Emmanuel Osaheni Egharevba V. Mrs. Comfort Oruonghae (2001)

LawGlobal-Hub Lead Judgment Report

IBIYEYE, J.C.A. 

This appeal is sequel to the judgment of Nwulu, J. of the Ogwashi-Uku Judicial Division of the Delta State High Court of Justice delivered on 27th March, 1998 in Suit No. S89/93.

The respondent, as plaintiff, sued the appellant, as defendant, for trespass and damages for such trespass. The issues involved in this case will be better appreciated coupled with case of reference if some averments in the parties’ pleadings are reproduced. I shall before doing so make a pertinent remark on the title of the respondent’s pleadings. It is titled 2nd “AMENDED STATEMENT OF CLAIM”. I critically examined the record of proceedings in the trial Court and I failed to see either the original statement of claim or the 1st statement of claim. The title given to the only statement of claim as reproduced above is a misnomer that should not be allowed to stand. The title of respondent’s pleading shall therefore be statement of claim simpliciter. This inadvertence notwithstanding both the respondent and the appellant exchanged pleadings in strict compliance with the rules of the trial Court. Paragraphs of the statement of claim that are of moment are 1, 2, 5, 6, 7, 8, 11, 12, 14, 15, 16, 17 and 18 while those of the statement of defence are 1, 2, 6, 7, 8, 10, 11, 13, 15, and 20.

The said relevant averments in the statement of claim read:

“1. The plaintiff avers that she is a trader, a Nigerian citizen from Edo State of Nigeria and resides at both No.1, Urhobo Road, Sapele and No. 51 Aruosaghe Street off 2nd West Circular Road, Benin City

2. The plaintiff avers that she is the fifth child of her deceased father Erhabor Gabriel Egharevba who lived at No.3, Idahosa Lane Benin City during his life time.
3. The plaintiff avers that their deceased father, late Erhabar Gabriel Egharevba, made a will and testament validly attested to deposited (sic) with Probate Registry, High Court of the then Mid Western State Benin City.
4. The plaintiff avers that on the death of their deceased father the said will was proved. The plaintiff shall rely on the certified true copy of the said will.
5. The plaintiff avers that she became vested with the title of the said property after the death of their deceased father’s wife, late Eseigbe Erhwumwunse who died childless on the 29th day of September, 1990
6. The plaintiff avers that she became absolutely vested with the building and land situate at No.1, Urhobo Road, Sapele by virtue of Clause 9 of the aforesaid Will which was never challenged either by the defendant or any other person.
7. The plaintiff avers that the Late Eseigbe Erhumwunse lived and died at No. 1, Urhobo Road, Sapele exercising all rights of ownership in accordance with the testator of the said Will and was never challenged throughout her life time.
8. That during the life time of Late Eseigbe Erhumwunse one Augustine Okoedion, who was also a tenant at No. 1, Urhobo Road, Sapele was made a caretaker by her.
9. The plaintiff avers that upon the death of Eseigbe Erhumwunse took possession and ownership of the building, collecting rents from the tenants therein and also occupying a room in the said No. 1, Urhobo Road, Sapele. The plaintiff shall at the trial rely on stumps of her receipts booklet and other document showing that she collected rents from the tenants without any challenge or hindrance.
10. The plaintiff avers that on or about 4th day of July, 1993 the defendant without the consent or authority of the plaintiff forceably (sic) entered the premises known as No. 1, Urhobo Road, Sapele and made attempts to forceably (sic) eject the plaintiff and the tenants from the said premises.
11. The plaintiff avers that the defendant has repeatedly evaded (sic) the said premises with threats to burn the said building.
12. The plaintiff avers that as a result of the persistent acts of trespass by the defendant and his privies namely her younger uterine sister, the plaintiff has suffered damages.

WHEREFORE the Plaintiff claim (sic) as follows

(1) That she is the person vested with the title or that she is entitled to the Statutory Right of Occupancy of the building and premises known as No. 1, Urhobo Road, Sapele.

(2) N100,000.00 (One hundred thousand naira) as general damages for repeated acts of trespass on the said building and premises known as No.1, Urhobo Road, Sapele.”

(Italics Mine for emphasis)

The pertinent averments of the defendant read:

“1. SAVE AND EXCEPT as hereinafter expressly admitted, the defendant denied each and every allegation of fact contained in the STATEMENT OF CLAIM as if each and every such allegation of fact were specifically set out and traversed seriatim.

2. The defendant is the eldest son of Late Mr. Gabriel Erhabor Egharevba who lived and died at No.3 Idahosa Street, Benin City.
3. The defendant avers that in answer to paragraph 9 of the statement of claim, the late Mrs. Eseigbe Egharevba (our father’s senior wife) who was supposed to live at No.1 Urhobo Road, Sapele till she died some time in September; 1990, never in fact lived there. The house was to the knowledge of the plaintiff a subject of litigation between her and the defendant until her death. That since her death all pending litigation in respect of that house were struck out from court. Evidence will be led at the trial and found upon.
4. The defendant avers that his father lived, died and was buried under the BINI NATIVE LAW AND CUSTOM and that the disposition of his property remained at all material times subject to BINI CUSTOMARY LAW Evidence Will be led at the trial to that effect.
5. The defendant will contend at the trial that the validity of the purported Will of his Late Father has been the subject of controversy among the family since the death of their father. It had remained in doubt, whether the deceased had the capacity to make a Will when he allegedly made one by reason of his infirmity at the relevant time.
6. The defendant avers that under the said BINI NATIVE LAW AND CUSTOM possessory title to his deceased father’s estate vests on him as the eldest son until the same is shared according to BINI NATIVE LAW AND CUSTOM. Evidence to that effect will be given at the trial.
7. The defendant avers that the family members of his late father have been meeting and still meeting to conclude the sharing of the estate of their late father.
8. The defendant avers that the family members on or about the 26th day of June, 1993 met and shared the property or estate of his late father. The family Meeting Minutes Book and document signed to that effect will be relied and founded upon at the trial.
9. The defendant avers in further answer to paragraph 11 that the house along No. 1, Urhobo Road, Sapele is one of the properties of his Late Father which he had possessory title over as the eldest son until (sic) shared by the family according to BINI NATIVE LAW AND CUSTOM.

20 The defendant will in the circumstances contend that the plaintiff is not entitled to the relief sought or any relief and the claims be dismissed as being misconceived, vexatious and frivolous.”

(Italics mine for emphasis)

At the hearing, the respondent testified and called two witnesses while the appellant also testified and called the same number of witnesses.

The facts of the case are saliently as follows – the respondent testified that her late father made a Will (Exhibit A) in which he bequeathed his house situate at No. 1, Urhobo Road, Sapele to his eldest wife, Mrs. Eseigbe Erhumwunse Egharevba, who was childless and that at her death, the residuary interest in the same house shall be vested in her. The PW1, A.G. Osayonwenbor, testified, inter alia, that he was a tenant in the respondent’s house, No. 1 Urhobo Road, Sapele and identified that stumps of receipts (Exhibits D to D6) as evidence of rents paid to the respondent. Exhibits B and C are stumps of receipts the respondent issued to other tenants. The PW2, Mr K. Okeaya-Inneh, learned Senior Advocate, testified in essence that on the instruction of late Mr. Egharevba he prepared his Will (Exhibit A) for him. The Will was duly attested and deposited in the Probate Registry, High Court of Justice Benin City. He added that to the best of his knowledge that Late Mr. Egharevba was hale and healthy when he called at his office for the preparation of the Will in point. He also testified that the testator walked into his Chambers as a normal human being and that at the end of the exercise, Mr. Egharevba and two witnesses as well as he himself signed the Will. Mr. Osazemwinde Egharevba, the DW1, who testified on behalf of the appellant said that he was the current head of Egharevba family and that late Mr. Egharevba who was his uncle left behind some properties which had not been shared because of family disagreement over them. He added that his late uncle was brought into Benin City from Sapele paralysed in 1969. In that state of health, Eseigbe Egharevba, one of his uncle’s wives brought a paper to her husband who could not talk and asked him to sign. The DW1 said that his reaction was to ask her to return the paper to the person who gave her. He could not tell what happened to the paper thereafter. He added that, he could not tell if his uncle who lived all his life in Sapele made a Will before he died in 1970. He further testified that under Bini native law and custom that where “one lived all his life is called Igiogbe” and that the eldest son is entitled to inherit the Igiogbe. The DW2, Samuel Igbinoba Egharevba, the younger brother of the appellant and respondent testified that in 1969, his late father was seriously ill in Sapele to the extent that he could not move out of bed, talk or recognise anybody. The family arranged to take his father to Benin. He was withdrawn from school to look after him. While he was with his late father, Mrs. Eseigbe Egharevba and a “Madam” came into the house and asked his father to sign a Will but his family protested. Thereafter, the said Mrs. Eseighe Egharevba came back with “the same man” and asked his father to sign the same Will after he had been driven out of the house. He equally testified as follows:

“The members of the family as well as the executor said that, at that time my father was so sick that he could not have executed the Will. The executors did not share his father’s property before the two of them died.” On being cross-examined, he said that although he did not read the document his father signed in his absence, he knew it was a Will. The appellant testified in the main that although Mrs. Eseigbe Egharevba was his late father’s eldest wife, she was not the owner of No. 1, Urhobo Road, Sapele as the posssessory right in it and other properties of his late father vested in him as the eldest son until they were shared. He was not in Nigeria when his father died in 1970 but on his return to Nigeria he performed the “Isoton” and appointed caretakers to look after the property in Sapele. He further testified that the respondent could not by Will inherit No. 1, Urhobo Road, Sapele because his father was incapacitated by ill health at the time the Will was made. He testified under cross-examination, in one breath that his father lived and died at No.3 Idahosa Road, Benin City and in another breath that his father lived all his life at No. 1, Urhobo Road Sapele and died at No.3 Idahosa Lane Benin City. He could not tell the ailment that caused the death of his father because he did not see the death certificate. He conceded that No.3 Idahosa Lane Benin City is his father’s Igiogbe because he was buried there. The place where he (his father) lived all his life was also an Igiogbe. He denied that the respondent had two rooms at No. 1 Urhobo Road, Sapele.

At the end of the parties’ testimonies, their respective learned counsel addressed the trial Court. The trial Court in a considered judgment found for the respondent on preponderance of evidence by holding the appellant liable in trespass and general damages of N10,000.00. The trial Court also restrained the appellant, his servants or privies from further acts of trespass on No. 1, Urhobo Road, Sapele.

The appellant was dissatisfied with the decision of the trial Court and he appealed to this court on eight grounds of appeal. He thereafter, sought and got leave of this court to file and argue two additional grounds of appeal. There are therefore ten grounds of appeal.

The appellant, in his brief of argument, identified the following four issues for the determination of this appeal.

“1. Whether the purported Will (Exh.A) has been proved as required by law capable of creating an enforceable vested or reversionary interest over the property in dispute in favour of the plaintiff/respondent?.

2. Whether the learned trial Judge having accepted as proved by evidence that the life and death of the deceased were governed by Bini Native Law and Custom, and that the house in dispute is an Igiogbe of the deceased was right when:-

(a) he failed to apply laid down principle of law that only the appellant as the eldest surviving son can inherit the house in dispute?.

(b) he held that the evidence before him is insufficient to apply the laid down principle to an Igiogbe outside Benin Kingdom?.

3. whether the decision of the lower court in granting damages for trespass in favour of the respondent is not against the weight of available evidence before the court?.
4. whether the learned trial Judge was competent in granting an order restraining the appellant from entering the house in dispute when no such relief or claim was sought for by the respondent?.

The respondent, on her part, formulated the following issues:

“1. Whether the trial Judge was right in holding that the late Pa Gabriel Egharevba validly made a Will tendered as Exhibit ‘A’.

2. Whether the Will of late Pa Gabriel Egharevba Exhibit ‘A’ violates the Bini Native Law and Custom concerning inheritance of estates?.
3. Whether the trial Judge was right in holding that the respondent was in possession of No.1,Urhobo Road, Sapele for the appellant to be held in trespass.”

It is apparent from the two sets of issues set out above that their purport is corresponding but their wording is dissimilar. I shall, in view of their comprehensiveness, prefer the issues identified by the appellant for the determination of this appeal. At the hearing of this appeal, J. O. Aghimien Esq. and A. O. Omamogho Esq., the learned counsel for the appellant and the respondent respectively, adopted and relied on their respective briefs of argument and proferred oral argument in amplification of the issues identified by them.

Issue 1 appears to be the grouse of the appellant over the validity of the Will (Exhibit A), said to have been made by the appellant’s father at a time he alleged that he (the father) was too ill to make it. The learned Counsel for the appellant submitted that in proving the validity of a Will, the onus is on the propounder that is to say the plaintiff who intends to rely on it to show clearly by credible evidence that there has been due execution and that the testator had the necessary mental capacity and was a free agent when he made the Will and cited in support the case of Okelola v. Boyle (1998) 2 NWLR (Pt.539) 533; (1998) 33 LRCN 2998.

Learned Counsel argued that, Exhibit A was not subjected to any test of probate for validity because neither the executors nor the beneficiaries (including the respondent) applied to the Probate Registry to prove validity of the Will as required by Order 49 of the Rules of Court. He further argued that in the absence of such proof, the evidence of the DW1 and DW2 which is unassailable, rendered the Will questionable, suspicious and invalid.

Learned counsel for the appellant submitted that, the learned trial Judge was in error when he held that the evidence of DW2 ran counter to the averment in paragraph 8 of the statement of defence when he (DW2) testified positively that the testator was paralysed and could neither speak nor recognise anybody. He contended that the items of evidence of paralysis and inability to speak or recognise anybody are clear indications of the deceased’s state of pleaded infirmity when he (the testator) executed the Will. He argued that the learned trial Judge misdirected himself when he said at page 65 lines 18 to 25 of the record of proceedings that, he was “dismissing paragraph 8 of the statement of defence and the evidence in support of it as unworthy of consideration.”

On due execution of a Will, the learned Counsel for the appellant submitted that the two witnesses who attested the Will are by law enjoined to swear to an affidavit of due execution before grant of probate. He argued that, since the learned trial Judge had found that the validity of the Will was yet to be proved before probate in accordance with Order 49 of the High Court Rules, the evidence of thePW2 attempting to establish the validity of the Will without attestation is of no moment. He submitted that since the evidence of DW1 and DW2 has sufficiently established suspicion on Exhibit A, the exhibit becomes irregular and invalid. He submitted that it is settled law that where executors failed to apply for probate before their death to prove the Will to enable them administer same, the Will passes no enforceable intereston any of the beneficiaries and he relied on the case of Daniel Onwudinjoh v. Chukwuka Onwudinjoh & 3 Ors. (1957-58) 11 ENLR 1. He finally urged the court to hold that the respondent has no vested right or title in the house in dispute capable of creating any right of possession therein.

In reply, the learned Counsel for the respondent outlined the following two reasons why the appellant challenged the validity of Exhibit A:

“(1) the incapacity of the testator who was the father of both parties to this appeal to make a Will by reason of his infirmity at the time he was said to have made it as averred in paragraph 8 of the statement of defence

2. that Late Pa Gabriel Egharevba, being a Bini man whose life was governed by the Bini Native Law and Custom, the devolution of his property must of necessity be governed by that custom and in consequence lacked the Will in point.”

As regard paragraph 8 of the statement of defence, the learned counsel for the respondent submitted that it offended Order 25 rule 4(1) and (4) of the High Court (Civil Procedure) Rules 1988 of the defunct Bendel State applicable to Delta State of Nigeria (hereafter referred to as 1988 Rules.) He further submitted that the learned trial Judge rightly held that the positive evidence given as to the state of health of the testator was not pleaded and the evidence was not in line with the expression of doubt stated in the said paragraph 8. He pointed out that, under cross-examination, the appellant said that he did not know the ailment that killed his father yet the appellant wanted the learned trial Judge to believe that his father had paralysis and could not speak. He argued that the learned trial Judge properly evaluated the evidence of the DW1 and DW2 and rightly rejected them as being canvassed and the fuller reasons stated at pages 64 and 65 of the printed record. He further argued that in contrast the evidence of the PW 2 – the Solicitor – as regards the mental capacity of Pa Gabriel Egharevba – the testator – was not challenged or contradicted under cross-examination.

As regards the reading of the Will at the Probate Registry, he submitted that there is no law which requires that all the beneficiaries or necessary parties who are named in the Will must be present at the time of reading the Will provided, they are informed of the time and place where the Will will be read. From the evidence of the appellant, he could not have been present when the Will was read because he was outside the country.

Learned Counsel for the respondent referred to the allegation of the appellant that the executors did not apply for the Will to be proved in the Probate Division of the High Court before they died. He referred to the following evidence of the appellant at page 39 lines 1 to 3 and lines 17 to 19 of the record.

“When I came back from England the executors handed the property to me,” and

The executors of my father’s Will are dead. It is not to my knowledge that they went to the Probate Division of the High Court to apply for the Will to be proved.”

Learned Counsel then posed the question that, if the Will was not proved by the executors what instrument gave power to the executors to vest property in the Will in the appellant when he returned from England? He said that the only reasonable answer is that probate was granted and the executors were vested with the properties listed in Exhibit A. He urged the court to dismiss grounds (b), (c), (f) and U) from which Issue 1 was distilled.

It is common ground that Late Mr. Gabriel Egharevba made a Will. The gravamen as regards the Will is that it is invalid for want of due execution. It is appropriate at this stage to examine the circumstances which make for a valid Will. Sections 6 and 7 (1) of the Wills Law Cap 172 of the Laws of Bendel State of Nigeria 1976 as applicable to Delta State are relevant. They read:

“6. No Will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned, that is to say it shall be signed at the foot or end thereof by the testator or by some other person in his presence and at his direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and subscribe the Will in the presence of the testator, but no form of attestation shall be necessary.

7(1) Notwithstanding the provisions of the foregoing section every Will shall, so far only as regards the position of the signature of the testator or of the person signing for him as herein provided be deemed to be valid if the signature be so placed at or after, or following, or under, or beside or opposite to the end of the Will that it shall be apparent on the face of the Will that the testator intended to give effect by such his signature to the writing signed as Will.”

(Italics mine)

Order 49 rule 19 of the 1988 Rules provides on the due execution of a Will as follows:-

“19(1) On receiving an application for administration with Will annexed, the court shall inspect the Will, and whether it appears to be signed by the testator or by some other person in his presence and by his direction and to be subscribed by two witnesses according to the enactments relative thereto and shall not proceed further if the Will does not appear to be so signed and subscribed.

(2) if the Will appears to be so signed and subscribed, the Court shall then refer to the attestation clause (if any), and consider whether the wording thereof states the Will to have been in fact executed in accordance with those enactments.”

Attestation clause in a Will may be defined as that clause (e.g at the end of a Will) wherein the witnesses certify that the instrument has been executed before them and the manner of the execution of the same.

It is apparent from the wording of Exhibit A (the Will) that it was made in strict compliance with the provisions reproduced above. The question is: Can such a Will be said to have been admitted to probate? It is settled that before a document can be admitted to probate, it has to be a testamentary document complying with the requirements of the Wills Law. See Okelola v. Boyle (1998) 2 NWLR (Pt.539) 533 at 559.

The appellant in his attempt to invalidate Exhibit A alleged in paragraph 8 of his statement of defence that the testator was afflicted by some disability. I have had a hard look at paragraph 8 which is shrouded in doubts and I agree with the submission of the learned Counsel for the respondent that the learned trial Judge was right by not acting on the attendant evidence of the DW 2 who said that the testator was paralysed and could neither speak nor recognise anybody. I also agree that that paragraph offended Order 25 rule 4(1) and (4) of the 1988 Rules. Sub rules (1) and (4) of Order 25 of the 1988 Rules read:

“(1) Every pleading shall contain, and contain only a statement in a summary form of all material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively.

(4) The facts shall be alleged positively, precisely and distinctly and as briefly as is consistent with a clear statement.”

(Italics mine)

In the instant case, the appellant averred in paragraph 8 of statement of defence inter alia:

“…It had remained in doubt whether the deceased had the capacity to make a Will when he allegedly made one by reason of his infirmity at the relevant time”

(Italics mine)

It is obvious that the foregoing averment is rooted in doubts as opposed to a clear statement of fact which the relevant law (above) requires before evidence can be adduced to substantiate it. The consequence of this affront on the rules of pleadings is to render both the averment and all the items of evidence on positive disabilities adduced by the appellant, the DW1 and the DW2 incompetent and should be discountenanced which the learned trial Judge rightly did. In view of the fact that there is no longer basis for the appellant to fault Exhibit A, the evidence of the PW2 that the testator was hale and healthy when he instructed him on the contents of his (the testator’s) Will remains unchallenged and it is accorded validity. It is settled that the burden of proof of the genuineness and authenticity of a Will lies on the party propounding it. Where there is a dispute as to a Will, as in the instant case, the person who propounds it must clearly show by evidence that prima facie everything is in order. Having done that, the burden is then cast upon the party who attacked the Will to substantiate by evidence the allegation he made. See Johnson v. Maja (1951) 13 WACA 290; Adebajo v. Adebajo (1973) 1 ALL NLR 361 and Okelola v. Boyle (supra) at page 557.

In the instant case, there is no doubt that from the preponderant evidence of particularly the PW2 the respondent discharged the burden of establishing the genuineness of Exhibit A. The burden thereby shifted to the appellant which by virtue of his inability to substantiate his attack, he woefully failed. The validity of the Will (Exhibit A) is therefore no longer in doubt.

The learned counsel for the appellant also raised the issue that the Will in point was not proved. There is appellant’s evidence that the two executors of the Will (Exhibit A) handed over the contents in the Will to him when he returned from overseas. I am of the view that it is only reasonable to presume that it was because the Will was proved that was why the executors had power to vest title in the unnamed property in him. The power of vesting title on the appellant could not have been taken away from the executors when they vested similar title in Mrs. Eseigbe Egharevba and subsequently, the respondent. I agree with the submission of the learned counsel for the respondent that the issue of whether or not the Will was proved is outside the contention of the appellant. It is settled that cases are fought on pleadings which set out the issues of before the court. See Ugbodume v. Abiegbe (1991) 8 NWLR (Pt.209) 261 and George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117. The appellant’s case at the trial court is that, his father was incapable of making Exhibit A. It is no longer in doubt from the foregoing that the testator made a valid Will which vested interest in No.1 Urhobo Road Sapele first on Mrs. Eseigbe Egharevba and subsequently on her death to the respondent, as well as vesting No.3 Idahosa Lane, Benin City in the appellant. See Clauses 7 and 9 of Exhibit A. accordingly resolve issue 1 in favour of the respondent.

Issue 2 is principally on whether or not the testator can bequeath his Igiogbe by Will. The learned Counsel for the appellant submitted that the laid down principles in the decided cases of Lawal-Osula v. Lawal-Osula, Idehen v. Idehen and Agidighi v. Agidigbi are to the effect that the property in dispute can only be properly bequeathed to the appellant being the eldest surviving son of the deceased. He further submitted that the said laid down principles are of general application irrespective of where the property is situate. He argued that it is the testator’s personal law that will apply wherever his property is situate. Thus, the law applicable to the inheritance of the Igiogbe of a Bini man is his personal law irrespective of where the Igiogbe is situate. He also submitted that the learned trial Judge was wrong in holding that the evidence before him was insufficient to decide whether a Bini man can have an Igiogbe outside Benin Kingdom. He referred to the evidence of the DW1 who said that his uncle, the testator lived all his life in Sapele and that that place in Sapele is his Igiogbe. He seriously relied on this evidence as clear and sufficient to establish the custom of a Bini man having an Igiogbe outside Benin Kingdom. He urged the court to hold, based on the evidence of the DW1, that a Bini man’s Igiogbe can exist outside Benin Kingdom.

In reply, the learned counsel for the respondent said that the learned trial Judge was right in not accepting the evidence of the appellant and his witnesses as having proved that No.1, Urhobo Road, Sapele is the Igiogbe of the testator, Pa Gabriel Egharerba. The learned trial Judge opined that the onus laid on the appellant who asserted that No.1, Urhobo Road, Sapele was the testator’s Igiogbe to prove it. He concluded that the appellant failed to do so.

It is trite that Benin native law and custom on Igiogbe is a custom of general application within Benin Kingdom and it is judicially noticed as such.

It is also trite that section 3(1) of the Wills Law of Bendel State does not state that the Bini man cannot make a Will but that in making such a Will, he should not bequeath the Igiogbe to any person other than the eldest surviving son. See Idehen v. Idehen (1991) 6 NWLR (Pt.198) 382; Lawal-Osula v. Lawal-Osula (1995) 3 NWLR (Pt.382) 128 and Agidigbi v. Agidigbi (1992) 2 NWLR (Pt.221) 98. All these cases were decided on houses situate in Benin City. I agree with the learned trial Judge who held that a Bini man having an Igiogbe outside Bini is a novel custom. It is settled that custom is a question of fact which should be proved in cases where it has not assumed sufficient notoriety or judicially noticed. It is not enough that the evidence of an isolated case that a Bini man’s Igiogbe can exist outside Benin Kingdom has assumed the required notoriety. There is need for more cogent and convincing evidence that the custom of Igiogbe has extra-territorial application outside Benin Kingdom. The appellant failed to adduce such evidence in order to satisfy the court on his assertion. Apart from paucity of the extra-territorial effect of Igiogbe, there appears to be uncertainty in the novel custom introduced by the DW 1 because he did not relate the Igiogbe he testified upon to any particular house in Sapele where the testator had two houses at No. 1, Urhobo Road, and 3 Abraham Road.

Furthermore, the will (Exhibit A) does not seem to assist the claim of the appellant that No. 1, Urhobo Road, Sapele as his father’s Igiogbe. Thus clause 7 reads:

“7. I give and devise absolutely to my son Emmanuel Osaheni my building (bungalow where I lived until my death) situate and lying at No.3, Idahosa Lane, Benin City.”

The content of clause 7 is a clear manifestation that house No.3 Idahosa Lane, Benin city, is the testator’s Igiogbe which he devised to the appellant in accordance with Bini native law and custom on inheritance. The testator being satisfied that he had strictly complied with that custom as regards Igiogbe devised his other properties in satisfaction of his heart’s content to other named persons. Thus in clause 9 of Exhibit A he stated:

“9 I give and devise my house (bungalow) and land situate and lying at No.1, Urhobo Road, Sapele to my beloved Senior wife by name Eseigbe Erhumwunse for her use for her life time. I consider her as the most devoted wife to me, honest and kind. She stood by me and took great care of me throughout my life time. I regret she has no child for me. I commit her to the care of Almighty God for her wonderful steadfastness. I further direct that the said property given to her for life shall after her death pass to my daughter Comfort Ikuoyenwen absolutely.”

(Italics mine)

In view of clause 7 and 9 of Exhibit A (above) has the novel isolated custom apparently created by the DW 1 any basis for a second Igiogbe? I doubt not. It is settled that a Bini man only has one Igiogbe and such Igiogbe must be situate in Benin Kingdom. Clause 9 (supra) appears to have cleared the strange introduction of more than one Igiogbe from the testator’s landed property. In effect, the testator recognised No.3 Idahosa Lane, Benin City as his Igiogbe and he, in true tradition of Bini custom of inheritance devised it to the appellant, his eldest surviving son.

In retrospect, No.1 Urhobo Road, Sapele was not an Igiogbe. It was instead a devise to Eseigbe Erhumwunse for her life time and thereafter the ownership absolutely passed to the respondent. I agree with the learned trial Judge that a Bini man can hardly have his Igiogbe outside Benin Kingdom. I equally resolve Issue 2 in favour of the respondent.

As regards issue 3, there is no doubt from the foregoing submissions and conclusions that the respondent has a better title to No.1 Urhobo Road, Sapele than the appellant. It is settled that where two persons claim possession at the same time, possession resides in the person who has a better title. See Ekpan v. Uyo (1986) 3 NWLR (Pt.26) 63 at 73.

Issue 3 relates to trespass to land. Trespass to land means no more than unlawful entry upon land or any direct or immediate interference with possession of it. In order to maintain an action for trespass, the plaintiff must have a present possessory title, either actual or constructive to the land. See Badiru v. Ozoh (1986) 4 NWLR (Pt.38) 724.

The law is clear that there are two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it. A person who although not in actual possession knowingly has both power and the intention at a given time to exercise dominion and control over a thing either directly or through another person or persons is then in constructive possession of it. See Black’s Law Dictionary 5th Edition at page 1047.

In the instant case, there is uncontradicted respondent’s evidence that she has a room to herself at No.1, Urhobo Road, Sapele coupled with proven facts that the tenants at No.1, Urhobo Road, Sapele paid rents to her as evidenced by Exhibits B,C, and D. That, no doubt is evidence of actual possession. The respondent also by virtue of Exhibit A which bequeathed the residuary interest in her, has constructive possession. In effect, the respondent has both actual and constructive possession of the house in dispute although the former possession appears stronger in dealing with the instant issue of trespass to land than the latter which only operated until the death of Mrs. Eseigbe Egharevba in 1990.

The appellant also laid claim to possession as per Exhibit E which contains expenses on repairs at No. 1, Urhobo Road, Sapele which Samuel Ufunmatsama submitted to him for reimbursement. But this tenant testified in the lower court that he was a tenant to the respondent and by necessary implication not the appellant’s tenant.

I agree with the learned trial Judge that the respondent, from available evidence, was in actual possession when the appellant came to disturb her possession of No. 1, Urhobo Road Sapele.

As regards the alleged trespass the respondent testified that on 4/7/93, the appellant came to her premises at No.1, Urhobo Road. Sapele to disturb her possession of the premises by threatening to drive out herself and the tenants and to throwaway their belongings. The appellant did not cast any aspersions on these assertions during cross-examination.

The trial Court was therefore right in holding that the appellant was in trespass over No. 1, Urhobo Road Sapele which was in actual possession of the respondent. Since the respondent has a better title to No.1, Urhobo Road, Sapele than the appellant and the latter interferred with the former’s peaceful enjoyment of that house, the latter was patently liable in trespass. I do not see anything perverse in the finding of the trial Court on the successful action in trespass maintained against the appellant. This issue is also resolved in favour of the respondent.

On issue 4, the learned counsel for the appellant referred to page 18 of the record of proceedings where the respondent said:

“I want the court to restrain the defendant from trespassing on the said premises. The court should order the defendant to pay me N100,000.00 for trespass.”

He pointed out that from the foregoing, the respondent abandoned her prayer of relief for declaration of title to the property in dispute because she led no evidence to justify such claim. He argued that the learned trial Judge rightly avoided making any pronouncement on the respondent’s claim for declaration of title.

Learned counsel equally referred to the conclusion of the judgment of the lower court which is to the following effect.

“Accordingly, I award the plaintiff the sum of N10,000.00 as general damages for trespass. The defendant, his servants, agents or privies are hereby restrained from further acts of trespass on the said building known as No. 1, Urhobo Road, Sapele.”

Learned counsel submitted that the order of injunction is not part of the prayers of the plaintiff/respondent in her statement of claim and that her testimony on that relief went to no issue for determination. He backed up his submission by the trite position in law that the court has no power to award a party a relief not claimed or prayed for over and above that which he claimed and relied on, among others, the cases of Sanda v. Adeniran (1998) 8 NWLR (pt. 560) 167 at 171 and Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt 561) 339 at 358. He contended that since the alleged case of trespass has not been proved, the trial Court was incompetent to make an order of perpetual injunction as that order was baseless and uncalled for.

In reply, the learned Counsel for the respondent submitted that the learned trial Judge having found that the respondent has a better right of possession to the house in dispute, he ought to have pronounced that the respondent is entitled to the Statutory Right of Occupancy of No.1, Urhobo Road, Sapele and he relied on Order 3 rule 23 of the Court of Appeal Rules 1981, as amended.

I agree with the learned Counsel for the appellant who rightly stated the true position of the law that a court has no power to award a party that which he had not claimed. The learned Counsel appeared to have whittled down the effect of this principle when he argued that the order on perpetual injunction was uncalled and baseless because the act of trespass has not been established against the appellant. It is no longer in doubt that in the prevailing circumstances of this case, the appellant committed acts of trespass on the respondent’s land. Trespass having been established, can the trial lower court hold on to such pronouncement without any restraint on the proven trespass? I doubt not. The restraint which the learned trial Judge described as perpetual injunction which is synonymous to restraint is, in my view a consequential order.

A consequential order is an order which flows necessarily, naturally, directly and consequentially from a decision or judgment delivered by a court in a cause or matter. It arises logically and inevitably by reason of the fact that the order in question is perforce obviously and patently consequent upon the decision given by the court and did not need to be specifically claimed as a separate or distinct head or item of relief See Awoniyi v. Registered Trustees of AMORC (2000) 10 NWLR (Pt.676) 522 at page 544 and 545.

(Italics mine)

The natural question is: What is the purpose of a consequential order? The purpose of a consequential order is to give effect to decision or judgment of the court, but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original relief claimed in the suit nor was it in contemplation of the parties that such relief would be the subject matter of a formal executory judgment or order against either side to the dispute. See Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt.167) 270 and Awoniyi v. Registered Trustees of AMORC (Supra) at page 545.

In view of the foregoing principles, the order of perpetual injunction made by the trial Court against the appellant is a consequential order which flowed naturally, logically and inevitably by reason of the fact that the appellant had been held to be in trespass on the respondent’s property situate at No.1 Urhobo Road, Sapele. Such an order does not need to be specifically pleaded as a separate head or item of relief to sustain it. This is therefore an exception to the general principle that the court has no power to award a party a relief not claimed or prayed for. The order of perpetual injunction is consequential in essence and it was intra vires the power of the trial Court in the instant case.

The learned Counsel for the respondent urged the court to invoke Order 3 rule 23 of the Court of Appeal Rules 1981 and pronounce that the respondent is entitled to statutory right of occupancy over No.1 Urhobo Road, Sapele. It is appropriate at this stage to revisit paragraph 18 of the statement of claim with particular reference to its sub-paragraph (1) which reads:

“WHEREFORE the plaintiff claim (sic) as follows:

(1) That she is the person vested with the title or that she is entitled to the Statutory Right of Occupancy of the building and premises known as No. 1, Urhobo Road, Sapele.”

(Italics mine)

I have read Order 3 rule 23 of the Court of Appeal Rules 1981, as amended which is to the effect that the Court shall have power to give any judgment or make any order that ought to have been made and to make such further or other orders as the case may require including any order as to costs. I am of strong opinion that the circumstances of relief (1) above do not admit of the invocation of Rule 23 of Order 3 (supra) because it is a relief in the alternative. It is trite that relief in the alternative shall not be granted cumulatively. It is enough if on proven facts one of such reliefs is allowed. The disjunctive nature of relief (1) which is split into two allowed the trial Court to award only one of them. The trial Court did just that where it held, inter alia, that the respondent was vested with interest or title in No.1, Urhobo Road Sapele. I answer issue 4 in the affirmative and accordingly resolve it in favour of the respondent.

In the final analysis, the appeal is devoid of any merit and it is dismissed. The judgment of the trial Court is affirmed. I assess costs against the appellant in favour of the respondent at N4,000.00.

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Other Citations: 2001)LCN/0981(CA)