CORAM

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Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Lateef Adebayo Ganiyu Justice of the Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

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PARTIES

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1. DR. SOLOMON OLAYE

2. PROPHETESS (MRS) PATRICIA AIGUOBASIMWIN

APPELLANTS 

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1. MR. JULIUS TAIYE OLAYE

2. MRS. JOSEPHINE NKEKI (Nee OLAYE)

3. MR. IYARE OLAYE

RESPONDENTS 

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AREA(S) OF LAW

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WILLS AND SUCCESSION, INHERITANCE, PROBATE LAW, CUSTOMARY LAW, PROPERTY LAW, CIVIL PROCEDURE, LOCUS STANDI, ADMINISTRATION OF ESTATES

 

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SUMMARY OF FACTS

The case revolves around the distribution of properties left behind by late Pa Israel Enadeghe Olaye, a Bini man subject to Bini Customary Law, who died on September 6, 2011. He was survived by two wives (Esther Olaye and Wura Olaye) and eleven children. The two Appellants are children of Esther Olaye (the first wife), with the 1st Appellant being the eldest son. The three Respondents are children of Wura Olaye (the second wife).

The deceased’s Will, made on September 12, 2008, was read at the Probate Registry on August 23, 2012. In the Will, the storey building at No. 89, Owina Street, Benin City was devised to the 1st Appellant (Dr. Solomon Olaye), while the bungalow at the same address was devised to the 1st Respondent (Mr. Julius Taiye Olaye).

A dispute arose when the Appellants buried their mother (who died in June 2012) in one of the rooms in the bungalow in August 2012, despite protests from family members. The 1st Appellant filed Suit No. B/505/2012 claiming entitlement to inherit both buildings as the Igiogbe (ancestral home) under Bini Customary Law. The Respondents filed a counter suit (No. B/528/2012) seeking various reliefs including declaration of ownership rights based on the Will and an order for exhumation of the Appellants’ mother’s remains.

The trial court granted all reliefs sought by the Respondents, leading to this appeal.

 

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HELD

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1. The appeal was allowed.

2. The judgment of the lower Court in Suit No B/528/2012 delivered on 4th day of May, 2017 was set aside.

3. The suit was struck out for want of locus standi on the part of the Plaintiffs/Respondents.

4. No order was made as to costs.

 

 

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ISSUES

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1. Whether from the facts pleaded and evidence before the trial Court, the Respondents had proved that they had a legal right to claim ownership of properties which was bequeathed to them pursuant to a Will which was merely read and had not been admitted to probate ?

2. Whether the existence of a Will, without more, ousts the application of Benin customary law on inheritance ?

3. Whether the two buildings known as 89, Owina Street, Benin City do not constitute the deceased’s homestead (igiogbe) under Benin customary law ?

 

 

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RATIONES DECIDENDI

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PROBATE OF WILL – LEGAL EFFECT OF READING A WILL WITHOUT PROBATE

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“Probate is the judicial procedure by which a testamentary document is established to be valid Will”. In other words, it is the proving of a Will to the satisfaction of the Court. Therefore, unless it is set aside, the probate of a Will is conclusive upon the parties to the proceedings and other persons who had notice of them on all questions of testamentary capacity, the absence of fraud or undue influence, and due execution of the Will.” – Per MUHAMMAD IBRAHIM SIRAJO, JCA

 

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LEGAL TITLE IN DEVISED PROPERTY – REQUIREMENT OF PROBATE AND VESTING ASSENT

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“The law is trite that it is only when a Will is admitted to probate that it ceases to be ambulatory. It is also trite law that before legal title is conferred on a beneficiary of a Will, the Testator must have died and the Will must have been admitted to probate.” – Per MUHAMMAD IBRAHIM SIRAJO, JCA

 

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EXECUTORS’ POWERS – CRYSTALLIZATION OF RIGHTS AND DUTIES

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“The law is settled that it is only when the Last Will and Testament of a deceased Testator is admitted to probate that the rights, powers and duties of the Executors named therein will crystallize. It is only then that the Executors of the Will can assume their roles and consequently begin to exercise their functions as Executors” – Per MUHAMMAD IBRAHIM SIRAJO, JCA

 

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VESTING OF REAL PROPERTY – ROLE OF PERSONAL REPRESENTATIVES

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“Real estate to which a deceased person was entitle for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased” – Per MUHAMMAD IBRAHIM SIRAJO, JCA

 

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VESTING ASSENT – REQUIREMENT OF WRITTEN ASSENT

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“An assent to the vesting of a legal estate shall be in writing, signed by the personal representative, and shall name the person in whose favour it is given and shall operate to vest in that person the legal estate to which it relates” – Per MUHAMMAD IBRAHIM SIRAJO, JCA

 

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LOCUS STANDI OF BENEFICIARIES – NECESSITY OF VESTING ASSENT

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 “The position of the law is settled that it is only when a vesting Assent is made by an Executor and or Executrix to a beneficiary that the estate or interest to which the Assent relates can vest on such beneficiary.” – Per MUHAMMAD IBRAHIM SIRAJO, JCA

 

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EXECUTORS’ AUTHORITY – SCOPE OF POWERS AFTER READING OF WILL

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On the specific issue of locus standi I am persuaded by the argument of learned Counsel for the Respondents that upon the death of the testatrix and after the will has been read and the executors identified it is only the executors of the Will who have the authority to do anything on the Estate including its management and control.” – Per MUHAMMAD IBRAHIM SIRAJO, JCA

 

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RIGHT TO SUE – LIMITATION ON BENEFICIARIES’ CAPACITY

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It is trite law that beneficiaries to a Will are not entitled to sue for any property devised to them when the said property is still vested in the Executor and or Executrix of the Will.” – Per MUHAMMAD IBRAHIM SIRAJO, JCA

 

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COMPETING RIGHTS – PRECEDENCE OF EXECUTORS’ RIGHTS

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The right of the Respondents over the properties of their late father bequeathed to them under his will has been encumbered by the competing right of the Executors of their father’s Estate which takes precedence over that of the beneficiaries of the Estate until assent to enjoy ownership right over the property(ies) is vested in them by the Executors.” – Per LATEEF ADEBAYO GANIYU, JCA

 

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GRANT OF LETTERS OF ADMINISTRATION – EFFECT ON RIGHT TO SUE

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“This is because a person has no locus standi and lacks competence to bring an action in a representative capacity as an Administrator of the Estate of a deceased person until he has been granted the Letters of Administration.” – Per LATEEF ADEBAYO GANIYU, JCA

 

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VESTED RIGHTS – REQUIREMENT OF FREEDOM FROM COMPETING CLAIMS

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“To lay claim to and enjoy a vested right, it should not be encumbered or weighed down by any other competing right. A vested right can be so recognized by law. If it is really vested in the holder.” – Per LATEEF ADEBAYO GANIYU, JCA

 

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EXECUTORS’ CONTROL – SCOPE OF ESTATE MANAGEMENT

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“That being the case, absolute power of control and management of the estate is still vested in the Executors of the Estate pursuant to Section 3 of the Administration of Estates Law” – Per LATEEF ADEBAYO GANIYU, JCA

 

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LETTERS OF ADMINISTRATION – RIGHT TO SUE AND BE SUED

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“It is the grant of the Letters of Administration that confers the right to sue and be sued in the name of the Estate of a deceased person.” – Per LATEEF ADEBAYO GANIYU, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Administration of Estates Law, Cap 2 of Volume 1 of the Laws of Bendel State 1976 (applicable to Edo State)

2. Wills Law (CAP 172) Laws of defunct Bendel State of Nigeria (applicable to Edo State)

3. Edo State High Court (Civil Procedure) Rules, 2012

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