Written by Efe Sophia Osamuede (Mrs)
A BRIEF HISTORY OF THE ADVENT OF IGIOGBE SUCCESSION
The Binis, an ethnic tribe in Nigeria are a people with uniquely rich culture and traditional heritage they occupy the south Midwestern part of the country, now known as Edo state. They were nicked- name “Ubini” by the Yorubas who played a domineering role in the kingdom during their crisis period which occurred after the exit of the Ogiso’s dynasty; especially as it relates to Eweka I, the first Oba of Benin kingdom. “ubin” was later corrupted to Bini, by which the people are still called today . Otherwise, the people recognize themselves as the Edo People.
The Bini’s were renamed Edo people from the time of Oba Ewuare the Great. History has it that, the people and their language was re- named Edo as a result of a boy called Edo who was killed in the process of sparing prince Ogun’s life in his struggle of taking his rightful position as the crown prince of the kingdom.
Prince Ogun was eventually crowned the king, known as Oba Ewuare the Great showing appreciation to the boy for sparing his life by being killed renamed the land and people and their language Edo. Otherwise the land was earlier known as the land of the Igodomigodos who were the earlier aborigine.
Thus far, this is a brief history of the Bini people. It should be noted that this writing is not intended to discuss the historical linage of the people. But to trace a brief history of the ethnic group, that has this rich cultural heritage of succession of the igiogbe otherwise, there are documented historical volumes about this ethnic group of people in Nigeria. So, right from the time of Eweka I, there has been a laid down customary rule that, the eldest surviving male child of the king succeeds him. Consequently, he inherits the estate of the monarchy to the exclusion of any other child of the Oba. This is the primogeniture rule, which posits that upon the demise of the Oba, the eldest surviving son shall take over the entire estate of his father with a pre-condition that he observes the funeral obsequies alone without any contribution from any other child of the Oba. As a result of this development, he also takes over the liabilities of his father especially the welfare of the younger children, including caring for the surviving wives of the late Oba.
From this antecedent, the Bini people brought up the respect and honour their Oba also took a decision to pattern their customary law along with that of the monarchy, this law accounts for the custom that, when a Bini man dies, his eldest surviving male child succeeds him and inherits his Igiogbe. As a result of the role he has to play as the upholder of the traditional and customary values of the family and the physical guardian of the other children of his demised father.
However, as time went on, this customary rule of the people, where only the eldest surviving son of the deceased took over the entire estate of the father became less satisfactory. There was a constant increase of rancor and conflict amongst brethren from the different stripes of the man. This is because of the polygamous nature of most Bini men. The primogeniture rule creates room for neglect of the other children. As most eldest surviving son abandons their fatherly duties to the other children left behind by the deceased man and thus, selfishly convert his father entire estate to his exclusive use.
As a result of this trend, there arose a general dissatisfaction amongst the people with the mode of customary inheritance based on the primogeniture rule. Since culture is a dynamic phenomenon; the general assembly of the people agreed on a consensus that the children of the Bini man begotten by other wives of the deceased other than the mother of the eldest son should be recognized and cared for from the estate of the demised man. This development led to the evolution of the “uhro System” as a mode of customary inheritance. “Uhro “literal interpretation means stripes. With the coming of the “Uhro System” as against the primogeniture rule, the eldest surviving son was then entitled to the lion’s share of the deceased’s estate. Which was usually his main principal dwelling house, that is the Igiogbe was by right of customary rule given to the eldest surviving son of the man. With a pre-condition that he must have observed the full customary burial rites of his father.
It should be clarified that when the Uhro-System came into effect, the burden of giving the deceased full burial rites had to be correspondingly shared amongst the various stripes of the deceased. The first male child from other stripes of the deceased different from the stripe of the eldest surviving son, also observe the customary burial rite of “Isoton” which is the main outing service under the Bini native law and custom to honour the dead in Bini land.
More so, daughters of the deceased who are already married as at the time of the death of the man also had to observe these customary funeral rites too and contribute financially towards the full burial. This is the reason why the customary law of the people as at today deems it equitable that those groups of children of the man should benefit as well from the estate of their father.
The “Uhro System” like the system that gave rise to its also has many controversies in relation to inheritance in the Bini native law and custom, which is today plaguing the family system. However, in the olden days, when there used to be just one house recognized by everybody as the igiogbe, there was little or no contention at all regarding succession. This was the issue explicated by care of Edo V Edo (unreported) Suit No, B/36/85. In that case the court held that the Igiogbe cannot be partitioned the eldest son inherits it absolutely.
But nowadays, most Bini men have become so affluent that they can now afford to have a large estate comprising various buildings. Some of which are architecturally better than the Igiogbe buildings. As a result of this development most eldest surviving sons are more often than not dissatisfied with their father’s Igiogbe, where he lived and died due to poor architectural state. These set of eldest surviving son of the deceased have over the years tried to circumvent the usual custom of having to inherit the racketing Igiogbe to invent a suitable one for themselves. Therefore formulating the concept of multiple Igiogbe, this was not part of Bini custom. This novel trend has cause the court to give undue interpretation in assenting to the issue of multiple Igiogbe I reckon that this case came to be, because most lawyers that handled the matter then, were not versatile with the customary law of succession in accordance with the native law and custom of most likely they were not binis I noted this with the greatest respect to these honourable senior legal luminaries. Or most likely expert witnesses in the field of Bini customary law of succession were not called to give evidence as to the true position of the customary law of succession as being practice in Bini land .This was the conflict enunciated in the case of Idehen V Idehen (1991) 6 NWLR Pt. 198 Sc. 382. In that case, a father gave his first son, his two Igiogbe by will unfortunately the predeceased the father. Before the father’s death, heb did not rectify the will, thus the children of the predeceased child claim ownership of the igiogbe relying on the will. The eldest surviving son at the death of the father brought this action to restrain the children of the predeceased from calming the Igiogbe. The court unanimously held that under Bini customary law of inheritance, the Igiogbe which is the house where a deceased Bini man lived in his life is inherited by his eldest surviving son after the completion of the funeral rites of his late father. The court found for the eldest son and awarded the two Igiogbes which were six (6) kilometers apart to the the eldest son, surviving the testator at the time of his death.
Incicentally some Bini men who had preference for some of their children other than the eldest son, have in the process of time, turn around the laid down customary law of inheritance just to satisfy their ego, by so doing contributing to the escalating controversies surrounding succession to the Igiogbe. This was the controversies contained in the case of Lawal Osula V Lawal Osula (1995) 9 NWLR part 419 SC 259. In that case Chief Lawal Osula made a testamentary disposition of his property. In it he devised his Igiogbe to another child of his, while his eldest son was still alive. The court unanimously held: Igiogbe cannot be taken away from the eldest son who succeeds him to the title or office and perhaps this includes the paraphernalia of office.
The factor enumerated above have, to a large extent, contributed to the melee surrounding the succession to the Igiogbe in Bini native law and custom. Nevertheless, these controversies surrounding succession to the Igiogbe over the years appears to have received a ray of hope of settlement. This is as a result of the proposition or the resolution of the Omo N’ Oba of Benin Kingdom and his council of chiefs who are the ultimate custodian of the Bini native law and custom. This proposition is contained in A HANDBOOK ON SOME BENIN CUSTOMS AND USUAGES: Issued by the Benin Traditional council on the aurhority of the Omo N’ Oba Erediauwa Oba of Benin at page 14 paragraph (h) as follows:
“The custom says that it is the eldest son that automatically inherits the Igiogbe of his deceased father while the remaining landed properties, if any are shared among the remaining children. But there have been cases where the Igiogbe property is by far inferior to the other landed property or properties usually because the late man chose to live in the inferior house while he put the superior house out for commercial purpose. The eldest son in such a case would feel cheated to be confined to the inferior Igiogbe while his juniors are given the superior landed properties. On strict interpretation of custom, that is how it should be. But in these days of modern development, it would be manifestly unfair to give the eldest son a dilapidated property simply because it is the Igiogbe and give a more superior one that the deceased earmarked for commercial purpose to a junior. Such case have come to the palace and the Omo N’Oba Erediauwa, in consultation with chiefs in attendance, has exercised his traditional discretion by giving the eldest son the option to choose between the inferior Igiogbe property and the other superior property on the condition that if he choose the other superior property he would forfeit his traditional right to the (inferior) Igiogbe property with all that goes with it. The eldest son had accepted the choice; and it has been endorsed by the palace.”
In spite of the above proposition or resolution which have been endorsed by the ultimate custodian of Bini native law and custom, the highly respected Omo N’ Oba Erediauwa of Benin Kingdom. It is our observation in the course of this sdudy, that the option to choose by the eldest son of the deceased, in his father estate is not been followed in the strict sense by the family unit involved in the course of distribution of the deceased estate. The popular trend is that the eldest son take his choice of the superior house which his father did not live his life time in accordance with the direction of the Oba of Benin, in addition take possession of his father’s supposed inferior Igiogbe most of the reason gathered for this deviation reckons that the inferior Igiogbe a¡ carries the symbol of his late father. Thus enabling him to perform his fatherly role more efficiently in the quest of the ancestral worship
To this end, it is our view that this practice been perpetrated in some family circle is encouraging the thriving of the alien double or multiple Igiogbe; which is a strong factor escalating the contention that is causing friction among siblings of the same man. It should be noted that the courts of Nigeria have a copy of the Omo N’ Oba Erediauwa proposition to modify the ancient strict customary law rule of succession of the Igiogbe. In other words, Ignorance of the law is not an excuse to any form of misconduct.
Therefore, it is our respectful opinion that, the proposition by the Omo N’ Oba Erediauwa to modify the strict customary law rule of Igiogbe succession is a welcome intervention to help solve and eradicate the contention surrounding the mystery of succession to the Igiogbe in Benin Kingdom. The proposition is fair enough to all those interest in Bini man’s estate. It will also help to bring a casting solution to eradicate the perpetration of double or multiple Igiogbe, which we gathered is a time bomb destroying the peace and harmony in the Bini people family setting.
WHO CAN INHERIT THE IGIOGBE ?
Due to the significance of the Igiogbe, the Bini native law and custom has set down guideline and parameters to be followed or fulfilled when it comes to succession to the Igiogbe. In the first place, it is only the biological child of the deceased that has a right of inheritance. It is only where the man does not have any biological child of his own that, the right of inheritance can go to a brother or a close member of the family who has blood ties with the deceased.
The Bini native law and custom forbids an adopted child who has no blood relationship with the deceased from inheriting the Igiogbe therefore, to inherit the Igiogbe, the adopted child must be an offspring within that particular family unit. This is because the giogbe is regarded as an ancestral family house. Where the deceased decides to go against this customary law, the chance of the adopted child inheriting the Igiogbe could be jeopardized by any interested family member. This buttress the saying in Benin “Orioevbe rioba vbe Edo” which means (a stranger cannot become an Oba in Benin kingdom). It should be clarified that an adopted child can be given a farmland or any personal effect of the deceased but not the Igiogbe.The wills law cannot negative this customary rule.
My research in the course of my writing show that, this issue has not come up yet for determination at the law court. But in the event of such a litigation arising from that circumstance, it is our respectful opinion that the customary law of the people forbidding an adopted child without any tie of consanguinity to the family inheriting of the Igiogbe should be upheld. Else to do otherwise would amount to surrounding the ancestral history and symbol of the family unity to a total stranger.
Again emphasis is laid on the fact that, the right of inheriting the Igiogbe resides absolutely in the eldest surviving son of the deceased. It does not matter whether the child is responsible, an imbecile or a usurper. This implies that Bini man cannot give out his Igiogbe during his lifetime to any other child because the principal dwelling house becomes an Igiogbe after death. So it cannot be given out as a gift inters vivo whether done through the instrumentality of a will or by way of a declaration by the deceased.
It should be noted that, where a Bini man denies paternity a supposedly eldest surviving son, the customary law of succession has provided a means or accepting that eldest son supposedly denied paternity after the death of his father The first condition is that the mother of such alleged eldest surviving son of the deceased (where she is still alive) is expected to swear an oath of confirmation at the ancestral shrine of the man to the extent that, the child is sincerely the issue of the deceased. Also the mother of the child must follow it up with a traditional rite of what the Bini termed “Ikewu”. This literally means a ritual of cooking in mould built cooker at the kitchen of the deceased man, for members of the man’s family.
When these customary rites of oath taking and Ikewu have been performed by the mother of the eldest child supposedly denied paternity, the child will be accepted by the head of the family as the paternity, the child will be accepted by the head of the family as the deceased man’s biological issue. This issue of accepting a presupposed denied son has to a large extent ignited the controversies surrounding succession to the Igiogbe. Many cases of this nature abound in the law courts today arising out of this customary law of accepting a child denied paternity. This issue has thus far, disturbed the equilibrium of seniority within the family setting especially in the face of an existing and already acknowledged eldest son subsequently this issue of acceptance after death or even before death has led to a number of untold friction amongst siblings of the deceased man.
Going by the provision of customary law above, it should be in order to say that a proper marriage under Bini native law and custom between the Bini and the mother of the eldest son is a prerequisite for the acquisition of the Igiogbe thus, when a woman’s dowry has been paid, she must thereafter co. Habit with the man. In the course of the marriage, she observes the costmary law of Ikewu and oath taking to the knowledge of every member of that particular family.
It should also be noted in matters of this nature that a subsequent marriage under the act cannot deprive an eldest surviving son his right to inherit the Igiogbe, even where the mother is not properly married to the deceased man. Provided there is credible evidence to buttress the claim of paternity. If there is preponderance of evidence in favour of the child the issue of paternity will be resolved in the interest of the supposedly rejected child, especially when he is well known by the extended family members. This was the issue provoked by the case of Lawal Osula V Lawal Osula (1995) 9 NWRL part 419, SC 259. In that case, the testator a Bini traditional chief, Chief Lawal Osula who lived and died in house. Before his death, he made a will which contained detailed provision for his wife and children first appellant therein,(he had under the marriage Act) No mention was made of the second set of respondent in the will (who are his children he had before the marriage Act). This led the second set of respondents who claim to be children of the testator to institute this action His eldest surviving male child denied paternity instituted an action against the validity of the will. The trial judge dismissed all the second set of respondent except the issue of paternity, which he found in their favour. The matter went on appeal up to the Supreme Court. There it was unanimously held that the Igiogbe cannot be taken from the eldest son who succeeds the father. As such Chief Osula Lawal was wrong to have devised the Igiogbe to person other than his eldest surviving son.
The issue explicated by the case of Lawal Osula V Osula (supra) at pages 272-273, paragraph H-A: BELGORE JSC explains that: “binis, like some other tribes in nigeria have got some age-long traditions and norms, some peculiar to them, other in common with the other part of theworld that cannot easily be written off by a mere legisslation. to legislate to ban some of these native laws and customs would lead to serious disorders that make governance and obedience difficuit. it is in the light of these that instead of entirely discarding a practice that has been tried and tested over the centuries, legislation are carefully drafted to accommodate the laws and customs in question and to regulate their practice.”
Going by the dictum of reverend Belgore JSC it is our opinion that the costomary law of succession supercedes the provision of succession under the will Act.
Another pre-condition for inheriting the Igiogbe is the well known custom, which has received judicial pronouncements. That the eldest son must first perform the full and final burial rites of his deceased father. The customary burial rites under Bini native law and custom recognized 3 days burial rites, 7 days and 14 days burial rites according to the option observable by the particular family concern. What this means is that after the first burial rites, which is actually the interment, there follows a second burial rites, which is actually the interment, there follow a second burial rites, which is the final. During the second burial, customary rites such as the Ikpowie, Isoton and Isueranfua and observed.
The Bini native law and custom provides that all the children of the deceased participate actively in this funeral rite. However, the eldest surviving son, who has performed the customary funeral rites, takes a step further in accomplishing the full burial rites by performing a spiritual rite in the ancestral shrine called “Ukomwen” The spiritual rite done alone by the first son signifies that, the departed soul of the father has gained entrance in joining his ancestors: these the Bini believe are their guarding angels. Once this spiritual obligation has been performed by the eldest son, then he becomes the benafide and exclusive owner of the Igiogbe.
This custom was judicially noticed in the case of Arese V Arase 9 (1981) 5 SC 33. At page 62. Idigie JSC stated: “…The elders son of the deceased person does not inherits the deceased’s property until after the completion of the”secondary” burial ceremonies that is, ukpomwan”: this ceremony is performed by the members of the family for the eldest son at the request of the later. It is only after this ceremony of Ukponmwan that the family distributes the property owned by the deceased “automatically” becomes that of the eldest son….”
I wish to clarify here that the deceased’s beliefs in his lifetime will not hinder the members of the family from observing these customary burial rites. These days what happens is that, the extended family members perform the indoor customary funeral rites; while the children of the deceased performs the out- door funeral rites
In conclusion, it is our view that the Igiogbe under the Bini native law and custom can only be inherited by the demised biological child. Upon the condition that he observed the full customary funeral rites for the deceased.
CAN THE IGIOGBE BE INHERRITED THROUGH THE INSTRUMENT OF A WILL ?
My response to this question is that every person can make a will, but the capacity is subject to recognized native law and custom. Specifically, mention must be made to section 3(1) of the will law (CAP 133, VOL VI LAWS OF WESTERN NIGERIA 1959) which stipulates that:
“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 entitle to. Either in law or in equity, at the time of his death and which if not so advised upon the heir at law of him or if he become entitled by decent of his ancestors or upon his executor or administrator”.
Going by this provision in making a will, a testator must bear in mind what the position is, in his community regarding inheritance and succession while making devices, bequest of dispositions in his will since it is the intention of the legislature that, anybody with testamentary capacity can make a will. Then nothing prohibits a Bini person from making a will. The only limitation is the will must take cognizance of the Bini native law and custom especially as it regards devising the Igiogbe.
Going by the provisions of the will law, section 3 (1) (Supra) a Bini person should be mindful of the customary law which forbid him from giving his Igiogbe to any person other than his elders surviving son. To do the contrary would tantamount to depriving the eldest surviving son of a home where he may properly carry out his customary function of the guardianship of his younger ones.
According to professor Nwabueze in his book NIGERIA LAND LAW at page 421 states:
“….In all the known cases in which customary law limits the freedom of testation, the limitation is in favour of the persons whose relationship with the testator gives them the right over his property, which they asserts to prevent him from making certain disposition of the property during his life time, and ipso facto at his death.”
For this reason, no matter the ill feeling of a Bini man toward his eldest son, the Igiogbe cannot authentically be acquired or inherited by any other child of the Bini man by using the will as an instrument to defeat the stipulation of the customary law. This was the issue illustrated in the case of Osula V Osula (1995) 9 NWLR part 41 SC 259
Therefore the bequest of Igiogbe to the eldest son is not priviledge as some fathers view it today. But, it is a customary right inducted to the eldest surviving son. To buttress this point further this issue was demonstrated in the case of Ogiamien V Ogiamien (1967) NWLR 245 at pages 276 paragraph B-C where Ademol CJN stated interalia
“Bini customary law of inheritance cannot be said to be repugnant to equity; good conscience and natural justice. Inheritance under English law as relevant to succession to the seat and estate of hereditary person like the Duke or Earl-is not far different from Bini customary law. It is designed to keep family tradition and maintain orderly continuity; the rldest son to inherit “igiogbe” is not incompatible with natural justice, equity and good conscience”
More so, it should be noted that, the Igiogbe cannot be given out to any other person other than the first son as a gift, using the instrument of a will to legalize such device. It is more important to note that, it cannot be bequeathed to the eldest son during the lifetime of a Bini man. The prerequisite is that the man must die first before who to inherit arises. This is because the eldest son may not survive the father. A case study where the eldest son did not survive the father is the case of Idehen V Idehen part 198 SC 382 (1991) 6N. WL.R herein the appellant and the respondent were the children of the testator Joshua Idenhen a Bini man In his will he devised to the eldest son his two main house in Benin City. The house contains his igiogbe under Bini customary law. The eldest son unfortunately predeceased the testator, subsequently the respondent (eldest surviving son of the testator at his death instituted an action in the high court against the appellant (children of Dr Humphrey Idehen) challenging the validity of the will.
The trial judge held that on the question of the validity of the devise of the testator’s Igiogbe to his eldest son was done with the full knowledge of the Bini customary law. However, since the son predeceased the testator, the bequest passed to the eldest surviving son of the testator at the time of death of the testator. He held further that it cannot be valid to pass such bequest to the sons of the deceased eldest son, the wills law would require. At the court of Appeal the decision was reversed. The respondent being dissatisfied with the decision appealed to the Supreme Court .At the full sitting of Supreme Court ; it was unanimously held that the Court of Appeal decision be set aside. The judgment of the high Court was restored and the appeal succeeded in part.
Conclusively, going by the provision of the statute and judicial decision on the question whether the igiogbe can be acquired or inherited through the instrument of the will can be answered in affirmative. The only limitation being that such a devise in a will must take cognizance of established customary law. That the Igiogbe is exclusive property of the eldest surviving son of the deceased provided he completes all customary rites of burial for his deceased father matter the ill-feeling his father expressed towards him. Again was the issue emphasized in the case of Okungbowa V Okungbo (unreported) Suit B/493/87. In that case, the deceased gave out main house where he lived and died to his eldest daughter who took care of him very well before he died, while the boy’s quarter was given to the eldest son. The Court held that the eldest son cannot be deprived of the Igiogbe which is the main dwelling house and boys’ quarters.
This decision further buttress the fact that the position of the eldest son is not contestable by any other child of the Bini man is the saying goes “whatever the man think of feels, his customary law takes precedent.
There are plethoras of cases mounting in Counts of Nigeria today instituted by most Bini persons as a result of controversies being generated on the issue of the ownership of the Igiogbe. These have led to a high degree of untold hatred amongst family members in the Bini kingdom. The highest of this chapter is aimed at providing some basic clarification in the regard.
OWNERSHIP OF THE IGIOGBE RESIDES WITH THE ELDEST SURVIVING SON
In accordance with Bini native law and custom, ownership of the Igiogbe resides absolutely with the eldest surviving son of the deceased, who is the head of the family unit. Since the Igiogbe resides absolutely with the eldest surviving son, no other family member can challenge his authority of ownership. Therefore, whatever he chooses to do with it should not be a matter of concession from any member of the family; The Igiogbe cannot revert back to the family. It follows that it is only his biological child that can inherit it.
The absolute ownership of the Igiogbe by the eldest surviving son is so important because of the responsibility to care for his late father’s household including the up-bringing of the younger children of his father until they can fend for themselves. His position becomes that of the father of the family. But where, he is unable to perform this function efficiently due to economic hardship or other better reasons exclusive to him, this singular act of neglect of this role to the younger ones should not call for rancor and conflict, so as to challenge his ownership over the Igiogbe. On the side, the eldest son may decide to sell the Igiogbe for obvious reasons best known to him. Absolute ownership resides with him. This was the issue of propounded in the care of Mark Ugbo & Daniel Asemota V Sunday Asemota (unreported suit No B/49/70, where the Court held the eldest son was free to sell the house where he feels that his life is at stake.
If every Bini person knows that the eldest surviving son has the absolute ownership there should be no contention, concerning sharing of the Igiogbe. Igiogbe is not a mere property to be shared among the sibling of the same man. If the eldest son decides to give some part of his inherited Igiogbe to any of his younger ones, this act does not loosen his absolute ownership position over the Igiogbe. He can decides to have the part given out back anytime he feels he want to take possession. Therefore, this should not create disharmony between members of the family as to institute litigation to resolve the issue. The customary law of the Binis foresaw this kind of situation and then prescribed absolute ownership of the Igiogbe on the eldest son .To this end the decision reckoned in Edo’s case is a welcome verdict to buttress, the absolute ownership position on the eldest son.
THE RIGHT OF ACCESS OF FAMILY MEMBERS TO THE IGIOGBE
Igiogbe in Bini native law and custom is regarded as ancestral roots of the family unit; the eldest surviving son is given the ownership of it because of his position in the family tree, which requires him function as a unifying figure. So apart from the eldest son, the other children of the late Bini man should have right of ingress and egress to the Igiogbe. This is because the Igiogbe is regarded as an ancestral or loosely family house in Bini native law and custom even thought ownership reside with the eldest surviving son.
Another occasion where any close member of the family of the deceased man can claim ownership is when the eldest surviving son does not have any biological child of his own. In such instance, the Bini customary law of inheritance would grant such family member a right to inherit the brother’s Igiogbe. This exception becomes practicable and effective on the condition that, the said family member must have performed a full customary burial for the deceased.
Another strong reason where any interested family member can claim ownership of the Igiogbe is where brethren join funds together to erect the supposed Igiogbe, Also, where they have severally combined separates’ houses owned by brethren of the same family tree to form one whole Igiogbe. This was the issue illustrated in the case of Omorogbe V Emovon (unreported) Suit No FCA/11/80. In the case, the Oba of Benin validly granted the land in dispute to plaintiff father. The plaintiff father called his half brother to aid him financially to erect building on the land, which his half brother lived. And both of them lived in the house for almost 50/years. On the death of plaintiff’s father, the defendant brought an action contending that because of his financial contribution of the building, The court by majority decision upheld that the defendant has an equitable interest in the property which equity can enforce because calling on his half brother to join him in erecting a building on the land was to make both of them live in the house as partners.
To conclude this segment it should be mentioned that the Bini native law and custom recognize the right of any member within the family circle to inherit the Igiogbe pertains to the eldest son, but where no son exists, daughters of the deceased owner of the Igiogbe can inherit it. And where there is no child at all, the right of inheritance would customarily pass to other members of the family. The common stand however to all those various rights of inheritance is that the person inheriting the Igiogbe must perform the burial rites of the deceased owner before the right of inheritance can vest in him.
CAN A WOMAN HAVE AN IGIOGBE IN BINI CUSTOM?
Igiogbe as earlier defined in this book is the principal or main dwelling house of the Bini man, where he lives and died. In most cases it is the Igiogbe that traditionally house the ancestral shine of the family, the customary law also provides that upon the demise of the man; it is only inherited by his eldest surviving son. Exceptionally a female child of the deceased man inherits where he did not have any male biological issue of his own.
However, the Bini native law and custom has no provision for a woman house to be called Igiogbe. A woman can only inherit her father’s Igiogbe although not as Igiogbe but a mere house which cannot be regarded as her own Igiogbe when she dies. Upon her demise her child or children can inherit it as the mother house and not as the mother’s Igiogbe.
This follows the same say in Bini “Aiye Okwho Bue Igiogbe” Literally translated: (“An Igiogbe cannot be created or centered on a woman)”. This is because Igiogbe is not just one of those houses of a man. But it carries with it a special signification, the family shrine housing the family deity or ancestors. It is a trite custom in Benin kingdom that a woman cannot preside over the ancestral shrine “Okwho Zu Ukhuere Vbe Edo” (i.e a woman cannot have a staff of deity in the family shrine) because the Bini customary law of successions is patriarch. So even if the deceased man’s daughter eventually inherits her father’s Igiogbe she cannot perform spiritual rites for any members of that particular family at their ancestral shrine in such cases, she must call upon the Okaegbe of the family (usually a male) to do so, on her behalf.
In the course of this research it was discovered that a woman cannot have an Igiogbe in Benin Kingdom. The best the custom offers her in that regard is to own a house. A mere house is different from an Igiogbe because of the special characteristics attached to Igiogbe by the Bini custom, such as those enumerated in the proceeding chapters of this book.
However, where an affluent Bini woman dies with a large estate the custom demands that her estate should devolve amongst her children according to seniority. It is also a common practice that when a Bini woman dies, her children join funds together to observe a befitting full customary funeral rite for her. Upon completion the burial rites, the Okaegbe (i.e head of the family) is called upon to share her estate amongst her, children in order of seniority although this is possible where she dies intestate. In the process doing so, the UHRO –SYSTEM (Stripe System) is not taken into consideration as it done with the Bini man’s estate even where the woman had her children for different men. The UHRO –SYSTEM is not an attribute of a Bini woman’s biological off-spring.
However where a Bini woman died testate, there is no obligation to observe section 3(1) of the will Law, which makes the making of a will subject to customary law when devising her estate as in the case of a Bini man. Remember that the Igiogbe even if it is the only landed property of a Bini man, cannot be shared among the man’s children, but can only be given absolutely to the eldest surviving son. This was the issue established in Edo’s case. Igiogbe cannot be partitioned. But in the care of a Bini woman who has just one house, after her death, it can be shared amongst her children without contending the issue of absolute ownership by the eldest surviving son. For this reason, a Bini woman is free to make a will any manner suitable to her, without observing any entrench customary law of succession. Provided it is not contrary to natural justice, equity and good conscience. She can make her will only in accordance with the stipulation of the general law relating to will.
Incidentally, when a Bini woman makes a will without observing any customary law as it relates to the devise of the Igiogbe, her will cannot be rendered invalid based on this ground of non-observance. Although it could be rendered invalid on such other grounds such mental incapacity, undue influence, duress, fraud etcetera.
However, these days, it is disheartening to note that most eldest surviving son of the late Bini woman are turning the customary law of succession around to suit their selfish desire by attaching Igiogbe to the Bini woman’s estate. Therefore, we hope the reader will be sufficiently enlightened to know that, the concept of Igiogbe is not attributable to a Bini woman’s estate like the Bini man’s estate. There is a wall of great customary difference, as highlighted above between the estate of a deceased man and woman in terms of successions. This is because when a Bini woman dies there is no prominent issue of eldest surviving son or daughter. But rather the issue is customarily the eldest child whether male or female.
More so, the question of the eldest surviving son taking precedent over the eldest surviving daughter as a basis for burial or succession to the estate does not arise at a Bini woman’s death, as it is done when a Bini man dies. When a Bini man dies, even if the eldest male child is just a month old, he takes precedent over his eldest sister who might have been a mother or ever a grandmother at their father’s death.
In conclusion, we hope this chapter will go a long way to correct every wrong notions or impressions hitherto percolating the customary terrain regarding the Bini woman’s estate particularly the error of ascribing the concept or sanctity of the Igiogbe to same.
THE CUSTOMARY RULE GUILDING THE SANCITITY OF THE IGIOGBE
The sanctity of the Igiogbe is customarily guided by laid down traditions in Bini native law and custom. Especially has it relates to inheritance and succession which have been extensively clarified the preceding chapters of this book. As a result of the sanctity of the Igiogbe, the Bini custom and traditions forbids it alienation from that particular family unit, where it belongs. It does not matter the reasons proffered for giving it away, it is a taboo to sell out the seat of the ancestors. It is this unique characteristic that makes the Igiogbe inalienable whether throughout- right sale or way of gift or by any other form of transfer, either by the eldest surviving son, or by any member of the family.
Alienation of the Igiogbe prohibits members of that family their customary and constitutional right of freedom of thought conscience and religion. As provided for by Section 38 (1) of the 1999 constitution of the Federal Republic of Nigeria.
However, in recent times there has been a radical deviation from this customary inalienable rule protecting the sanctity of the Igiogbe. These days some Bini Men see no wrong in giving out the Igiogbe through other means of transfer for example using the way as an instrument of devolution; thereby creating controversies for their children to content with after their demise. More especially some eldest surviving sons, who out of lack of respect for the age long tradition, or who out of sheer irresponsibility on their part, see lgiogbe as a very viable source of raising quick money to meet the personal interest and desire, sell out Igiogbe, while some other feel they could just sell the Igiogbe out of sheer wickedness in other to deprive the other children of the deceased easy accessibility of reaching them (eldest sons) under the pretext of ancestral worship.
It should be clarified that, both instances of transferring the Igiogbe discussed above are radically against the customary law of succession to the igiogbe this method is strongly discouraged by the adherents and custodians of the Bini traditional heritage. This is so, because it could destroy the root of that family unit. To this end, Igiogbe is a symbol of unity amongst the family members and so it is a taboo to alienate it, without regarding the custom that protects it.
IS AN OUT-RIGHT SALE OF THE IGIOGBE LEGAL ?
The above topical question has generated various controversies both in litigations and within the family units in Benin Kingdom. Going by the provisions of the Bini Law and Custom, for the administration of the Igiogbe as I have earlier expanciated , the customary law forbids the out- right sale of transfer of the Igiogbe. However, in today’s present economy, it is doubtful whether the customary law prohibiting the transfer of the Igiogbe by outright sale is still practically observed.
From the legal point of view an out-right sale of the Igiogbe could be legal and illegal depending on the circumstances surrounding the sale. Thus where the sale is done without any legal encumbrance, then the sale is legal for instance, if the lawful owner of the Igiogbe use it to secure a loan by way of mortgage and is unable to redeem this mortgage, it then become legal, for the mortgage to exercise his right to sell the Igiogbe As there is no law or custom that forbids mortgaging the Igiogbe to secure loan.
Another instance where the law would grant legality to the sale of an Igiogbe is where a person with an irrevocable title to the property is allowed to do whatever he like with it. Constitutionally the right of a man over a property presupposes a right of usage and disposal. This was the Issue highlighted in the case of Igiehon V Co-operative Bank of Western Nigeria Limited & Nedomaiye (unreported) Suit No. B/50/70. In that case, the second defendant sold the igiogbe, which he inherited from his deceased father to the first defendant. The plaintiff brought an action against the sale contending that the house was a family property that cannot be sold by one person. The court held that the eldest son can dispose of such property in the manner he chooses without being bothered by any member of the family.
In other words, an eldest son who has been vested with the title of the Igiogbe can sell it without the prior consent of members of his family, Therefore any third party who bought the Igiogbe from a person with a genuine right of ownership, after due investigation may acquire it as a bonfire purchaser in such circumstances that sale cannot be avoided.
However the out – right sale of an Igiogbe can be illegal when it was found on evidence that, there are vitiating factors of fraud in the sale. Thus, where a third party purchases the Igiogbe without due investigation of the title of property, the sale can be forfeited. Mention must be made here that such a sale is not vitiated simply because an Igiogbe is involved but rather that, collateral factors capable of vitiating any sale of a landed property is breached.
Moreover where the seller is not the rightful owner of the Igiogbe, in such cases as when the eldest surviving son has not been vested with the ownership of the Igiogbe, This happen where he has not performed the full customary funeral rites for his deceased father. Where such an eldest surviving son sells the Igiogbe, the sale will be rendered null and void when challenged. It should be noted therefore, that the Igiogbe customarily cannot be sold by a person who has not been vested with ownership of same. The important thing therefore is ownership of the Igiogbe must completely vest on the seller before he can sell or transfer good title.
It must be emphasized here that customarily any other member of the family or any other child of the deceased not vested with ownership of the Igiogbe, apart from the afore-mentioned eldest surviving son on whom it devolve has not right to sell the Igiogbe. Even if done with the prior consent of some principal members of the family. For this will border on fraud and so, such sale will be regarded as void abolitio.
On a concluding note, on the question whether an individual member of the family has a right to alienate the Igiogbe through sale can be answered in the affirmative. Only if that individual is the eldest surviving male child of the deceased man and ownership of the Igiogbe has been conferred on him. This follow where he has observed the completion of burial rites for his demise father in such a situation, he does not need the prior consent of any other member of the family to enable him transfer the Igiogbe either by way of out- right sale of mortgage to secure a loan from a financial institution. The case of OGIAMIEN V OGIAMIEN (1967) N.M.L.R: 245 of (1967) ALL N.L.R.191 clarify this issue better. In that case the plaintiff (eight sons) brought an action against the defendant, the eldest son of Chief Ogiamien, the father of the parties. The claim was for a declaration that first defendant (eldest son) has no right under Bini customary law to sell of the Igiogbe, which has been concluded by the eldest son. The plaintiff sued on behalf of himself and other members of the family. It was common ground that according to Bini custom the eldest son of a deceased Chief succeeds to all the properties of his father to his father to the exclusion of other children. The learned trial judge rejected the custom as repugnant to natural justice, equity and good conscience. He refused to be bound by it. The trial judge found for the plaintiff and set aside the sale of the second defendant. The first son appealed against the decision. In allowing the appeal, the Supreme Court held that there was nothing wrong in that custom to make it repugnant to natural justice, equity and good conscience. The customary law was upheld and the decision of the trial was reversed.
THE EFFECT OF ALIENATION OF IGIOGBE ON THE FAMILY
The igiogbe is not just like any other landed property, it carries with it special notions of age long Bini respected tradition. For this reason, it is guided jealously by the customary law of the Binis . Igiogbe is regarded as the seat of the ancestors of the family. This is where member of the family have access to worship their ancestral gods or deity. Apart from that, it serves as a root for identifying the family unit while tracing their lineage or charting the course of history´
Therefore, any form of transfer of the Igiogbe would deprive the members of the family a house that serves as a rallying point, and occasionally provides shelter to any member of the family who may be in need of accommodation.
Secondly, it will deprive the members of the family their constitutional right of freedom of worship by denying them access to the place of their ancestral worship.
Socially, in Benin kingdom, a sale or transfer of the Igiogbe is seen as a social stigma as it implies cutting the members of the family off their root. To refer to a Bini person, that he has no family house as a result of the sale of Igiogbe is tantamount to calling him an alien or slave in his fatherland. So the consequences of alienating the Igiogbe are traumatic for members of the family. It is like cutting that particular family off its root to wither away. It is psychologically very deforming for a man to live with the thought of having no traceable root.
Furthermore, arbitrary transfer of the Igiogbe could fuel the embers of the acrimony among the children of the deceased man and occasion disunity within the family circle. Sin the family is a unit within larger society; it could increase the rate of social disturbances that may cause a breakdown of the social system within. This could cause loss of lives, properties, destruction of business and complete insecurity and their attendant negative impacts on the social milieu.
The overall effect of alienating the Igiogbe could be so detrimental to the Bini man, that it can only be comparable to banishing a man from his fatherland. It might have psychological and sociological adversity on the members of the particular family. This is so because; the Igiogbe is regarded as the centre point that holds the component units together in Bini family setting. If the Igiogbe is taken away from the family, the centre can no longer hold for the members of that particular family. Things will automatically fall apart. This is because Igiogbe is the “Seat of the general assembly” for members of the family.
Thus, if the family no longer has any Igiogbe, it is like having legislator without “House of Assembly” to carry out functions of legislation. This becomes so, because Igiogbe is the highest quasi-court to resolve dispute between family members, as a result of the presence of the ancestral shrine.
Going by the reasons out-lined above it has been established that, Igiogbe is not just mere landed property. It is more than just a building. It contains the family root in the chart of history. And so it should be regarded as a valuable loose family property even though the eldest son is the sole customary of the Igiogbe.
REVIEW OF JUDICIAL DECISION ON IGIOGBE CONTROVERSIES
The Igiogbe phenomenon in the Bini native law and custom has been a very densive and controversial issue. There is so much contention associated with the mode of succession to the Igiogbe of which resulted in litigation in the law courts. In establishing their claims to the Igiogbe in the courts, the parties encounter a lot of difficulties. Some of which is how to establish the relevant customs relating to the subject matter (Igiogbe) as the court may not be familiar with same. The success or otherwise of the claim would at the end depend on the strength of the evidence led and their probative value. A plaintiff in such a situation must first establish that he is the eldest child of the deceased and that the subject matter is an Igiogbe before the court can find for him.
The concept of the Igiogbe under the Bini native law and custom has become so well recognized that it has broadly received judicial notice due to the availability of several judicial pronouncement on same. Such that one can confidently ascribe judicial notoriety to it within the precincts of section 14 of the Evidence Act which states as follow:
“S14 (1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence; the burden of proving such a custom shall lie upon the person alleging its existence.
(2) A custom may be judicially notice by the court if it has been acted upon by a court of superior or coordinate jurisdiction in the same area to an extent which justifies the court asked to apply in assuming that the persons or class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration
(3) Where a custom cannot be established and adopted as part of the law governing a particular circumstances by calling evidence to show that persons concerned in the particular area regard the alleged custom as binding upon them: Provided that in care of any custom relied upon in any judicial proceeding, it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice equity and good conscience”.
Going by the provision of section 14 of Evidence Act, it is no longer an unknown and unnoticeable issue in the court that, the customary law of succession in Bini stipulates that it is only the eldest surviving son of the deceased, who has observed full burial rites for his father that is entitled to inherit the Igiogbe. That implies, Igiogbe cannot be bequeathed to any other child even by will. This was the issue setted in the case of Lawal Osula V Lawal Osula (1955) 9 N.W.L.R. Part 419, SC 382. In that case, Chief Lawal Osula made a testamentary disposition of his property in it he devised his Igiogbe to another child of his while his eldest son was still alive. The court unanimously held, Igiogbe comprises of the house where the Bini hereditary chief lived or used as a seat of a Bini Chief. This cannot be taken away from the eldest son who succeeds him, to the title or office and perhaps this includes the paraphernalia of office. It is in the light of this native law that the phrase “subject to any customary law relating thereto” contained in section 3 (1) of the wills law of Bendel State (now applicable in Edo State) were interpreted and applied.
In the above cases Belgore JSC at page 274 paragraph D-F state;
“…The limitation law was not meant to defeat the native law and custom of any community, the law is to make sure that some customary practices are not variated and that is the purpose of section 1 (2) of limitation law will do injustice and serious mischief to age- long and time honoured Bini custom as to not only the succession but also to the estate, it is deliberately inserted to save the situation such as exist in Bini….”
Therefore, the right conferred in this respect by the said section 3(1) of the will law of Bendel State is not affected by the limitation law. So the testator Chief Lawal Osula was wrong to have devised the Igiogbe to persons other than his eldest surviving son. It is our view that the decision of the court here is very much in consonance with the Bini customary law without an iota of bias.
Furthermore, going by the provision of Section 14 (3) of the Evidence Act, it is an established fact that, the Bini custom relating to Igiogbe has been upheld by various courts in Nigeria. So there is plethora of authorities to be followed in this regard to bring a lasting solution to the mounting controversies surrounding succession to the Igiogbe. To this end, there are basic question bordered on Igiogbe, that this study has found clarification to erase every doubt surrounding the Igiogbe controversies.
NOTABLE QUESTIONS IN THIS DIRECTION ARE:
CAN A PIECE OF LAND BE REGARDED AS AN IGIOGBE ?
To provide an answer to this topical question, the case of Imade V Otabor (1998) 4 NWLB part 544 SC 20 as a case law authority is a very relevant tool to exhaust this topical issue in that case, a piece of land was the subject of contention as the deceased man’s Igiogbe. The court held that having regard to the nature of the Igiogbe As not just any landed property, and since it carries special notions of customary law such that can not only be inherited by the eldest surviving male child of the deceased, it cannot be given out in the life time of the owner to someone who may not be the eldest son at his death. The decision in this case is in consonance with the customary law, which prescribes that the Igiogbe cannot be given out as a gift. Succession to the Igiogbe is not by gift but by inheritance.
An important issue for comment in this case is the question of whether a piece of land can be regarded as an Igiogbe? It must be stated that the Bini custom recognizes an igiogbe to be a building either done by wood raffia or by bricks. Provided it is a place of habitation of the man. As a result of this customary position piece of land does not qualify as an Igiogbe. However, if the person who asserts the piece of land to be Igiogbe and that it fell into ruin due to one reason or the other, then the court may find for him if he is able to adduce cogent evidence to buttress his assertion. In other word, whether a piece of land can be regarded as an Igiogbe depends on the circumstances. Emphasis however, should not be laid on this because an Igiogbe is ordinarily a place of habitations and not a deserted place.
However in the case of IGBINOBA V IGBINOBA (unreported) Suit No. B/57/83. In that case the court had that the remaining part of the land measuring 50”x 100 is part of the Igiogbe.
With the greatest respect to the honourable Court it is our view based on observation of this study that a piece of land even though attached to the Igiogbe cannot be part of the Igiogbe. If this precedent is allow to thrive, it imply that another child of separate stripe of the same man will deprived of his portion in his father’s estate. This is what the UHRO system in Bini customary law of succession stands to correct.
The concept of attributing Igiogbe to a mere piece of land is one of the contributing factors of controversies surrounding succession to the Igiogbe. This is what the revelations in this book came to rectify in order to curtail some of the controversies, so that peace would reign in the Benin family setting in regards to succession.
Therefore it is our opinion that a piece of land attracted to the Igiogbe does not form part of the Igiogbe as this does not represent the true position of the customary law of succession of the Bini people. It is our view that the court was misled to uphold this decision. We hope that this issue will be corrected in recent cases to tally with the customary law of succession
THE CONCEPT OF MULTIPLE IGIOGBE
The idea of a multiple Igiogbe is a recent conduct gradually percolating the terrain of Bini customary law of succession. It is becoming more precarious going by the dictate and operations of the Uhro- system, which stipulates that other children of the man from other stripes other man that of the eldest surviving son are also entitled to inherit from the deceased father’s estate, as against the primogeniture system which prescribe that the eldest surviving son deceased inherit all.
Going by the section 14(3) of the Evidence Act, a custom cannot be judicially noticed and enforceable by the court of law if it is against natural justice, equity and good conscience. Thus, it is in the light of this proviso that I wish to comment on the judicial decision of the issues of two Igiogb e that rose in the case of Idehen V Idehen (1991) 6 NWLR part 198 SC 382. In that case a father gave his first son his two Igiogbe by will; unfortunately the son predeceased the father. Before the father’s death, he did not rectify the will, thus the children of the predeceased child claim ownership of the Igiogbe relying on the will. The eldest surviving son at the death of the father brought this action to restrain the children of the predeceased from claiming the Igiogbe. The court unanimously held; that under Bini customary law of succession, the Igiogbe which is the house where a deceased Bini man lived in his life time is inherited by his eldest surviving son after the completion of the funeral rites of his father. The court found for the eldest son and awarded the two Igiogbe which were six (6) kilometers apart to the eldest surviving son of the testator at the time of his death.
Following the finding in this research, it is our view that, the Supreme Court was misled to make the error of multiple or double Igiogbe, this is because one of the two houses was not in dispute and so when the plaintiff pleaded two Igiogbe in the lower court, and the defendants did not join issues with him on that.
More so, the issue of double or multiple Igiogbe is alien to the customary law of the Binis especially since the advent of the Urho- system. Thus the fact that a man became so affluent that he was able to acquire a large estate does not support the existence of a multiple Igiogbe.
There is a finding in this study to extent that if the Bini man decides to dwell in each of the house built by him, could have lived in all the houses?
The answer to the above question negative based on the ground that a man can only have one principle or main dwelling house where he lived and died and the family shine can only be in one place. So the assertion of double or multiple Igiogbe does not really represent the customary law of the Bini on the Igiogbe and succession of the Bini people. If done deliberately, it is a pervasion of the age long and time- honoured custom of the people, possibly to satisfy the inordinate greed or desire of the party canvassing or proposing it.
Moreover,, the concept of double or multiple Igiogbe is not a sustainable precedent and would seem to have been over ruled in the more recent case of Agidigbi V Agidibi (1996) 6NWRL part 45A SC 300. In that case the issue for determination, was whether more than one house can be the seat of the deceased? The contention in that case was that only one of the three (3) building in the compound where the deceased lived and died could be an Igiogbe. The Supreme Court agreed and held that only one of the three houses should be regarded as Igiogbe.
There is no doubt that if the primogeniture rule is tested in law, it would be fund to be contrary to natural justice, equity and good conscience. As it prima facie does not appear to be good law of succession.
DOES THE IGIOGBE HAS AN EXTRA-TERRITORIA APPLICATION OUTSIDE BENIN KINGDOM ?
Another controversial issue in relation to succession to the Igiogbe is whether the Igiogbe has extra- territorial application outside Benin kingdom. This was the issue demonstrated in the case of Egharevbe V Oruonghae (2001) 11 NWRL part 724, CA 318. In that case, the deceased in his will devised his Igiogbe in Benin to his eldest surviving son. By the same will, he also make a devise of his building in Sapele to his first wife who has no child for him on the condition that when the wife dies, the same house should be inherited by his daughter. Upon the death of the wife, the daughter entered into possession of the house at Sapele whereupon, the eldest surviving son instituted a suit to claim the house describe it as the father’s Igiogbe. The court held that Igiogbe does not have extra- territorial application outside Benin kingdom.
I believe it is necessary to examine the above decision of the court to the effect that an Igiogbe does not have an extra territorial application outside Benin kingdom against the backdrop of the saying in Bini that “Eghele Oei Igiogbe Oee”. Literally translated (Any place that favours a man in terms of prosperity is his main dwelling place or Igiogbe). In other words , this adage in Bini which relates to habitation and dwelling place goes to buttress the fact that a Bini person can decide to have his only Igiogbe outside Benin kingdom if that is where he lived and died then that house is known as his Igiogbe irrespective of whether it is located within Benin kingdom or not. The only distinction against this supposition is where the same Bini man who has a house outside Benin Kingdom also has another house within Benin kingdom where he lives and died, in such a situation, his Igiogbe cannot extend outside Benin territorial kingdom like the issue that arose in the case of Egharevba V Oruonghae (supra) where the deceased man even made his will known on how his estate should devolve on his death. In his will he took cognizance of the provisions of section 3 (1) of the wills law, which provides “Subject to the customary law there to”.
Another important case connected in respect of the extra-territorial application of Igiogbe is the case of Adeniyi Olowu & Orsv Olabowale Olowu & Ors (1985) 3 NWLR part 13 SC 372.
In that case, the deceased Adeyinka Ayinde Olowu was a Yoruba man by birth, belonging to the Ijesha tribe. He had lived most of his life in Benin City. He married Bini woman who had children for him, who were the plaintiff and defendants in this case. In 1942, the deceased applied to the Omo N’ Oba of Benin to be naturalized as a Bini citizen. His application was granted. As a result of his status as a Bini man he was able to of landed properties both in Benin City and elsewhere in Bendel State; which privilege he could not have enjoyed without his status. The deceased died in 1960 without making a will. Thus letter of administration were granted some of the deceased children, the first defendant distributed the estate in accordance with Bini customary law but the other children, who are plaintiff and the second defendants were not satisfied and claim that the estate ought to have been distributed according to Ijesha customary law rather than by Bini customary law´
Plaintiff brought an action in the high court to set aside the distribution according to Bini customary law and make a declaration that the Ijesha customary law should be the applicable law. They lost in the high court, which held that Bini customary law was the applicable law. They appealed; the court of Appeal affirmed the decision of the high court and dismissed the appeal. The plaintiff further appealed to the Supreme Court, which unanimously held that although the deceased was a man of Yoruba extraction he spend most of his life in Benin City and naturalized as a Bini man on that basis the Supreme Court held that the personal law governing the distribution of his estate as at his death was Bini customary law and not his personal law of origin which was Ijesha customary law.
Critically analyzing the decision in the case of Oluwu V Olowu (Supra) it is no doubt that it is a break- through in Nigeria jurisprudence and it is an eloquent testimony of the manner in which law can be utilized as an instrument of social economic and political development. Thus it is my opinion that the outcome in Olowu case is a welcome development and a catalyst to national unity if a man lived in a particular community for decades, got his wealth and children reasonably, he should be integrated into that community. His personal law should give way to the law of the place he had live for many years particularly when the children from his marriage come from woman whose customary law is the law of the place where the man had lived and died. It is a discretionary decision and the constitution of the federal republic of Nigeria allows freedom of choice. This implies that Bini man could also discretionary have his only main house outside Benin kingdom and still maintains that his personal law shall be the determining factor in the distribution of his estate or he could choose the law in the place where he has his main house to be the applicable law in the distribution of the estate. However, this is only applicable and practicable where he dies intestate. But where he died testate his will should be a Bini man’s customary law of succession as it regards devising the Igiogbe.
Going by the above exposition we believe it is safe to argue that a Bini man can have his Igiogbe outside Bini kingdom. The issue is not novel to Bini customary law of succession. There are several instances where that custom has been applied locally in the distribution of a deceased estate. Although none of them has come up for determination in the law court. We hope that when issue of this kind come up for determination in the court, the honorable courts will be persuaded to hold that the Bini customary law of succession recognizes that Igiogbe has an extra-territorial application outside Benin kingdom in order to do justice in that case. If justice must be done but must be seen as manifestly done even on customary issues.
After a careful examination of some of the controversies surrounding the Igiogbe which is the major purpose of this in-depth study of judicial and extra-judicial conflicts, the nature of inheritance and the pros and cons of the contention between members of the particular family involved. It is my opinion that the surviving children of a deceased should let unity within the family be their cardinal drive and guide while scheming to posses the portion of their inheritance in their family estate. The essence of the custom of Igiogbe itself is surrounded in unit.
The eldest surviving son of a deceased Bini man should see his position not only as the head of the family but as a personality of unity which carries the responsibilities of his late father. He has a duty to co-operate with other members of the family for peace to reign within the family unit after the demise of their father and for the betterment of the larger society. It will not portray a good image of the Bini to become notorious for struggling and scrambling over properties constituting a Bini man’s estate. It has been found that sometime, it is the deceased owner of the Igiogbe that even caused the controversy in his life time by loving some of his children while hating the other and manifesting the love and hatred in devising his estate without regard to prevailing and established custom concerning same. The deceased uses the will to try to establish authenticate his actions by making devises against known customary law unmindful of the rancor and bitterness. It could engender among his children.
On the other hand, some heads of the extended family cannot be left out in the controversies surrounding the Igiogbe. Sometime they try to blend the true position of the customary law of succession as it relates to different stripes of the man to suit their own bias and thus contribute to the controversies around the estate of the deceased and subject the time honoured custom to criticisms and mutilations therefore, I use this medium to implore every Bini person home and abroad to uphold the integrity of the Bini custom when dealing with matters relating to the Igiogbe.
In conclusion, I recommend the law courts, who labour to bring a lasting solution to the controversies surrounding the Igiogbe by marrying general law with the customary law of the Bini to arrive at a just decision in order to maintain peace and tranquility within the various units of the family system despite Bini man’s estate.
Written by EFE SOPHIA OSAMUEDE (Mrs), LLB (UNIBEN)BL
Barrister and solicitor of the Supreme Court of Nigeria.
She is a seasoned writer and partner in the Law office:
Edebor & Osamuede,
praise chambers,
2nd floor,
237, Murtala Mohammed way,
