Christopher Idahosa V. Sgt. Stephen Idahosa & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The Appellant and 1st Respondent are brothers, and the action that culminated in this appeal relates to the paternity of the Appellant. Their mother, late Madam Onaiwu Idahosa, was the 2nd and 3rd Respondents’ sister, and she was married to late pa Egharevba Idahosa until his death on the 20th of December, 1977. As the eldest surviving son, the Appellant complied with all the Bini customs in burying their father, and he was the one who inherited the Igiogbe, that is the house in which the late Pa Idahosa lived and was buried, which according to Bini custom, is inherited by the eldest surviving son of the deceased . Madam Onaiwu Idahosa lived with the Appellant until her death on the 2nd of August 1997.

After the traditional wake keeping on the 20th of August, 1997, the Appellant and his older sister took a goat to their mother’s family to ask permission to perform final burial rites of their mother. But the family refused to accept it because they wanted to investigate the report the 1st Respondent made to them that Madam Idahosa had confessed to both brothers before she died that the Appellant and his sister were not pa Idahosa’s children.

The alleged confession was also reported to the Oba of Benin who set up a panel of Chiefs to look into the matter. However, before the Oba could make any pronouncement on the report made to him, the Appellant filed an action at the High Court, Benin, wherein he claimed as follows against the Respondents-

1. Declaration that the Plaintiff is the eldest surviving male child of Pa Egharevbe Idahosa (deceased) of No. 15 Ogbelaka street, Benin city who died on the 20th day of December,1977 at Benin city.
2. Declaration that the plaintiff carried out the final burial rites of his late father, Pa Egharevbe Idahosa in accordance with Bini Customary Law and stepped into his shoes as head of family.
3. Declaration that under Bini Customary Laws and usages, the Defendants who live in Benin city have no right to determine who the heir of late Pa Egharevbe Idahosa is, the 1st Defendant being junior in age to the plaintiff, and the other Defendants being from the Plaintiff’s mother’s family.
4. Declaration that the Plaintiff as the eldest son of his mother, Madam Uvbi Onaiwu Idahosa who died on the 2nd day of August 1997, is the person who, by Bini Custom can perform the final burial rites of his late mother according to Bini Custom.
5. Injunction restraining the Defendants, their servants or agents from doing anything that may injure the Plaintiffs right or prevent him from performing the final burial rites of his late mother …”

On their own part, the Respondents counterclaimed as follows –

(a) A Declaration that the 1st Defendant is the eldest surviving male child of Pa Egharevbe Idahosa (deceased of No. 15 Ogbelaka Street, Benin City who died on the 20th day of December, 1977 at Benin City.

(b) A Declaration that the 1st Defendant is entitled under the Bini native law and custom, to inherit all that property lying and situate at No. 15 Ogbetaka Street, Benin City within jurisdiction of this Court where his said late father lived and died same being the Ogiogbe.

(c) An Order for the Plaintiff to render an account to the 1st Defendant in respect of monies, rent and profits collected or received or to be collected by the Plaintiff and or his agents in respect of all that property lying and situate at No. 15 Ogbelaka Street, Benin City …”

(d) An order for the Plaintiff to surrender the shrine of late Pa Idahosa’s ancestors to the 1st Defendant as the Plaintiff has no right under Benin native law and custom to retain same.

(e) An Order that the 1st Defendant is entitled to possession of all that property known and situate at No. 15 Ogbelaka Street, Benin City …

(f) An Order that the purported burial by the Plaintiff of Pa Idahosa is void and of no legal effect whatsoever.

(g) Perpetual injunction restraining the Plaintiff and or his agents, servants or privies from trespassing into or doing anything whatsoever with all that property lying and situate at No. 15 Ogbelaka Street, Benin City within the jurisdiction of this Honourable Court.

At the trial before the lower Court, the Appellant testified and called four witnesses, and the 1st Respondent called three witnesses and also testified himself. After hearing addresses of counsel, the learned trial Judge, Hon. Justice G. E. Edokpayi, delivered his Judgment on the 5th of October 2001, wherein he held as follows-

“The Plaintiff has failed to establish that he is the eldest surviving male child of Pa John Eghparevba Idahosa (deceased)…” I herein declare that the 2nd and 3rd Defendants being from the family of the mother of the Plaintiff have no right under Bini Customary law and usages to determine who the heir of late Pa Idahosa is …” I herein declare that the Plaintiff as the eldest son of his mother … is the person who … can perform the burial rites of his late mother … From the evidence adduced by the Defendants and their witnesses, which evidence I believe and accept as true, I come to the conclusion that the 1st Defendant has established that he is the eldest surviving male child of late Pa Idahosa … It is herein declared that that the 1st Defendant … is entitled under Benin native law and custom to inherit all that property lying and situate at No. 15 Ogbelaka Street, Benin City… The Plaintiff is herein ordered to surrender the shrine of late Pa Idahosa to the 1st Defendant – – The Purported burial of Late Pa Idahosa by the Plaintiff in 1977 is herein declared void and of no legal effect whatsoever…”