Jacob Ovenseri & Anor V. Ojo Osagiede & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

The first plaintiff, Ojo Osagiede, is the “Okaegbe” (head of family) of Osagiede family of Uselu Quarters, Benin and he was the senior brother of late Joel Idada Osagiede. the father of the second plaintiff, Reuben Idada Osagiede. The first defendant Jacob Ovenseri, alias Jacob Idada Osagiede, claimed he was the eldest child of the late Joel Idada Osagiede and senior brother of the second plaintiff(both being of the same mother) but the second plaintiff claimed he (the first defendant had a different father in that his mother (first witness for the plaintiff) carried his pregnancy to the late Joel Idada’s house on marriage as a result of post nuptial clandestine sexual intercourse with a soldier from Ondo. The matter in dispute is as contained in the statement of claim in paragraph 15 thereof, reading as follows:

“(a) A declaration that the house, land, premises situate at or being generally known or referred to as No.7, Benin/Ifon road, Uselu Quarters, Benin City particulars delineated in pink on plan No. MG 252/75 is the family property of Joel Idada Osagiede family, Benin City until the second burial ceremony of late Joel Idada Osagiede and subsequent distribution of the estate of the latter are performed in accordance with Bini customary law and that the sale or purported sale of the said property by the 1st defendant to the 2nd defendant is completely void and of no effect.

(b) An order of court setting aside the said sale or purported sale of the said property by the 1st defendant to the 2nd defendant, or in the alternative declaring the sale of the said landed property as null and void.

(c) A perpetual injunction restraining the defendants, their servants, agents and privies from entering and/or in any way intermeddling with the said property in any manner inconsistent with the interests of the plaintiffs.”

The plaintiffs in evidence based on their pleading contend that the second plaintiff was the elder child of the deceased, Joel Idada Osagiede and that the first defendant was his step son. P.W.1. Elizabeth !dada, said so much also in her evidence as did the 1st plaintiff, the elder brother of the deceased. Copious evidence was given by the plaintiffs of Bini native law and custom as to the administration of the estate of a deceased person. According to them, when a man dies he has what is called first burial. After this all his children take charge of the estate pending the second burial. The eldest son performs the second burial and it is after this that his eldest son succeeds to his “usual abode” in his life time, the “Igiogbe”. It seems there is no time limit to the performance of this second burial. The second plaintiff testified that he lived in Lagos all the time but as the first appellant was disposing of certain parts of the land in dispute, he never raised any protest because P.W.I, their mother appealed to him to overlook it. It was when the place of abode of their father was being sold to the second defendant, a complete stranger to the family that he had to sue together with his uncle, the first plaintiff. However, their evidence, uncontroverted, revealed the following facts:

1. the estate of the deceased could not vest in any of the children for division except the second burial has been performed, not even in the eldest son.

In this case, as the second burial is yet to be performed neither the first defendant (who claims to be the eldest son) nor the second plaintiff who makes similar claim could administer the estate or succeed to the estate. It means of course there can be no litigation until this important second burial has been performed.

2. The first plaintiff, being older than his deceased brother, cannot participate in the deceased’s burial and cannot have any part in the administration of his estate.

This means that the first plaintiff cannot sue even if the time to sue was ripe after the second burial. It also means he cannot join in suing as he has done.

3. The second burial of Joel Idada Osagiede had not been performed and hence the action taken in this matter was incompetent under Bini native law and custom.

The 1st defendant, however, claimed he was the brother of full blood with the second plaintiff. He admitted the first plaintiff as his uncle. He claimed he was the eldest child and was entitled to have the property in question. But in reality he claims he was the one that had the money for procuring the allotment of the land from the Land Allocation Committee in 1946 issued in his father’s name and when he died he asked for allocation to him as the owner and also as the eldest child. He claimed to be a Christian of Jehovah Witness sect and found the belief and the practice of second burial paganistic and repulsive to his faith. Counsel then addressed and the issue of competency was adverted to.

The trial Judge found that by Bini native law and custom, the first plaintiff could not join the second plaintiff in administering the estate and neither could he jointly act as plaintiff. As the second burial had not taken place, the estate could not vest. He then dismissed the claim. Against this the plaintiffs appealed to the Court of Appeal. It is however pertinent to set out the learned trial Judge’s conclusion in dismissing the case:

“I have deliberately declined from making any findings of fact and the effect of my judgment therefore and for the avoidance of doubt is to put the parties in status quo ante, except in one regard that the first plaintiff cannot again join any of late Idada’s children in any action touching his estate but this action as it is now constituted is dismissed, without prejudice for example, if the second plaintiff or any of the children of late Idada, Idada Osagiede, wishes to institute any action against the defendants in respect of the said building and premises situate at No.7, Uselu road, Benin City provided the first plaintiff is not joined as a party.”

The Court of Appeal then considered the appeal. It must be pointed out that the defendants never cross-appealed, especially on the issue of incapacity to sue in a representative capacity. The decision of the Court of Appeal, after considering many authorities (Obiode v. Orewere (l982) 1-2SC 170; Adegbite v. Lawal XII WACA 398, 399; Okafor v. Ifionu (1978) 4 S/C. 1; Anatogu & ors v. A.G. East Central State of Nigeria & Ors (1976) 11 SC 109, 123) was that the decision of the trial court dismissing the action was erroneous. After holding there was no capacity to sue, the trial court was incompetent to dismiss what was not before it legally. Applying section 16, of Court of Appeal Act, it substituted the order of striking out the suit for dismissing it. The defendants have now appealed to this court.

In this case the following issues have been formulated for determination by the appellants:

1. Was it right for the Justices of the Court of Appeal to strike out the case instead of dismissal having held that.. “the learned trial Judge has dismissed the entire case he was functus officio with regard to the case from when he made the pronouncement.
2. Whether the Justices of the appeal court were right in failing to pronounce on the issue of locus standi canvassed before them.”

The parties and their counsel, despite service of hearing notice on them never appeared at the hearing of this appeal. The respondents, also never filed any brief of argument. The appeal according to the rues of this court, was therefore heard on the defendants’/appellants’ brief alone.