Position of Law on Vesting Assent

CASE TITLE: OLAYE & ANOR v. OLAYE & ORS (2025) LPELR-80014(CA)

JUDGMENT DATE:  21ST JANUARY, 2025

PRACTICE AREA: WILLS AND PROBATE

LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on wills and probate.

FACTS:

This appeal is against the judgment of the High Court of Edo State, Benin judicial division delivered by N.A. Imoukhuede, J on 4th day of May, 2017.

The two appellants and the three respondents are all children of one late Pa Israel Enadeghe Olaye, a Bini man, subject to Bini Customary Law. The Will of the said late Pa Israel Enadeghe Olaye, made on 12th September 2008, was read at the Probate Registry of the High Court of Justice, Benin City.  Dispute arose on the distribution of the properties left behind by the late Pa Israel Enadeghe Olaye after the performance of the final burial rites. The first appellant filed suit no. B/505/2012 seeking for, inter alia, a declaration that as the first son, he is entitled to inherit the Igiogbe of his late father and also that he is entitled to take over all the properties left behind by his late father in trust for himself and on behalf of his siblings pending the distribution of same according to Bini Customary Law.

 The respondents herein, on the other hand, filed suit No. B/528/2012 against the appellants, wherein they claimed the following reliefs among others:

“1. A DECLARATION that the 1st Claimant is the proper person entitled to apply and be granted a Statutory Right of Occupancy to all that parcel of land and the bungalow thereon known as 89, Owina Street, Off Agbado Street, Benin City, Oredo Local Government Area of Edo State within Benin Judicial Division which 1st Claimant acquired by Inheritance pursuant to clause 6 of the last Will and Testament of Pa. Israel Olaye made on 12th September 2008.

2. AN ORDER of this Honourable Court directing the Defendants to release to the 1st Claimant the plan and title documents in respect of 1st claimant’s parcel of land and the bungalow thereon known as 89, Owina Street, Off Agbado Street, Benin City, which 1st Claimant acquired vide inheritance pursuant to clause 6 of the last Will and Testament of Pa Israel Olaye made on 12th September 2008.”

In their statement of defence, the appellants denied the existence of the Will as same, according to them, has not been proved. The 1st appellant’s suit, no. B/505/2012 and the respondents’ suit no. B/528/2012, were consolidated for purposes of hearing as the two suits deal with the same subject matter. During hearing, parties led evidence through witnesses and tendered documentary exhibits.

​At the close of trial and adoption of final addresses in the cases, the trial Court granted the reliefs sought by the plaintiffs, now respondents.

Dissatisfied, the appellant appealed in the instant appeal.

ISSUES FOR DETERMINATION:

The Court adopted the issues formulated by the appellant in the determination of the appeal, thus:

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?

DECISION/HELD:

In the final analysis, the appeal succeeded and the judgment of the trial Court was set aside.

RATIOS:

• WILLS AND PROBATE- PROBATE: Meaning and nature of a Probate
• WILLS AND PROBATE- WILL: Whether the mere reading of a Will in a probate registry not yet admitted to probate confers legal right to claim ownership of properties bequeathed to the beneficiaries pursuant to the Will
• WILLS AND PROBATE- WILL: Position of Law on vesting assent
• WILLS AND PROBATE- WILL: Whether beneficiaries can claim right or entitlement over the properties bequeathed to them where a deed of vesting assent has not been executed in their favour

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