I shall come to the case law later in the course of this Judgment. However, the Appellant’s claim against the Respondents at the trial High Court Benin City wherein he was the Plaintiff as has been elaborately set out earlier, was for a declaration, among other things, that the will of his father is invalid null and void and of no effect whatsoever because it failed to comply with the Bini Customary Law of succession and Section 3(1) of the will Law Cap 172 and that the purported bequest under the said will is contrary to Bini Native Law and Custom and it is therefore null and void. It is also worthy to note that the learned trial Judge in a considered Judgment granted some of the important reliefs sought in the following terms.

“The Plaintiff is entitled to the orders sought in paragraph 17(a), (b) and (c) of the Amended Statement of Claim with relevant modifications and it is hereby declared as follows:

1. That the Plaintiff as the eldest son of the deceased is entitled under BINI Customary Law of inheritance to inherit the house at No. 4 Ohuoba Street where the deceased lived and died (otherwise known as the lgiogbe).

(i) That the devices in the will of the deceased dated June 1975 as it relates to the house at No. 4 Ohuoba Street, Benin City declared in this Judgment as the lgiogbe, is null and void having contravened the Bini Customary Law of inheritance and Section 3 (1) of the Wills Law Cap. 172 Laws of Bendel State applicable in Edo State.

(ii) That under Bini Customary Law the lgiogbe cannot be shared to any person other than the deceased’s eldest surviving son (in this case, the Plaintiff) and consequently the purported devise of the house No. 4 Ohuoba Street, Benin City by the deceased in his said Will to Henry N. E. Uwaifo, Ayanbueze E. Uwaifo, Egbenodenden E. Uwaifo and Nobunse E. Uwaifo are null and void and of no effect whatsoever.”

Again, the lower court (Court Appeal Benin) affirmed the entire decision of the lower trial court. I am obliged to set out the conclusion reached in that decision on pp. 238 – 239 of the Records thus:

“The entire Will cannot therefore be voided simply because the lgiogbe was bequeathed to someone else. In this case, the deceased had bequeathed his property, including the lgiogbe to other beneficiaries in his Will (Exhibit A).

As the learned trial Judge rightly observed, there is no customary law against devising the lgiogbe by WILL to the rightful beneficiary viz. the first surviving son but it is against Bini Customary Law to disinherit the eldest son of the lgiogbe as was done in this case or to share it to others. Consequently, she held and I agree with her that the Appellant was entitled to the Declaration she made that the WILL is invalid only to the extent that house No. 4 Ohuoba Street, declared as the lgiogbe, was devised to persons other than him; and that the entire WILL cannot be voided on the sole ground that the lgiogbe was so devised. That is the correct statement of the law on this issue. Since the custom of the Bini people prevent a Testator from devising his lgiogbe to any other person other than his eldest son, to that extent, Pa Daniel Ediagbonya Uwaifo’s WILL is invalid. As Belgore JSC pointed out in ldehen V. ldehen (supra), at his death, the lgiogbe was no longer his to give away. However, the WILL is not invalid in its entirety – See: Lawal – Osula V. Lawal – Osula (supra), where he, Belgore JSC, also held that the other parts of the WILL could be saved, which is what the learned trial Judge so ably did in this case. I agree with the Respondents that she arrived at a correct decision in this case. I must commend her for the deft manner in which she applied the numerous authorities cited to the case at hand.”

As earlier stated the Judgment of the lower court set out above is being faulted on the ground that that court failed to follow its earlier decision in IGBINOBA V. IGBINOBA (supra). Learned Counsel for the first – ninth Respondents in their brief has set out two subsidiary issues which will conveniently determine the sole issue raised in the appeal. These subsidiary questions are:

(a) Did the Court of Appeal in IGBINOBA V. IGBINOBA (supra) decide that under Bini Customary Law, vacant land can also constitute lgiogbe?

(b) Can the Court of Appeal still follow its earlier decision on a point which had been overruled by the Supreme Court under the doctrine of stare decisis?

Considering the first leg of the sub issue, I must straightaway say that the Court of Appeal did not decide in IGBINOBA V. IGBINOBA (supra) that vacant land also constitutes lgiogbe under Benin Customary Law. The court decided that neither testamentary disposition nor family arrangement can deprive the eldest surviving son of lgiogbe. It would appear (and I agree with the learned counsel for the Respondents) that the Appellant herein at the trial court, in his address at page 150 of the Record had erroneously ascribed to the Court of Appeal in the case of (IGBINOBA V. IGBINOBA) what the trial Judge (Obi J.) said, In other words he sought to substitute what Obi J. said for what the Court of Appeal per Joseph D. Ogundere JCA actually said. Since the Appellant has placed great reliance on this case there is need to put the Records straight, and resist the temptation of quoting the learned Justice, who read the leading Judgment in that case, out of context. Appellant quoted copiously in his brief at pages 5 – 6, what the trial Justice Obi said in lgbinoba’s case. The findings made by the said trial Judge which Ogundere JCA reproduced at pages 377-378 of the report read as follows:

“It is acknowledged that as the eldest surviving son of his father the Plaintiff is entitled under Bini Native Law and Custom, to inheritance of the said house or lgiogbe, but the sharing carried out by the family seemed to have circumscribed his ownership of it, but two important qualifications which had the effect of derogating from his absolute ownership of it and this has resulted in the trouble between the parties …”

The “derogations” Obi J. referred to were the two rooms in the lgiogbe shared to the second son and the adjoining vacant land also shared to the second son. At page 9 of his brief of argument, the Appellant reproduced the final order of the trial Court, in IGINOBA V. IGBINOBA (supra). However it is observed that when the Appellant wanted to quote Ogundare JGA’s reaction to Obi J’s observations; he stopped short of what the said Ogundare actually said. At page 380 F, this is what he said:

“In short the whole appeal is on the relevant Bini Customary Law of succession and the right of first surviving male child thereunder.”

At page 381 C – D he continued:

 “I have deep thought and consideration to the Record of Proceedings in the court below as well as the briefs of the parties. The two parties talked about one address, the defendant/appellant and his witnesses did not say that there was any empty land of the deceased outside No. 139, Lagos Street.

The argument therefore goes to no issue. My task has been simplified by the Supreme Court decision in ldehen V. ldehen which established beyond peradventure that neither testamentary deposition, much less family elders arrangement, can deprive the eldest surviving son of the lgiogbe, the house in which his deceased father lived and died. The Supreme Court cited with approval its earlier decision in Arase V. Arase (1981) 5 SC. 33; Oke V. Oke (1974) 3 SC 1; Olowu V. Olowu (1985) 3 NWLR (pt. 13) 372.”

It is to be noted that from the above passage, it is quite clear that “vacant land” was not an issue considered by the Court of Appeal, Benin in IGBINOBA case (supra). Since it was not an issue before that court, it did not pronounce on the point. I agree with the learned counsel for the Appellant that the subsequent Court of Appeal decisions could not be expected to rely on its past decisions on a point not earlier pronounced upon. What the Court of Appeal did in the case was simply to follow the earlier well established decisions beginning from Arase V Arase (1981) NSC 101; 5 SC 33; ldehen V. ldehen (1991). The Court of Appeal in IGBINOBA V. IGBINOBA (supra) did not go beyond the established law that no one can derogate from the eldest son’s exclusive title to his father’s lgiogbe upon final rites of “UKONWEN”.

In Bini Native Law and Custom, an lgiogbe is general application and it is judicially noticed as such. See EGHAREVBA V. OKUNGHAE (2001) 11 NWLR (Pt. 724) 318; Lawal- Osula V Lawal – Osula (1995) I NWLR (Pt. 544) 20, AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (Pt.454) 30 and IMADE V. OTABOR (1998) 4 NWLR (Pt. 544) 20.

Notably, the most recent of all cases on the vexed question of lgiogbe is OGBANON V. REGISTERED TRUSTEES CCC. CA (2002) 1 NWLR (Pt. 749) 675; though a decision of the Court of Appeal, it has helped further to throw light on the point. The court held at page 713 thus:

“Under Benin Native Law and Custom, the eldest son of a deceased person or testator is entitled to inherit without question the house or houses known as “lgiogbe” in which the deceased/testator lived and died…..”

These plethoras of authorities have left no one in doubt that lgiogbe in Benin Customary Law is a principal house where a deceased Benin man lived and died. This is an ancestral home. It is not vacant land whether or not adjacent.

It was a very grave error for the Appellant to have taken Justice Obi’s dictum in lgbinobia’s case and ascribe it as the view of the Court of Appeal, on which the panel which heard the instant appeal at the Court of Appeal would have relied. The doctrine of stare decisis does not operate in this manner. It would be invidious for the Appellant to expect the Court of Appeal to rely and follow what a Judge in the High Court said in preference to what another Judge said yet in the appellate court. The Appellant cannot expect the Court of Appeal in this case to have followed a non-existent dictum and/or ratio in another Court of Appeal case (i.e. IGBINOBA’s case).

It is my firm view, therefore that the entire will of the Appellant’s late father. Pa Daniel Ediagbonya Uwaifo, who lived and died and was buried as a Bini man, cannot be voided simply because the “lgiogbe” was bequeathed to someone else’ In this case, the deceased had bequeathed his property including the “lgiogbe” to other beneficiaries in his will (Exhibit A.). As the learned trial Judge had rightly observed, and I agree, there is no customary law against devising the lgiogbe by Will to the rightful beneficiary, that is, the first surviving son, but it is against Bini Customary Law to disinherit the eldest son of the ldiogbe as was done in this case or to share it to others. In view of this the learned trial Judge rightly held that the Will is invalid only to the extent that House No. 4 Ohuoba Street, declared as the lgiogbe was devised to persons other than the Appellant; and the entire Will cannot be voided on the sole ground that the lgiogbe was so devised. As long as the Custom of Bini people prevent a Testator from devising his lgiogbe to any other person other than his eldest son, to that extent the Will of Pa Daniel Ediagbonya is invalid. However, the deceased’s Will is not invalid in its entirety. The other parts of the Will could be “saved” which is what the learned trial Chief Judge did in this case. See: IDEHEN V IDEHEN (supra) and LAWAL-OSULA V. LAWAL OSULA (supra).

In conclusion, I am of the firm view that this appeal is lacking in merit and I therefore dismiss it. I accordingly affirm the decision of the Court below which upheld the decision of the trial court. I make no order as to costs in the circumstance of this case.

I. T. MUHAMMAD. JSC:- I have read before now the judgment just delivered by my learned brother Galadima, JSC. I agree with his reasoning and conclusion that the appeal lacks merit. l, too, dismiss the appeal. I abide by all consequential orders made in the lead judgment.

CLARA BATA OGUNBIYI, JSC:- I read in draft the lead judgment just delivered by my learned brother Galadima, JSC and I agree that the appeal at hand is devoid of any merit; I also dismiss same in like terms of the lead judgment. Just to put in a few words of mine, I wish to add that the attempt in this case is to vary the course of an existing and long standing custom which had passed down from generation to generation and as a result had been accorded statutory recognition. In other words, the practice of a Bini customary law which gives the eldest son the prerogative to inherit the “Igiogbe” has not changed from time immemorial.

Under Benin Native Land and Custom, lgiogbe mean a principal house where a deceased Benin man lived and died; the right to inherit and possess such property vests only in the eldest son. The tradition tokes precedent over and above the wishes of o deceased father no matter how strong he feels against his son as the prospective heir. It is a right vested in the eldest son and which cannot be divested by means of disinheritance.

The entire claim revolves around section 3(1) of the Wills Low of Bendel State of Nigeria l9Z6 which is still applicable in Edo State. By the use of the phrase “subject to any customary law relating thereto,” In the section, is a confirmation of a statutory backing and recognition which is given to the prevailing custom to operate within its area of application.

For all intent and purpose and on a composite reading of the Wills Law in conjunction with the Benin customary law, the contested will is only void to the extent of the deceased father disinheriting the appellant to the Igiogbe; it is his right and he therefore must be allowed to inherit and enjoy same. The deceased father in bequeathing the Igiogbe along with his other properties for purpose of disinheriting the appellant is in violation of the Bini customary Law. The will as rightly held by the trial court and affirmed by the lower court is invalid to the extent of its affecting the lgiogbe only and not the totality of the properties.

In the result, I am in complete agreement with my learned brother Galadima JSC that the appeal locks merit and is hereby also dismissed by me. I further abide by other orders made in the lead judgment inclusive of costs.

STANLEY SHENKO ALAGOA, JSC:- I read before now in draft the lead judgment of my learned brother Suleiman Galadima, JSC which has just been delivered and I agree with the reasoning and the conclusion arrived at.

I however wish to chip in this little bit of mine by way of contribution. There appeared to have been no love lost between the Appellant who was Plaintiff in the High court and his late father Pa Daniel Ediagbonya Uwaifo as a result of which the Appellant was disinherited in his father’s Will which was tendered in the High court as exhibit “ A’,. This disinheritance was total and included the house at No.4 Ohuoba Street,Benin City where the deceased testator had lived and died.

Applicant instituted action in the High Court’ seeking the nullification of the will. Under Bini Native Law and custom, the house where a deceased lived and died is referred to as the “IGIOGBE.” No. 4 Ohuoba Street, Benin City was held by the learned trial Judge to be such “IGIOGBE” and by Bini (Benin) Native Law and Custom and Section 3(1) of the Wills Law Cap. 172, Laws of Bendel State 1976 applicable in Edo State and therefore to Benin, the Appellant, as the surviving first son of the deceased was entitled to inherit No. 4 Ohuoba Street irrespective of any testamentary disposition to the contrary’ Section 3 (1) of the wills Law which is quite explicit on this point reads thus, “subject to any customary law relating thereto’ it shall be lawful for every Person to devise, bequeath or dispose of by his will executed in manner hereinafter required all real estate and all personal estate which he shall be entitled to either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him or if he became entitled by decent of his ancestor or upon his executor or administrator’”

By this provision of the Wills Law, it is clear that the Wills Law is not against disposition of property by will provided that with respect to the “IGIOGBE” such disposition enures to the benefit of the first surviving son of the deceased testator. See IDEHEN v. IDEHEN (1991) 5 LRCN 1590; OKE v. OKE (1947) 3 SC 1; ARASE v. ARASE (1981) 5 SC 33.

The learned trial Judge’s refusal to declare the will invalid and to have held that the Appellant is entitled to a declaration that the will is invalid only to the extent that No. 4 Ohuoba street where the deceased Pa Uwaifo lived and died otherwise known as his “IGIOGBE” which was devised to other Persons than the Appellant and which position found favour with the Court below is sound and represents the law’

The Appellant’s contention that the “IGIOGBE” consisted also of other vacant adjoining land does not represent the position of the law and was certainly not the Pronouncement of the court in IGBINOBA V. IGBINOBA (1995) 1 NWLR PART 3L7 at 375. That case if properly read, did not decide the issue of vacant land as it pertains to “IGIOGBE” in Benin Customary Law’

It is for these reasons and the fuller reasons given in the lead judgment of my brother that I too find no merit in the appeal and dismiss same. Parties are to bear their own costs.

Representation:

S. lredia Osifo Esq’, for the Appellant.

Chief Osaheni Uzamere, Esq, for 1st – 9th Respondents.

F. I. Monyei, (Mrs), (Deputy Director, Ministry of Justice Edo State)’ with F. N. Edokpolor (Mrs), (Principal State Counsel, Ministry of Justice, Edo State), for 10th Respondent.