MR. JOHNSON EZEKIEL & ORS v. MR. OSAMWONYI PADDY EZEKIEL
(2019)LCN/13795(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of January, 2019
CA/B/466/2014
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
RATIO
THE VALIDITY OF THE BENIN CUSTOMARY LAW OF INHERITANCE
It is however common knowledge and practice that the first surviving male child of a Benin man steps into his father?s shoes and inherits his Igiogbe as of right. In the case at hand the Respondent?s father Chief Solomon Osawaru Ezekiel from the evidence on record had stepped into his father?s shoes and accordingly inherited the Igiogbe of the patriarch Pa. Osegbowa Ezekiel as his eldest surviving son. From the numerous cases cited by both parties, the focal point herein is that the Benin Custom or tradition of inheritance has not made any provision for either siblings of the deceased or female children of the household. The main protagonist in the case before us is the Respondent who either way stands to inherit his father?s property as a first son and particularly his father?s Igiogbe as of right. The Benin Custom and tradition has not made any room for the making of a Will as contended by the Appellants particularly as it refers to the celebrated Igiogbe. In Idehen V. Idehen (1991)6 NWLR (Pt.198) the Supreme Court held that Idehen?s Will was valid except for the portion that devised the Igiogbe to a son other than the eldest surviving son. In all this a man?s Igiogbe remains sacrosanct and devolves absolutely from one man?s eldest son to another in succession. See ARASE V. ARASE as referred to at page 88 of the Book IGIOGBE by Solomon I. Eghobamen Esq.
?In the present case, all parties are ad idem to the fact that the Respondent?s father was the eldest son of his father and that he inherited his father?s Igiogbe. Also, all parties are in tune with the assertion that the Respondent is the eldest surviving son of his late father who by right had inherited an Igiogbe from his own father. No doubt the Respondent?s father Chief Solomon Osawaru Ezekiel had built his own house at No. 1, Osaigbovo Street, Benin City, but in my humble view it does not detract from the fact that the Igiogbe still stands as his inheritance as of right from his own father. I tow the line of reasoning of the learned trial Judge when he stated thus in his Judgment at page 192 of the record:
?In this present case, the house in dispute is the Igiogbe inherited by Claimant?s father; the Claimant?s father then built the house where he lived and was buried at No.1, Osaigbovo Street. The Claimant has a right to inherit the two houses as his Igiogbe, he being the eldest male son of his father and also the man entitled to inherit his father?s Igiogbe, the subject of dispute in this case. Section 3(1) of the Wills Law enjoins a testator to make his Will subject to his customary law; it also says all property may be disposed of by Will subject to customary law.?
I therefore cannot subscribe to the Appellant?s argument that the Respondent having inherited his late father?s house at No.1, Osaigbovo Street, Benin City cannot rightfully inherit his own father?s Igiogbe. PER PHILOMENA MBUA EKPE, J.C.A.
WHETHER THE WILL OF A BENIN MAN WHICH DIVESTS THE ELDEST SON OF THE PRINCIPAL HOUSE WHERE HIS LATE FATHER LIVED AND DIED
There is no gainsaying the fact that it is now a trite point of law that any portion of the Will of a Benin man which divests the eldest son of the principal house where his late father lived and died is rendered null and void. In the instant case the Respondent?s grandfather Pa. Osegbowa Ezekiel supposedly made a Will which according to the Appellants divested his eldest son of his principal house (IGIOGBE) by sharing out rooms to various members of his immediate family. In the case of AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (Pt. 454) 300. @ 312. paras C-D the Apex Court held as follows:
?The evidence of Customary Law is that the eldest son of the testator is entitled to inherit without question the house or houses known as Igiogbe in which the testator lived and died. It is common ground that the Igiogbe is the house or houses where a Bini testator lived and died. (See for example Oke V. Oke (Supra), Idehen V. Idehen (Supra) and Lawal ? Osula V. Lawal ? Osula (Supra).
Now, applying the decisions in the cases above to the facts in the instant case, the Testator could not have validly disposed of his Igiogbe by Will except to his eldest surviving male child, which is the 1st Defendant herein. Any device of the Igiogbe to any other person will on the authorities be void.? I shall also refer to a more recent case of the Supreme Court which affirmed the Judgment of this Court in the case of UWAIFO V. UWAIFO (2013) 10 NWLR (Pt. 1361) 185 @ 206 paras E-H in the following terms:
?The entire claim revolves around Section 3(1) of the Wills Law of Bendel State of Nigeria, 1976 which is still applicable in Edo State by the use of the phrase ?subject to customary law relating thereto.? In the section, is a confirmation of the statutory backing and recognition which is given to the prevailing custom to operate within its area of application. For all intents and purposes and on a composite reading of the Wills Law in conjunction with the Benin Customary Law, the contested Will is only void to the extent of the deceased father disinheriting the Appellant to the ?Igiogbe?, it is his right and therefore must be allowed to inherit and enjoy same. The deceased father in bequeathing the ?Igiogbe? along with his other properties for purposes of disinheriting the Appellant is a violation of Benin Customary Law. The Will as rightly held by the trial Court and affirmed by the lower Court is invalid to the extent of its affecting the ?Igiogbe? only
As a follow up from the above pronouncement of the Supreme Court, I can safely state that an ?Igiogbe? is sacrosanct and cannot in law be willed out to any other person except by inheritance by the eldest surviving male child of the testator. In the case of IMADE V. OTABOR (1998) 4 NWLR (Pt.544) 20 @ 33- 34 the Supreme Court thus held:
?An ?IGIOGBE? would appear not to be just any landed property that could be treated as such but one that carries with it special notions of customary law such as that it is inherited by the eldest surviving male child of the deceased.
?..As was shown by Idehen V. Idehen (1991) 6 NWLR (Pt. 198) 382 ?.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 life-time of the owner to someone who may not be the eldest surviving male at his death.<br< p=”” ?.The purported gift of an ?Igiogbe? by him to the Plaintiff in 1957, will be void. Succession to an Igiogbe is not by gift but by inheritance. I would need a strong evidence of Benin Custom to hold to the contrary.?
It is therefore quite clear from the above that a Benin man by law is precluded from willing out his ?Igiogbe? to any person of his choice other than his eldest surviving son. The Court below was therefore in order when it struck out portions of the Will that apportioned the ?Igiogbe? to anyone other than his eldest surviving son. In the instant case, the Igiogbe of the patriarch Pa. Osegbowa Ezekiel devolved on no other than on his eldest surviving son at the time, Chief Solomon Osawaru Ezekiel. A testator cannot validly dispose of his ?Igiogbe? by Will except to his eldest surviving son. Any device of the ?IGIOGBE? to any other person will be rendered null and void. PER PHILOMENA MBUA EKPE, J.C.A.
Between
1.MR. JOHNSON EZEKIEL
2.MRS. WURA ALONGE
3.MRS. SARAH AIGBE
4.MRS. FUNKE ESEKA
5.MR. IMASUEN OJO
6.MRS. AJOKE EZEKIEL Appellant(s)
AND
MR. OSAMWONYI PADDY EZEKIEL Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the decision of the High Court of Edo State delivered on the 30th day of May, 2014 in Suit No. B/125/2003.
The claims of the Plaintiff/Respondent in the lower Court are as follows:
RELIEFS SOUGHT
i. A declaration that the Claimant?s father, Chief Solomon Osawaru Ezekiel being the eldest son of Pa. Osegbowa Ezekiel is entitled to and did inherit exclusively the Igiogbe Iying and situate at No. 25 (formerly No. 31) Ugbague Street, Benin City to the exclusion of any other person including the Defendants.
(ii) An Order to set aside and declare as null and void the portions of the purported WILL of Pa. Osegbowa Ezekiel dated 9th October, 1972 wherein portions and/or rooms/stores of the Igiogbe situate at No. 25, (formerly No. 31) Ugbague Street, Benin City were given to the Defendants as same offends against the Benin Native Law and Custom and the WILLS Law Cap. 172 of the Laws of Bendel State 1976 as applicable in Edo State.
(iii) A declaration that the Claimant being the eldest son of Late CHIEF SOLOMON OSAWARU EZEKIEL is
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entitled to inherit the afore-said property having performed all the funeral rites of his late father to the exclusion of all the Defendants in accordance with Benin Native Law and Custom.
(iv) A declaration that the Claimant is entitled to collect rents and generally administer the property to the exclusion of the Defendants their agents, privies, servant or successors-in-title.
(v) An Order, directing the Defendants jointly or severally, to render accounts of all sums of money received and/or collected by them and/or their agents, servants or privies, in respect of the property from September, 1997 until Judgment.
(vi) An Order for the payment to the Claimant of all such sums of money collected as rents from the afore-said property.
(vii) An Order of Perpetual Injunction, restraining the Defendants, their agents, servant or privies from administering, expending, disposing of or dealing in any way the property afore-said or any part thereof.
(viii)An Order that the Defendants shall put the property in a good state of tenantable repair before vacating same.
The relevant facts of this case are thus:
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The Plaintiff/Respondent Court is claiming the house in dispute, No.25, (formerly No. 31) Ugbague Street, Benin City. as his inheritance from his father in line with the Bini Culture of Igiogbe as the first surviving son of his father.
The contention of the Defendants/Appellants however, is that the house in dispute, No. 25, (formerly No. 31) Ugbague Street, Benin City was not the Igiogbe of the claimants father to be inherited by the Respondent.
The Appellants being siblings of the Respondents father aver that in the lifetime of the Respondent?s father (Late Chief Solomon Osawaru Ezekiel) the Respondent did not contest the Will made by his grandfather, Pa. Osegbowa Ezekiel and that they all lived peacefully until his death in 1996. That in his lifetime the Respondent?s father did not challenge the Will made by his own father in respect of the house in dispute (No. 25/31 Ugbague Street, Benin City.)
?The Appellants now contend that the Respondent?s father when he died was buried outside the house in dispute since he had acceded to the sharing of the house in dispute according to the Will of the Respondent?s grandfather.
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The Respondent now claims the said house in dispute as his entitlement being the eldest son of his father Chief Solomon Osawaru Ezekiel.
The learned trial Judge granted the claim of the Respondent stating that the house in dispute is the IGIOGBE as well as No. 1 Osaigbovo Street, Benin City where his father lived and died and was buried.
The Appellants were dissatisfied with the above decision hence this appeal.
The Appellants from the five grounds of appeal raised and distilled the following issues for determination:
ISSUES FOR DETERMINATION:
1. Whether in the circumstances of the case, the learned trial judge was not in error when he held that the claimant was entitled to inherit House No.25 (formerly No. 31) Ugbague Street, Benin City as his IGIOGBE.
2. Whether the learned trial Judge was not in error when he relied on the case of IDEHEN V. IDEHEN to hold that the claimant is entitled to two IGIOGBES- one at House No.25 (formerly No.31) Ugbague Street, Benin City and No.1, Osaigboivo Street, Benin City.
3. Whether the learned trial Judge was not in error when he set aside and declared null and void portions of the will of Pa. Osegbowa Ezekiel dated 9th
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October 1972 in the absence of the Probate Registrar, Probate Registry of the High Court of Justice, Benin City.
The Respondent also on his part formulated the following issues for determination:
ISSUES FOR DETERMINATION:
1. Whether the Respondent?s father being the eldest son of late Pa. Osegbowa Ezekiel inherited the subject-matter in accordance with Benin Native Law and Custom. (Distilled from Ground 1).
2. Whether the trial Court was right, when it held that the Respondent was entitled to the subject-matter, No. 25, Ugbague Street, Benin City by right of inheritance from his late father under Benin Native Law and Custom. (Distilled from Grounds 2 and 4).
3. Whether the learned trial Judge was right in setting aside portions of the Will of late Pa. Osegbowa Ezekiel on the grounds that same was made in violation of Benin Native Law and Custom and S. 3 (1) of the Will?s Law Cap 172 of the Defunct Bendel State now applicable in Edo State (Distilled from Ground 3).
4. Whether the non-joinder of the Probate Registrar, Probate Registry of the High Court as a party to the suit is fatal to the claim of the Respondent. (Distilled from Ground 5).
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I have critically examined all the issues formulated by both parties and in my humble view, the issues formulated and couched by the Appellant seem more appropriate and all embracing.
ISSUE NO. ONE:
Whether in the circumstances of the case, the learned trial judge was not in error when held that the claimant was entitled to inherit House No.25 (formerly No. 31) Ugbague Street, Benin City as his IGIOGBE.
Learned Counsel for the Appellant submitted that Late Chief Solomon Osawaru Ezekiel, father of the Respondent took over the said No. 25, Ugbague Street, Benin City as his Igiogbe and that he also built his own house No. 1, Osaigbovo Street, Upper Mission, Benin City where he lived and until he died. Learned Counsel also averred that the Respondent?s grandfather Pa. Osegbowa Ezekiel owned and lived at No. 25/31 Ugbague Street, Benin City and was therein buried in accordance with Bini Native Law and Custom by the Respondent?s late father as the eldest son. The Appellants further contended that since the Respondent?s father did not live in the house in dispute, that
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is No. 25/31 Ugbague Street, Benin City, neither did he die there, the said property cannot form an Igiogbe. That the said No. 25 Ugbague cannot be inherited by the Respondent as an Igiogbe after his father. Learned Counsel then surmised that the learned trial Judge misapplied the portion of the Bini Customary Law when he held Igiogbe as a custom. That the learned trial Judge was in error when he held that the Respondent was entitled to inherit the said No. 25, Ugbague Street, Benin City as his Igiogbe. Learned Counsel concluded that there are uncontroverted facts on record to prove that the Respondent is not entitled to the said house in dispute as his Igiogbe and that the Court did not properly evaluate such evidence to back the claim of the Respondent. He then referred to the case of ABISI V. EKWEALOR (1993) 6 NWLR Pt. 302. 648 Ratio 10.
?In reply, learned counsel for the Respondent submitted that the Respondent led uncontroverted evidence in line with his pleadings that his late father, Chief Osawaru Ezekiel was the eldest son of late Pa. Osegbowa Ezekiel, the testator in his own Will and that he lived and died in the subject matter No. 25/31 Ugbague Street, Benin City. Also, that PW1
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and PW2 in the lower Court corroborated the above stated piece of evidence. That this fact was also admitted by the Appellants in paragraph 2 of their amended statement of defence.
Learned Counsel also referred to the evidence of D.W.1 (5th Defendant) in the lower Court who thus stated under Cross Examination:
?My late father lived, died and was buried at No. 25 Ugbague Street, Benin City ———- Nobody contested ownership with my senior brother.?
Learned Counsel further referred to the testimonies of D.W.S 2 and 3 who clearly stated that nobody disputed ownership of the house in dispute: i.e. No. 25, Ugbague Street, Benin City where their grandfather Pa. Osegbowa Ezekiel lived, died and was buried. Learned counsel emphasized the point that facts admitted need no further proof since an admission is the best form of evidence. Counsel further averred that the claim of the Respondent in his statement of claim shows that it was premised on the fact that his father as the eldest son performed the final burial rites of his own father Pa. Osegbowa Ezekiel in line with Benin Native Law and Custom
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and inherited the subject matter; No. 25 Ugbague Street, Benin City where he lived and died unchallenged by the appellants all through his lifetime. Learned counsel has drawn this Court’s attention to the fact that there is no appeal against these findings in the lower Court by the Appellants. That the case now being presented on appeal about whether the subject matter was the Respondent?s father?s Igiogbe is radically different from that which they canvassed at the lower Court. He concluded on that point that a party cannot make a case on appeal different from that which they presented at the lower Court as an appeal is a continuation of the case from the lower Court. He then cited the case of OKADIGBO V. EMEKA (2012) 11 NWLR (Pt. 1311. 237 @ 255.
RESOLUTION:
The bone of contention with regard to this issue is the ownership and inheritance of No. 25 (formerly 31) Ugbague Street, Benin City. The crucial question here is: was this property No. 25 Ugbague Street, Benin City the IGIOGBE of the Respondent?s father? The Appellants however contend that the said property was not the IGIOGBE of the Respondent?s father since Pa. Osegbowa, his own father
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had made a Will to the knowledge of both the Appellants and the Respondent. It is worthy of note that the Appellants are siblings of the Respondent?s father who according to the Appellants did not —— contest the Will of his father and that they all lived together peacefully until the latter?s death in 1996.
On the other hand, P.W.2 HRH Felix Imuwahen Ogiugo in his statement on oath at paragraphs 7,8,9, 10 and 14: had this to say:
(7) That his eldest son, Late CHIEF SOLOMON OSAWARU EZEKIEL having performed the afore-mentioned burial rites stepped into his late father?s shoes and inherited the afore-said Igiogbe in consonance with Benin Native Law and Custom.
(8)That I was present during all the burial rites of Late PA. OSEGBOWA EZEKIEL and same was presided over by MR. WILLIAM EHIWE OGBEGIE, now deceased.
(9) That I know as a fact that the Late CHIEF SOLOMON OSAWARU EZEKIEL having inherited his late father?s aforesaid Igiogbe took over possession and collected rents from all the tenants therein during his life-time.
(10)That none of his junior brothers and sisters ever contested title to the said Igiogbe, No. 25 (formerly)
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Ugbague Street, Benin City with him till he died on the 28th day of April, 1996.
(14) That I and other principal members of the family vested title of the subject-matter in the Claimant as the senior son of CHIEF SOLOMON OSAWARU EZEKIEL.
Thus, corroborating the contention of the Respondent who clearly stated as follows:
After I completed my father?s burial in 1996, I inherited the afore-said Igiogbe in accordance with the Benin Native Law and Custom and appointed the Law firm of Messrs Osaze Uzzi & Co. in a letter of 21/10/96 to manage the property and collect rent on my behalf.
That the said law firm duly managed the property and issued receipts for rent collected from 1996 to 1997 on my behalf. That I have duplicate copies of the receipts issued by the Law firm to the tenants during the said period.
?It is however common knowledge and practice that the first surviving male child of a Benin man steps into his father?s shoes and inherits his Igiogbe as of right. In the case at hand the Respondent?s father Chief Solomon Osawaru Ezekiel from the evidence on record had stepped into his
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father?s shoes and accordingly inherited the Igiogbe of the patriarch Pa. Osegbowa Ezekiel as his eldest surviving son. From the numerous cases cited by both parties, the focal point herein is that the Benin Custom or tradition of inheritance has not made any provision for either siblings of the deceased or female children of the household. The main protagonist in the case before us is the Respondent who either way stands to inherit his father?s property as a first son and particularly his father?s Igiogbe as of right. The Benin Custom and tradition has not made any room for the making of a Will as contended by the Appellants particularly as it refers to the celebrated Igiogbe. In Idehen V. Idehen (1991)6 NWLR (Pt.198) the Supreme Court held that Idehen?s Will was valid except for the portion that devised the Igiogbe to a son other than the eldest surviving son. In all this a man?s Igiogbe remains sacrosanct and devolves absolutely from one man?s eldest son to another in succession. See ARASE V. ARASE as referred to at page 88 of the Book IGIOGBE by Solomon I. Eghobamen Esq.
?In the present case, all parties are ad idem to the fact that
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the Respondent?s father was the eldest son of his father and that he inherited his father?s Igiogbe. Also, all parties are in tune with the assertion that the Respondent is the eldest surviving son of his late father who by right had inherited an Igiogbe from his own father. No doubt the Respondent?s father Chief Solomon Osawaru Ezekiel had built his own house at No. 1, Osaigbovo Street, Benin City, but in my humble view it does not detract from the fact that the Igiogbe still stands as his inheritance as of right from his own father. I tow the line of reasoning of the learned trial Judge when he stated thus in his Judgment at page 192 of the record:
?In this present case, the house in dispute is the Igiogbe inherited by Claimant?s father; the Claimant?s father then built the house where he lived and was buried at No.1, Osaigbovo Street. The Claimant has a right to inherit the two houses as his Igiogbe, he being the eldest male son of his father and also the man entitled to inherit his father?s Igiogbe, the subject of dispute in this case. Section 3(1) of the Wills Law enjoins a testator to make his Will subject to
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his customary law; it also says all property may be disposed of by Will subject to customary law.?
I therefore cannot subscribe to the Appellant?s argument that the Respondent having inherited his late father?s house at No.1, Osaigbovo Street, Benin City cannot rightfully inherit his own father?s Igiogbe.
This issue is therefore resolved in favour of the Respondent against the Appellant.
ISSUE TWO :
Whether the learned trial Judge was not in error when he relied on the case of IDEHEN V. IDEHEN to hold that the claimant is entitled to two IGIOGBES- one at House No.25 (formerly No.31) Ugbague Street, Benin City and No.1, Osaigboivo Street, Benin City.
Learned Counsel for the Appellant made keen reference to the celebrated case of Idehen V. Idehen (1991)6 NWLR (Pt.198) and submitted that by the concept of Igiogbe under the Bini Customary Law of inheritance, the father of the Respondent was the only one with the right and competence to challenge the Will of his father Pa. Osegbowe Ezekiel. That the Respondent is not the eldest son of the said Pa. Osegbowa Ezekiel. That in Idehen?s case there was no
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issue and also no evidence as to the possibility of having two Igiogbes. Learned counsel went further to cite a number of authorities stressing the fact that as in the case of OKOYE V. C.M.P.B (2008) 15 NWLR (Pt.110) 335 @ 362 paragraphs A-B the Supreme Court ruled that the principles of stare decicis cannot be determined in isolation of the facts. That as a matter of law, the facts of a case donates the principle of stare decicis.
Learned Counsel surmised that the issue of two Igiogbes did not arise in the instant case and referred to the reliefs sought by the Plaintiff/Respondent at page 2 of the record of appeal.
Learned Appellant?s Counsel concluded that in the instant case No. 1, Osaigbovo Street, Benin City which is an Igiogbe was not claimed by the Respondent and there was no evidence or issues joined concerning this 2nd Igiogbe. That in summary the learned Jurist of the lower Court erred in relying on the case of Idehen V. Idehen on the possibility of having two Igiogbes.
In his reply learned counsel for the Respondent grossly faulted the argument of the Appellants that the trial Court merely granted two Igiogbes to the Respondent since the
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Respondent?s father did not live and die in the subject matter in dispute. Learned Counsel then opined that the house where the Respondent?s father lived and died i.e. No.1, Osaigbovo Street, Benin City, off Upper Mission Road, Benin City is not in issue. That the bone of contention between the parties is No. 25, Ugbague Street, Benin City which the Respondent?s father Chief Solomon Osawaru Ezekiel inherited from his own father Pa. Osegbowa Ezekiel.
?In a further submission, learned counsel stated that the Respondent being the eldest son of Chief Osawaru Ezekiel has the locus to challenge the unlawful seizure of his late father?s property which he in turn inherited from his own father, the seizure being made by the Appellants. Counsel further submitted that the said subject matter having been inherited by the Respondent?s father as his late father?s Igiogbe had become part of the Respondent?s father?s estate which only his children can legally claim as their own. That the issue of two Igiogbes as argued by the Appellants does not arise and is therefore a non ? issue. That the Appellants
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are indeed not entitled to inherit the subject matter since they are not the children of the deceased Chief Osawaru Ezekiel. That the Respondent is in actual fact the eldest son of the elder brother of the Appellants.
Learned Counsel then concluded that the case at the lower Court is a declaration of title to the subject matter and that the lower Court in turn made that declaration in favour of the Respondent in a well-considered Judgment. He then cited the following authorities to buttress his argument KANKIA V. MAIGEMU (2003)6 NWLR (Pt. 817) 496 at 517; SULE V. HAMIDU (1998)4 NWLR (Pt.90) 516 at 50; MAKU V. AL-MAKURA (2016)5 NWLR (Pt.1505)201 at and 241 ? 242.
He then urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION:
I shall begin this discourse by making reference to the definitive pronouncement of the learned Judex of the lower Court when she stated at page 192 of the record as follows:
?In this present case, the house in dispute is the Igiogbe inherited by Claimant?s father; the Claimant?s father then built the house where he lived and was buried at No.1, Osaigbovo Street. The Claimant has a
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right to inherit the two houses as his Igiogbe, he being the eldest male son of his father and also the man entitled to inherit his father?s Igiogbe, the subject of dispute in this case. Section 3(1) of the Wills Law enjoins a testator to make his Will subject to his customary law; it also says all property may be disposed of by Will subject to customary law.?
In my view, what the learned trial Judge ought to have laid emphasis on is the house which the late Chief Solomon Osawaru Ezekiel inherited from his father, the latter?s Igiogbe. That fact like I earlier stated was not challenged by any of the parties in the lower Court. The Casus Belli which is the gravamen of this suit is house No. 25, Ugbague Street, Benin City as per the claim of the Respondent in the lower Court.
A cursory look at the Respondent?s claim at the lower Court does not make any mention of any other property apart from the one aforementioned. The emphasis here as also in the lower Court is the question of who is entitled to own inherit No. 25, Ugbague Street, an Igiogbe which was inherited by the Respondent?s father as his own father eldest son.
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The other property which is No. 1, Osaigbovo Street, Benin City built by the Respondent?s father has little or no part whatsoever to play in the present tussle. There is indeed no relief that sought the pronouncement of the lower Court regarding two Igiogbes as rightly pointed out by Counsel for the Appellants.
To begin with, it is well settled here that the subject matter is No. 25, Ugbague Street, Benin City, is an Igiogbe which all parties have agreed that the Respondent?s father inherited from his own father. Paragraph 3.0 at page 8 of the Appellants briefs states as follows:
?There was uncontroverted evidence that the claimant?s father lived, died and was buried at No.1, Osaigbovo Street, Benin City. The evidence on record revealed that No. 1, Osaigbovo Street, Benin City where claimant?s father lived, died and buried is no doubt the Igiogbe to be inherited by the claimant.?
If the Appellants themselves in their brief of argument have styled No.1, Osaigbovo Street, Benin City an Igiogbe, and all parties are in tandem with the fact that the subject matter is
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also the Respondent?s father?s Igiogbe, then the learned Jurist of the lower Court was indeed at liberty to state that both the subject matter and the latter No.1. Osaigbovo Street, Benin City can be named Igiogbe hence the Court?s reference to two Igiogbes in its pronouncement.
If according to an English author, ?A Rose by any other name smells as sweet?, then the learned trial Judge is at liberty to call the 2nd property of Chief Solomon Osawaru Ezekiel which the Appellants themselves made reference to an Igiogbe and also free to name it a second Igiogbe to be also rightly inherited by the Respondent as part of his late father?s property being the eldest surviving son according to the law and Custom of the Bini people. It can also not be overemphasized that an Igiogbe of a Bini man is where the Bini man lived, died and was buried.
?Without much ado, I hold the view that the subject matter is the Igiogbe which devolved on the Respondent?s father as the eldest son and which was also subsequently inherited by the Respondent as his own father?s eldest surviving son. No. 1, Osaigbovo, Benin in my view is merely part of the estate of
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the Respondent?s father which the lower Court termed as second Igiogbe but which stands to be inherited along with the subject matter as part of the Respondent?s father?s estate. I do not believe that the Bini Customary Law made any room for siblings in the subject matter of inheritance of a deceased property barring of course any gifts inter vivos. See MARK UGBO & ORS. V. SUNDAY ASEMOTA and OGIAMEN V. OGIAMEN as referred to at page 26 of the book IGIOGBE and MISCELLANY by SOLO I. EGBOBAMIEN Esq.
This issue is therefore resolved in favour of the Respondent against the Appellant.
ISSUE THREE:
Whether the learned trial Judge was not in error when he set aside and declared null and void portions of the will of Pa. Osegbowa Ezekiel dated 9th October 1972 in the absence of the Probate Registrar, Probate Registry of the High Court of Justice, Benin City.
Learned Counsel for the Appellant argued that the Order of the trial Court which the Respondent sought to be set aside and declare null and void was not validly made since a necessary party as the Probate Registrar of the High Court was not joined in the suit.
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That other witnesses testified at the trial but the Probate Registrar was never called or mentioned. He submitted that the Probate Registrar is the party to be affected by the outcome of the Judgment where certain portions of the Will ought to be voided or nullified. He then cited the case of UZOR V. NIGERIAN STORES (1973) 9-10 SC. 35 and OKAFOR V. NNAIFE (1973) 3-4 SC. 85.
Learned Counsel concluded that the granting of the reliefs sought by the Respondent to set aside portions of the Will was wrong and judiciously perverse.
The Respondent in his reply argued that there was ample evidence on record that Exhibit ?C? the said Will was only produced after the death of the Respondent?s father who had throughout his lifetime exercised ownership rights over the said subject matter. That evidence also abound that both parties never disputed over ownership of the said subject matter during the lifetime of the Respondent?s father while the latter collected rents there from without any challenge from the Appellant?s until his death. Learned counsel reiterated the facts hereunder which the Appellants did not appeal against.
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The facts are as follows:
1. That the house in dispute was built by the father of the Defendants(now Respondents).
2. The Defendants? father died and was buried in the said house in accordance with Benin Native Law and Custom by his children, the Claimant?s father being the most senior male surviving son.
3. The Claimant?s father died and was buried by the Claimant in accordance with Benin Native Law and Custom.
Counsel further submitted that where there is a valid finding upon which a Judgment is predicated and there is no appeal emanating from the said Judgment, such findings remain intact and unassailable. That a perusal of Exhibit ?C?. (the Will) would succinctly divest the eldest son and Respondent?s father, Chief Osawaru Ezekiel of his customary right to inherit the Igiogbe exclusively contrary to the age old Law and Custom of the Benin people. Learned counsel then set out portions of Exhibit ?C? which were given to various members of the family to the exclusion of the Respondent?s father, Chief Osawaru Ezekiel. Learned counsel cited Section 3 of the Wills Law Cap 172 Laws of the Defunct Bendel State now applicable in Edo State. ?
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He further submitted that it is now a salutary principle of law in line with a chain of Judicial dicta that any clause or clauses in a Will of a Benin man (such as in the extant case) which dispossesses the eldest son of the principal house where his late father lived and died is null and void and of no effect.
He then cited the cases of AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (Pt.454) 300 at 312 PARA C-D; IMADE V. OTABOR (1998) 4 NWLR (Pt. 544) 20 at 33-34; IDEHEN V. IDEHEN (1991) 6 NWLR (Pt.198) 352 at 421 PARAS A-F.
On the point of whether the non ? joinder of the Probate Registrar was fatal to the case, learned Respondent?s counsel submitted that the Probate Registrar was not a necessary party to the action at the lower Court since the Registrar is not in any way adversely affected by the outcome of the suit. That the Probate Registrar merely has custody of the Wills deposited in the Probate Registry and has no stake or interest in the subject matter. Learned counsel highlighted the test for the joinder of a party as established by the Courts by citing the following cases:
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A.D.C. V. BELLO (2017) 1 NWLR (Pt. 1545) 112 at 130 ? 131; ADEFARASIN V. DAYEKH (2007) 11 NWLR (Pt. 1044) 89 @ 118.
He then urged the Court to resolve this issue in favour of the Respondent against the Appellants.
RESOLUTION:
The learned trial Judge had set aside and declared null and void certain portions of the Will of Pa. Osegbowa Ezekiel dated the 9th day of October 1972 in the absence of the Probate Registrar of the High Court of Benin City. The learned trial Judge also held that Exhibit ?C? (the Will) contravened Section 3(1) of the Wills Law Cap. 172 of the Laws of the Defunct Bendel State now applicable in Edo State, which states inter alia:
?3(1) subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of by his Will —–.?
The learned trial Judge upon reviewing the evidence held as follows:
?The unmistakable conclusion one can draw is that the property in dispute is the Igiogbe of the Claimant?s grandfather. This is the crux of the Claimant?s case. Can he get the blessing of this Honourable Court? The
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Defendants on their own part, placed utmost reliance on Exhibit ?C?, the Last Will of Pa. Osegbowa Ezekiel (Defendants? father) of 9th October, 1972. This Exhibit ?C? purportedly bequeathed the rooms in the house in dispute to his children. Since the house in dispute, as agreed by the parties, was where Pa. Osegbowa Ezekkiel lived and was buried in accordance with Benin Native Law and Custom, then, Exhibit ?C? would be in violation of the Provisions of Section 3(1) of the Wills Law of Bendel State, 1976 (applicable to Edo State) which provides as follows:
?3 (i) subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his Will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator.?
?There is no gainsaying the fact that it is now a trite point of
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law that any portion of the Will of a Benin man which divests the eldest son of the principal house where his late father lived and died is rendered null and void. In the instant case the Respondent?s grandfather Pa. Osegbowa Ezekiel supposedly made a Will which according to the Appellants divested his eldest son of his principal house (IGIOGBE) by sharing out rooms to various members of his immediate family. In the case of AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (Pt. 454) 300. @ 312. paras C-D the Apex Court held as follows:
?The evidence of Customary Law is that the eldest son of the testator is entitled to inherit without question the house or houses known as Igiogbe in which the testator lived and died. It is common ground that the Igiogbe is the house or houses where a Bini testator lived and died. (See for example Oke V. Oke (Supra), Idehen V. Idehen (Supra) and Lawal ? Osula V. Lawal ? Osula (Supra).
Now, applying the decisions in the cases above to the facts in the instant case, the Testator could not have validly disposed of his Igiogbe by Will except to his eldest surviving male child, which is the 1st Defendant herein. Any device of the Igiogbe to any other person will on the authorities be void.?
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I shall also refer to a more recent case of the Supreme Court which affirmed the Judgment of this Court in the case of UWAIFO V. UWAIFO (2013) 10 NWLR (Pt. 1361) 185 @ 206 paras E-H in the following terms:
?The entire claim revolves around Section 3(1) of the Wills Law of Bendel State of Nigeria, 1976 which is still applicable in Edo State by the use of the phrase ?subject to customary law relating thereto.? In the section, is a confirmation of the statutory backing and recognition which is given to the prevailing custom to operate within its area of application. For all intents and purposes and on a composite reading of the Wills Law in conjunction with the Benin Customary Law, the contested Will is only void to the extent of the deceased father disinheriting the Appellant to the ?Igiogbe?, it is his right and therefore must be allowed to inherit and enjoy same. The deceased father in bequeathing the ?Igiogbe? along with his other properties for purposes of disinheriting the Appellant is a violation of Benin Customary Law. The Will as rightly
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held by the trial Court and affirmed by the lower Court is invalid to the extent of its affecting the ?Igiogbe? only
As a follow up from the above pronouncement of the Supreme Court, I can safely state that an ?Igiogbe? is sacrosanct and cannot in law be willed out to any other person except by inheritance by the eldest surviving male child of the testator. In the case of IMADE V. OTABOR (1998) 4 NWLR (Pt.544) 20 @ 33- 34 the Supreme Court thus held:
?An ?IGIOGBE? would appear not to be just any landed property that could be treated as such but one that carries with it special notions of customary law such as that it is inherited by the eldest surviving male child of the deceased.
?..As was shown by Idehen V. Idehen (1991) 6 NWLR (Pt. 198) 382 ?.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 life-time of the owner to someone who may not be the eldest surviving male at his death.<br< p=””
</br<
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?.The purported gift of an ?Igiogbe? by him to the Plaintiff in 1957, will be void. Succession to an Igiogbe is not by gift but by inheritance. I would need a strong evidence of Benin Custom to hold to the contrary.?
It is therefore quite clear from the above that a Benin man by law is precluded from willing out his ?Igiogbe? to any person of his choice other than his eldest surviving son. The Court below was therefore in order when it struck out portions of the Will that apportioned the ?Igiogbe? to anyone other than his eldest surviving son. In the instant case, the Igiogbe of the patriarch Pa. Osegbowa Ezekiel devolved on no other than on his eldest surviving son at the time, Chief Solomon Osawaru Ezekiel. A testator cannot validly dispose of his ?Igiogbe? by Will except to his eldest surviving son. Any device of the ?IGIOGBE? to any other person will be rendered null and void.
?In sum, Exhibit ?C? therefore cannot stand and is also declared null and void as held by the trial Court. On the issue of the non-joinder of the Probate
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Registrar as a party, the Appellants have held that the non-joinder of the Probate Registrar is fatal to the case. The Respondents on their part asserted that the Registrar is one that is not only not interested in the subject matter but also who in his absence the proceedings can be fairly dealt with. In the instant case can one really concluded that the Probate Registrar?s absence is fatal to the case? The answer in my view is in the negative. It is worthy of note and also settled law that no cause of action shall be defeated by reason of mis-joinder or non-joinder of the parties. In the case of RIVERS STATE V. A.G. AKWA IBOM STATE (2011) 29 WRN 1 @ 30 the Supreme Court held as follows:
?The Courts have held it for quite long that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of the parties and the Court may in every case or matter, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.?
See also the case of FBN PLC V. OZOKWERE (2014) 3 NWLR (Pt. 1395) 439 @ 460.
?Again Order 3 Rule 16 of the Edo State High Court (Civil Procedure) Rules, 2012 clearly states thus: ?
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?No proceedings shall be defeated by reason of mis-joinder or non ? joiner of parties.”
This issue is also resolved against the Appellants.
It is however noted that the Respondent had filed a notice of preliminary objection urging this Court to strike out issue 3 of the Appellant?s brief as same did not emanate from ground 5 of the notice of appeal. That the said ground was neither raised nor canvassed by the parties at the lower Court.
I have carefully perused both ground 5 of the notice of appeal and issue 3 of the Appellant?s brief. Even though the Appellants counsel simply ignored the preliminary objection, he canvassed extensive arguments on the fact that the lower Court struck out portions of the Will. A cursory look at both ground 5 and the Appellants issue No. 3 shows that they both dwell extensively on the Will and the issue of the lower Court striking out portions of the Will in the absence of the Probate Registrar. It is my ardent view that the Respondent?s preliminary objection is misconceived and I do hereby strike it out accordingly.
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From the totality of all of the above, I hold the view that this appeal has no scintilla of merit, it fails and is hereby dismissed. Accordingly, the Judgment of the lower Court of Edo State delivered on the 30th day of May 2016 is hereby affirmed.
N100,000.00 cost is hereby awarded in favour of the Respondent against the Appellants.
Appeal dismissed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother PHILOMENA MBUA EKPE JCA. I agree with the reasoning and conclusion that the appeal has no merit and should be dismissed. The issue of who inherits the ancestral home called “Igiogbe” is settled under Bini tradition and has been so recognized by all the cadres of Courts in the land. The Respondent as Claimant at trial was entitled to challenge the bequest in the Will of the Patriarch testator Pa. Osegbowa Ezekiel in respect of the property that should automatically pass on to the eldest male son and the learned trial judge was right in granting the reliefs claimed.
The judgment of the learned trial judge is affirmed. I abide by the order as to costs. Appeal Dismissed.
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CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.
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Appearances:
Enoma Osaikhuiwu, Esq.For Appellant(s)
P.O. Osemwenkha, Esq., with him, A.E Adedeji Esq.For Respondent(s)
Appearances
Enoma Osaikhuiwu, Esq.For Appellant
AND
P.O. Osemwenkha, Esq., with him, A.E Adedeji Esq.For Respondent
