IYAMUSE EHIGIE (APPELLANT)

v.

GREGORY EHIGIE (RESPONDENT)

(1961) All N.L.R. 871

Appeal from Customary Court.

The respondent had brought an action in the Grade "A" Customary Court, Benin City, against the appellant for a declaration that he was the owner of the property situate at No. 1 Ibiwe Street, Benin City; alternatively, he sought a declaration that he was entitled to the property as against the defendant according to customary law. The appellant and the respondent are two of the children of one Ehigie Edise; the respondent being the eldest son, and the appellant the eldest daughter of Edise, who died intestate in June 1955. The respondent adduced evidence that after the burial of Edise, in accordance with the customary rites required to be performed by the eldest surviving son under the Benin Customary Law, he summoned his brothers and sisters to a family meeting and distributed the property left by Edise including the property at No. 1 Ibiwe Street, Benin City, which formed part of his own share; that the appellant being dissatisfied with the share she had received, moved into the property in May 1956 and had since been in possession, claiming the property to be hers. No evidence was led to establish the Benin Customary Law of Succession.

The President entered Judgment in favour of the respondent, finding that the property belonged to Edise, and that on his death, it passed to the respondent. He went on to say that it was a fundamental principle of Benin Customary Law of Succession that the eldest surviving male child of the deceased, who performed all the customary funeral ceremonies, should inherit all his properties, except such as his father gave away before his death; that no child other than the eldest surviving male child of the deceased who had performed the funeral ceremonies had a right of inheritance.

There was nothing in the record to show whether the court sat with assessors or not.

The appellant appealed alleging:-

(1) that the learned President was wrong in coming to his decision as he failed to seek the advice of the assessors in a matter of customary law involving inheritance;

(2) that as the customary law is not written law, there is no evidence of customary law before the learned President upon which the learned President arrived at his decision;

(3) that the learned President misdirected himself by saying in his Judgment that, after the conclusion of the customary funeral ceremonies the plaintiff summoned his brothers and sisters to a family meeting and with the assistance of some of his uncles and aunts the properties, including the property in dispute, left by his father, were distributed;

(4) that in the absence of uncles and aunts the distribution of the properties of the late plaintiff and defendant's father was null and void according to the general customary law.

On Appeal:

HELD:

(1) A customary law which has not been so frequently before the courts as to be "well established and notorious" should be proved by evidence before a Grade "A" Customary Court; since the only qualification of a President of such a court is that he be a legal practitioner, and since there is no requirement that he be a native, or have any special qualification in the Customary Law of the area of his jurisdiction.

(2) The advice of assessors should be sought by a Customary Court only in cases where the court sits with them.

Appeal allowed: Retrial ordered.

Cases referred to:-

Buraimo v. Gbamgboye, 15 N.L.R. 139.

Adedibu v. Adewoyin and anor., 13 W.A.C.A. 191.

Ababio II v. Nsemfoo, 12 W.A.C.A. 127.

Kobina Angu v. Cudjoe Attah, (1874-1928) Gold Coast Reports (P.C.).

Law and Ordinance referred to:-

W.R. Customary Courts Law, W.R. Cap. 31, sections 2, 6(1), 7(3), 19, 20, 55.

Evidence Ordinance, Cap. 62, sections 1(4), 14, 58.

APPEAL from Customary Court.

Fregene for the Appellant.

Boyo for the Respondent.

Fatayi Williams, J.:-This is an appeal from a Judgment of the President of the Grade "A" Customary Court, Benin City, in which the respondent claimed:-

(a) a declaration that he is the owner of the house and landed property commonly known and described as No. 1, Ibiwe Street, Benin City; and

(b) in the alternative, a declaration that he is entitled to the said house and property as against the defendant according to customary law.

The learned President after hearing evidence entered Judgment for the respondent, and the appellant has appealed, filing the following grounds in support of his contention:-

(1) that the learned President was wrong in coming to his decision as he failed to seek the advice of the assessors in a matter of customary law involving inheritance;

(2) that as the customary law is not written law, there is no evidence of customary law before the learned President upon which the learned President arrived at his decision;

(3) that the learned President misdirected himself by saying in his Judgment that, after the conclusion of the customary funeral ceremonies, the plaintiff summoned his brothers and sisters to a family meeting and with the assistance of some of his uncles and aunts the properties including the property in dispute left by his late father were distributed;

(4) that in the absence of uncles and aunts the distribution of the properties of the late plaintiff and defendant's father was null and void according to the general customary law.

Before considering the grounds of appeal, I think it is essential to state as briefly as may be consistent with clarity the facts of the case.

Both the appellant and the respondent are children of the same father, one Ehigie Edise, a native of Benin who died on 3rd June, 1955. The respondent is the eldest son of Ehigie Edise and the appellant the eldest daughter.

The said Ehigie Edise was duly buried in accordance with the customary rites required to be performed by the eldest surviving son under the Benin customary law. After the end of the funeral ceremonies, the respondent summoned his brothers and sisters to a family meeting at which he distributed the properties left by his late father, both real and personal, including the property in dispute which formed part of the share of the respondent. Being dissatisfied with the share she received because it did not include a house, the appellant moved into the property in dispute in May 1956. Since then she has remained in possession and claims the property as her own on the ground that her late father built the house for her to inherit from her uncle by name Asiriuwa on the death of the said uncle.

The learned President found as a fact, and quite rightly in my view, that the property in dispute belonged to the late Ehigie Edise. He also found as a matter of law that on his death, the property passed to the respondent as the eldest surviving son and based his finding on Benin customary law of inheritance which he described as follows:-

It is an admitted fact that the plaintiff is the eldest surviving male child of Ehigie Edise (Deceased). It is one of the fundamental principles of Benin customary law of succession that the eldest surviving male child of a deceased person who performs all the customary funeral ceremonies at the burial of his deceased father succeeds his deceased father as heir and inherits his properties except that which he gave away before his death. If the eldest surviving male child dies without performing the customary funeral ceremonies for his deceased father's burial, the right of inheritance passes on to the next junior brother who performs the ceremonies. It is only in the absence of male issues that the right passes on to female issues. However, whenever the deceased leaves a lot of property, it is usual practice for the eldest male child who performs the funeral ceremonies to call his uncles and aunts to a meeting and give his brothers and sisters who have made satisfactory substantial contribution to the burial some share of the property. He has a discretion in the mater. No child other than the eldest surviving male child of a deceased person who has performed the funeral ceremonies has right of inheritance.

The share that the brothers and sisters receive are gifts from their eldest brother. Title to all the properties of the deceased passes by operation of law on the conclusion of the funeral ceremonies to the eldest surviving son. The responsibilities for the care of the household and upbringing of the younger children of the deceased also pass to the eldest surviving son, until they are of age. His position becomes that of the father of the family.

It is relevant at this point to note that no evidence was led before the learned President by either party to the dispute as to what is the Benin customary law of inheritance.

In arguing the first ground of appeal, Counsel for the appellant submitted that it was wrong for the President not to have sought the advice of his assessors on a matter of customary law involving inheritance. This ground of appeal is, in my view, misconceived. There is nothing in the record of proceedings to indicate that the learned President sat with assessors when he heard the case. If he did not sit with assessors, how could he be expected to seek their advice? It seems to me that the advice of assessors should only be sought if the customary court sat with assessors. I derive support for this view from the provisions of subsection (3) of section 7 of the Customary Courts Law (Cap. 31 of the Laws of Western Nigeria) which states as follows:-

(3)     Where a customary court sits with assessors the assessors shall act in an advisory capacity and shall have no vote in the decision of the court.

For the above reasons, the first ground of appeal fails.

With regard to the second ground of appeal, the point which calls for determination is whether, in the absence of any decided case showing that the Benin customary law of inheritance is well established, the learned President of the Grade "A" Customary Court can be presumed to know the Benin customary law of inheritance, and can therefore decide the legal issue without any evidence from either party to the dispute as to what is the Benin customary law of inheritance. Before coming to a conclusion one way or another, I think it will be a useful exercise to compare and contrast the position in the High Court and Magistrates Court.

Section 14 of the Evidence Ordinance (Cap. 62 of the Laws of the Federation of Nigeria and Lagos) provides as follows:-

14.     (1)     A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie upon the person alleging its existence.

(2)     A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.

(3)     Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them: Provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.

The word "custom" is defined in section 2 as a rule which, in a particular district, has, from long usage, obtained the force of law.

It is also provided in section 58 of the Ordinance (Cap. 62) as follows:-

58.     In deciding questions of native law and custom the opinions of native chiefs or other persons having special knowledge of native law and custom and any book or manuscript recognized by natives as a legal authority are relevant.

In Buraimo v. Gbamgboye, 15 N.L.R. at 139 which was decided on 17th December, 1940, it was held in connection with a case heard in the Supreme Court (now High Court) that it is unnecessary to bring evidence to prove particular customs which have been so frequently before the courts as to be well established and notorious.