Buffi Odjegba & Ors V. Mrs Stica Odjegba & Ors (2003)

LawGlobal-Hub Lead Judgment Report

RABIU DANLAMI MUHAMMAD, J.C.A.

Gabriel Atatigho Odjegba died on 12/2/92 and was buried at Jeddo in Okpe Local Government Council. At the time of his death he had three wives and twelve children. He also left behind a house No.1, Ovedje Street. Okumagba layout, Warri, one uncompleted building and a parcel of land at Jeddo. The said Gabriel Atatigho Odjegba made a Will dated 7th May, 1987 in which he devised to his eldest son Buffi Odjegba and his brothers and sisters four rooms and two parlours in the main building in which he lived. He also devised to his son Francis Odjegba and his brothers and sister, six rooms. The said Will was read to the beneficiaries of the Will by the Probate Registrar, High Court, Asaba on the 17th day of July, 1997.

The appellants herein are all children of the late Gabriel Odjegba. They were the plaintiffs at the lower court. It is their contention that their father, who had been sick from 1979 – 1992 had no testamentary capacity to make a Will and that the purported Will was contrary to Urhobo/Okpe native law and custom relating to succession of property. They, therefore, issued a writ of summons against the defendants, who are respondents in this appeal.

Their claims as formulated in their amended statement of claim are as follows:
“(i) A declaration that the document dated 7/5/87 referred to as the purported Will and/or testamentary disposition of late Gabriel Atatigho Odjegba who died on the 12th day of February, 1992 (which was read to the plaintiffs the defendants on the 17th day of July, 1997 at the High Court 1 Asaba) is not and cannot be a Will validly made and/or executed by the said late Gabriel Atatigho Odjegba and is therefore null and void and of no effect whatsoever.

(ii) A declaration that the late Gabriel Atatigho Odjegba did not make any Will and/or testamentory disposition and/or valid Will/testamentary disposition at any time and/or at all before his demise on 12/2/92.

(iii) A declaration that the purported will purportedly executed by the late Gabriel Atatigho Odjegba is contrary to the provisions of the Wills Law CAP 172 of 1958 Bendel State of Nigeria applicable to Delta State of Nigeria, and the Urhobo/Okpe Native Law and Custom on inheritance and therefore null and void.

(iv) A declaration that in the absence of a valid Will, the late Gabriel Atatigho Odjegba died intestate on the 12th day of February, 1992.

(v) A declaration that the administration of the estate of the late Gabriel Atatigho Odjegba is to be governed and distributed in accordance with the Urhobo/Okpe Native Law and Custom regulating the administration of the estate of a deceased person.

(vi) An order of injunction restraining the 2nd and 3rd defendants herein from parading themselves or acting in any capacity whatsoever as executors under the said purported document referred to as a Will or dealing with any of the properties (real or personal) of the late Mr. Gabriel Atatigho Odjegba in any capacity whatsoever”.

At the trial the 1st and 2nd plaintiffs gave evidence in support of their claims. The defendants did not testify but called one witness who gave evidence in their support. The 3rd defendant neither filed a statement of defence nor took part in the trial. In a considered judgment, the learned trial Judge, Akpiroroh, J., (as he then was) held that all the reliefs claimed by the plaintiffs failed. He dismissed all the claims with costs against the plaintiffs.

Dissatisfied with the judgment, the plaintiffs appealed to this court. Initially, they filed three grounds of appeal and with the leave of this court, they filed two additional grounds of appeal. The grounds of appeal are as follows:
“1. The learned trial Judge’s judgment is against the weight of evidence.
‘2. The learned trial Judge misdirected himself on the facts when he held inter alia as follows:

The main reason adduced by the plaintiffs against the validity of the Will of their father exhibit A, from the pleadings and the evidence led in support are that their father who was literate could sign his name and as such he could not have thumb impressed exhibit A and that Atuketu one of the executors of the Will died in 1980 while the Will was made in 1987.’

PARTICULARS
The plaintiffs pleaded and gave evidence that the Will is also invalid by virtue of its non compliance with the Will Law Cap 172 especially section 3 of the said law.

The learned trial Judge erred in law when he dismissed the plaintiffs’ claim and refused to invalidate the Will when same was not executed in accordance with the mandatory provisions of section 6 of the Wills Law Cap 172, Laws of Bendel State applicable to Delta State.