Mr. Festus Osemwingie & Ors V. Mr. Orobosa Osemwingie & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Edo State High Court of Justice, Holden at Benin City, in Suit No. B/325/1999, delivered on 20th December, 2006.

The 1st respondent was the plaintiff at the Court below, where he claimed that being a Benin man and the eldest son of his father, the late Osemwingie Ehigiator, he was entitled to inherit the property of his deceased father above-mentioned, situate and lying at No. 92, Akpakpava Street, Benin City where his father lived, died and was buried, as his IGIOGBE. However, his father executed a WILL wherein, the said property was given to some of his sons such as the 3rd, 4th and 5th appellants, to the exclusion of the 1st respondent. Hence he claimed the following reliefs, namely:

“(a) A declaration that the Igiogbe consists of the two (2) houses known and called No. 92, Akpakpava Street, Benin City the frontal building which his late father inherited as an Igiogbe from Plaintiff’s grandfather, late Ehigiator Uduebor and the rear building which Plaintiff’s late father built and lived in, died and was buried in.

(b) A declaration that the Plaintiff who is the eldest surviving son of late Osemwengie Ehigiator having performed the funeral obsequies of his late father according to Bini Native Law and Custom is entitled to inherit both houses (the Igiogbe) known and called No. 92, Akpakpava Street, Benin City where his late father and grandfather lived in and died in and were both buried to the exclusion of any other person including the defendants.

(c) An order to set aside and declare as null and void clauses 3, 4, 5, 6, 7 and 13 of the purported WILL of late Mr. Osemwengie Ehigiator dated the 23rd of November, 1990 as if offends against Bini Native Law and Custom and the WILLS LAW CAP 172 of the Laws of Bendel State 1976 as applicable in Edo State.

(d) A Perpetual Order of Injunction restraining the defendants, their agents and/or servants or privies from interfering or meddling with the plaintiff’s proprietary rights over and in the aforesaid properties.”

Pleadings were duly filed and exchanged between the parties. The Plaintiff’s Further Amended Statement of Claim is at pages 7 – 10 of the records of appeal. The 3rd, 4th, 5th, 7th, 8th, 9th and 11th defendants/appellants’ Joint Statement of Defence and Counter-Claim is at pages 44 – 49 whilst the Plaintiff/1st Respondent’s Further Amended Reply to the Statement of Defence and defence to the Counter-Claim are at pages 57 and 58 of the records of appeal. The 12th defendant’s statement of defence is at pages 36 and 37 of the records of appeal.

The Plaintiff/1st Respondent testified for himself after witnesses had given evidence for him. Exhibits A, B & C were admitted in evidence at the instance of the 1st respondent. The 2nd and 4th defendant/appellants with another witness gave evidence for the 3rd, 4th, 5th, 7th, 8th, 9th and 11th appellants, whilst a witness testified for the 12th Respondent at whose instance some documentary exhibits were admitted in evidence.

At the close of evidence viva voce by the parties and their respective witnesses, the learned trial Judge ordered that written addresses be filed and exchanged between the parties. This was done. In his judgment, the learned trial Judge found for the Plaintiff and granted him all the reliefs as per his claim, hence this appeal by the 3rd, 4th, 5th, 7th, 8th, 9th and 11th defendants/appellants.

There are five (5) Grounds of Appeal, which for ease of reference reproduced here below, to wit:

“1. The learned trial Judge erred in law when he held that the entire buildings at No. 92, Akpakpava Street, Benin City comprises the Igiogbe to be inherited by the plaintiff.

PARTICULARS OF ERRORS

(a) The Igiogbe in Benin Native Law and Custom upon which there are judicial pronouncements is the principal house and not the entire compound made up other houses where the deceased the testator lived and died which in the instant case is the last storey building at the back where the Testator lived with his family till his death.