Edward Omorodion Uwaifo V. Stanley Uyimwen Uwaifo & Ors. (2004)

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AMINA ADAMU AUGIE, J.C.A.

The appellant’s claim against the respondent at the High Court, Benin City, wherein he was the plaintiff, was for a declaration, among others, that the Will of his late father is invalid, null and void and of no effect whatsoever because it failed to comply with the Bini customary law of succession and section 3(1) of the Will Law, Cap. 172, and that any purported bequeath under the said Will is contrary to Bini native law and custom and is therefore null and void.

Pleadings were duly exchanged. The appellant testified for himself at the trial and called three other witnesses; the 1st – 9th & 11th defendants/respondents, called two witnesses, while the 10th respondent testified himself. In her judgment, the learned trial Judge, Hon. Justice C.A.R. Momoh, Chief Judge, Edo State, granted some of the reliefs sought in the following terms:-

“The plaintiff is entitled to the orders sought in paragraph 17(a), (b) & (c) of the amended statement of claim with relevant modifications and it is hereby declared as follows:-

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).

That the devises in the Will of the deceased dated 26th June, 1975 as it relates to the house at No.4, Ohuoba Street, Benin City declared in this judgment as the Igiogbe, is null and void having contravened the Bini Customary Law of inheritance and section 3(1) of the Wills Law, Cap. 172, Laws of Bendel State applicable in Edo State.

That under Bini Customary Law, the Igiogbe cannot be shared to any person other than the deceased’s eldest surviving son (in this case, the plaintiff) and consequently, the purported devise of the house No.4, Ohuoba Street, Benin City by the deceased in his said Will to Henry N. E. Uwaifo, Ayanbueze E. Uwaifo, Egbenodenden E. Uwaifo and Nobunse E. Uwaifo are null and void and of no effect whatsoever.”

Dissatisfied, the appellant filed a notice of appeal to this court on three grounds of appeal, which are being challenged as incompetent by the 1st – 9th & 11th respondents. The said grounds without their particulars are as follows:-

The learned trial Judge erred in law in holding that the last will and testament of Pa Daniel Ediagbonya Uwaifo was valid in respect of No.2, Ohuoba Street, Benin City and was therefore not part of the Igiogbe.

Error in law

Having held that No.4, Ohuoba, Benin City is the Igiogbe, the learned trial Judge erred in law when he failed to declare void the device in the last will and testament of Pa. Daniel Ediagbonya Uwaifo of the vacant land adjacent to it.

The judgment is against the weight of evidence.

The 1st – 9th & 11th respondents contend that these grounds are defective.

In their brief settled by Osaheni Uzamere, Esq., it was submitted for the said respondents that pursuant to Order 3 rule 15 of the Court of Appeal Rules, 1981 as amended, and on the authorities of National Bank of Nigeria Ltd. v. Trans Atlantic Shipping Agency Ltd. (TASA) (1996) 8 NWLR (Pt. 468) 511; Adamuv. A.-G, Borno State (1996) 8 NWLR (Pt. 465) 203 at 211; Aniekwe v. Okereke (1996) 6 NWLR (Pt. 452) 60 at 64 & Agbaka v. Amadi (1998) 11 NWLR (Pt.572) 16 at 20, a preliminary objection can be raised in the respondent’s brief of argument, and the following arguments were proffered on their objection:-