IDEHEN V. IDEHEN

• Pages: 370-406

370



NIGERIAN SUPREME COURT CASES

[1991] 2 N.S.C.C.

After a calm review of the evidence adduced in the trial court the learned trial

judge held that the defence of insanity was not available to the appellant. The Court

of Appeal in its judgment confirmed this finding of fact.

After a perusal of the printed record of proceedings in this appeal I have no

reason to disagree with the conclusions of the Court of Appeal which dismissed



5

the appellant's appeal.

I am in full agreement with the judgment just delivered by my learned brother,

Akpata, J.S.C.,

that the appeal should be dismissed.

I too hereby dismiss the appeal.



1(

Appeal dismissed.

IDEHEN V. IDEHEN



1E

JOSEPH OSEMWEGIE IDEHEN & ORS.



PLAINTIFFS/RESPONDENTS

V.

GEORGE ()TUTU IDEHEN & ORS.



DEFENDANTS/APPELLANTS

APPEAL NO. SC.271/1989.

SUPREME COURT OF NIGERIA

BELLO,



C.J. N.

KARIBI-WHYTE,



J.S.C.

KAWU,



J.S.C.

BELGORE,



J.S.C.

WALT,



J.S.C.

0 LATAWU RA,



J.S.C.

NWOKEDI,



J.S.C.

19th July, 1991.

Interpretation and Construction - Statutes - Interpretation of - Guiding principles - S.3(1)

Wills Law of Bendel Suite - Opening phrase thereof - How construed.

With - Disposal of property - S.3(1) Wills Law, cap.172, Bendel State - Whether compels

every Bini man to make his will subject to his customaty law.

Words and Phrases -"Subject to the customary law relating thereto" - S.3(1) Wills Law,

Cap.172, Bendel State - Meaning of

ISSUE:

Whether the phrase "subject to any Customary Law relating thereto" occurring

in section 3(1) of the Wills Law of Bendel State is a qualification of the testator's

capacity to make a will or whether it is no more than a qualification of the subject

matter of the property disposal of or intended to be disposed of under the Will.

FACTS:

Joshua lserhienrhien ldehen, a native of Bini, died in Benin City on 18/

9

/

7

9 and

left a Will dated 10/3/73 in which he made several devises and bequests. In the

will, he devised to his eldest son, Dr. Humphrey ldemudia Idehen, his two houses

2C

25

3C

35

40

45

5C

1DEHEN V. IDEHEN



371

which constituted his Igiogbe (where he lived during his lifetime) in Benin. Dr.

Humphrey Idemudia Idehen predeceased his father, and consequently Joseph

Osemwegie Idehen, the 1st plaintiff/respondent, became the eldest son of the

deceased.

5



Under Bini customary law when a man dies, his Igiogbe is inherited by his eldest

son. Joseph Osemwegie Idehen then claimed under Bini Customary Law the

properties in which the testator lived during his lifetime, known as lgiogbe, as well

as substantially all the properties comprised in the Estate of the testator. The

defendants/appellants, comprising others, some other children of the testator and

10

the executors of the will, rejected the claims of the 1st plaintiff/respondent. Sub-

sequently, he, with the support of his brother, instituted an action in the High Court

against the defendants/appellants.

At the end of the trial, the learned trial Chief Judge, concluded that the late

lserhienrhien died testate and that his will was validly made in compliance with the

15 provisions of the Wills Law. However, he held that the devise of the lgiogbe was

void for being contrary to Bini Customary Law. Thereafter the learned trial Chief

Judge entered judgment for the plaintiffs in part regarding relief 2 and dismissed

their claim with regard to reliefs 1, 3, 4 and 5.

Dissatisfied with the judgment of the learned trial Chief Judge, both the plaintiffs

20 and the defendants appealed to the Court of Appeal. The Court of Appeal by a

majority decision allowed the appeal of the plaintiffs and dismissed the cross-ap-

peal filed by the defendants. In construing the provisions of section 3(1) of the

Wills Law of Bendel State, the Court of Appeal held in effect that even though the

will of the deceased was valid as to form, the dispositions therein were void, and

25

consequently the entire Will was null and void.

The defendants being dissatisfied with the decision of the Court of Appeal

appealed to the Supreme Court. They prayed the Court to set aside the judgment

and orders made by the Court of Appeal.

30

HELD:

1.

The opening words, "subject to any customary law relating thereto", occurring

in section 3(1) of the Wills Law of Bendel State are intended to relate to the

subject matter of a devise. The expression could not have been intended to

qualify the testamentary capacity so unambiguously conferred on every Bini

35



citizen by section 3(1) of the Wills Law. It is only subject to any customary law

affecting the property to be disposed of.

In the instant case, the High Court was right, in declaring the devise of the

testator's lgiogbe to the late Dr. Humphrey Idehen invalid and awarded the two

properties to the 1st plaintiff/respondent in accordance with Bini Customary

40



Law, and so was the Court of Appeal in confirming the award.

(See p.382, lines

49 - 52 & p.383, lines 1 & 4 - 8)

2.

Under the Wills Law of Bendel State, a devise or bequest can only be declared

void if it contravened a particular rule of customary law.

(See p.383, lines 18 -

45



21 ).

Per

BELLO, C.J.N.

3.

The expression "subject to any customary law relating thereto" controls and

governs the whole provisions of section 3(1) Wills Law of Bendel State which

includes testamentary capacity as well as the property to be devised. In other

50



words, the expression governs the words "it shall be lawful for every person to

devise, bequeath or dispose of by his will" which is concerned with

testamentary capacity and the expression also governs the words "all real

372



NIGERIAN SUPREME COURT CASES

[1991] 2 N.S.C.C.

estate and all personal estate which he shall be entitled to either in law or in

equity, at the time of his death" which covers the property to be devised.

(See

p.385, lines 39 - 47).

Per

KARIBI-WHYTE, J.S.C.

4. In the construction of the provisions of a statute, it has always been relevant



5

to consider the history of the legislation and the mischief it was designed to

prevent.

(See p.390, lines 7 -

9).

5. The real purpose of every interpretation is to discover the intention of the law

maker, and this is primarily from the words used. Hence where there is nothing



1(

to qualify or modify the words used in the statute, they must be construed in

their ordinary natural meaning. However, where this is at variance with the

intention of the law maker as can be gathered from the words used or leads

to manifest absurdity, the language may be varied only to avoid such absurdity

and no further.

(See p.390, lines 10 - 17).



1!

6. The opening words of section 3(1), Wills Law of Bendel State, "subject to any

customary law relating thereto," clearly render the capacity to make devise,

bequeath or disposition by will, subject to customary law relating thereto. This

phrase which was not in section 3 of the Wills Act 1837 was specifically

introduced into section 3 of the Wills Law to ensure the observance of



2(

customary law in the exercise of testamentary capacity under the law. (See

p.392, lines 11 - 17).

7. When a devise, bequest or disposition is subject to customary law the

construction is that the devise, bequest or disposition shall not be inconsistent

with or contrary to customary law. In other words, the devise, bequest or

disposition is to be governed and controlled by customary law. The last two

words "relating thereto," in the opening words of section 3(1), Wills Law was

not mere surplusage or inserted in vain. It refers to the customary law in respect

of the devise, bequest or disposition. Herein the validity of devise, bequests

or dispositions which are made contrary to customary law.

(See p.392, lines

23 - 30).

8. Testamentary capacity as understood under the Wills Law is unknown to the

customary law of any of the communities in the state. It is therefore not

conceivablethat the expression " subject to any customary law relating thereto"

could have been intended to relate to or qualify what is not known. The

expression can only qualify, as it refers to the subject matter of the devise. (See

p.394, lines 22 - 27).

Per

BELGORE, J.S.C.

9. In Benin customary law, the "Igiogbe" could not under any circumstance be

given away as a gift, it must be left for the eldest male child. At his death, the

testator is entitled under Benin customary law, to devise all his property except

"Igiogbe"; thus "Igiogbe" would at his death no longer be his to give away.

(See

p.395,

lines 30 - 34).

Per

WALT, J.S.C.

10. The power of a testator to dispose of any property by will is limited to the extent

that the property is such that he can dispose of under his customary law. Any

attempt by the testator however ingenious he may be to transgress the limit

imposed by his customary law will be an exercise in futility and will be null and

void to that extent. In other words, section 3(1) of the Wills Law is a restrictive

provision vis-a-vis the testator.

(See p.396, lines 44 - 49).

2:

3(

3:

4(

4!