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Case Digest

OSEMWENGIE V. OSEMWENGIE & ORS. (2026)

Supreme Court of Nigeria, Abuja

Before Their Lordships
  • Mohammed Lawal Garba, JSC
  • Chioma Egondu Nwosu-Iheme, JSC
  • Haruna Simon Tsammani, JSC
  • Stephen Jonah Adah, JSC
  • Habeeb Adewale Olumuyiwa Abiru, JSC
Parties

Appellant:

  • Mr. Orobosa Osemwengie, substituted for his late father, Mr. David Osemwengie

Respondents:

  • Mr. Festus Osemwengie
  • Mr. Osazuwa Osemwengie
  • Mr. Osaro Osewengie
  • Mrs. Patience Enagbama
  • Mrs. Abieyuwa Nwokolo
  • Mrs. Helen Onichakwe
  • Mrs. Augustine Osemwengie
  • Mr. Onaiwu Akagbonkhae
  • Mrs. Felicia Irongue
  • Mr. Osakpomwan Osemwengie
  • Probate Registrar, High Court of Justice, Benin City
  • Mr. Ogbemubia Akagbonkhae
Suit number
SC/205/2013
Delivered on

Background

The dispute concerned No. 92, Akpakpava Street, Benin City, comprising a front storey building, a bungalow or attached building, and a rear storey building. The appellant’s grandfather, Ehigiator Uduebor, was said to have built and occupied the front premises. After his death, his eldest son, Osemwengie Ehigiator, inherited the premises under Bini Native Law and Custom, later built the rear storey building, and lived, died and was buried there.

Osemwengie Ehigiator left a will, Exhibit C, which purported to devise parts of the property to several of his children. His eldest surviving son, David Osemwengie, challenged the relevant clauses, claiming that the entire premises constituted the Igiogbe and devolved exclusively on him. David died during the Court of Appeal proceedings and was substituted by his son, Orobosa Osemwengie. The High Court granted the claims, but the Court of Appeal allowed the defendants’ appeal in part and held that only the rear storey building was the deceased’s Igiogbe. Orobosa appealed to the Supreme Court.

Issues

  1. Whether the Igiogbe comprised the entire premises and all the buildings at No. 92, Akpakpava Street, or only the rear storey building in which Osemwengie Ehigiator lived, died and was buried.
  2. Whether the Court of Appeal properly evaluated the evidence and was entitled to reject the trial court’s conclusion that the entire premises constituted the Igiogbe.
  3. Whether the will could validly devise the Igiogbe to persons other than the eldest surviving son, and whether the remaining testamentary dispositions were valid.

Ratio Decidendi

Under Bini Native Law and Custom, the Igiogbe is the principal or main house in which the deceased lived and died, and it passes exclusively to the eldest surviving son after the customary burial rites. Where a deceased has inherited one property but subsequently moves to another building, occupies it as his residence until death, and lets the former property to tenants, the former property does not thereby remain part of his Igiogbe for succession purposes.

The identity of the Igiogbe depends on the facts and circumstances of the particular case. The Court held that the rear storey building was the identifiable residence in which Osemwengie Ehigiator lived, died and was buried. It was therefore the Igiogbe, while the front storey building and bungalow, which had been let to tenants, were not part of it.

A will cannot validly dispose of the Igiogbe in derogation of the customary right of the eldest surviving son. However, testamentary dispositions concerning other properties may remain valid. The Court also reaffirmed that an appellate court should not disturb properly evaluated factual findings of a trial court without sufficient justification, although the concurrent findings in this case supported the conclusion reached by the Court of Appeal.

Court Findings

The Supreme Court accepted that there were three buildings on the premises: two storey buildings and a bungalow. It found that the deceased initially occupied the front premises inherited from his father but later moved to the rear storey building, where he lived with his family until his death. The front storey building and bungalow were rented to tenants and used to generate income.

The Court upheld the Court of Appeal’s finding that the rear storey building, described as house No. 3 in the will, was the deceased’s Igiogbe. Clause 3 of the will, which devised that building to Festus Osemwengie, who was not the eldest surviving son, was void and was properly struck out. Clauses 4, 5, 6 and 7 were upheld because they did not affect the Igiogbe. The brief filed by the 8th–11th respondents was struck out as incompetent because those respondents attacked the judgment under appeal without filing a cross-appeal.

Conclusion

The appeal was dismissed. The Supreme Court affirmed the judgment of the Court of Appeal, Benin Division, delivered on 11 December 2012 in Appeal No. CA/B/133/2007. The appellant was entitled only to the rear storey building as the Igiogbe, while the other valid testamentary dispositions remained effective.

Significance

The decision clarifies that the Benin customary-law Igiogbe is determined primarily by the deceased’s actual principal residence at death, rather than merely by historical ownership or ancestral origin. It also confirms the customary limitation on testamentary freedom in respect of the Igiogbe and distinguishes that property from the remainder of the deceased’s estate.

Counsel:

  • P. O. Osemwenkha, Esq., with P. J. Ajobere, Esq., for the Appellant
  • E. O. Afolabi, SAN, with Pascal Wgbowe, Esq., O. P. O. Ogbegiere, Esq., President Aigbokhan, Esq., Anderson Asemota, Esq., and Abigail Nnaji, Esq., for the 1st–7th Respondents
  • S. O. Eiminuhi, Esq., with Paul Abhulimen, Esq., for the 8th–11th Respondents
  • Dr. J. E. Oaihimire, Esq., for the 12th Respondent