Mr. Frank Omorodion Igori V. Master Otasowie Igori & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of Honourable Justice P.I. Imoedemhe of the Edo State High Court, sitting at Benin City, delivered on Tuesday, the 21st day of April, 2009.

The facts that led to this appeal are as follows:

The Appellant (as Plaintiff in the trial court) filed this suit claiming the following reliefs, as contained in paragraph 12 of the statement of claim on Pg. 7 of the record.

“12. WHEREOF the plaintiff claims as follows:

(a) A declaration that in accordance with Bini Customary Law of succession, the plaintiff as the eldest surviving son of the deceased succeeds exclusively at all events to the houses and premises known as No. Ajibola-Aluko Street, off Okota Road, Isolo, Lagos, Lagos State, Nigeria the house/premises where the deceased lived and died which was his last place of abode otherwise, known as Igiogbe.

(b) A declaration to set aside clauses B, C, D, E and (i) of the WILL dated 29/8/2003 of the (“Deceased”) who died on the 26th June, 2006 at Lagos, Lagos State Nigeria for being null and void for non-compliance with the relevant statutory requirements relating to WILLS.

(c) A declaration that plaintiff is the one entitled to statutory Right of Occupancy in respect of all that houses/premises known as No. 1, Ajibola-Aluko Street, Off Okota Road, Isolo, Lagos, Lagos State Nigeria.

(d) An order for 1st to 5th defendants to render account to the plaintiff in respect to all rent collected and to be collected from the said houses/premises from 26th day of June, 2006 when the deceased died until the determination of the suit.

(e) An order of perpetual injunction restraining the defendants from administering expending disposing of or dealing in any way whatsoever with the said houses/premises known as No. 1, Ajibola-Aluko Street, Off Okota Road, Isolo, Lagos, Lagos State Nigeria.

The learned trial judge dismissed the case in the entity in the judgment at pages 84-103 of the record of proceedings. Being dissatisfied with the judgment, the appellant filed this appeal.

In the brief settled by Mrs. E.J. Omoregie, and filed on 19/6/2009, the appellants identified five issues for determination as set out below:

1. Whether the learned trial judge was right when he admitted inadmissible documentary evidence exhibit D6.
2. Whether the appellant’s constitutional right to fair hearing was unduly prejudiced by the learned trial judge when he failed and/or refused to pronounce on the issues canvassed before him.
3. Whether the learned trial judge was right when he held that the appellant failed to prove that the deceased testator lived and died in the house in dispute.
4. Having regard to the totality of the evidence on record, whether the learned trial judge rightly evaluated the evidence before dismissing the appellant’s case.
5. Whether the learned trial judge was right when he held that the appellant failed to prove the extra territorial application of the Bini Customary Law on Igiogbe.

The learned counsel for the respondents in the brief settled by Chief Ferdinand Orbih, SAN identified four issues for determination as set out below:

1. Whether on the state of the pleadings of the parties to this suit and the evidence adduced by them, the admissibility of Exhibit D6 occasioned any miscarriage of justice, Ground 1.
2. Whether or not the learned trial judge properly evaluated the evidence before coming to the conclusion that the house at No. 1, Ajibola-Aluko Street, Off Okota Road, Isolo, Lagos, was not the Igiogbe of late Mr. Andrew Agbontaen Igori, and that the house at No. 3, Obosa Street, Benin which the testator willed to his first son, was his Igiogbe, Grounds 2, 3, 5, 6 and 7.
3. Whether or not the learned trial judge properly evaluated the evidence relating to “Eke no ma eghele Ero Igiogbe” in the judgment, the subject matter of this appeal.
4. Whether or not the learned trial judge was right when he followed the decision of the Honourable Court in Egharevba v. Oruonghae (2001) 11 NWLR (Pt. 724) t 336 and held that the Customary Law of Igiogbe has no extra territorial application, Ground 4.

Having read the judgment of the learned trial judge and the notice of appeal filed by the appellant which was transmitted at Pg. 104 -107 of the record, I am of the view that I am constrained to rephrase the issues for determination as distilled by both counsel and to reduce the duplicity in the issues so as to address the complaints set out in the notice of appeal. The two issues I feel are germaine for determination are as follows: