the late Julius Edomwonyi Obasohan did not marry the appellant’s mother. Since there is no concrete evidence that the said late Julius Edomwonyi Obasohan acknowledged paternity of the appellant, the claim or allegation by the appellant that he is a legitimate child of the deceased father of the respondent was not proved.
The trial Court, having regard to the evidence and circumstances of the case, did not err in its decision.
Without more, Issue 2 is hereby resolved against the appellant.
CONCLUSION
This appeal lacks merit, since the two issues have been resolved against the appellant. The appeal is hereby dismissed, accordingly.
The judgment of the trial Court in Suit No. B/108/2011 delivered on the 9th day of February, 2017 by Hon. Justice E. A. Edigin is hereby affirmed.
No order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My learned brother, M.A.A. ADUMEIN, JCA has afforded me the opportunity of a prior perusal of the leading judgment just delivered. I am in agreement with the reasoning and conclusions reached therein. I also hold that the appeal lacks merit and is hereby dismissed.
I abide by the consequential orders made in the leading judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the judgment just delivered by my Learned brother MOORE ASEIMO ABRAHAM ADUMEIN, JCA. I agree with the reasoning and conclusion therein.
This appeal lacks merit and deserves to be dismissed. The judgment of the lower Court is hereby affirmed.
Appearances:
A.O. Okeaya-Inneh, SAN with him, Henry U. Iyasore, Esq. and N. Ikhazuagbe, Esq.For Appellant(s)
E. O. Afolabi, Esq. with him, Mrs. P. E. Chukwu, S. E. Ezenwa, Esq., Mrs. E. D. Oribhabor and C. AsuerimeFor Respondent(s)
