Edward Omorodion Uwaifo Vs Stanley Uyinmwen Uwaifo (2013)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, JSC
This case arose from what the Appellant as Plaintiff considered unfair treatment meted out to him by his late father (Pa Daniel Ediagbonya Uwaifo) in his will by which he shared his estate to his children but disinherited the Appellant thereby denying him his right to inherit his fathers ‘IGIOGBE’ as his first son. Late Daniel Ediagbonya Uwaifo lived and died on 29/8/85 in his house at No. 4 Ohuoba Street, Benin City as a Bini man subject to Bini Customary laws. In his lifetime he built another house in the same compound at No. 4 Ohuoba Street, Benin City and gave this No. 2 out to tenants and personally collected rents. However in June 1975 these two houses were shared to other children which excluded the Appellant.
After the completion of his fathers final burial ceremony, Appellant was informed for the first time that his father made a will which was later read at the Probate Registry of the Benin City High Court. It now dawned on the Appellant that he had been completely disinherited by his late father.
It is against this background that the Appellant went to the High Court and filed this action challenging the validity of the will having regard to the provision of Section 3 (1) of the Wills Law of Bendel State of Nigeria 1976 which is still applicable in Edo State.
Pleadings were ordered and exchanged and subsequently amended. By paragraph 17 of the Amended Statement of Claim,the Appellant as Plaintiff Claimed against the Respondents as Defendants jointly and severally as follows:
‘a. A declaration that the Will of the Plaintiffs late father PaDaniel Ediagbonya Uwaifo dated the 26th of June 1975 is invalid, null and void and of no legal effect whatsoever by reason of non-compliance with the Bini Customary Law of succession and section 3(1) of the Wills Law, cap. 172.
b. A declaration that any purported bequest under the said Will of the property at Nos. 2 and 4 Ohuoba Street, Benin City where the Plaintiffs father lived, diedwas burled (otherwise known as his ‘Igiogbe’) to the defendants is contrary to Bini Native Law and Custom and is therefore null and void.
c. A declaration that under Bini Customary Law, the Igiogbe can never be shared toany person other than deceased eldest surviving son (in this instance, the plaintiff) and consequently the purported devise of the compound at No. 2 &4 Ohuoba Street, Benin City by the deceased in his said Will to the 1st, 2nd,3rd, 4th, 5th and 6th Defendants is null and void and of no effect whatsoever.
d. N37,385.00(thirty seven thousand, three hundred and eighty five Naira only) being therents the Defendants have collected from the twenty-three rooms/stores and onebig shop in the ‘Igiogbe’ at Nos. 2 and 4 Ohuoba Street, Benin City for 58 months that is September 1986 to May 1991 at the rate of N655.00 per month.
e. Mense profits of N655.00 (six hundred and fifty five Naira) per month from the said rooms/stores and shop from June 1991 until the date of Judgment.
f. An order of perpetual injunction to restrain the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants, their children, servants, agents and or privies from their continued occupation of the compound at Nos. 2 and 4 Ohuoba Street, Benin City or any pari thereof or any further acts of trespass therein.’
The case went on to full trial from 22/5/95 to October 2000. On 9/11/2000, the then learned trial Chief Judge of Edo State High Court, Hon. Justice C.A.R. Momoh in a well considered Judgment granted some of the Plaintiffs reliefs in paragraph 17 (a) (b) and (c) of the Amended Statement of Claim with relevant modifications on the following terms:
‘(i) 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).
(ii) Thatthe devises in the Will of the deceased dated 26th June 1975 as it relates tothe house at No. 4 Ohuoba Street, Benin City declared in this Judgment as theIgiogbe, is null and void having contravened the Bini Customary Law ofinheritance and Section 3(1) of the Wills Law Cap. 172 Laws of Bendel StateApplicable in Edo State.
(iii) That under Bini Customary Law, the Igiogbe cannot be shared to any person other than the deceased eldest surviving son (in this instance, 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.S. Uwaifo, Ayenbueze E. Uwaifo. Egbenodenden E. Uwaifo and Nobunse S. Uwaifo are null and void and of no effect whatsoever.’
The Appellant appealed to the Court of Appeal Benin, against the parts of the Judgment of the trial High Court that did not favour him.The sole issue that arose for determination in the Court below from the totality of all the issues considered by the learned trial Chief Judge and arising from the issue joined and canvassed was that:
‘Whether the Houses No. 2 and No. 4 Ohuoba Street,Benin City does not form part of the Idiogbe’ of Appellants late father Pa Daniel Ediagbonya Uwaifo who lived as a Bini Man.’
In its reserved Judgment delivered on 21/1/2004, the Court below dismissed the Appellants appeal.
Dissatisfied, the Appellant further appealed to this Court. The Appellant first filed in his Notice of Appeal three Grounds. However when his Brief of Argument was settled, Appellant dropped two grounds of appeal. From the sole ground one issue as set out in his brief, for determination reads thus:
‘Whether the Court of Appeal was right in affirming the Judgment of the trial High Court to the effect that vacant land under Benin Customary Law cannot constitute Igiogbe and thereby failed to follow its earlier decision in IGBINOBA VS. IGBINOBA (1995) 1 NWLR (PART 317)375.’
The 1st to 9th Respondents have adopted the sole issue the Appellant formulated for determination of theappeal.
The 10th Respondent only issue formulated for determination is:
‘Whether a vacant portion of land constitutes an Igiogbe under Bini Customary Law’.
It would appear that no legal representation has been made on behalf of the 11 the Respondent, hence no brief was filed on his behalf
.Arguing this issue, Learned Counsel for the Appellant has contended that this issue has never arisen for determination. In other words that this Court has not in his case decided that vacant plot which stands side by side with the house, which constitutes ‘Igiogbe cannot form part of the said Igiogbe’It is urged on this Court to allow the appeal on this lone issue canvassed in this brief. The learned counsel for the Appellant, however, has conceded in respect of Grounds 2 and 3 of the Appellants Grounds of Appeal that since no argument was proffered in support of the said grounds they should be deemed abandoned. On this point learned counsel for the 1st to 9th Respondents has alluded and made the same observations. The said Grounds of Appeal are therefore deemed abandoned and accordingly struck out.
Learned Counsel for the 1st – 9th Respondents having adopted the lone issue as formulated by the Appellant,submitted that this is a non-issue because, like the ground of appeal from which it was distilled, is unrelated to the appeal in hand.
It was observed that the Appellants sole issue in this case is based on the legal principle of stare decisis, which enjoins the lower court to follow the decision of the higher Court, was not followed by the two courts below. Learned Counsel has however submitted that the court below in IGBINOBA V. IGBINOBA (supra) did not decide that vacant land also forms part of Igiogbe under Benin Customary Law. That what that case decided is that neither testamentary disposition nor family arrangement can deprive the eldest surviving son of the Igiogbe. In other words, IGBINOBA V.IGBINOBA (supra) did not decide the question of vacant land vis-à-vis, the ‘Igiogbe’ concept under Bini Law and Custom. That Ogundere JCA stated in the court below categorically that the vacant land adjacent to the principal or main house in that case was not in issue and therefore did not pronounce onit. It beats the imagination of the Learned Counsel, how the Appellant in his brief, came to the conclusion that the court below decided that an adjoining land to Idigbe is inclusive of Igiogbe in Bini Custom. This Court is urged to uphold and affirm the decisions of the two courts below.
On behalf of the 10th Respondent its counsel canvassed arguments similar to those of the counsel to the 1st to 9th Respondents. He submitted that a vacant portion of the land cannot constitute an Igiogbe under the Bini Native Law and Custom. The learned trial Judge therefore had the opportunity of evaluating the evidence led before him and the various authorities cited by the respective counsel and rightly came to that conclusion. It is urged on this Court to dismiss this appeal because the Appellant misapplied the principle of stare decisis in this appeal, bearing in mind the evaluation of the evidence led at the trial High Court.
I have carefully considered and examined some of the authorities cited in reliance and in support of the various submissions made by the respective counsel. The sole issue raised by the Appellant in this appeal is based on the doctrine of stare decisis, which in essence, enjoins the lower court to follow the decisions of the Higher Courts. Appellants main grouse in this appeal is on the ground that the court below failed to follow its decision in IGBINOBA V. IGBINOBA (1995)1NWLR (Pt. 371) 375 at 381. I shall come to the case law later in the course of this Judgment. However, the Appellants claim against the Respondents at the trial High Court Benin City wherein he was the Plaintiff as has been elaborately set out earlier, was for a declaration, among other things, that the will of his 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 the purported bequest under the said will is contrary to Bini Native Law and Custom and it is therefore null and void. It is also worthy to note that the learned trial Judge in a considered Judgment granted some of the important reliefs sought in the following terms.
‘The Plaintiff is entitled to the orders sought in paragraph 17(a), (b) and (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).
(i) That the devices 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 Bin Customary Law of inheritance and Section 3 (1) of the Wills Law Cap. 172 Laws of Bendel Stateapplicable in Edo State.
(ii) That under Bini Customary Law the Igiogbe cannot be shared to any person other than the deceased 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.’
Again the lower court (Court of Appeal Benin) affirmed the entire decision of the lower trial court. I am obliged to set out the conclusion reached in that decision on pp. 238 – 239 of the Records thus:
‘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 dis inherit 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 Uwaifos WILL is invalid. As Belgore JSC 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 JSC, 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.’
As earlier stated the Judgment of the lower court set out above is being faulted on the ground that that court failed to follow its earlier decision in IGBINOBA V. IGBINOBA (supra). Learned Counsel for the 1st – 9th Respondents in their brief has set out two subsidiary issues which will conveniently determine the sole issue raised in the appeal.These subsidiary questions are:
(a) Did the Court of Appeal in IGBINOBA V.IGBINOBA (supra) decide that under Bini Customary Law, vacant land can also constitute Igiogbe?.
(b) Can the Court of Appeal still follow its earlier decision on a point which had been overruled by the Supreme Court under the doctrine of stare decisis ?
Considering the first leg of the sub issue, I must straightaway say that the Court of Appeal did not decide in IGBINOBA V.IGBINOBA (supra) that vacant land also constitutes Igiogbe under Benin Customary Law. The court decided that neither testamentary disposition nor family arrangement can deprive the eldest surviving son of Igiogbe. It would appear (and I agree with the learned counsel for the Respondents) that the Appellant herein at the trial court, in his address at page 150 of the Record had erroneously ascribed to the Court of Appeal in the case of (IGBINOBA V.IGBINOBA) what the trial Judge (Obi J.) said. in other words he sought to substitute what Obi J. said for what the Court of Appeal per Joseph D. OgundereJCA actually said. Since the Appellant has placed great reliance on this case there is need to put the Records straight, and resist the temptation of quoting the learned Justice, who read the leading Judgment in that case, out of context. Appellant quoted copiously in his brief at pages 5-6, what the trial Justice Obi said in Igbinobas case. The findings made by the said trial Judge which Ogundere JCA reproduced at pages 377-378 of the report read as follows:
‘It is acknowledged that as the eldest surviving son of his father the Plaintiff is entitled under Bini Native Law and Custom, to inheritance of the said house or Igiogbe, but the sharing carried out by the family seemed to have circumscribed his ownership of it, but two important qualifications which had the effect of derogating from his absolute ownership of it and this has resulted in the trouble between the parties…………’
The ‘derogations’ Obi J.referred to were the two rooms in the Igiogbe shared to the second son and the adjoining vacant land also shared to the second son. At page 9 of his brief of argument, the Appellant reproduced the final order of the trial Court, in IGBINOBAV. IGBINOBA (supra). However it is observed that when the Appellant wanted to quote OGUNDARE JCAs reaction to Obi Js observations; he stopped short of what the said OGUNDARE actually said. At page 380 F this is what he said:
‘In short the whole appeal is on the relevant Bini Customary Law of succession and the right of first surviving male child there under.’
At page 381 C – D he continued:
‘I have deep thought and consideration to the Record of Proceedings in the court below as well as the briefs of the parties. The two parties talked about one address, the defendant/appellant and his witnesses did not say that there was any empty land of the deceased outside No. 139, Lagos Street. The argument therefore goes to no issue. My task has been simplified by the Supreme Court decision in Idehen V. Idehen which established beyond per adventure that neither testamentary deposition, much less family elders arrangement, can deprive the eldest surviving son of the Igiogbe, the house in which his deceased father lived and died. The Supreme Court cited with approval its earlier decision in Arase V. Arase (1981) 5 SC. 33; Oke V. Oke(1974) 3 SC 1; Olowu V. Olowu (1985) 3 NWLR (pt. 13) 372.’
It is to be noted that from the above passage, it is quite clear that ‘vacant land’ was not an issue considered by the Court of Appeal, Benin in IGBINOBA case (supra). Since it was not an issue before that court, it did not pronounce on the point. I agree with the learned counsel for the Appellant that the subsequent Court of Appeal decisions could not be expected to rely on its past decisions on a point note earlier pronounced upon. What the Court of Appeal did in the case was simply to follow the earlier well established decisions beginning from Arase V. Arase(1981) NSC 101; 5 SC 33; Idehen V. Idehen (1991). The Court of Appeal in IGBINOBA V. IGBINOBA (supra) did not go beyond the established law that no one can derogate from the eldest sons exclusive title to his fathers Igiogbe upon final rites of ‘UKONWEN’.
In Bini Native Law and Custom, an Igiogbe is a custom of a general application and it is judicially noticed as such. See EGHAREVBA V. OKUNGHAE (2001) 11 NWLR (Pt. 724) 318; Lawal-OsulaV Lawal – Osula (1995) 9 NWLR (Pt. 544) 20, AGIDIGBI V. AGIDIGBI(1996) 6 NWLR (Pt. 454) 30 and IMADE V. OTABOR (1998) 4 NWLR (Pt. 544)20.
Notably, the most recent of all cases on the vexed question of Igiogbe is OGBANON V. REGISTERED TRUSTEESCCC. CA (2002) 1 NWLR (Pt. 749) 675; though a decision of the Court of Appeal, it has helped further to throw light on the point. The court held at page 713 thus:
‘Under Benin Native Law and Custom, the eldest son of a deceased person or testator is entitled to inherit without question the house or houses known as ‘Igiogbe’ in which the deceased/testator lived and died…..’
These plethora of authorities havel left no one in doubt that Igiogbe in Benin Customary Law is a principal house where a deceased Benin man lived and died. This is an ancestral home. It is not a vacant land whether or not adjacent.
It was a very grave error for the Appellant to have taken Justice Obis dictum in Igbinobias case and ascribe it as the view of the Court of Appeal, on which the panel which heard the instant appeal at the Court of Appeal would have relied. The doctrine of staredecisis does not operate in this manner. It would be invidious for the Appellant to expect the Court of Appeal to rely and follow what a Judge in the High Court said in preference to what another Judge said yet in the appellate court. The Appellant cannot expect the Court of Appeal in this case to have followed a non existent dictum and/or ratio in another Court of Appeal case (i.e. IGBINOBAs case).
It is my firm view, therefore that the entire will of the Appellants late father. Pa Daniel Ediagbonya Uwaifo, who lived and died and was buried as a Bini man, cannot 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 had rightly observed, and I agree, there is no customary law against devising the Igiogbe by Will to the rightful beneficiary, that is, the first surviving son, but it is against Bini Customary Law to disinherit the eldest son of the Idiogbe as was done in this case or to share it to others. In view of this the learned trial Judge rightly held 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 the Appellant; and the entire Will cannot be voided on the sole ground that the Igiogbe was so devised. As long as the Custom of Bini people prevent a Testator from devising his Igiogbe to any other person other than his eldest son, to that extent the Will of Pa Daniel Ediagbonya is invalid.However, the deceaseds Will is not invalid in its entirety. The other parts oft he Will could be ‘saved’ which is what the learned trial Chief Judge did in this case. See: IDEHEN V. IDEHEN (supra) and LAWAL-OSULA V. LAWALOSULA (supra).
In conclusion, I am of the firm view that this appeal is lacking in merit and I therefore dismiss it. I accordingly affirm the decision of the Court below which upheld the decision of the trial court. I make no order as to costs, in the circumstance of this case.
SC. 135/2004
