A “WILL” Cannot Over Power Customs In Yoruba & Benin States In Nigeria.

A “WILL” Cannot Over Power Customs In Yoruba & Benin States In Nigeria. Daily Law Tips (Tip 712) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction: 

People are often encouraged to make a “WILL” before death to ensure their property are well disposed and that their loved ones are adequately protected. This is built on the assumption that a “WILL” is a sacred wish of a dead person that must be respected by all persons. Ironically, there are limitations that make this assumption wrong. Imagine a limitation that does not stop a living person from disposing his property but limits that same person from disposing the same property through a “WILL”. Somehow, the limitations can even invalidate a well written and video recorded “WILL”. The limitations allow courts in Nigeria to reject a “WILL” and to dispose a property contrary to the contents of the “WILL”. 

This work focuses on the customary limitation placed by several laws on “Will”, that limits disposal of property that are under native law and custom (customary ownership). It highlights the states in Nigeria that are affected as well as states that are free from such limitations. 

History Of Laws On “WILL” According to the Supreme Court:

There is no better place to obtain genuine facts about Nigerian laws and history, than from the judgments of the Supreme Court of Nigeria. On the history of laws on “WILL”, hear the Justice MOHAMMED BELLO of the Supreme Court of Nigeria in the case of IDEHEN & ORS v. IDEHEN & ORS (1991) LPELR-1416(SC); 

”During the colonial era, the Wills Act 1837 of England which empowered a testator to dispose of his properties – real and personal – as he pleased, applied as an Act of general application throughout Nigeria. At that time, any native law and custom which was incompatible with the Wills Act was unenforceable and the provisions of the Act prevailed. A testator had the right to dispose of his properties, real and personal irrespective of any encumbrance of native law and custom on the property: Adesubokan v. Yunusa (1971) 1 All N.L.R. 225.”  Afterwards, each region (Western, Mid-Western, Eastern and Northern regions) made their own laws on “WILL”. Later when states were created in the regions, the states also made their own laws on “WILL” which are often replicas of the laws on “WILL” in their regions. 

Present Status of Laws on “WILL”:

Presently, Nigeria does not have a national (federal) law on “Will”. Rather regions and states in Nigeria have separate laws on “WILL” and as expected, this has unequal effects across Nigeria. For example, in the Northern part of Nigeria, the law on “WILL” is the English Wills Act of 1937. As as such, many states in that region have enacted their state laws on “WILL”, which are mere copies of the English Wills Act of 1937 but with unique law titles and citations. By the English Wills Act of 1937, in all the states in the Northern part of Nigeria, where it operates, people are free to make a “WILL” over any property. So, there is really no limitation on what can be shared through a “WILL” in the states in Northern Nigeria. 

Unlike in criminal law, the English Wills Act of 1937 is a law that both Northern part of Nigeria and the Eastern part of Nigeria have in common. Yes, the states in the eastern region of Nigeria have replicated the English Wills Act of 1937 as their state laws on “WILL”, with unique law titles and citations. As expected, persons in eastern Nigeria have no limitation on what can be disposed or shared through a “WILL”. 

This one-dimensional law, changes the moment one lands into any of the states in the Western part of Nigeria. This part of Nigeria is predominately habited by the Yoruba people of Nigeria, as the Igbo people of Nigeria live majorly in the eastern part of Nigeria and the Hausa/Fulani people of Nigeria dominate the Northern part of Nigeria. Always note that, Nigeria has about 371 tribes. 

In the Western part of Nigeria (including the Mid-Western part of Nigeria), the operational law of “WILL” is the Wills Law of 1959. So, many states in the Western part of Nigeria replicated the Wills Law of 1959 as their state laws on “WILL” but with unique law titles and citations. Unlike in the Northern part of Nigeria and the Eastern part of Nigeria, the laws on “WILL” in the Western part of Nigeria, placed a limitation on the origin of property that any person can dispose via “WILL”. The limitation is that in Western Nigeria and Mid-Western Nigeria, a person can give out his property through a “WILL” but cannot give out any of his property that is bound by native law and customs (Customary Law). 

Customary Limitation on “WILL” (“You Cannot Give What You Don’t Have Principle”):

Customary law, customarily owned property and customary ownership cannot be affected by a “WILL” in the states in the Western part of Nigeria and the Mid-Western part of Nigeria. The Supreme Court of Nigeria has through a plethora of judgments validated this position of the laws of states in those regions of Nigeria. The popular Benin tradition that mandates the first son of a man to inherit his father’s main residential property (igi-ogbe), irrespective of his father’s “WILL”, has given several opportunities to the Supreme Court of Nigeria, for the Supreme Court to emphasis that a “WILL” cannot change, or alter any native law and custom in any community in the Western or Mid-Western part of Nigeria. Benin Kingdom is in Edo State, in the Mid-Western region of Nigeria.   

It must be mentioned that, few states in the Western part of Nigeria, have moved on to enact their own unique laws on “Will”, this includes, Lagos State and Oyo State. In the new unique law on “WILL” of Lagos State, there is still Customary Law Limitation over “WILL”. In the law on “WILL” of Oyo State, there is still also a Customary Law Limitation, plus even an Islamic Law Limitation. So that, in Oyo State, a property held under customary law are above a “WILL” and persons that are Muslims are exempted from the law on “WILL”.

Across Nigeria, there are about 371 tribes with their unique cultures, native law and customs. One common thing with customs across Nigeria, is communal life, communal ownership and extended families. So, by native law and custom, landed property and any other property owned or bound under native law and custom must be shared in accordance with the relevant native law and custom. By this, certain property owned under native law and customs are arguably not exclusive property of their owners at death and as such, their owners may not be able to share them via a “WILL”. After all, one cannot give what one does not have, to avoid being prosecuted for a criminal case of misrepresentation, stealing, cheating and conversion. 

The above paragraph sums up the logic behind laws on “WILL” in the states in Western and Mid-Western regions of Nigeria, that clearly stated that property owned or bound under native law and custom cannot be affected by a “WILL”. Imagine, the customary relevance of the ancestral land of a family, which is often inherited by only the children of the family, now being shared by a father through a “WILL” to a total stranger. 

This logic has received judicial blessings from “… several judgments from the Supreme Court of Nigeria, upholding the place of customary laws over certain property and how such property cannot be under a “WILL”. This is seen in “several superior Courts of record including this Court and the apex Court in the cases of Ogiamien v. Ogiamien (1967) NMLR 382; Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382 (S.C.); Agidigbi v. Agidigbi (1992) 2 NWLR (Pt. 221) 98; Lawal-Osula v. Lawal-Osula (1993) 2 NWLR (PT 274) 158 (S.C.) amongst a host of others. …. What makes the house of a deceased Bini man Igiogbe under Bini native law and custom, which he cannot even give out by Will to anyone but his eldest surviving son ….”, quoting Justice BOLOUKUROMO MOSES UGO of the Court of Appeal in the case of ISU v. ABASA & ORS (2017) LPELR-42014(CA)

Conclusion: 

“WILL” is regulated by law and where the law that regulates “WILL” makes customary law to be above “WILL”, then so be it. In the states in the Western and Mid-Western States in Nigeria, their laws on “WILL” clearly prohibits any person from making a “WILL” over any property that is bound under customary law. This clearly protects their rich cultural heritages and customs, however, unfortunately higher and above the clear intentions of a maker of a “WILL”. 

It has been argued that Customary Limitation which is created by laws on “WILL” is contrary to natural justice and that it contradicts the essence of “WILL” and rather promotes the sharing of property of dead persons contrary to their wishes. This is clearly seen in the case of Osula Vs Osula, where the maker of a “WILL” clearly stated that he does not want his will to be changed by any person and that he does not want the customs of Benin Kingdom to apply to his “WILL”, however, the Supreme Court of Nigeria forcefully applied the native law and customs of Benin Kingdom on the “WILL” and modified the “WILL” over property that where bound by native law and custom.  

Many are clamoring for Customary Law Limitation on “WILL” in states of the Western and Mid-Western region of Nigeria to be expunged, in order to promote respect for “WILL” and wishes of the dead. It is not a crime or a fault of any person to be off any particular custom and culture, so people should be allowed to denounce their customs, even at death. I support this call and do condemn the cowardly acts of the laws of “WILL” in the concerned states, that clearly robes and steals from dead persons, just to satisfy often lazy and ill-mannered beneficiaries contrary to their true intentions of their dead benefactors.  

My authorities, are:

  1. Sections 1, 2, 3, 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999.
  2. Sections 1, 2, 26 and 27 of the Wills Law of Lagos State, 1990 Cap W2 Laws of Lagos State 2004 
  3. Sections 1, 2, 3, and 4 of the Wills Edict of Oyo State 1990 
  4. The Judgment of the Supreme Court (on the history of Wills Act in Nigeria) in the case of IDEHEN & ORS v. IDEHEN & ORS. (1991) LPELR-1416(SC).
  5. The judgment of the Supreme Court of Nigeria (on the superiority of customary law over “WILL” in Western and Mid-Western regions of Nigeria) in the case of Osula V Osula (1995) 9 NWLR pt 419 page 259.
  6. The judgment of the Court of Appeal (on the superiority of customary law over “WILL” in Western and Mid-Western regions of Nigeria) in the case of Court of Appeal in the case of ISU v. ABASA & ORS (2017) LPELR-42014(CA)
  7. Onyekachi Umah, “A “WILL” Without Good Financial Provision For Family Can Be Cancelled” (LearnNigerianLaws.com, 7 December 2020) <https://learnnigerianlaws.com/a-will-without-good-financial-provision-for-family-can-be-cancelled/ > accessed 8 December 2020
  8. Onyekachi Umah, “How To Recover Property Of The Dead In Nigeria. (A Legal Guide On Probate Matters In Nigeria)” (LearnNigerianLaws.com, 10 March 2016) <https://learnnigerianlaws.com/how-to-recover-property-of-the-dead/ > accessed 5 December 2020
  9. Obiora Atuegwu Egwuatu, “Limits Of A Testator On Freedom Of Will Testament” (nigerianlawguru,) <http://www.nigerianlawguru.com/articles/family%20law/LIMITS%20OF%20A%20TESTATOR%20ON%20FREEDOM%20OF%20WILL%20TESTAMENT.pdf > accessed 5 December 2020. 
  10. Onyekachi Umah, “Requirements Of A Valid/Genuine Will” (LearnNigerianLaws.com, 13 July 2020) <https://learnnigerianlaws.com/requirements-of-a-valid-genuine-will-daily-law-tips-tip-608-by-onyekachi-umah-esq-ll-m-aciarbuk/ > accessed 5 December 2020. 
  11. Vanguard, “Full List Of All 371 Tribes In Nigeria, States Where They Originate” (Vanguard Newspaper, 10 May 2017)< https://www.vanguardngr.com/2017/05/full-list-of-all-371-tribes-in-nigeria-states-where-they-originate/> accessed 3 December 2020
  12. Onyekachi Umah, “Can An Inheritance Under A “Will” Be Rejected?” (LearnNigerianLaws.com, 6 May 2020)<https://learnnigerianlaws.com/can-an-inheritance-under-a-will-be-rejected-daily-law-tips-tip-563-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 5 December 2020
  13. Onyekachi Umah, “He 4 Facts Courts Must Consider In Evaluating Expert Opinions On Handwriting And Signatures On Wills” (LearnNigerianLaws.com, 2 November 2019) <https://learnnigerianlaws.com/the-4-facts-courts-must-consider-in-evaluating-expert-opinions-on-handwriting-and-signatures-on-wills-daily-law-tips-tip-449-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 5 December 2020
  14. Onyekachi Umah, “Acceptable Age For Making Of Wills In Nigeria” (LearnNigerianLaws.com, 25 April 2019) <https://learnnigerianlaws.com/acceptable-age-for-making-of-wills-in-nigeria-daily-law-tips-tip-318-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 5 December 2020

#SabiLaw

#DailyLawTips

#SabiBusinessLaw

#SabiElectionLaws

#SabiHumanRights

#SabiLawOnBeatFm

#SabiLawLectureSeries

#CriminalJusticeMonday

#SabiLawVideoChallenge

Speak with the writer, ask questions or make inquiries on this topic or any other via [email protected], [email protected] or +2348037665878 (whatsapp). 

To receive our free Daily Law Tips, join our free WhatsApp group via the below link:

https://chat.whatsapp.com/Drc0UK3ba10KnuR8zuPMwl

Or our free Telegram group, via the below link:

https://t.me/LearnNigerianLaws

To keep up to date on all our free legal awareness projects, follow us via:

Facebook Page:@LearnNigerianLaws, Instagram: @LearnNigerianLaws and Twitter: @LearnNigeriaLaw

Please share this publication for free till it gets to those that need it most. Save a Nigerian today! NOTE: Sharing, modifying or publishing this publication without giving credit to Onyekachi Umah, Esq. and “LearnNigerianLaws.com” is a criminal breach of copyright and will be prosecuted.

This publication is the writer’s view not a legal advice and does not create any form of relationship. You may reach the writer for more information.

Powered by www.LearnNigerianLaws.com {A Free Law Awareness Program of Sabi Law Foundation, supported by the law firm of Bezaleel Chambers International (BCI).}

Related Articles

191 COMMENTS

  1. You actually make it seem so easy with your presentation but I find this topic to be really something
    which I think I would never understand. It seems too complicated and
    very broad for me. I am looking forward for your next post, I will
    try to get the hang of it!

    Feel free to visit my webpage :: Dixie

  2. Hi, There’s no doubt that your website may be having
    browser compatibility problems. Whenever I look at your website in Safari,
    it looks fine however, if opening in IE, it’s got some overlapping issues.
    I merely wanted to give you a quick heads up! Apart from that,
    fantastic blog!

    My site :: classificamp.com.br

  3. I must thank you for the efforts you have put in penning this site.
    I’m hoping to check out the same high-grade blog posts by you later on as well.
    In truth, your creative writing abilities has
    encouraged me to get my own, personal site now 😉

    Also visit my page … lrmoli.com

  4. I have been exploring for a little for any high-quality articles or weblog posts on this kind of house .
    Exploring in Yahoo I ultimately stumbled upon this site.
    Reading this info So i’m happy to convey that I’ve a
    very excellent uncanny feeling I discovered exactly what I needed.
    I most surely will make certain to do not omit this web site and give it
    a look on a relentless basis.

    Feel free to surf to my web blog – http://wiki.goldcointalk.org/index.php?title=Secrets_And_Techniques_Your_Parents_By_No_Means_Instructed_You_About_Dedicated_Servers

  5. Have you ever thought about adding a little bit more than just your articles?
    I mean, what you say is important and everything.
    Nevertheless imagine if you added some great pictures or
    video clips to give your posts more, “pop”! Your content is
    excellent but with images and clips, this blog could undeniably be one of the greatest in its niche.
    Fantastic blog!

    Also visit my blog post … http://www.drugoffice.gov.hk/gb/unigb/pastelink.net/m14svc9g

  6. After going over a handful of the blog articles on your blog, I seriously like your technique of
    blogging. I saved it to my bookmark website list
    and will be checking back soon. Please check out my web site
    as well and tell me your opinion.

    my site :: discuss

  7. Hello, Neat post. There is an issue along with your
    web site in internet explorer, would test this? IE nonetheless is the market chief
    and a large part of people will omit your magnificent writing due to this problem.

    Feel free to visit my webpage :: bbs.ffsky.com

  8. I loved as much as you will receive carried out right here.
    The sketch is attractive, your authored subject matter stylish.

    nonetheless, you command get bought an shakiness
    over that you wish be delivering the following. unwell unquestionably come further
    formerly again as exactly the same nearly
    very often inside case you shield this hike.

    Review my blog – kinofilm2017.ru

  9. Woah! I’m really digging the template/theme of this site.
    It’s simple, yet effective. A lot of times it’s very difficult to get that “perfect balance” between user friendliness and visual appeal.
    I must say you’ve done a superb job with this. In addition,
    the blog loads extremely quick for me on Internet explorer.

    Outstanding Blog!

    My page – 0123zx.com

  10. Hi terrific website! Does running a blog similar to this take a
    great deal of work? I’ve no knowledge of coding but I
    had been hoping to start my own blog in the near future.
    Anyhow, should you have any suggestions or tips for
    new blog owners please share. I understand this is off subject however I just had to ask.
    Thanks a lot!

    My homepage … http://xoxi.ru/user/maryshears1/

  11. Have you ever considered creating an e-book or guest authoring on other blogs?
    I have a blog based upon on the same ideas you discuss and would really like to have you share some stories/information. I know my visitors
    would appreciate your work. If you’re even remotely interested, feel free to
    send me an email.

    Here is my webpage :: sc.sie.gov.hk

  12. Awesome blog! Do you have any recommendations for aspiring writers?
    I’m planning to start my own site soon but I’m a little lost on everything.

    Would you propose starting with a free platform like
    Wordpress or go for a paid option? There are so many options out there that
    I’m completely overwhelmed .. Any ideas? Thank you!

    My web page: b3.zcubes.com

  13. Simply want to say your article is as astonishing. The clarity to your post
    is simply great and that i can think you are knowledgeable on this subject.
    Fine along with your permission allow me to clutch your feed to stay
    updated with drawing close post. Thanks 1,000,000 and please
    carry on the gratifying work.

    Feel free to surf to my web site – clashofcryptos.trade

  14. Hey! I could have sworn I’ve been to this site before but after checking through some of the post I realized it’s new to me.
    Anyhow, I’m definitely delighted I found it and I’ll be bookmarking and checking back often!

    Feel free to surf to my homepage … lz13w.com

  15. Hi, I do think this is a great website. I stumbledupon it ;
    ) I’m going to come back yet again since i have bookmarked it.

    Money and freedom is the best way to change, may you be rich and continue to help others.

    Feel free to visit my website – elita-hotel.ru

  16. Admiring the persistence you put into your website and in depth information you offer.
    It’s nice to come across a blog every once in a while that
    isn’t the same outdated rehashed material.

    Excellent read! I’ve saved your site and I’m adding your RSS feeds to my Google account.

    Feel free to surf to my web page: yogicentral.science

  17. Hello There. I found your blog the use of msn. That is an extremely well
    written article. I’ll make sure to bookmark it and return to read extra of your useful info.
    Thank you for the post. I’ll certainly return.

    my web page – 021ri.com

  18. I loved as much as you will receive carried out right here.
    The sketch is tasteful, your authored material stylish.

    nonetheless, you command get got an nervousness over that
    you wish be delivering the following. unwell unquestionably come further formerly again since exactly the same nearly a lot often inside case you shield this increase.

    Visit my blog; photointeriorpro.ru

  19. Aw, this was a very nice post. Taking a few minutes and actual effort to generate a really good article… but what can I say… I procrastinate a whole lot and never
    manage to get nearly anything done.

    Here is my web site – discuss

  20. With havin so much written content do you ever run into any problems of plagorism or copyright violation? My blog has a lot of exclusive content I’ve either created myself or outsourced but
    it looks like a lot of it is popping it up all over
    the web without my permission. Do you know any ways to help protect against content from being ripped off?
    I’d genuinely appreciate it.

    Also visit my blog post … discuss

  21. You’re so awesome! I don’t suppose I have read a single
    thing like this before. So wonderful to find another person with some original thoughts on this subject
    matter. Seriously.. thank you for starting this up.

    This site is one thing that is needed on the web, someone with a little originality!

    Visit my site … sporteyes51.ml

  22. Do you have a spam issue on this blog; I also am a blogger,
    and I was wondering your situation; we have created some nice methods and we are looking to swap solutions with other folks, be sure to shoot me an e-mail if interested.

    My web site … discuss

  23. The other day, while I was at work, my cousin stole my iphone and tested to see if
    it can survive a 30 foot drop, just so she can be a youtube
    sensation. My iPad is now destroyed and she has 83 views.

    I know this is totally off topic but I had to share it with someone!

    My webpage :: http://www.folkd.com

  24. Excellent beat ! I wish to apprentice while you amend your web site, how can i subscribe for a blog
    website? The account aided me a acceptable deal. I had been tiny bit acquainted of this your broadcast provided bright clear
    concept

    My webpage – discuss

  25. I have been exploring for a bit for any high quality
    articles or blog posts on this sort of area . Exploring in Yahoo I ultimately stumbled
    upon this web site. Reading this information So i am glad to express that I have an incredibly excellent uncanny feeling I found out just what I
    needed. I most certainly will make sure to don?t fail to remember this site and give it a glance
    regularly.

    Here is my web blog :: http://gticlub.lv/user/bengalgray1/

  26. Wow that was strange. I just wrote an incredibly long comment but
    after I clicked submit my comment didn’t appear. Grrrr…
    well I’m not writing all that over again. Anyways, just wanted
    to say great blog!

    my webpage: s.id

  27. Have you ever thought about including a little
    bit more than just your articles? I mean, what you say is important and all.
    However think of if you added some great pictures or video clips to give your posts more,
    “pop”! Your content is excellent but with pics
    and clips, this website could undeniably be one of the best in its field.
    Very good blog!

    my page :: smartbabel.co.uk

  28. Hello! This is kind of off topic but I need some advice from an established blog.
    Is it tough to set up your own blog? I’m not very techincal
    but I can figure things out pretty quick. I’m thinking about creating my own but I’m not sure where to
    start. Do you have any tips or suggestions? Many thanks

    Here is my page discuss

  29. Hello There. I found your blog using msn. This is an extremely well written article.
    I will make sure to bookmark it and come back to read more of your useful information. Thanks
    for the post. I’ll certainly comeback.

    Feel free to surf to my webpage: ipk666.cn

  30. Simply wish to say your article is as astonishing. The clarity in your post is simply spectacular and i could assume you’re an expert
    on this subject. Well with your permission let me to grab your feed to keep up to date with forthcoming post.
    Thanks a million and please continue the rewarding work.

    my page zalicz.net

  31. I was curious if you ever considered changing the page
    layout of your website? Its very well written; I love what youve got to
    say. But maybe you could a little more in the way of content so people could connect with it better.
    Youve got an awful lot of text for only having one or two images.
    Maybe you could space it out better?

    Stop by my website; revistas.upel.edu.Ve

  32. Hello, i read your blog occasionally and i own a similar
    one and i was just curious if you get a lot of spam comments?

    If so how do you protect against it, any plugin or
    anything you can advise? I get so much lately it’s driving me crazy so any
    help is very much appreciated.

    Also visit my blog … talktoislam.com

Stay Connected.

1,169,000FansLike
34,567FollowersFollow
1,401,000FollowersFollow
0SubscribersSubscribe
- Advertisement -

Latest Articles