IDEHEN v. IDEHEN (1991) 1 LRLR Vol 2 112
Citation
(1991) 1 LRLR Vol 2 112
Alternative Citation
(1991) 6 NWLR (Pt. 98) 382
FACTS OF THE CASE
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.
HELD
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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