Idahosa V. Idahosa (2020)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal or Court below or lower Court, Benin Division, Coram: Amina Adamu Augie JCA (as he then was); George Oladeinde Shoremi and Ali Abubakar Babandi Gumel JCA which in delivering the judgment on 9 July, 2010, set aside the decision of the trial Court and entered a judgment in favour of the respondent.

Dissatisfied, the appellant appealed to the apex Court.

Facts briefly stated:

Madam Onaiwu Idahosa, Mr. Stephen Eronmwon and Mr. Okhuasuyi Eronmwon are all children of Pa. Eronmwon. Messrs Stephen Eronmwon and Okhuasuyi Eronmwon were the 2nd and 3rd defendants respectively at the trial of this action at the High Court. Pa Egharevba Idahosa and Madam Onaiwu Idahosa were husband and wife. They settled in Lagos. It happened that Madam Onaiwu Idahosa was ill in Lagos and the husband sent her to Benin for treatment. Madam Onaiwu’s father, Pa. Eronmwon employed the services of a native doctor called Omonor who treated Madam Onaiwu Idahosa. Madam Onaiwu Idahosa at this time was staying with her father.

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After the treatment of Madam Onaiwu Idahosa, the father demanded for the cost of her treatment from her husband, Pa. Egharevba Idahosa who refused to pay whereupon Pa. Eronmwon instituted a legal action for the recovery of cost of treatment at the native Court and obtained judgment. The native Court of Benin City judgment of 1935 was admitted as Exhibit B at the trial of this action.

The version put forward by the appellant is that during the period of separation of Madam Onaiwu Idahosa from her husband, Pa. Egharevba Idahosa, she fell in love with one Pa. Osayande. She later had the appellant and PW2, Mrs. Comfort Ekwebelem for the said Pa. Osayande at Benin City. Later, Pa. Egharevba Idahosa came from Lagos to Benin City to re-arrange a re-union with his wife, Madam Onaiwu Idahosa, who then went to live at Lagos with him the appellant and her elder sister PW2, Mrs. Comfort Ekwebelem. After the re-union, Madam Onaiwu Idahosa gave birth to her other children including the appellant who was the 1st defendant at the trial for Pa. Egharevba Idahosa.

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When Pa. Egharevba Idahosa died, Madam Onaiwu Idahosa presented the appellant and PW2 Mrs. Comfort

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Ekwebelem as children of Pa. Egharevba Idahosa. There was evidence before the trial judge that Madam Onaiwu Idahosa refused her relations from the Eronmwon family to participating in the burial of Pa. Egharevba Idahosa since she thought they knew her mischief in order for same not to be made public.

After the conclusion of the burial, the respondent inherited Pa. Egharevba Idahosa’s Igiogbe at No. 15, Ogbelaka Street, even though the appellant laid claim as his eldest surviving son.

Madam Onaiwu Idahosa had a protracted illness. A day before she died, she allegedly confessed to the appellant and the respondent to the effect that she had the respondent and his elder sister Mrs. Comfort Ekwebelem for Pa. Osayande while she was separated from the husband and while living with her own father in her father’s house at Benin City.