⦿ CASE SUMMARY OF:
Felix Uwanugo Igboidu v. Morrisson Nduka O. Igboidu & Ors. (1998) – CA
⦿ LITE HOLDING
The intentions of the testator as written plainly in his WILL must be upheld.
⦿AREA OF LAW
The Law of Succession
Felix Uwanugo Igboidu
Morrisson Nduka O. Igboidu & Ors.
(1998) JELR 45604 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
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 of 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 born 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 compound. It does 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 ₦25,250.00 by the 1st defendant is hereby dismissed so is the claim for general damages to the tune of ₦24,750.00 because the 1st defendant did not strictly prove it and also because the plaintiff is entitled to the defence of bonafide claim of right in law. 4. The merit of the case vindicates the 1st defendant. He is not liable to pay the ₦100.00 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.
i. Whether the learned trial Judge was right when he held that the Will – Exhibit A dated 1st May, 1980 was valid, yet the same learned trial Judge proceeded to modify the Will Exhibit A dated 1st May. 1980 contrary to the intention or the testator.
ii. Whether the learned trial Judge’s decision was right when contrary to the laid down procedures he admitted Exhibit A to probate.
iii. Whether the learned trial Judge was right when he held the view that 1st defendant without the leave of court represented himself and the other 10 defendants who never attended court to give evidence and the joint statement of defence filed by 1st defendant was without authority and no leave of court was obtained.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. At page 100 lines 22 to 32 of the record, the learned trial Judge had this to say in pan of his judgment:- “The Will Exhibit ‘A’ is valid (with slight modification). The Well in the family compound by law is attached to the land and it goes with the land. The Well forms part of the family house devised to all the beneficiaries including the plaintiff. It does not belong to the 1st defendant exclusively. It belongs to all the twelve (12) children of the testator. That is the intention of the testator and I so hold. He wants his children to remain together and united. The family compound is the symbol of unity.”
Thus from the provisions of section 3 of Will Law Cap. 172 of Bendel State of Nigeria which is the same thing as section 3 of Will Act 1837 and the statement of the Supreme Court in Yenusa’s case above, I hold the view that the learned trial Judge is wrong to have modified the Will of the testator in respect of the Well in the family compound. The Will – Exhibit ‘A’ should be allowed to speak in the way it was made and should not be modified to suit an imaginary intention of the testator by the trial court.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It seems to me that on the reading of Exhibit’ A’ at the Probate Registry in 1991 by the principal Probate Registrar the Will had come into operation. It is no longer ambulatory. P.W.1 could have legitimately carried out his duties as explained to him by the Principal Probate Registrar rather than listen to the threat of the plaintiff/appellant that he would challenge the Will and he (P.W.1) thereafter returned to Lagos. The evidence of D.W.1 as borne by the record is that it was P.W.1 that applied to Probate after he had taken date for the reading of the Will. From the posture of the appellant as can be gleaned from the record, it is not in doubt that he wants to employ the aid of legal technicalities to obliterate the Will – Exhibit ‘A’. Having said that, I am not in doubt that Exhibit ‘A’ was admitted to Probate despite the evasiveness of the appellant.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. My simple answer to the complaint of the appellant which is the subject of issue (iii) is the case of Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587 at 600, where the Supreme Court held that failure to obtain leave to sue or defend in a representative capacity does not vitiate the validity of the action.
⦿ SOME PROVISION(S)
Section 3(1) of Wills Law Cap. 172 of Laws of the Bendel State of Nigeria, 1976. “3(1) 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.”
⦿ RELEVANT CASE(S)
In the case of Timothy Adesubokan v. Razaki Yenusa (1971) 1 All NLR 225, the Supreme Court held that “a testator is perfectly entitled to dispose of his real and personal estate as he likes”.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It seems to me that the essence of the formulation of issues for determination in an appeal is to narrow the relevant points in issue. Since the issues must arise from the grounds of appeal, they are meant to encompass all the grounds. Thus, a single issue should contain the points raised in one or more grounds of appeal, that is, a number of grounds may raise a single issue and not the reverse. – Rowland, JSC. Igboidu v. Igboidu (1998)
Issues for determination in any appeal must have direct bearing on the grounds of appeal. They are to project succinctly and clearly the substance of the complaint contained in the grounds of appeal requiring resolution. – Rowland, JSC. Igboidu v. Igboidu (1998)
Thus, a testator is at liberty to dispose of his properties both real and personal estate the way he likes under section 3 of Wills Law of Bendel State applicable in Delta State of Nigeria. – Rowland, JSC. Igboidu v. Igboidu (1998)
A Will can only be set aside on grounds of fraud, mental incapacity of the testator or undue influence on the testator. In the absence of any of these factors, a testator is at liberty to dispose of his properties both real and personal Estate the way he likes under section 3 of Wills Act 1837 which is one and the same thing as section 3(1) of the Wills Law Cap. 172 of the Laws of the Bendel State of Nigeria, 1976 applicable in Delta State. – Rowland, JSC. Igboidu v. Igboidu (1998)
The law is clear that in the absence of any ambiguity, the testator’s wishes must prevail. A Well is not one of the properties that a testator is restricted to dispose of in his Will. Since the testator is entitled to dispose or his real and personal estate as he wishes, the modification of that right by the learned trial Judge is unjustified misconstruction of the Will. – Achike, JSC. Igboidu v. Igboidu (1998)