-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.