MR. Victor Ayemwenre Eigbe & Anor V. MR. Benjamin Izibiu Eigbe & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Honourable Justice E. F Ikponmwen of the Edo State High Court of Justice sitting at Benin City, delivered on the 2nd day of October 2008. The facts which led to this appeal are as follows:

The Plaintiffs/Appellants who are sons of late Peter Kadiri Eigbe (the Testator) instituted a suit by a writ of summons dated and filed on 5th February 2001 against the Testator’s brother, wife and children respectively as defendants at the trial court, claiming the following reliefs:

A declaration that the purported WILL dated 18/5/2000 of the late Mr Kadiri Eigbe who died on 7/9/2000 was not properly and legally executed and that the deceased lacked the necessary animus testandi and the WILL is contrary to Esan Native laws and Customs and thereforc the whole WILL is null and void and of no effect.

ALTERNATIVELY:

a. An order setting aside the device in respect of the Bungalow at No.20 Esan Street, Equate, Irrua, Esan Central Local Government Area, Edo State as contained in clause 4 of the said WILL being inconsistent with Esan Native Laws and customs on in heritance.

b. An order setting aside the devise in respect of the House known as No. 43, Murtala Mohammed Way, Benin city, being inconsistent with Esan Native laws and Customs on inheritance.

c. A declaration that the 1st Appellant being the surviving eldest male child of the deceased, he is the person best entitled under Esan customary law of inheritance to inherit absolutely that whole Bungalow at No.20 Esan Street, Equare, Irrua and No.43 Murtala Mohammed Way, the two houses where the deceased lived and died (Igiogbe).

d. An order of perpetual injunction restraining the whole defendants from dealing with the whole estate as covered by the said WILL. Particularly the properties at No. 20 Esan Street, Equare, Irrua and No.43 Murtala Mohammed Way, Benin City or holding themselves out as owners of the said properties.

The Defendants on the other hand counter-claimed against the Plaintiffs for a declaration that the Will is valid having been properly and legally executed and also asked for an order of account and injunction against the Plaintiffs. The Plaintiffs’ case is that the Testator lacks Testamentary Capacity to have made the will at the time he did because he was very ill at the time it was made. Also, they claimed the testator was dependent on others and could not have made the will without outside influence or interference. Witnesses were called and addresses given by both parties.

At the end of trial, the learned trial judge dismissed the Plaintiffs’ claims and gave judgment in favour of the Defendants granting all the prayers sought in their counter claim as having been proved. Dissatisfied with the judgment, the Appellants brought this appeal by a Notice of Appeal filed on 9th October 2008. The Plaintiffs are now the Appellants in this court.

In their Appellants Brief dated 20th June, filed on 21st June 2011 and settled by Mr. Edward Aibangbee Esq., the Appellants raised the following issues for determination by the court:

1. Whether the learned trial judge properly applied (sic) the evidence to the law in arriving at a decision of ruling that the Testator had the mental capacity to make the Will. (Ground 1 and 2)
2. Whether the learned trial judge was right in holding that No. 43, Muritala Mohammed Way, Benin City did not constitute Igiogbe of an Esan man of Edo State. (Ground 3)
3. Whether the learned trial judge was right in granting the reliefs in the counter-claim of the Respondents. (Grounds 4 and 5)

Similarly, in the Respondents’ Brief dated 28th June 2011 and filed 4th July 2011, settled by Mr. L.O Alenkhe Esq. the following issues were formulated for determination in this appeal:

1. Whether the learned trial judge was right to hold that the Will of Late Peter Kadiri Eigbe made on the 18th May 2000 is valid
2. Whether the learned trial judge was right in holding that the bequest at No. 43, Muritala Mohammed Way, Benin City did not constitute part of the testator’s Igiogbe.
3. Whether the learned trial judge was right in granting the reliefs in the counter claim

A cursory glance at the issues formulated by both counsel shows that the issues are essentially the same. I shall therefore adopt the issues as formulated by the Appellants.