Joseph Osemwegie Idehen & Ors. Vs George Otutu Idehen & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

S. KAWU, JSC. 

Both the appellants and the respondents in this appeal are some of the Children of the late Joshua Iserhienrhien Idehen, a wealthy gentleman of Bini origin who died on the 18th day of September, 1979, leaving a number of real and personal properties. He left a Will dated 10th March, 1973 in which he made several devises and bequests.

In this will he devised to his eldest son, Dr. Humphrey Idemudia Idehen his two houses at No.

62 Akpakpava Street and No.1 Oregbeni Ikpoba Hill, both in Benin City.

It was common ground that the deceased lived in these houses in his lifetime and they therefore constituted his Igiogbe. Unfortunately, Dr.

Humphrey Idemudia Idehen predeceased his father and consequently the 1st respondent became his father’s eldest son. Subsequently the respondents, as plaintiffs instituted an action in the High Court against the appellants, who were the executors of their father’s estate, challenging the validity of their father’s will. Their claims as finally formulated in their further Amended Statement of Claims, are as follows:

Humphrey Idemudia Idehen predeceased his father and consequently the 1st respondent became his father’s eldest son. Subsequently the respondents, as plaintiffs instituted an action in the High Court against the appellants, who were the executors of their father’s estate, challenging the validity of their father’s will.

Their claims as finally formulated in their further Amended Statement of Claims, are as follows:

“1. A declaration that the document dated the 10th March, 1973 purporting and/or pretending to be the Will of Joshua Iserhienrhien Idehen (hereinafter referred to as the Deceased”) who died on the 18th September, 1979 at Benin City is null and void for not being the act of the Deceased as well as for non-compliance with the relevant statutory requirements relating to Wills.

2. A declaration that in accordance with Bini Customary Law of succession, the 1st plaintiff as the eldest surviving son of the Deceased succeeds exclusively at all events to the houses and/or properties lying and situate at and known as No.

62 Akpakpava Street and No.1 Oregbeni Ikpoba Hill, Benin City in addition to the lion’s and/or disproportionately large share of the remaining part of the Deceased’s Estate which the 1st plaintiff shares with the other children of the Deceased.

3. A declaration that the plaintiffs are entitled to a grant of letter of administration of the Estate of the Deceased.

4. An Order of perpetual injunction retraining the defendants from administering, expending, disposing of or dealing in any way with the Deceased’s Estate or any part thereof.

5. An order compelling the defendants to restore to the said Estate any part thereof unlawfully disposed of or dealt with by them.