IDEHEN v. IDEHEN (1991) 1 LRLR Vol 2 112

(1991) 1 LRLR Vol 2 112
Alternative Citation
(1991) 6 NWLR (Pt. 98) 382
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 his 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:
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.
At the trial, the 1st plaintiff gave evidence and called four other witnesses who testified in support of his claims. The 1st defendant also gave evidence in his defence and called six other witnesses who testified in his support.
The trial court held that “A declaration that in accordance with Bini Customary Law of succession, the 1st plaintiff as the eldest surviving son of the Iserhienrhien (Deceased) succeeds exclusively 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. For the avoidance of doubt it is ordered that the first plaintiff is entitled to hold these houses and/or properties in trust for himself pending such time as he may perform any second burial ceremonies as may be required and after which customary title to the said properties will vest in him absolutely.”
Dissatisfied with the judgment of the learned trial Chief Judge, both the plaintiffs and the defendants appealed to the Court of Appeal.
In the Court of Appeal, both parties filed briefs of argument and after due consideration of all the issues raised by both parties for determination in that court, the court by a majority decision, allowed the plaintiffs’ appeal and dismissed the cross-appeal filed by the defendants.
The case went on appeal to the Supreme Court and the decision of the trial court was affirmed. In the judgment of the Supreme Court, Elias, C.J.N. while interpreting the words of Section 3(1) of the Wills Law stated as follows:
“It is not to be supposed that section 3(1) of the Wills Law can confer upon a testator the testamentary capacity to device property by Will which the testator would not otherwise have. The introductory phrase subject to any customary law relating thereto necessarily makes the power given to a testator under the subsection dependent upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estates by Will is limited by extent, if any to which its exercise is permissible under the relevant customary law.”
The Supreme Court further stated that the above passage clearly lends support to the appellants’ contention that the opening words of the section are intended to relate to the subject matter of the devise. In fact all that happened in Oke v. Oke as was explained by Obaseki, J.S.C. in Olowu v. Olowu (1985) NMLR 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant applicable customary law. Thus, the expression “subject to customary law relating thereto could not have been intended to qualify the testamentary capacity so unambiguously conferred on every Bini citizen by section 3(1) of the Wills Law. It is only subject to any customary law affecting the property to be disposed of. That being the case, the Supreme Court was unable to accept the submission of Chief Williams that Oke v. Oke was decided per incuriam.
The Supreme Court also partly allowed the appeal. The Court of Appeal erred in law in declaring the Will in its entirety null and void. Accordingly, that part of the judgment is set aside. However, that part of the judgment relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored.
The appeal was allowed

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