➥ CASE SUMMARY OF:
Joseph Osemwegie Idehen & Ors. v. George Otutu Idehen & Ors. (1991) – SC
by PipAr Chima
Supreme Court – SC. 271/1989
➥ JUDGEMENT DELIVERED ON:
Tuesday, July 9, 1991
➥ AREA(S) OF LAW
Inheritance – Igiogbe.
➥ NOTABLE DICTA
⦿ MEANING OF SUBJECT TO ANY CUSTOMARY LAW IN WILLS LAW
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 the extent, if any, to which its exercise is permissible under the relevant customary law. – Bello CJN.
⦿ STATUTE SHOULD BE READ AS A WHOLE
It is important in the construction of a provision to read the statute as a whole. Such a method of construction enables an interpretation which brings into focus related sections which are complementary. – Karibi-whyte JSC.
⦿ MARGINAL NOTE IS HELPFUL IN CONSTRUCTION OF A SECTION
Although the marginal note in a section is not part of the section, it is helpful even if occasionally misleading to construction, as a sign post to what the section sets out to provide. – Karibi-whyte JSC.
⦿ IGIOGBE IS FOR THE ELDEST SON
It is important to bear in mind that apart from these two houses which formed the “Igiogbe,” the other devices were valid. In Benin customary law, the Igiogbe could not under any circumstance be given away as a gift, it must be left for the eldest male child. At his death, the testator is entitled, under Benin customary law, to devise all his property except “Igiogbe”; thus “Igiogbe” would at his death no longer be his to give away. – Belgore JSC.
Joseph Osemwegie Idehen & Ors.
George Otutu Idehen & Ors.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Chief Williams, SAN.
⦿ FOR THE RESPONDENT
Dr. Mudiaga Odje, SAN.
➥ CASE HISTORY
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 this 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.
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.
➥ ISSUE(S) & RESOLUTION
[APPEAL: SUCCEEDS, IN PART]
I. Whether the phrase ‘Subject to any Customary Law relating thereto’ occurring in section 3(1) of the Wills Law of Bendel State is a qualification of the testator’s capacity to make a Will or whether it is no more than a qualification of the subject matter of the property disposed of or intended to be disposed of under the Will?
I.A. I am unable to accept the submission of Chief Williams that Oke v. Oke (supra) was decided per incuriam. In my view the High Court was right, when, following the decision of this court in Oke v. Oke (supra), declared the devise of the testator’s Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first respondent in accordance with Benin Customary Law, and so was the Court of Appeal in confirming the award. The appellants’ appeal against this part of the judgment of the Court of Appeal therefore fails and it is accordingly dismissed.
I.B. In the first place it was serious misdirection on the part of the learned Justice of the Court of Appeal to say that the trial Chief Judge declared the will void as there is nothing on the record to support such a finding. Secondly under the Wills Law, a devise or bequest can only be declared void if it contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘D’ did. There is not a scrap of evidence to support a finding that any of the other remaining devises and bequests were in conflict with any particular rule of Benin customary law. In my view the Court of Appeal was in error when it declared the testator’s will void. Accordingly the appellants’ appeal against this part of the judgment of the court of Appeal succeeds and it is hereby allowed. That part of the judgment of the Court of Appeal declaring the testator’s Will null and void is hereby set aside and so are the consequential orders contained therein. The judgment of High Court which was delivered on 25th day of May, 1985 is hereby restored.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
MEANING OF “SUBJECT TO”
Megarry J in Clerk Ltd. v. Inland Revenue Commissioners (1973) 2 All E.R.513 at 520: “The phrase ‘subject to’ is a simple provision which merely subjects the provisions of the subject subsection to the provisions of the master subsections. Where there is no clash, the phrase does nothing; if there is collision the phrase shows what is to prevail.”
➥ REFERENCED (OTHERS)