Can a man during his life time sell or make a gift of his Igiogbe or the one he inherits from his father?

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Comment by UMWENI Omoruyi on September 27, 2014 at 2:44pm

-The court decided that neither the testamentary deposition nor family arrangement can deprive the eldest surviving son of Igiogbe. In this section is a confirmation of a statutory backing and recognition in which is given to the prevailing  custom to operate within it's area of application.

Comment by UMWENI Omoruyi on September 27, 2014 at 2:38pm

- An interview with Chief Sam Igbe " Iyase of Benin" (June 2011) in the thesis of  BINI CUSTOMARY LAW OF INHERITANCE Shift in "Igiogbe'' as a case study. Author DONATUS SUNDAY  OLUYA - June2012 (p.40/41)

 

Comment by UMWENI Omoruyi on September 27, 2014 at 2:33pm
Can a man during his life time sell or make a gift of his Igiogbe or the one he inherits from his father?

For the fact that he had only one big house built for the purpose of accommodating the future generation a Benin man would not under any circ***tances dispose of his Igiogbe in his life time as he will have no place to live with his family and to discharge the responsibilities pertaining to Igiogbe. As the Benin traditional council puts it;

“No sane Benin man would sell or make a gift of his Igiogbe during his life time. If he does and still remain in the house until he dies then the house remain his Igiogbe and devolves on his eldest son at his death but if he move out of the house and live in another house until his death automatically the former house ceases to be his Igiogbe.”
Thus custom does not forbid the sale or making a gift inter vivos of Igiogbe. It should be mentioned that if the person is not the founder of the family then he cannot sell or make a gift of the Igiogbe he inherited because the Igiogbe he inherited does not belong to him exclusively it pa**** to his eldest son when he dies. Therefore nemo dat quod non habet applies. Again he would not dispose of his Igiogbe because he would have no place for his ancestral shrine. Ancestral worship is the reason for the existence of Igiogbe. It is said that a Benin man cannot serve his ancestors nor celebrate Eho festival as a tenant in another person’s house.

Can Igiogbe be dispose of by a will? Or Does Benin native law and customs take away the testamentary capacity of a Benin man?
The issue came up in Idehen v Idenhen supra when the Supreme Court was called upon to interpret the provision of section 3(1) of the Wills law of Bendel state (now applicable in Edo and Delta state). Section 3(1) provides:

“Subject to any customary law relating there to, 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 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”
Comment by UMWENI Omoruyi on August 29, 2014 at 10:14am
“No sane Benin man would sell or make a gift of his Igiogbe during his life time. If he does and still remain in the house until he dies then the house remain his Igiogbe and devolves on his eldest son at his death but if he move out of the house and live in another house until his death automatically the former house ceases to be his Igiogbe.”. Thus custom does not forbid the sale or making a gift inter vivos of Igiogbe. It should be mentioned that if the person is not the founder of the family then he cannot sell or make a gift of the Igiogbe he inherited because the Igiogbe he inherited does not belong to him exclusively it pa**** to his eldest son when he dies. Therefore nemo dat quod non habet applies. Again he would not dispose of his Igiogbe because he would have no place for his ancestral shrine. We mentioned earlier that ancestral worship is the reason for the existence of Igiogbe. It is said that a Benin man cannot serve his ancestors nor celebrate Eho festival as a tenant in another person’s house.

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