Babatunde O. Olowu V. Olabowale A. Olowu (1994)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
This is another unfortunate case in which brothers of full blood are fighting over the estate of their deceased father. The respondent sued the appellant in the High Court, Benin claiming as follows:-
“(a) a declaration that plaintiff is the absolute owner in possession of all that storey building and premises known as No.4, Wire Lane, Benin City and that he is entitled to be granted a statutory right of occupancy in respect of the said property.
(b) a declaration that the occupation and use by the defendant of the ground floor of the said storey building at No.4, Wire Lane. Benin City, without the consent of the plaintiff constitutes an act of trespass.
(c) possession of the ground floor of the said storey building at No.4, Wire Lane, Benin City now in the illegal occupation of the defendant.
(d) an order of perpetual injunction restraining the defendant, his servants and/or agents from committing further acts of trespass upon the said property.”
The facts of the case are relatively simple. The father of the parties Adeyinka Ayinde Olowu died intestate on November 17, 1960 leaving 11 children. He was a Yoruba man by birth but had naturalised as a Benin man before his death. The respondent was the eldest surviving son while the appellant was his immediate younger brother. The deceased left behind a large estate in respect of which the appellant and the respondent were granted letters of Administration in 1962. In February, 1973, the properties of the deceased were distributed among the children. No.4, Wire Lane, Benin City was the house where the deceased lived and died. The distribution of the estate of the deceased led to an action brought by some of the children against the appellant and the respondent as defendants in suit No. B/77/73. The case was fought up to the Supreme Court and the distribution of the estate as per “Exhibit A2” was endorsed by the Supreme Court. The Supreme Court case is reported as Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372. Unfortunately, the distribution list endorsed by the Supreme Court did not specifically mention No.4, Wire Lane, the bone of contention in the present case.
The appellant and the respondent lived in different floors of the house at No. 4, Wire Lane, Benin City which the respondent was claiming exclusively as the first son of the deceased under Bini Customary Law. He gave evidence that as the first son of the deceased, he was entitled to exclusive ownership of the house where the deceased lived and died. He also said that No.4, Wire Lane was the same as Premier Cinema and its premises given to him in the distribution list “Exhibit A2”. The appellant’s case was that as the respondent did not bury the deceased father in accordance with Bini Custom, he was not entitled to inherit No.4, Wire Lane exclusively.
The trial Judge reviewed the evidence given by the parties and awarded the disputed property to the respondent and ordered the appellant to vacate the house.
The appellant was unhappy with this decision and appealed to this court on 7 grounds of appeal which I do not consider necessary to set out in this judgment. In accordance with the rules of court, the appellant filed his brief of argument in which 3 issues for determination were formulated as follows:-
“1. Whether the incidents and principles of Bini Native Law and Custom (under which, directly or indirectly, the Plaintiff/Respondent is laying his exclusive and absolute personal claim to No. 4 Wire Lane, Benin City) apply to this suit in view of the incontestable fact that both the plaintiff/respondent and the defendant/appellant, on their own application, had been granted Letters of Administration by the High Court to co-administer their father’s estate and the said Letters of Administration (Exh. C) have at all times material to the present proceedings remained subsisting, extant and unrevoked.
- Even if Bini Native Law and Custom were to apply to the present proceedings (which is denied) whether the conditions precedent for the application of the said Bini Customary Law for the benefit of the plaintiff/respondent have been shown to exist or have been fulfilled by the Plaintiff/Respondent.
- Whether the law and/or Equity will allow the plaintiff/respondent to put forward Exh. A2 (the distribution document the authorship of which the defendant/appellant was as a Co-Administrator wrongfully excluded) for any advantage of the plaintiff/respondent or to allow the plaintiff/respondent to resile from his previous stand or conduct and to circumvent the doctrine of Estoppel in order to secure more benefit, be it under Bini Customary Law or otherwise.”
The respondent also filed the respondent’s brief in which issues for determination as set out below were formulated:-
“1. The children of Adeyinka Ayinde Olowu having fought and lost the battle to set aside the distribution of their father’s Estate by the respondent according to Bini Customary Law, can the appellant who is one of such children be heard to complain that the respondent is not entitled to inherit absolutely No.4, Wire Lane, Benin City, in which his father lived and died as a Bini man, the property being one of those the respondent shared to himself.
- Was the cause of action in this suit one that ought to have been canvassed in Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372 as to constitute res judicata and/or issues estoppel to this action?
- Had the learned trial Judge any jurisdiction to re-open in this case issues raised in Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372 but which were decided against the plaintiffs in that case and the appellant herein.”
The appellant also filed a reply to respondent’s brief.
On the first issue, the learned counsel for the appellant submitted that the respondent having obtained Letters of Administration together with the appellant could not claim exclusive ownership of No.4, Wire Lane, Benin City under Bini Customary Law. Having taken that option, he should not be allowed by virtue of section 151 of Evidence Act, 1990 to change his position to the detriment of the appellant. The case of Kodich v. Affram 1 WACA 12 was relied upon.
In reply to this issue, the respondent’s counsel submitted in the respondent’s brief that the appellant cannot now be heard to complain against the distribution of the estate which gave the disputed property to the respondent in Exhibit A2 as confirmed by the Supreme Court in Olowu v. Olowu (supra). The argument of counsel is that, in the case of Olowu v. Olowu the Supreme Court accepted that the estate was properly distributed according to Bini Customary Law and the matter can no longer be re-opened. He said, under Bini Native Law and Custom, only the respondent is entitled to inherit No.4, Wire Lane. He cited in support the following cases: Idehen v. Idehen (1991) 6 NWLR (Pt.198) 382; Agidigbi v. Agidigbi (1992) 2 NWLR (Pt.221) 98; Arase v. Arase (1981) 5 S.C.33 at pp.62-63.
Having carefully considered the arguments advanced on both sides, I am unable to accept the argument of the learned counsel for the appellant that the fact that the parties jointly obtained the Letters of Administration to administer their father’s estate prevented the respondent from claiming a share in the estate under Bini Customary Law. Letters of Administration confer authority to deal with the estate property on behalf of the beneficiaries. Such property can be administered under English Law or Customary Law depending on the circumstances of the estate. The fact that the Supreme Court endorsed the distribution of the estate according to the Bini Native Law and Custom in Olowu v. Olowu (supra) establishes conclusively that mere grant of Letters of Administration does not exclude the operation of Native Law and Custom to the estate in question. In my respectful view, section 151 of the Evidence Act, 1990 reads thus:-
“When one person has, by his declaration act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
With the greatest respect, this section does apply to the facts of this case.
Mere grant of letters of administration does not stop the distribution of the estate in accordance with customary law. See the case of Kofi Anane v. Kwasi Brafo 14 WACA 8.
On the second issue, it was submitted by the appellant’s counsel that the conditions precedent for a valid application of Bini Native Law and Custom to the subject matter of this suit for the benefit of the respondent have not been shown to exist or to have been fulfilled by the respondent. I agree with the submission of the learned counsel to the respondent that it is too late in the day for the appellant to raise such an issue which was specifically decided in Olowu v. Olowu (supra). For example, in that judgment on page 379 Obaseki, J.S.C., stated thus on this issue:-
“In the instant appeal, there is no iota of evidence before the court to establish the Benin Native Law and Custom contravened…
It was not enough to plead that the distribution contravened Benin Native Law and Custom. If the provisions of Benin Native Law and Custom had been pleaded and the court had found that the distribution set out in Exhibit ‘F’ offended the provisions, the court would have … set aside the offending distribution…”
I must emphasise that this matter had been fought before right up to the Supreme Court and should under normal circumstances not be re-opened but for the fact that the distribution in Exhibit’ A2 endorsed by the Supreme Court did not specifically mention No.4, Wire Lane.
The argument of the learned counsel for the appellant on issues 3 is essentially the same as the argument advanced in respect to issue 1 and my answer to it remains the same. The principles of distribution of estate according to Bini Native Law and Custom have become well settled as a result of a number of decisions such as Idehen v. Idehen (supra); Agidigbi v. Agidigbi (supra) and Arase v. Arase (supra). From these cases, it is without doubt that under Bini Native Law and Custom, the first son of a deceased Benin man is the one entitled to inherit the last house where the father lived in before he died. The trial court found as a fact that No. 4, Wire Lane, Benin City was not part of the estate distributed earlier but as it was the house in which the deceased father of the parties lived and died, the respondent as the first son was entitled to exclusive ownership of it. Even the only witness called by the appellant DW1, Osarogiagbon Uwadiae Egharevba under cross-examination stated as follows:-
“Where the deceased has only one house the first or eldest son inherit the house to the exclusion of all other children. If the deceased has more than one house the first son, as of right, inherits the house where the deceased lived and died. Whether or not the first son should in addition be given another house is the discretion of the Okaigbe.”
This confirms the order of the trial Judge awarding the disputed property exclusively to the respondent. In the result, I see no merit whatsoever in this appeal and it is hereby dismissed with N700.00 costs against the appellant in favour of the respondent.
Other Citations: (1994)LCN/0189(CA)
