Felix Uwanugo Igboidu V. Morrisson Nduka O. Igboidu & Ors (1998)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A. 

The appellant was the plaintiff while the respondents were the defendants at the High Court of Justice of Delta State holden at Agbor in suit No. AG/65/91.

The plaintiff in the court below claimed against the defendants in his amended statement of claim the following reliefs:-

“(a) To set aside the Will purportedly made by late Christian Ighoidu on the ground or irregularity on the face of the said Will.

(b) To set aside the Will purportedly made on the 1st May, 1980 because it will work injustice to the children when the provisions are implemented.

(c) To set aside the Will so as to re-distribute the assets which are assigned to the non-children purportedly horn by late Christian Igboidu.”

Pleadings were ordered, filed and exchanged. The case then proceeded to trial, After reviewing the evidence adduced by both parties, the learned trial Judge in a reserved judgment said:-

“1. The Will Exhibit ‘A’ is valid and unimpeachable with a small rider that the Well in the family compound goes with the family com- pound. It docs not belong to the 1st defendant exclusively but to all the 12 beneficiaries in Exhibit ‘A’ including the plaintiff. The Will here is admitted to probate.

2. The second defendant or his next of kin in law is entitled to his bequeath in Exhibit ‘A’.
3. The claim for special damages to the tune of N25.250.00 by the 1st defendant is hereby dismissed so is the claim for general damages to the tune of N24,750.00 because the 1st defendant did not strictly prove it and also because the plaintiff is entitled to the defence of bona fide claim of right in law.
4. The merit of the case vindicates the 1st defendant. He is not liable to pay the N100.00 undertaking he signed should his counter-claim fail because the failure here is not on its merit.”

The plaintiff was dissatisfied with the decision of the court below and consequently appealed to this court. The notice of appeal contains three grounds.

They read as follows:-

“(i) The learned trial Judge grossly erred in law when he held erroneously that the Will dated 1st May, 1980 is valid and yet proceeded to modify the Will Exhibit A contrary to the intention of the testator.

Particulars of errors:

“The Will Exhibit A is valid (with slight modifications). The Well in the family compound by law is attached to the land and it goes with the land …

The Will Exhibit A is valid and unimpeachable with a small rider that the Well in the family compound goes with the family compound.