UWAIFO v. UWAIFO & ORS.

After the completion of his father’s final burial ceremony, Appellant was informed for the first time that his father made a will which was later read at the Probate Registry of the Benin City High court. It now dawned on the Appellant that he had been completely disinherited by his late father.
It is against this background that the Appellant went to the High Court and filed this action challenging the validity of the will having regard to the provision of Section 3(1) of the Wills Law of Bendel State of Nigeria 1976 which is still applicable in Edo State. Pleadings were ordered and exchanged and subsequently amended. By paragraph 17 of the Amended statement of claim, the Appellant as Plaintiff claimed against the Respondents as Defendants jointly and severally as follows:
“a. A declaration that the Will of the Plaintiffs late father Pa Daniel Ediagbonya Uwaifo dated the 26th of June 1975 is invalid, null and void and of no legal effect whatsoever by reason of non-compliance with the Bini Customary Law of succession and section 3(1) of the Wills Law, Cap.172.
b. A declaration that any purported bequest under the said Will of the property at Nos. 2 and 4 Ohuoba Street, Benin City where the Plaintiffs father lived, died was buried (otherwise known as his “Igiogbe”) to the defendants is contrary to Bini Native Law and Custom and is therefore null and void.
c. A declaration that under Bini Customary Law, the Igiogbe can never be shared to any person other than deceased’s eldest surviving son (in this instance, the plaintiff) and consequently the purported devise of the compound at No. 2 & 4 Ohuoba Street, Benin City by the deceased in his said Will to the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants is null and void and of no effect whatsoever.
N37,385.00 (thirty seven thousand, three hundred and eighty five Naira only) being the rents the Defendants have collected from the twenty-three rooms/stores and one big shop in the “Igiogbe” at Nos. 2 and 4 Ohuoba Street, Benin City for 58 months that is September 1986 to May 1991 at the rate of N655.00 per month.
e. Mense profits of N655.00 (six hundred and fifty five Naira) per month from the said rooms/stores and shop from June 1991 until the date of Judgment.
f. An order of perpetual injunction to restrain the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants, their children, servants, agents and or privies from their continued occupation of the compound at Nos. 2 and 4 Ohuoba Street, Benin City or any part thereof or any further acts of trespass therein.”
The case went on to full trial from 22/5/95 to October 2000. On 9/11/2000, the then Learned Trial Chief Judge of Edo State High Court, Hon. Justice C.A.R. Momoh in a well considered Judgment granted some of the Plaintiffs reliefs in paragraph 17 (a) (b) and (c) of the Amended Statement of Claim with relevant modifications on the following terms:
“(i) 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).
(ii) 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.
(iii) That under Bini Customary Law, the Igiogbe cannot be shared to any person other than the deceased’s eldest surviving son (in this instance, 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. S. Uwaifo, Ayenbueze E. Uwaifo. Egbenodenden E. Uwaifo and Nobunse S. Uwaifo are null and void and of no effect whatsoever'”
The Appellant appealed to the Court of Appeal Benin, against the parts of the Judgment of the trial High Court that did not favour him.
The sole issue that arose for determination in the Court below from the totality of all the issues considered by the learned trial Chief Judge and arising from the issue joined and canvassed was that:
“Whether the Houses No. 2 and No. 4 Ohuoba Street, Benin City does not form part of the Idiogbe” of Appellant’s late father Pa Daniel Ediagbonya Uwaifo who lived as a Bini Man.”
In its reserved Judgment delivered on 21/1/2004, the Court below dismissed the Appellant’s appeal.
Dissatisfied, the Appellant further appealed to this Court. The Appellant first filed in his Notice of Appeal three Grounds. However when his Brief of Argument was settled, Appellant dropped two grounds of appeal. From the sole ground one issue as set out in his brief. for determination reads thus:
“Whether the Court of Appeal was right in affirming the Judgment of the trial High Court to the effect that vacant land under Benin Customary Law cannot constitute Igiogbe and thereby failed to follow its earlier decision in IGBINOBA VS. IGBINOBA (1995) 1 NWLR (PART 317) 375.”
The 1st to 9th Respondents have adopted the sole issue the Appellant formulated for determination of the appeal.
The 10th Respondent only issue formulated for determination is:
“Whether a vacant portion of land constitutes an Igiogbe under Bini Customary Law”.
It would appear that no legal representation has been made on behalf of the 11the Respondent, hence no brief was filed on his behalf.
Arguing this issue, Learned Counsel for the Appellant has contended that this issue has never arisen for determination. In other words that this Court has not in his case decided that vacant plot which stands side by side with the house, which constitutes “Igiogbe cannot form part of the said Igiogbe”
It is urged on this Court to allow the appeal on this lone issue canvassed in this brief. The learned counsel for the