S. KAWU, JSC (Delivering the Leading Judgment): Both the appellants and the respondents in this appeal are some of the children of the late Joshua Iserhienrhien Idehen, a wealthy gentleman of Bini Origin who died on the 18th day of September, 1979 leaving a number of real and personal properties. He left a Will dated 10th March, 1973 in which he made several devises and bequests. In this Will he devised to his eldest son, Dr. Humphrey Idemudia Idehen his two houses at No. 62 Akpakpava Street and No. 1 Oregbeni Ikpoba Hill, both in Benin City. It was common ground that the deceased lived in these houses in his life-time and they therefore constituted his Igiogbe. Unfortunately Dr. Humphrey Idemudia Idehen predeceased his father and consequently the 1st Respondent became his father's eldest son. Subsequently the Respondents, as plaintiffs instituted an action in the High Court against the appellants, who were the executors of their father's estate, challenging the validity of their father's Will. Their claims as finally formulated in their further Amended Statement of Claims, are as follows:
"1. A declaration that the document dated the 10th March 1973 purporting and/or pretending to be the Will of Joshua Iserhienrhien Idehen (hereinafter referred to as the "Deceased") who died on the 18th September 1979 at Benin City is null and void for not being the act of the Deceased as well as for non-compliance with the relevant statutory requirements relating to Wills.
2. A declaration that in accordance with Bini Customary Law of succession, the 1st plaintiff as the eldest surviving son of the Deceased succeeds exclusively at all events to the houses and/or properties laying and situate at and known as No. 62 Akpakpava Street and No. 1 Oregbani Ikoba Hill, Binin City in addition to the lion's and/or disproportionately large share of the remaining part of the Deceased's Estate which the 1st plaintiff shares with the other children of the Deceased.
3. A declaration that the plaintiffs are entitled to a grant of letter of administration of the Estate of the Deceased.
4. An order of perpetual injunction restraining the defendants from administering, expending, disposing of or dealing in any way with the Deceased's Estate or any part thereof.
5. An order compelling the defendants to restore to the said Estate any part thereof unlawfully disposed of or dealt with by them."
At the trial, the 1st plaintiff gave evidence and called four other witnesses who testified in support of his claims.
The 1st defendant also gave evidence in his defence and called six other witnesses who testified in his support.
At the conclusion of the trial and having carefully examined the evidence adduced in support of the various issues canvassed by the parties, the learned trial Chief Judge made some important findings of fact. In particular, on the issue of the validity of the Will being challenged, he observed in his judgment as follows:
"I shall now proceed to deal with the issue of Exhibit 'D' i.e. the Will. There are various aspects of this issue, some being of the fact and others being of law. The first aspect to decide is whether the Will (whether valid or invalid) was actually that of Iserhienrhien or whether it was something framed up after his death as has been suggested in party by the Plaintiffs. On this aspect of the issue I accept in its entirety the evidence of the solicitor, D.W.1 (now Isaac Aluyi J, President of the Customary Court of Appeal) who said that he prepaid it on the instructions of Iserhienrhien and personally lodged it with the Probate Registry in 1973. My acceptance of this evidence if further strengthened by the evidence given on both sides that it was the Probate Registrar who invited them and produced and read to them Exhibit 'D' as the last will and testament of their father, In short, I find as a fact that Exhibit 'D' was the Will of the late Iserhienrhien. Although the question of the signature of Iserhienrhien in Exhibit D is not put in the issue in the pleadings (but only raised in evidence) I hold from the evidence before me that the late Iserhienrhien was the person who signed Exhibit D as J. I. Idehen.
The next aspect of this issue is whether the will was executed in compliance with the Wills Law and whether it is valid. On this issue, P.W.4 (i.e. Gilbert Enobakhare) who identified his signature on Exhibit 'D' said that he did not know that it was a will at the time he was signing it, and that he did not ask to know what it was. He also said that Iserhienrhien did not sign it in his present. Finally, he said that only he, Iserhienrhien, and Isaac Aluyi (DW.1) were present at the time he signed. In other words, the other witness O. Idehen. Whose name appears on Exhibit D as the second witness was not sent when he (P.W.4) signed Exhibit D. The import of this evidence a, submitted by learned counsel for the Plaintiffs is that the will was not executed in compliance with Section 6 of the Wills Law which requires the testator to acknowledge or sign the Will "in the present of two or more witnesses present at the same time" and further requires that "such witnesses shall attest and subscribe the will in the presence of the testator".
In contradistinction to the evidence of P.W.4 is the evidence of D.W.1 (Isaac Aluyi) who as solicitor prepared the Will. He gave a graphic account of how on being telephoned by the testator he went to his house and there met the testator P.W.4 and O. Okhomina. He then gave very clear evidence of the day and time and of how he personally supervised the execution of the Will-of how Iserhienrhien signed in the presence of P.W.4 and O. Idehen, and how these other two signed as witnesses in the presence of each other and in his presence.
These two witnesses (i.e. P.W.4 and D.W.1) were testifying before me some ten years after the execution of the will. It is common knowledge that some persons have better recollection faculty than others. Watching P.W.4 as he testified. I had gave doubts about his recollection of faculty. I found it also difficult to accept that a person of his status a well-known educationist and retired Permanent Secretary did not even enquire to know the nature of the document he was being asked to sign, especially, as he said, if part of it was covered up by the solicitor who was asking him to sign.
The second witness O. Idehen, being dead, was not called to testify. In such circumstances, where it would be unsafe to reply on the memory of one man alone in respect of an incident which happened long ago, the courts act under the principle ommia praesumuntur rite esse acts, especially as Exhibit D shows on the face of it that it was signed by the testator in the presence of two witnesses who equally attested it. See Art. 361 of Halsbury's Laws of England, 3rd Edition Vol. 16 at page 204. See also Dayman v. Dayman (1894) 71 L.T. 699. But I am not relying on that maxim alone. There is the graphic account of D.W.1 (the solicitor) who supervised the execution of the Will and whose evidence I believe and accept.
I have also considered the contention of the Plaintiffs that Okhomina Idehen was an illiterate who could not sign his name. This evidence was in fact given by 1st Plaintiff alone. His witnesses did not support it. Indeed P.W.1 said "I cannot say whether Okhomina Idehen used to signed or thumb-print the plot approval document of the Ward," On this Issue D.W.3 gave clear evidence showing that Okhomina Idehen was in the habit of signing documents. He went further to identify the signature of Okhomina Idehen in both Exhibit 'D' and 'E'. In short, I am satisfied that Exhibit D was signed by Okhomina Idehen as the second witness.
In the sum, I hold that Exhibit D was prepared and executed in compliance with the Wills Law and therefore valid. In other words I hold that Iserhienrhien died testate."
Having come to the conclusion that the late Iserhienrhien died testate and that his Will Exh. 'D' was validly made in compliance with the provisions of the Wills Law, he went further to consider the validity of the devices of the testator's Igiogbe as contained in Clause II of Exh. 'D'. In this regard he examined the provisions of Section 3(1) and 28 of the Wills Law and held as follows:-
"I have no doubt whatsoever in my mind that when Iserhienrhien devised the two Igiogbes to Dr. Humphrey Idemudia Idehen by clause II of his will, his intention was only to comply with the above Bini customary law which from all I have said, he must be presumed to have known very well. In short, he devised the Igbiogbes to his first son qua first son with the full knowledge and hope that that would be the person to perform his funeral ceremonies and step into his shoes, whenever he died.
Having held that the property devised in clause II was only intended for a first son who survived his father, and having regard to the fact that 1st Plaintiff became the first surviving son of Iserhienrhien after the death of Humphrey, the question is whether the properties devised in clause II of the will have passed to the sons of Humphrey by virtue of Section 28 of the Wills Law reproduced above. In the face of the accepted custom of the Bini people, the answer to this question must be an emphatic No. In fact, even if Iserhienrhien had devised them directly to Humphrey's sons after Humphrey death, such devise would have been void for being against Bini customary law. See Section 3(1) of the Wills Law (reproduced above) which enjoins a testator to make his will subject to his customary Law. A son who survives his father who is obliged by the customary law of his people to inherit the principal dwelling house of his father cannot be deprived of that right by the mere fact of his father purporting to dispose of it by will to another child who is not entitled under the custom. See also the case of Thompson Oke and Anor v. Robinson Oke and Anor. (1974) 1 All N.L.R. 443 where Section 3(1) of the Wills Law was upheld."
Thereafter he dismissed plaintiffs claims with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:
"A declaration that in accordance with Bini customary Law of succession, the first Plaintiff as the eldest surviving son of Iserhienrhien (deceased) succeeds exclusively to the houses and/or properties lying and situate at and known as No. Akpakpava Street and No. 1 Oregbeni Ikpoba Hill, Benin City. For the avoidance of doubt it is ordered that the first Plaintiff is entitled to hold these houses and/or properties in trust for himself pending such time as he may perform any second burial ceremonies as may be required and after which customary title to the said properties Will vest in him absolutely".
Dissatisfied with the Judgment of the learned trial Chief Judge, both the plaintiffs and the defendants appealed to the Court of Appeal. The plaintiffs filed four ground of appeal and in their appeal sought "an order setting aside the finding that the Will, Exhibit 'D' is valid and that portion of the judgment where the learned trial Chief judge refused to grant reliefs 1, 3, 4 and 5 of the claim: and thereafter an order declaring the Will invalid and/or null and void, or an order making it totally subject to Bini Customary Law of succession in accordance with Section 3(1) of the Wills Law Cap. 172. Laws of the Bendel State of Nigeria 1976, and then granting all the reliefs sought by the plaintiffs in their writ of summons and/or statement of claim".
The defendants also cross-appealed and stated the reliefs sought from that Court as follows:-
"An order setting aside that part of the Judgment of the learned trial Chief Judge dated the 25th day of September, 1985 which partially granted Relief 2 of the plaintiffs Claim and then ordered that the 1st Plaintiff is entitled to hold the house and/or properties known as and called No. 62, Akpakpava Street and No. 1, Oregbeni Ikpoba Hill, Benin City in trust for himself pending such time as he may perform any second burial ceremonies as may be required after which the customary title to the said properties will vest in him absolutely: and thereafter an order dismissing the appellants appeal in its entirety and an order upholding the defendants Cross-appeal."
In the Court of Appeal, both parties filed briefs of argument and after due consideration of all the issues raised by both parties for determination in that Court, the Court by a majority decision, allowed the plaintiffs appeal and dismissed the cross-appeal filed by the defendants. In construing the provisions of S.3(1) of the Wills Law. Cap. 172. Laws of Bendel State, 1976, Ogundere, JCA, who wrote the lead judgment, with which Achike, JCA, agreed (Ogundare, JCA, dissenting) stated as follows:
"Section 3(1) Wills Law says all property may be disposed of by Will subject to customary law. The Supreme Court has held albeit in obiter dicta in Oke v. Oke that there is nothing repugnant to natural justice, equity or good conscience in Binin customary law of inheritance. Even if the deceased died intestate, the position is the same. Olowu v. Olowu (1985) 3 NWLR (Part 13) p. 372.
In the circumstance, even though the Will of the deceased Exhibit 'D' was valid as to form, the dispositions therein were void, consequentially the entire Will is null and void. The learned trial Chief Judge was therefore on a good footing and right in Law when he so declared. There was also no error in his finding that the first appellant did not perform the second burial of his father so as to enter upon his inheritance unconditionally. A court of appeal should not interfere in a finding of fact which is supported by valid and admissible evidence, Balogun v. Agboola (1974) 10 S.C. 111. The cross appeal is dismissed. The appeal succeeds. The orders made by the trial Chief Judge are hereby set aside. Instead, it is hereby ordered:
ORDERS
1. The Will of the deceased Joshua Iserhienrhien Idehen. Exhibit D made on the 10th day of March, 1973, is hereby declared null and void.
2. It is hereby declared that under Benin Customary Law of Succession, the 1st plaintiff appellant. Joseph Osemwegie Idehen, the first surviving son of Joshua Iserhienrhien Idehen, deceased, is entitled to inherit his decased father's "Igbogbe", to wit, all the property and houses lying and situate at and known as No. 62, Akpakpava Street and No. 1, Oregbeni Ikpoba Hill, both at Benin City.
3. Without prejudice to paragraph 2 herein, it is declared that pending the time the said Joseph Osemwegie Idehen performs the second customary burial of his deceased father, he shall hold, on trust, all the property of his deceased father for himself and the other children of his deceased father.
4. It is further declared that in accordance with Benin Customary Law, upon performance by the said Joseph Osemagie Idehen of the second customary burial of his deceased father, there-upon the estate of the said deceased becomes distributable. Whereupon the said Joseph Osemwegie Idehen shall inherit the said estate beneficially.
5. It is hereby declared that the said Plaintiffs/appellants are at liberty to seek an order for a grant of letters of administration of the estate of the said deceased
6. An order of perpetual injunction is hereby made, restraining the defendants/respondents to this appeal from administering, expending, disposing of or otherwise dealing in any way with the Estate of the deceased Joshua Iserhienrhien Idehen.
7. A mandatory injunction is hereby made compelling the defendants/respondents to restore to the estate of Joshua Iserhienrhien Idehen, deceased, any part thereof unlawfully held or disposed of or otherwise dealt with by each defendants/respondent singularly or by the said defendants/respondents collectively within 30 days of his order.
8. The cost in the court below, and ₦500 costs are awarded to the plaintiffs/appellants which shall be paid out of the estate of the said Joshua Iserhienrhien Idehen, deceased."
The defendants being dissatisfied with the decision of the Court of Appeal have appealed to this Court on the following two grounds of appeal:
GROUNDS OF APPEAL
(i) The majority of the learned justices of the Court of Appeal erred in law in construing or interpreting section 3(1) of the Wills Law.
Particulars of Error
(a) The said Justice erroneously considered that the capacity of the deceased to make a will under Section 3(1) of the Wills Law as limited by Benin customary law and consequently--no Bini man can make a Will contrary to Native Law and Custom on inheritance.."
(b) The said learned justice overlooked the fact that Oke v. Oke (1974) 1 ANLR (Pt. 1), 443 is no authority for their decision regarding the capacity of a person subject to Benin customary law to make a will, the said case being no more than an illustration of the rule already well settled by cases such as Taylor v. Williams (1935) 12 NLR 67. Ogunmefun v. Ogunmefun (1931) 10 NLR 82 and Davies v. Sogunro (1936) 13 NLR 15.
(c) The said learned justice erred in law in failing to observe that having regard to the nature of the transaction involved in this case - namely, the making of a testamentary instrument which is something unknown to customary law - the rules of Benin customary law are inapplicable.
(d) In the premises the reasoning of OGUNDARE, JCA, in his dissenting judgment is to be preferred to that of the majority of their Lordships.
(ii) Even if (which is not conceded) there is any pronouncement in Oke v. Oke (supra) which is capable of supporting the reasoning of the majority, the Supreme Court ought to treat such pronouncement as having been made per incuriam and ought to be overruled.
Further Particulars
(a) One way in which Section 3(1) of the Will Law can be construed as to say that the phrase "Subject to any customary law" is intended to ensure that the principle laid down in Taylor v. Williams and other cases is kept intact i.e. the testator's power to make a will is limited by the rules of customary law relating to the disposition of family or communal property.
(b) Another way of construing the same phrase is to say that the testator's power to make a will is limited by the rules of customary law relating to intestate succession.
(c) Construction (b) is bound to lead to absurdity since it will render testamentary capacity intended to be conferred by the Wills Law inoperative or ineffective.
(d) In the premises construction (a) is to be preferred.
4. RELIEF SOUGHT FROM THE SUPREME COURT OF NIGERIA:
To allow the appeal, set aside the judgment and orders made by the Court below and substitute the following orders:
(i) An order that probate in solemn form of the Will of the late Joshua Iserhienrhien Idehen be granted to the Defendants who are the executors therein named
(ii) An order dismissing the plaintiffs' claims."
Both parties filed their briefs of argument. In his own brief of argument. Chief Williams, SAN, for the defendants/appellants formulated the issue for determination as follows:
"Whether the phrase "Subject to any customary Law relating thereto" occurring in Section 3(1) of the Wills Law of Bendel State is a qualification of the testator's capacity to make a Will or whether it is no more than a qualification of the subject matter of the property disposed of or intended to be disposed of under the Will."
While agreeing with the defendants/appellants that the main issue for determination in the appeal is the construction of the phrase "subject to any customary law relating thereto" in Section 3(1) of the Wills Law, the plaintiffs/respondents vehemently disagreed with the issue as framed and the interpretation put on the sub-section. Dr. Mudiaga Odje, SAN for the plaintiffs/respondents in his brief of argument formulated the issue for determination as follows:
"Having Regard to The Phrase SUBJECT TO ANY CUSTOMARY LAW RELATING THERETO Embodied in Section 3(1) of the Wills Law Cap. 172, Laws of the Bendel State 1976, Does A Testator Have Power to Devise His Property in Contravention of Applicable Customary Law?"
I consider the formulation of the issue for determination by Chief Williams, S.A.N. consonant with the two grounds of appeal filed and will therefore adopt it in this judgment.
Now Section 3(1) reads as follows:
"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 entitled to, either law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator."
It was the submission of Chief Williams, learned Senor Advocate for the appellants, that the phrase "Subject to any customary law relating thereto" at the commencement of the Section is not a qualification of the testator's capacity to make a will but a qualification of the subject matter of the property disposed of an intended to be disposed of. He submitted further that a contrary interpretation would lead to the absurd result that every disposition by will would be avoided by the customary law relating to succession on intestacy. It was his submission that the pronouncements of this Court in Oke v. Oke (1974) 3 S.C. 1 which case was cited and relied upon by both parties in this appeal lend support to his view. He drew our attention to a passage in the minority Judgment of Ogundare, JCA, where he said:
"The customary law, in my humble view, applies only where there has been an intestacy; it cannot apply where a Bini died leaving a Will except as to testamentary capacity of the testator as regards to a particular property. As all the property, real and personal belonged to the deceased in this cases, it is my view that it was lawful for him to devise, bequeath or dispose of them being real and personal estate which he was entitled, either in law or in equity, at the time of this his death, If he had not devised the two "Igiogbe" herein concerned, they would have devolved upon the 1st Appellant as his heir under Bini customary law." and invited us to follow the decision of the learned Justice of Appeal.
It was the contention of Dr. Odje, SAN for the respondents that the expression in the enactment is a complete restriction on the testamentary capacity of the testator to dispose of the properties comprised in his estate. He said that his submission is supported by at least three decisions of this Court, to wit:
(1) Thompson Oke and Anor v. Robinson Oke and Anor (1974) 3 S.C. 1 at pp.9-10 (1974) 1 All NLR (Pt. 1), 443;
(2) Adeniyi Olowu and 2 Ors. v. Olabowale Olowu and Anor (1985) 3 NWLR (Pt. 13) 372 at pp. 396-397, (1985) 12 SC.84 at pp. 105 - 107
(3) Alhaji Umaru Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at pp.540 and 565 (1989) 9 SCNJ at pp.15 and 40.
It was learned Senior Advocate's submission that in all the above this Court "interpreted the phrase subject to as an expression of restriction or proviso limiting, governing and controlling the words which follow in the sub-section of the enactment." He submitted further that the interpretation of the phrase by Bini High Court in Robinson Oke and Anor v. Thompson Oke and Anor, delivered on 13th May, 1972 by Obaseki, J (as he then was) fully supports the respondent's contention. In conclusion he submitted that "On the evidence as well as the State of the applicable Bini customary law accepted by the parties, it was unlawful for the testator to have purported to dispose of his property, particularly his houses in question to person other than his eldest son, 1st respondent in this matter," citing the Judgment of this Court in Madam I. Arase v. Peter Arase (1981) 5 S.C. 33 in support of his submission. He urged the Court to dismiss the appeal.
In his further submission in the Reply Brief, Chief Williams expressed the view, that having read the brief filed on behalf of the respondents, the decision of this Court in Oke v. Oke (supra) would appear to support the interpretation urged upon us by the respondents. However, it was his submission that if that was the case, Oke v. Oke (supra) must have been decided per incuriam and this was because the attention of this Court was not drawn to certain statutory provisions on related matters. The effect of the interpretation urged upon the Court by the respondents, if adopted, he submitted, would render the Wills Law an ineffective piece of legislation. On page 2 of his brief he analysed the contents of Section 3(1) of the Law and submitted that as contested by the Respondent, there could be no customary law relating to testamentary capacity for the simple reason that the concept of a Will, as this term is understood under the Wills Law of Bendel State, is completely unknown to customary law in that state. It was his final submission that it was unreasonable to suppose that the phrase "Subject to customary law relating thereto" could have been intended to qualify the testamentary capacity conferred on every Bini Citizen by the provision of S.3(1) of the Wills Law. The expression, in his view, could only qualify the subject matter of the devise.
Although several decisions of this Court have been cited by both parties in this appeal, to the best of my knowledge, the only judgment of this Court in which the phrase "Subject to any customary law relating thereto" has been specifically considered and construed is Thompson Oke and Anor. v. Robinson Oke and Anor (1974) 1 All NLR (Pt. 1) 443 at p. 450, (1974) 3 S.C. 1 at pp. 9-10 and (1974) 1 NMLR 351 at p. 356. It was an appeal from the decision of the Warri High Court in Suit No.W/9/1965 Robinson E. A. Oke and Anor v. Thompson Oke and Anor. Reported (1970) MSNLR,. 132.
In that case the plaintiffs sued in the Warri High Court, claiming the right to inherit their father's house, as eldest son and eldest daughter as against the defendant. Their father had died having devised the house in which he had lived and died to the defendant. The land on which the house was built was allocated to the plaintiffs mother by, her family and the plaintiffs' mother had permitted the testator, her husband, to build the house on her allotted portion.
One of the issue for determination in that case was whether the testator, an Urhobo man, could, by will devise the house in question to the defendant who was the testator's son by another woman, or whether it was Urhobo customary law that should apply, so that the testator's eldest son should, alone inherit the house. The trial court found for the plaintiffs.
In construing and applying the provisions of S.3(1) of the Wills Law to the case, the learned trial Judge-Obaseki, J (as he then was) held that the devise of the house by the testator to the defendant was unlawful as it contravened the Urhobo customary law which laid it down that the house in which a deceased father lived during his life-time must always be inherited by his eldest son.
In a passage of the judgment of the learned trial Judge, which in my view, clearly lends support to the appellant's contention in this appeal, he said:
"The learned counsel for the defence submitted that the section should read that the customary law relating thereto is subject to the power to dispose of property by Will granted by the section. It is the lawfulness of the disposition that is made subject to any customary law relating to the disposition of the property. In other words if it is lawful under customary law to dispose of the property in the manner referred to in the Will, it shall be lawful to make the devise otherwise the devise shall be unlawful. That is the clear meaning of the words." (Italic mine for emphasis).
...
"The Customary Law I have accepted makes it unlawful to deprive the eldest son of the house where his father lived and died and as such the devise of that house to any other person or child and in this case to the 1st defendant Thompson Oke by Will cannot stand".
In my view the above passage makes it abundantly clear that what was unlawful was the devise of the house to the defendant by the testator which was not allowed by the relevant customary law. This has nothing to do with the testator's testamentary capacity to make a Will.
As stated earlier, the case went on appeal to the Supreme Court and the decision of the trial court was affirmed. In the judgment of the Supreme Court, Elias, CJN while interpreting the words of S.3(1) of the Wills Law stated as follows:
"It is not to be supposed that Section 3(1) of the Wills Law can confer upon a testator the testamentary capacity to devise property by will which the testator would not otherwise have. The introductory phrase "subject to any customary law relating thereto" necessarily makes the power given to a testator under the sub-section depending upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estates by will is limited by the extent, if any to which its exercise is permissible under the relevant customary law."
In my view the above passage clearly lend support to the appellants contention that the opening words of the Section are intended to relate to the subject matter of the devise. In fact all that happened in Oke v. Oke (supra), as was explained by Obaseki , JSC, In Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant application customary law. I hold therefore that the expression "subject to customary law relating thereto" could not have been intended to qualify the testamentary capacity so unambiguously conferred on every Bini citizen by Section 3(1) of the Wills Law. It is only subject to any customary law affecting the property to be disposed of. That being the case, I am unable to accept the submission of Chief Willimas that Oke v. Oke (supra) was decided per incuriam
In my view the High Court was right, when, following the decision of this Court in Oke v. Oke (supra), declared the devise of the testator's Igbiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the 1st respondent in accordance with Benin customary law, and so was the Court of Appeal in confirming the award. The appellants appeal against this part of the judgment of the Court of Appeal therefore fails and it is accordingly dismissed.
In declaring the Will null and void, Ogundare, JCA in the lead judgment said:
"In the circumstances, even though the Will of the deceased Exhibit 'D' was valid as to form, the dispositions therein were void, consequently the entire Will is null and void. The learned trial Chief Judge was therefore on a good footing and right in Law when he so declared."
In the first place it was a serious misdirection on the part of the learned justice of Appeal to say that the trial Chief Judge declared the Will void as there is nothing on the record to support such a finding. Secondly under the Wills Law, a devise or bequest can only be declared void if it contravenes a particular rule of customary law as the devise in Clause II of Exh. 'D' did. There is not a scrap of evidence to support a finding that any of the other remaining devises and bequests were in conflict with any particular rule of Benin customary law. In my view the Court of Appeal was in error when it declared the testator's Will void. Accordingly the appellants appeal against this part of the judgment of the Court of appeal succeeds and it is hereby allowed. That part of the Judgment of the Court of Appeal declaring the testator's Will null and void is hereby set aside and so are the consequential orders contained therein. The Judgment of High Court which was delivered on 25th day of May, 1985 is hereby restored.
As this appeal succeeds only in part, I am of the view that this is a case in which each party should bear its costs and this shall be the order of the Court.
M. BELLO, CJN: I have had a preview of the judgment of the judgment of my learned brother, Kawa, JSC For the reasons stated therein I also partly allow the appeal. The Court of Appeal erred in law in declaring the will in its entirety null and void. Accordingly, that part of the judgment is set aside. However, that part of the judgment of the High Court is hereby restored. Each party shall bear its costs.
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 incumbrance of native law and custom on the property: Adesubokan v. Yunusa (1971) 1 All N.L.R. 225.
For Western Nigeria, the Wills Law. Cap. 133 of the Laws of Western Nigeria 1959 replaced the Act of England and when the Bendel State was created, the Law of Western Nigeria became the Wills Law. Cap. 172, Laws of Bendel State 1976. Section 3(1) of the Law prescribes "customary law" as an important factor in making a will. The subsection reads:
"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 entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator."
It is common ground that under Bini customary law the Igiogbe which was the house where the deceased's father lived in his lifetime, is inherited by his eldest surviving son. In Arase v. Arase (1981) N.S.C.C. 101, the Bini customary law was stated at page 114 as follows:
"The principal house in which the deceased lived in his lifetime and died is called the "Igiogbe", that always passed by way of inheritance on distribution to eldest son."
It appears in compliance with the said Bini customary law, the deceased, late Joshua Idehen, devised in his will to his eldest son, Dr. Humphrey Idehen, the two properties, namely No. 62 Akpakpava Street and No. 1 Oregbeni Ikpoba Hill both conceded to be his Igiogbe. Unfortunately, Dr. Idehen died before his father and the 1st Respondent because the eldest surviving son of the father.
The main question for determination in respect of the devise of the Igiogbe was whether the properties had passed to the sons of Dr. Humphrey Idehen by virtue of section of section 28 of the Wills Act or whether such passing being incompatible with the Bini customary law, was void and the 1st Respondent was entitled to the inheritance of the said properties. Relying on Oke v. Oke (1974) 1 All N.L.R. (Pt. 1) 433, the trial judge held that by virtue of section 3(1) of the Act a father cannot by his will deprive his son, who has the right under customary law to inherit the principal dwelling house of his father, of that right. He held the devise of the Igiogbe void. According, he declared that in accordance with Bini customary law of succession, the 1st Respondent as the eldest surviving son succeeds exclusively to the properties in question.
While upholding the declaration in respect of the Igiogbe made by the trial judge, the Court of Appeal by majority Ogundare and Achike JJCA (Ogundare JCA dissenting) declared in their entireties the depositions in the will void.
The appeal in this court was canvassed in a very narrow issue. It is occurring in section 3(1) of the Wills Law of Bendel State is a qualification of the testator's capacity to make a will or whether it is no more than a qualification of the subject matter of the property disposed of or intended to be disposed of under the will."
My learned brother, Kawu, JSC has set out fully the submissions of counsel on the issue. I do not intend to repeat them. In Oke v. Oke (1974) 1 All N.L.R. 443 at 450, Elias, CJN delivering the judgment of this Court interpreted the phrase "subject to any customary law relating thereto" as a preliminary exception of the relevant customary law from the right to devise, bequeath or dispose of his property by will conferred on every person by subsection 3(1) of the Wills Law. The interpretation put by the Court to the subsection is as follows:
"The learned Counsel submitted that this Sub-section should be read as meaning that the customary law relating to succession is subject to the power of the testator to dispose of his property by Will: he further submitted that the testator interest was by decent. We do not think that his sub-section can be read in the way suggested by the learned Counsel because there is the preliminary exception (contained in the sub-section) of the relevant customary law from its provision, there is also the specific reference to "real estate" - an expression that cannot by any stretch of the imagination be applied to the property in question. The section clearly contemplates an absolute estate of freehold or leasehold of which the testator died possessed and of which he could disposed by Will or otherwise. It is not be supposed that Section 3(1) of the Wills law can confer upon a testator the testamentary capacity to devise property by will which the testator would not otherwise have. The introductory phrase "subject to any customary law relating thereto" necessarily makes the power given to a testator under the sub-section dependent upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estate by will is limited by the extent. If any, to which its exercise is permissible under the relevant customary law." (Italic mine)
Chief Williams has submitted that there can be no customary law relating to testamentary capacity. The reason for this, according to him, is that the concept of a will as that term is understood under the Wills Law of Bendel State is completely unknown to customary law in that State and that being so, it is unreasonable to suppose that the expression "Subject to any customary law relating thereto" could have intended to qualify the testamentary capacity conferred by Section 3(1) of the Wills Law. He contended that the expression can only qualify the subject matter of the devise. He urged us to hold that Oke v. Oke (Supra) in which it was held that the expression qualified testamentary capacity was decided per incuriam.
With regard to Chief Williams' ascertion that testamentary capacity to make a will is completely unknown to the customary law of Bendel State, he has not referred us to any authority to that effect and there is no evidence in the records to support the assertion. I would therefore make no pretence to know the said customary law. However, the issue is primarily concerned with the interpretation of section 3(1) of the Law i.e. whether the expression "Subject to any customary law relating thereto" was intended to qualify only the property to be devised as contended by Chief Williams or was intended to qualify the whole provisions which follows in the subsection as contended by Dr. Odje.
I find support of the submission of Dr. Odje in the judgment of Nnaemeka-Agu, JSC, when in Tukur v. Government of Gongola State (1989) 4 NWLR (Part 117) 517 at 580 he stated:
"...whether the expression (subject to) is used at the commencement of a statute, it is an expression of limitation...It implies that what the section or sub-section is "subject to" shall govern, control and prevail over what follows in that section or sub-section of the enactment." (bracket mine)
In view the expression "Subject to any customary law relating thereto" controls and governs the whole provisions of Section 3(1) which includes testamentary capacity as was decided in Oke v. Oke (Supra) as well as the property to be devised. In other words, the expression governs the words "it shall be lawful for every person to devise, bequeath or dispose of by this will" which is concerned with testamentary capacity and the expression also governs the words "all real estate and all personal estate which he shall be entitled to either in law or in equity, at the time of his death" which covers the property to be devised.
In my view, the phrase "Subject to any customary law relating thereto" in Section 3(1) of the Wills Law is a qualification of the testator's capacity to make a will and also a qualification of the property to be devised.
A. G. KARIBI-WHYTE, JSC: The Appellants are the Defendants in the High Court. They were the Respondents and cross-appellants in the Court below. The Court of Appeal on the 9th December, 1988 dismissed their cross-appeal and allowed the appeal of the Plaintiffs who were appellants against the judgment of the trial Chief Judge in the High Court. The contention of the parties in this appeal is as to both the capacity to make the will and the validity of the dispositions in the WILL of Joshua Iserhienrhien Idehen, the father of all the parties in this appeal.
Joshua Iserhienrhien Idehen died in Benin city on 18th September, 1979. The said Joshua Iserhienrhien Idehen made a Will dated 10th March, 1973 in which he devised to his eldest son Dr. Humphrey Idemudia Idehen, his two houses in Benin, at 62 Akpakpava Street and 1 Oregbeni, Ikpoba Hill. Where he lived during his life time. Dr. Humphrey Idemudia Idehen predeceased his father.
At the time of the death of the testator Josheph Iserhienrhien Idehen had become his eldest son. Joseph Osewegie Idehen, claimed under Bini Customary law the properties in which the testator Joshua Iserhienrhien Idehen lived during his lifetime, known as Igiogbe, as well as substantially all the properties comprised in the Estate of the testator.
The defendants/appellants rejected the claims of the 1st Plaintiff/Respondent. With the support of his brothers he issued a write of summons against the defendants/appellants, who are the executors of the estate. The claim is as follows:
"The plaintiff seek from court the following reliefs against the defendants jointly and severally:
1. The declaration that the document dated the 10th March, 1973 purporting and/or pretending to be the Will of Joshua Iserhienrhien Idehen (hereinafter referred to as the "Deceased") who died on the 18th September, 1979 at Benin City is null and void for not being the act of the Deceased as well as for non-compliance with the relevant statutory requirements relating to Wills.
2. A declaration that in accordance with Bini Customary law of succession, the 1st Plaintiff as the eldest surviving son of the Deceased succeeds exclusively at all events to the houses and/or properties lying and situate at and known as No. 62 Akpakpava Street and No. 1 Oregbeni Ikpoba Hill, Benin City in addition to the lion's and/or disproportionately large share of the remaining part of the Deceased's Estate which the 1st plaintiff shares with the other children of the Deceased.
3. A declaration that the plaintiffs are entitled to a grant of letters of administration of the Estate of the Deceased.
4. An order of perpetual injunction restraining the defendants from administering, expending, disposing of or dealing in any way with the Deceased's Estate or any part thereof.
5. An Order compelling the defendants to restore to the said Estate any part thereof unlawfully disposed of or dealt with by them."
After trial on written pleadings and oral evidence, the learned trial Chief Judge held that the Will was valid, but that the Plaintiffs succeeded in proof of part of Relief No.2 as claimed. He entered Judgment for Plaintiffs as follows:-
"A declaration that in accordance with Bini Customary Law of succession, the first Plaintiff as the eldest surviving son of Iserhienrhien (deceased) succeeds exclusively to the houses and/or properties lying and situate at and known as No. 62 Akpakpava Street and No. 1 Oregbeni Ikpoba Hill, Benin City. For the avoidance of doubt it is ordered that first Plaintiff is entitled to hold these houses and/or properties in trust for himself pending such time as he may perform any second burial ceremonies as may be required and after which customary title to the said properties will vest in him absolutely."
The learned trial Chief Judge dismissed the reliefs in claims 1,3,4 and 5. Plaintiff appealed to the Court of Appeal. The Court of Appeal by a majority decision, allowed the appeal, and held that the will was null and void, and therefore a nullity. It was held that under the Bini Customary law of succession, the 1st Plaintiffs/Appellant, Joseph Osemwegie Idehen, the first surviving son of Joshua Iserhienrhien Idehen, deceased, is entitled to inherit his deceased father's "Igiogbe" to wit, all the property and houses lying situate at, and known as No. 62 Akpakpava Street and No.1 Oregbeni Ikpoba Hill, both at Benin City.
The Court of Appeal also granted an order of perpetual injunction restraining the defendants/respondents from administering, expending, disposing of, or otherwise dealing in any way with the Estate of the deceased Joshua Iserhienrhien Idehen.
A mandatory injunction compelling the defendants/respondents to restore to the Estate of Joshua lserhienrhien Idehen, deceased: any part thereof unlawfully held or disposed of or otherwise dealt with by each defendant/respondent singularly or by the said defendants collectively within 30 days of this order.
Costs assessed at ₦500 to be paid out of the Estate was awarded against the Respondents. As I stated earlier, the cross-appeal of the defendant/respondents was dismissed.
The implication of this decision declaring the Will null and void, and granting all the declarations is that the deceased Joshua Iserhienrhien Idehen, was held to have died intestate. Thus the Court of Appeal did not consider the formal validity of the WILL as distinct from the validity of the dispositions therein. The two may be and are necessarily governed by different legal principles.
The Defendants have appealed against the Judgment of the Court of Appeal on two grounds of law. Both are as to the construction of section 3(1) of the Wills Law of Bendel State.
Grounds or appeal are as follows:
(i) The majority of the learned Justices of the Court of Appeal erred in law in construing or interpreting Section 3(1) of the Wills Law.
Particulars of Error
(a) The said Justices erroneously considered that the capacity of the deceased to make a will under Section 3(1) of the Wills Law as limited by the Benin Customary law and consequently "no Bini man can make a will contrary to Native Law and Custom on inheritance..."
(b) The said learned Justices overlooked the fact that Oke v. Oke (1974) 1 ANLR (Pt. 1), 443 is no authority for their decision regarding the capacity of a person subject to Benin customary law to make a will the said case being no more than an illustration of the rule already well settled by cases such as Taylor P. Williams (1935) 12 NLR.67, Ogunmefun v. Ogunmefun (1931) 10 NLR 82 and Davies v. Sogunro (1936) 13NLR 15.
(c) The said learned justices erred in law in failing to observe that having regard to the nature of the transaction involved in this case" - namely, the making of a testamentary instrument which is something unknown to customary law - the rules of Benin customary law are inapplicable.
(d) In the premises the reasoning of OGUNDARE, JCA in his dissenting Judgment is to be preferred to that of the majority of their Lordships.
(ii) Even if (which is not conceded) there is any pronouncement in Oke v. Oke (supra) which is capable of supporting the reasoning of the majority, the Supreme Court ought to treat such pronouncement as having been made per incuriam and ought to be overruled.
Further Particulars
(a) One way in which Section 3 (1) of the Wills Law can be construed as to say that the phrase "Subject to any customary law" is intended to ensure that the principle laid down in Taylor v. Williams and other cases is kept intact i.e. the testator's power to make a will is limited by the rules of customary law relating to the disposition of family or communal property.
(b) Another way of construing the same phrase is to say that the testator's power to make a will is limited by the rules of customary law relating to intestate succession.
(c) Construction (b) is bound to lead to absurdity since it will render testamentary capacity intended to be conferred by the Wills Law inoperative or ineffective.
(d) In the premises construction (a) is to be preferred".
Counsel to the parties have filed and served on each other their briefs of argument in this appeal. Both counsel adopted their briefs of argument and relied on them in the oral expatiation of the issue in this appeal.
Learned Counsel are agreed that the only issue arising and could be formulated from the grounds of appeal filed is question of true interpretation of section 3(1) of the Will Law of Bendel State. Chief Williams S.A.N. has in his formulation of the issue expressed it as follows -
"Whether the phrase "Subject to any customary law relating thereto" occurring in section 3(1) of the Wills Law of Bendel State is a qualification of the testator's capacity to make a Will or whether it is no more than a qualification of the subject matter of the property disposed of or intended to be disposed of under the Will."
Dr. Odje S.A.N. for the Respondents has stated in his brief that Respondents disagree with the formulation of the above issue.
I find it a little puzzling to appreciate the ralionale for the disagreement with this formulation of the issue based on the grounds of appeal and relating to the construction of section 3(1) of the Wills Law. Dr. Odje's interpretation of the construction of the phrase "subject to any customary law relating thereto" is that "it is a complete restriction on testamentary power of the deceased to dispose of the property comprised in his estate." This construction does not necessarily include the capacity to make the will as distinct from dispositions in the Will when made. The formulation proferred in respect of the grounds of appeal has only expressed the question in the alternative. First, whether the expression could be construed to exclude the capacity to make a will, or secondly, whether the capacity to make a will is qualified by the customary law of the subject mailer of disposition. This second meaning seems to me not different from the only formulation of the issue urged by Dr. Odje as the meaning of the expression, "subject to any customary law relating thereto." As I have said, testamentary capacity could be and is different from capacity to make dispositions of particular property under a valid will. I am satisfied that the formulation of the issue for determination by learned Counsel to the Appellants has satisfactorily taken into account the two grounds of appeal relied upon. I shall therefore adopt Appellants' formulation of the issue in this appeal. It is now appropriate to turn to the expression "subject to any customary law relating thereto" in section 3(1) of the Wills Law, which is the subject matter of dispute.
Section 3(1) of the Wills Law provides
"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 entitled to either in law or equity, at the time of his death and which if not devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator".
Chief Williams has in his brief of argument cited and relied on the decision of this Court in Oke v. Oke (1974) 3 S.C.1 to submit that the expression should be construed as was done by this Court in that case where it was held that it is no more than a qualification of the subject matter of the property disposed of or intended to be disposed of and not a qualification of the testator's capacity to make a Will. It was submitted that a contrary construction will lead to absurdity that every disposition by will will be avoided by the customary Law relating to succession on intestacy.
Learned Counsel went a little more profound in his reply brief where he contended that the decision of this Court in Oke v. Oke (supra) he earlier relied upon, was given per incuriam. He referred to the purpose of the Wills Act which was to enable persons to make a departure from the known rules of customary law. He contended that where a testator had no capacity to depart from the rules prescribed at customary law the wills law becomes useless and ineffective. Chief Williams gave examples of interests in land governed by customary law, or personal property or distribution of property on death among the Yoruba that would be affected by the interpretation urged. It was submitted that the consequence of acceding to the interpretation urged by the Respondents is that no person in Bendel State who belongs to a community which has customary law can have testamentary capacity. For once it is shown that such a customary law exists, the devise to be valid must be in accordance with those rules of customary law.
Counsel referred to the main object of the Law which is as stated in S. 21 to confer on every person in Bendel State power to make dispositions by Will. He analysed Section 3(1) into.
(i) the opening words
(ii) testamentary capacity
(iii) subject matter of disposition.
Learned Counsel cited the cases of Ogunmefun v. Ogunmefun (1931) 10 NLR. 82 Taylor v. Williams (1935) 12 NLR.67, Davis v. Ogunro (1936) 13 NLR. 15 to support the proposition of the distinction between inalienability inter vivos and testamentary incapacity.
It was submitted relying on Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372 that Oke v. Oke (supra) was a case of inalienability under customary law and not a matter of want of testamentary capacity. Finally it was submitted that there can be no customary law relating to testamentary capacity.
On his own submission, Dr. Odje S.A.N., both in his brief of argument and orally before us contended that the phrase "subject to any customary law relating thereto in S.3(1) in Wills Law, consistent with Judicial construction of the expression subjects the validity of the testator's exercise of testamentary power to the applicable customary law. He relied for this submission on Oke and Anor v. Oke and Anor (1974) 3 S.C. 1; Olowu v. Olowu (1985) 3 NWLR. (Pt.13) 372, Arase v. Arase (1981) 5 SC. 33 and dicta of Justices in these cases, Learned Counsel concluded that on the evidence before the Court and in view of the applicable Bini Customary law, it was unlawful for the testator to have purported to dispose of his property, particularly the houses in question to persons other than his eldest son, the 1st Respondent in this appeal.
The parties having agreed that the issue before this Court and the only answer to the question is the proper construction of the provisions of section 3(1) of the Wills Law of Bendel State. I shall now proceed to construe the section by application of the well settled principles for the construction of statute.
In the construction of the provisions of a statute, it has always been relevant to consider the history of the legislation and the mischief it was designed to prevent. This is not an attempt at ignoring the golden rule that the legislature should be taken to have meant what it actually expressed. Since the real purpose of every interpretation is to discover the intention of the law maker, and this primarily from the words used. Hence where there is nothing to qualify or modify the words used in the statute, they must be construed in their ordinary and natural meaning. However, where this is at variance with the intention of the law maker as can be gathered from the words used, or leads to manifest absurdity, the language may be varied only to avoid such absurdity and no further.
It is important to point out that the Wills Law under consideration, was the Wills Act 1837 of the United Kingdom. It was re-enacted for Western Nigeria and came into force first on 24th July. 1958 as W.R. 1959. Cap. 133 of the Laws Western Nigeria., It became the Wills Law of Bendel State on the promulgation of the Laws of Bendel State. However, the Wills Law of Western Nigeria Cap. 133 applied in the present Bendel State when that state was a province of the Western Region of Nigeria.
Before the enactment of the Wills Law of Western Nigeria, the Wills Act of 1837, a statute of general application, applied by virtue of the High Court Law. The Wills Act 1837 applied without any limitation upon the freedom if the testator. The testator could by testamentary disposition under the Act decide the course of inheritance and the pattern of succession at customary law.
It must be conceded that the chief if not the only aim of making Wills is to allow owners of property or rights to indicate how their affairs on their death could be arranged. This involves the persons to whom their property could be given or those to succeed them otherwise. See Adebiyi v. Sogbesan 16 NLR. 26. For instance the institution of family ownership which could be created on intestacy, the nature and quantum of the interest which could go to a beneficiary can be altered by testamentary disposition. In other words the testator can appoint as the head of his family a person other than his eldest son, or extend the category of the beneficiaries beyond his nuclear family. This is the situation since the only limitation on the freedom of testamentary disposition under the Act would be a local statute incompatible with the Act. It was assumed that any limitation under customary law or testamentary disposition under the Act did not apply when a person subject to customary law makes a will in English form.
There were however, and still are, recognised status which at customary law affect the capacity to make a will. For instance a wife cannot by the exercise of testamentary disposition deprive her husband of his succession rights in her estate. Also in the matrilineal societies to which a matrilineage is involved in an intestacy, a testator cannot devise away the right to such property without consent of those entitled. Outside these limitations it is not certain whether testamentary power cannot be exercised. This by no means suggests that the Will so made is void merely on account of the incapacity to the dispositions contained therein.
It seems to me that this unregulated freedom to alter by Will established customary law was not considered to be in the best interest of the society. For instance there were decided cases which resisted the exercise of the freedom. In Andoh v. Franklin (unreported) but discussed in Essays in African Law by Allot (1960) pp.213-4, it was said that "a native cannot divest himself of the character or status he has of being a member of a family. Such membership affects his capacity to make a Will. He cannot change that of his own volition."
In fact in Balonwu v. Nezianyia (1957) ERLR. 40, Betuel J was emphatic that the fact that a will by a person subject to customary law is declared to be valid, "does not validate any provisions there under which may be contrary to ... customary law".
This is drawing a distinction between testamentary capacity or capacity to make a will and validity of the dispositions therein. These were the problems which the Wills Law set out to correct and the mischief the sections are designed to prevent. Accordingly it provides in Section 3(1) as follows:
"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 required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time this death and which if not so devised, bequeathed or disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor, or upon his executor or administrator."
I have already adumbrated on the mischief to which customary law stood threatened by the unlimited capacity for testamentary dispositions permitted under the Wills Act 1837. The purpose of this law being to prevent that mischief has made provision regulating the exercise of testamentary capacity by making the exercise of the power subject to any customary law relating thereto. It is therefore permitted in construing this section "to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief'. - See Heydon's case 3 Co. Rep. 7a, Re Mayfair property Co. (1898) 2 Ch. 28 at p.35.
The Wills Act 1837 did not provide for the consequences of any incompatibility with customary law, hence testamentary dispositions could be made regardless of limitations imposed by customary law. The remedy provided for the mischief is the question to be answered here.
It is important in the construction of a provision to read the statute as a whole. Such a method of construction enables an interpretation which brings into focus related sections which are complementary.
The crux of the contention in this appeal is whether the expression "subject to any customary law relating thereto" as the opening phrase of section 3(1), has made the exercise of testamentary capacity subject to customary law, as contended by the Respondents, or merely disposition of property in the exercise of testamentary capacity as contended by the Appellants.
I have already outlined the submissions of counsel. I shall now construe the provisions as it is calling in aid the well settled rules of construction.
It has not been suggested that there are any rules of customary law which regulate the capacity to make a will, or that the making of Wills is unknown at customary law. Whereas making of written wills under statute is clearly unknown at customary law, nuncupative Wills have always been recognised. Death bed dispositions and often expressed wishes of the deceased are held sacrosanct and generally observed.
The purpose of the Wills Law is to vest testamentary capacity on every person as prescribed under the law, hence section 5 of the Law excludes persons under the age of twenty one years. Accordingly, by virtue of section 5 "No will made by any person under the age of twenty-one years shall be valid."
The formalities for the making of a will are prescribed under sections 6, 7 of the Law. Accordingly on compliance with the formal requirements the Will, is regarded as valid. It is safe to conclude from these sections that every person on attaining the age of twenty-one years is invested with testamentary capacity.
It seems to me that every word in section 3(1) of the Wills Law was carefully chosen to represent what was being provided. Although the marginal note in a section is not part of the section it is helpful even if occasionally misleading to construction, as a sign post to what the section sets out to provide. The side note to the section states that "All property may be disposed of by Will". This is following S.3 of the Wills Act 1837. "All property" means "every property" which the testator can dispose of inter vivos.
However, the opening words of this section "subject to any customary law relating thereto" clearly render the capacity to make devise, bequeath or disposition by Will, subject to customary law relating thereto."
It is important to observe that this phrase which was not in S.3 of the Wills Act 1837 was specifically introduced into section 3 of the Wills Law to ensure the observance of customary law in the exercise of testamentary capacity under the Law.
The phrase has been construed in Oke v. Oke (supra), Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372; Tukur v. Government of Gongola State (!989) 4 NWLR (Pt.117) 517 Olatunbosun v. N.I.S.E.R (1988) 3 NWLR (Pt.80) 25 Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622.
In each of these cases the phrase has been construed to render the provision to which it is subject conditional upon compliance with what is required in the provision referred to. This is to say that, when the devise, bequests or disposition is subject to customary law, the construction is that the devise, bequest or disposition shall not be inconsistent with or contrary to customary law. In other words the devise, bequests or disposition is to be governed and controlled by customary law. I think the last two words "relating thereto" was not mere surplusage or inserted in vain. It refers to the customary law in respect of the devise, bequest or disposition. Herein the validity of devise, bequests or dispositions which are made contrary to customary law.
In Oke and anor v. Oke and anor.(1974) 3 SC.I, Elias CJN: at p. 10 construed the phrase as follows:
"...subject to customary law relating thereto, necessarily makes the power given to a testator dependent upon the particular customary law permitting it. In effect the power of the testator to devise his real and personal estates by Will is limited by the extent, if any, to which its exercise is permissible under the relevant law".
I consider the construction of the expression in Tukur v. Government of Gongola State (supra) by my learned brother Nnaemeka-AGU, JSC also in point. He said.
"Whenever the expression is used at the commencement of a statute, it is an expression of limitation. It implies that what the section or sub-section is "subject to" shall govern, control and prevail over what follows in that section or sub-section of the enactment."
I have carefully read all the decisions cited and relied upon by counsel. The cases of Ogiamien v. Ogiamien (1967) NMLR. 245 and Oke and anor. v. Oke and anor. (supra) seem to me most helpful in the construction of the question before us.
In Ogiamien v. Ogiamien (supra). The Plaintiff, the eighth son brought an action against the Defendant. his eldest brother who was the 1st son and heir to Chief Ogiamien, the father of the parties. The claim was for a declaration that the 1st Defendant had no right under Bini Customary law to sell the property of their father situate at Sakoba Road Benin City. An order to set aside the sale made to the 2nd Defendant was also sought. Plaintiff sued on behalf of himself and other members of the family. Chief Ogiamien had died leaving three houses. It was common ground that according to Bini Custom the eldest son succeeds to all the property of the father to the exclusion of other children. The learned Judge rejected the custom as repugnant to natural justice, equity and good conscience, and refused to be bound by it.
There was a claim, which was not proved, that the deceased during his lifetime made a gift inter vivos to other children of the property in dispute, as a family house forthem. The Ist Defendant denied the claim. The trial Judge found for the Plaintiff and set aside the sale to 2nd Defendant.
In the Supreme Court allowing the appeal, it was stated that there was nothing wrong in the custom regarded as repugnant to natural Justice, etc. by the trial Judge. The customary law was upheld.
In Oke v. Oke (supra) Plaintiffs brought an action in the Warri High Court, claiming against the Defendant the right to inherit their father's house as eldest son and daughter of their father. The father had in his will devised the house in which he had lived and died to the Defendant who is a son by another wife, and not the mother of the Plaintiffs. The land on which the said house was built was family land, allocated to the mother of Plaintiff by her family. Plaintiff's mother had permitted her husband, the testator, to build the house on this land.
The issue for determination was whether the testator, an Urhobo man, could by will devise the house in question to the Defendant who was the testator's son by another woman. Or whether Urhoho Customary law applied so that the testator's eldest son alone, should inherit the house. I pause here to observe that apart from being the eldest son of the testator, the land on which the house was built was allocated by Plaintiff's mother's family who permitted her husband to build on it. Accordingly, Plaintiffs would appear to be standing on two firm legs. First, as the eldest son and daughter of the deceased, and secondly as members of the family of their mother to whom the land belonged before the allocation. The trial Court found for the Plaintiffs.
The trial Judge, Obaseki J, as he then was, followed a different route. He adhered to the established custom of the Urhobos that the devise of the house to the Defendant who was not the eldest son was contrary to Urhobo customary law and unlawful. In other words, the testator's disposition being contrary to the customary law of the Urhobos which governed the disposition; was incompetent. It is established Urhobo customary law that the house in which a deceased father lived during his lifetime must always be inherited by his eldest-son
In the Judgment, Obaseki J, as he then was, held, that "it is the lawfulness of the disposition that is made subject to any customary law relating to the disposition of the property. In other words if it is lawful under the customary law to dispose of the property in the manner referred to in the Will it shall be lawful to make the devise otherwise the devise shall be unlawful. That is the clear meaning of the words." It is clear from this dictum, which I agree with, that the section is not referring to the capacity to make a Will. It only subjects the capacity to make disposition under Wills to customary law relating to such dispositions.
Hence this decision cannot be authority for testamentary incapacity. This is because a will is not invalid merely because the subject matter of the device is subject to customary law relating to devise, bequests, etc. The testator in Oke v. Oke (supra) is not the owner of the land either in law or equity, the land being family land not allocated to him and upon which he was permitted to build by his wife to whom it was allocated. Such interest in land cannot validly be disposed of inter vivos or by Will. - See Ogunmefun v. Ogunmefun (1931) 10 NLR. 82, Taylor v. Williams (1935) 12 NLR. 67 Davies v. Sagunro (1936) 13 NLR. 15.
The case came on appeal to this Court where the Court affirming the decision construed section 3(1) as follows:
"... "subject to any customary law relating thereto" necessarily makes the power given to a testator under the sub-section dependent upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estates by Will is limited by the extent, if any, to which its exercise is permissible under the customary law."
I agree with the criticism of this dictum by Chief Williams that the above quoted dictum, suggests that the learned Chief Justice was referring to testamentary capacity rather than disposition.
I have explained above in this judgment that the testamentary capacity of the testator was not in issue in Oke and anor v. Oke and anor (supra). What was in issue was his capacity to devise the house to the defendant. I have some difficulty in agreeing on the reasons on which Oke and anor v. Oke and anor. (supra) was decided to hold that it was decided per incuriam. There was no decided case or statute which Oke v. Oke (supra) ignored.
I think the most intriguing aspect of this appeal is as to how the majority of the Court below came to the conclusion that Section 3(1) related to the capacity to make a Will. I have already pointed out that testamentary capacity as understood under the Wills Law is unknown to the customary law of any of the communities in the State. It is therefore not conceivable that the expression "subject to customary law relating: thereto" could have been intended to relate to or qualify what is not known. I agree with Chief Williams and I hold that the expression can only qualify, as it refers to, the subject matter of the devise.
Having held that the construction of the expression did not affect the testamentary capacity of Joshua Iserhienrhien Idehen. I hold that the Court of Appeal was wrong to hold that the will was null and void. The view that the Will, Exhibit D. was valid as to form, but the dispositions were void, suggests that a testator is not entitled to make a disposition of any of his property. This is not the customary law.
The evidence of the customary law is that the eldest son of the testator is entitled without question to the house or houses known as Igiogbe, in which his father lived and died. It has been stated emphatically that this is the normal rule. No exceptional situations have been shown when an eldest son is denied this right by his father, even on account of demonstrable unsuitability to undertake and discharge the responsibilities of the status of the head of family. In the circumstances the testator having attempted to device his Igiogbe to the children of his eldest son Dr. Humphrey Idehen, who predeceased him, in the lifetime of the 1st Respondent, who is now the eldest son, the devise failed.
The Will of the testator being valid, the consequential orders made by the Court below founded on the holding that the Will was null and void are also hereby set aside.
The devise of the Igiogbe having failed, there is an intestacy to that extent, and the customary law governing the right to the Igiogbe will apply. I have found it difficult to accept the approach of the trial Judge and to construe the Will by substituting the name of the 1st Respondent in place of Dr. Humphrey Idehen. The provisions of a Will have to be construed strictly and in accordance with the intention of the testator. On this point I differ with the reasoning of my learned brother Kawu JSC. It is clear that the 1st son contemplated by the testator was Dr. Humphrey Idehen, and failing him his children. 1st Respondent was never in contemplation of the testator, and can therefore only succeed on intestacy. His right to claim arises de hors the Will.
Apart from the reasoning and conclusion on the position of the 1st Respondent and the invalidity of the devise in favour of Dr. Humphrey Idehen who predeceased the testator and his children. I agree entirely with my learned brother Kawu, JSC.
This appeal succeeds only in part. I, therefore am of the view that each party should bear its costs.
S. M. A. BELGORE, JSC: The Wills Law of Bendel State., in S.3(1) provides as follows:
"3(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 hereinafter required, all real estate and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator."
Thus the law for the first time in Nigeria takes into consideration the local situation in testamentary capacity. Hitherto, by virtue of the English Wills Act 1837, it seemed every Nigerian could make will on virtually all property he has got and could avoid providing for his eldest male child or any child. See also Adesubokan v. Yunusa (1971) 1 All N.L.R. 225. By Benin customary law, the family seal. called "Igiogbe" automatically goes to the eldest child on the death of the father. The "Igiogbe" in the instant Appeal arc the houses at 62 Akpakpava Street and 1 Oregbeni, Ikpoba Hill, both in Benin City and by Benin customary law they must pass automatically to the eldest son of late Joshua Iserhienrhien Idehen at his death. His making a Will giving the "Igiogbe" to Dr. Humphrey Idemudia Idehen would have been no problem if he predeceased his son, it would just have confirmed the Benin customary law. The unfortunate happened in that the eldest son. Dr. Idehen, predeceased his father the testator. To my mind right from the time of Dr. Idehen's death the portion of the Will giving him the "lgiogbe" must be read in consonance with Benin customary law. The customary law does not recognise such a devise as Dr. Idemudia Idehen was no longer alive and the eldest child at the death of Joshua Iserhienrhien Idehen must automatically inherit the "Igiogbe" It is important to bear in mind that apart from these two houses which formed the "Igiogbe", the other devises were valid. In Benin customary law, the "Igiogbe" could not under any circumstances be given away as a gift, it must be left for the eldest male child. At his death, the testator is entitled, under Benin customary, to devise all his property except "Igiogbe": thus "Igiogbe" would at his death no longer be his to give away. S.3(1) Will Law speaks of "... all real estate and all personal estate which he shall be entitled to at the time of his death..."
With the greatest respect the Court of Appeal in the majority Judgment never clearly adverted to this provision otherwise they would have realized that the testator was no longer entitled to "Igiogbe". Had Dr. Idemudia Idehen lived, the Will would only have stated the obvious.
To my mind, therefore the Will could be divided into devises that were valid concerning other real and personal estates and those that were invalid concerning the "Igiogbe." Once "Igiogbe" is left where it should customarily be, with the eldest male child, the other provisions of the Will would not be vitiated. I am therefore of the view that the minority Judgment of Ogundare JCA accords with the provisions of S.3(1) Will Law and the majority Judgment declaring the entire Will null and void is wrong.
It is in view of the above reasons that I agree entirely with the Judgment of Kawu, JSC in allowing this appeal and restore the Judgment of trial High Court. I therefore set aside the majority decision of Court of Appeal and restore the Judgment of the trial High Court. I made the same order as to costs as contained in the Judgment of Kawu, JSC, which I had the privilege of reading in advance.
A. B. WALI, JSC: I have been privileged to read before now the lead Judgment of my learned brother, Kawu JSC, with which I entirely agree.
The crucial issue for determination in this appeal is whether a person of Bendel State origin and bound by his customary law can make a Will under the Bendel Stale Wills Law. Cap. 172. Laws of Bendel State, having regard to section 3 sub-section (1) of that Law which provides that:
"3(1) Subject to any Customary Law relating thereto it shall be lawful for every person to devise, bequeath or dispose of by will, executed in manner hereinafter required all real estate and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not so devised bequeathed and disposed of would devolve upon the heir at law of him or if he became entitled by descent, of his ancestor or upon his executor or administrator."
It cannot be disputed nor can it be doubted that the provision (supra) confers on any person of Bendel State origin or by culturalization and who is subject to his/her customary law of personal status operating in the State, testamentary capacity to dispose by Will -
(a) "all real estate and all personal estate which he shall be entitled to, either in law or equity, at the time of his death:
However this power to dispose by Will is subject to the provision of his or her customary law applicable to such property, be it real or personal. In this regard I partly agree with the way Chief Williams, the learned Senior Advocate, put it in his brief that -
"the expression "Subject to any customary law relating thereto" is no more than a qualification or the subject of the property disposed of or intended to be disposed of and not a qualification of the testators capacity to make a Will".
The case of O. Thompson Oke and Anor. v. Robinson E. A. Oke and Anor., read as a whole, supports this construction. In that case, Elias, CJN made the following pronouncements to wit -
"The Section [S.3(1) of the Wills Law] clearly contemplates an absolute estate of free-hold or lease-hold of which the testator died possessed and of which he could dispose by Will or otherwise. It is not to be supposed that Section 3(1) of the Wills Law can confer upon a testator the testamentary capacity to devise property by Will which the testator would not otherwise have. The introductory phrase "subject to any customary law relating thereto" necessarily makes "subject to any customary law relating thereto" necessarily makes the power given to a testator under the subsection dependent upon the particular customary law permitting it. In effect the power of the testator to devise his real and personal estates by Will is limited by that extent, if any, to which its exercise is permissible under the relevant customary law" [Italics supplied for emphasis].
The ratio decidendi is to the effect that the Wills Act does not enhance the position of the testator to dispose by Will any property which he could not have disposed of under the customary law.
This can also bear the construction that the power of the testator to dispose of any property by Will is limited to the extent that the property is such that he can dispose of under his customary law. Any attempt by the testator however ingenous he may be to transgress the limit imposed by his customary law will be an exercise in futility and will be null and void to that extent. In other words it is a restrictive provision vis-a-vis the testator. This is supported by the view expressed by Elias, CJN, in Oke v. Oke (supra) where he said-
"In effect the power of the testator to devise his real and personal estate by Will is limited by that extent, if any, to which its exercise is permissible under the relevant customary law."
Under the Bini Customary Law, the principal house in which the deceased lived in his life time and died is called "Igiogbe" and his death his eldest son, after performing all the ante and post funeral and burial ceremonies will automatically inherit it. See Arase v. Arase (1981) 5 S.C. 33 at 62 where Idigbe, JSC, stated the law as follows-
"An important aspect of the evidence relating to the Bini customary law of inheritance which was received in these proceedings is to this effect: the eldest sons of a deceased person-does not inherit the deceased's property until after the completion of the "second" or secondary burial ceremonies that is, funeral obsequies. The completion is marked by a ceremony by members of the family called "UKPOMWAN": this ceremony is performed by the members of the deceased's family for the eldest son at the latter's request. It is only after this ceremony of Ukpomwan that the family distributes the property of the deceased. Upon "distribution" all property of the father, that is, all the property owned by the deceased, "automatically" become that of the eldest son. Some of the personal effects are distributable to the other children but that only takes place after the principal house in which the deceased lived in his life time and died is called "the Igiogbe": that always passes by way of inheritance on distribution to the eldest son, However, until the exercise of distribution under customary law has been performed, the eldest son retains all the property of the deceased in trust for himself and the children of the deceased."
See also Olowu and Ors. v. Olowu and Anor. (1985) 12 S.C. 84, (1985) 3 NWLR (Pt. 13) 372.
In determining either the general object of a statute or the meaning of its language in any particulars passage it is necessary that the intention which appears most in accord with convenience, reason, justice and legal principles be presumed to be the true one. An intention to produce an undesirable result is not to be imputed to a statute if some other constructions are possible. See Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 N.W.L.R (Pt. 97) 305. In the context of the facts of the appeal now before us, the only reasonable, just and logical construction that I can put on the phrase "Subject to any customary law relating thereto" appearing at the opening of section 3(1) of the Wills Law of Bendel State is that it refers to and qualifies the property which a person cannot dispose of having regard to his customary law.
For this and the fuller reasons contained in the lead judgment of my learned brother, Kawu, JSC I also partly allow this appeal and restore the Judgment of the trial court. I abide by the consequential orders in the lead judgment.
O. OLATAWURA, JSC: I had a preview of the judgment of my learned brother Kawu, JSC, wherein he had stated the facts, the issues for determination. I need not go over those issues which have been well articulated in my learned brother's Judgment. I will adopt them as my own.
There is no doubt this appeal is on the issue of the interpretation of the phrase "subject to any customary law relating: thereto" in section 3(1) of the Wills Law Cap 172 Laws of Bendel State 1976 Already set out in the lead judgment. In his oral submission in support of the briefs filed. Chief Williams SAN posed a pertinent question: Can a person who is subject to customary law make a Will? The answer to my mind is that once he has the testamentary capacity, he can. It is his further submission that if customary law limits the rights, such limitation does not arise in this case. In this case the contention is that any Will made by a Bini man is subject to customary law. If the law allows a Bini man to make a Will, the Will must take into account the customary law of the Bini man. Chief Williams has also contended that if the opening words "subject to any customary law relating thereto" is read "subject to any customary law relating to distribution on intestacy", then the opening words are mere surplusage. In other words nothing should forbid a Bini man from making a Will. Once it is the intention of the legislature that anybody with the testamentary capacity can make a Will then the phrase Will defeat the objective of the legislature. A contrary interpretation is to the effect a Will must be in accordance with native law and custom. The question can then be asked, once there is a native law and custom about a Wilt, is there any necessity for a Will? Learned counsel drew attention to the case of Western Bank Ltd. v. Schindler (1971) ch. 1/13 to show that the intention of the legislature will be defeated if the respondents contention should be accepted.
Dr. Odje's main armour is found in the decided cases of this Court most especially;: Oke and anor v. Oke and anor (1974) N.S.C.C. (Vol. 9) p. 148: Arase v. Arase (1981) N.S.C.C. (Vol. 12) p. 101; Olowu v. Olowu (1985) 12 S.C. 84/105-107, (1985) 3 NWLR (Pt.13) 372; Alhaji Umaru Tukur v. Government of Gongola State (1989) 4 N.W.L.R. (Pt.117) 517. Dr. Odje concluded his argument by saying that the submissions made by Chief Williams are to the effect that we should depart or overrule OKE's case supra but that no case has been made out to accept the submissions: Utih and ors. v. Onoyivwe and ors. (1991) 1 N.W.L.R. (Pt.166) 166.
In his reply Chief Williams SAN has submitted that since there is no dispute about the ownership of property, the word "thereto" cannot refer to testamentary capacity or laws relating to the distribution of estates, I do not think the Wills Law of Bendel State can be interpreted to mean that nobody can make a Will, the limitation in respect of the Will is that it cannot brush aside the custom of the people with regard to disposition of their property in accordance with their custom. I will accept what Professor Nwabueze in his book Nigerian Land Law described as 'limitations' on page 421.
The learned Author said:
"In all the known cases in which customary law limits the freedom of testation, the limitation is in favour of persons whose relationship with the testator gives them right over his property, which they assert to prevent him from making certain dispositions of the property during his lifetime, and ipso facto at his death".
I will not however agree with the following sentence by the learned Author that "A son has no such right over his father's property" if it is meant to show that the right of the son which accrues under native law and custom on the death of his father has been taken away by the Will made by his father. In other words the phrase "subject to any customary law relating thereto" is a limitation on what the testator could have done without that constraint on his power. If the intention of the Will Act is not to the testamentary capacity it ought to have said so in clear words without reference to the customary law. The stand of this court in Oke and Anor (Supra) has been confirmed by the subsequent cases referred to in Dr. Odje's brief. Our Judgment on any issue is conclusive of the matter raised and canvassed in that issue. Occasions will continue to arise where in similar situation the court will be called upon to reconsider the earlier decision. That invitation should not be regarded as an infraction or infringement of our right to pronounce a final Judgment.
Where we are called upon to reconsider that earlier decision, it must be based on good and valid reasons so as not to perpetuate injustice. The Bini custom on this issue is well settled that to do otherwise than their custom allows is to brush aside an age-long custom. It may lead to chaos.
It is for these reasons that I will dismiss the appeal. I will abide by the order of cost made by my learned brother Kawu, JSC
P. K. NWOKEDI, JSC: I had the privilege of a privilege of the Judgment now delivered by my learned brother Kawu JSC For the reasons he has lucidly outlined. I am of the same view that the appeal be allowed. I would like however to add some comments on the controversy surrounding the interpretation of section 3(1) of the Wills Law Cap. 172 Laws of Bendel State. The lead judgment has admirably outlined the facts, the issues and arguments advanced by both parties to the appeal. It will not be necessary to reproduce them extensively in my comments. They said section provides as follows:
"3(1) Subject to any customary law relating thereto it shall be lawful for every person to devise, bequeath or dispose of, by his will in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either in law, or in equity at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him or if he became entitled by descent, of his ancestor or upon his executor or administrator"
Before this Court the appellants have put forward the issue to be determined as follows:
"Whether the phrase 'subject to any customary law relating thereto occurring in section 3(1) of the Wills Law of Bendel State is a qualification of the testator's capacity to make a Will or whether it is no more than a qualification of the subject matter of the property disposed of or intended to be disposed of under the Will."
The plaintiffs/respondents issue for determination is framed thus -
"Having regard to the phrase subject to any customary law relating thereto embodied in section 3(1) of the Wills Law Cap. 172, Laws of the Bendel State 1976, does a testator have power to devise his property in contravention of the applicable customary law?"
As pointed out by my learned brother, Kawu JSC, the formulation of Chief Williams, learned Senior Advocate, and counsel for the defendants/appellants, is more in line with the grounds of appeal filed. The formulation of Dr. Odje, learned Senior Advocate, and counsel for the plaintiffs/respondents, has not lucidly brought out the issue in controversy. Both learned Senior Advocate are however agreed that the bone of contention is the construction which may be placed on the phrase "subject to any customary law relating thereto" in the said section 3(1) of the Wills Law Cap. 172 Laws of Bendel State.
In his brief of argument filed (amplified in his address to the Court), Chief Williams, contended that a proper analysis of the wordings in the section above would show that the main object of the law was to confer on every person in Bendel State, the testamentary capacity to dispose of his or her property in a Will. He submitted that a person might have an interest in land of which he might be incapable of disposing of by sale, mortgage or otherwise alienate. Where that applied. the Courts had always held that such an interest might not be disposed of by a Will. He cited the cases of Ogunmefun v. Ogunmefun (1931) 10 NLR 82: Taylor v. Williams (1935) 12 NLR 67 and Davies v. Sogunro (1936) 13 NLR 15. In the above cases, he submitted, the incapacity 10 dispose of the property by Will was not testamentary, but arising from the customary law relating to the property itself. In each case, the interest sough to be devised was the undivided share in the family properly, which by customary law concerned was inalienable either inter vivos or by Will. He further submitted that the interpretation he was urging the Court to accept had the case of T.A. Adesunbokan v. Rasaki Yunusa (1971) NSCC 236 and the learned author B.O. Nwabueze in his book on Nigeria Land Law at pages 419-422, in support of it, Learned Senior Advocate further contended that, if the interpretation relied upon by the plaintiffs/respondents was placed on the section, it would amount in effect, to saying that no person in Bendel State (and for that matter all other States comprising the former Western Region) possesses effective testamentary capacity unless he could show that he belonged to a community which had no customary law prescribing rules relating to intestacy. For once it was shown that a customary law existed, then the testator must devise his property in accordance with the provision of the said customary law. This he argued rendered the Bendel State Wills Law Cap.172, an impotent legislation.
Referring to the case of Oke and Anor. v. Oke and Anor (1974) 1 All NLR (Pt.1) 443, on which the plaintiffs/respondents heavily relied. Chief Williams submitted that the case failed to draw a distinction between testamentary capacity on the one hand and inalienability under customary law of the subject matter of the disposition, on the other. He drew attention to pages 450-451 where the Court was able to rely on Taylor v. Williams, Ogunmefun and Davis v. Sogunro even though these dealt with inalienability of the subject matter. Under customary law, and not on testamentary capacity. He recalled the dicta of Elias CJN, at page 450 where he stated as follows:
In effect the power of the testator to devise his real and personal estates by will is limited by the extent, if any, to which its exercise is permissible under the relevant customary law. In the instant case, it is clear that the property in question is part of the family land of the plaintiffs' mother."
He held that the present controversy in interpretation arose from the earlier passage on the same page where the learned Chief Justice had held that-
"The introductory phrase 'subject to any customary law relating thereto' necessarily makes the power given to a testator under the sub-section dependent upon the particular customary law permitting it."
Relying on the dicta of Obaseki JSC in Olowu v. Olowu (1985) 12 S.C. 84 AT 105-107, (1985) 3 NWLR (Pt. 13) 372 he submitted that the learned justice of Supreme Court confirmed that Oke v. Oke was a decision which turned essentially on the customary law relating to the subject matter of the disposition.
Chief Williams further submitted that there could be no customary law relating to testamentary capacity for the simple reason that the concept of a will, as understood under the Wills Law of Bendel State, was unknown to customary law in the State. According to Chief Williams, a proper construction of the phrase 'subject to customary law relating thereto' would show that it would not have been intended to qualify the testamentary capacity of the testator, but rather the subject matter of the devise. He then made reference to related legislation (as an aid to Courts interpretation of the said section 3(1) of the Wills Law). He referred to section 1(3) of Cap. 2 Law of Bendel State 1976, the Administration of Estate Law, to show that the interpretation advocated by the plaintiff/respondents is inconsistent with the scheme of the administration of estate envisaged under the said Law. He drew attention to the section3(1) of the said law which enacts that the estate of the deceased devolved on his personal representatives and also to section 37(i) (a) which enacts that the personal representatives hold the real estate in trust for sale, which must be administered in accordance with requirements of section 38 of the Law. Both sections he argued would not be effectuated under customary law.
In his brief of argument, ass well as his oral submissions, Dr. Odje, learned Senior Advocate and counsel for the plaintiffs/respondents, conceded that "the real issue arising in this appeal is the interpretation of the phrase 'subject to any customary law relating thereto in Section 3(1) of the Wills Law of Bendel State" He however contended that "the limitation contained in the phrase in question is a complete restriction on the testamentary power of the deceased to dispose of the property comprised in his estate. He asked a question- "Does a testator have power to devise his property in contravention of the applicable customary law?" To answer this question he submitted that the phrase 'subejct ot any customary law relating thereto' had received judicial interpretation in Oke and Anor. v. Oke and Anor; Olowu v. Olowu above mentioned. The phrase 'subject to' had also received judicial interpretation in the case of Alhaji Umaru Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 540 and 565. The three cases, He argues, interpreted the controversial phrase "as an expression of restriction or proviso limiting, governing and controlling the words which follow in the subsection of the enactment." He submitted that on the evidence, and accepted Bini Customary Law, it was unlawful for the deceased to have disposed of his estate as he did, which was contrary to Bini customs. He held that the Court of Appeal was correct in subjecting the testamentary capacity of the deceased to Bini Customary Law. In other words, that the deceased could not in his own Will make dispositions of his property except as provided by Bini customary law of succession. He further submitted that the judgment of this Court in Madam I. Arase v. Peter U. Arase (1981) 5 S.C.35 is a binding precedent which was relied upon by both parties in the Court below.
In LSDPC v. Foreign Finance Corp. (1987) 1 NWLR (Pt. 50) page 413 - 461, the Court of Appeal Lagos Division adopted the definition of the phrase 'subject to' as given by Megarry J in Clerk Ltd. v. Inland Revenue Commissioners (1973) 2 All E.R. 513 at 520 as follows:
"The phrase 'subject to' is a simple provision which merely subjects the provisions of the subject subsection to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision the phrase shows what is to prevail."
The above definition was approved by the Supreme Court in Aqua Ltd. v. Ondo Sport Council (1988) 4 NWLR (Pt.91) page 622. In Tukur v. Government of Gongolo State (1989) 4 NWLR (Pt.117) page 517, Obaseki, JSC, equally adopted the above definition, that is, that the phrase imposes a restriction or limitation which governs the other provisions in the said subsection. In Kaycee (Nig.) Ltd v. Prompt Shipping Corp. (1986) 17 NSCC 152 at 158, (1986) NWLR (Pt.l5) 180 Karibi-Whyte, JSC held that-
"It is now settled law that the expression 'subject to' in a document or enactment is used to assign a subordinate position to a clause or section of an enactment or provide qualification".
Further down at the same page he held that "the expression 'subject to' confers a right of priority in favour of the legislation 10 which the other is subject: Re Watkins Settlement Wills v. Spence (1911) 1 CH.1".
It is a canon of construction of statutes that every word in a statute must be constructed and given effect to, since the Court leans against a presumption of surplusage or tautology, in construction of statutes except where that is manifestly the case. In Tukar v. Government of Gongola State (supra). Nnaemeka-Agu, JSC stated the position as follows at page 579.
"Now it is of the first principle of interpretation that the maker of any law, be it constitutional or otherwise does not use any word in vain. Nor does he indulge in tautology or in surplusage in the use of words." See Halsbury Laws of England (3rd Ed.) VO. 36 para.588. See also Hill v. Williams Hill (Park Lane) Ltd. (1949) A.C. 530 at 545-6."
The same position was taken by Karibi-Whyte, JSC in Orubu v. NEC (1988) 5 NWLR (Pt.94) page 323 where he stated that-
"In interpreting statutes it may be presumed that the words are not based in a statute without a meaning and are not tautology or surplusage and so effect must be given if possible, to all the words used for the legislature is deemed not to waste its words or say any in void".
What construction therefore may be given to the phrase "relating thereto" attached to "customary law" in section 3(1) of the Cap. 172, Wills Law of Bendel State? .The phrase to my mind is a qualification of limitation on the applicable customary law where the testator decides to devise by a Will his property or estates in the said section enumerated. In other words, the customary law must relate to something which the testator desires to devise or bequeath. To adopt the interpretation urged by Dr. Odje is to totally ignore giving the effect to the phrase "relating there to" which actually sets the boundary of the application of customary law in respect of any particular devise a testator may wish to make. I think that a misconception of the bases for the decision in the cases relied upon by the two sides has given rise to the present controversy. It may be necessary to examine some of the cases again.
The first is Ogunmefun v. Ogunmefun (1931) 10 NLR 82. The grandfather of the parties died intestate, leaving behind him certain real property of which he was seised in fee. Only two of his children survived with issue. One was the father of the fourth defendants, and the other was the mother of the plaintiff, and the first defendant. The woman outlived her brother. At her death it was found that she had by will bequeathed to certain of her relatives her share of her father's land. The Court held that the grandfather's fee on his death intestate; became an estate under native customary tenure, that is, a family property, and that since the same was unpartitioned before his death, the testator had no separate and alienable interest which she could devise. This was a case of nemo dat quod non habet. In accordance with the application customary law relating to family property, the testator had an interest in the unpartitioned family land. Each member who inherited the estate had a right to enjoy the property and had no separate interest until the same had been partitioned. If there had been a partition, the testator would have acquired an alienable interest. Until the property was partitioned, she had no such interest. The disability here is occasioned by the nature of the interest in the property which was sought to be devised. It concerned the testamentary capacity of the testator only in so far as she was devising a property which was not hers to alienate under customary law.
The second is Taylor v. Williams and Anor (1935) 12 NLR 67; the position was practically the same as Ogunmefun v. Ogunmefun. In fact the latter case was cited. The Court held that the devise was null and void as the testator could not by Will or otherwise dispose of her undivided share of a family property even where the devise was to her son who would succeed her. The Court emphasized that the basis of the decision was that there was not in the member of the family, any right or interest of which he or she could dispose of until the family property was partitioned. This again revolved on the customary law relating to the property devised.
In the third case, a decision on the same principle was given in Davis v. Sogunro and Ors. (1936) 13 NLR 15. The rationale of these decisions proceeded on the settled principle that under the applicable customary law relating to the property in question, a testator who had an unpartitioned interested in family land, did not per se acquire the right to dispose of same in his lifetime, much less by will, except where the undivided interest had been partitioned.
The fourth case relied upon heavily by the two sides is Thompson Oke and Anor v. R. Oke and Anor. (1974) 1 All NLR (Pt.1) 443. In this case the plaintiffs sued the respondents claiming to inherit their father's house, as the eldest son and daughter respectively. The father had died having devised the house in which he lived and died to the defendant. The land upon which the house stood was family land allocated by the father of the plaintiffs to plaintiffs' mother who was his daughter. Plaintiffs' mother had permitted the testator, her husband, to erect the house on her allotted portion. The question arose as to whether the eldest son of the plaintiff should inherit the house according to Urhobo law of succession and Itsekiri customary law. The defendants pleaded the Wills Law of Bendel State. The Supreme Court held that
"(a) customary law and not English law or the Wills Law should govern the succession to the testators estate;
(b) accordingly the plaintiff is entitled to the house as the testator's eldest son under Urhobo/Itsekiri customary law;
(c) section 3 of the Wills Law makes testamentary capacity of a testator subject to any customary law and in any case deals with only the devise of a "real estate" an interest unknown to customary law and
(d) that neither the plaintiff's mother could make an absolute gift of her portion of family land to her husband testator, nor could the latter alienate whatever house on the land to anyone other than his son."
The above case set the ground for the present controversy. The dicta of Elias CJN, as he then was, at page 450 of the report has been above reproduced. A careful reading of this case shows that the ratio decidendi was on the fact that the land on which the house was built was family land which the testator could not alienate under customary law. It was once again a case of nemo dat quod non habet. There were some dicta as above shown, which lend some weight to Dr. Odje's contention. The confusion engendered is due to imprecise use of expression that leave one in doubt whether inalienability under customary law is due to the interest subsisting in property being disposed of or that the testator did not generally follow the scheme of distribution under customary law.
I do not think that the case of T. A. Adesubokan v. Razaki Yunusa of NSCC 236 cited by Chief Williams helps much to unwind the controversy. In this case, the testator, a Moslem, made a will which was not in accordance with Moslem law of inheritance. It was held that Moslem law could not limit the capacity of the testator to devise his estate in accordance with the Wills Act of 1837 a statute of general application. The testator's will was considered under the Wills Act of 1837 of England applicable at the time. Section 3 of the Wills Act of 1837 does not contain the addendum to section of the Wills Law of Bendel State i.e. the phrase 'subject to customary law relating thereto'. If the Wills Law of Bendel State was worded in its section 3 (1) as in section 3 of the Wills Act of 1837 of England, this controversy would not have arisen. As already stated the issue is to determine what construction may be given to the qualification of the said section 3(1) of the Bendel Sate Wills Law, by the phrase 'subject to customary law relating thereto.'
Another case relied upon by the parties is Madam I. Arase v. Peter U. Arase (1981) 5 S.C. 33, a case of intestate succession. I do not think that the case is really relevant to the argument, except to the extent that it set out the Bini customary law of intestate succession. At page 62, the Bini customary law of inheritance was set out in part as follows:-
"The eldest son of a deceased person does not inherit the deceased's property until after the completion of the "second" or secondary burial ceremonies that is, funeral obsequies. The completion is marked by a ceremony by members of the family called 'Ukpomwan': this ceremony is performed by the members of the deceased's family for the eldest son at the latter's request. It is only after this ceremony of Ukpomwan that the family distributes the property of the deceased. Upon 'distribution', all property of the father that is, all the property owned by the deceased, 'automatically' become that of the eldest son. Some of the personal effects are distributable to the other children but that only takes place after the principal personal effects have been given to the eldest son. The principal house in which the deceased lived in his lifetime and died is called 'the Igiogbe', that always passes by way of inheritance on distribution to the eldest son. However, until the exercise of distribution under customary law has been performed, the eldest son retains all the property of tile deceased in trust for himself and the children of the deceased,"
As already stated the case revolved on inheritance under intestacy. It is no authority to hold that no Bini person has testamentary capacity outside the customary law of Benin. A distinction must be drawn between devolution by will and on intestacy. In the latter the personal law of the deceased prevails. In the former we have recourse to the Wills Law as qualified in its section 3(1). Too much reliance on the above cases seems to becloud the controversy as to the interpretation of the disputed clause. It should be noted that while the pleadings of the plaintiffs and their evidence tended to establish the customary law of succession on intestacy, the issue whether a testator can dispose of his properties inter vivos or any particular customary law relating to the other properties devised i.e. except the 'Igiogbe' was not adverted to.
Assuming that the interpretations offered by Chief Williams and Dr. Odje are possible constructions of the section in controversy, this obviously creates an ambiguity. Recourse would therefore be made to the usual canons for construction of Statutes. It is a canon of construction, that a statute may be construed "ut res magis valeat quam pereat", that is to say, that the construction should ensure that the intention of the legislature is not frustrated or defeated. It is the duty of the Court to give meaning to an ambiguous expression. Bowen L.J. in Curtis v. Stovin (1889) 22 Q.E.D. 513 put the position as follows:
"The rules for the construction of statutes are very much like those which apply to the construction of other documents especially as regards one crucial rule - viz, that if possible, the words of the Act of Parliament must be construed so as to give a sensible meaning to them. The words ought to be construed ut res magis valeat quam pereat" .
Fry, L.J. in the same case at page 519 held as follows:
"The only alternative construction offered to us would lead to this result that the plain intention of the legislature has entirely failed by reason of slight inexactitude in the language of the section. If we were to adopt this construction, we should be constructing the Act in order to defeat its object rather with a view to carry its object into effect."
Where there is an expression used in an enactment which may be susceptible to two interpretations, the Court may consider the consequences of either interpretation in arriving at the intention of the legislature. That interpretation which appears to defeat the intention of the Act should be bye-passed in favour of that which would further the object of the Act - Hill v. East and West Dock Co. (1884) 9 A,C 488 at 456. See also Lord Green M.R. in Hankey v. Clevering (1942) 2K.B. 326 at 330.
In Rein v. Lane (1867) 2 L.R. Q.B. 144 at 151 Lord Bowen L.J. slated the position as follows:
"It is, I apprehend, in accordance with the general rule of construction that you are not only to look at the words, but you are to look at the context, the collocation and the object of such words relating to such matter and interprete the meaning according to what would appear to be the meaning intended to be conveyed by the case of the words under the circumstances"
Our Courts have often adopted the same line of construction of Statutes. In Savannah Bank (Nig.) Ltd. v. Ajilo (1989)1 NWLR (Pt.97) 305 at 326, Obaseki, JSC, held that a statute should not be given a construction that will defeat its purpose. He further held as follows:
"where alternate constructions are equally open that alternative is to be chosen which would be consistent with the smooth working of the system which the Statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system -Shannon Realities Ltd. v. Ville de St. Michel (1924) A.C. 185."
In International Bank/or West Africa Ltd. v. Imano (Nig.) Ltd. and Anor (1988) 2 NWLR (Pt. 85) 633 at 668 this Court reiterated the law as per Wali, JSC
"the mischief rule is usually regarded as the rule of statutory interpretation and the guidelines for its application as laid down in Heydon's case (1584) 3 Coe Rep. 7 are as follows:
(a) What was the Common Law before making the Act?
(b) What was the mischief and defect which the Common law did not provide?
(c) What remedy the Parliament has resolved and appointed to cure the disease of the Common law? and
(d) The true reason of the remedy.
The Court's duty is always to make such construction that will suppress the mischief and advance the remedy and this will arise if there is latent ambiguity in the words used in the statutory provision; otherwise, the first and most elementary rule of construction, that is, the literal rule will apply.
One then asks what is the manifest intention of the Wills Law of Bendel State. The obvious answer is, to give generally testamentary capacity to "every person" of that State. If Dr. Odje's construction is applied, every Bini citizen is deprived of this testamentary capacity thereby frustrating the object of the Law. From the evidence adduced and on the authority of Olowu v. Olowu above, on the death of a Bini, all his estate is vested in his eldest surviving male child. Acceptance of the construction advanced by Chief Williams would help to further the objective of the Law.
It seems to me therefore that the phrase "subject to the customary law relating thereto" would be referable to the customary law regarding the particular devise or property sought to be devised. It is view that section 3(1) of the Wills Law, Cap. 172, Bendel State, did not compel a Bini man to make his Will in accordance with his customary law except where from the nature of the property devised. Bini customary law deprives him of the capacity to dispose of that particular property.
For the above reasons and also for the reasons advanced by my learned brother Kawu, JSC, I allow this appeal. I set aside the Judgment of the Court of Appeal, Benin Division, dated 9th day of June 1989. in this appeal. I restore the Judgment of Benin High Court dated 9th December 1988. I am also in agreement that each party should bear its costs.
Appeal allowed in part.