Edward Omorodion Uwaifo V. Stanley Uyimwen Uwaifo & Ors. (2004)
LawGlobal-Hub Lead Judgment Report
AMINA ADAMU AUGIE, J.C.A.
The appellant’s claim against the respondent at the High Court, Benin City, wherein he was the plaintiff, was for a declaration, among others, that the Will of his late father is invalid, null and void and of no effect whatsoever because it failed to comply with the Bini customary law of succession and section 3(1) of the Will Law, Cap. 172, and that any purported bequeath under the said Will is contrary to Bini native law and custom and is therefore null and void.
Pleadings were duly exchanged. The appellant testified for himself at the trial and called three other witnesses; the 1st – 9th & 11th defendants/respondents, called two witnesses, while the 10th respondent testified himself. In her judgment, the learned trial Judge, Hon. Justice C.A.R. Momoh, Chief Judge, Edo State, granted some of the reliefs sought in the following terms:-
“The plaintiff is entitled to the orders sought in paragraph 17(a), (b) & (c) of the amended statement of claim with relevant modifications and it is hereby declared as follows:-
That the plaintiff as the eldest son of the deceased is entitled under Bini customary law of inheritance to inherit the house at No.4, Ohuoba Street, where the deceased lived and died (otherwise known as the Igiogbe).
That the devises in the Will of the deceased dated 26th June, 1975 as it relates to the house at No.4, Ohuoba Street, Benin City declared in this judgment as the Igiogbe, is null and void having contravened the Bini Customary Law of inheritance and section 3(1) of the Wills Law, Cap. 172, Laws of Bendel State applicable in Edo State.
That under Bini Customary Law, the Igiogbe cannot be shared to any person other than the deceased’s eldest surviving son (in this case, the plaintiff) and consequently, the purported devise of the house No.4, Ohuoba Street, Benin City by the deceased in his said Will to Henry N. E. Uwaifo, Ayanbueze E. Uwaifo, Egbenodenden E. Uwaifo and Nobunse E. Uwaifo are null and void and of no effect whatsoever.”
Dissatisfied, the appellant filed a notice of appeal to this court on three grounds of appeal, which are being challenged as incompetent by the 1st – 9th & 11th respondents. The said grounds without their particulars are as follows:-
The learned trial Judge erred in law in holding that the last will and testament of Pa Daniel Ediagbonya Uwaifo was valid in respect of No.2, Ohuoba Street, Benin City and was therefore not part of the Igiogbe.
Error in law
Having held that No.4, Ohuoba, Benin City is the Igiogbe, the learned trial Judge erred in law when he failed to declare void the device in the last will and testament of Pa. Daniel Ediagbonya Uwaifo of the vacant land adjacent to it.
The judgment is against the weight of evidence.
The 1st – 9th & 11th respondents contend that these grounds are defective.
In their brief settled by Osaheni Uzamere, Esq., it was submitted for the said respondents that pursuant to Order 3 rule 15 of the Court of Appeal Rules, 1981 as amended, and on the authorities of National Bank of Nigeria Ltd. v. Trans Atlantic Shipping Agency Ltd. (TASA) (1996) 8 NWLR (Pt. 468) 511; Adamuv. A.-G, Borno State (1996) 8 NWLR (Pt. 465) 203 at 211; Aniekwe v. Okereke (1996) 6 NWLR (Pt. 452) 60 at 64 & Agbaka v. Amadi (1998) 11 NWLR (Pt.572) 16 at 20, a preliminary objection can be raised in the respondent’s brief of argument, and the following arguments were proffered on their objection:-
(a) The number of grounds, which must be clearly stated, and under distinct heads are not discernible in the notice of appeal.
(b) Though the appellant dubbed a purported ground of appeal; error in law, what he actually quarrels with is the learned trial Judge’s evaluation of the evidence.
(c) There is no link between the issue the appellant raises and the grounds formulated, as the former must be distilled from the latter; but in one breath, he quarrels with why the Will is pronounced valid, and in another breath, he asserts that it is Igiogbe under the Bini Customary Law.
It was further submitted that the appellant’s brief prepared by D O. G. Izevbuwa, Esq., purports to argue many issues, by heading the section ‘issues for determination’, yet, went on to state that ‘the only issue arising for determination from the totality of all the issues considered by the learned trial Judge and arising from the issue joined and canvassed is…’. That this confusion makes the entire brief a muddle, serious enough for it to be outrightly struck out for incompetence. Furthermore, that the brief of the appellant being irredeemably defective, the appeal should be dismissed, citing the following authorities- Orders 3 rules 2(2), (3) & (4), (7) of the Court of Appeal Rules; Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16; Geosource (Nig.) Ltd. v. Biragbara (1997) 5 NWLR (Pt.506) 607; Anie v. Ugagbe (1995) 6 NWLR (Pt.402) 425; Loke v. IGP (1997) 11 NWLR (Pt. 527) 57; ASR Co. Ltd. v. Biosah & Co. Ltd. (1997) 11 NWLR (Pt. 527) 145; Bi Zee Bee Hotels Ltd. v. Allied Bank (Nigeria) Ltd. (1998) 8 NWLR (Pt.465) 176; APP v. Ogunsola (2002) 5 NWLR (Pt.761) 484; Iro v. Echewendu (1996) 8 NWLR (Pt.468) 629; Shell Petroleum Dev. Co. v. Uzoaru (1994) 9 NWLR (Pt. 366) 51 at 57.
The appellant however argued in his reply brief, that by virtue of Order 3 rule 15(1) a respondent intending to rely on a preliminary objection to the hearing of an appeal is required to give the appellant three clear days notice before the hearing setting forth the grounds of objection and in the absence of such notice, the alleged notice of preliminary objection canvassed in the said respondents’ brief cannot be taken as it is incompetent and should be ignored, citing NEPA v. Joseph Ango (2001) 15 NWLR (Pt.737) 627 & Iro v. Echewendu (supra).
I will be quick to point out here that this submission lacks merit, because it is now well settled that a notice of preliminary objection may validly be raised to question the competence of an appeal in the respondent’s brief of argument. See Agbaka v. Amadi (supra), where the Supreme Court held that it would be stretching the provision(s) of Order 3 rule 15 of the Court of Appeal Rules too far to insist on the filing of notice. And Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554 where the Supreme Court, per Iguh, J.S.C., said that the essence of the rule is to safeguard against embarrassing an appellant and taking him by surprise, and that there was therefore nothing wrong in the procedure the respondent adopted in the appeal by raising their preliminary objection to the appeal in their briefs of argument.
The appellant further submitted that even if it is so, without conceding, the court is enjoined to comply with the directive of the Supreme Court in Obiora v. Osele (1989) 1 NWLR (Pt.97) 279, and Yarima v. Gbaigan (2002) Vol. 2 WRN 158 at 168, and to therefore consider the appeal on its merit. In Obiora v. Osele (supra), the Supreme Court, per Oputa, J.S.C., said:-
“A bad, faulty and/or inelegant brief will surely attract some adverse comments from the courts, but it will be stretching the matter too far to regard such defective brief as no brief. A faulty brief is a brief which is faulty. One cannot close one’s eyes to the fact of its existence.”
But is the appellant’s brief defective? The 1st – 9th & 11th respondents are of the view that it is for the following reasons:-
No issue was distilled from ground 3 – ‘The judgment is against the weight of evidence’ and since issues not grounds are argued, that ground is dead.
The court should strike out the notice of appeal because if there are no competent grounds, there can be no issues; if there are no issues there can be no argument thereon; and therefore no appeal.
Where a ground of appeal, which is competent, is argued together with that which is incompetent, both grounds will be deemed incompetent.
Grounds of appeal which are incompetent and do not accord with the rules of court are liable to be struck out, since this court does not make a habit of departing from its own rules.
Where the grounds of appeal are incompetent, the appeal is incompetent.
The appellant’s refusal and/or neglect to adhere to the rules of brief writing, vitiates his appeal, which should in the result be dismissed.
Now, the omnibus ground in civil cases is generally framed as follows – ‘the judgment is against the weight of evidence’, and where an appellant complains that a judgment is against the weight of evidence, all he means is that when evidence adduced by him is balanced against that adduced by the respondent, the judgment in favour of the respondent is against the weight, which should have been given to the totality of the evidence before the court. See Khawam v. Akinkugbe (2001) 13 NWLR (Pt. 729) 70, Abisi v. Ewealor (1993) 6 NWLR (Pt. 302) 643. Order 3 rule 2(4) of the Court of Appeal Rules expressly saves from invalidity appeals in civil cases on this ground – see Mobil Oil Nigeria Ltd. v. Coker (1975) 3 SC 175. The said rule reads as follows:-
“No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court on its own motion or on application by the respondent.” (Italics mine)
The prime purpose of Order 3 rules 2(2), (3) & (4) of the Court of Appeal Rules, is to give sufficient notice and information, to the other side of the precise nature of the complaint of the appellant and, consequently, of the issues that are likely to arise on the appeal.
The rules are designed to ensure fairness to the other side, and as the Supreme Court warned in Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253, the application of such rules should not be reduced to a matter of mere technicality, whereby the court will look at the form rather than the substance. As Ayoola, J.S.C. further stated at page 265 – ‘Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form’.
In this case, I have carefully examined the grounds of appeal filed by the appellant and the issue for determination formulated thereon and I am satisfied that the said grounds with their particulars give the respondents sufficient notice and information, of the precise nature of the appellant’s complaint. Besides, a brief of argument may be bad and defective, but it is, despite its defect, a brief and an appellate court will consider the arguments thereon in order to fulfill its duty of ensuring fair hearing and doing substantial justice to the parties to an appeal. See Lawal v. Salami (2002) 2 NWLR (Pt. 752) 687; Lawal v. Oke (2001) 7 NWLR (Pt. 711) 88; N.B. Plc. v. Adetoun Oladeji (Nig.) Ltd. (2002) 15 NWLR (Pt. 791) 589; B.C.C. Plc. v. Sky Inspection (Nig.) Ltd. (2002) 17 NWLR (Pt. 795) 86; Dosunmu v. Dada (2002) 13 NWLR (Pt. 783) 1; Y.S.G. Motors Ltd. v. Okonkwo (2002) 16 NWLR (Pt.794) 536. The 1st – 9th & 11th respondents’ objection to the appellant’ brief is overruled.
It was submitted for the appellant that the sole Issue for determination is:-
“Whether the houses No.2 & No.4, Ohuoba Street, Benin City, does not form part of the ‘Igiogbe’ of appellant’s late father, Pa Daniel Ediagbonya Uwaifo who lived, died, and was buried as a Bini man, for the purpose of invalidating all disposition in respect of the ‘Igiogbe’ of the appellant’s late father from the peculiar circumstances of this case and the effect of same in respect of the bequests thereof?.”
No doubt, this issue as formulated leaves much to be desired. It could have been better drafted. ‘The three characteristics of issues are precision, brevity and clarity’ – see Management Enterprises Ltd. v. ABC Merchant Bank (1996) 6 NWLR (Pt. 453) 249 per Pats- Acholonu, J.C.A. (as he then was). Issues for determination are a very serious part of a brief, and its purpose is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See Ogbuanyinya & Ors. v. Okudo & Ors. (No.2) (1990) 4 NWLR (Pt. 146) 551. Be that as it may, it is the view of the 1st – 9th & 11th respondents that the cognizable issue addressed in the appellant’s brief is whether the learned trial Judge properly evaluated the evidence before him, and that subsumed under that issue are the twin issues of:
(a) Whether it is a compound or a house that constitutes the ‘Igiogbe’ under the Benin native law and custom?.
(b) Whether a Bini man has the testamentary capacity to dispose of any other property of his other than his ‘Igiogbe’?.
The 10th respondent is the probate Registrar and it was submitted in the brief settled by Mrs. Geraldine Imadegbelo for the Attorney-General, Edo State, that the 10th respondent is a nominal defendant/respondent as the official custodian of the Will in question, and that the single issue for determination as it relates to the 10th respondent is: Whether the judgment of the trial court was right having regard to the evidence led. On my own part, I agree with counsel for the 1st-9th & 11th respondents that what this case is really about are the twin issues of what constitutes ‘Igiogbe’ in Benin and whether a Bini man has the testamentary capacity to dispose of his ‘Igiogbe’ by a Will, and I will adopt the said issues in dealing with this appeal.
It was submitted for the appellant, citing Agidigbi v. Agidigbi (1996) 6 NWLR (Pt.454) 300 (1996) 38 LRCN 709 at 730, Idehen v. Idehen (1991) 6 NWLR Wt.l98) 382, (1991) 5 LRCN 1590 & Lawal Osula v. Lawal Osula (1995) 9 NWLR (Pt.382) 128, (1995) 32 LRCN 291, that what constitutes the ‘Igiogbe’ of a deceased Bini man is a matter of evidence, and no one case can be guide for all purposes.
It was further submitted that the appellant pleaded enough facts in paragraphs 5, 6, 7, 8, 9 & 10 of the amended statement of claim to show that the ‘Igiogbe’ of the appellant’s late father are houses Nos. 2 & 4, Ohuoba Street, Benin City, including all that adjacent land; that there was an undisputed fact that the appellant’s late father was buried within the compound and not inside any of the houses numbered 2 or 4; and that these facts were supported by the uncontroverted evidence of PW3, a traditional chief in Benin Kingdom, exhibit C, wherein houses Nos. 2 & 4 were described as one existing property on a single parcel of land, and the appellant’s evidence as PW4. The appellant contends that contrary to this, there is no evidence on record to prove the facts pleaded in the 1st – 9th & 11th respondents’ statement of defence, and citing IBWA v. Imano (Nig.) Ltd. & Anor. (1988) 3 NWLR (Pt.85) 633, (1988) 17 WRN 1, pointed out that the courts have consistently reiterated that pleadings do not constitute evidence and that any pleadings not supported by evidence goes to no issue. It was further argued that the learned trial Judge had not shown what evidence she relied on to come to the following conclusion at pages 156 – 157 of the record:-
“From the evidence and authorities, I find as a fact that house No.4, Ohuoba Street which the testator is shown in evidence to have lived and died in his Igiogbe and not the second house used for commercial purpose which is No.2 Ohuoba. The houses rented out for commercial purpose does not in my view qualify as, or have the attributes of Igiogbe. The same goes for vacant plot and an unoccupied building, which cannot be classified as the principal house in which the deceased lived and died. The above propositions are derived from the decision in the case of Agidigbi v. Agidigbi (supra) and also the recent case of Imade v. Otabor (1998) 4 NWLR (Pt. 544) 20.”
The appellant contends that the learned trial Judge’s view is clearly against the decision of this court in Igbinoba v. Isbinoba (1995) 1 NWLR (Pt. 371) 375, where this court held that neither testamentary disposition nor family arrangement can deprive the eldest surviving son of the Igiogbe, including the vacant areas of the compound. Further, that she did not make any finding as to the area of land within the compound bequeathed to some of the respondents.
It was also submitted, citing UBN v. Akinrinade (2000) 2 NWLR (Pt.645) 466 at 475, that the trial court having failed to make a specific finding on the aspect of the vacant land, and having now lost the opportunity, this court can and was urged to make a specific finding on the bequests under exhibits A & A1 in respect of the vacant plots.
It was further submitted that the Supreme Court sees nothing wrong with the custom, citing Ogiamien v. Ogimnien (1967) NMLR 245, I and what is more, that the position of the Bini customary rule of inheritance and the Will Law, Cap. 172 of the defunct Bendel State applicable in Edo State has long been recognized by God when He said as follows in the Holy Bible:-
“If a man have two wives, one beloved and another hated, and they have children, both the beloved and the hated and if the first born son be hers that was hated, then it shall be, when he maketh his sons to inherit that which he hath, that he may not make the son of the beloved first born before the son of the hated, which is indeed the first born. But he shall acknowledge the son of the loved for the first born by giving him a double portion of all that he hath… Deut: 21:15-17.”
The court was therefore urged to do the following: to distinguish the cases of Agidigbi v.Agidigbi (supra) & Imade v. Otabor (supra), from Idehen v. Idehen (supra) & Oke v. Oke (1974) 1 All NLR 443; (1974) 3 SC 1, (1974) 1 NMLR 351, (1974) 1 All NLR (Pt.1) 443 and to interfere with the findings of facts by the court below on the ground that they are perverse, occasioning a miscarriage of justice and has violated the principles of law concerning the Igiogbe of a deceased Bini man – Tonga v. C.O.P. (2000) 2 NWLR (Pt.645) 485 & Durwode v. The State (2000) 2 NWLR (Pt.645) 392, on the power of the court to interfere with findings of the lower court cited.
On their own part, the 1st – 9th & 11th respondents submitted that what Igiogbe means in Benin Customary Law of succession has been decided in a number of cases including: Arase v. Arase (1981) 5 SC 33 at 62; Imade v. Otabor (supra) & Agidigbi v. Agidigbi (supra). Further, that the learned trial Judge rightly distinguished the cases of Idehen v. Idehen (supra) & Oke v. Oke (supra), on the one hand and the case in hand on the other.
It is also their contention that the submission of the appellant that the evidence of PW3, Chief Ojo Udobor was uncontroverted is spurious, that besides being contradicted by his co-traveler in the appellant’s train, Chief Morgan Ekhaguere, PW2, all authorities on the point now agree that Igiogbe in Benin is the deceased’s principal house, and that the learned trial Judge did a marvelous job of examining thoroughly all the extant authorities on the point from Arase v. Arase (supra), through Oke v. Oke (supra), to Idehen v. Idehen (supra), and Agidigbi v. Agidigbi (supra).
On the issue of whether the deceased father of the appellant had testamentary capacity to dispose of his Igiogbe, it was submitted that it has always been the position of the 4th-9th & 11th respondents that the deceased could not have validly devised No.4 Ohuoba Street, Benin (his Igiogbe) to any other than his eldest son, the appellant; and that within the premise of Section 6 of the Wills Law, the Will of Ediagbonya Uwaifo, is valid having satisfied all the conditions set out therein, only subject to section 3 which says that regard should be had to the custom of the people; and since the custom of the Bini people prevent a testator from devising his Igiogbe to any other than his surviving son, to that extent Ediagbonya Uwaifo’s Will is invalid, but not in its entirety; and that the learned trial Judge rightly agreed with this submission.
In the case of the 10th respondent, Mrs. Geraldine Imadegbelo made the following submissions in the 10th respondent’s brief:-
That an Igiogbe is the principal house in which the deceased lived and died as held in Imade v. Otabor (supra), and the Will was properly challenged by the appellant on the ground that house No.4 where the deceased lived and died was shared to other persons, and the learned trial Judge rightfully declared the Will invalid only to the extent that House No.4 Ohuoba Street where the deceased lived and died was devised to other persons other than the appellant.
That an Igiogbe is the house where the deceased lived and died under Bini native law and custom and not the surrounding plot of land as held in Agidigbi v. Agidigbi (supra).
That the evidence before the lower court was what determined the Igiogbe, and the learned trial Judge rightfully evaluated the evidence of the appellant that house No.4, Ohuoba Street is the particular house the deceased lived and died thereby constituting an Igiogbe under Bini native law and custom.
That the testator in his Will made specific reference in his Will to the house he lived as No.4, Ohuoba Street, wherein he described it as ‘situate and being known generally referred to as No.4, Ohuoba Street, Benin City’. In her conclusion, she urged the court to affirm the judgment of the lower court and dismiss the appeal for the following reasons.
(a) That the Will of the appellant’s father, Pa Daniel Ediagbonya Uwaifo dated 25th of June, 1975 is invalid only to the extent of the devise of house No.4, Ohuoba Street to other persons than the appellant.
(b) That the devise of house No.2, which was rented to, tenants during the testator’s lifetime is valid.
(c) That the vacant compound is not an Igiogbe and its devise under the Will is valid.
(d) That the appellant made no relief or claim against the 10th respondent at the trial court.
Let us now examine the authorities cited, and this in their chronological order- In Oke v. Oke (supra), also (1974) Vol. 9 NSCC 148 (1974) 3 SC 1, the question was whether the testator, an Urhobo man, could devise the house by Will to the defendant- who was the testator’s son by another woman or whether the Itsekiri/Urhobo customary law applied so that the testator’s eldest son should alone inherit the house. The defendant contended that under the Wills Law, the testator had testamentary capacity to devise the house to him. The trial Judge found for the plaintiff, and on appeal, the Supreme Court held that customary law and not English Law or the Wills Law should govern the succession to the testator’s estate and accordingly that the plaintiff was entitled to the house as the testators eldest son under the Itsekiri/Urhobo Customary Law. Elias, C.J.N. further stated:-
“Mr. Ajuyah tried to show that No. 43, Warri’97Sapele Road consists of 3 houses and that the respondent could only get the one house in which the testator lived and died, the remaining two going to the appellants. We think, however, that No. 43, Warri-Sapele Road, was for the purposes of the case in hand, regarded by all parties as only one house consisting of a complex of three units.” (Italics mine)
The case of Arase v. Arase (supra), see also (1981) (1981) 5 SC 33 Vol. 12 NSCC 101, is next in time, wherein one of the issues for determination was the nature of the eldest son’s interest after second burial ceremonies but before the distribution of a deceased’s property. The Supreme Court per Idigbe, J.S.C. held as follows-
“An important aspect of the evidence relating to the Bini customary law of inheritance which was received in these proceedings is to this effect: the eldest son of a deceased person does not inherit the deceased’s property until after the completion of the ‘second’ or secondary burial ceremonies, that is, ‘funeral obsequies’. The completion is marked by a ceremony by members of the family called ‘Ukpomwan’; this ceremony is performed by the members of the deceased’s family for the eldest son at the latter’s request. It is only after this ceremony of Ukpomwan that the family distributes the property of the deceased. Upon ‘distribution’, all property of the father, that is, all the property owned by the deceased, ‘automatically’ becomes that of the eldest son. Some of the personal effects are distributable to the other children but that only takes place after the principal personal effects have been given to the eldest son. The Principal house in which the deceased lived in his lifetime and died is called ‘the Igiogbe’ that always passes by way of inheritance on distribution to the eldest son. However, until the exercise of distribution under customary law has been performed, the eldest son retains all the property of the deceased in trust for himself and the children of the deceased.” (Italics mine)
Then comes the case of Idehen v. Idehen (supra), see also (1991) 6 NWLR (Pt.198) 384, where the Supreme Court relied on its previous decisions in Oke v. Oke (supra) &: Arase v. Arase (supra). In Idehen’s case, the deceased left a Will where he devised to his eldest son, Dr. Humphrey Idehen, his two houses in Benin City, it was common ground that the deceased lived in the two houses, which therefore constituted his ‘Igiogbe’ under Bini Customary Law. Dr. Idehen predeceased his father and consequently, 1st respondent became the deceased eldest son. Subsequently, the respondents, as plaintiffs instituted an action in the High Court against the appellants, who were the executors of their father’s estate, challenging the validity of their father’s Will. The learned trial Judge held that the devise of the deceased’s two houses (i.e., Igiogbe) to his eldest son was done with the full knowledge of the Bini Customary Law.
However, since the deceased’s eldest son to whom the bequests were made in the Will had predeceased the testator, the bequests, according to the learned trial Judge must pass to the eldest surviving son of the deceased at the time of the death of the deceased. On appeal, the Court of Appeal allowed plaintiffs appeal and dismissed the cross-appeal of the defendants. On further appeal, the Supreme Court per Belgore, J.S.C. however held as follows:-
“Thus, the law for the first time in Nigeria takes into consideration the local situation in testamentary capacity. Hitherto, by virtue. of the English Wills Act, 1837, it seemed that every Nigerian could make Will on virtually all property he has got and could avoid providing for his eldest male child or any child. By Benin customary law, the family seat, called ‘Igiogbe’ automatically goes to the eldest child on the death of the father. The ‘Igiogbe’ in the instant appeal are the houses at 62 Akpakpva Street and 1 Oregbeni, Ikpoba Hill; both in Benin City and by Benin Customary Law they must pass automatically to the eldest son of late Joshua Iserhienrhien Idehen at his death. His making a Will giving the ‘Igiogbe’ to Dr. Humphrey Ogbemudia Idemodia Idehen would have been no problem if he predeceased his son, it would have just confirmed the Benin customary law. The unfortunate happened in that the eldest son, Dr. Idehen, predeceased his father, the testator. To my mind, right from the time of Dr. Idehen’s death, the portion of the Will giving him the ‘Igiogbe’ must be read in consonance with Benin customary law.
The customary law does not recognize such a devise as Dr. Idehen was no longer alive and the eldest child at the death of Joshua Iserhienrhien Idehen must automatically inherit the ‘Igiogbe’. It is important to bear in mind that apart from these two houses, which formed the ‘Igiogbe’, the other devises were valid. In Benin customary law, the ‘Igiogbe’ could not under any circumstances, be given away as a gift, it must be left for the eldest male child. At his death, the testator is entitled, under Benin customary law, to devise all his property except ‘Igiogbe’, thus, ‘Igiogbe’ would at his death no longer be his to giveaway.” (Italics mine)
In Agidigbi v. Agidigbi (supra), see also (1996) 6 NWLR (Pt.454) 300, one of the issues for determination was whether the Court of Appeal was right in affirming that part of the judgment of the trial court relating to the application of Benin customary law of intestacy, entitling the 1st defendant as the eldest son to inherit the house in which the testator lived and died. The Supreme Court held that the eldest son of the deceased is entitled to inherit without question. In Agidigbi’s case, the learned trial Judge had held as follows:-
“The fact that the testator lived and died at No. 34C, Dawson Road is not in dispute. I accept the evidence tendered by the 1st defendant that the house which a deceased makes his permanent home before his death, known as Igiogbe, passes to his eldest surviving son under Bini native law and custom upon the eldest son completing the customary burial rites of his deceased father. There is a long line of decided cases in support of this custom and I take judicial notice of it. It is indisputable that Agidigbi Uwagboe’s Igiogbe is No.34C, Dawson Road, Benin City. It is common ground that there are three buildings at No. 34C, Dawson Road, Benin City, namely. No. 34A, 34B & 34C. The visit by the Court to the said No. 34C Dawson Road, confirmed this. It is also common ground that No. 34C, was the permanent place of residence of the testator before his death and that No. 34A was rented out to the Ministry of Education. No. 34C was unoccupied by anybody.” (Italics mine)
Confirming the view of the learned trial Judge above, the Court of Appeal said:-
“I think all the parties in this case agree that No. 34C, Dawson Road is the principal house of the testator where he lived and died and where he was buried. There are two other houses in the compound No. 34A & 34B Dawson Road. No. 34A was let to the Ministry of Education and No. 34B was unoccupied. The learned trial Judge visited the premises in the presence of the parties. They all saw that the houses are separate and distinct.” (Italics mine)
In agreeing with the above decisions of the lower court and Court of Appeal, the Supreme Court held that under Benin native law and custom, the eldest son of a deceased is entitled to inherit without question the house or houses known as ‘Igiogbe’ in which the deceased/testator lived and died, thus, a testator cannot validly dispose of the ‘Igiogbe’ by his Will except to his eldest surviving male child and any devise of the ‘Igiogbe’ to any other person is void.
Coming finally to Imade v. Otabor (supra), one of the issues therein was whether the land in dispute was the respondent’s or his father’s or grandfather’s Igiogbe and whether Igiogbe can be given away by the owner as a gift inter vivos to his first son, while the donor is alive under the Benin customary law. The respondent maintained that the disputed land was his grandfather’s Igiogbe, although, the house built by his grandfather had gone into ruins.
The appellant on his own part traced his ownership of the land in dispute to his grandfather who died in 1962. His father inherited it and he subsequently inherited it from his father in 1969. The trial High Court dismissed the case of the respondent. The Court of Appeal reversed the decision of the trial High Court, and on a further appeal, the Supreme Court in unanimously allowing the appeal held that all existing authorities agree that ‘Igiogbe’ is the principal house where a deceased lived and was buried; it is an ancestral home and not a piece of land. Ogundare, J.S.C. stated as follows at pages 31 & 33-34-
“At the time, the plaintiff claimed he succeeded to the land in dispute, there was no house on it that could be described as ‘ancestral home’, except ruins; it was vacant land.”
“I can find no evidence on record to support the conclusion reached by the court below. 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 a deceased… , 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 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.” (Italics mine)
Two salient principles clearly stand out in the above authorities on ‘Igiogbe’-
The ‘Igiogbe’, i.e., the house in which the deceased lived, died and was buried automatically devolves on the eldest son. The Supreme Court brought this out clearly in the case of Lawal-Osula v. Lawal-Osula (1995) 9 NWLR (Pt.382) 128 where Ogundare, J.S.C. said at page 281-
“This court has held on a number of occasions that the ‘Igiogbe’, that is, the house where a Bini deceased lived and died, devolves on his eldest surviving male under the Benin customary law. I do not want to proffer any views as to whether this custom is repugnant until such occasion when we are invited to reconsider our previous decisions on it.
The evidence before the court determines what property constitutes the ‘Igiogbe’ in anyone case. What informed the decision of the Supreme Court?.”
In Oke v. Oke (supra), was that all the parties in their evidence had agreed that, even though there were three units in the complex, the deceased regarded all the units as one ‘Igiogbe’, and so, it was bound by the evidence led before it. Again in Agidigbi v. Agidigbe (supra), the Supreme Court per Kutigi, J.S.C., specifically emphasized this principle, as follows:-
“For example, in Idehen v. Idehen (supra), two houses at No. 62, Akpakpava Street and No.1, Oregbemi Ikpoba Hill respectively, both in Benin City, were constituted as the Igiogbe on the ground that on the evidence before the court, the deceased lived in these houses in his lifetime. Also, in Oke v. Oke (supra) No. 43 Warri-Sapale Road was regarded by all the parties as only one home, even though it consisted of a complex of three units. The evidence was that the testator lived therein during his lifetime and regarded same as the Igiogbe. In the present case, although three houses were involved, the evidence before the court was that only one of the three houses to wit No. 34C; is the Igiogbe. The court is bound by the evidence led before it. So it is with this case.” (Italics mine)
In this appeal under consideration, the parties are not contesting the fact that the appellant is the eldest surviving son of the deceased and therefore entitled to inherit his father’s Igiogbe. They have however joined issues on what property constitutes the Igiogbe. The following averments were made in paragraphs 5, 6, 8 & 9 of the amended statement of claim in the lower court-
“5. The late Pa Daniel Ediagbonya Uwaifo (hereinafter referred to as the deceased) in his lifetime acquired and built the property and its appurtenances known as Nos. 2 & 4, Ohuoba Street, Benin City.
6. The deceased in his lifetime lived, died, and was buried in the said property. The plaintiff shall rely on the approval to the plaintiff’s application to give the deceased a ‘compound burial’.
7. The plaintiff avers that the said property where the deceased lived, died, and was buried is known as ‘Igiogbe’ under Benin Customary Law.
The plaintiff further avers that the deceased acquired the said property by a singular grant and that all the developments in the property or compound constitutes the ‘Igiogbe’ under Benin customary law. Detailed evidence of this shall be led at the trial. The plaintiff will rely on the site plan attached to the said Will, particularly blocks nos…”
The 1st-9th respondents however averred as follows in paragraphs 3 & 4 of their statement of defence before the lower court:-
3. The 1st-9th defendants deny paragraph 5 of the statement of claim and further aver that the properties at Nos. 2 & 4 Ohuoba Street, Benin City are two separate properties. The late Pa. Daniel Ediagbonya Uwaifo lived, died and was buried in his principal house at No.4, Ohuoba Street, Benin City, which said house is his ‘Igiogbe’ under Bini native law and custom. The property at No.2 Ohuoba Street does not form part of the Igiogbe being a separate property.
4. The 1st-9th defendants state that it is a misconception under Bini customary law of inheritance to equate a whole premises of several houses with an Igiogbe which is the main house in which the deceased lived, died and was buried.
The appellant contends that the facts pleaded in the amended statement of claim were supported by evidence; that contrary to this, there is no evidence on record to prove the facts pleaded in the 1st-9th & 11th respondents’ statement of defence; and that the learned trial Judge did not show what evidence was relied on to come to her conclusion. The respondents however submit that the judgment of the lower court displays a thorough, painstaking and impartial consideration of the issues properly raised, and the learned trial Judge arrived at a correct decision in this case, which complies with principles enumerated in the case of Kodilinye v. Odu (1935) 2 WACA 336, and reaffirmed by the Supreme Court in the more recent case of Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511, that a plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case.
That is very true. In civil cases, the plaintiff must prove his case on the balance of probabilities, sometimes styled preponderance of evidence. The plaintiff can only succeed in obtaining judgment in his favour from the court on the strength of his own case and not on the weakness of the defence, unless he finds in the evidence of the defence, facts which strengthen his own case. See Sodi v. Agyo (2003) 16 NWLR (Pt. 846 ) 305; U.S.A. Plc. v. Samba Pet. Co. (2002) 16 NWLR (Pt. 793) 361 & Ojo v. Azama (2001) 4 NWLR (Pt. 702) 57.
I agree with the respondents. The judgment of the trial court cannot be faulted in any way, having regard to the evidence before it. The learned trial Judge after an appraisal of the evidence before the court vis-a-vis the authorities cited, which included Idehen v. (Idehen (supra), Oke v. Oke (supra), & Agidigbi v. Agidigibi (supra), held as follows:-
“The word evidence as underlined by me in the above three cases is to emphasize the fact that it is the evidence before the court that determines what property constitutes the deceased’s Igiogbe. The Agidigbi v. Agidigibi’s case is similar to the instant case where the issue arises as to whether the Igiogbe is limited to the principal house the deceased lived and died or extends to other houses and vacant plot in the same compound. Evidence established in this case is that the deceased lived and died at No.4 Ohuoba Street. He did not live in the second house known as No.2 Ohuoba Street, which was rented out to tenants. From the evidence and authorities, I find as a fact that house No.4 Ohuoba Street which the testator is shown in evidence to have lived and died is his Igiogbe and not the second house used for commercial purpose which is No.2 Ohuoba. The houses rented out for commercial purpose does not in my view qualify as, or have the attributes of Igiogbe. The same goes for vacant plot and unoccupied building, which cannot be classified as the principal house in which the deceased lived and died.”
The learned trial Judge was perfectly right. The ‘Igiogbe’ in this case is House No.4 Ohuoba Street; and does not include No.2 Ohuoba Street. There was overwhelming evidence to that effect before the trial court. The deceased himself made specific reference to the house he lived as No.4 Ohuoba Street in Clause 6(b) of his Will (exhibit A). Therein he bequeathed to his second son-
“the portion of the house which I now occupy situate and being known and generally referred to as No.4 Ohorba(sic) Street, Benin City.”
Exhibit B, an approval from the Oba of Benin for a ‘compound burial’, reads:-
“Approval is hereby given for the above-named deceased of No.4 Ohuoba Street, Benin City, whose death has been traditionally reported to me by his son, Hon. E. O. Uwaifo, to be buried in his/her dwelling house/compound situate at No.4 Ohuoba Street, Benin City.”
The appellant himself, during cross-examination as PW4, replied as follows:-
“My father lived in one of the 2 houses on the same compound and it was the one in number 4. He had his harem of wives at the same number 4 and he died there and was laid in state. In the same compound, there is an undeveloped vacant land between them.”
He went on to say- ‘There were tenants in the second house known as No.2 during my father’s time. They were his tenants and he was collecting rents from that house’. In other words, he admitted that his father was using No.2 Ohuoba Street for commercial purposes. ‘Igiogbe’ under Benin customary law is described as an ancestral home in Imade v. Otabor (supra). ‘Ancestral’ means inherited or derived from ancestors- see The Chambers Dictionary. It is also described as the ‘family seat’ in Idehen v. Idehen (supra). To my mind, the words ‘ancestral home’ and ‘family seat’ connotes a setting where the head of a family lives in the family house built by his ancestor. By Benin customary law, the ‘Igiogbe’ automatically goes to the eldest son on the death of the father- see Idehen v. Idehen (supra). Clearly, houses rented out for commercial purposes cannot be regarded as the ‘Igiogbe’, to be inherited by the eldest son of a deceased, particularly as in this case, where there are two houses, and the deceased lived, died and was buried in one but rented out the other during his lifetime. I, therefore, agree with the learned trial Judge that the ‘Igiogbe’ in this case is that house known and numbered as No.4 Ohuoba Street, Benin City, where the deceased lived, died and was buried.
The appellant also urged this court to make a specific finding on the aspect of the vacant land, arguing that the learned trial Judge did not make any finding as to the area of the land within the compound. But that is not true, the learned trial Judge in her judgment at page 157 of the record said- ‘the houses rented out for commercial purposes does not in my view qualify as, or have the attributes of Igiogbe. The same goes for vacant plot and unoccupied building, which cannot be classified as the principal house in which the deceased lived and died’. As she rightly observed, these propositions are derived from the decisions in Agidigbi v. Agidigbi (supra), & Imade v. Otabor (supra). She is right, and the only finding I can venture to make is to state in categorical terms that the undeveloped vacant land being claimed by the appellant in this case cannot be described as an ancestral home and is therefore not part of the ‘Igiogbe’.
This brings us to the second issue for determination, and that is whether a Bini man has the testamentary capacity to dispose of any other property of his other than his ‘Igiogbe’. Section 3(1) of the Wills Law, Cap. 173, Laws of Bendel State applicable to Edo State provides that:
“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 so 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.”
In the case of Agidigbi v. Agidigbi (supra), the Supreme Court pointed out that the opening phrase in the above section- ‘Subject to any customary law relating thereto’, is only a qualification of the subject-matter of the property disposed of or intended to be disposed of by Will, and is not a qualification of the testator’s capacity to make a Will. In that case, the Supreme Court also held that the testator could not have validly disposed of the Igiogbe by Will, except to his eldest surviving male child, and that any devise of the Igiogbe to any other person will on the authorities be void. See also Idehen v. Idehen (supra); Agidigbi v. Agidigbi (supra); & Lawal-Osula v. Lawal-Osula (supra), where Belgore, J.S.C. stated as follows at page 276:-
“All that the Wills Law seeks to achieve, which I believe it amply achieved, is to make disposition in Will a possibility for every citizen of former Western Nigeria, of which former Bendel State was a part. Every person can make a Will, but that capacity is subject to entrenched native law and custom. Testator must bear in mind what his position is in his community before he embarks on making devises, bequests, or depositions in a Will. The Bini traditional chief giving his eldest son his ‘Igiogbe’ does only the obvious; but to pass it on to other persons other than the eldest son makes a bequest that is void, the other parts of the Will can then be saved.” (Italics mine)
The entire Will cannot therefore be voided, simply because the Igiogbe was bequeathed to someone else. In this case, the deceased had bequeathed his property, including the Igiogbe to other beneficiaries in his Will (exhibit A).
As the learned trial Judge rightly observed, there is no customary law against devising the Igiogbe by Will to the rightful beneficiary viz: the first surviving son but it is against Bini customary law to disinherit the eldest son of the Igiogbe as was done in this case or to share it to others. Consequently, she held and I agree with her that the appellant was entitled to the declaration she made that the Will is invalid only to the extent that house No.4 Ohuoba Street, declared as the Igiogbe, was devised to persons other than him; and that the entire Will cannot be voided on the sole ground that the Igiogbe was so devised. That is the correct statement of the law on this issue. Since the custom of the Bini people prevent a testator from devising his Igiogbe to any other person other than his eldest son, to that extent, Pa Daniel Ediagbonya Uwaifo’s Will is invalid. As Belgore, J.S.C. pointed out in Idehen v. Idehen (supra), at his death, the Igiogbe was no longer his to give away. However, the Will is not invalid in its entirety- see Lawal-Osula v. Lawal-Osula (supra), where he, Belgore, J.S.C., also held that the other parts of the Will could be saved, which is what the learned trial Judge so ably did in this case. I agree with the respondents that she arrived at a correct decision in this case. I must commend her for the deft manner in which she applied the numerous authorities cited to the case at hand.
In the final analysis, I am of the firm view that there is no merit to this appeal and I therefore dismiss it with N4,000.00 costs against the appellant.
Other Citations: (2004)LCN/1524(CA)
