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Joseph Osemwegie Idehen & Ors. Vs George Otutu Idehen & Ors. (1991) LLJR-SC

Joseph Osemwegie Idehen & Ors. Vs George Otutu Idehen & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

S. KAWU, JSC. 

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 lifetime 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:

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 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 letter of administration of the Estate of the Deceased.

4. An Order of perpetual injunction retraining 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:

” 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 other 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 part 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 prepared it on the instructions of Iserhienrhien and personally lodged it with the Probate Registry in 1973. My acceptance of this evidence is 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 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, R.

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 presence. Finally, he said that only he, Iserhienrhien, and Isaac Aluyi (D.

W.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 present when he (PW4) signed Exhibit D.

The import of this evidence as 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 presence 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 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 grave doubts about his recollection 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 rely on the memory of one man alone in respect of an incident which happened long age, the courts act under the principle of omnia praesumuntur rite esse actas, 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 witness did not support it. Indeed P.W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

The second witness, O. Idehen, being dead, was not called to testify.

In such circumstances, where it would be unsafe to rely on the memory of one man alone in respect of an incident which happened long age, the courts act under the principle of omnia praesumuntur rite esse actas, 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 witness did not support it. Indeed P.W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

In such circumstances, where it would be unsafe to rely on the memory of one man alone in respect of an incident which happened long age, the courts act under the principle of omnia praesumuntur rite esse actas, 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 witness did not support it. Indeed P.W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

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 witness did not support it. Indeed P.W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

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 witness did not support it. Indeed P.W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

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 witness did not support it. Indeed P.W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

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 witness did not support it. Indeed P.W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

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 witness did not support it. Indeed P.W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

His witness did not support it. Indeed P.

W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

W.1 said “I cannot say whether Okhomina Idehen used to sign or thump-print the plot approval documents 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

” 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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

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 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

In short, I am satisfied that Exhibit D was signed by Okhomina Idehen as the second witness. In 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 Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

In other words I hold that Iserhienrhien died testate.” Having come to the conclusion that the late Iserhienrhien died testate and that his will Exhibit 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 11 of Exhibit’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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

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 11 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 Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

In short, he devised the Igiogbes 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 shoe, 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 on 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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

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’s 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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

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 & Anor v. Robinson Oke & Anor (1974) 1 All NLR. 443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim with regard to reliefs 1, 3, 4 and 5 and entered judgment for them in part regarding relief 2 in the following terms:-

See also the case of Thompson Oke & Anor v. Robinson Oke & Anor (1974) 1 All NLR.

443 where section 3(1) of the Wills Law was upheld.” Thereafter he dismissed plaintiffs’ claim 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 the 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 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 grounds 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 houses 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’ applealin 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 Section 3(1) of the Wills Law, Cap.

172, Laws of Bendel State, 1976, (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 Bini customary law of inheritance. Even if the deceased died intestate, the position is the same.

Olowu v Olowu (1985) 2 N.W.

L. R.

(part 13) p.372.

” In the circumstances, 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.

11. 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 Osenwegie 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 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 properties 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 Osemwegie Idehen of the second customary burial of his deceased father, thereupon 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 defendant/respondent singularly or by the said defendants/respondents collectively within 30 days of this order. 8.

The costs in the court below, and N500 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 justices erroneously considered that the capacity of the deceased to make a Will under Section 3(1) of the Wills Law was 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 justices overlooked the fact that Oke v. Oke (1974) 1 All N.

L.R.

(part 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 N.

L.R.

67, Ogunmefun v. Ogunmefun (1931) 10 N.

L.R.

82 and Davies v Sogunro (1936) 13 N.L.

R.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, J.

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.

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 plaintiff’s 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 The Applicable Customary Law?” I consider the formulation of the issue for determination by Chief Williams, SAN, 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 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 was the submission of Chief Williams, learned Senior 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 or 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.

(Reprint) 1; (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, J.

C.A.

, 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 case, it is my view that it was lawful for him to devise, bequeath or dispose off them being real and personal estate which he was entitled, either in law or in equity, at the time of 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, S.

A.N.

, 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 & Anor v.

Robinson Oke & Anor (1974) 3 S.C.

(Reprint) 1; (1974) 3 S.C.

1 at pp. 9 – 10, (1974) 1 All N.

M.L.

R.; (2) Adeniyi Olowu & 2 Ors.

v. Olabowale Olowu &Anor.

(1985) 3 N.W.

L.R.

(part 13) 372 at pp.396-397, (1985) 12 S.

C.84 at pp.

105 –107. (3) Alhaji Umaru Tukur v Government of Gongola State (1989) 4 N.

W.L.

R. (part 117) at pp.

540 and 565, (1989) 9 S.C.

N.J.

at pp.15 and 40.

It was learned Senior Advocate’s submission that in all the above cases 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, 1974 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 persons other than his eldest son, 1st respondent in this matter,”, citing the judgment of this court in Madam l. Arase v.

Peter Arase (1981) 5 S.C.

(Reprint) 21; (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 agreed 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 provisions of Section 3(1) of the Wills Law. The expression, in his view, could only qualify the subject matter of the advise.

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 & Anor v. Robinson Oke & Anor.

(1974) 3 S.C.

(Reprint) 1; (1974) 1 All N.L.

R. (pt.

1) 443 at p. 540, (1974) 3 S.

C. 1 at pp 9-10 and (1974) 1 N.

M.L.

R.351 at p.

356. It was an appeal from the decision of the Worri High Court in Suit No.

W/9/1965 Robinson E.A.

Oke & Anor. v.

Thompson Oke & Anor reported (1970) M.S.

N.L.

R. 132.

In that 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.

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 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 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.” (italics mine) “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 device 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, 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.” In my view the above passage clearly lends support to the appellant’s 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, J.S.C. in Olowu v. Olowu (1985) 3 N.M.L.R. 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant applicable customary” law. I hold therefore that the expression “subject to customary law relating thereto could not have been intended to quality 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 Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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.” In my view the above passage clearly lends support to the appellant’s 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, J.S.C. in Olowu v. Olowu (1985) 3 N.M.L.R. 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant applicable customary” law. I hold therefore that the expression “subject to customary law relating thereto could not have been intended to quality 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 Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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.” In my view the above passage clearly lends support to the appellant’s 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, J.S.C. in Olowu v. Olowu (1985) 3 N.M.L.R. 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant applicable customary” law. I hold therefore that the expression “subject to customary law relating thereto could not have been intended to quality 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 Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

In fact all that happened in Oke v. Oke (supra), as was explained by Obaseki, J.

S.C. in Olowu v. Olowu (1985) 3 N.M.L.R. 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant applicable customary” law. I hold therefore that the expression “subject to customary law relating thereto could not have been intended to quality 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 Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

S.C.

in Olowu v. Olowu (1985) 3 N.M.L.R. 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant applicable customary” law. I hold therefore that the expression “subject to customary law relating thereto could not have been intended to quality 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 Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

See also  Independent National Electoral Commission V Ogbadibo Local Government & Ors (2015) LLJR-SC

in Olowu v. Olowu (1985) 3 N.

M.L.R. 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant applicable customary” law. I hold therefore that the expression “subject to customary law relating thereto could not have been intended to quality 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 Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

M.L.

R. 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant applicable customary” law. I hold therefore that the expression “subject to customary law relating thereto could not have been intended to quality 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 Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

R. 372, was that a provision of testamentary disposition in a Will was declared invalid for contravening the provisions of the relevant applicable customary” law.

I hold therefore that the expression “subject to customary law relating thereto could not have been intended to quality 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 Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

I hold therefore that the expression “subject to customary law relating thereto could not have been intended to quality 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 Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

That being the case, I am unable to accept the submission of Chief Williams 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 Igiogbe to the late Dr. Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 Igiogbe to the late Dr.

Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

Humphrey Idehen invalid and awarded the two properties to the first 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, J.C.A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

In declaring the Will null and void, Ogundare, J.C.

A. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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. 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, 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.” In the first place it was serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 serious misdirection on the part of the learned Justice of the Court 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 contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

Secondly under the Wills Law, a devise or bequest can only be declared void if it contravened a particular rule of customary law as the devise an interview that only a minimal amount of time in Clause 11 of Exhibit ‘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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

See also  Mande Ali Vs The State (1972) LLJR-SC

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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.”

In my 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 his 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.

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 his costs and this shall be the order of the court. M. BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

As this appeal succeeds only in part, I am of the view that this is a case in which each party should bear his costs and this shall be the order of the court. M.

BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

BELLO, C.J.

N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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.

PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.”

In my 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 his 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.

N.: I have had a preview of the judgment of my learned brother, Kawu 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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje.

I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored. Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.”

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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

However, that part of the judgment relating to the nullity of the devise of the deceased’s Igiogbe stands. The judgment of the High Court is hereby restored.

Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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.

PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

Each party shall bear his 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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.”

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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

172, Laws of Bendel State 1976. Section 3(1) of the Law prescribes “customary Law” as an important fact 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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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) 5 S.C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

In Arase v. Arase (1981) 5 S.

C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

See also  Nigerian Army V. Abuo (2022) LLJR-SC

C. (Reprint) 21; (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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 life time and died is called the Igiogbe, that always passes by way of inheritance on distribution to the 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

C.101, the Bini customary law was stated at page 114 as follows: “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.

” 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

” 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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

Unfortunately, Dr. Idehen died before his father and the 1st Respondent became 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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 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) 3 S.C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.”

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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.”

In my 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 his 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.

Relying on Oke v. Oke (1974) 3 S.

C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

C. (Reprint) 1; (1974) 1 All NLR 443, 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. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

He held the devise of the Igiogbe void. PAGE| 13 Accordingly, 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 Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

While upholding the declaration in respect of the Igiogbe made by the trial judge, the Court of Appeal by majority Ogundere and Achike, JJCA, (Ogundere, 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: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

It is: “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.” 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) 3 S.C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

I do not intend to repeat them. In Oke v Oke (1974) 3 S.

C. (Reprint) 1; (1974) 1 All N.L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

C. (Reprint) 1; (1974) 1 All N.

L.R. 443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

L.R.

443 at 450, Elias, C.J.N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

443 at 450, Elias, C.J.

N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

N., 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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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’s interest was by descent. We do not think that this subsection can be read in the way suggested by the learned counsel because there is the preliminary exception (contained in the subsection 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 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

The section clearly contemplates an absolute estate of freehold or leasehold 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 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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

The introductory phrase “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 the extent, if any, to which its exercise is permissible under the relevant customary law” 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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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’ assertion 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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 follow in the subsection as contended by Dr. Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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 follow in the subsection as contended by Dr.

Odje. I find support of the submission of Dr. Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

Odje. I find support of the submission of Dr.

Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C. 1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

Odle in the judgment of Nnaemeka-Agu, JSC wherein Tukur v Government of Gongola State (1989) 9 S.C.

1; (1989) 4 N.W.L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

1; (1989) 4 N.W.

L.R. (part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

L.R.

(part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

(part 117) at 580 he stated: “….Whenever 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.” In my 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 his 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.

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.” In my 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 his 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.

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 his 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.


Other Citation: (1991) LCN/2462(SC)

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