K.K. ELEJA & CO
LAWAL OSULA V. LAWAL OSULA (1995) 10SCNJ 84; AN OVERVIEW
Delivered by Janet Babajide (Miss)

12th April, 2014


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 aforestatedquestions.
FACTS AND HISTORY OF 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:

  1. “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.
  2. 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.
  3. 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.
  4. 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.
  5. An order revoking or recalling the grant of letters of probate and administration granted to the defendants if any.
  6. 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.
  7. 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:

  1. “Whether the facts pleaded in paragraphs 9 of the plaintiffs/appellants’ statement of claim were sufficient.
  2. 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.
  3. 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.
  4. 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.
  5. Whether the defendants were able to prove that the testator’searlier marriage to PW7 had been dissolved before the testator married the 1st defendant.
  6. 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.
  7. Whether a Bini man married under the Marriage Act cannot change his personal law other than by the dissolution ofhis Christian marriage.
  8. Whether the Will (Exhibit A) complied with the Bini customary law applicable to hereditarytitle holder.
  9. Whether the Marriage Act vitiates or conflicts the Bini custom that the estates of the hereditary title holder are not distributable.
  10. Whether the unequivocal testimony of credible witness cannot rebut the presumption of due execution of a Will.
  11. Whether the testator who is a hereditary title holder can make a Will.
  12. 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).
  13. 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:

  1. “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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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:

  1. “Whether the Respondents’ action was statute barred.
  2. Whether on the evidence the 1st Respondent established his claim as the “acknowledged legitimate senior son/; of the testator.
  3. 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:

  1. “Whether the Plaintiffs/Respondents action or claim mainly based on family status and inheritance under the Bini customary law was statute barred.
  2. 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.
  3. 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
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:

  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.”

{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:
“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.

  1. 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.
  2. 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.”

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.”
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.
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.
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.
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.
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.
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:
“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”
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:

  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:

Provided that the provisions of this Law shall not apply-

  1. 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
  2. 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.
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.
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:
“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.”
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.
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.
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.
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.
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.
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:
“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.”
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.
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.
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.
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.
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.
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.

  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.

  3. 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.

  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.

  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.

  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.

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