By Janet Babajide (Miss) LLB B.l.
INTRODUCTION
It is generally believed that a person possess the right to
make a Will according to his wishes or desire. While this is true, can this
right be said to be absolute? What is the position of the Customary Law and
Islamic Law in respect of Wills making? To what extent is the Limitation Law
applicable to issues of succession under the Customary Law? This case is a decisionof
the Supreme Court and borders on succession/inheritance under the Bini Native
Law and Custom viz a viz an action therefrom being caught under the tentacles
of the Limitation Law of the old Bendel State. An overview of this case seeks
to answer all the aforestated questions.
make a Will according to his wishes or desire. While this is true, can this
right be said to be absolute? What is the position of the Customary Law and
Islamic Law in respect of Wills making? To what extent is the Limitation Law
applicable to issues of succession under the Customary Law? This case is a decisionof
the Supreme Court and borders on succession/inheritance under the Bini Native
Law and Custom viz a viz an action therefrom being caught under the tentacles
of the Limitation Law of the old Bendel State. An overview of this case seeks
to answer all the aforestated questions.
FACTS AND HISTORY OF
THE CASE
THE CASE
The background facts of this case is that Chief Usman Mofeyintioluwa
Lawal Osula; the Arala of Benin (hereinafter referred to as “the Testator”) was
a holder of a hereditary traditional title in Benin in his life time and died
on the 2nd day of December, 1972, leaving behind a wife (who was the
1st Defendant at trialwhom he married under the Marriage Act) and
some children. The children included children born for him by the 1stDefendantand
other children born by women who were his wives at one time or another but
prior to the time he got married to the 1stDefendant. By the Bini
native law and custom, a Benin traditional chief is succeeded at death by his
eldest son. However, before his death, the testator made a Will in which he
made provisions for the 1stDefendant, her children and some of the
children born by his aforesaid wives who were also Defendants. No provisions
were made in the Will of the Testator for the Plaintiffs and there was a
controversy over the question whether they were, in fact, his children. The Plaintiffs
then initiated an action in 1986 (14yrs after the death of the testator) at the
Benin Judicial Division of the defunct Bendel State High Court in which they
claimed against the Defendants jointly and severally as follows:
Lawal Osula; the Arala of Benin (hereinafter referred to as “the Testator”) was
a holder of a hereditary traditional title in Benin in his life time and died
on the 2nd day of December, 1972, leaving behind a wife (who was the
1st Defendant at trialwhom he married under the Marriage Act) and
some children. The children included children born for him by the 1stDefendantand
other children born by women who were his wives at one time or another but
prior to the time he got married to the 1stDefendant. By the Bini
native law and custom, a Benin traditional chief is succeeded at death by his
eldest son. However, before his death, the testator made a Will in which he
made provisions for the 1stDefendant, her children and some of the
children born by his aforesaid wives who were also Defendants. No provisions
were made in the Will of the Testator for the Plaintiffs and there was a
controversy over the question whether they were, in fact, his children. The Plaintiffs
then initiated an action in 1986 (14yrs after the death of the testator) at the
Benin Judicial Division of the defunct Bendel State High Court in which they
claimed against the Defendants jointly and severally as follows:
(a)
“A declaration that the pretended Will and last Testament of Chief Usman Mofeyintioluwa
Lawal Osula, the Arala of Benin dated 22/11/68, is null and void and of no
effect for non-compliance with the applicable Wills Law and as such, the
Testator died intestate.
“A declaration that the pretended Will and last Testament of Chief Usman Mofeyintioluwa
Lawal Osula, the Arala of Benin dated 22/11/68, is null and void and of no
effect for non-compliance with the applicable Wills Law and as such, the
Testator died intestate.
(b)
A declaration that the 1st plaintiff having performed the
final burial ceremonies of his late father the Arala of Benin under Benin
Native Law and Custom and as the acknowledged Legitimate Senior son entitling
him to the hereditary title and having been conferred with the said hereditarychieftaincy
title of his late father (Arala of Benin) steps into the late father’s shoes as
the head of the family of Chief Usman Mofeyintioluwa Lawal Osula.
A declaration that the 1st plaintiff having performed the
final burial ceremonies of his late father the Arala of Benin under Benin
Native Law and Custom and as the acknowledged Legitimate Senior son entitling
him to the hereditary title and having been conferred with the said hereditarychieftaincy
title of his late father (Arala of Benin) steps into the late father’s shoes as
the head of the family of Chief Usman Mofeyintioluwa Lawal Osula.
(c)
A declaration that the purported marriage of the 1st defendant
under a Christian or monogamous system of marriage at Benin City on the 26th
January, 1950 to the deceased is null and void and of no effect whatsoever such
marriage having been contracted during the subsistence of a marriage under
native law and custom and moslem rites to one Idada the mother of the 2nd
and 3rd defendants who also survived the deceased.
A declaration that the purported marriage of the 1st defendant
under a Christian or monogamous system of marriage at Benin City on the 26th
January, 1950 to the deceased is null and void and of no effect whatsoever such
marriage having been contracted during the subsistence of a marriage under
native law and custom and moslem rites to one Idada the mother of the 2nd
and 3rd defendants who also survived the deceased.
(d)
An order compelling the defendants to submit a comprehensive inventory of
the whole properties real and personal comprised in the estate of the said
Chief Usman Mofeyintioluwa Lawal Osula (deceased) to the 1st
plaintiff forthwith.
An order compelling the defendants to submit a comprehensive inventory of
the whole properties real and personal comprised in the estate of the said
Chief Usman Mofeyintioluwa Lawal Osula (deceased) to the 1st
plaintiff forthwith.
(e)
An order revoking or recalling the grant of letters of probate and
administration granted to the defendants if any.
An order revoking or recalling the grant of letters of probate and
administration granted to the defendants if any.
(f)
An order for the position and condition of the properties comprised in
the estate handing over the keys to the property not hitherto occupied by
tenants to the 1st plaintiff hereof and a true and full account of
all rents, profits and/or monies collected by or paid to the defendants by the tenants
and/or occupiers of properties comprised thereof, and payment into court of all
monies as received for the estate by the defendants either jointly or severally
from grant of letters of probate and administration up to the date of judgment
and or date as may be directed by the court in favour of the plaintiffs.
An order for the position and condition of the properties comprised in
the estate handing over the keys to the property not hitherto occupied by
tenants to the 1st plaintiff hereof and a true and full account of
all rents, profits and/or monies collected by or paid to the defendants by the tenants
and/or occupiers of properties comprised thereof, and payment into court of all
monies as received for the estate by the defendants either jointly or severally
from grant of letters of probate and administration up to the date of judgment
and or date as may be directed by the court in favour of the plaintiffs.
(g)
Such further or other orders may be made and directions given the Court
shall think just in the circumstances of the case.”
Such further or other orders may be made and directions given the Court
shall think just in the circumstances of the case.”
Upon the evaluation of the evidence before the trial court,
the court granted only the relief as it relates to the paternity of the Plaintiffs
and refused others. Dissatisfied with the judgment of the Learned trial Judge,
the Plaintiffsappealed to the Court of Appeal while the Defendants also dissatisfied
with the aspects of the judgment that favoured the Plaintiffscross-appealed. On
appeal, the Plaintiffs/Appellants formulated the following issues for
determination:
the court granted only the relief as it relates to the paternity of the Plaintiffs
and refused others. Dissatisfied with the judgment of the Learned trial Judge,
the Plaintiffsappealed to the Court of Appeal while the Defendants also dissatisfied
with the aspects of the judgment that favoured the Plaintiffscross-appealed. On
appeal, the Plaintiffs/Appellants formulated the following issues for
determination:
(a)
“Whether the facts pleaded in paragraphs 9 of the plaintiffs/appellants’
statement of claim were sufficient.
“Whether the facts pleaded in paragraphs 9 of the plaintiffs/appellants’
statement of claim were sufficient.
(b)
Whether paragraphs 9 and 10 of the defendants/respondents statement ofdefence
did not admit the fact that there was an earlier marriage between the testator
and PW7.
Whether paragraphs 9 and 10 of the defendants/respondents statement ofdefence
did not admit the fact that there was an earlier marriage between the testator
and PW7.
(c)
Whether it was right for the honourable trial Judge to suo motu hold that
paragraph 9 of the plaintiffs’ statement of claim was vague when the defendants
did not ask for further and better particulars but went ahead to answer the plaintiffs’
claim.
Whether it was right for the honourable trial Judge to suo motu hold that
paragraph 9 of the plaintiffs’ statement of claim was vague when the defendants
did not ask for further and better particulars but went ahead to answer the plaintiffs’
claim.
(d)
Whether it was still necessary for the plaintiffs to prove that the
testator contracted an earlier marriage with PW7 when the defendants had admitted
that there was an earlier marriage between the testator and PW7.
Whether it was still necessary for the plaintiffs to prove that the
testator contracted an earlier marriage with PW7 when the defendants had admitted
that there was an earlier marriage between the testator and PW7.
(e)
Whether the defendants were able to prove that the testator’searlier
marriage to PW7 had been dissolved before the testator married the 1st
defendant.
Whether the defendants were able to prove that the testator’searlier
marriage to PW7 had been dissolved before the testator married the 1st
defendant.
(f)
Whether the testator who was a hereditary title holder ceased to be
subject to Bini customary law applicable to hereditary title holder by reason
of his contracting marriage under the Ordinance.
Whether the testator who was a hereditary title holder ceased to be
subject to Bini customary law applicable to hereditary title holder by reason
of his contracting marriage under the Ordinance.
(g)
Whether a Bini man married under the Marriage Act cannot change his personal
law other than by the dissolution ofhis Christian marriage.
Whether a Bini man married under the Marriage Act cannot change his personal
law other than by the dissolution ofhis Christian marriage.
(h)
Whether the Will (Exhibit A) complied with the Bini customary law
applicable to hereditarytitle holder.
Whether the Will (Exhibit A) complied with the Bini customary law
applicable to hereditarytitle holder.
(i)
Whether the Marriage Act vitiates or conflicts the Bini custom that the
estates of the hereditary title holder are not distributable.
Whether the Marriage Act vitiates or conflicts the Bini custom that the
estates of the hereditary title holder are not distributable.
(j)
Whether the unequivocal testimony of credible witness cannot rebut the presumption
of due execution of a Will.
Whether the unequivocal testimony of credible witness cannot rebut the presumption
of due execution of a Will.
(k)
Whether the testator who is a hereditary title holder can make a Will.
Whether the testator who is a hereditary title holder can make a Will.
(l)
Whether there was not enough circumstantial evidence to prove
conclusively that the 1st defendant assertedundue influence on the testatorin
making of the will (Exhibit A).
Whether there was not enough circumstantial evidence to prove
conclusively that the 1st defendant assertedundue influence on the testatorin
making of the will (Exhibit A).
(m)
Whether the Honourable Justice was right in not granting the Plaintiffs
all the reliefs claimed in the light of his finding that a hereditary Bini
Chief cannot dispose of his property the way the testator did.”
Whether the Honourable Justice was right in not granting the Plaintiffs
all the reliefs claimed in the light of his finding that a hereditary Bini
Chief cannot dispose of his property the way the testator did.”
At the end of the determination of the above writtenissues,
the Court of Appeal allowed the appeal, set aside the Order of the trial Court which
didn’t favour the Appellant and made orders as follows:
the Court of Appeal allowed the appeal, set aside the Order of the trial Court which
didn’t favour the Appellant and made orders as follows:
a.
“A declaration that the dispositions ofthe property of the testator(the
late Usman Mofeyintioluwa Lawal-Osula) made in the will of the said testator
dated 22nd November, 1968, are null and void andof no effect
whatsoever for non-compliance with the Wills Law, Cap 172 of the Laws of Bendel
State of Nigeria 1976.
“A declaration that the dispositions ofthe property of the testator(the
late Usman Mofeyintioluwa Lawal-Osula) made in the will of the said testator
dated 22nd November, 1968, are null and void andof no effect
whatsoever for non-compliance with the Wills Law, Cap 172 of the Laws of Bendel
State of Nigeria 1976.
b.
An order that the 1st, 2nd, 3rd, 4th,
5th and 6thRespondents, jointly and severally shall,
within 21 days of the date of this order, submit a comprehensive inventory of
all the properties, real andpersonal, comprised in the estate of Chief Usman Mofeyintioluwa
Lawal-Osula (deceased) to the 1stAppellant. Such comprehensive
inventory shall be verified by affidavit of each of the 5th and 6thRespondents
who shall file a copy thereof in the registry of this court within the same
period of 21 days from the date of this order.
An order that the 1st, 2nd, 3rd, 4th,
5th and 6thRespondents, jointly and severally shall,
within 21 days of the date of this order, submit a comprehensive inventory of
all the properties, real andpersonal, comprised in the estate of Chief Usman Mofeyintioluwa
Lawal-Osula (deceased) to the 1stAppellant. Such comprehensive
inventory shall be verified by affidavit of each of the 5th and 6thRespondents
who shall file a copy thereof in the registry of this court within the same
period of 21 days from the date of this order.
c.
An order requiring the 5th and 6thRespondents to
furnish the 1stAppellant within 21 days of the date of this order
with the particulars of the positions and condition of the properties comprised
in the estate of the aforesaid testator Usman Mofeyintioluwewa Lawal-Osula
(Late Arala of Benin) in his aforesaid will.
An order requiring the 5th and 6thRespondents to
furnish the 1stAppellant within 21 days of the date of this order
with the particulars of the positions and condition of the properties comprised
in the estate of the aforesaid testator Usman Mofeyintioluwewa Lawal-Osula
(Late Arala of Benin) in his aforesaid will.
d.
An order requiring the 5th and 6thRespondents to
furnish the 1stAppellant within 21 days of the date of this order
with the particulars of the positions and condition of the properties comprised
in the estate of the aforesaid testator (Usman Mofeyintioluwa Lawal-Osula) the
late Arala of Benin, and to hand over within 21 days of this order, to the 1st
Appellant the keys to any property not hitherto occupied by the tenant or tenants.
An order requiring the 5th and 6thRespondents to
furnish the 1stAppellant within 21 days of the date of this order
with the particulars of the positions and condition of the properties comprised
in the estate of the aforesaid testator (Usman Mofeyintioluwa Lawal-Osula) the
late Arala of Benin, and to hand over within 21 days of this order, to the 1st
Appellant the keys to any property not hitherto occupied by the tenant or tenants.
e.
An order requiring each of the Respondents to supply the 1stAppellant
within 21 days of the date of this order a true and full account, verified by
his/her affidavit, of all rents profits and/or monies collected by or paid to
any of the Respondents by the tenants and/or occupiers of any of the properties
purportedly disposed of in the will of the aforesaid testator (Usman Mofeyintioluwa
Lawal-Osula) the late Arala of Benin, and to pay into court within the period
of 21 days from the date of this order all monies received by any of the
Respondents in respect of any of the properties purportedly disposed of in the
said will of the testator from the date of the purported grant of probate and
letters of administration to all or some of the Respondents in relation to the
estate of the testator to the date of the judgment in this appeal.
An order requiring each of the Respondents to supply the 1stAppellant
within 21 days of the date of this order a true and full account, verified by
his/her affidavit, of all rents profits and/or monies collected by or paid to
any of the Respondents by the tenants and/or occupiers of any of the properties
purportedly disposed of in the will of the aforesaid testator (Usman Mofeyintioluwa
Lawal-Osula) the late Arala of Benin, and to pay into court within the period
of 21 days from the date of this order all monies received by any of the
Respondents in respect of any of the properties purportedly disposed of in the
said will of the testator from the date of the purported grant of probate and
letters of administration to all or some of the Respondents in relation to the
estate of the testator to the date of the judgment in this appeal.
f.
An order restraining the Respondents jointly and severally from
administering, expending disposing of or otherwise dealing in any way with any
of the properties real or personal, purportedly disposed of in the will of the
said testator (Usman Mofeyintioluwa Lawal-Osula) the late Arala of Benin.”
An order restraining the Respondents jointly and severally from
administering, expending disposing of or otherwise dealing in any way with any
of the properties real or personal, purportedly disposed of in the will of the
said testator (Usman Mofeyintioluwa Lawal-Osula) the late Arala of Benin.”
Being further dissatisfied, the Respondents (now Appellants
at the Supreme Court)filed an appeal before the Supreme Court and formulated
the following issues for determination:
at the Supreme Court)filed an appeal before the Supreme Court and formulated
the following issues for determination:
i.
“Whether the Respondents’ action was statute barred.
“Whether the Respondents’ action was statute barred.
ii.
Whether on the evidence the 1st Respondent established his
claim as the “acknowledged legitimate senior son/; of the testator.
Whether on the evidence the 1st Respondent established his
claim as the “acknowledged legitimate senior son/; of the testator.
iii.
Whether the Bini customary law of inheritance as established in this case
is incompatible with general law or repugnant to natural justice, equity and
good conscience and therefore inapplicable to the testator’s estate.”
Whether the Bini customary law of inheritance as established in this case
is incompatible with general law or repugnant to natural justice, equity and
good conscience and therefore inapplicable to the testator’s estate.”
The Respondents (formerly Appellants at the Court of Appeal)
also raised the following issues for determination:
also raised the following issues for determination:
a.
“Whether the Plaintiffs/Respondents action or claim mainly based on
family status and inheritance under the Bini customary law was statute barred.
“Whether the Plaintiffs/Respondents action or claim mainly based on
family status and inheritance under the Bini customary law was statute barred.
b.
Whether having regards to the evidence on record the concurrent finding
of facts of the two courts that the 1st Plaintiff/Respondent is the
acknowledged legitimate senior son of Chief Usman M. Lawal-OsulaArala of Benin
(deceased) is justified.
Whether having regards to the evidence on record the concurrent finding
of facts of the two courts that the 1st Plaintiff/Respondent is the
acknowledged legitimate senior son of Chief Usman M. Lawal-OsulaArala of Benin
(deceased) is justified.
c.
Whether having regard to the reliefs claimed, the evidence led and the
relevant Bini customary law of inheritance proved pertaining to a Bini
Hereditary Chief the customary law is incompatible with general law or
repugnant to natural justice, equity and good conscience.”
Whether having regard to the reliefs claimed, the evidence led and the
relevant Bini customary law of inheritance proved pertaining to a Bini
Hereditary Chief the customary law is incompatible with general law or
repugnant to natural justice, equity and good conscience.”
ISSUES AS DECIDED BY
THE SUPREME COURT
THE SUPREME COURT
On the issue that the action of the Plaintiffs/Respondents
was statute barred. The Court held that to consider the issue, recourse must be
had to the provisions of the Wills Law of Bendel State (Cap 172, Laws of
Bendel State of Nigeria 1976) which provides at Section 3 thus:
was statute barred. The Court held that to consider the issue, recourse must be
had to the provisions of the Wills Law of Bendel State (Cap 172, Laws of
Bendel State of Nigeria 1976) which provides at Section 3 thus:
(1)
“Subject to any customary law relating thereto, it shall be lawful
for every person to devise, bequeath or dispose of, by his will executed in
manner which he shall be entitled to, either in law or in equity, at the time
of his death and which if not so devised, bequeathed anddisposed of would
devolve upon the heir at law of him, or if he became entitled by descent, of
his ancestor to upon his executor or administrator.”
“Subject to any customary law relating thereto, it shall be lawful
for every person to devise, bequeath or dispose of, by his will executed in
manner which he shall be entitled to, either in law or in equity, at the time
of his death and which if not so devised, bequeathed anddisposed of would
devolve upon the heir at law of him, or if he became entitled by descent, of
his ancestor to upon his executor or administrator.”
{Emphasis is mine}
In the same token, the provisions of the Limitation Law of Bendel State
(Cap 89 Laws of Bendel State 1976)were also referred to. Section
20 of the Law provides that:
(Cap 89 Laws of Bendel State 1976)were also referred to. Section
20 of the Law provides that:
“20 (1) Subject to subsection (3) of this section, no action in respect
of any claim to the personal estate of a deceased person or to any share or
interest in such estate, whether under a will or on intestacy, shall be brought
after the expiration of twelve years from the date when the right to receive
the share of interest accrued.
of any claim to the personal estate of a deceased person or to any share or
interest in such estate, whether under a will or on intestacy, shall be brought
after the expiration of twelve years from the date when the right to receive
the share of interest accrued.
(2) Subject to subsection (3) ofthis
section, no action to recover arrears of interest in respect of any legacy or
damages in respect of such arrears shall be brought after the expiration of six
years from the date on which theinterest became due.
section, no action to recover arrears of interest in respect of any legacy or
damages in respect of such arrears shall be brought after the expiration of six
years from the date on which theinterest became due.
(3) No period of limitation fixed bythis
law apply to anaction against personal representative or any person to an
action through him where the claim is founded on any fraud to which the personal
representative was a party or privy.”
law apply to anaction against personal representative or any person to an
action through him where the claim is founded on any fraud to which the personal
representative was a party or privy.”
Section 1(2) of the same Law also provides:
“Nothing in this law affects actions in respect of the title to land or
any inheritance in land by customary tenure orin respect of any matter which is
subject to the jurisdiction of a customary court relating to marriage, family
status, guardianship of children, inheritance or disposition of property on
death.”
any inheritance in land by customary tenure orin respect of any matter which is
subject to the jurisdiction of a customary court relating to marriage, family
status, guardianship of children, inheritance or disposition of property on
death.”
Worth stating at this juncture is the
profound custom of the Bini native law and custom as noted by the Supreme Court
relating to a hereditary chief of which the testator was one before his death,
which is that: when a hereditary chief dies, whether “testate” or intestate, he
will be buried according to thenative law and custom at his usual place of
abode in the traditional way by performing certain rites. After his burial, all
his property are held by the eldest son in trust up to such a time when he can
perform the second burial, then he holds the igiogbe and the other
items of the estate can be shared. “Igiogbe” comprises of the house or
houses where the deceased hereditary title chief lived or used as seat or seats
as a Bini chief. This cannot be taken away from the eldest son who succeeds him
to the title or office.
profound custom of the Bini native law and custom as noted by the Supreme Court
relating to a hereditary chief of which the testator was one before his death,
which is that: when a hereditary chief dies, whether “testate” or intestate, he
will be buried according to thenative law and custom at his usual place of
abode in the traditional way by performing certain rites. After his burial, all
his property are held by the eldest son in trust up to such a time when he can
perform the second burial, then he holds the igiogbe and the other
items of the estate can be shared. “Igiogbe” comprises of the house or
houses where the deceased hereditary title chief lived or used as seat or seats
as a Bini chief. This cannot be taken away from the eldest son who succeeds him
to the title or office.
After further consideration of this issue, the court held
that it is in the light of this custom that the phrase “subject to any customary law
relating thereto” was employed in Section 3 (1) Wills Law (supra).
Hence, giving room for the operation of such tradition and custom.The Court
also held that the Limitation Law was not enacted todefeat the tradition as shown
in Section
1(2) of the Limitation Law (supra )and particularly because the right
of the eldest son to the “igiogbe” as well as the right to
challenge the Defendants did not arise until the performance of the second
burial which could be done at any time.
that it is in the light of this custom that the phrase “subject to any customary law
relating thereto” was employed in Section 3 (1) Wills Law (supra).
Hence, giving room for the operation of such tradition and custom.The Court
also held that the Limitation Law was not enacted todefeat the tradition as shown
in Section
1(2) of the Limitation Law (supra )and particularly because the right
of the eldest son to the “igiogbe” as well as the right to
challenge the Defendants did not arise until the performance of the second
burial which could be done at any time.
Worthy of emphasis is the position of the second burial, the
right to own the igiogbe to the exclusion of the other siblings does not arise
until the second burial has been done by the eldest surviving son of the
deceased.
right to own the igiogbe to the exclusion of the other siblings does not arise
until the second burial has been done by the eldest surviving son of the
deceased.
It was further held that because the action of the plaintiffs
concerns the position of children born under marriage other than that under
Marriage Ordinance, inheritance under customary law that could be a proper
matter for trial in customary court, the succession to chieftaincy title by
theeldest son of a hereditary chief, the position of his “igiogbe” i.e. his seat
and abode as chief, and devolution of his estate that are entirely governed by
Benin native law and custom,the provisions of the Limitation Law at Section
20(1) will not arise. This is because such actions are shielded from
being statute barred by the express provision of section 1(2) of the Limitation Law of
Bendel State.
concerns the position of children born under marriage other than that under
Marriage Ordinance, inheritance under customary law that could be a proper
matter for trial in customary court, the succession to chieftaincy title by
theeldest son of a hereditary chief, the position of his “igiogbe” i.e. his seat
and abode as chief, and devolution of his estate that are entirely governed by
Benin native law and custom,the provisions of the Limitation Law at Section
20(1) will not arise. This is because such actions are shielded from
being statute barred by the express provision of section 1(2) of the Limitation Law of
Bendel State.
The court also distinguished the facts of the instant case
from that of Elias v. Akinrimisi (1987) NWLR (Part 57), 487, 497 where the
action of the plaintiff was held to be statute barred because in the Lagos
judicial division where the action emanated from there is no similar provision
of Section
1 (2) of the Limitation law of Bendel State in that of the LimitationLaw
of LagosState.
from that of Elias v. Akinrimisi (1987) NWLR (Part 57), 487, 497 where the
action of the plaintiff was held to be statute barred because in the Lagos
judicial division where the action emanated from there is no similar provision
of Section
1 (2) of the Limitation law of Bendel State in that of the LimitationLaw
of LagosState.
Suffice to state at this point that the said provision of Section
1 (2) of the Limitation law of Bendel Stateis not peculiar to that
state. The Kwara State Limitation law (Cap.K30) though does not have the
equivalent of Section 20 (1) of the Limitation law of Bendel State has the equivalent of Section 1(2) of the Limitation
law of Bendel State at Section 40 (1) (e) of the same and
it provides thus:
1 (2) of the Limitation law of Bendel Stateis not peculiar to that
state. The Kwara State Limitation law (Cap.K30) though does not have the
equivalent of Section 20 (1) of the Limitation law of Bendel State has the equivalent of Section 1(2) of the Limitation
law of Bendel State at Section 40 (1) (e) of the same and
it provides thus:
“This Law shall not apply to-
Any matter which is subject of the jurisdiction of a customary court or
Area Court relating to marriage, family status, guardian of children,
inheritance or disposition of property on death”
Area Court relating to marriage, family status, guardian of children,
inheritance or disposition of property on death”
Also, the position which the customary
law enjoys under the Wills Law of Bendel State is also
provided for under the Kwara State Wills Law (Cap.K58)at Section
4 of same which provides as follows:
law enjoys under the Wills Law of Bendel State is also
provided for under the Kwara State Wills Law (Cap.K58)at Section
4 of same which provides as follows:
(1)
“It shall be lawful for every person to bequeath or dispose of, by will
execute in accordance with the provisions of this Law, all property to which he
is entitled, either in law or in equity, at the time of his death:
“It shall be lawful for every person to bequeath or dispose of, by will
execute in accordance with the provisions of this Law, all property to which he
is entitled, either in law or in equity, at the time of his death:
Provided that the provisions of this Law shall not apply-
(a)
To any property which the testator had no power to dispose of by his will
or otherwise under customary law to which he was subject; or
To any property which the testator had no power to dispose of by his will
or otherwise under customary law to which he was subject; or
(b)
To the will of a person who immediately before his death was subject to
Islamic Law.”
To the will of a person who immediately before his death was subject to
Islamic Law.”
It is apparent that the provision of the Wills Law of Kwara
State even went a step further into accommodating the dictates of the Islamic
Law the deceased was subject to. Hence, one cannot but firmly support the
holding of the Supreme Court on this issue.
State even went a step further into accommodating the dictates of the Islamic
Law the deceased was subject to. Hence, one cannot but firmly support the
holding of the Supreme Court on this issue.
On the issue of paternity of the 1stPlaintiff, the
court held that there were concurrent findings by the two courts below. Moreso,
the 1st Plaintiff/Respondent has clearly established his legitimacy
and thereis nothing perverse in those findings as the evidence they arebased on
was properly and legally received. The court further broadened its position
that the concurrent findings of the two courts below were based on sound
evidence before the trial court, there is no illegal reception of the evidence
and there is nothing perverse in them.
court held that there were concurrent findings by the two courts below. Moreso,
the 1st Plaintiff/Respondent has clearly established his legitimacy
and thereis nothing perverse in those findings as the evidence they arebased on
was properly and legally received. The court further broadened its position
that the concurrent findings of the two courts below were based on sound
evidence before the trial court, there is no illegal reception of the evidence
and there is nothing perverse in them.
Necessary to be stated at this point is the rationale behind
this principle of law,which is that; it is the trial Court that sees and hears
the witnesses when they testify. Hence helping it come to a conclusion about
the credibility of the witness and the evidence given.It is on the evaluation
of the evidence and the notable things about witnesses that have registered in
the mind of the trial Court that informs the path the judgment of the Court
will tread. It is on the basis of this
that an Appellate Court is cautious in interfering with the findings of the
trial Court. This is trite and has been enunciated in a plethora of cases that
the Supreme Court will not interfere with concurrent findings except where it
is shown to have occasioned a miscarriage of justice. In Ayanfulu v. Agazie (2007) All
FWLR (Pt. 344) 1432 at 160-161, the Court held thus:
this principle of law,which is that; it is the trial Court that sees and hears
the witnesses when they testify. Hence helping it come to a conclusion about
the credibility of the witness and the evidence given.It is on the evaluation
of the evidence and the notable things about witnesses that have registered in
the mind of the trial Court that informs the path the judgment of the Court
will tread. It is on the basis of this
that an Appellate Court is cautious in interfering with the findings of the
trial Court. This is trite and has been enunciated in a plethora of cases that
the Supreme Court will not interfere with concurrent findings except where it
is shown to have occasioned a miscarriage of justice. In Ayanfulu v. Agazie (2007) All
FWLR (Pt. 344) 1432 at 160-161, the Court held thus:
“An appellate court ought not to disturb the concurrent findings of the
fact of the lower courts as it had no opportunity of seeing and listening to
the witnesses testify. Where the trial court has discharged that
responsibility, the appellate court will not interfere with such findings
unless in exceptional circumstances when it is shown that such concurrent
findings were perverse or based on a wrong perception of the whole case; if not
corrected will lead to a miscarriage of justice, or the decision has been
arrived at as a result of improper exercise of judicial discretion or as a
result of wrong application of some principles of substantive law or
procedure.”
fact of the lower courts as it had no opportunity of seeing and listening to
the witnesses testify. Where the trial court has discharged that
responsibility, the appellate court will not interfere with such findings
unless in exceptional circumstances when it is shown that such concurrent
findings were perverse or based on a wrong perception of the whole case; if not
corrected will lead to a miscarriage of justice, or the decision has been
arrived at as a result of improper exercise of judicial discretion or as a
result of wrong application of some principles of substantive law or
procedure.”
See also, Ogunyade v. Oshunkeye All FWLR
(Pt.389) 1179, (2007) 7 SC (Pt. 11), Agaka v. Ayilara (2012) All FWLR (Pt.608)
899, Ochiba v. State (2012) All FWLR (Pt.608) 990.
(Pt.389) 1179, (2007) 7 SC (Pt. 11), Agaka v. Ayilara (2012) All FWLR (Pt.608)
899, Ochiba v. State (2012) All FWLR (Pt.608) 990.
In the instant case, it was a notorious fact at the trial of
the case that the 1st Plaintiff led overwhelming evidence as to his
paternity which the Defendants could not controvert. In fact, it was the
finding of the Court that the 1st Plaintiff had performed the second
burial of his father without any challenge as to that by the Defendants and
which could not have been possible if he was not the son of the testator. The
challenge of the Defendants only arose when the 1st Plaintiff moved
to take what belonged to him under their tradition. Hence, it is apparent that
the Appellants (Defendants at trial) were only making heavy weather of the
issue. On this issue, I agree with the reasoning of the Supreme Court.
the case that the 1st Plaintiff led overwhelming evidence as to his
paternity which the Defendants could not controvert. In fact, it was the
finding of the Court that the 1st Plaintiff had performed the second
burial of his father without any challenge as to that by the Defendants and
which could not have been possible if he was not the son of the testator. The
challenge of the Defendants only arose when the 1st Plaintiff moved
to take what belonged to him under their tradition. Hence, it is apparent that
the Appellants (Defendants at trial) were only making heavy weather of the
issue. On this issue, I agree with the reasoning of the Supreme Court.
On the last issue as to whether the Bini Customary Law of
inheritance is not repugnant to natural justice, equity and good conscience; or
generally incompatible with the general law. The court held that the phrase: “….incompatible
with laws of general application in England, natural justice, equity and good
conscience” has not been defined withcertainty till today. That the
Bini customary law of inheritance cannot be said to be repugnant to equity,
good justice or indeed to natural justice. The court noted that the inheritance
under English law as relevant to succession to seat and estate of hereditary
person-duke or earl-is not far different from Bini customary law. It is
designed to keep family tradition and maintain orderly continuity hence that
the eldest son is to inherit “igiogbe” is not incompatible with
natural justice, equity and good conscience.
inheritance is not repugnant to natural justice, equity and good conscience; or
generally incompatible with the general law. The court held that the phrase: “….incompatible
with laws of general application in England, natural justice, equity and good
conscience” has not been defined withcertainty till today. That the
Bini customary law of inheritance cannot be said to be repugnant to equity,
good justice or indeed to natural justice. The court noted that the inheritance
under English law as relevant to succession to seat and estate of hereditary
person-duke or earl-is not far different from Bini customary law. It is
designed to keep family tradition and maintain orderly continuity hence that
the eldest son is to inherit “igiogbe” is not incompatible with
natural justice, equity and good conscience.
This cannot be said to be repugnant to equity, good justice
or indeed to natural justice, there are several cases of the Supreme Courts
where this custom has been upheld. In Oke v. Oke (1974) 1 All NLR 443,the
question before the Court was whether the testator, an Urhobo man, could devise
the igiogbe
by WILL to the defendant-who was the testator’s son by another woman or whether
the Itshekiri/Urhobo Customary Law applied so that the testator’s eldest son should
alone inherit the igiogbe. The Supreme Court held that Customary Law and not
English Law or the Wills Law should govern the succession to the testator’s
estate and accordingly that the plaintiff was entitled to the igiogbe
as the testator’s eldest son.
or indeed to natural justice, there are several cases of the Supreme Courts
where this custom has been upheld. In Oke v. Oke (1974) 1 All NLR 443,the
question before the Court was whether the testator, an Urhobo man, could devise
the igiogbe
by WILL to the defendant-who was the testator’s son by another woman or whether
the Itshekiri/Urhobo Customary Law applied so that the testator’s eldest son should
alone inherit the igiogbe. The Supreme Court held that Customary Law and not
English Law or the Wills Law should govern the succession to the testator’s
estate and accordingly that the plaintiff was entitled to the igiogbe
as the testator’s eldest son.
In Idehen v. Idehen (1991) 6 NWLR (Pt.198) 382,
422, the deceased (Joshua Iserhienrhien Idehen) left a WILL where he
devised to his eldest son, Dr. Humphrey Idehen, his two houses in Benin City,
it was common ground that the deceased lived in the two house, which therefore
constituted his igiogbe under Bini Customary Law. Dr. Idehen however
predeceased his father and consequently 1st Respondent became the deceased
eldest son. The Respondents as Plaintiffs instituted an action challenging their
father’s Will, the Court held that the igiogbe must of necessity pass to
the eldest surviving son of Joshua and not the eldest son of Dr. Humphrey
because at the point when Dr. Humphrey predeceased his father, the gift
automatically devolve to the eldest surviving son of his father.
422, the deceased (Joshua Iserhienrhien Idehen) left a WILL where he
devised to his eldest son, Dr. Humphrey Idehen, his two houses in Benin City,
it was common ground that the deceased lived in the two house, which therefore
constituted his igiogbe under Bini Customary Law. Dr. Idehen however
predeceased his father and consequently 1st Respondent became the deceased
eldest son. The Respondents as Plaintiffs instituted an action challenging their
father’s Will, the Court held that the igiogbe must of necessity pass to
the eldest surviving son of Joshua and not the eldest son of Dr. Humphrey
because at the point when Dr. Humphrey predeceased his father, the gift
automatically devolve to the eldest surviving son of his father.
Worth stating is the case of Ogiamien v. Ogiamien (1967) NMLR
245, where the Supreme Court rejected the trial Court’s decision that a
custom which gave the eldest son an exclusive right of inheritance was
repugnant to natural justice, equity and good conscience. The court held thus:
245, where the Supreme Court rejected the trial Court’s decision that a
custom which gave the eldest son an exclusive right of inheritance was
repugnant to natural justice, equity and good conscience. The court held thus:
“We see nothing wrong in this custom, we can only say that it is not
unknown in some other highly civilized countries of the world.”
unknown in some other highly civilized countries of the world.”
However in Asika v. Atuanya (2008) All FLWR (pt. 433)
1293, it was argued that women were not entitled to the property of
their father under Onitsha Customary Law, this was held to be repugnant to
equity, good justice and to natural justice and must be abolished. The Court
founded on Article 2 (7) of the United Nations (UN) 1979 Convention on the
Elimination of all forms of Discrimination (CEDAW) Against Women in
which Nigeria is a party. The Court also placed reliance on Section
42 and 43 of the 1999 Constitution of the Federal Republic of Nigeria
which prohibits any discrimination against women.
1293, it was argued that women were not entitled to the property of
their father under Onitsha Customary Law, this was held to be repugnant to
equity, good justice and to natural justice and must be abolished. The Court
founded on Article 2 (7) of the United Nations (UN) 1979 Convention on the
Elimination of all forms of Discrimination (CEDAW) Against Women in
which Nigeria is a party. The Court also placed reliance on Section
42 and 43 of the 1999 Constitution of the Federal Republic of Nigeria
which prohibits any discrimination against women.
Arguably, this Bini Customary Law would have been held
repugnant if it was similar to that of Onitsha but it is not similar. It allows
for other property aside the igiogbe to be shared among the other
siblings.
repugnant if it was similar to that of Onitsha but it is not similar. It allows
for other property aside the igiogbe to be shared among the other
siblings.
Also one can equally say the custom in issue is not
incompatible with natural justice, equity and good conscience because an igiogbe
ordinarily should serve as a family house for the family where same is handed
over to each successive generation for the preservation of the name and dignity
of that family. Hence I am in full agreement with the decision of the court on
this issue.
incompatible with natural justice, equity and good conscience because an igiogbe
ordinarily should serve as a family house for the family where same is handed
over to each successive generation for the preservation of the name and dignity
of that family. Hence I am in full agreement with the decision of the court on
this issue.
This also calls for a great caution on the part of a Legal
Practitioner in preparing a WILL, the various Customary Laws/Islamic Law
applicable to the maker of a WILL must be put into consideration.
Practitioner in preparing a WILL, the various Customary Laws/Islamic Law
applicable to the maker of a WILL must be put into consideration.
On the whole the court held that the WILLis valid subject to
the devise on igiogbe which the testator could not by WILL dispose of to
anyone as it automatically devolves on the 1st plaintiff at the testator’s
death and that the executors should account for any rents and or other benefits
that might have accrued to the igiogbe.
the devise on igiogbe which the testator could not by WILL dispose of to
anyone as it automatically devolves on the 1st plaintiff at the testator’s
death and that the executors should account for any rents and or other benefits
that might have accrued to the igiogbe.
CONCLUSION
Suffice to say in conclusion that:
1.
The
issue of an action emanating from inheritance under Customary Law being statute
barred should be determined based on the provisions of the Limitation Law of
each state.
The
issue of an action emanating from inheritance under Customary Law being statute
barred should be determined based on the provisions of the Limitation Law of
each state.
2.
The
Customary Law or Islamic Law of different States as applicable in those States
in respect to succession or inheritance are robustly protected under their
State Will Laws.
The
Customary Law or Islamic Law of different States as applicable in those States
in respect to succession or inheritance are robustly protected under their
State Will Laws.
3.
The
Customary Law or Islamic Law a person is subject must be carefully considered
before a WILL is drafted by a Legal Practitioner.
The
Customary Law or Islamic Law a person is subject must be carefully considered
before a WILL is drafted by a Legal Practitioner.
4.
The
right to make a WILL is not absolute.
The
right to make a WILL is not absolute.
5.
The
Supreme Court will not interfere with the concurrent findings of the two courts
below where no injustice has been shown to have been suffered nor the evidence
before the Court shown to be perverse.
The
Supreme Court will not interfere with the concurrent findings of the two courts
below where no injustice has been shown to have been suffered nor the evidence
before the Court shown to be perverse.
6.
That
a custom is incompatible with natural justice, equity and good conscience must
be examined objectively and in the light of the relevant and applicable Laws in
Nigeria.
That
a custom is incompatible with natural justice, equity and good conscience must
be examined objectively and in the light of the relevant and applicable Laws in
Nigeria.
7.
That
Customary law is still an integral part of our law in Nigerian as same is given
adequate recognition by the apex court of the country.
That
Customary law is still an integral part of our law in Nigerian as same is given
adequate recognition by the apex court of the country.
Last modified: April 22, 2014
