(Apr. 24, 2013) On April 19, 2013, the Nigerian Supreme Court, in a unanimous decision, upheld the principle of primogeniture under the Bini customary law of succession in which the eldest son is entitled to inherit the family’s principal house, known as Igiogbe. (Adelanwa Bamgboye et al., SC Re-Affirms Bini Succession Law, DAILY TRUST (Apr. 23, 2013).)
At issue was the validity of a will left by Pa Daniel Ediagbonya Uwaifo, a member of the Bini ethnic group who died in 1985, leaving behind two houses. Edward Omorodion Uwaifo, the eldest son (the appellant) who was left out of the will completely, sought to have it vitiated in its entirety on the grounds that it violated the Bini tradition of primogeniture. (Id.) The Court sided with the appellant in part and invalidated the will to the extent that it had devised the Igiogbe to someone else; however, the Court rejected his demand that the will be stricken in its entirety. (Id.)
The Supreme Court is not setting a new precedent in this decision. In fact, it has upheld the principle of primogeniture on multiple occasions in the past, going back to at least 1967. (USI I. Osemwowa, THE CUSTOMARY LAW OF THE BINIS 36 (2000); Arase v. Arase, [1981] N.S.C.C 101,114.) A notable example is a 1996 case in which the Court held:
Under the Bini native law and custom, the eldest son of a deceased person or testator is entitled to inherit without question the house or houses known as “Igiogbe” in which the deceased/testator lived and died. Thus, a testator cannot validly dispose of the “Igiogbe” by his Will except to his eldest surviving male child. Any devise of the “Igiogbe” to any other person is void. (Agidigbi v. Agidigbi, [1996] 6 NWLR 302-303.)
Among the Bini ethnic group (also referred to as Edo, the name of their language), which has about 1.6 million people over 99% of which are Christians, the eldest son enjoys a special place. (USI I. Osemwowa, supra at 39; Edo, Bini of Nigeria, JOSHUA PROJECT (last visited Apr. 23, 2013).) Under the Bini inheritance rites, when a man dies, all hereditary titles, if any, and the Igiogbe automatically devolve to the eldest son. (Osaretin Aigbovo, The Principal House in Benin Customary Law, NIGERIA LAW GURU (last visited Apr. 23, 2013).) The eldest son also inherits the principal personal effects of the deceased; what is left is the distributed among other children. (Idhen v. Idehen, [1991] 6 NWLR 387.)
The origin of the primogeniture system lies in the tradition of ancestral worship. The Igiogbe was believed to be a shrine for serving and communicating with the ancestors, (Osemwowa, supra at 37; Aigbovo, supra), and it appears that its automatic transfer to the eldest son was not about enriching the legatee. At the completion of the burial ceremony, the eldest son would take wooden staff (Ukhure), which would be used to communicate with the deceased by all his children. (Aigbovo, supra.) To ensure that the children put in place this medium of communication, the Bini rites prohibit distribution of property before the completion of the burial ceremony:
Under the Bini Customary law of inheritance the eldest son of the deceased person does not inherit the deceased’s property until after the completion of the ‘second’ or secondary burial ceremonies, that is the funeral obsequies. The completion is marked by a ceremony by members of the family called “Ukpomwan.” This ceremony is performed by the deceased’s family for the eldest son at the latter’s request. It is only after the ceremony of the Ukpomwan that the family distributes the property of the deceased. (Idhen v. Idehen, supra.)
Whenever the children wished to communicate with the spirits of the diseased, they would go to the place where the Ukhure is kept, which is in the Igiogbe. (DONATUS SUNDAY OLUYA,BINI CUSTOMARY LAW OF INHERITANCE: Shift in “Igiogbe” as a Case Study 34 (Jun. 2012).) While the ritual of ancestor worship is no longer practiced among the Bini people, an overwhelming majority of whom today are Christians, the inheritance rules that require the automatic devolution of the Igiogbe to the eldest son endure. (Aigbovo, supra.)