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Robinson E.A. Oke & Anor. v. Thompson Oke & Anor (1970)

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In this case the plaintiffs sued in the Worri 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 her husband, to build the house on her allotted portion.

One of the issues 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.

Available:  State v. Monsurat Lawal (SC. 80/2004, 15 Feb 2013)

The trial court found for the plaintiffs. In construing and applying the provisions of Section 3(1) of the Wills Law to the case, the learned trial judge – Obaseki J. (as he then was) held that the device 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, it is 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 it 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.”

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, C.J.N. while interpreting the words of Section 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 device 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 is real and personal estates by will is limited by extent, if any to which its exercise is permissible under the relevant customary law.”

Available:  Agha Anyina v. Messrs First City Monument Bank Ltd. (NICN/ABK/03/2017, 12th December 2017)
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