The parties in the proceedings are members of the same family. The Plaintiff (Respondent before this Court) is the mother of one Victor Ihuese Aguocha. He died on 26th November, 1971 leaving a Will dated 29th November, 1971 in which defendant, one of his two widows, was appointed sole executrix and trustee of his estate, a large proportion of which consists of houses in Kaduna town.

In his said Will, he made provisions that his aged mother that is, the plaintiff, and some other dependants be maintained by the sole executrix and trustee of the Will. The cause of action before the Kaduna State High Court was that since the death of the testator in December 1971 and, until the time of the filing of the suit in February 1983, the defendant failed to carry out the provision to maintain the plaintiff in any shape or form whatsoever.

She pleaded and gave particulars in the statement of claim of how she spent on the average a total sum of N310.00 per months since the death of her son, the testator. The amount due and payable to her for the period from December 1971 until June 1983 amounted to N42, 793.80 and that was what she claimed. In addition, she sought for an order that so long as defendant remained the executrix and trustee of the said Will, she should continue to pay her the maintenance until her death at the rate of N310.00 per month. The defendant’s defence as contained in paragraph 3, 4 and 5 of the statement of defence reads:

With the pleadings settled, the issue for trial was not whether the sum of N310.00 claimed by the plaintiff monthly was excessive and unreasonable having regard to the resources of the estate. The defence was that on the correct construction of the Will there was no duty imposed to maintain the plaintiff, as the defendant had absolute discretion, whether or not to carry out the wish of the testator. That she had, in addition, absolute discretion regarding the nature, form and quantum of what maintenance to provide.

The court found for the respondent and awarded her the sum of N150.00 per month and the lump sum of N5,925.00 with an order that the former amount be paid to the respondent for the duration of her life or until the trust comes to an end, which ever came first.

Both parties appealed and the Court of appeal dismissed the appeal and varied the amount awarded by trial court to N45, 000.00 in favour of the respondent. The appellant appealed to the Supreme Court.