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.”

Earlier, the Benin Divisional Court in its findings in exhibit. D stated that the plaintiff (the present first defendant) “is the rightful owner of all the late Chief Ogiamien’s property” and the judgment is concluded in the following words-

“Judgment for plaintiff [present first defendant] to be the rightful owner of the house in dispute and secondly that the house should be quitted by the defendants, sons of the late Ogiamien forthwith.”

The learned Judge in the present appeal has attacked the proceedings in the case exhibit D, to which we have just referred, and in his judgment (now on appeal) he declared that the judgment (above) is null and void on the ground that the court was not competent and was not properly constituted, and that the judgment based on it cannot stand. In this regard, the learned Judge in his judgment made reference to the proceedings in the Benin Divisional Court II (exhibit D), which forms part of the record of appeal before us and which we have examined. It was pointed out by the judge that when the court first sat on the case on 12th February 1954, six members of court were listed as present including one Chief Olaye referred to as Vice-President. From that date and at subsequent adjournments (about ten in all), the learned judge complained, members of court who sat were not listed: that record merely shows “Case Resumed” followed by the date.

The second complaint by the learned Judge was that the Vice-President, Chief Olaye alone signed the record at the end of the day throughout the proceedings, and indeed signed the judgment on the last hearing date which was 27th May, 1954. Another complaint was that if Chief Olaye sat as Vice-President, where then was the President? With respect, we fail to appreciate the difficulties which the learned Judge set for himself in this matter. The first point to us presupposes that the same panel of court members sat from day to day, and in the absence of any evidence to the contrary this must be accepted as the correct view any court must accept. The presumption is that the same panel of court members continue to sit on the case.

The practice of recording “Resumed” or “Court Resumed” followed by the date, is not unknown even in the highest court in the country and is not peculiar to the native court. We are unable to agree therefore with the learned Judge that the court was not properly constituted. Turning to the second objection raised by the learned judge, we observed from the record of proceedings exhibit D, that the Vice-President Chief Olaye signed his name at the bottom on every adjournment, and the Divisional Court Clerk signed also and inserted the date.

We fail to see anything wrong in this, and we think that this is clear indication that Chief Olaye was presiding in the court and possibly he was the only literate member of the court. The third point raised by the learned judge we can dismiss by pointing out that Chief Olaye was at the material time Vice-President by virtue of his office but that he was presiding on the particular case.

We are therefore unable to agree with the views of the learned judge that the court was not competent or that it was improperly constituted and that the proceedings exhibit D is null and void. We note also that these objections were never raised by counsel and that they were formulated by the learned Judge himself in his judgment. No opportunity was given to counsel to argue the points, and throughout the various appeals on the case (exhibit D), the constitution of the court was never challenged.

This court has pointed out on several occasions that it is wrong for a judge to give a decision on a point on which opportunity was not afforded counsel to argue at the hearing, and particularly a point which throughout the hearing was not raised.

There was no scintilla of evidence before the learned judge that the court was at any one of its sittings differently constituted to the panel which sat when the case was first called. In the case of Adeigbe & anor v. Salami Kusimo & others (1965), this court has sufficiently dealt with the state of the law on the question of variation in the panel of judges and it was there laid down that variations in the Bench do not make the judgment a nullity. The point need no consideration here; as we stated earlier there is no evidence of variation.

It remains for us to refer to the claim before the Benin Divisional Court (exhibit D) the judgment of which was relied upon in this case before the learned judge. The claim (by the present first defendant) was for “declaration of ownership to the property at Sakpoba Road, Benin Cit

Other Citation: (1967) LCN/1475(SC)