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CaseLaw

Ovenseri V. Osigiede (1998) CLR 10(p) (SC)

Brief

  • Representative action
  • Bini native law and custom
  • S.16 COA Act
  • Order of court
  • Variation or amendment of judgement

Facts

The respondents instituted the action which led to this appeal at the High Court where they sued the appellants and claimed as follows:-

  • a
    A declaration that the house, land, premises situate at or being generally known or referred to as No. 7 Benin/Ifon road, Uselu Quarters, Benin City particulars delineated in pink on plan No. MG 252/75 is the family property of Joel Idada Osagiede family. Benin City until the second burial ceremony of the Joel Idada Osagiede and subsequent distribution of the estate of the latter are performed in accordance with Bini customary law and that the sale or purported sale of the said property by the 1st defendant to the 2nd defendant is completely void and of no effect.
  • b
    An order of court setting aside the said sale or purported sale of the said property by the 1st defendant to the 2nd defendant or in the alternative declaring the sale of the said landed property as null and void.
  • c
    A perpetual injunction restraining the defendants, their servants, agents and privies from entering and/or in any way intermeddling with the said property in any manner inconsistent with the interests of the plaintiffs”.

The first respondent, Ojo Osagiede, is the Okaegbe (head of family) of Osagiede family of Uselu Quarters, Benin and he was the senior brother of late Joel Idada Osagiede, the father of the second respondent, Reuben Idada Osagiede. The first appellant Jacob Ovenseri, alias Jacob Idada Osagiede, claimed he was the eldest child of the late Joel Idada Osagiede and senior brother of the second respondent (both being of the same mother) but the second respondent claimed he (the first appellant had a different father in that his mother (first witness of the respondent) carried his pregnancy to the late Joel Idada’s house on marriage as a result of post nuptial clandestine sexual intercourse with a soldier from Ondo.

The respondents in evidence based on their pleading contend that the second respondent was the elder child of the deceased, Joel Idada Osagiede and that the first appellant was his step son. P.W.1 Elizabeth Idada said so much also in her evidence as did the 1st respondent, the elder brother of the deceased. Copious evidence was given by the respondents of Bini native law and custom as to the administration of the estate of a deceased person. According to them, when a man dies he has what is called first burial. After this all his children take charge of the estate pending the second burial. The eldest son performs the second burial and it is after this that his eldest son succeeds to his usual abode in his life time, the “Igiogbe”. It seems there is no time limit to the performance of this second burial. The second respondent testified that he lived in Lagos all the time but as the first appellant was disposing of certain parts of the land in dispute, he never raised any protest because P.W. 1, their mother appealed to him to overlook it. It was when the place of abode of their father was being sold to the second appellant, a complete stranger to the family that he had to sue together with his uncle, the first respondent.

The trial court found that by Bini native law and custom; the 1st respondent could not join the 2nd respondent in administering the estate and neither could he jointly act as plaintiff. As the second burial had not taken place, the estate could not vest. It then dismissed the claim.

On appeal to the Court of Appeal, the decision of the High Court dismissing the respondents claim was set aside and, in substitution thereof, an order striking out the suit was entered. The appellants were dissatisfied and they appealed to the Supreme Court.

Issues

Whether, in all the circumstances of the case, the Court of Appeal was right to...

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