Freedom with limits as it relates to a Bini (Benin) man in Nigeria can be summarized as a marriage between Bini Customary Law and S3 (1) 0f the Wills Law, Cap. 172, Bendel State with the implication that in the process of giving instructions on writing his will, a testator can only dispose of his “Igiogbe” to his first surviving son to the exclusion of all others irrespective of the type of relationship that existed between them during the lifetime of the deceased. To do otherwise, the court would most likely pronounce that the illegal disposition of his “Igiogbe” stands invalidated and rendered defunct in the Will while other dispositions may be

1. WILL MAKER-
FREEDOM WITH
LIMITATION
(The bini man)
Written by:
O.A. AKOBE (Mrs.)
O.A. AKOBE & ASSOCIATES

2. On the question of whether a first born of a Bini deceased
testator can be denied the right to his father’s “Igiogbe” both
under his father’s Will and intestacy, From a line of well-
established decisions beginning from Arase v Arase (1981),
Idehen v Idehen (1991), Igbinoba v Igbinoba (1995), Lawal-
Osula v Lawal-Osula (1995), Agidigbi v Agidigbi (1996), Imade
v Otabor (1998), Egharevba v Orunghae (2001), Ogbahon v
Registered Trustees CCC. CA (2002), Uwaifo v Uwaifo (2013),
judicial notice has been taken of an existing and long standing
custom which had passed down from generation to
generation and has been accorded statutory recognition by
our Nigerian courts.

3. The custom in question here is the Bini native
law and custom which states that- the eldest
son of a deceased person or testator is
entitled to inherit without question the house
or houses known as “Igiogbe” only after he
has performed the second burial rites for his
father. This, house(s) is one in which the
deceased/testator lived and died.

4. – In the words of Nwokedi, JSC in
Idehen v Idehen, “……. S3 (1) 0f 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 in
the instant case his “Igiogbe”.
It should be noted that an “IGIOGBE” does not include:-
A house acquired by a Bini man in his lifetime, rented to rent-paying
tenants but in which the testator neither lived nor died therein- Arase v
Arase (supra); nor
A vacant portion of land adjacent to the principal or main house.

5. Some of the reasons given by the courts for not allowing a Bini testator
override the tradition of Igiobe through a devise (a will) as well as the
rationale behind the enactment of S 3 (1) of the Wills Law was stated by
Justice Belgore who read the lead judgment of the Supreme Court in the case
of Lawal-Osula v Lawal-Osula (supra) - “…… Binis, like some other tribes in
Nigeria, have got some age long traditions and norms, some peculiar to them,
others in common with other races in the other parts of the world that
cannot be written off by a mere legislation. To legislate to ban some of these
native law and customs, would lead to serious disorder that make governance
and obedience difficult. It is in the light of this that instead of entirely
discarding a practice that has been tried and tested over centuries, legislations
are carefully drafted to accommodate the laws and customs in question and to
regulate their practice.

6. Bini Customary
Law
In making a Will,
a testator can
only dispose of
his “Igiogbe” to
his first surviving
son to the
exclusion of all
others
S3 (1) of the
Wills Law, Cap.
172. Bendel
State
Freedom with limits as it relates to a Bini (Benin)
man in Nigeria can be summarized as a marriage
between Bini Customary Law and S3 (1) 0f the
Wills Law, Cap. 172, Bendel State with the
implication that in the process of giving
instructions on writing his will, a testator can
only dispose of his “Igiogbe” to his first surviving
son to the exclusion of all others irrespective of
the type of relationship that existed between
them during the lifetime of the deceased. To do
otherwise, the court would most likely
pronounce that the illegal disposition of his
“Igiogbe” stands invalidated and rendered
defunct in the Will while other dispositions may
be upheld as valid after considering some other
factors.