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a
A Declaration that the Will dated 9/9/99 is the valid and subsisting Last WILL/Testament of Tony Nokwai Okolonwamu, who died on 26/1/2003.
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b
A Declaration that the Last WILL/Testament of Tony Nokwai Okolonwamu dated 9/9/99 was duly and personally delivered to the Probate Registry of Delta state in accordance with the relevant laws.
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c
A Declaration that the Plaintiffs are NOT entitled to the grant of Letters of Administration in respect of the testate Estate of late Tony Nokwai Okolonwamu.
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d
An Order of perpetual injunction restraining the Plaintiffs, their agents, privies, surrogates or anybody or person acting for them or on their behalf in any manner whatsoever from doing or causing to be done anything inconsistent with the Last WILL/Testament dated 9/9/1999 or any part thereof of late Tony Nokwai Okolonwamu.
At the hearing, the trial Court, relying upon Egharevba V. Oruonghae (2002) FWLR (Pt.121) 1945, allowed the first set of Respondents, who were propounders of the said deceased's Will, to open their case first.
They called six Witnesses, including first and third Respondents, and the Appellants called five Witnesses, including the first Appellant. The eleventh Respondent did not call any witness, and in his Judgment delivered on 31/10/2006, the learned trial Judge, Bozimo, CJ, held –
The Plaintiffs are the persons challenging the WILL - They, however, did not place - any evidence to show that the said WILL was not validly made. They also failed to show that the said WILL ran foul of the Native Law and Custom of Asaba people. They also were unable to show that at the time he made the WILL, (deceased) was mentally incapacitated. Consequently, the case of the Plaintiffs fails and it is hereby dismissed in its entirety. I now move to the Counter Claim. Paragraph 7 of the Counter Claim - contain the reliefs sought by 1st - 10th Respondents. From the totality of the evidence-
- I hold in terms of the Reliefs sought by the Counter-Claimants that: -
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1
The Will dated 9/9/99 is the valid and subsisting WILL/Testament of Tony Nokwai Okolonwamu, who died on 26/1/2003.
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2
The Last Will/Testament of Tony Nokwai Okolonwamu dated 9/9/99 was duly lodged in the Probate Registry of the High Court of Justice Delta state.
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3
I hold that because the Will is valid, the Plaintiffs are not entitled to the grant of Letters of Administration in respect of the (said Estate).
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4
I hereby grant an Order of perpetual injunction restraining the Plaintiffs, their agents, privies, surrogates or anybody or person acting for them or on their behalf in any manner whatsoever from doing or causing to be done anything inconsistent with the Last WILL/Testament dated 9/9/1999or any part thereof of late Tony Nokwai Okolonwamu.
The Appellants appealed to Court of Appeal with a Notice of Appeal containing eight Grounds of Appeal. They formulated the following Issues for Determination, adopted by the Respondents and that Court:
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1
Whether the 1st-10th Respondents, who are the propounders of the Will succeeded in proving the validity of the Will and that the deceased Tony Nokwai Okolonwamu at the time of making the purported Will had testamentary capacity.
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2
Whether the Will of the (deceased) Tony Nokwai Okolonwamu ran contrary to the customary succession law of the Asaba people.
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3
Whether the gift made under the said Will to the 2nd Respondent, whose husband witnessed the Will was valid.
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4
Whether the Appellants succeeded in establishing that he is the first/eldest son of the (deceased) Tony Nokwai Okolonwamu through his mother lawfully married to the deceased and thereby making him solely entitled to the property known as No. 14 Uda Street (also known as Ndumi Obi Okolo's House), Umuda Umuaji Quarters, Asaba.
The Court of Appeal resolved all the four Issues against the Appellants and held "this Appeal is totally without merit and is hereby dismissed."
The Appellants filed a Notice of Appeal containing eight Grounds of Appeal in this Court. But the first set of Respondents raised a Notice of Preliminary Objection challenging the competence of this Appeal "for want of leave", and they urged this Court to strike out this Appeal.
