AIGUOKUNRUEGHIAN V. IMARUGHERU (2015)

Background

This appeal arose from a dispute over the ownership of a house at No. 32 Agbado Street, Benin City, formerly No. 28 Agbado Street. The property belonged to Pa Imarugheru Evbowe, a Benin man who died on 2 June 1982. In his Will, dated 16 August 1978, he devised his dwelling house and adjoining unbuilt land to his eldest son, Aiguokunrueghian Imarhuaegheru, who was the father of the 1st to 3rd appellants.

Under Benin customary law, the principal house in which a deceased person lived and died is known as the Igiogbe. Ordinarily, it devolves upon the eldest surviving son, but customary burial rites must be performed before the son is fully vested with the property. The testator’s eldest son survived him and led the first burial ceremony. He, however, died before performing the second and final burial rites, including the ceremony known as Ukpomwen. The 1st respondent, who became the eldest surviving son, subsequently performed the final rites and claimed the Igiogbe.

The appellants argued that their father had acquired the property under the Will, that he had made preparations for the final burial rites, and that the respondents’ alleged refusal to cooperate prevented him from completing them. The respondents maintained that the Will could not defeat the rules of Benin customary succession. The High Court entered judgment for the respondents, and the appellants appealed.

Issues

1. Whether a Will devising the Igiogbe to the testator’s eldest son could be disregarded when that son died without performing the second and final burial rites.
2. Whether the adjoining unbuilt land formed part of the Igiogbe and therefore passed to the 1st respondent.
3. Whether the appellants could rely on the equitable principle that a party should not benefit from his own wrong.
4. Whether the trial court was entitled to order an account and payment of rents when the precise order to pay was not expressly claimed.

Ratio Decidendi

The Court of Appeal held that section 3(1) of the Wills Law of Bendel State, 1976, still applicable in Edo State, permits testamentary dispositions only subject to applicable customary law. A Benin testator may devise an Igiogbe by Will to the rightful beneficiary, namely the eldest surviving son, but cannot use a Will to disinherit that customary heir or transfer the Igiogbe to another person.

The Court further held that the Igiogbe does not become fully vested in the eldest son until the second and final burial rites and the Ukpomwen ceremony have been performed. Since the testator’s eldest son died before completing those rites, the property did not vest in him or in his children. Upon his death, the 1st respondent, as the eldest surviving son, performed the required rites and thereby became entitled to the Igiogbe.

Court Findings

The court rejected the appellants’ contention that the respondents were responsible for the non-performance of the final burial ceremony. Evidence from the defence itself indicated that the final ceremony was to be arranged and fixed by the senior son. The court treated that evidence as supporting the respondents’ case. Preparations to perform the rites were insufficient; what mattered was actual performance of the customary rites before death.

The equitable maxim that a person cannot benefit from his own wrong was therefore inapplicable. Even assuming that the respondents had contributed to the delay, such conduct could not confer the Igiogbe on a person who had not completed the compulsory rites prescribed by Benin custom.

However, the court distinguished the adjoining unbuilt land from the Igiogbe. Relying on the wording of clause 7 of the Will and the decision in Uwaifo v. Uwaifo, it held that vacant adjoining land is not automatically part of the Igiogbe under Benin customary law. The testator was free to devise that land to the appellants’ father. The trial court’s contrary finding was set aside.

The Court also upheld the order requiring the appellants to account for rents collected from the property and pay the sums accounted for to the 1st respondent. Although a court generally cannot grant relief that was not claimed, it may make a consequential order directly and naturally flowing from the relief granted. The order to pay the rents was consequential to the order for an account and the declaration that the 1st respondent was entitled to possession.

Conclusion

The appeal was allowed in part. The finding that the 1st respondent was entitled to the Igiogbe, possession, and the consequential rent account was affirmed. The finding that the adjoining unbuilt land formed part of the Igiogbe was reversed, and that land remained vested in the appellants’ father and, by succession, the relevant appellants. The other orders of the High Court were affirmed, with costs of N50,000 awarded to the respondents.

Significance

The decision confirms the special status of the Igiogbe within Benin customary law. It illustrates that statutory testamentary freedom is qualified by customary law and that a Will cannot defeat the customary entitlement of the eldest surviving son. It also clarifies that the performance of the second burial rites is central to vesting the Igiogbe, while ordinary adjoining vacant land is not necessarily part of that customary property. Finally, the case restates the distinction between an impermissible unclaimed relief and a permissible consequential order made to give practical effect to a judgment.