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Succession under Benin customary law in Nigeria: Igiogbe matters arising

By Umweni Omoruyi (Last Update (November 8, 2018)

Succession under Benin customary law in Nigeria is governed by the principles of primogeniture. In other words, the concept of male succession prevails with little modification among the Benin people of
Mid-Western Nigeria. The Igiogbe, which represents the family seat or the principal house of the deceased, is customary inherited by the eldest surviving son of the deceased after the performances of the second burial ceremonies. This has been the age long custom of the Benin people. This custom has been judicially recognized by the Nigerian Supreme Court in the case of Arase v. Arase (1981) N.S.C.C. 101. However, in Idehen v. Idehen (1991) 6 N.W.L.R. (Pt.198) 382 the same Supreme Court modified the definition of the Igiogbe under Benin customary law by introducing the concept of multiple Igiogbes, which was totally at variance with the hitherto acknowledged customary law definition. The decision has caused a lot of anxiety and confusion within the traditional society. This paper therefore seeks to address the legal consequences of that decision against the backdrop of the traditionally held view, and also discuss the steps taken by the Oba of Benin to remedy the effect of the decision on the custom of the Benin people.

“The eldest son of a deceased person does not inherit the deceased’s property until after the completion of the “second” or secondary burial ceremonies that is, funeral obsequies. The completion is marked by a ceremony by members of the family called “UKPOMWAN” this
ceremony is performed by the member of the deceased’s family for the eldest son at his request.

The principal house is always inherited by the eldest surviving son of disposition in a will or family arrangement to the contrary.
“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 a manner hereinafter required, all real and all personal estate 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 and disposed of would devolve upon the heir at law of him or if he became entitled by descent, of his ancestor, or upon his executor or administrator”.

Therefore, a testator cannot make a will and disinherit the eldest son of his customary entitlement to the “Igiogbe” for any reason. This customary principle has received legislative approval by virtue of section 3 (1) of the Wills Law.29 This
law is currently applicable in Edo State as the Wills Law of Bendel state.
INHERITANCE RIGHTS OF WIDOWS

Under customary law in all parts of Edo State, a widow cannot inherit in the intestate estate of her deceased husband. As noted earlier on, the widow is in fact regarded as part of the estate to be inherited by the son or relative.

However with regard to a widow of a customary law marriage, on the intestacy of the husband, she is disinherited completely under the various customary laws in the country despite any contributions she might have made to the man’s success.

No system of customary law in Nigeria confers a beneficial right in a widow in the deceased husband’s estate except indirect benefits through her children’s rights, if any. In fact she herself is property to be inherited.

Under Benin native law and custom, the eldest son of a deceased Benin man is entitled to inherit without question the house[s] known as Igiogbe

For this reason the Nigerian Law provides that the High Court shall observe and enforce the observance of every native law and custom which is applicable and is not repugnant to natural justice, equity, and good conscience, nor incompatible either directly or indirectly with any law for the time being in force, and nothing in this Act shall deprive any person of the benefit of any such native law or custom.

The provison to section 14(3) of the Evidence Act1b also provides as follows
Provided that in case of any custom relied upon in any judicial proceeding it shall not be enforce

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