NAME: TETERE EDESIRI

MATT NUMBER: LAW2002959

COURSE TITLE: CUSTOMARY LAW II

COURSE CODE: PPL 221

ASSIGNMENT TOPIC: WITH THE AID OF DECIDED CASES, EXPLAIN THE CONCEPT
OF IGIOGBE

THE CONCEPT OF IGIOGBE UNDER BENIN CUSTOMARY LAW OF INHERITANCE

CONTEXTUAL OVERVIEW:

An Igiogbe is the house where a Benin man lived, died and usually in most cases is
buried. It devolves automatically and absolutely without any contradiction on his
eldest surviving son as soon as the burial rites known as UKPONWAN" are
performed and completed by him (in rare instances supported by family
members) in accordance with the Benin Customary burial rites.

A BRIEF HISTORY

The foundation of this concept emanated from the primogeniture principle that
was modelled by the monarch who from the reign of Oba Ewuare the Great
(1440-1473 CE), laid down this foundation. Igiogbe is a Benin word, which literally
means the house in which the deceased lived and died and usually, though not
always is buried and that may as well contain the ancestral shrine including the
Ikhure(or Aro-era). Customary ceremonies like worshipping of deities and
ancestors, dedication of new babies, some marriage activities etc take place in an
IGIOGBE.

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CRITICAL ANALYSIS OF THE CONCEPT OF IGIOGBE

Igiogbe is the house where a Benin man lived, died and usually in most cases is
buried. It devolves automatically and absolutely without any contradiction on his
eldest surviving son as soon as the burial rites known as UKPONWAN" are
performed and completed by him.

This custom was judicially noticed by the Supreme Court in the case of Arase v.
Arase (1981) N.S.C.C. 101 where the Supreme Court of Nigeria stated the
principles of inheritance under Bini customary law relating to the “Igiogbe” as
follows: “The principal house in which the deceased lived in his lifetime and died
is called the “Igiogbe” that always passes by way of inheritance on the distribution
of his estate to the eldest surviving son.” This fact has been given statutory
recognition by Section 17 of the Evidence Act, 2011 which provides that "a
custom may be judicially noticed when it has been adjudicated upon once by a
superior court". Also, section 3 of the Wills Law Cap. 172 of Bendel State 1976, as
applicable to Edo State. The section provides as follows: “Subject to any
Customary Law relating thereto, it shall be lawful for every person to devise,
bequeath or dispose of, by his Will executed in a manner hereinafter required, all
real and all personal estate which he shall be entitled to, either in law or in equity,
at the time of his death and which if not so devised, bequeathed and disposed of
would devolve upon the heir at law of him or if he became entitled by descent, of
his ancestor, or upon his executor or administrator.” The implication of the above
is that when a man is making a Will, he must have regard to his custom and
tradition.It should be noted that a Benin man can have more than one IGIOGBE as
seen in the case of Idehen v. Idehen. In such situation, the two IGIOGBES goes to
the first surviving son. Determining the IGIOGBE is a matter of evidence before
the court as stated by Augie in the case of Uwaifo v. Uwaifo. According Kawu who
read the lead judgement in Idehen v. Idehen supra, “it was common ground that
the deceased lived in these houses in his life-time and they therefore constituted
his “Igiogbe”. Based on the evidence before the court, the deceased lived in the
aforementioned two houses. Consequently, they constitute his “Igiogbe” under
Benin customary law.

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Furthermore, another salient point to note about IGIOGBE is that it cannot be
bequeathed to a female child or wife of the deceased. It is the exclusive
inheritance of the first surviving son of a Benin man. This was given judicial
impetus in the case of Lydia Lawal Osula v. Saka Lawal Osula a case that was
decided after Idehen v. Idehen, the Supreme Court Per Belgore JSC adopted the
same definitions it provided in Idehen's case to the effect that: “„Igiogbe‟
comprises of the house or houses where the deceased hereditary chief lived or
used as seat as a Benin Chief. This cannot be taken away from the eldest son who
succeeds him to the title or office and perhaps this include the paraphernalia of
office”. In this case the deceased who was the Arala of Benin bequeathed his
properties to his wife instead of his son. It was therefore set aside.

Also, worthy of note is the principle that an IGIOGBE is not sharable. It belongs
exclusively and wholly to the eldest surviving son of a Benin Man. This is what was
held in the case of Idahosa Ogiemwanre & Ors v. Ailenoator Abiodun
(Unreported) Suit No. B/110/2007 delivered on Wednesday 11, November 2015
in the High Court of Justice: Edo State of Nigeria, in the Benin Judicial Division,
before his lordship, Honourable Justice E.F. Ikponmwen-Judge, where it was held
that an IGIOGBE was not sharable and thus the claimant case was dismissed.
Learned Counsel for the defendant, G.E. Oaikhena Esq. raised among other issues
that the land in dispute is an “Igiogbe” of late Ogiemwanre Ajayi which is not
shareable. The court held that from above arguments and evidence, the land is
not family property but “Igiogbe” since it devolved to the 1st son Osaretin
Ogiemwanre after the death of his father and that the undeveloped part of
“Igiogbe” forms part of “Igiogbe” which cannot be shared.

Pertinently, an IGIOGBE is to the first surviving son of the deceased man. Where
however the first son dies before or predecease his father, then the IGIOGBE will
go to the next son who is alive. In the case of Idehen v. Idehen,. Dr. Humphrey
Idehen predeceased (died before) his father and consequently, the 1st
respondent became the deceased's eldest son and was therefore held entitled to
his father's IGIOGBE.

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Moreso, it is possible for a man to live and die in an inferior house and maybe let
out other better properties for other purposes. It may even be that the ancestral
home of the deceased is a shrine (in the case of a chief priest), what then
becomes the fate of the first son who would not want to stay or inherit such
IGIOGBE. In that case, will be be forced or confined to that house(s) and live the
beautiful once to his younger once? To this the late Oba of Benin, Omo N' Oba
Erediauwa and his Chiefs in council, held that in a situation whereby the IGIOGBE
of a deceased Benin Man is inferior to his other properties, it will be unfair to
confine the eldest son to that house. He therefore will be given the chance to
choose between the ancestral home or IGIOGBE or that other property and that if
he chooses that,then he automatically forfeits his right to inherit the IGIOGBE.

Although the reasons for ascribing the IGIOGBE to the eldest surviving son is not
spelt out; it can however be seen as a way of preserving the Benin culture by
having somebody to represent the ancestors or a particular stool so as to
continue performing the activities that the deceased has left behind. Thus,
preserving the Benin culture may be a reason for this practice.