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.
The learned trial Judge erred in law when he held thus:
‘There was no medical evidence tendered by the plaintiffs to show that the memory and understanding of their father had been seriously impaired and therefore no testamentary capacity to make exhibit A’.
PARTICULARS
The onus lies on the defendants as the propounders of the Will to prove that the testator was of sound mind at the time of the execution of the will.
5. The learned trial Judge erred in law when he placed the onus of proving the due execution and validity of the Will on the plaintiffs.
PARTICULARS
(a) The trial judge throughout the length and breadth of the judgment wrongly placed the burden of proof on the due execution and validity of the will on the plaintiffs.
(b) The defendants did not lead any evidence to show that the testator was of sound mind at the time the Will was prepared and executed.
In accordance with our rules, briefs of argument were filed and exchanged. The appellants in their brief identified three issues for the determination of the appeal. The issues are:
“1. Is exhibit A (the purported last Will and Testament of Mr. Atatigho Odjegba) not invalid and void having regard to the provisions of section 3 and section 6 of the WILLS Law Cap 172 Laws of Bendel State 1976 applicable to Delta State? (grounds 2 and 3 of the grounds of appeal).
2. On whom does the burden of proof of the due execution and validity of a Will lie? The propounder of the Will or its challenger? (grounds 4 and 5 of the grounds of appeal).
3. Whether the decision of the trial court was not perverse having regard to the evidence adduced by the appellants? (ground 1 of the grounds of appeal).”
In the respondents’ brief, two issues were formulated for the determination of the appeal. The issues are:
(i) Whether from the totality of the evidence adduced at the trial by both parties the learned trial Judge rightly reached the decision that the Will exhibit ‘A’ is valid?”
(ii) Whether there is anything in section 6 of the Wills Law or any other section of the Wills Law of Bendel State applicable to Delta State precluding the thumb printing of a WILL?
The third respondent did not file any brief nor did he participate at the hearing of the appeal. I have carefully considered the issues formulated by both the appellants and the respondents and it is my considered opinion that the issues formulated by the appellants are more apt to the determination of the appeal. I will therefore use the issues formulated by the appellants in determining the appeal.
However, before considering the issues, I will first consider the issue of preliminary objection raised in the respondents’ brief. The respondents at page 2 of their brief stated:
“The respondents by a preliminary objection, notice of which is hereby given to the appellants, will move the court to strike out grounds 1 & 2 of the additional grounds of appeal as well as arguments in the appellants’ brief touching on those grounds. We also submit that the only ground of appeal contained in the original notice and grounds of appeal is the omnibus ground of appeal that the judgment is against the weight of evidence, the ground is a ground of mixed law and facts and by the authority of the Court of Appeal case of Ansa v. Ishie (1999) 7 NWLR (Pt.610) 277 at 290 it is bound to be struck out because no leave of court was obtained before the appeal was filed”.
Order 3 rule 15(1) of the Court of Appeal Rules prescribes the procedure to follow in raising a preliminary objection to the hearing of the appeal or against any of the grounds of appeal. It provides:
“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with seven copies thereof with the Registrar within the same time.”
Rule 15(1) is very clear and unambiguous. A party seeking to rely on a preliminary objection against any ground of appeal must give the other party three days notice before the objection is heard.
It is mandatory. Where notice is not given in accordance with Order 3 rule 15(1), the objection will be discountenanced. See Okolo v. Union Bank of Nigeria Ltd (1998) 2 NWLR (Pt.539) 618 and Arewa iles PLC v. Abdullahi & Brothers Musawa Ltd. (1998) 6 NWLR (Pt.554) 508.
In Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 the Supreme Court stated at pages 296-297 per Obaseki, JSC that:
“The respondent in the instant appeal has contended that although the objection was stated in the brief the court was not moved at the oral hearing of the appeal to strike out the grounds for failure of particulars of error. He therefore submitted that the appellant herein should be taken to have abandoned the objection more so as it was not an issue for determination in the appeal before the Court of Appeal. In my opinion, there is substantial merit in the contention of the respondent. Being a preliminary objection, the objection should have been by motion or notice before the hearing of the appeal so that arguments on it can be heard by the court. While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the court at the oral hearing for the relief prayed for. This preliminary objection not having been raised and argued at the oral hearing the Court of Appeal cannot be condemned as having erred in allowing the then appellant (now respondent) to argue his appeal.”
In the recent case of Oforkire v. Maduike (2003) 5 NWLR (Pt.812) 166 at 178 Mohammed, JSC stated:
“I agree with learned counsel that a party in the Court of Appeal having a preliminary objection against any of the grounds of appeal must give the appellant three days’ notice before the objection is heard. The notice of preliminary objection can be given in the respondent’s brief, but a party filing it, in the brief, must ask the court for leave to move the notice of objection before the oral hearing of the appeal commences. Otherwise, it will be deemed to have been waived and therefore abandoned.”
In the instant case, the respondent did not give the appellants the notice of the preliminary objection three days before the hearing of the appeal. Even though the respondents gave notice of the preliminary objection in their brief, the preliminary objection was not moved at the oral hearing of the appeal. The preliminary objection is therefore deemed to have been abandoned and I so hold.
I now come to the first issue i.e. whether the Will was not invalid and void having regard to the provisions of Ss 3 and 6 of the Wills Law.
It was submitted on behalf of the appellants that the testamentary capacity granted to a citizen by section 3 of the Wills Law, 1976 is limited by the rules of customary law regulating inheritance, so that if a Will is at valiance with the customary law of inheritance, the Will to the extent of variance will be null and void. It was also submitted that the appellants have pleaded the Urhobo/Okpe Customary Law of inheritance which has not been denied by the respondents. It was then submitted that clause 4(a) of the purported Will was contrary to section 3(1) of the Wills Law. In support of this submission, the case of Oke v. Oke (1974) 3 SC 1 was referred to.
It is also submitted that section 6 of the Wills Law prescribed the requirements of a valid Will and that the provision did not admit of thumb printing or thumb impression of a Will. The case of Ibrahim v. J.S.C. (1998) 14 NWLR (Pt.584)1 relied upon. It was then submitted that any Will which is thumb printed would be of no effect.
It was also observed that even though the Will was thumb impressed there was no jurat to explain the circumstances.
The respondents on the other hand submitted that throughout the pleadings and evidence before the trial court the issue of section 3(12) of the Wills Laws did not arise, and that the appellants only pleaded Urhobo/Okpe Native Laws and Customs and that no evidence was led by the appellants to show what the custom was. It was then submitted that an averment in any pleading on which no evidence was led, was deemed to have been abandoned as was held in Uwegba v. A.G. of Bendel State (1986) 1 NWLR (Pt.16) 303.
It was further submitted that the unchallenged evidence that the 1st plaintiff was the eldest son of the deceased went to no issue, since it was not pleaded, that was why our present case was distinguishable from the cases of Oke v. Oke (1974) 3 SC 1 and Idehen v. Idehen (1991) 6 NWLR (Pt.198) 382 cited by the appellants. It was submitted that the lower court did not make any pronouncement as to section 3(1) of the Wills Law and such this court should ignore all submissions on section 3(1) of the Wills Law.
It was also submitted that clause 4(a) of the Will was not contrary to any custom because no evidence of a custom of any ethnic group was given at the lower court and that this court cannot speculate as to what the custom is, since custom is a matter of evidence to be established at the trial. To buttress this submission the case of Agbabiaka v. Saibu (1998) 10 NWLR (Pt.571) 534 was referred to. It was further submitted that even if a particular devise or clause in a Will is invalid, it does not affect the validity of the whole Will, it will only invalidate the particular clause; Oke v. Oke (supra) and Idehen v. Idehen (supra).
Section 3(1) of the Wills Law Cap 172 of Bendel State 1976 which is applicable to Delta State provides:
“Subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator”.
The Supreme Court considered the above provision in Oke v. Oke (supra) and came to the following conclusion at page 10 that:
“The introductory phrase ‘subject to any customary law relating thereto’ necessarily makes the power given to a testator under the subsection dependant upon the particular customary law permitting it, in effect, the power of the testator to devise his real and personal estates by Will is limited by the extent, if any, to which its exercise is permissible under the relevant customary law”.
Wherever the expression ‘subject to’ is used at the commencement of a statute, it is an expression of limitation. It implies that what the section or subsection is subject to shall govern, control and prevail over what follows in that section or subsection.
See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517. The opening words of section 3(1) of the Wills Law clearly render the capacity to make, devise, bequeath or disposition by Will, subject to customary law relating thereto. The effect of the phrase subject to any customary law relating thereto is to render the devise, bequest or disposition subject to customary law so that such devise, bequest or disposition shall not be inconsistent with customary law and shall be governed and controlled by customary law. The words ‘relating thereto’ refers to the customary law in respect of the devise, bequest or disposition. See Idehen v. Idehen (1991) 6 NWLR (Pt.198) 382.
The contention of the appellants is that clause 4(a) of the Will devised to the 1st appellant and his brothers and sisters some rooms in No.1 Ovedje Street, the house the deceased lived during his lifetime is contrary to the Okpe custom. That the bequest is contrary to section 3(1) of the Wills Law. On the other hand, the respondents submitted that even though the appellants pleaded Urhobo/Okpe native law and customs, no evidence was led by the appellants to show what the custom is. It was also the respondents’ contention that clause 4(a) of the Will is not contrary to any custom because evidence of a custom of any ethnic group was not given before the trial court and that this court cannot speculate as to what the custom is. The appellants however submitted that since the respondents refrained from joining issues with the appellant on the Urbobo/Okpe native law and custom, the respondents are deemed to have accepted the custom as pleaded.
I agree with the respondents’ counsel that customary law is a question of fact. It has to be proved by positive and credible evidence unless the customary law is so notorious that the courts should take judicial notice of it. By their amended statement of claim, the appellants averred in paragraphs 9, 10 and 11 that:
“9. Plaintiffs aver that clause 4 of the purported Will of the said late Gabriel Atatigho Odjegba is contrary to Urhobo/Okpe native law and custom relating to succession to property.
10. Plaintiffs aver that under Urhobo/Okpe native law and custom relating to succession, the 1st son of the deceased father inherits the house where the father lived during his lifetime.
11. The plaintiffs further aver that the remaining real property are then shared gate by gate and the personal effects of the deceased are distributed per stirpes among all the children of the deceased father”.
Even though no evidence was adduced in support of the above averments, the respondents neither denied nor traversed the said averments. The respondents did not join issues with the appellants on the issue of Urhobo/Okpe native law and custom. Since the respondents did not traverse the said averments, they are deemed to have admitted them. See Odiba v. Azege (1998) 9 NWLR (Pt.566) 370; Etuwewe v. Etuwewe (1993) 2 NWLR (Pt.274) 185.
It is an elementary rule of pleading that what has been admitted needs no further proof. If a particular averment is admitted, there will no longer be an onus on him to prove what has been admitted by the opposite party.
See section 75 of the Evidence Act, Cap 112 of the Laws of the Federation of Nigeria, 1990 which provides:
“75. No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions”.
See also Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799 and N.B.N. v. P.B. Olatunde Co. Nig. Ltd (1994) 3 NWLR (Pt.334) 512. I therefore hold that the respondents are deemed to have admitted the averments in paragraphs 9, 10 and 11 of the amended statement of claim and as such there is no longer any onus on the appellants to prove the said averments by adducing evidence. I further hold that it has been proved that under the Urhobo/Okpe native law and custom relating to succession, the 1st son of a deceased father inherits the house where his father lived during his lifetime. I am of the opinion that the Will in question substantially complied with section 6 of the Wills Law. The Will was in writing and the testator affixed his thumb print at the foot of the Will, does not in my opinion invalidate the Will. This is more so when it has been explained why the testator did not sign the Will. It was stated that he had a mild stroke and as such could not write.
My answer to the first issue is that the Will and Testament of Gabriel Atatigho Odjegba is not invalid because it substantially complied with sections 5 and 6 of the Wills Law Cap 172 Laws of Bendel State, 1976 applicable to Delta. However, clause 4(a) of the said Will is invalid because it contravenes the Urhobo/Okpe native law and custom. Clause 4(1)(a) of the said Will states:
PROPERTY/PREMISES at No. 1 Ovedje Street, Okumagba Layout Warri, Warri Local Government Area of Bendel State of Nigeria:
(a) I DEVISE to my son Buffy Odjegba and his brothers and sisters the main building in which I live with my junior wife and my last children excluding Anuya flat and Monday’s room. That is Buffy Odjegba and his brother and sisters are to have four(4) rooms and two(2) parlours from the main building.
This as could be seen is contrary to Urhobo/Okpe customary law of inheritance which stipulates that the 1st son of a deceased father inherits the house where the father lived during his lifetime.
Clause 4(1)(a) contravenes the provisions of section3( 1) of the Wills Law. It is therefore invalid.
The second issue is on whom does the burden of proof of the due execution and validity of a Will, lie?. It was submitted on behalf of the appellants that the trial court wrongly placed the burden of proof of the due execution and validity of the Will on the appellants.
It was further submitted that the respondents as the propounders of the Will had the burden of showing prima facie that the deceased not only duly executed the Will but also had the testamentary capacity to do so.
It was only when the respondents have discharged this burden that the onus would shift to the appellants. In support of this submission, the following cases were cited; Johnson and Ors. v. Maja and Ors. 13 WACA 290; Okelola v. Boyle (1998) 2 NWLR (Pt.539) 533; (1998) 1 SCNJ 63.
It was then submitted that in civil cases the onus of adducing evidence is on the party who will fail if such evidence is not adduced. The following cases were cited in support Gbafe v. Gbafe (1996) 6 NWLR (Pt.455) 417; Edosomwan v. Ogbeyfun (1996) 4 NWLR (Pt.442) 266 and NEPA v. Akpata (1991) 2 (Pt.175) 536.
The respondents submitted that it is the law that him who asserts must prove and in civil trials it is the duty of the plaintiffs to prove the averments in the statement of claim. It is also submitted that pleading is no evidence and any averment in a pleading in which no evidence is led, such averment is deemed abandoned. The case of Uwegba v. A.G. of Bendel State (supra) is cited in support. It was further submitted that the lower court lightly placed the onus of proving the appellant’s allegations on them. It was also submitted that the evidence of DW 1 cleared the issue of due execution of the Will and that if the appellants wanted to call the evidence of any other person whose name appeared on the Will they could have done so.
Where there is dispute as to the validity of a Will, the onus is on the propounders of the Will to show by evidence that prima facie the Will was duly executed and that the testator had the mental capacity to do so. After they have satisfied the court as to these matters, the onus now shifts to those who attack the Will. See Johnson and Ors. v. Maja and Ors. 13 WACA 290 where the-court stated at pages 291-292 that:
“Where there is a dispute as to a Will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say, that there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, as to these matters, it seems to me that the burden is then cast upon those who attack the Will, and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth.
I will now consider the evidence to determine whether or not the propounders of the Will i.e. the respondents have discharged the burden cast on them as to shift the onus to the appellants. DW 1, Hon. Justice Emmanuel Akporido, was the one who prepared the said Will. At that time, he was a private legal practioner. In his evidence, he stated that:
“At the time he gave me instruction, he was sound and normal, also when he affixed his thumb impression on exhibit’ A’.”
The learned trial Judge believed this evidence, In his judgment he said:
“I accept and believe the evidence of DW 1 that at the time the plaintiffs’ father made exhibit A, he was mentally sound and normal and that he affixed his thumb impression because of a mild stroke which he had at the time”.
From the above, it is my considered opinion that the respondents have prima facie shown that the testator had the necessary mental capacity and that the Will was duly executed by him. Since the lower court accepted the evidence, the burden then shifted on the appellants to prove that he had no testamentary capacity to make a Will.
I will now consider the evidence adduced by the appellants to determine whether or not they have established that the testator had no testamentary capacity to make a will. PW1, the 1st appellant herein and the eldest son of the testator said in his evidence that:
“My father was seriously ill form 1979 – 1985, He had stroke and he should have not been in a position to sign exhibit A”
PW2, was the daughter of the testator. Under cross-examination she stated that:
“My father was not sound mentally when exhibit A was made”.
The learned trial Judge did not consider the above evidence as sufficient to discharge the onus placed upon the appellants. This is what he said in his judgment:
“There was no medical evidence tendered by the plaintiffs to show that the memory and understanding of their father had been seriously impaired and therefore had no testamentary capacity to make exhibit A”.
The learned trial Judge was right in his approach. The propounders of the Will have prima facie established that the testator was normal and had the necessary testamentary capacity to make the Will. The burden of proof is now placed on the attackers of the Will to prove their allegations that the testator had no testamentary capacity to make the Will, which they failed to do.
Issue No.3 is whether the decision of the trial court was not perverse having regard to the evidence adduced by the appellants. It is submitted that the trial Judge did not consider the effect of the absence of any of the two witnesses who attested to the alleged Will. None of them was called to give evidence and no reason was given. It was then submitted that by virtue of section 103(1) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990, any witness called to prove the validity of a Will other than the attesting witness of the Will is of no evidential value and a judgment founded on such evidence is bound to be set aside. It was further submitted that in resolving whether exhibit A was validly made, the trial Judge ought to consider the state of health of the testator at the time of making exhibit A. It was also submitted that the appellants have adduced enough evidence to prove their case.
I have very carefully considered the evidence adduced by both the appellants and the respondents at the lower court. I have also considered the judgment of the lower court. The learned trial Judge has carefully evaluated the evidence adduced before him and properly made specific findings. I will quote extensively from the judgment of the lower court to show that the judgment is not perverse.
“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 have not thumb impressed exhibit A and that Atuketu, one of the executors of the Will died in 1980 while the Will was made in 1987. With regards to the death of Atuketu in 1980, there was no evidence led in support of it because there was no medical evidence tendered to show that he died in 1980. D.W.1 who prepared exhibit A said that he was alive in 1987 when he prepared exhibit A for their father and witnessed it.
In the absence of any medical evidence coupled with the evidence of D.W.1, I find as a fact on the evidence before me that Atuketu, one of the executor of exhibit A, was alive in 1987 when it was made and he signed it. I do not believe the evidence of the 1st and 2nd plaintiffs that he died in 1980. I would like to reproduce paragraph 8 of the amended statement of claim in which the plaintiffs pleaded incapacity of their father to make exhibit A. It reads as follows:
“8. Plaintiffs aver that at the time the purported Will was made, their late father had been sick, had a series of strokes from 1979 -1995, his memory and understanding had been seriously impaired and he therefore had no testamentary capacity to make a WILL.”
There was no medical evidence tendered by the plaintiffs to show that the memory and understanding of their father had been seriously impaired and therefore had no testamentary capacity to make exhibit A. I accept and believe the evidence of D.W.1 that at the time the plaintiffs’ father made exhibit A, he was mentally sound and normal and that he affixed his thumb impression because of a mild stroke which he had at the time.
The submission of learned counsel for the plaintiffs that exhibit A is in conflict with the evidence of D.W.1 is also misplaced because D.W.1 said that when they were discussing the WILL, their father told him that he could not sign because he had a mild stroke and that at the time he affixed his thumb impression on it, he was mentally sound and normal, I therefore fail to see any contradiction in the evidence of D.W.1 and exhibit A. I am quite satisfied on the evidence of D.W.1 that exhibit A was validly made by the plaintiffs’ father and that at the time he affixed his thumb impression on it, he was mentally sound and normal.”
As could be seen, the judgment is not perverse.
In the circumstance, the appeal only succeeds in part and I make the following orders:
1. Clause 4(1)(a) of the WILL executed by the late Gabriel Atatigho Odjegba contravenes the Urhobo/Okpe native law and custom on inheritance and as such is contrary to the provisions of sections (3)(1) of the Wills Law Cap 172 Laws of Bendel State, 1976 applicable to Delta State; clause 4(1)(a) is therefore null and void.
2. The other reliefs claimed by the appellants fail and are dismissed.
There is no order as to costs.
Other Citations: (2003)LCN/1433(CA)