MR. NOSA TAWODI GIWA OSAGIE v. ALHAJI R. O. V. GIWA OSAGIE & ANOR (2009)

MR. NOSA TAWODI GIWA OSAGIE v. ALHAJI R. O. V. GIWA OSAGIE & ANOR

(2009)LCN/3439(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 31st day of March, 2009

CA/B/4/06

RATIO

EVIDENCE: EFFECT OF AN ISSUE LEFT IN SERIOUS DOUBT

The law is that where an issue is left in serious doubt (as here) as to make the court speculate as to what is the more probable position, the party on whom the burden of proof ultimately rests must lose, because he has failed to establish the full facts that would persuade the court to find in his favour. See OSAWARU v. EZEIRUKA (1978) 6 – 7 SC (2005) 12 SCNJ 236; JOHN I. OGBU v. BEST WOKOMA (2005) 7 SCNJ 299; DR. AUGUSTINE N. MOZIE & ORS. v. CHIKE MBAMALU & ORS (2006) 7 SCNJ 411. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

LAND LAW: APPLICABLE CUSTOMARY LAW IN LAND CASES

Respondents’ counsel argued and I agree with him that as a general principle of law, the applicable customary law in land cases is the customary law of the place where the land is situated – LEX SITUS. This is supported by S. 13(4) of the High Court Law of Bendel State 1976 (applicable in Edo State). Also S. 14(4) (b) of the High Court Law provides that in cases of inheritance the law applicable is the customary law applying to the deceased. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

WORDS AND PHRASES: MEANING A GIFT INTER-VIVOS

In ANYAEGBUNAM v. OSAKA (2000) 5 NWLR Pt. 657 Pg. 386 at Pg. 400 the Supreme Court held that a gift inter-vivos is an act whereby something is voluntarily transferred from the true possessor to another person, with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied, the donor has no right to revoke the gift. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

COURT: DUTY OF A COURT IN THE ADMINISTRATION OF JUSTICE

In its quest to do justice, a Court should at all times endeavour to find means to do justice to all manner of men based on a living and dynamic law. See the dictum of PATS-ACHOLONU, JSC in NWOLISAH V. NWABUFOH (2004) 9 NWLR (PT.879) 507 and OKOTIE-EBOH V. MANAGER (2004) 18 NWLR (PT.905) 242. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

MR. NOSA TAWODI GIWA OSAGIE Appellant(s)

AND

1. ALHAJI R. O. V. GIWA OSAGIE
2. MR. SUNNY O. GIWA OSAGIE Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice J. O. Omorodion dated 14th March, 2005 delivered at the High Court Benin. The learned trial Judge had dismissed the Plaintiffs claim and also dismissed the Defendants’ counter-claim, hence this appeal.
The Appellant herein was the Plaintiff at the lower court. The facts that led to this appeal are as follows:-
Late Pa Saliu Agharna Giwa Osagie, the eldest surviving son of late Mr. Yesufu Giwa-Osagie inherited the main house at No.6 Ugbague Street, Benin City from his father, a Moslem, the 1st Mogaji of Benin Kingdom under the benin Native Law on the 22nd day of October, 1943 vide Exhibit “D”. The entire main house and appurtenances was known and called No.6, Ugbague Street, Benin City. Late Pa Saliu Aghama Giwa Osagie later in his life time developed two bungalows known as No. 6A and 6B Ugbague Street, Benin City within the premises known and called No.6 Ugbague Street, Benin City. He thereafter lived and died in No. 6A, Ugbague Street, Benin City on the 17th day of January, 1994. He was a Moslem and a Benin man. Prior to his death, he made a transfer of the building he inherited as Igiogbe known as NO.6 Ugbague Street to his eldest son, the 1st Respondent by a deed registered BG & R 7103 on 17th August, 1987. He had also made a deed transferring the building where he lived and died No. 6A Ugbague Street to the Appellant. The deed was registered as BDSR 8063 dated 19/5/88 registered on 7/11/88. The 1st Respondent prevented the Appellant from taking possession of No. 6A Ugbague.
The Appellant who is the 2nd son of late Pa Saliu Aghama Giwa Osagie made the case at the lower court that his father gave him the house where he lived, died and was buried known and called No. 6A, Ugbague Street, Benin City. The Appellant relied on the gift intervivos of the house known as No. 6A, Ugbague Street, Benin City where his father lived and died vide Exhibit 5.
The 1st Respondent, Alhaji R. O. V. Osagie who is the present Mogaji 11 of Benin Moslems, thereby succeeding his grand father late Pa Yesufu Giwa Osagie as Mogaji of Benin Moslems, had challenged by counter-claim the purported gift inter-vivos evidenced by Exhibit 5, on the ground that No.6A, an Igiogbe, that is the house where his father Pa Saliu Aghama Giwa Osagie lived and died, automatically devolved on him, as the eldest surviving male child under Bini Native Law and Custom, despite the purported gift intervivos to the Appellant, a second son.
The Appellant claimed at the lower court the following reliefs:-
(a) A declaration that the said gift of No. 6A, Ugbague Street, Benin City made by Plaintiffs father late Pa S. Giwa-Osagie to Plaintiff intervivos is valid.
(b) A declaration that the Plaintiff is the person entitled to a Statutory Right of Occupancy over the property known as No. 6A, Ugbague Street, Benin City as evidenced by BDSR 8063 of 28/8/88 and registered as 16/16/BIII at the Lands Registry, Benin City.
(c) A declaration that the Certificate of Occupancy No. BDSR 8063 dated 28/8/88 and registered as instrument No. 16/16/BIII, Benin City granted to Plaintiff by the Military Governor of Edo State is valid.
(d) A declaration that No. 6A Ugbague Street, Benin City was not part of the late Pa Saliu Aghama Giwa-Osagie Igiogbe at his death.
(e) An order of Perpetual Injunction restraining the Defendants, their servants and/or agents from trespassing upon and disturbing Plaintiff’s peaceful ownership and possession of the said property known as No. 6A, Ugbague Street, Benin City and covered by a Certificate of Occupancy No. BDSR 8063 dated 28/8/88 and registered as instrument No. 16/16/BIII, Benin City.
(f) A declaration that Pa Saliu Aghama Giwa-Osagie lived, died and was buried as a Moslem and his Estate is governed by Moslem Law of inheritance which does not recognize Igiogbe.”
The trial court agreed with the Respondents’ view that the 1st Respondent as the eldest surviving male child of late Pa Saliu Aghama Giwa Osagie is automatically entitled to the house where his father lived and died. This is known as “Igiogbe” under Bini Native Law and Custom. The court held that a Bini man could not make a gift of the Igiogbe intervivos. The court also dismissed the counter claim of the Respondents because the 1st Respondent as the eldest son had not performed the “Ukpomwan” 2nd burial, and no action can be brought by him on the estate of the deceased until that had been done.
The Appellant filed an ominibus Ground of Appeal dated 16th day of March, 2005 and thereafter sought leave of this court to file three additional grounds of appeal styled grounds 2, 3 and 4.
Learned Appellant’s counsel identified 2 issues for determination. They are stated as follows:-
(1) Whether, having regard to the fact that the late Pa Saliu Aghama Giwa-Osagie lived, died and was buried a Moslem, the learned trial Judge was rigbt when he held that the Bini Native Law and Custom regarding devolution of property is applicable to his estate as to make him have an “Igiogbe”.
(2) Whether, in view of the fact that Late Saliu Aghama Giwa-Osagie was a Muslim, his intervivos gift of No. 6A Ugbague Street, Benin City to the appellant was valid.
In arguing this appeal learned senior counsel for the Respondents who settled the brief Chief Ighodalo Imadegbelo SAN raised a preliminary objection to ground 3 of the additional grounds of appeal. Learned senior counsel argued that the particulars of the ground of appeal do not in any manner relate to or support the ground of appeal. Such particulars unrelated to the ground of appeal must be struck out. He cited STIRLING CIVIL ENGINEERING v. YAHAYA (2000) 2 NWLR Pt.750 Pg.15; BEREYINS v. GBOBO (1989) 1 NWLR Pt. 97 Pg. 372; HONIKA SAWMILL LTD v. HOFF (1994) 2 NWLR pt.326 pg.252 at 262.
He also submitted that issue 1 adumbrated by Appellant’s counsel derived from grounds 2 and 3 and particularly arising from ground 3 which is incompetent is also rendered incompetent. He cited AMADI v. ORISAKWE (1997) 7 NWLR Pt. 511 pg. 161 at 170.
Learned Appellant’s counsel Mr. Solo I. Eghobamien Esq in the reply brief argued that there was no argument shown by the Respondent in aid of how the particulars differed from the 3rd ground of appeal. He submitted that in this case, the particulars highlights when and how the error in the judgment of the lower court occurred which the Appellant tried to clarify in the 3rd ground. He cited BRIGGS v. CHIEF LANDS OFFICER RIVERS (2005) 12 NWLR Pt.938 Pg. 59 at 90; GLOBE FISHING INDUSTRIES v. COKER (1990) 7 NWLR Pt.162 pg. 265 in aid of this argument.
Ground 3 complained of with its particulars are as follows:-
“3. The learned trial Judge erred in law when he held that No.6, Ugbague Street was Pa Saliu Aghama Giwa Osagie’s (the deceased) Igiogbe which he left, built and established a new Igiogbe at No. 6A Ugbague Street, Benin City.
PARTICULARS OF ERROR
(a) There is convergence of evidence from both sides that late Pa Saliu Aghama Giwa Osagie lived, died and was buried as a Muslim.
(b) The Judge found rightly that the deceased lived, died and was buried a Muslim.
(c) Uncontroverted evidence of PW5, a Muslim scholar is to the effect that the concept of Igiogbe is unknown to Islam.
(d) There was ample evidence that Yusuf Giwa-Osagie (grand father of the parties) who built, lived and died at No.6 Ugbague Street, was a practicing Muslim in his lifetime, the 1st Mogaji of Benin Muslims.”
A good look at the ground of appeal shows that it talks about the finding of the trial Judge regarding the status of No. 6 and No. 6A Ugbague Street being the Igiogbe inherited by the deceased and the one established and left by him.
A look at the particulars especially paragraphs (c) and (d) thereof show that the error complained of is elucidated by these paragraphs to the effect that the deceased and his father both having lived, died and buried as Moslems had no Igiogbe in so far as the concept of Igiogbe is unknown to Islam. I am of the humble but firm view that in this instance, the particulars were not vague or unconnected with the ground of appeal. They in fact did their job of elucidating and advancing the terse nature of the ground of appeal as couched. It made the error being complained of more intelligible and clear, See SHANU v. AFRIBANK (2002) 17 NWLR Pt. 795 Pg. 216 AND GLOBE FISHING INDUSTRIES v. COKER supra at Pg.300 per Akpata JSC.
In the circumstances, the preliminary objection is misconceived and it is hereby dismissed.
Learned Respondents’ counsel on his own part identified a sole issue for determination to wit:
“Whether or not late Pa Saliu Aghama Giwa Osagie a Benin man can by gift intervivos devise his Igiogbe to the Appellant who is not his eldest surviving son.”
This issue is similar to issue 2 identified by Appellant’s counsel except that the Respondents refused to accept the labelling of the deceased as a Moslem and rather called him a Bini man which is one of the questions in controversy in this appeal. In the circumstances, any answer to issues 1 and 2 formulated by Appellant’s counsel also adequately answers the sole issue formulated by the Respondents’ counsel.
Issue 1 is whether Pa Saliu Aghama Giwa-Osagie who lived, died and was buried a Moslem was subject to the Bini law regarding devolution of property to make him have an Igiogbe on his death. Learned counsel for the Appellant argued that both under private international law and Customary Jurisprudence, it is acceptable and practicable for a man in his lifetime to change his personal law by choice, either by naturalization which entails international mutation of status or by culturalisation where it involves a change of culture without change of nationality. He cited in extensio for this proposition the dicta of the various Supreme Court Justices in OLOWU v. OLOWU (1985) 3 NWLR Pt.13 Pg.372. He argued that the deceased having lived, died and was buried a Moslem, he had made a choice of Islamic Law his personal law and thus only Islamic law is applicable to his estate on his death. He cited FADAYA v. ISA unreported CA/J/8/S/90 delivered on 19/2/92; AGBEBU v. BAWA (1992) 6 NWLR Pt.245 Pg. 80 at 90; A.G CEYLON v. ALLEN ELLINGTON REID (1965) AC 720
He further argued that there was no proven evidence at the trial that Bini Customary Law or Islamic Law forbids such culturalisation. He argued that there is no evidence from either party that Bini Customary Law forbids a Bini man’s renunciation of same. Thus there was no reason for the learned trial Judge’s failure in accepting that the personal law of Pa Saliu Giwa-Osagie at his death was Islamic law. Counsel was of the view that the expert evidence of PW2 an expert in Islamic law to the effect that a Moslem cannot have an Igiogbe was never challenged by anyone at the trial either by direct evidence or cross-examination. He submitted that in coming to the wrong conclusion, that Bini Customary Law was applicable to the estate of the deceased, the learned trial Judge made a mistake in the status of No. 6A Ugbague Street as an Igiogbe of the deceased. He argued that the deceased died a Moslem and his property should be administered under Islamic Law.
Counsel also argued that the learned trial Judge refused to consider or even comment on the authorities of OLOWU v. OLOWU supra and AGBEBU v. BAWA supra in arriving at the decision that the deceased was not governed by Bini Customary Law. He submitted that the failure of the learned trial Judge in this regard is fundamental and fatal to the decision arrived at and is liable to be set aside. He cited OLOWOLARAMO v. UMECHUKWU (2003)2 NWLR Pt. 805 Pg. 537 at 557.
In reply to the argument canvassed above by the Appellant’s counsel in relation to the Islamic culturalisation of the deceased, Learned senior counsel for the Respondents advanced the view that the issue of renunciation of Bini culture for the Moslem faith by late Pa Saliu Giwa-Osagie or the issue of culturization, assimilation and naturalization as canvassed by the Appellant are irrelevant being facts not at all raised in the pleadings and on which parties did not join issues. He cited ADEMESO v. OKORO (2005) 14 NWLR Pt. 945 Pg. 308 at 318 & 319; ORIZU v. ANYAEGBUNA, (1978) JSC 21; NIPC v. THE THOMPSON ORGANISATION (1969) 1 ANLR Pg. 138.
Respondents’ counsel argued that naturalization, assimilation and culturalisation are irrelevant in current Nigeria legal lexicon. However counsel went on to submit on the issue of whether Pa Saliu Giwa-Osagie had changed his personal law to Islam, that the Respondents had pleaded in paragraphs 12 and 18 of the 1st and 2nd Defendant’s Amended Joint Statement of Defence and counter claim that their late father lived and died a Bini man whose estate must be subject to Bini Native Law and Custom. He argued that evidence was led in that regard at the trial by the Respondents.
I have looked at pages 21 – 27 of the Record of Proceedings at the lower court containing the further amended statement of claim and the amended reply to the joint statement of defence and defence to counterclaim.
It is clear that the Appellant pleaded renunciation of the status of Pa Saliu Giwa-Osagie as a Bini man for being of the Moslem faith. I cannot agree with the Respondents’ counsel that the fact of the assimilation of Pa Saliu Giwa-Osagie by Islamisation was not an issue submitted for determination by the Appellant and on which issues were not joined in the pleadings. The record shows that both sides pleaded and sought a finding on whether the deceased personal law was Bini Native Law or Islam. Paragraph 4a and relief (1) claimed by the Appellant made this an issue.
Both sides led evidence on oath to prove either that Pa Giwa-Osagie during his lifetime lived as a Bini man or as a Moslem man. Both sides led evidence to show that the deceased personal law was Islam or Bini law and his estate should be so administered. The learned trial Judge understood it to be one of the issues set before the court for determination. The learned trial Judge at pg 132 – 135 of the record held thus:
“The issue before me is whether Pa Agbama Saliu Giwa Osagie father of the Plaintiff and 1st Defendant was a Bini man. Also whether because he embraced the muslim religion whether this has changed his own personal law of identity, that is, being a Bini person? …..
The 1st defendant said that Muslims were called to offer prayers therefore believe that their father was buried according to Muslim rites. But this has not removed the fact that he was a Bini man. The fact that that he was a Bini remains. As a Bini man his properties must be shared according to Bini Native Law and custom. PW5 the Muslim scholar who gave evidence said there is no authority on this that where Bini law and Muslim conflict the Muslim law supercedes. There is no authority to this effect.”
Paragraph 4a of the further amended statement of claim shows that Pa Saliu Giwa Osagie lived, died and was buried a Moslem. Whereas paragraphs 12 and 18 of the 1st and 2nd Defendants’ amended Joint Statement of defence and counter claim is to the effect that Pa Saliu Giwa Osagie lived throughout his lifetime a Bini man and that he actively practiced the tenets of Bini custom in so far as he maintained his identity as a Bini man on all ceremonial occasions.
The learned trial Judge made some findings of fact. Basically the court held as follows:-
(i) The trial court found, by mutual evidence of both parties, that Pa Saliu Aghama Giwa-Osagie was a Bini man and a Muslim (see page 133 lines 4-5 of the record of appeal).
(ii) That the said Pa Saliu Aghama Giwa-Osagie was buried according to Muslim rites (see page 135 line 9 of the record of appeal)
(iii) That he lived and died at No. 6A, Ugbagne Street, Benin City (see page 136 lines 25-26 of the record of appeal)
(iv) That the deceased indeed stated how he should be buried in Exhibit P17 (see page 133 line 7 of the record of appeal)
(v) That before his death, Pa Saliu Agharna Giwa-Osagie made an inter-vivos gift of No. 6A, Ugbague Street to the plaintiff (see page 137 lines 4-5 of the record of appeal)”
The question raised by issue 1 and which the learned trial Judge admitted to be an issue for determination is whether Pa Saliu Giwa-Osagie subjected himself to Bini customary law or Islamic law as his personal law. The circumstances of this case are peculiar, most authorities on the issue of Igiogbe have been in relation to whether the Igiogbe can be devised by a will to anyone other than the eldest male child. This case is different from the specie of cases starting from OGAMIEM v. OGAMIEN (1967) NMLR 245; OKE v. OKE 19743SC 1; ARASE v. ARASE (1981) 5 SC 33 and 34; IDEHEN v. IDEHEN (1991) 6 NWLR Pt. 198 Pg. 382 at Pg 422; UWAIFO v. UWAIFO (2005) 3 NWLR Pt.913 Pg.479 and LAWAL-OSULA v. LAWAL OSULA (1995) 9 NWLR Pt.419 pg.259; AGIDIGBI v. AGIDIGBI (1996) 6 NWLR Pt.454 Pt. 300 etc.
It is trite that no one case can be a guide for all purposes. Most of the cases cited above dealt with whether a testator could devise his Igiogbe to anyone else except his eldest son. All the highest legal authorities relying on the provisions of the Wills Law applicable to former Bendel State of which Edo State is part thereof are of the firm view that a testator cannot devise by will the Igiogbe except to the eldest surviving male child and any device made otherwise would be void in that regard. As my Lord Augie JCA held in UWAIFO v. UWAIFO the Igiogbe consists of the principal house or houses where the deceased lived and died. In this case, there is no dispute as to the fact that the house given to the Appellant, to wit No. 6A Ugbague Street, Benin City was the Igiogbe of the deceased.
Pa Saliu Giwa-Osagie by the evidence at the lower court was a Bini man who lived and died as a Moslem. Was there sufficient evidence at the lower court to prove that Pa Giwa-Osagie in his lifetime changed his personal law to Islam such that his estate should be subject to Islamic law?
Let us also examine the evidence led by both parties. P.W.6 one Siluka Bello-Osagie a cousin of the parties and a Moslem swore that the deceased was a staunch Moslem who was buried according to Moslem rites and not according to Bini native law and custom. He said that during the burial, palace cloth was sent by the Oba of Benin but that palace cloth can be given to any good person in Benin. D.W 2 Deacon Francis Edokpayobaren Opengen on the other hand another cousin who is a Christian swore that the deceased was buried “principally according to Bini native law and custom essentially according to Oloke family rites.” See pg. 52 of the record.
The way our cultural and religious beliefs have been interwoven in the southern part of Nigeria makes the question of whether a man gave his cultural laws up for his religious laws difficult to answer. A man might be a Moslem or a Christian assiduously practicing his religion during his lifetime and also in other areas of his life for example when giving his daughter out in marriage or acquiring a chieftaincy title subject himself to the dictates of his cultural heritage. Such conduct over the years as practiced by majority of the people in southern Nigeria does not ipso facto make the person less of a Bini man or less than a Moslem or Christian. Learned Appellant’s counsel quoted copiously from OLOWU v. OLOWU supra. I daresay the facts of that case are quite different from the facts herein.
In OLOWU v. OLOWU the deceased during his lifetime voluntarily renounced his Yoruba heritage and formally applied to become a Bini man and by culturalisation his personal law became Bini native law.
The 1999 Constitution clearly makes a distinction between customary law and Islamic law by setting up different superior courts to determine the rights of parties who make themselves subject to them. In the past, all the previous decisions regarding testamentary capacity or distribution of intestate estate have always lumped customary law and Islamic law together as coming under the same genre. This case has shown clearly that there in fact exists a legal dichotomy between native law and Islamic law which has now been recognized by the 1999 Constitution. The 1999 Constitution established three distinct legal system operating concurrently in Nigeria, the English common law and statutes enacted by various legislative houses at various tiers of government, the native law and custom of the people (as long as it meets and satisfies the repugnancy test) and Islamic law which by its very nature is an absolute law and which I don’t think can be subject to the repugnancy test. In KHAIRE ZAIDAN v. FATAIWAH KHAHIL MOHSSEN – Reported by 1974 Unife Law Reports Pt.11 Pg. 290 the Court upheld Islamic law as against the lex situs law to hold that the law applicable to the intestate was Islamic law there being no doubt that the intestate was a Lebanese governed by Islamic law. See also M. A. Ambali – The Practice of Moslem Family law in Nigeria Pg. 29 – 30.
Since Nigeria is a secular country, Islam is applicable only as personal law. The courts have always held that Islamic law would only apply if the parties regarded themselves as subject to it and acted accordingly. See MARIYAMA v. SADIKU EJO (1961) NRNLR 81.
We are bound to consider the manner of life of the deceased. This approach was used in determining whether Islamic law or English law was applicable in ASIATA v. GONCALLO (1900) 1 NLR 41. The court was concerned about whether or not the deceased had been a “bona fide follower of the Prophet” and whether he and his wife had “lived and died as Mohammedans”. The court looked at the deceased’s manner of life and expectations.
The issue of the personal law of Islam governing the estate of the deceased at the time of his death was the basis of the Appellant’s claim at the lower court. The Appellant counsel’s argument that the Appellant did not base his claim under inheritance under Islamic law but is claiming a gift made inter vivos only is fallacious having regard to claim F in paragraph 20 of his statement of claim. The law governing the deceased would determine the type or extent of the dispositions he can make inter vivos. I appreciate the argument of learned Appellant’s counsel that as proposed by Okunola JCA in appeal No. CA/J/8/90 delivered on 19th February, 1992 Fadaya v. Adamu Alh. Isa;
“That once a person is born into Islam or converted into same when he merely has to believe LA ILLAHAILLA ALLAH MOHAMMED RASULULLAHI (meaning I accept the oneness of Allah and the prophethood of Mohammed SAW) he is a Muslim and Islamic law becomes the personal law of the person.”
However the attitude of the courts had been to presume to judge the extent of the commitment of the deceased to his faith, and to determine his personal law by the quantum or extent of evidence brought in proof of same. We are bound by the yardstick imposed by previous authorities on this point.
In his will Exh. P1, the testator devised all his property (except 6A) to his various children. He did not limit himself to the 1/3 he had authority to devise under Islamic law.
The peculiarity in this case is that the Islamic faith is not strictly speaking just a religion, it is a way of life. The Holy Quoran and the Hadiths encode a way of life guiding the faithful from the cradle to the grave. We can see the peculiarity in the way Pa Saliu was buried and in the Will he prepared which was admitted to probate and marked Exh. 1. The property was not divided according to Islamic law of succession neither was it devised according to Bini native law. The testator made devises to his wives which is unheard of under Bini native law. Under Islamic law the wife or wives are entitled to one eight of the estate and only 1/3 can be made intervivos. In fact the property in dispute was in my view deliberately excluded from it. We have no reason to disbelieve the evidence of P.W.5 the Islamic scholar who stated categorically that the concept of Igiogbe is unknown to Islamic law. Exh. P17 – the “whenever I die” instructions written several years to his eldest son, the 1st Respondent and copied to other children before he died contained instructions both in favour and contrary to his stand as a Moslem.
We can see clearly in Exh. P17 that there was a juxtaposition of both Bini culture and the Islamic tenets in the way Pa Saliu Giwa-Osagie instructed that he be buried. Therefore, Pa Saliu Giwa Osagie in his lifetime and on his death did not live a life in which Bini culture was excluded and Islamic tenets took predominance. See also ESTATE OF ANIMATU ALAYO AND AG & PT v. TUNWASE & ORS VOL. XVIII NLR Pg.88. The court held that there being no direct evidence that Mohammed law rather than Ijebu law was applicable to the intestate, held that Ijebu customary law was applicable. See also IBRAHIM v. OSUNDE (2002) 2 NWLR Pt. 804 Pg. 241 at 245.
I am of the view agreeing with the finding of the learned trial Judge that there cannot be a finding that the deceased lived absolutely as a Moslem and not both as a Moslem and a Bini man. This finding coupled with the principle of lex situs makes it easy to arrive at the conclusion that the property in question should be governed by Bini native law. The law is that where an issue is left in serious doubt (as here) as to make the court speculate as to what is the more probable position, the party on whom the burden of proof ultimately rests must lose, because he has failed to establish the full facts that would persuade the court to find in his favour. See OSAWARU v. EZEIRUKA (1978) 6 – 7 SC (2005) 12 SCNJ 236; JOHN I. OGBU v. BEST WOKOMA (2005) 7 SCNJ 299; DR. AUGUSTINE N. MOZIE & ORS. v. CHIKE MBAMALU & ORS (2006) 7 SCNJ 411.
In the light of these peculiar circumstances, to wit our inability to find that during his lifetime Pa Saliu Giwa Osagie lived exclusively as a Moslem, we are constrained to fall back on the principle of LEX SITUS propounded by the Respondent’s counsel.
Respondents’ counsel argued and I agree with him that as a general principle of law, the applicable customary law in land cases is the customary law of the place where the land is situated – LEX SITUS. This is supported by S. 13(4) of the High Court Law of Bendel State 1976 (applicable in Edo State). Also S. 14(4) (b) of the High Court Law provides that in cases of inheritance the law applicable is the customary law applying to the deceased.

This also brings us to a mention of the doctrine of reciprocity. The principle is that the children of late Pa Saliu Agbama Giwa Osagie will not be allowed to take advantage of and enjoy property acquired by their father by inheritance under Bini native law from their grandfather who was a Moslem while in the same breath denying the Bini status of their father or applicability of the Bini custom. This is what the Supreme Court had to say on this point in OLOWU v. OLOWU per Oputa JSC
“…. The principle is that the children of the late A. A. Olowu will not be allowed to take advantage of and enjoy properties acquired by their father as a Bini man while in the same breath denying his Bini status….It will be blowing hot and cold to acquire properties as a Bini man and on death to have these properties governed by Yoruba Cannons on distribution…”
Can the Appellant who is seeking to acquire property given to him by his father which was acquired under Bini Custom deny the same Bini custom? I think it would not be right to do so.
Therefore it is my view that Bini customary law would be the applicable law to this matter of landed property in this case the customary law of Bini Kingdom. Under the conflict of law rules, wills of immovable or disposition of immovables are governed by the lex situs. This is the law in force in the area where the immovable is located and it also determines the capacity for disposition and distribution of immovables – see RE BERCHTOLD (1923) 1 CH 192 and ADESUBOKAN v. YUNUSA (1971) 1 All NLR Pg.225 or (1971) NNLR 77; MOJEKWU v. IWUCHUKWU (2004) 4 SCNJ 180.”
If we agree with the learned trial Judge that the deceased personal law at the time of his death was Bini native law, then the deceased property must be subject to Bini customary law which in this case is the Bini law of inheritance which recognizes and enforces the Igiogbe as belonging to the eldest son.
The first issue of the personal law of the deceased is resolved in favour of the Respondents. I hold that the house in dispute being the house in which the deceased lived and died was his Igiogbe. The 2nd issue is whether the deceased could make a gift intervivos of the Igiogbe.
Learned Appellant’s counsel argued that the finding of the learned trial Judge that the estate of the deceased was governed by Bini law led to the erroneous conclusion that under Bini law the Appellant was not entitled to a gift intervivos of the Igiogbe. Since a Moslem could make an intervivos gift of his property, the gift could not be revoked. He argued that Exh. P5 the deed of transfer from the deceased to the Appellant dated 22/8/88 of No.6A Ugbague Street cannot be voided, invalidated or revoked not even by the grantor himself if he was alive. He cited ANYAEGBUNAM v. OSAKA (2000) 5 NWLR Pt.657 Pg. 386 at 400; MOHAMMED v. MOHAMMED (2001) 6 NWLR Pt.708 at 106.
Learned Respondent’s counsel argued on the other hand that the Bini native law forbids any gift intervivos of the Igiogbe and that the learned trial Judge was right in holding that the Appellant was not entitled to the gift of the Igiogbe.
In ANYAEGBUNAM v. OSAKA (2000) 5 NWLR Pt. 657 Pg. 386 at Pg. 400 the Supreme Court held that a gift inter-vivos is an act whereby something is voluntarily transferred from the true possessor to another person, with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied, the donor has no right to revoke the gift. In this case, the gift No. 6A Ugbague Street was never handed over to the Appellant so that he would be taken to have accepted it and to make the gift complete either under English common law or Islamic law, This whole matter became complicated by the fact that the deceased did not vacate No 6A after he made the gift to his son. He continued to live and died there, if he had moved to No. 6 which he inherited and gave his eldest son by gift inter vivos and he later died therein it would have been a different matter. The case made by the Appellant at the lower court was not that 6A was not the Igiogbe but that the deceased being a Moslem had no Igiogbe to give.
Exh. P3 is the deed of Certificate of Occupancy BOSR 8063 dated 19/5/88 registered on 7/11/88 and Exh. P5 is the deed of transfer of the said 6A Ugbague Street to the Appellant. Can this gifts intervivos be valid? The learned trial Judge held that a gift intervivos of the Igiogbe is not valid. The only similar authority almost on all fours is the case of JOHN IMADE v. OTABOR (1998) 4 NWLR Pt. 544 Pg. 20 Ogundare JSC who wrote the lead judgment held as follows at pg. 34:-
“As was shown by Idehen v. Idehen (1991) 6 NWLR (Pt.198) 382; (1991) 22 NSCC (p.2) 370, a testator cannot, by will, give the ‘Igiogbe’ to anyone else but the eldest surviving male child. Having regard to the nature of the ‘Igiogbe’ I cannot see how it can be given out in the lifetime of the owner to someone who may not be the eldest surviving male at his death. At all times relevant to this case, plaintiff’s father was alive. He was, however, not called to give evidence. The purported gift of an Igiogbe, if at all the land in dispute could be said to be an Igiogbe, by him to the plaintiff in 1957 would be void. Succession to an ‘Igiogbe’ is not by gift but by inheritance. I would need a strong evidence of Bini custom to hold to the contrary.”
Under Bini law, the very nature of an Igiogbe makes it transcend the lifetime of a person. The house known as 6 including the land on which 6A and 6B were later built by the deceased was inherited by him from his father as Igiogbe. During his lifetime he held wherever he lived and made his principal seat or house in trust for the eldest son. He could not by deed intervivos part with it to another son. That is the position of the decision law on the status of an Igiogbe under Bini customary law. In the circumstances, the 2nd issue is resolved in favour of the Respondent. This appeal fails and it is hereby dismissed. The judgment of the lower court is hereby affirmed. N30,000 costs to the Respondents against the Appellant.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: The draft of the lead Judgment written by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA was carefully read by me.
His Lordship has ably considered and rightly resolved the issues for determination in this appeal.
The views expressed therein are in harmony with mine and I agree that for all the reasons given in the lead judgment, the appeal should fail.
Accordingly, I join in dismissing the appeal in the terms set out therein.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, OGUNWUMIJU, JCA. I find myself unable to agree with some of the reasons and conclusions of His Lordship. In consequence, I also find myself having, with all due respect, to disagree with his Lordships’ determination of this appeal.
There was a Late Pa Yesufu Giwa-Osagie. He died on Friday 22nd October, 1943, He was the first Mogaji of Benin Muslims. He was survived by many male and female children. Among the children were the eldest son Mr. Saliu Aghama Giwa-Osagie. Others include, Mariamo Giwa-Osagie, Sumaila Giwa-Osagie, Moru Giwa-Osagie, Momodu Giwa-Osagie, Sefi Giwa-Osagie, Dauda Giwa-Osagie and selia Giwa-Osagie.
In sharing the real estate of the Late Pa Yesufu Giwa-Osagie on 26th December, 1943, according to Bini Native Law and Custom, members of the Oloke family, gave the main house of the deceased at Ugbague Street and 2 other houses at Ikpoba road, to the eldest son, Mr. Saliu Aghama Giwa-Osagie while some of the other children were given other houses such as the house at Lagos Street to Mariamo Giwa-Osagie, Upper Lagos Street house to Sumaila Giwa-Osagie, house at Idahosa Street to Moru Giwa-Osagie etc.
The house at No.6, Ugbague Street, was/is assumed to have been inherited by Saliu Aghama Giwa-Osagie, as an “Igiogbe” under Bini Native Law and Custom. Saliu Aghama Giwa-Osagie was a Muslim of Bini extraction in present day Edo State. He died in February, 1993.
He was survived by many male and female children. While some of the children are Muslims some are not. They are also from different mothers. Late Saliu Giwa-Osagie, having inherited No 6, Ugbague Street, developed Nos. 6A and 6B out of it. He lived and died in No. 6A and was buried therein.
The Plaintiff/Appellant and the 1st and 2nd Defendant/Respondents were among the children of the late Pa Saliu Giwa-Osagie. The Plaintiff/Appellant is a Christian and is of a different mother. The 1st Defendant/Respondent is a Muslim and seemingly of the same mother with the 2nd Defendant/Respondent. The Plaintiff/Appellant claims that his late father, by a gift inter vivos, devised the property known as No 6A Ugbague Street, Benin City, to him. It is also the claim of the Plaintiff/Appellant that the property in No. 6A Ugbague Street is now covered by a perfected title contained in a Certificate of Occupancy No. BDSR 8063 registered is instrument No. 16/16/BIII granted to him by the Military Governor of Edo State.
Upon these claims, the Plaintiff/Appellant sought for some declaratory and injunctive reliefs against the Respondents.
In a joint statement of defence and Counter-claim, the Defendants/Respondents challenged the claims of the Plaintiff/Appellant on the ground that the gift inter vivos made to him of the property situate at No. 6A Ugbague Street, Benin City and covered by the abovesaid Certificate of Occupancy and instrument registering same as such is a nullity being an “Igiogbe” under Bini Native Law and Custom. Upon this defence, the Respondents went further to claim that in accordance with Bini Custom and Native Law of inheritance, the 1st Defendant/Respondent as the eldest surviving son of late Pa Saliu Giwa-Osagie, succeeds exclusively at all events to the houses and/or properties laying and situate at and known at No. 6 (including 6A and 6B) Ugbague Street, Benin City as “Igiogbe”. Upon this premise the Defendants/Respondents Counter-claimed and also sought for declaratory and injunctive reliefs.
Before the lower Court, issues were duly joined in the pleadings of the respective parties and the matter went to trial. At the trial witnesses on both sides gave oral evidence. Documents were tendered by the respective parties and admitted in evidence. Also during the trial, respective learned Counsel addressed the Court.
In its judgment of 14th March, 2005, the lower Court dismissed the claim of the Plaintiff/Appellant as well as the Counter-claim of the Defendants/Respondents. The Plaintiff/Appellant is dissatisfied with this judgment and he appealed to this Court via a notice of appeal dated 16/03/05 containing one ground of appeal. With the leave of this Court granted on 24/05/06, the Appellant filed additional grounds of appeal numbers 2, 3 and 4.
From the 4 grounds of appeal, the appellant distilled and identified 2 issues for determination in this appeal. These issues were formulated out of grounds 2, 3 and 4 while the omnibus ground 1 was abandoned. The 1st issue was formulated out of grounds 2 and 3 and it goes thus:-
(1) Whether having regard to the fact that the late Pa Saliu Aghama Giwa – Osagie lived, died and was buried a Muslim, the learned trial judge was right when he held that the Bini Native Law and Custom regarding devolution of property is applicable to his estate as to make him have an “Igiogbe”.
In arguing this issue learned counsel to the appellant set out what he called “fundamental findings of fact” out of the appraisal and evaluation of the evidence before the lower Court. Upon these findings and a background on the decision of the Supreme Court in OLOWU VS. OLOWU (1985) 3 NWLR (Pt.13) 372 learned Counsel explained while a man has the liberty to determine or change his personal law in his life time such a right does not extend to his survivors after his death to change the personal law of a deceased is ascertainable during his lifetime and after death, that law cannot be changed by his children or any other person, particularly in relation to the devolution of his property no matter any inconveniences its application may cause.
While referring to line 5 of page 133 of the record of appeal, learned counsel singled out a key finding of the Lower Court for appraisal. It is the finding that the Late Pa Saliu Aghama Giwa- Osagie, Muslim. Against the foregoing setting learned counsel referred to the provisions of sections 275 to 279 of the 1999 Constitution and a number of decided cases both within this jurisdiction and England and India and submitted that to the extent that the deceased was a Muslim, Islamic law becomes his personal law, Learned counsel emphasized the decisions of this Court in AGBEBU VS. BAWA (1992) 6 NWLR (Pt.245) 80 at 90 F, and the unreported decision in JAURO ALHAJI FADAYA VS, ADAMU ALHAJI ISA Appeal No:CA/J/8/S/90 delivered on 19/2/1992 as per OKUNOLA, JCA (of blessed memory). In a further effort learned counsel referred to some of the incontrovertible facts that emerged and stood out from the testimonies of PW5 and PW6 and submitted that there was no stumbling block on the way of the lower Court to accepting Islamic law as the personal law of the deceased.
At page 12 of his brief of argument, learned counsel to the appellant, challenged some of the key conclusions of the lower Court and maintained to that they offend some of the findings of the Court itself and generally against universally accepted legal standards in, statutes and judicial decisions prescribing and institutionalizing, flexibility in the concept of personal law. Further to this learned counsel maintained that where a Court misconceives and misapprehend the case before it, a miscarriage of justice would be presumed and the decision thereby made is liable to be set aside by an appellate Court. He urged this Court to answer the question in issue I in the negative and allow the appeal on this ground.
Learned Counsel to the Respondents raised and argued a preliminary objection to the competence of grounds 2 and 3 and issue 1 distilled therefrom. I agree with my learned brother in the judgment that this preliminary objection is devoid of any merit. Without much ado, I too would dismiss it. It is hereby accordingly dismissed.
In the usual way, ex abundante cautela, learned Counsel to the Respondents, Mr. Imadegbelo SAN, formulated and argued a lone issue in this appeal. Having regards to the 3 main grounds of appeal, I do not find this issue, as formulated by learned Counsel Mr. Imadegbelo SAN, on behalf of the Respondents as sufficiently germane or apposite in this appeal. However, I find 2 conclusions of the learned SAN at page 11 of his brief of argument to be of interest to me in the determination of this appeal. These conclusions ofthe learned SAN are: –
a) That No. 6A Ugbague Street, Benin City is an “Igiogbe” which can only be inherited by the 1st Respondent who is the eldest surviving son of the Late Pa Saliu Aghama Giwa-Osagie; and
b) That No. 6A, Ugbague Street, Benin City being an “Igiogbe”
cannot be given out under any circumstances except to the eldest surviving son of Pa Saliu Aghama Giwa-Osagie. These conclusions are a total misconception and erroneous in the circumstances of this case.
Copious references have been made to the decisions of the Courts in IDEHEN V. IDEHEN, UWAIFO V. UWAIFO, LAWAL OSULA V. LAW AL OSULA, ARASE V. ARASE and IMADE V. OTABOR etc. All these decisions are very good for what they decided. They have gone all the way to define and settle the law that the eldest surviving male child of a deceased Bini person inherits the “Igiogbe” exclusively. No other son partakes in the “Igiogbe”. It is the exclusive preserve of the surviving eldest male child of the deceased. The law is also settled that the “Igiogbe” is the house where a deceased Bini man lived and died and often times buried there.
With respect to the facts and circumstances of this matter, all the facts and evidence do not support the existence of an “Igiogbe” capable of being inherited in the manner settled in the above said decisions of the Courts. The reason here is that simple and it is that the house in contention either as No.6 Ugbague Street, Benin City simpliciter or as Nos. 6, 6A and 6B, with all due respect to my learned brothers and learned SAN, in the circumstances of this case had never been an “Igiogbe” and would never have been, at least for the purpose of its being inherited as such. This position is underscored by the unchallenged evidence of PW5 at page 35 of the record. It goes thus:-
“The Islamic Law governing distribution of properties from deceased to his children is called Islamic Law of Succession. The Law makes it mandatory for and (sic) the children of the deceased to inherit from the estate of the deceased. The wives are also to inherit. This is also mandatory Igiogbe rule runs contrary to Islamic injunction. A Muslim is adions (sic) of to make a Will provided the deceased does not Will more than 1/3 of his property. The remaining 2/3 must necessarily be shared according to Islamic Law and laid down rules…”
It is my humble view that what devolved to Pa Saliu Giwa-Osagie from Yusuf Giwa-Osagie was not an “Igiogbe” because the concept of “Igiogbe” and its concomitant vesting of exclusive inheritance right on eldest surviving male children is totally unknown and alien to Islamic law. Late Yusuf Giwa-Osagie was a Muslim, indeed the foremost conferee of the title of Mogaji of Benin Muslims. Though a Bini man, his personal law remained the Islamic Law and thereby rendering all his earthly possessions subject to the Islamic Law of inheritance upon his death. This situation also extended to Late Saliu Giwa-Osagie and down the line to the 1st Defendant/Respondent, Alhaji Rilwanu Giwa-Osagie, the current Mogaji of Benin Muslims.
I wish to emphasise that there is enough evidence on record to show that the deceased, Saliu Giwa-Osagie lived and died as a Muslim. The 1st Defendant/Respondent a Muslim, testified as DW1 At page 44 lines 9-10 of the record he testified that the deceased was buried on Friday 2 days after his death and that he called Muslims to offer prayers for the deceased even though, according to him, the deceased was not going to the mosque and was not an “active muslim” during the last 20 years of his life.
Most probably it is this aspect of the evidence of DW1 that led to the finding of the lower Court at page 101 of the record that it was not established that the deceased was a “practising muslim”. I do not accept this finding. It is unreasonable and perverse in the circumstances of this case. My knowledge of the Islamic religion, which I am fully entitled to rely on in the circumstance, tells me that the religion does not accept and has no place for this type of strait jacket typification or categorization of its adherents. One is either a Muslim or not. No more no less. And once one is a Muslim, the Islamic religion, according to the evidence of PW5, stipulates that its provisions and rules must be applicable to the estate of a deceased Muslim.
It is a great misconception as pointed out and explained by learned Counsel to the Appellant, Eghobamien Esq, at pages 14 to 15 of his brief of argument, for this case to proceed on the premise that there is any “Igiogbe” involved. The circumstances, do not allow for this very generous but erroneous assumption. Suffice it to say here, that even with respect to an “Igiogbe”, it does not devolve to an eldest male child until after he had performed the 2nd burial rites of his deceased father and gone further to do the “Ukomwen” and handed over the “Ikhure”. There is no indication or any evidence at all that the Late Saliu Giwa-Osagie had done that with respect to No.6, Ugbague Street, as it devolved to him through his father, Late Yusuf Giwa-Osagie. There is therefore no “Igiogbe” for it to be subjected to inheritance as such. Without any doubt, the personal law of the deceased is the Islamic Law and therefore No.6, and its appurtenances as circumstances may permit, must be shared among all the Muslim children of the deceased or pursuant to a Will lawfully made by him, but only to the extent of 1/3 thereof and not in favour of any of his legal heirs.
I wish to observe by the way, that Customary Law, including Islamic personal law, principles and practice worked and still works better for the majority of the people of this country because it is embedded in their traditions, religion, culture and other value systems. People understand this best. By a deliberate judicial policy and practice this system has been allowed and encouraged to develop and grow during the colonial days. Such encouragement did not die with the end of colonial administration. Our Superior Courts have admirably continued the policy and have accorded the native laws and customs of the indigenous Communities of this country due recognition for purposes of enforcement.
It is in pursuit of these objectives that such concepts or ideas as the “Igiogbe” were identified, upheld and enforced. There is no end to this voyage of the Courts towards the identification of such traditional ideas or an amalgam or admixture or convergence of such ideas as the circumstances of our times may necessitate.
The advent of modernity and its influences on our value system, as well as Constitutionalism and its imperatives should not be overlooked in the determination of applicable laws in this Country. Such Constitutional imperatives as democracy and its emphasis on liberty, freedom of choice and egalitarianism must be brought to bear in the interpretation and application of our laws. In its quest to do justice, a Court should at all times endeavour to find means to do justice to all manner of men based on a living and dynamic law. See the dictum of PATS-ACHOLONU, JSC in NWOLISAH V. NWABUFOH (2004) 9 NWLR (PT.879) 507 and OKOTIE-EBOH V. MANAGER (2004) 18 NWLR (PT.905) 242.
In the circumstances of the instant appeal, the Courts must realize that there are now indigenous Bini men and women who had embraced the religion of Islam and are living their lives as Muslim. Their right to be Muslims of Edo State origin is recognized by the Constitution of the Federal Republic of Nigeria, 1999. The same Constitution specifically in its Sections 38, 275 – 279 allows for the recognition and enforcement of Islamic personal law. It is high time that amalgam or convergence of a system of laws made up of Bini Native Law and Custom as could be accommodated by Islamic personal law is evolved, recognized and enforced by the Courts to govern the affairs of Bini Muslims.
It is a case like this that presents the opportunity for the Courts to achieve the above objective. The rights of the Plaintiff Appellant as a Christian son of the deceased Saliu Giwa-Osagie must be protected.
Likewise his other siblings who are the Muslim children of the deceased. The Islamic law of inheritance had made adequate and elaborate provisions for such contingency. For example, the Plaintiff/Appellant as a Christian son, is not a legal heir, but he can inherit by way of a valid Will or gift inter vivos. The 1st Defendant/Respondent cannot inherit, merely for being an eldest male child to the exclusion of other Muslim children of the deceased any house where their father lived and died. Land has continued to acquire real economic value particularly in urban areas like Benin City and therefore any system of laws that seeks to vest exclusive right of succession thereto on certain persons because of the circumstances of their birth must be viewed with great concern.
In the circumstances of this appeal, I am of the view that none of the parties had made out a case to sustain their respective claims both in the main suit and the Counter-claim. For the Plaintiff/Appellant, he failed to establish his claim for a gift inter vivos and for the Defendants/Respondents their Counter-claim must fail because as Muslims they cannot succeed on a claim based on the concept of an “Igiogbe”. The proper order for the lower Court to enter against the Plaintiff/Appellant was one for non-suit while for the Defendants/Respondents, the Counter-claim ought to have been dismissed not because of not having performed a second burial and “Ukomwen” but because, as Muslims subject to Islamic personal law, they cannot inherit under the idea or concept of “Igiogbe”.
I would therefore order for a non-suit of the Plaintiff/Appellant and a dismissal of the Counter-claim on the ground of not capable of being maintained, as Constituted by a Muslim. I hereby so order.