Respondent, as plaintiff, sued the appellants and 2 others seeking (in the main) an order that the last will and testament of Agidingbi Uwagboe, dated 3rd February, 1975 and proved in common form of law on or about 20h April, 1978 by the plaintiff and all the defendants therein was valid and/or effectual as regards the testamentary disposition contained therein. Appellants as the 1st defendants filed a counter claim seeking several declaratory relieves among which were a declaration to set aside as null and void clause 16 (a), 16(b), 16(c) and 16(d) of the will of late Agidingbi Uwagboe in that it offends section 3(a) of the wills Law of Bendel State and Benin native law and custom which vested on the eldest son, the last abode or house where the custom the testator lived and died and was buried.

The appellants were dissatisfied with the trial court judgement and thus appealed.