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