LEGAL PRINCIPLE: CUSTOMARY LAW — Benin Customary Law — Inheritance Rights — Second Burial Rites as Condition Precedent for Vesting of Igiogbe
PRINCIPLE STATEMENT
Under Benin customary law, upon the death of a father, the eldest son holds the estate as trustee for all children pending the performance of second burial rites. After these rites, the eldest son automatically inherits the Igiogbe (the house where the deceased lived, died, and was buried). The Igiogbe does not vest unless the eldest son performs the final burial rites.
RATIO DECIDENDI (SOURCE)
Per Belgore, JSC, in Abudu v. Eguakun (2003) NLC-771996(SC) at p. 2; Paras B–D.
"By the customary law of Benin, upon the death of a father the eldest son takes over his estate as a trustee for all the deceased's children pending the performance of the second (final) burial rites. After performance of these rites, the eldest son automatically inherits the main seat of the deceased father; that is, to say the house where the deceased lived, died and was buried. This house is called 'IGIOGBE', and does not vest unless the second burial rites are performed by the eldest child. The 'Igiogbe' passes, by way of inheritance, on distribution of the estate to the eldest son of the deceased. But until the distribution is done the 'Igiogbe' will not vest except the eldest son performs the final burial rites; otherwise the eldest son retains all the estate including the 'Igiogbe' in trust for himself and the children of the deceased."
EXPLANATION / SCOPE
Under Benin custom, the eldest son is trustee until second burial rites. The Igiogbe vests only after those rites. The principle applies to inheritance under Benin customary law. The rule protects the rights of all children. The eldest son cannot claim absolute ownership until rites are performed. The principle is well-established.