Mr. Nosa Tawodi Giwa Osagie V. Alhaji R. O. V. Giwa Osagie & Anor (2009)

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HELEN MORONKEJI OGUNWUMIJU, J.C.A.

: This is an appeal against the judgment of Hon. Justice J. O. Omorodion dated 14th March, 2005 delivered at the High Court Benin. The learned trial Judge had dismissed the Plaintiffs claim and also dismissed the Defendants’ counter-claim, hence this appeal.

The Appellant herein was the Plaintiff at the lower court. The facts that led to this appeal are as follows:-

Late Pa Saliu Agharna Giwa Osagie, the eldest surviving son of late Mr. Yesufu Giwa-Osagie inherited the main house at No.6 Ugbague Street, Benin City from his father, a Moslem, the 1st Mogaji of Benin Kingdom under the benin Native Law on the 22nd day of October, 1943 vide Exhibit “D”. The entire main house and appurtenances was known and called No.6, Ugbague Street, Benin City. Late Pa Saliu Aghama Giwa Osagie later in his life time developed two bungalows known as No. 6A and 6B Ugbague Street, Benin City within the premises known and called No.6 Ugbague Street, Benin City. He thereafter lived and died in No. 6A, Ugbague Street, Benin City on the 17th day of January, 1994. He was a Moslem and a Benin man. Prior to his death, he made a transfer of the building he inherited as Igiogbe known as NO.6 Ugbague Street to his eldest son, the 1st Respondent by a deed registered BG & R 7103 on 17th August, 1987. He had also made a deed transferring the building where he lived and died No. 6A Ugbague Street to the Appellant. The deed was registered as BDSR 8063 dated 19/5/88 registered on 7/11/88. The 1st Respondent prevented the Appellant from taking possession of No. 6A Ugbague.

The Appellant who is the 2nd son of late Pa Saliu Aghama Giwa Osagie made the case at the lower court that his father gave him the house where he lived, died and was buried known and called No. 6A, Ugbague Street, Benin City. The Appellant relied on the gift intervivos of the house known as No. 6A, Ugbague Street, Benin City where his father lived and died vide Exhibit 5.

The 1st Respondent, Alhaji R. O. V. Osagie who is the present Mogaji 11 of Benin Moslems, thereby succeeding his grand father late Pa Yesufu Giwa Osagie as Mogaji of Benin Moslems, had challenged by counter-claim the purported gift inter-vivos evidenced by Exhibit 5, on the ground that No.6A, an Igiogbe, that is the house where his father Pa Saliu Aghama Giwa Osagie lived and died, automatically devolved on him, as the eldest surviving male child under Bini Native Law and Custom, despite the purported gift intervivos to the Appellant, a second son.

The Appellant claimed at the lower court the following reliefs:-

(a) A declaration that the said gift of No. 6A, Ugbague Street, Benin City made by Plaintiffs father late Pa S. Giwa-Osagie to Plaintiff intervivos is valid.

(b) A declaration that the Plaintiff is the person entitled to a Statutory Right of Occupancy over the property known as No. 6A, Ugbague Street, Benin City as evidenced by BDSR 8063 of 28/8/88 and registered as 16/16/BIII at the Lands Registry, Benin City.

(c) A declaration that the Certificate of Occupancy No. BDSR 8063 dated 28/8/88 and registered as instrument No. 16/16/BIII, Benin City granted to Plaintiff by the Military Governor of Edo State is valid.

(d) A declaration that No. 6A Ugbague Street, Benin City was not part of the late Pa Saliu Aghama Giwa-Osagie Igiogbe at his death.

(e) An order of Perpetual Injunction restraining the Defendants, their servants and/or agents from trespassing upon and disturbing Plaintiff’s peaceful ownership and possession of the said property known as No. 6A, Ugbague Street, Benin City and covered by a Certificate of Occupancy No. BDSR 8063 dated 28/8/88 and registered as instrument No. 16/16/BIII, Benin City.

(f) A declaration that Pa Saliu Aghama Giwa-Osagie lived, died and was buried as a Moslem and his Estate is governed by Moslem Law of inheritance which does not recognize Igiogbe.”

The trial court agreed with the Respondents’ view that the 1st Respondent as the eldest surviving male child of late Pa Saliu Aghama Giwa Osagie is automatically entitled to the house where his father lived and died. This is known as “Igiogbe” under Bini Native Law and Custom. The court held that a Bini man could not make a gift of the Igiogbe intervivos. The court also dismissed the counter claim of the Respondents because the 1st Respondent as the eldest son had not performed the “Ukpomwan” 2nd burial, and no action can be brought by him on the estate of the deceased until that had been done.