Alfred Usiobaifo & Anor V. Christopher Usiobaifo & Anor (2000)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, J.C.A.
This appeal is from the judgment of Omage, J (as he then was) sitting In the High court of Justice Benin and delivered on the 6th day of March, 1997.
The plaintiffs as the respondents in this appeal filed a specially endorsed writ of summons against the defendants (now appellants) seeking the following reliefs:
“1. A declaration that the first defendant has no right to sell the family properties known ans (sic) situate at No. 107 Forestry Road, Benin City without the consent of other principal members of the family.
- A declaration that the purported sale of the family properties known and situate at No. 107 (formerly NO. 101) Forestry Road, Benin city on the 11th day of September, 1992 by the first defendant to the 2nd defendant within the jurisdiction of this Honourable Court is illegal, null and void and of no effect whatsoever.
- An order of perpetual injunction restraining the 1st defendant from selling, parting with the title of the family properties known and situate at No. 107 Forestry Road, Benin City.”
Pleadings were filed and exchanged between the parties. The pleadings were equally amended several times over and exchanged between the parties. In paragraph 31 of the eventual Further Amendment statement of Claim, the plaintiffs sought the following two reliefs as opposed to the three reliefs in the Writ of Summons severally and jointly against the defendants:
“1. A declaration that the first defendant has no right to sell the family properties known and situate at No. 107 Forestry Road, Benin city without the consent and approval of other principal members of the family.
- A declaration that the purported sale of the properties known and situate at NO. 107 Forestry Road, Benin City on the 11th day of September 1992 by the first defendant to the second defendant within the jurisdiction of this Honourable Court is illegal, null and void and void (sic) and of no effect whatsoever.”
The defendants on their part joined issues with the plaintiffs on the reliefs claimed and particularly averred in paragraphs 18 and 24 of the Further Amended Statement of Defence as follows:
“18 The Defendants averred that in Ishan customary law of inheritance is based on principle of promo geniture (sic) according to which the right of inheritance or succession to property belongs exclusively to the eldest son of a deceased person on performance of his father’s burial. On the basis of this customary law of Ishan the 1st defendant was and/or is exclusively owner (sic) of the said property and has right to deal with it.
- The Defendants shall contend at the trial of this action that the Suit is grossly misconceived, incompetent and ought to be dismissed as being frivolous and an abuse of the process of the Court”
At the trial in the court below, the 1st plaintiff testified and called three witnesses while the 1st defendant equally testified and called the same number of witnesses.
The salient items of evidence adduced by the 1st plaintiff and in behalf of the plaintiff are as follows: the first witness who is the 1st plaintiff testified that the 2nd plaintiff, the 1st defendant and himself are some of the male children of Chief Ebunde Usiobaifo who owned, lived and died in Ewaise Street now known as No. 107 Forestry Road Benin City in 1954. The eldest son of their late father was Obote Usiobaifo who lived in the same house and built another house in addition to the one built by their father on 107 Forestry Road Benin city until he too died in 1973 without performing the traditional burial ceremony of their late father. The 1st defendant being the eldest surviving son on the death of Obite Usiobaifo called a family meeting where it was agreed that each child should pay N590.00 towards the said ceremony. Each of them contributed that amount and the ceremony was performed”. The 1st plaintiff (the P.W.1) further testified that Pa Okaisabor, D.O. Aburime, Akhimien, Odudu Negbeneda and Ibhafidon Abulu are members of his family. In 1975 a family meeting was held and the property of his late father was shared. The minutes of the meeting are in exhibit CU 1. At the meeting, sharing the property of their late father was one of the items deliberated upon. Property situate at No. 107 Forestry Road, Benin city in particular was shared to 1st defendant “to take care of the house and to use the property in rotation.” The 1st defendant thereafter sold the said property to the 2nd defendant for N500, 000.00 without the consent of himself (the 1st plaintiff) and the 2nd plaintiff who are the principal members of the family. He added that the property which is “Igiogbe” cannot be dealt with by discussion with the other beneficiaries”‘. He asserted that he is still living in the house said to have been sold by the 1st defendant. Under cross examination, the P.W. 1 denied that the property in point was given to the 1st defendant absolutely. Mr. Akhimien Ofenagbon testifying as the P.W.2 said that apart from being the oldest man in the parties’ village, he is also of the same clan with them. He asserted that he shared the property in question to the 1st defendant to hold it in Trust for the family as that property is an Igiogbe which should not be sold. Selling of such a house is a taboo under Ishan Native law and custom. He particularly testified that the Igiogbe does not belong to the eldest son. It is instead held in trust according to seniority on rotational basis. He identified exhibit CU 1 which contains the minutes of the meeting at which property situate at 107 Forestry Road, Benin city was shared to the 1st defendant to hold in trust for the family of which the plaintiffs are members. The P.W. 3, Mr. Okaisabor Oseghae, testified, in the main, that he was present at the meeting held on 6/12/75 to share Usiobaifo property. He also testified, inter alia, as follows:
“The house in Benin was given to Alfred as the senior in joint ownership of the house with his brothers. After Alfred, the next brother uses the house, after another brother uses the property, after all brothers are deceased then the grand children now take in turn ……………. Alfred cannot sell the house at all.”
The house being an Igiogbe was shared to the 1st defendant and his brothers as female children have no share in it. He identified exhibit CU 1.
The P.W. 4, Mr. Joseph Abulu testified that he was the person who recorded minutes at the meeting where the Igiogbe was shared to the 1st defendant. He identified exhibit CU 1.
On the part of the defence, the 1st defendant testifying as the D.W. 1 said that the two plaintiffs are his younger brothers of the same father who died on 5/5/55. Oboite, his elder brother, did not perform the funeral rites for their father until he died in 1973. He, however, performed the burial ceremony as required by Ishan native law and custom. On 12/2/94, after the said ceremony, there was family meeting presided by Mr. Iweren, his paternal uncle. At the meeting, the properties situate at NO. 107 Forestry Road, Benin city and No. 19 Ukpenu Ekpoma were given to him. He named those present at the meeting Ibofar Ali, Esole, Captain Peter Erewele, Okogun and Oriarewo. He sold one of the three houses on No. 107 Forestry Road, Benin City to the 2nd defendant at N500, 000.00. He identified exhibit CU 2 as the approval from Oba Akenzua transferring No. 107 Forestry Road, Benin city to him. He asserted that it is forbidden to share a deceased person’s property among his male children rotationally. Property at No. 107 Forestry Road, Benin City was therefore not shared to him rotationally. Under cross examination the D.W. 1 said, inter alia:
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