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Hierarchy of the Administration of Benin’s Customary Laws

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Before the advent of the imperial laws, the Benins had their own unique judicial process put in place to administer traditional conventions, laws and custom built into their own legal system. The fineness and the administration of this system made this judicial process stood the best of time against the colonial laws. People have thought that the Benins kings were very autocratic and that they imposed their wishes on the people. This is not true as the customs of the Benins have no room for such autocracy the colonial laws have expended the scope of the Benins judicial process but had not entirely surrendered its independence to it. The colonial laws are complimentary to the Benins customary laws. This also is an example of what is obtained in the United Kingdom where Scotland and Wales though part of the Union and operate one common law, still leaves rooms for the application of individual ethic customary laws in England, Scotland and Wales.

The underlying principle of the Benins judicial system stems from the fact that the Benins belong to one family strongly woven together in their culture. A Benin man is a Benin man anywhere and what obtains in one village equally obtains in another. In Benin, every family has its own structure in the process of adjudication matters which began at the family level has the possibility of ending at the customary court of appeal or the Supreme Court. Matters go to the family head called Okaegbe and from Okaegbe to Edion-Idunmwun, Edion-Evbo Enogie respectively and finally to the Oba of Benin. Matters which cannot be resolved in the palace go further to the customary court, area court and the customary court of appeal and the high courts. Further appeal can also go to the court of appeal and the Supreme Court. Most communal cases are settled either at the family level or at the palace level. This is so because people involve have confidence in the customary adjudication at the palace level but the educated ones now go direct to the court and can go up to the supreme court particularly in matters like land, succession and inheritance

When matter is brought to the family head, he calls on their members of the family who are heads of different units. That is to say, if A marries five wives and had thirty children five each from different wives, A is regarded as “ODAFEN”.(The father of the thirty children). He settles matters among his wives and children. When A dies, the most senior male child among the thirty children becomes “OKAEGBE”. He is now the head of EGBE now formed with his full blooded relations and half brothers and sisters from the other four wives. Each of the head of the other four wives are heads of that individual unit and are principal members of A’s family who is now deceased. This explanation is necessary because at common law as well as in Benin customary law only the principal members of the family can distribute properties of the deceased members of the family without the consent of the principal members of the family. Any sale of family land or sharing of family properties is null and void. See Lopez vs Lopez (1924 5NLR 50 Onwuka vs. Abririka Clan Council (1956) ENLR 17 Esan vs. Bakare Faro (1947) 12 Waca 135, Solomon and others vs.Mogaji (1982) 11Scpage 1 Ogunmefun vs. Ogunmefun (1931) 10 NLR P 82, DUrojaiye Ogunbowale vs. Baywole and other (19759 3/CCHCJ 327, Saberu vs Sunmonu (1957) FSC p 33

A dispute which cannot be resolves by the OKAEGBE is taken to the EDION-IDUNMWUN and heard by the elders at OGUA-EDION, elder’s court.

However it is to be noted that only those who have interests or locus standing are capable of bringing matters to the Oba. A man whose parents are not descendants from a particular community cannot be relied on strictly when giving evidence as to the date and circumstances of the foundation of that community and matters affecting the community land. A person who no interest in land cannot bring legal matters against trespassers because the land is not for him. This applies also to the Benins customary law. This was the ruling of senior presiding magistrate in a charge No ME/804C/73 decided on 14/7/73
Between Commissioner of police Vs John Emokpae & 10 ORS
In a criminal charge brought against the accused persons from Utekon village over damage to properties at Ekosodin village. The accused are indigenes of Utekon who had claimed ownership of Ekosodin village part of which had been occupied by the University of Benin which matter had been brought before the Oba of Benin without definite settlement.

The presiding magistrate said “Although the question as to who owns the land is not within my province to decide here if according to the prosecution witness 6 the Iyase of Uselu and prosecution witness 7 the Odionwere of Ekosodin the land belongs to the Edaiken of Uselu one wonder if the people of Eko- Osodin have any locus standing in the matter” “Land does not disappear so anyone who believes he owns a piece of land has a right to come back to it” P7 a hand book of some Benin customary and usages by Oba of Benin.

Edion-Idunmwun is an elder of the street where the family resides or builds his house. Each street has Ogua-Edion that is an ancestral shrine/court of the elders of that street from ancient time. The elders have their own council presided over by ODIONWERE-IDUNMWUN. Sometime, after matters are heard at this level there will be a curse against taken the matter further and it will end there. If it is a matter that is serious such as witchcraft, persistent stealing, nuisances to the whole community, adultery, pollution of the ground by having sex on bare ground, and dispute, the matter goes to the EDION-EVBO in council. That is the whole elders of the community comprising EDIONWERE-IDUNMWUN (Most senior in each street) EDION and the privilege. Sometimes also, the matter cannot peacefully be resolved here. In this case, it goes before the Enogie of the community who is a representative of the Oba of Benin. The Enogie presides and in attendance are the elders, odionwere and other. The matter is heard in the Enogie’s palace. From the Enogie’s jurisdiction the matters go to the palace, The Oba in council hears all matters either in original jurisdiction or on appeal. That is direct matters from the community or informs of appeal through the Enogie the personal representative of the Oba. Since matter decided at this various levels are by oral evidence by the people skill in the custom of the area and from precedents whose records are locally made and kept in the palace, it is sometimes held that curse are passed on any person who goes against the Oba’s decision or take the matter further outside the Oba’s jurisdiction. Hence the saying. ”Eguaemwense” in Benin meaning the palace is the last fountain of justice. This they believe is an intimidation for persons not to go further to pursue his or her case. This is not true. Matters that have been heard by the Oba are known to have gone to different courts up to the Supreme Court particularly in land matters, because the Oba has no final legal sanctions. The customary sanctions he may impose may be challenged and over rule by the courts. Sometimes the Oba’s decisions can be over ruled. See Prince Felix I. Ogiugo Defendant/ Applicant vs Prince Anthony E.Orhue Ogiugo Plaintiff/Respondent SC 106/1994 delivered at Abuja on 17th December (1999) 73 LRCN pp 3681-3733 3693-3733 in his judgment OGWUEGBUE JSC said “I agree with the area customary court that the appointment or selection of the Oguigo is the responsibility of the Oguigo family and he is duly appointed or selected after he perform the burial of the last Oguigo and do the necessary traditional rites. The Oba gives his formal approval. In the case of the defendant only the Osula royal family branch of Oguigo family selected and presented him to the Oba who gave his approval when his selection was not done bythe entire Ogiugo family and he did not perform the traditional rites. The area customary court was right in nullifying his installation based on the approval. The customary court of appeal went out of its way and brought its presumed personal knowledge of The Benins customary law into its judgement. It was only the members of the trial customary court that can state the appropriate customary law from their personal knowledge. Neither “the customary court of appeal nor the court of appeal can do so”. Most of the matters on succession and inheritance that have gone to the Supreme Court had at one time or the other gone to the Oba for adjudication. It is the customary evidence at this level that is relied on at any other higher courts. In most cases, matters that have been heard by the Oba and taken to the Supreme Court are hardly over-turned. Lawal Osula vs. Lawal Osula, Okungbowa vs.Okungbowa suit B/493/87, Arase (1981)5SC 33 Eguamwense v. Amaghizemwen (1994) 14 LRCN are case that have at one time or the other been adjudicated upon by the Oba of Benin . The customary court and the higher courts apply when appropriated the doctrine of judicial notices in customary matters. Usually elderly persons verse in the custom of the area in which he lived are called upon to attest to the existence and application of such custom.
The Benin judicial process Via  Vis the modern courts

Okaegebe ---------------------------------------------Customary court

Edion Idunmwun -------------------------------------Area customary court

Edion-Evbo---------------------------------------------Magistrate/high court 

Enogie------------------------------------------------- Court of appeal

The Oba------------------------------------------------Supreme court 

The Benins customary laws have considerable influence on other ethnic group particulary in the southern part of Nigeria See the decision in Osamwonyi vs Osamwonyi (1973) NMLR 25 p 26 on parents and dual consent before marriage. See also A.K Ajisafeja his book “The law and custom of the Yoruba People “pp51-52. While the Benins judicial system has been well harmonized the system in some other parts of Nigeria is based on the immediate…… Community. In Yoruba land for example Obilade in his book “The Nigeria legal system p 83 said “ The customary law system of a town in Ogun state may defend be from the customary law system of a neighboring town in the state even though the indigenous people both towns are Yorubas, for the Yoruba consist of several ethnic group. “Similarly, the customary law of an Ibo town in Anambra state may differ from that of a neighboring Ibo town in the state this diversity of customary law system is a major obstacle to the uniformity of customary law system in each state.

The Benins customary judicial system and laws are uniform. The system is in pari material with the modern judicial system. The Okaegbe jurisdiction is like the customary court. The idunmwun level is like the area court The Idunmu-Evbo represents the magistrate or high court, and the Enogie’s jurisdiction is like the court of appeal while the Oba in council represents the Supreme Court. The Oba himself is subject to the customary law. Any Oba who takes decision that does not go well with the people does not command the loyalty of his subjects By customs the Oba had to be crowned by the Uzamas. The Oba cannot impose himself on the people and the Uzamas cannot impose an Oba on the Benins

Perhaps it is to be noted that the Benins customary administration and indeed Nigeria structure in general was interrupted by the British colonial master after the Benin invasion by the British imperial army supported by other force from west and south Africa armed with 10 ships load of arms and ammunition in 1896 while king Jaja of Opopo signed a treaty which brought his kingdom under the protectorate of the British administration and king Dosumu ceding Lagos to Britain, the Benins monarch Oba Ovonramwen refused to sign off Benin sovereignty. As a power whose influence was greatest in size, wealth, army and administration in West Africa and indeed Africa, he saw it as an insult and degrading for him to be protected by any other power not as great as his. Benin kingdom became the greatest problem in Britain in its effort to form a southern protectorate having conquered the northern part of Nigeria and other part of southern Nigeria. This prompted Britain to mobilize forces from Britain, west and South Africa and invaded in 1896 and the Oba sent on exile.

With this victory over the Benin, Britain had achieved its ambition of forming the southern protectorate together with the northern protectorate on 1st January 1900. There was nothing like Nigeria then. This was the beginning of the doctrine of general application of the colonial laws to our customary laws. What became the ultimate and consequential effect of Benin’s British invasion was the unification or amalgamation of the northern and southern protectorates to become what is known as Nigeria as it is today would have been different sovereign national along the line of Muslim and Christian nationalities.

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