Mr. Felix Eghobamien & Ors V. Mr. Alfred Oghogho Eghobamien (San) & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A. (Delivering the Leading Judgment)

The present Appellants in this appeal as the 3rd, 4th and 5th plaintiffs together with one Francis Eghobamien as 2nd Plaintiff, (for themselves and on behalf of the entire children and grand children of Late Chief Eghobamien Ogbomo Ogbeide-Oyo save the 1st, 2nd and 4th Defendants, 2nd and 4th Respondents in this appeal) and one Samuel Eghobamien as 1st Plaintiff (For themselves and on behalf of the children of Mrs. Omorevbaria etc) commenced proceedings by Writ of Summons at the High Court of Edo State Benin Judicial Division against the Respondents as Defendants and crystallized their reliefs in a 2nd Further Amended Statement of Claim in paragraph 47 thereof in the following terms:

“(a) A DECLARATION that the 1st plaintiff for himself and on behalf of the children of Late Mrs. Omorevbaria Eghobamien begotten for Late chief Eghobamien Ogbomo Ogbeide-Oyo are entitled to the house of Late Chief Eghobamien Ogbomo Ogbeide-Oyo at Iguedayi Village by virtue of the Testamentary devise dated the 8th day of June 1955, by which the said house was devised to them and by the deceased’s oral declaration of the devise to principal members of the family before his demise.

(b) A DECLARATION that the 2nd and 3rd Defendants have no legal or proprietary interest or right in the house at Iguedayi village, which the late Chief Eghobamien Ogbomo Ogbeide-Oyo willed to the 1st Plaintiff for himself and on behalf of the children of Late Mrs. Omorevbaria Eghobamien and openly declared to principal members of the family, his desire for them to take possession of after his death.

(c) A DECLARATION that the denial of the 1st, Plaintiff by the 2nd and 3rd Defendants, being aided by the 1st Defendant to occupy the house at Iguedayi, which they were meant to inherit and therefore denying them their inheritance right is unconscionable and actionable.

(d) AN ORDER that the 1st, 2nd and 3rd Defendants should deliver vacant possession of the said house at Iguedayi village to the 1st plaintiff forthwith.

(e) A DECLARATION that under Benin Customary Law of inheritance, all the children of the Late Chief Eghobamien Ogbomo Ogbeide-Oyo, the Osuma of Benin (not being a hereditary chieftaincy title) are entitled to share in the intestate estate and the Late Chief Sunday I. Eghobamien father of the 1st Defendant being the Eldest son is not entitled to inherit the entire Estate to the exclusion of other children.

(f) A DECLARATION that under the Benin Native Law and custom, Late Chief Sunday Igbinedion Eghobamien in his life time and thereafter the 1st Defendant in succession held the unshared intestate estate of Late Chief Eghobamien Ogbomo Ogbeide-Oyo in trust for themselves and the heirs of Chief Eghobamien Ogbomo Ogbeide-Oyo and/or their surviving children who are beneficiaries of the said estate and are entitled to share from same.

(g) AN ORDER of this Honourable court setting aside the Ex-parte order of the defunct Customary Court Grade 1 made on 30th November, 1959 for its negation of Benin Customary Law of inheritance and succession and/or on ground of fraudulent misrepresentation and lack of fair hearing.

(h) AN ORDER setting aside the certificate of occupancy No. 7902 issued in favour of Late Chief Sunday Igbinedion Eghobamien based inter alia, on the customary court order of 30th November 1959 in respect of the unshared intestate estate of Late chief Eghobamien Ogbomo Ogbeide-Oyo who was the Osuma of Benin Kingdom same having been irregularly obtained.

(i) AN ORDER mandating the 4th Defendant, being the “Okaegbe” (head) of Eghobamien family to share the intestate estate of Late Chief Eghobamien Ogbomo Ogbeide-Oyo among the beneficiaries of the estate i.e. the heirs of the deceased and/or their surviving children including the Plaintiffs according to Benin Native Law and Custom.

(j) AN ORDER that the 1st Defendant should render account of the accruals and/or proceeds from the unshared estate of the late Chief Eghobamien Ogbomo Ogbeide-Oyo which was held in succession by the 1st Defendant’s late father, Chief Sunday Ighinedion Eghobamien and the 1st Defendant himself in trust for themselves and all the beneficiaries thereof since 14th August, 1959 till date and submit the estate and proceeds to the 4th Defendant for sharing according to Benin Native Law and Custom.

(k) AN ORDER of perpetual injunction restraining the 1st, 2nd and 3rd Defendants, their heirs, agents, servants, assigns, cohorts, privies and representatives from further interfering with the estate and/or sharing of the estate of late Chief Eghobamien Ogbomo Ogbeide-Oyo and also from disturbing or harassing the 1st plaintiff in the house at Iguedayi devised to the 1st plaintiff and his siblings by late Chief Eghohamien Ogbeide-Oyo, their late father, who built the house”.

They also made alternative claims to reliefs (e) and (f) above in the following terms: