Edward Omorodion Uwaifo Vs Stanley Uyinmwen Uwaifo (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, JSC

This case arose from what the Appellant as Plaintiff considered unfair treatment meted out to him by his late father (Pa Daniel Ediagbonya Uwaifo) in his will by which he shared his estate to his children but disinherited the Appellant thereby denying him his right to inherit his fathers ‘IGIOGBE’ as his first son. Late Daniel Ediagbonya Uwaifo lived and died on 29/8/85 in his house at No. 4 Ohuoba Street, Benin City as a Bini man subject to Bini Customary laws. In his lifetime he built another house in the same compound at No. 4 Ohuoba Street, Benin City and gave this No. 2 out to tenants and personally collected rents. However in June 1975 these two houses were shared to other children which excluded the Appellant.

After the completion of his fathers final burial ceremony, Appellant was informed for the first time that his father made a will which was later read at the Probate Registry of the Benin City High Court. It now dawned on the Appellant that he had been completely disinherited by his late father.

It is against this background that the Appellant went to the High Court and filed this action challenging the validity of the will having regard to the provision of Section 3 (1) of the Wills Law of Bendel State of Nigeria 1976 which is still applicable in Edo State.

Pleadings were ordered and exchanged and subsequently amended. By paragraph 17 of the Amended Statement of Claim,the Appellant as Plaintiff Claimed against the Respondents as Defendants jointly and severally as follows:

‘a. A declaration that the Will of the Plaintiffs late father PaDaniel Ediagbonya Uwaifo dated the 26th of June 1975 is invalid, null and void and of no legal effect whatsoever by reason of non-compliance with the Bini Customary Law of succession and section 3(1) of the Wills Law, cap. 172.

b. A declaration that any purported bequest under the said Will of the property at Nos. 2 and 4 Ohuoba Street, Benin City where the Plaintiffs father lived, diedwas burled (otherwise known as his ‘Igiogbe’) to the defendants is contrary to Bini Native Law and Custom and is therefore null and void.

c. A declaration that under Bini Customary Law, the Igiogbe can never be shared toany person other than deceased eldest surviving son (in this instance, the plaintiff) and consequently the purported devise of the compound at No. 2 &4 Ohuoba Street, Benin City by the deceased in his said Will to the 1st, 2nd,3rd, 4th, 5th and 6th Defendants is null and void and of no effect whatsoever.

d. N37,385.00(thirty seven thousand, three hundred and eighty five Naira only) being therents the Defendants have collected from the twenty-three rooms/stores and onebig shop in the ‘Igiogbe’ at Nos. 2 and 4 Ohuoba Street, Benin City for 58 months that is September 1986 to May 1991 at the rate of N655.00 per month.

e. Mense profits of N655.00 (six hundred and fifty five Naira) per month from the said rooms/stores and shop from June 1991 until the date of Judgment.

f. An order of perpetual injunction to restrain the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants, their children, servants, agents and or privies from their continued occupation of the compound at Nos. 2 and 4 Ohuoba Street, Benin City or any pari thereof or any further acts of trespass therein.’

The case went on to full trial from 22/5/95 to October 2000. On 9/11/2000, the then learned trial Chief Judge of Edo State High Court, Hon. Justice C.A.R. Momoh in a well considered Judgment granted some of the Plaintiffs reliefs in paragraph 17 (a) (b) and (c) of the Amended Statement of Claim with relevant modifications on the following terms:

‘(i) That the Plaintiff as the eldest son of the deceased is entitled under Bini Customary Law of inheritance to inherit the house at No. 4 Ohuoba Street where the deceased lived and died (otherwise known as the Igiogbe).

(ii) Thatthe devises in the Will of the deceased dated 26th June 1975 as it relates tothe house at No. 4 Ohuoba Street, Benin City declared in this Judgment as theIgiogbe, is null and void having contravened the Bini Customary Law ofinheritance and Section 3(1) of the Wills Law Cap. 172 Laws of Bendel StateApplicable in Edo State.