RIGHT OF TESTATION, STATUTORY LIMITATIONS AND THE CONSTITUTION



INTRODUCTION:
Leaving instructions, as to the manner of the distribution of the properties of a person after the death of the instructor, especially by a Will, is testation[1].  Any person of statutory age[2] who has sound mind and memory[3] can validly dispose his or her properties by Will.  Where a person dies without such instruction, or where the instruction lacks legal potency, he is said to have died intestate[4].   The right to own property is constitutionally guaranteed[5]. One of the incidents of ownership is right to dispose that property by the owner[6].  This, he can do either by sale[7], by gift inter vivos[8] or by will[9].


This work is intended to analyse the provisions of the various Wills Laws in Nigeria as they affect the right of the testator[10] to dispose his properties according to his wishes by Will or that impliedly empower the court to alter the wishes of the testator as expressed in his Will.  The work is however not concerned with the arguments[11] for or against absolute right of testation; rather it centres on the constitutionality of provisions in the various Wills Laws that tend to limit or qualify the right of the individual to distribute his properties, either expressly or by reference to any customary law or Islamic law.  The analysis is done by first examining the rationale for the making of Wills; next by conducting an overview of statutory limitations on the right of testation, the case of Ajibaye v Ajibaye[12] and the effect of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

RATIONALE FOR MAKING WILLS
Many people are not given to the making of Wills as it is usually believed that Will is a reminder of death.  Though, many are loathe to making Wills, it serves a great deal of purpose to have a Will.  It addresses posthumous matters.  Many reasons are usually advanced for the making of a Will[13].  Amongst the several justifications for the making of Wills is the fact that through the Will the testator could express his wishes as to the distribution of his estate, thereby excluding the rules of intestate succession and statutory rules of succession[14].  The testator can use a Will to appoint trusted friends or relations as guardians to his younger children.  Through a Will, the testator can also entrust the management or administration of his estate in the hands of efficient or capable and trusted executors, who may not necessarily be members of his family.  It may be quicker and cheaper to secure probate especially where the Will is not being challenged[15] than to secure Letters of Administration in that the grantees of Letters of Administration may and are usually required to furnish bond[16].  The executors of a Will can take possession of the properties constituting the estate, to prevent waste or dissipation of the properties[17] as they can act from the date of death of the testator, even before the grant of probate unlike an administrator under intestate succession, who must await the grant of Letters of Administration, before he can exercise any control over the properties constituting the estate of the deceased.

The testator has the opportunity of displaying positive acts of generosity by benefiting, in his Will, those who ordinarily would not be entitled to partake in the sharing of his estate.  Where executors are appointed, chain of representation is usually not broken with the death of all the executors as the executors of the Will of the last executor would automatically become the executors of the will of the initial testator so long as the last executor died leaving a Will unlike where the representatives granted letters of administration die, there must be a fresh application for letters of administration[18].

These are the usual advantages of making a Will.  It is our submission that making a Will is part of an exercise of right of ownership.  This right is, however, curtailed by the provisions in most of our local Wills Laws.  These limitations will be considered in our attempt to examine the constitutionality of these provisions.

LIMITATIONS ON THE RIGHT OF THE TESTATOR
Though the testator is accorded a somewhat absolute right of testation under the Wills Act[19], this right appears to be restricted by the various local Wills Laws[20].  Whilst the majority of the Wills Laws of the Southern States[21] tend to limit the testator’s right in relation to properties he cannot dispose otherwise than as prescribed under his customary law, the Northern States (and Oyo State in South West) that have their own Wills Laws, extend this limitation to Islamic Law.  There are three basic forms of restrictions or limitations, in various Wills Laws.  These are:
a.       Limitation under Customary Law, and
b.      Reserving Right for dependants to apply for variation of the Will
c.       Limitation under Islamic Law

     A. Limitation under Customary Law[22]
Customary law does not prohibit the making of a Will, for it recognizes an oral will made by a testator in the appropriate circumstances[23].  It however, places some measure of restrictions on the properties the testator can dispose of in his Will. Though his testamentary capacity is not in any way restricted or limited[24] by the Wills Laws, they however, place fetters on the right of the testator to dispose his properties contrary to his customary law.  This limitation is couched in various ways by the local Wills Laws.  Section 3(1) of the Wills Law[25] of old Western Region provides:
            “Subject to any customary law relating thereto, it shall be lawful for every  
             person to devise, bequeath or dispose of, by his Will, executed in manner
             hereinafter required, all real estate and all personal estate which he shall
             be entitled to either at law or in equity”.

Section 3(1) of the Wills Law, 1990 of Oyo State provides:
             “It shall be lawful for every person to bequeath or dispose of, by his Will,
               executed in accordance with this law, all property to which he is entitled,
               either in law or in equity, at the time of his death:
               Provided that the provisions of this Law shall not apply:
(a)     to any property which the testator had no power to dispose of by his Will or otherwise under customary law, to which he was subject, and
(b)   to the Will of a person who immediately before his death was subject to Islamic law”.
By these provisions, the freedom or liberty of the testator to dispose his properties is fettered and it has been so held[26].  Thus the testator cannot devise his Igi-Ogbe[27] to any other person other than the eldest surviving son, under Bini customary law[28].  In Oke v. Oke[29] a man devised a house built on land given to him by one of his wives to his son from another wife.  The land was a portion of the wife’s family land allotted to her.  The devise was held to be invalid for being in contravention of the Urhobo and Itsekiri custom that prohibit a wife from devising family property by Will.  The court maintained that if a wife who is a member of a family could not give out family property, the husband, who got the property through her cannot similarly give out the property; much less give it out to someone outside the family of the wife.  Perhaps, this understandable even on the principle of nemo dat quod non habet, as a member of a land-owing family cannot devise his un-partitioned portion of family land[30].  But in Idehen v. Idehen[31], the testator, a native of Benin lived and died in Benin.  In his Will, he made several devises and bequests.  He gave his properties where he lived and died (known in Bini custom as Igi-ogbe) to his eldest son, who unfortunately predeceased him.  At the death of the testator, the eldest surviving son, John Idenhen, sought to take possession of the Igi-ogbe which was resisted by other children and the executors of the Will.  John went to court.  At the trial court, though the Will was held to be valid, the devise of the Igi-ogbe to the late Dr. Humphrey Idenhen was held void for being contrary to Bini native law and custom.  This was substantially upheld by the Court of Appeal, though it held the Will to be void as the dispositions were void for being contrary to Bini native law and custom.  At the Supreme Court, it was held that a devise or bequest could be declared void if it contravenes a relevant native law and custom and thus, the devise of the Igi-ogbe to the late eldest son who predeceased the testator, was invalidated.  By this custom, therefore, a testator cannot dispose his residential home or compound in his Will to another person other than the eldest surviving son.  If the restriction is targeted at persons outside the family of the testator, it is understandable.  At least it could be argued that the rule then is intended to prevent a stranger from taking over the ancestral home of the children.  But where a testator gives it to one of his children, who, he might have considered most equipped to sustain the heritage, it is submitted that it is contrary to equity and good conscience, for an alleged customary prescription to foist another person on the family, who might only waste the estate.  The testator cannot also disinherit the children or dispose his properties in such a way as would prevent his sons from having a reasonable provision out of the estate[32].  The testator cannot devise his landed properties to his female children[33] or to the wife[34] except that the wife or wives is/are entitled to their dwelling houses and the testator cannot devise their dwelling houses to other persons.  Similar restriction is contained in the proviso to section 1(1) of the Wills Law[35] of Lagos State.  Commenting on the restriction, a learned author opined:
“But over the years, the unrestricted liberty of the testator to do as he pleases with  his Will became incompatible with our ways and patterns of life.  Sophistication, occasioned by western education, need not becloud our native sense of justice.  An imported system of inheritance should not overshadow the local norms which have been in existence for many centuries.  It is, therefore, not surprising that our legislatures have introduced some qualification to the right of the testator to dispose his properties”[36].
With due respect to the learned author, we are unable to see the injustice inherent in the recognition of the right of the testator to deal with his properties as he pleases except for the only reason that the customs limiting that right have been in existence for centuries.  This also does not amount to injustice.  Rather it is injustice to the testator and the beneficiary, for his right to be so curtailed, the exercise of which does not in any way affect public interest[37].  Though the right of the testator, in various jurisdictions, has been limited on the premise of maintenance of one’s family and dependants[38], the restriction placed by customary law on the testator not to give out certain properties, other than to certain person[39] often has nothing to do with making sufficient provision for members of one’s immediate family and dependants[40].  Learned Justice of the Supreme Court, Belgore[41], gave his reason for upholding the Bini custom that reserves the Igi-ogbe for the eldest surviving son, to be the age of the custom and some perceived disorder that might arise from the abolition of such age-long customs.  He said:
“The testator was not only an indigene of Benin but also a hereditary                       Chief. Binis, like some other tribes in Nigeria, have got some age long traditions and norms, some peculiar to them, others in common with the other races in the other parts of the world that cannot be written off by a mere legislation.  To legislate to ban some of these native law and customs, would lead to serious disorder that make governance and obedience difficult.  It is in the light of these that instead of entirely discarding a practice that has been tried and tested over centuries, legislations are carefully drafted to accommodate the laws and customs in question and to regulate their practice”

It is humbly submitted that the fact that a particular custom has been in existence for ages, without more, should not be sufficient reason to curtail the right of a person to dispose his properties according to his wishes.  Mere existence and age of a custom should not be a sufficient determinant of its validity and acceptability.  Every custom and by extension, customary law must be assessed in the light of its social relevance and acceptability to the people affected by its prescription.  Customary law is essentially fluid and flexible[42].  Rigidity is not a desirable attribute of customary law.  Some customary prescriptions that were hitherto held sacrosanct have been altered by the people subject to it[43]. Even individuals have been held to be entitled to appoint[44] their own head of family, contrary to the general customary prescription that recognizes the eldest surviving male child as head of the family[45].  It is strange that an individual could be accorded the right to appoint his own head of family and yet not given the opportunity of giving out his properties (even the place of his last abode like the Igi-ogbe in Bini custom or the obi in Ibo custom) to whoever he thinks would put the property into a more meaningful use.  It is strongly viewed that the rationale behind the customary prescription of giving the Igi-ogbe or obi to the eldest surviving child of the deceased is to ensure that family heritage and line of succession are reasonably preserved.  It is the same persuasion that motivates the testator in the choice of devisees, especially of his homestead.  In most cases, where the testator devises his homestead to a child other than the eldest surviving child, it is either the eldest child must have lived a wayward or reckless life, or he must have been nonchalant about the affairs of the family and as such the testator in his right judgment considered it unsafe to entrust the homestead to such a child.  While it may be argued that the rule is also meant to preserve family cohesion or harmony, it is submitted that there can be no family cohesion or harmony (as it cannot be foist on people but earned) where such a child has proved himself unworthy of such responsibility.

B. Reasonable Provision for Defendants[46]
The Wills Laws of Lagos State, Oyo State and Abia State[47] have special provisions by which named persons[48] could apply[49] for the variation of the will of a testator on the ground that the Will does not make reasonable provision for their maintenance. Section 2 of the Wills Law of Lagos State provides:
Where a person dies and is survived by any of the following persons (a) the wife or wives or husband of the deceased and (b) a child of the deceased, that person may apply to the court for an order on the ground that disposition of the deceased estate affected by his Will is not such to make reasonable financial provision for the applicant.
By these provisions, any person who falls within the category listed in the Wills Laws can therefore apply to court for reasonable provisions to be made for him from the estate of the deceased, even contrary to the desire of the testator as expressed in the Will.  Thus, under these provisions, circumstances such as it was in the case of Johnson v Maja[50]and Belonwu v Nezianya[51] were the testators gave insignificant portions of their estate to the challengers of their Will would be averted if the testators were from any of the states mentioned above. The testator may have his special reasons for not making such “reasonable provisions” for the dependants who may now, relying on these provisions in the Wills Laws, render nugatory the wishes of the testator.  The provisions under consideration seem not to admit any exceptional situation such as where the testator gives as his reasons, the making of sufficient provisions during his lifetime for the applicant or the fact that the applicant lived a wayward or wasteful lifestyle or even the fact that the applicant (in case of spouse applicant) was unfaithful or not caring for the testator. It has however been suggested that the test of reasonability is objective from the view point of the court and not subjective from the view point of the applicant[52].

C. Limitation under Islam
Though the Islamic law does not prohibit the making of Will by the adherents of the Moslem faith, it places some restrictions on the quantum of the testator’s estate that can be disposed out.  The testator cannot give out more than a third of his estate to persons outside his family[53] and the testator cannot give preferential treatment to any of the children or disinherit any of the children[54].  These are however, fetters on the right of the testator to dispose his properties.
Ajibaye v Ajibaye[55]
In this case, one Alhaji Disu Ajibaiye (a moslem from Ilorin in Nigeria) made a Will under the Wills Act and disposed off his estate. He deliberately stated he wished his estate distributed in accordance with the principles of Islamic Law but rather under the Wills Act, 1837. In the Will, substantial part of his estate was given to his last wife. He specifically stated in the Will thus:
I also direct and want my estate to be shared in accordance with the English Law and as contained in this Will having chosen English Law to guide my transaction and affairs in my lifetime notwithstanding the fact that I am a Muslim
The Will was challenged by other heirs who felt aggrieved with the manner of distribution, and sought nullification of the Will for being contrary to the Wills Law of Kwara State Cap. 168, Laws of Kwara State, 199. It was argued by them that under the Wills Law of Kwara State, the testator cannot distribute his properties contrary to Islamic injunctions. The last wife who was the major beneficiary of the Will claimed that her husband could not have been subject to Islamic law since he, in his life time, did not live according to Islamic tenets. It was established that he sdrank and sold alcohol during his life time though in his Will he said that alcohol should not be served on the date of his 8th day prayer after his burial. The Court of Appeal affirmed the decision of the trial court which nullified the Will and held among other things that:
1.      The testator could not have made a Will under the Wills Act, 1837 as ther is in existence a local legislation, Wills Law of Kwara State
2.      The Will of the testator was void abinitio being contrary to the Wills Law of Kwara State
3.      The properties of a Nigerian Moslem in Kwara State after his death are subject to Islamic Law of inheritance which strictly regulates how the properties of moslem are to be distributed at his death[56].
4.      The testator was subject to Islamic law on inheritance notwithstanding his erroneous belief that he could still, while being a moslem, elect to be governed by English law of succession.
This case put beyond doubt the judicial interpretation of the restriction on the right of a moslem testator where the local Wills Law has such limitation. The Court (both trial court and the Court of Appeal declared the Will to be void. The major reason for this declaration was because the testator was a moslem from Kwara State that has a local Wills Law regulating distribution of ones estate. It is however submitted that the total nullification of the Will was beyond the powers of the court especially where the testamentary capacity of the testator was not in doubt. If any provision of the Will was found to be contrary to the Wills Law of Kwara State as it relates to Islamic Law of inheritance, we humbly submit that, just as was done by the Supreme Court in Idehen v Idehen[57], Lawal-Osula v Lawal-Osula[58] where the Wills of both testators were found to be in contravention of applicable native law and custom, only the clause of the Wills found to be in contravention was invalidated and not the whole Will.

It is also submitted that a closer consideration of the provisions of the various Wills Laws on the point will suggest a different conclusions from that taken by the Court of Appeal. Like the Wills Law of Lagos State, section 3(1) of the Wills Law, 1990 of Oyo State provides:
             “It shall be lawful for every person to bequeath or dispose of, by his Will,
               executed in accordance with this law, all property to which he is entitled,
               either in law or in equity, at the time of his death:
               Provided that the provisions of this Law shall not apply:
(a)     to any property which the testator had no power to dispose of by his Will or otherwise under customary law, to which he was subject, and
(b)   to the Will of a person who immediately before his death was subject to Islamic law”.
From the above provision, the provisions of the Wills Law are inapplicable where the estate relates to the properties which the testator has no power under native law and custom to dispose; or properties of a person who immediately before his death was subject to Islamic Law. If the provisions of the Wills law do not apply what then applies? Does this take away testamentary capacity of the testator? We humbly submit that in the absence of the Wills Law, the Wills Act, 1837 will apply and that Act does not impose any restriction on the testator. On the other hand, the exclusion of the provisions of the Wills law does not amount to withdrawal of testamentary capacity or de-recognition of the right of the testator for the Wills Law does not confer testamentary capacity on the testator but merely recognizes that right[59]. The provisions of the Wills Law merely stipulates the form and manner of such distribution. The Law neither creates nor confer testamentary capacity on the testator.

Even if these limiting laws[60] are validly passed by the various and appropriate legislative houses, they still owe their validity to the provisions of the Constitution[61].  Can these laws, to the extent that they curtail the power of a person over his properties, and discriminate against persons of the Islamic faith, be valid?  Can a person be compelled to observe his religion or religious tenets, without a breach of the Constitution?  Why should the manner in which a person chooses to observe his faith be of any interest to the State so long as it does not amount to a breach of another person’s right or constitutes a breach of public peace?


Though these are laws validly passed by the various legislative houses of the States, the validity of these provisions must be considered in the light of the provisions of the Constitution for they owe their validity to their respective conformity with the provisions of the Constitution[62]

CONSTITUTIONAL ISSUES
 
The Constitution recognizes the right of the individual to acquire and own property in any part of the country.  Section 43 of the Constitution[63] provides:
                “Subject to the provisions of this constitution, every citizen of Nigeria
                  shall have the right to acquire and own immovable property anywhere
                  in Nigeria”.
It is a right constitutionally guaranteed, made only subject to the provisions of the Constitution.  Any other law that abridges or has the similitude of an infraction on that right is unconstitutional, therefore null and void.  Though it is admitted that the right to ownership of property is not absolute, in that it is made subject to the provisions of the Constitution; it can only be abridged or curtailed in accordance with the provisions of the Constitution[64].  The Constitution recognizes the right of the state to compulsorily acquire land for public interest[65].  The Land Use Act does not take away this constitutional right but merely expressed the concept of ownership of land in terms of the right of occupancy[66] and by stipulating certain administrative procedures or steps[67] to be followed by the owner of he right of occupancy in conferring such interest, inter vivos, on any other person by way of alienation.  Thus, outside these constitutional limitations, the individual has a constitutional right to own property.  This right, subject to those constitutional limitations, is absolute.

One of the integral incidents of ownership is the right to alienate or otherwise dispose ones property.  This was confirmed lucidly in the following judicial pronouncement:[68]
               “It connotes a complete and total right over a property.  The owner of the property is
               not subject to the right of another person.  Because he is the owner, he has the full and
               final right of alienation or disposition of the property, and he exercises his right of
               alienation and disposition without seeking the consent of another party because as a
               matter of law and fact there is no other party’s right over the property that is higher
                than that of his….the owner of a property can use it for any purpose; material,
                immaterial, substantial, non-substantial, valuable, invaluable, beneficial or even for
                purpose detrimental to his personal or proprietary interest.   In so far as the property
                is his and inheres in him nobody can say anything.  He is the Alpha and Omega of 
                the property.  The property begins with him and ends within.  Unless he transfers
                his ownership over the property to a third party, he remains the allodial owner”.

It is our submission that, subject to the provisions of the Constitution and by extension, the provisions of the Land Use Act, this is what the Constitution guarantees as right to own property in any party of the country.  Thus, any law that tends to further limit this right outside the constitutional provisions is potentially null and void.  To that extent, the various Wills Laws enunciated in this work, that have the effect of further restricting the right of the individual in the exercise of he constitutional right to acquire and own properly and by consequence, dispose of such properly by Will, are null and void. These Laws abridge the right of ownership in limiting or restricting one of the integral incidents of ownership (right to dispose ones property).  Why should female children or wives of a testator be prevented from inheriting land or landed properties of the testator?  This is the state of certain native law and custom to which the testator’s  right is limited.  Hon. Justice Pats-Achalonu, Justice of Court of Appeal, as he then was rightly opined[69].
                             “Laws or customs that seek to relegate women to the status of a second-class
                              citizen thus depriving them of their invaluable and constitutionally guaranteed
                             rights are laws and customs fit for the garbage and consigned to history”.
The Court of Appeal had no hesitation in pronouncing the unconstitutionality of such obnoxious custom, when it held[70]:
             “The Igbo native law and custom which disentitles a female whether born in or out of
              Wedlock from sharing in her deceased father’s estate is void as it conflicts with section
               39(1)(a) and 39(2) of the Constitution of the Federal Republic of Nigeria,
               1979 as amended)[71] .  These provisions are now contained in section 42
(1)   and (2) of the 1999 Constitution of the Federal Republic of Nigeria.
See Agbai V. Okagbue (1991) 7 NWLR (pt. 204)391 where Wali, JSC said
 “I have no hesitation in coming to the conclusion that any customary law that sanctions the breach of an aspect of the rule of law as contained in the fundamental human rights provisions guaranteed to a Nigerian in the Constitution is barbarous and should not be enforced by our courts”.
More importantly, the individual, on the basis of his religion[72], is prevented from making a Will or has his right of testator restricted.  By these Wills Laws, the Moslem testator must make his Will in accordance with his Islamic Law to which he is subject, notwithstanding his variant of Islamic faith or whether he chooses to dispose his estate, by Will, contrary to the dictates of that faith.  He is, therefore, compelled to observe a religious injunction.  The Constitution recognizes the individual right to freedom of thought, conscience and religion[73].  Religion is a matter of personal conviction.  This, perhaps, accounts for the various sects, even in the same faith, having different beliefs and modes of worship.  It is our submission that an individual who wishes to practice his religion and yet choose to retain the right to dispose his estate contrary to the dictates of that religion, has the constitutional right to so deviate or practice his religion.  No person has the right to compel him to practice his chosen faith in a particular way.  Thus any law compelling anybody to practice his faith in any particular manner is unconstitutional and therefore void.  Similarly, any law restricting the right of the individual in the disposition of his properties by Will, on the ground of religion is equally unconstitutional and therefore null and void.  Why the discrimination against Moslem testators?  The Constitution[74] provides:
“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person-
(a)    be subjected either expressly by, or in the particular application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups places of origin, sex, religions or political opinions are not made subject; or
(b)   be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions”.
On ground of religion, persons subject to Islamic personal law are either prohibited from making wills or are limited in the exercise of this right. This is a restriction or disability persons of other faith are not subjected to.  The connective “shall” used in the above section, does not admit of any exceptions or qualifications other than as provided in sub-section 3 of the same section 42 of the Constitution[75].  Any law therefore, purporting to subject persons subject to Islamic personal law or practitioners of any other faith to whatever restrictions or limitations on the basis of their faith is undoubtedly contrary to this provision of the Constitution.  Commenting on this section of the Constitution, a learned author[76] said:
Nigeria is a plural country. The heterogeneous nature of the country is very pronounced with respect to ethnic communities, places of origin, religion and political opinion.  The diverse nature of he country with respect to the above has necessitated the provision of section 39(intends to say 42) to the effect that a person shall not on account of the above be discriminated against or subjected to disabilities or restrictions especially with respect to any law in force in Nigeria or any executive or administrative action of the government.  A person should also not be accorded any special privilege or advantage with respect to any executive or administrative action on account of his community                            bias, ethnic group, place of origin, sex, religion or political.  A law that discriminates between citizens on account of disparity, dichotomy or differentiation that cannot stand the test of time or that is not reasonably justifiable in a democratic society is unconstitutional.

We, however, submit that what determines the constitutionality or otherwise of such a law, is not whether it can stand the test of time or that it is reasonably justifiable in a democratic society or not, but whether it discriminates between citizens of Nigeria on the basis of their communities, ethnic groups, places of origin, sex, religious or political opinion[77].  Therefore, we, make bold to say that the Wills Laws of most of the northern states[78] that appear to restrict the right of testator of Moslems, essentially because they are Moslems, are void for begin unconstitutional.  By these Wills laws, persons subject to Islamic personal law cannot appropriate the benefit of the Wills Laws, as in the way non-Moslems can make their will and thereby dispose their estates according to their wishes.  The Wills Law[79] provides:

“It shall be lawful for every person to bequeath or dispose of by his will executed in accordance with the provisions of this law all property to which he is entitled, either in law or in equity, at the time of his death:

                       Provided that the provisions of this law shall not apply:-
                              ………………………..
                  (a)to the will of a person who immediately before his death was subject to Islamic law”.

The basis of this restriction is the fact that the person, prior to his death, was subject to Islamic law.  This is the main purpose of the constitutional provision, herein analysed, that frown at discrimination, in whatever guise, to restrict the right or privileges conferred on other citizen[80] by any law or executive or administrative action.

It is unfortunate that the testator, whose right, is by these laws violated, would have been dead by the time the will is challenged on ground of being made contrary to these Wills Laws.  It is however, submitted that the beneficiary who will be adversely affected by the argument or objection to the validity of the Will on religious ground as recognized in these laws, has the right to raise the unconstitutionality of these restrictions.

Moreover, it is submitted that such restrictions violate the testator’s right to freedom of expression[81], conscience, thought and religion[82].  A will is essentially an expression of he wish and opinion of the testator on the administration of his estate.  The constitutional provision guarantees that a man’s wishes or opinion, so long as the opinion does not constitute a breach of public peace, should be respected.  Once a person could be limited on the manner or mode of operating his faith, even where it appears similar to that of other persons, to that extent, he ceases to have the constitutionally guaranteed right to freedom of worship.  A man who chooses to distribute his estate contrary to the dictates of his professed religion, to the extent of his defiance, has only chosen to be different in his belief and practices and this the Constitution guarantees.  He has the right to change his faith, no matter the extent of the alteration, even if it is to the extent of the distribution or administration of his estate only.

A constitutionally guaranteed right cannot be validly abrogated or limited by any other statute[83].  Adekeye, JCA, rightly observed:
“A right conferred by the constitution cannot be taken away by any other legislation on stutory provision except by the constitution itself…Any other law purportedly made abrogating the right conferred by the constitution would be void to the extent of its inconsistency”[84]    
This, it is submitted, is the fate of all these Wills Laws that appear to limit the constitutional right of the testator to own properties which right embodies the right of disposition.

CONCLUSION
We have been able to show that the existing laws that tend to restrict the right of testation of persons, either on the basis of religion or customary law, contravene the fundamental rights provisions of the Constitution.  The Constitution has abolished all forms of discrimination either on the basis of communities, ethnic group, sex, religion or political opinion or even on the circumstances of birth.  Every right or privilege every citizen of Nigeria is conferred with, shall apply to all.  No citizen should be deprived of such privileges on the basis of his religion or in whatever guise.  The Wills Laws that prevent persons subject Islamic law from benefiting from the privilege of making their wills as they choose is discriminatory against such persons and therefore unconstitutional.  The discriminatory character of such laws is reinforced by the fact that persons not subject to Islamic Law, are allowed to exercise the right to dispose of their properties as they please.  Why should a testator have the right to appoint his own head of family even against the natural expectations under native law and custom and yet be prevented from giving out his property to whoever he desires? Why should customary law that prohibits the giving of landed properties to female children be upheld, contrary to the constitutional right of freedom from discrimination?  If these native laws could be invalidated on the ground of inconsistency with the provisions of the constitution, it is humbly submitted that the various Wills Laws that place restrictions or limitations on the right of testation of the testator are void to the extent of their inconsistencies.  These Wills Laws should therefore, be amended, to remove the limiting provisions that make them inconsistent with the Constitution, as shown above.



[1] Black’s Law Dictionary, 8th Edition, page 1514.  Usually the High Court through the probate division will grant Probate, where Will is attached to the application for the administration of the estate of the deceased.  See Orders 48 and 50, High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004; and Lagos State High Court (Civil Procedure) Rules, 2004.
[2] The statutory age of the testator depends on the applicable Wills Law or Act.  Under the Wills Act, 1837, S.7 (a statute of general application, in force in states that are yet to enact their local Wills Law), and the Wills Law, 1959, S.5, of the old Western Region (applicable in states that are created out of the old Western Region such as Ondo, Ekiti, Osun, Delta and Edo ( Oyo State has its own Wills Law, 1990) it is 21 years; under the Wills Law of Oyo and Lagos States, it is 18 years- S. 5, Wills Law 1990 of Oyo State and S.3, Wills Law, 1990 of Lagos State.  Note however, that soldiers in active military service, members of the Airforce or Mariners or Seamen at sea or a crew members of a commercial airline may validly dispose their property even where they are not up to the statutory age-See S.11, Wills Act, 1837; S.9, Wills Law, 1959 of Old Western Region; S.6, Wills Law, 1990 of Lagos State; and S.8, Wills Law, 1990 of Oyo State.
[3]  Okelola v. Boyle (1998) 1S.C.N.J. 63; Adebajo v. Adebajo (1973) 3E.C.S.L.R.544; Johnson v.Maja (1950/51) 13 W.A.C.A 290; Banks v. Goodfellow (1870) L.R. 5 Q.B.549; Singh v. Amirchand (1948) 1All E.R. 152.
[4]  Abeje v. Ogundario (1967) LLR p.9.  The estate of an intestate devolves on the personal representatives who are usually granted letters of administration. See Orders 48 and 50, Federal Capital territory, High Court of Federal Capital Territory (Civil Procedure) Rules, 2004; and Lagos State High Court (Civil Procedure) Rules, 2004.  The manner of distribution of the estate depends on the personal law of the intestate.  That is, whether it is English law (especially where the deceased contracted marriage under the Marriage Ordinance or Marriage Act.  See Coker v. Coker (1943) 14 NLR 55; Smith v. Smith (1924) 5 NLR 105’ Onwundinjor v Onwiudinjo (1957) 2 ERNLR 1) or customary law of the deceased (which includes Islamic Law-see Holy Qu’ran chapter 4 Verse 7
And 11-12).
[5] Section 43 of the Constitution of the Federal Republic of Nigeria, 1999 as amended (later referred to as ‘the
   Constitution’).  Ownership has been described as the bundle of the rights of a person over and above every other person on a thing.  See I.O. Smith, PRACTICAL APPROACH TO LAW OF REAL PROPERTY IN NIGERIA, Ecowatch Publications (Nigeria) Limited, Lagos at page 14.    
[6] Every legal system designs for itself its own concept and incidents of ownership See I.O. Smith, PRACTICAL APPROACH TO LAW OF REAL PROPERTY IN NIGERIA, (Ecowatch Publications (Nigeria) Limited, Lagos) at page 15. In Nigeria, our concept of ownership must be expressed in terms of right of occupancy, whether statutory or customary, and whether it is expressly granted by the State or Local Government, or deemed to be so granted. See sections 5,6,34 and 36 of the Land Use Act, Cap. L5, laws of the Federation of Nigeria, 2004
[7] This could be under native law and custom (in which case, the purchase price must have been paid and all            necessary traditional ceremonies performed, where necessary, and the transaction must be in the presence of witnesses- see Adesanya v. Aderonmu (2000) FWLR (pt.15) 2492; Odusoga v. Ricketts (1997) 7 SCNJ 135; Odufuye v.Fatoke(1977) NSCC Vol.ii p141; Griffin v. Talabi (1948) 12 WACA p.371.  Cole v. Folami(1956) SCNLR p.180 or conveyance under English law (in which case, it must be made by instrument in writing or by deed- see section 4 of the Statute of Fraud, 1677, s. 5(2) Law Reform Contract) Law, Cap. L63, Laws of Lagos State, 2004
[8] This is the transfer of the land without any consideration from the transferee.  Except under native law and  custom, gift of land (known as voluntary conveyance) must be made by deed.  See Re-Vallance v Blagden  (1884) 26 Ch.D.353.  Under native law and custom, it needs not be made by deed See Agedegudu v.  Ajenifuja (1961) FSC p. 431; Jeged V. Eyinmogun 4 FSC p.270.  A gift once made is usually irrevocable unless made subject to a condition
[9] A gift of land or landed property in a Will is a devise- Black Law Dictionary, 8th Edition, p.483
[10] The use of “testator” also includes testatrix.
[11] Various arguments have been put forward against or in support of the concept of absolute right of testation . On this see Taiwo Ajala, Private Property Right:  A Vanishing concept?, Journal of Private and Property Law, Vol 2, January, 2003, p.79-96.
[12] (2007) ALL FWLR (pt.359) 1321.
[13] See Kole Abayomi Wills: Law and Practice, (Mbeyi & Associates (Nig)Ltd, Lagos, 2004) at p.8-12; S.O. Imhanobe,  Understanding Legal Drafting and Conveyancing, (Secured Titles Publishers, Abuja, 2002) at p.285-286 and Nick Obodo, Law of Wills in Nigeria, T.T.P. Ventures, Enugu 1998, P.8-9.
[14] This is succession under native law and custom.  It should be noted, however, that this right of the testator to         exclude intestate rules of succession is subject to the dictates of his native law and custom by the statutory         provisions in some of the local Wills laws.  This limitation is the subject of this inquiry or analysis.  Where the         testator was married under the Act, succession to his estate may be regulated by the provision of the  Marriage Act, Cap. M6, Laws of the Federation of Nigeria, 2004, section 39(1)
[15] Where the Will is challenged, the propounder, that is, the person putting out the Will to be valid or authentic,         must prove that the Will was validly made and executed by the testator with the requisite testamentary capacity.  See Sections 9 Wills Act, 1837, 6, Wills Law (Western Region) 1959; and 4, Wills Law, Lagos State, Okelola v. Boyle (1998)1 SCNJ63; Ita v. Dadzie (2002)4 NWLR (pt.652) 168; In the Estate of Randle(1962) 1 All NLR 130; Johnson v. Maja (1951) 13 WACA 290; Adebajo v Adebajo (19730 3 ECSLR 544.
[16]    See Order 50 Rule 34, High Court of Lagos State (Civil Procedure) Rules, 2004; Order 48 Rule 30, High Court of the Federal Capital Territory (Civil Procedure Rules) 2004
[17] Ojukwu v Kaine (1997) 9 NWLR (pt. 522) 613.
[18] This is appointment by operation of law. The chain of representation will be broken if the last executor dies intestate; fails to appoint an executor in his Will; fails to obtain probate of the testator; or renounces probate. See 8, Administration of Estate Law, Cap A3, Laws of Lagos State, 2004; S.8, Administration of Estate Law, Cap. 10, Laws of Abia State, 1998-2000.
[19] Wills Act of 1837 and Wills (Amendment) Act of 1852. Both are received English Statutes of General application, made applicable by virtue of the various reception laws in Nigeria.
[20] Not all the States have passed their own Wills Laws.  The old Wesern Region was the first to enact it own Wills      Law in 1959 which incidentally is still the applicable Wills Laws in the various States carved out of the Region-     Oyo State (though Oyo State has enacted its own Wills Edict, in 1990 with minor changes), Ondo State, Ekiti      Stae, Oshun State, Edo State and Delta State.  Abia Stae has also enacted its own Wills Law, Cap.37, Laws of      Abia State, 1991-2000.  Some of the northern States have equally passed their own Wills Law- Wills Law, Cap.63,
Laws of Kaduna State, 1991; Wills Edict, No.2 1988 of Plateau State;Wills Law, Cap.168, Laws of Bauchi State      1989; Wills Law, Cap. 168, Laws of Kwara Stae, 1991; Wills Law, Cap. 155, Laws of Jigawa State, 1998. 
[21]  These include States in the old Western Region, Eastern Region and lagos(though Lagos was not part of any
of the regions).
[22]  Section 3(1), Wills Law of Western Region, 1959 applicable to all the States in the former Western Region;       Section 1(1) Wills Law, Cap. W2, Laws of Lagos State, 2004.  Note however that thewre are some State with       Local Wills Law that accords testator absolute right of testation without such limitations are it is in the Wills       Laws mentioned earlier.
[23]   This is otherwise known as nuncupative Will.  For a nuncupative Will to be valid, it must have been made        voluntarily by a person with sound mind and memory; the subject-matter must be disposable and identifiable;        the beneficiaries must be identifiable and the disposition must have been done in the presence of witnesses. See Bankole v Tapo (1961) 1 All N.L.R. 140 and Ayinke v Ibidunmi (1959) 4 FSC280.
[24] See the view of the Supreme Court in Idehen v. Idehen (1991) 6 NWLR(pt.198) 382 where it held that the         introductory words of qualification in the Wills Law, Cap.133, Laws of Western Region of Nigeria, 1959 only         applies to the subject-matter of disposition (ie the property to be given out) and not the testamentary capacity of the testator.
[25] Cap. 133, Laws of Western Region of Nigeria, 1959 applicable to all the States that were created out of the  Western Region.  In S.4(1) b, Wills Law Cap 163, Laws of Kaduna State 1991; Wills Edict, No.2 1988 of Plateau     State; Wills Law, Cap. 168 Laws of Bauchi State 1989; Wills law, Cap. 168, Laws of Kwara State 1991; Wills law     Cap. 155, Laws of Jigawa State, 1998 provides.  “It shall be lawful for every person to bequeath or dispose of by        His willexecuted in accordance with the provisions of this law all property to which he is entitled, either in law         Or in equity, at the time of his death:
       Provided that the provisions of this law shall not apply:-
(a)     to any property which the testator had no power to dispose of by will or otherwise under customary law to which he was subject;
(b)     to the will of a person who immediately before his death was subject to Islamic law.
[26] Oke v. Oke (1974 3 S.C. 1; Idehen v. Idehen (1991) 6 NWLR (pt.198)382; Lawal-Osula v. Lawal-Osula (1995)9      NWLR (pt.419)259 or (1995)10SCNJ 84.
[27]  This is the property in which the testator lived and died, according to Bini customary Law.
[28]  Idehen v. Idehen (1991) 6 NWLR (pt.198) 382; Lawal-Osula v. Lawal-Osula (1995) 9 NWLR (pt. 419)259 or(1995) 10 SCNJ 84. There is a similar custom in the Eastern part of the country where the eldest surviving son inherits the obi.
[29]  Supra note 14.  Here it was the Itsekiri/Urhobo customary law that was been considered. It is not clear whether the position of the court would have been different if the testator in Oke v Oke, supra had devised the house in question for the benefit of one of the children of the wife through whom he got the portion of land on which the house was erected.
[30] Davies v. Sogunro & others (1937) 13 N.L.R. 1
[31] Idehen v. Idehen (1991) 6 NWLR (pt.198) 382
[32] Okoro N., The Customary Law of Succession in Eastern Nigeria, pp.77-79 cited by Nick A. obodo, Law of Wills in  Nigeria, (T.T.P. Ventures, Enugu, 1998), p.101
[33]  This is more pronounced amongst the Igbo speaking people.  See Okoro, N.  The Customary Law of Succession          in Eastern Nigeria, supra; Obi, S.N.C., The customary Law Manual ( Government Printer, Enugu,) P.175
[34] For under most customary laws, wives of a deceased are part of the estate of the deceased to be inherited by        the brothers of the deceased.  Jibowu, F.J. in Suberu v. Summonu (1957) 2 F.S.C. 31 said:  “It is well settled                 rule of native law and custom of the Yoruba people that a wife could not inherit her husband’s property,                 since she herself is like a chattel to be inherited by a relative of her husband”.  However, this rule of                 customary law that discriminates against female members of the deceased family has been invalidated  and held to be contrary to the constitutional provision against discrimination – see Mojeku v. Mojeku  (1997) 7 NWLR p.512; Uke v. Iro (2001) 17 WRN 172.
[35] Wills Law of Lagos State, Cap. 1994.  See S. 4(1), Wills Law Cap. 163, Laws of Kaduna State, 1991; Wills                Edict, No.2 1988 of Plateau State; Wills Law, Cap. 168, Laws of Bauchi State, 1989; Wills Law, Cap. 168,                Laws of Kwara State 1991; Wills Law, Cap. 155 Laws of Jigawa State, 1998.  There is similar provision in                section 3(1) of the Wills Edict, 1990 of Oyo State.
[36] Dr. Kole Abayomi, Wills: Law and Practice, Lagos, Mbeyi & Associates (Nig.) Ltd, 2004, p.254               
[37] Various arguments have been put forward against or in support of the concept of absolute right of                  testation. On this see Taiwo Ajale, Private Property Right; A Vanishing concept, Journal of Private and                 Property Law, Vol2, January, 2003, p.79-96.   
[38] This shall be discussed later.  See sections 2(1), Wills Law, Cap. Laws of Lagos State, 2004; Wills Law,                 Cap. 37 37, Laws of Abia State, 1991-2000.  See Taiwo Ajala, Private Property Right: A Vanishing Concept,                  The Journal of private and property Law, Vol.22, Jan. 2003, p.90-91.
[39] Such as to the eldest surviving son in Bini custom or in the Igbo custom.
[40] It may be argued that the Wills Law of Lagos State that allows members of the testator’s immediate                 family and dependants to apply to court to vary the Will by making reasonable provision for their needs, is                 intended to prevent the situation where destitute are raised in the society.  It is therefore, intended to solve our social problems associated with the increase of Area boys and beggars in our society.
[41]         In Lawal-Osula v. Lawal-Osula, supra.
[42]  Osborne C.J. Lewis v. Bankole (1908) 1 N.L.R. 81 at 100-101 captured this aptly when he said:  One of the             most striking features of West African native custom…is its flexibility; it appears to have been always             subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely loosing its character”  Similarly, Learned author, Obilade, A.O., in his work, The Nigerian Legal System, (London, Sweet and Maxwell, 1979) at  page 84 said:  Its rules change from time to time; in particular they reflect the changing social and economic conditions”.  On this see also Osita Nnamani Ogbu, Modern Nigerian Leal System, (CIDJAP Publishers, Enugu, 2002), page 78-81
[43] For example, absolute alienation of land was prohibited by native law and custom: Amodu Tijani v.           Secretary, Southern Nigeria (1921)2 A.C 399; Oshodi v. Balogun (1936)2 A.E.R. 1632; Alade v. Aborishade           (1960) 5 F.S.C. 167
[44] Sogbesan v. Adebiyi (1941) 16 N.L.R. 26
[45] Lewis v. Bankole (1908) 1 N.L.R. 82
[46] This is peculiar to the Wills Laws of Lagos State, Oyo State and Abia State.
[47] Section 2(1), Wills Law, Cap.W2, Laws of Lagos State, 2004; Section4(1), Wills law, no.13, Laws of Oyo State,            1990; section 4(1), Wills Law, Cap.37, Wills Law of Abia State, 1991-2000.            
[48] Whilst Wills Law of Lagos State recognizes only wife or wives, husband and child or children of the testator,           the Wills Laws of Oyo State and Abia State recognize, in addition to the above persons, parents, brothers,           sisters of the deceased who immediately before the death of the deceased was being maintained either wholly or partly, by the deceased.
[49] This application must be made within six months of the grant of probate- see section 2(4) of Wills Law, Lagos           State, supra; section 4(4), Wills Law, Oyo State,; and section 4(4), Wills law of Abia State.
[50] (1950/51)13 W.A.C.A. 290
[51] (1959) 3 E.R.L.R. 40
[52] Thus the provision is not intended to sustain an extravagant, expensive lavish life style but to discharge cost of daily living or provision of daily requirements of the applicant all circumstances being put into consideration. See Y.Y Dadem, property Law Practice (Jos University Press Ltd, 2009) 257; Re Coventry (1980) Ch 461; Re Dennis (1981) 2 ALL ER 140; Kerridge K & Brierly A. H. R, Parry and Clark: The Law of Succession 11ed, (Sweet & Maxwell, UK) p.162 cited and relied on by Y.Y Dadem, supra at p.256.
[53] Adesobukan v Yinusa (1971) 1 All N.L.R.225; see Abdulmalik, B.M., Supremacy of Islamic Law, Hudahuda
    Publishing Company, Zaria, p.77 (cited by Nick A. Obodo, Law of Wills in Nigeria, op. cit. footnote 24
[54] Supra
[55] Supra.
[56] According to the Maliki Islamic school, a moslem must not give more than one-third of his estate outside his immediate family; equal distribution amongst the male children, and one-eight to the wife or wives.
[57] Supra
[58] Supra.
[59] This was the position of the Supreme Court in Idehen v Idehen, supra.
[60] The various Wills Laws that place fetters on the testator
[61] Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended renders any law that is in conflict with any of the provisions of the Constitution to be null and void to the extent of its inconsistency.
[62] The effect of any inconsistency between the Constitution and the provision of any other law, whether or not        validly passed by the appropriate legislative house, is unambiguously stated in section 1(3) of Constitution of        the Federal Republic of Nigeria, 1999 as amended.  That other law to the extent of the inconsistency is void.
[63] Constitution of the Federal Republic of Nigeria, 1999 as amended (later referred to as “the Constitution”)  This provision is peculiar to the 1999 Constitution as there is no similar provisions in Constitution of the Federation, 1963, and Constitution of the Federal Republic of Nigeria, 1979.
[64]  Such as sections 44 and 315(5)d of the Constitution
[65]  Section 28 of the Land Use Act, 1978 and section 44(1) of the Constitution.
[66]  Sections 5, 6, and 34 and 36 of the Land Use Act
[67]  Such procedures include obtaining Governor’s consent or the consent of the relevant Local Government prior        to the alienation of the statutory right of occupancy or customary right of occupancy.
[68] Hon. Justice Niki Tobi, JCA (as he then was) in Abraham v. Olorunfunmi (1991) 1 NWLR (pt. 165) 53 at p. 74-75.  Though the radical title to land in every state is said to be vested in the Governor, the individual or community        still retains the ownership, at least of the right of occupancy, and therefore has the right, subject to the  consent provisions, to alienate or otherwise dispose of interest.
[69] Uke v. Iro, supra p.176.
[70] See Ukeje v. Ukeje (2001) 27 W.R.N. 142
[71] Now section 42(1)(a) and 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
[72] See section 4(1) b, Wills Law Cap. 163, Laws of Kaduna State, 1991
[73] Section 38 of he Constitution
[74] Section 42(1) of the Constitution; similar provisions existed in the Constitution of the Federation, 1963, section
        24; and Constitution of the Federal Republic of Nigeria, 1979, section 35.
[75]The exceptions provided in sub-section 3 only relate to the appointment of persons to any office under the         state or as a member of the armed forces of the Federation or a member of the Nigeria Police or to an office in         the service of a body corporae established directly by any law in force in Nigeria.
[76] Prof. John Ademola yakubu, Constitutional Law in Nigeria,(Demyaxs Law books, Ibadan, 2003) p400
[77] The courts have not found it difficult to pronounce certain customary laws, especially those in the Eastern part of the country, which discriminate against female children in maters of inheritance.  See Uke v. Iro (2001) 17 WRN 172; Ukeje v. Ukeje (2001) 27 WRN 142 and Agbai v. Okagbue (1991) 7 NWLR (pt. 204)391
[78]   See footnotes 22 and 32
[79]   See S.4(1)b, Wills Law Cap. 163, Laws of Kaduna State, 1991; Wills Edict, No.2 1988 of Plateau State; Wills, Law, Cap.168, Laws of Bauchi State, 1989; Wills Law, Cap. 168, Laws of Kwara State 1991; Wills Law, Cap. 155 Laws of Jigawa State, 1998.  There is similar provision in section 3(1) of the Wills Edict, 1990 of Oyo State.       
[80]  It is admitted that for a person to invoke the provision of section 42 of the Constitution, he must be a               Citizen of Nigeria.  See I.O. Smith, The Constitution of the Federal Republic of Nigeria ANNOTATED,              (Ecowatch Publications Limited, Lagos, 1999), p.70; Uzoukwu v. Ezeonu 11(1991) 6 NWLR (pt. 200)708
[81] Section 39 of the Constitution; similar provisions existed in section 25, Constitution of the Federation, 1963                Section 36, Constitution of Federal Republic of Nigeria, 1979.
[82] Section 38 of the Constitution.  Similar provisions existed in section 24, Constitution of the Federation,              1963, section 35, Constitution of he Federal Republic of Nigeria, 1979.
[83] Osungwu v. Onyeikigbo (2005) 16 NWLR (pt. 950) 380; Tukur v. Govt., Gongola Ste(1989) 1 NWLR (pt.117)
    517 and Okulate v. Awosanya (200002 NWLR (pt. 646)530
[84]  Osungwu v. Onyeikigbo (2005) 16 NWLR (pt. 950) 380 at page 94 paragraphs E-F
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