Obazee Ogiamien And Comfort Ogiamien V Obahon Ogiamien (1967)

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ADEMOLA, C.J.N. 

The Respondent was the plaintiff in the High Court of the Benin Judicial Division where he brought an action against his eldest brother and another. In the writ and in the statement of claim it was pleaded that he sued on behalf of himself and other members of the family.

Although this was denied, there was no proof that he was authorised by other members of the family to sue on their behalf. The learned Judge was, however, of the opinion that absence of such authorisation was not material.

The claim was for a declaration that the brother (1st defendant) had no right under Bini Customary Law to sell the property of their father situated at 43 Sakoba Road, Benin City; also for an order to set aside the sale made to the 2nd defendant, a relation of the parties.

The learned Judge found in favour of the plaintiff and declared that the 1st defendant had no right to sell the property without the concurrence of members of his family. He then proceeded to set aside the sale, ordered the deed of conveyance conveying the property to the 2nd defendant to be set aside and to be cancelled. From this judgment and order the defendants appealed.

Before the hearing of this appeal, however, the 1st defendant obviously under pressure by some members of the family, withdrew his appeal. The 2nd defendant, who had paid the purchase price on the property and which was not refunded to her, continued with the appeal and we heard counsel on her behalf.

The facts of the case are simple. The first defendant was the first son and heir of Chief Edo Ogiamien (deceased) who was one of the senior Chiefs in Benin; the plaintiff was the eight son of the deceased.

There were a number of female children as well. Chief Edo Ogiamien died leaving three houses – one stool property and two others. One of the two was sold in accordance with the wishes of the deceased to help to defray the funeral expenses of the deceased which is usually an expensive item in Benin particularly in case of a senior Chief.

The eldest son, according to custom, had to bear the rest of the expenses. The second house which is the property in dispute was originally used by members of the family at large and the stool house referred to as the palace was, according to custom, the abode of the eldest son (first defendant) who succeeded to the Chieftaincy.

It is common ground that according to Benin custom the eldest son succeeds to all the property of the father to the exclusion of other children. This custom the learned Judge dubbed as repugnant to natural justice, equity and good conscience; he refused to be bound by it.

As it is not a point material to this appeal we refrain from making comments on this except that we see nothing wrong in this custom; we can only say that it is not unknown in some other highly civilised countries of the world. Be that as it may, it was alleged, in this particular case, that the deceased had during his life time made a gift inter vivos of this house to his other children as a family house for them to live in.

This assertion, which in our view was not satisfactorily proved, was denied by the first defendant who called attention to a previous case, to which we shall later refer, where it was asserted by his brothers that the house was left by the deceased for the junior brothers to live in until each and every one of them is old enough and is able to build a house of his own. It is appropriate here to mention that the deceased died about 27 years ago, and that the plaintiff, his youngest son is now about 60 years of age, although he admitted before us that he is about 50 years of age. In any case, about 12 or 13 years after the death of the deceased the first defendant laid claim, according to custom, to this property and proceeded to sell it. This evoked the litigation to which we have referred-exhibits C, D, E, and F and these are relied upon. Exhibit D is the proceedings in the Benin Divisional Court 2; exhibit E is the appeal heard by the District Officer; exhibit F is the appeal heard by the Resident, and the final appeal before the Governor, Western Region is exhibit C. The relevant portion of the judgment in exhibit C is as follows-

-”This is a claim by the younger son of a deceased Chief to a house-hold property that had belonged to his father. In a previous case that concerned the same chieftaincy, the native law and custom was laid down that the eldest son, who inherits the chieftancy, takes all the property with the exception of that which the deceased has given away before his death. This custom has not been challenged by the defendant-appellant and is consistent with equity since many liabilities and responsibilities have to be taken over by the new holder of the chieftaincy.

Defendant-appellant’s defence was that the house had been made the subject of a gift or bequest to him. I am in agreement with the lower courts that the evidence is insufficient for the courts to reach such a finding …….. I find no merits in the appeal which is dismissed accordingly and the judgment of the Resident’s Court of Appeal affirmed.”