Wills and Probate

• Pages: 298-323

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WILLS AND PROBATE.

(158) ADMINISTRATOR.

Extent of power vested in administrator or administratrix.

“The power vested to the administrators/administratrix in this case includes power or right to

intermeddle with, transfer with, dispose off, lease or conduct outright sale of such property being

administrated, such appointment makes them necessary parties to a case involving such property.”

– Per Mika’Ilu, J.C.A., in Ayorinde v. Ayorinde Suit No. CA/IL/4/2002; (2004) 13 N.W.L.R. (Pt.

889) 83 at 104.

Source and ambit of authority of administrator, of an estate.

“An administrator derives his authority from the letters of administration. This authority is to deal

with the estate properly on behalf of the benefactors.” – PerNwodo, J.C.A., in Arije v. Arije Suit

No. CA/L/452/2007; (2011) 13 N.W.L.R. (Pt. 1264) 265 at 289.

(159) BINI (BENIN) CUSTOMARY LAW OF INHERITANCE.

Can a Bini Man bequeath his “Igiogbe” by will?

“There is no customary law against devising the “Igiogbe” by Will to the rightful beneficiary, that

is, the first surviving son, but it is against Bini Customary Law to disinherit the eldest son of the

Idiogbe as was done in this case or to share it to others. In view of this the learned trial Judge

rightly held that the Will is invalid only to the extent that House No. 4 Ohuoba Street, declared as

the “Igiogbe” was devised to persons other than the appellant.” – PerGaladima, J.S.C., in Uwaifo

v. Uwaifo Suit No. S.C. 135/2004; (2013) 10 N.W.L.R. (Pt. 1361) 185 at 203.

Effect of bequeathing the “Igiogbe” contrary to Bini Customary Law.

(1) “The entire claim revolves around section 3(1) of the Wills Law of Bendel State of Nigeria

1976 which is still applicable in Edo State, By the use of the phrase “subject to any customary law

relating thereto” in the section, is a confirmation of a statutorybacking and recognition which is

given to the prevailing custom to operate within its area of application. For all intent and purpose

and on a composite reading of the Wills Law in conjunction with the Benin customary law, the

contested Will is only void to the extent of the deceased father disinheriting the appellant to the

“Igiogbe”; it is his right and he therefore must be allowed to inherit and enjoy same, The deceased

father in bequeathing the “Igiogbe” along with his other properties for purposeof disinheriting the

appellant is in violation of the Bini Customary Law. The Will as rightly held by the trial Court and

affirmed by the lower Court is invalid to the extent of its affecting the “Igiogbe” only and not the

totality of the properties.” – PerOgunbiyi, J.S.C., in Uwaifo v. UwaifoSuit No. S.C. 135/2004;

(2013) 10 N.W.L.R. (Pt. 1361) 185 at 206.

(2) “Under Bini Native Law and Custom, the house where a deceased lived and died is referred

to as the “Igiogbe”.”No. 4 Ohuoba Street, Benin City was held by the learned trial Judge to be

such “Igiogbe” and by Bini (Benin) Native Law and Custom and section 3(1) of the Wills Law

Cap. 172, Laws of Bendel State, 1976 applicable in Edo State and therefore to Benin, the appellant,

as the surviving first son of the deceased was entitled to inherit No. 4 Ohuoba Street irrespective

of any testamentary dispositionto the contrary. section 3(1) of the Wills Law which is quite explicit

on this point reads thus,“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 hereinafter required all

real estate and all personal estate which he shall be entitled to either in law orin equity, at the time

of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir

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at law of him or if he became entitled by decent of his ancestor or upon his executor or

administrator.” By this provision of the Wills Law, it is clear that the Wills Law is not against

disposition of property by Will provided that with respect to the “Igiogbe” such disposition enures

to the benefit of the first surviving son of the deceased testator.” – PerAlagoa, J.S.C., in Uwaifo

v. Uwaifo Suit No. S.C. 135/2004; (2013) 10 N.W.L.R. (Pt. 1361) 185 at 207.

Meaning of “Igiogbe”.

“These plethora of authorities have left no one in doubt that “Igiogbe” in Benin Customary Law

is a principal house where a deceased Benin man lived and died. This is an ancestral home. It is

not vacant land whether or not adjacent.” – PerGaladima, J.S.C., in Uwaifo v. UwaifoSuit No.

S.C. 135/2004; (2013) 10 N.W.L.R. (Pt. 1361) 185 at 202.

Who is entitled to “Igiogbe” under Bini Customary Land Law?

(1) “My task has been simplified by the Supreme Court decision in Idehen v. Idehenwhich

established beyond peradventure that neither testamentary deposition, much less family elders

arrangement, can deprive the eldest surviving son of the “Igiogbe”, the house in which his deceased

father lived and died.” – PerGaladima, J.S.C., in Uwaifo v. UwaifoSuit No. S.C. 135/2004; (2013)

10 N.W.L.R. (Pt. 1361) 185 at 201.

(2) “The Court of Appeal inIgbinoba v. Igbinoba(supra) did not go beyond the established law

that no one can derogate from the eldest son’s exclusive title tohis father’s “Igiogbe” upon final

rites of “Ukonwen”.In Bini Native Law and Custom, an “Igiogbe” is a custom of a general

application and it is judicially noticed as such. See Egharevba v. Orunghae(2001) 11 N.W.L.R.

(Pt. 724) 318; Lawal-Osula v. Lawal-Osula(1995) 9 N.W.L.R. (Pt. 419) 259;Agidigbi v.

Agidigbi(1996) 6 N.W.L.R. (Pt. 453) 300andImade v. Otabor(1998) 4 N.W.L.R. (Pt. 544) 20.

Notably, the most recent of all cases on the vexed question of “Igiogbe” isOgbahon v. Registered

Trustees C.C.C. C.A.(2002) 1 N.W.L.R. (Pt. 749) 675; though a decision of the Court of Appeal,

it has helped further to throw light on the point. The Court held at page 713 thus: “Under Benin

Native Law and Custom, the eldest son of a deceased person or testator is entitled to inherit without

question the house or houses known as ““Igiogbe”” in which the deceased/testator lived and died

...” – PerGaladima, J.S.C., in Uwaifo v. UwaifoSuit No. S.C. 135/2004; (2013) 10 N.W.L.R. (Pt.

1361) 185 at 202.

(3) “The practice of a Bini customary law which gives the eldest son the prerogative to inherit the

“Igiogbe” has not changed from time immemorial. Under Benin Native Land and Custom,

“Igiogbe” meant a principal house where a deceased Benin man lived and died; the right to inherit

and possess such property vests only in the eldest son. The tradition takes precedent over and above

the wishes of a deceased father no matter how strong he feels against his son as the prospective

heir. It is a right vested in the eldest son and which cannot be divested by means of disinheritance.”

– PerOgunbiyi, J.S.C., in Uwaifo v. UwaifoSuit No. S.C. 135/2004; (2013) 10 N.W.L.R. (Pt.

1361) 185 at 206.

(160) CONTENTS OF WILL.

Effect of absence of authentic signature of deceased on a Will.

“In the absence of the authentic signature of deceased on the Will, the said Will is not valid, the

requirement of Section 4(b) of the Wills Law has not been satisfied.” – PerRhode-Vivour, J.C.A.,

in Odunewu v. Martins Suit No. CA/L/254/99; (2011) 8 N.W.L.R. (Pt. 1250) 574 at 589.