3PLR – ENGR. CHINEDUM O. ANYA V. BARR. ONWUCHEKWA O. ANYA & 4 OTHERS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ENGR. CHINEDUM O. ANYA

V.

BARR. ONWUCHEKWA O. ANYA & 4 OTHERS

CWLR (2014) 11

 

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CHILDREN AND WOMEN LAW- ESTATE ADMINISTRATION – WILLS: – Validity of wills – Freedom of deceased testator to distribute his estate as he wants – How a Will can be challenged – Relevant considerations

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Court	COURT OF APPEAL
Date	20th January, 2014
Practice Area	ESTATE ADMINISTRATION, CHILDREN AND WOMEN LAW
Originating Court	HIGH COURT OF ENUGU STATE, ENUGU JUDICIAL DIVISION (A.R. OZOEMENA J.)
Citation(s)	CA/E/402/2009, (2014) LPELR-22479(CA), LN-e-LR/2014/71 (CA)
Judge(s)	ADZIRA GANA MSHELIA, IGNATIUS IGWE AGUBE, EMMANUEL AKOMAYE AGIM, JJCA
Parties	ENGR. CHINEDUM O. ANYA V. 1.        BARR. ONWUCHEKWA O. ANYA 2.        OGBONNA ANYA 3.        BARR. (MRS) UDEMMA NGBOR (NEE ANYA) 4.        MRS. IJEOMA U. BLUNT (NEE ANYA) 5.        HON. JUSTICE ORIAKU Z. IKEORHA
Representation	D.O. Madu with M.I. Aman (Mrs) for Appellant O.O. Anya (1st respondent) appears in person 2nd -5th respondents (absent) though served.
Other issue(s)	CRIMINAL LAW:- Forgery – legal implication- Standard of proof required ETHICS – LEGAL PRACTITIONER: Appeal – Records of lower court – Introduction and attributation of extraneous materials not in the records to lower court PRACTICE AND PROCEDURE – EVIDENCE: – Burden of proof in civil cases – Burden of proof in probate cases – Admission of documentary evidence – Admission of expert evidence PRACTICE AND PROCEDURE – APPEAL:- Role of Court of Appeal when a judgment is attacked as being against the weight of evidence – When court will interfere with the trial court’s finding of facts or its other decision on facts WORDS AND PHRASES: – “Terms of settlement”
Cases referred to – A.G. Leventis Nig. Plc. v. Akpa (2007) 46 WRN 1 Abadamosi v. Kobo Trans Ltd. (2000) 8I NWLR (Pt.668) 243 Abadon v. State (1997) 1 NWLR (Pt. 479) 1 Achibong v. State (2006) ALL FWLR (Pt. 323) 1147 Ajuwon v. Akanmi (1994) Kings Law Reports 129 Anachuru Anvaoke & Ors. v. Dr. Felix C. Ardi & Ors. (1986) 3 NWLR (Pt 731) Anyaebosi v. R.T. Bsicoe (Nig.) Ltd. (1987) 3 NWLR (Pt.59) 84; (1987) 6 SCNJ 9 Apera v. Aiyetobi (1989) 1 NWLR (Pt 95) 85 Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626 Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 Dughum v. Andezenge (2007) ALL FWLR (Pt. 385) 499 Eboler v. Osayande (1992) 7 SCNJ 212 Edokpolo & Co. Ltd. v. Ohenhen (1994) 7 NWLR (Pt.358) 511 Elf (Nig) Ltd. v. Silla (1994) 6 NWLR (Pt. 350) 258 Fawehinmi v. NBA (No.2) 1989 (2) NLLR (Pt. 105) 558 Fayemi v. Oni (2009) 7 NWLR (Pt. 1140) 223 FBN Plc. v. Oniyangi (2000) 1 NWLR (Pt.661) 497 Folani v. Cole (1990) 2 NWLR (Pt. 133) Gani Fawehinmi v. Col. Akilu & Ors (1992) 12 SC 136 Garuba v. Kwara Investment Co. Ltd. (2005) All FWLR (Pt. 252) 469 INEC & Ors. v. Comrade Adams Oshiomole (2009) vol. 1 LRCN 178 Irene Adebaya v. I.A. Adebayo & Ors. (1973) 3 ECSLR 544 Iza-Iyamu v. Alonge (2007) 6 NWLR (Pt. 1029) 84 Jikantoro & 6 Ors. v. Dantoro & 6 Ors. (2004) All FWLR 390 Johnson & anor. v Maja & Ors. (1951) 13 WACA 290 Kolo v. FBN PC (2003) 3 NWLR (Pt.806) 215 L.T.P.P. Ltd. v. U.B.N. Plc. (2007) 1 WRN 117 Madam Rabiatu Odofin & Ors. v. A.R Mogaji & Ors. (1978) NSCC P. 275 Mogaji v. Odofin (1978) 4 SC 94 Niger Construction Limited v. Chief A.O Okugbeni (1987) 12 S.C. 108 Niger Construction Limited vs. Chief A.O. Okugbeni (1987) 12 SC 108 Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339 Ogidi v. Egba (1999) 6 SCNJ 107, (1999) 10 NWLR (Pt 62) 42 Okelola v. Boyle (1998) 2 NWLR (Pt. 539) 533 Okoro v. The State (1998) 14 NWLR (Pt.584) 181 Omorhirhi & Ors. v. Enatevwere (1988) 1 NWLR (Pt. 73) 746 Overseas Construction Ltd. v. Grull Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407 Owonyin v. Omotosho (1962) 2 N.S.C.C. 179 U.B.N. Plc. v. Borini Promo Co. Ltd. (1998) 4 NWLR (Pt.547) 640 UBN PLC v. Okoror (2002) 10 NWLR (Pt. 774) 1

 

MAIN JUDGMENT

ADZIRA G. MSHELIA, J.C.A. (Delivering the Leading Judgment):

The Plaintiff is the 1st son of Chief Oji Uke Anya (Deceased). The 1st defendant is the wife of the deceased and mother of the plaintiff. While the 2nd – 6th defendants are his siblings. When the deceased died there was quarrel over his estate i.e. properties. A will was produced purportedly written by the deceased. The plaintiff doubted this and so filed an action in the High Court of Enugu State, Enugu Judicial Division on 31st October, 2005 claiming against the defendants jointly and severally as per the amended statement of claim as follows:-

(a)     A declaration that the plaintiffs father late Chief Oji Uke Anya who died on the 16th day of June 2004 at Enugu, Enugu State died intestate.

(b)     A declaration that the document dated the 26th day of October 1998 purportedly deposited at the probate registry Enugu purporting to be the will and last testament of Chief Oji Uke Anya is void and of no effect whatsoever.

(c)     A declaration that the estate of Chief Oji Uke Anya is to be distributed in accordance with the land and custom of inheritance of Igbere people of Abia State of Nigeria.

(d)     A perpetual injunction restraining the defendants from acting or purporting to act as Executors of the said purported will and last testament of Chief Oji Uke Anya or in any way or manner tempering with or dealing in the assets of the estate of late Chief Oji Uke Anya wherever found or situate.

(e)     An order directing the defendant to render an account unto the plaintiff of all monies collected by them as rent from 2 building in the estate of late chief Oji Uke Anya respectively situate at No. 35 Zik Avenue and No. 25 Ibiam Street all in Uwani Enugu, Enugu State.

The 3rd Defendant filed his counter claim for the following:-

(a)     A declaration that late chief Oji Uke Anya’s Will dated 26th day of October 1998 and deposited at the probate Registry, Enugu and which was at the behest of the plaintiff read to the beneficiaries of the estate present including the plaintiff is valid and subsisting.

(b)     An order granting probate in respect of the said Will.

(c)     An order restraining the plaintiff(s) from interfering with the administration of the estate of late chief Oji Uke Anya as provided in the said Will.

After pleadings had been exchanged between the parties, the case was heard by A.R. Ozoemena J. who delivered his judgment on 22nd day of June, 2009, in which he dismissed the plaintiff’s claim and entered judgment in favour of the 2nd defendant as per the counter-claim. The learned trial judge had this to say:-

“I therefore, dismiss the case of the plaintiff(s) and hold that the defendants as proponents of the will of Chief Oji Uke Anya have discharged the onus and burden of proof laid upon them by law. In its place I declare that the late chief Oji Uke Anya’s Will dated 26th day of October 1998 deposited at the probate Registry Enugu and which was, at the behest of the plaintiff read to the beneficiaries of the estate present including the plaintiff is valid and subsisting.

(b)     An order granting probate in respect of the said Will.

(c)     An order restraining the plaintiff from interfering with the administration of the estate of late Chief Oji Uke Anya as provided in the said Will.”

Dissatisfied with this Judgment, the plaintiff/appellant appealed to this court vide his Notice and Grounds of Appeal dated and filed on 23rd day of July, 2009, containing three grounds of appeal. For clarity and emphasis, the grounds are set out hereunder as follows:-

ERROR IN LAW

The learned trial judge erred in law when he held as follows:-

“With all these probabilities, one is still left in doubts as to whether or not Chief O.U. Oji Uke Anya actually signed Exhibit D/Z dated 26th October 1998. That doubts would have remained in my own considered opinion, but for the contents of the all-important Exhibit T, which the plaintiff signed. The 1st paragraph of Exhibit T reads:-

“That the late Chief O.U. Anya as a matter of fact prepared the Will, which is in contention in this suit.”

The plaintiff by signing this exhibit along with the 2nd defendants, 3rd defendant and 6th defendant, has therefore conceded, that Chief O.U. Anya signed Exhibit D/Z, which is in contention. That single act in my opinion is the last straw that broke the camel’s back”

PARTICULARS OF ERROR

(a)     Exhibit T relied upon is a document made in pursuit of out of Court settlement while the suit was already pending.

(b)     The settlement contemplated in exhibit T failed.

(c)     Exhibit T was not admissible and ought not be a basis for the decision of the court.

(d)     The learned trial judge was not permitted in law to make use of a part of exhibit T while rejecting other parts.

 

ERROR IN LAW

The Learned Trial Judge erred in law when he failed to apply the obvious weight of evidence in favour of the plaintiff as shown in the scenario considered by him. In the words of His Lordship:-

1. “Family meetings were held severally after the death of Oji Uke Anya at Aba, Enugu and Igbere… on how to administer Chief O.U. Anya’s estate-why?
2. A letter written by 6th Defendant appealing to the brothers to remember their sisters when they are sharing their deceased father’s estate. See Exhibit C. if it is true that there was a Will already why the following in Exhibit C. It is simply the issue of incorporating the 3 (three) surviving daughters of the family into the inheritance bid….I am not advocating that the daughters share equal with the sons. I am only advocating for something that will give each daughter a sense of belonging and invariably act as a catalyst in any future contributions and gesture.
3. The Will was made on 26th day of October 1998 but was deposited in November 2004 i.e. 6 years. It is deposited 5 months after the death of the deceased. Why?
4. There was nobody from the Probate Registry to say when the Will was deposited yet it was in their custody. Is this not a proper case for applying Section 249(d) of the Evidence Act…. That court may presume “that evidence which could be and is not produced, would, if produced, be unfavorable to the person who withholds it”
5. Exhibit E-Probate Inventory Form, signed by the plaintiff, 1st 2nd and 3rd defendants towards applying for the estate of the deceased.
6. Why was the existence of the Will hidden until the parties have gone a long toward processing the letter administration of the estate of deceased?
7. There was no challenge on when the Will was deposited at the Probate Registry.
8. C.H.C. Nwanya (late) was appointed the manager of the estate of the deceased, but it did not occur to him that there was a Will already before his appointment-Why did he not disclose that there was a Will existing and he did not mention it.
9. On the issue of (OBU NNA) in the will (Obu Nna) is the exclusive [preserve] (inheritance) of the 1st son. So in Igbere, and in fact in Igbo land, this aspect cannot be bequeathed to anybody other than the 1st son. That is the law in Igbo land yet the Will purports the said Obu Nna to be for common share and use of all the children of the man. It is, therefore, not within the testaments powers of the testator to do otherwise.

PARTICULARS

(a)     The final decision of the Court is contrary to these clear findings of fact.

(b)     The decision is thus perverse and has occasioned a miscarriage of justice.

ERROR IN LAW

The learned trial judge erred in law when he granted the Counter Claim.

PARTICULARS

(a)     The Counter Claim was incompetent.

(b)     There was no proof of the Counter Claim.

(c)     There was no Will to warrant a grant of the Counter Claim.

RELIEFS SOUGHT FROM THE COURT OF APPEAL

(a)     Allow the Appeal, set aside the judgment of the Honourable Justice A.R. Ozoemena and in its place granting all the reliefs sought in the Statement of Claim.

Both parties filed and exchanged briefs of argument and same were adopted by counsel at the hearing. Appellant’s brief was filed on 25.1.13, 1st respondent’s brief was filed on 15.12.09. While 2nd -5th respondents’ brief was filed on 15.2.09.

In the brief settled by Declan Obioma Madu Esq., of counsel for the appellant, three issues were formulated as follows:-

(a)     Whether the reliance placed on Exhibit T. by the learned trial judge as the basis of his decision was proper. (Distilled from ground 1)

(b)     Whether the judgment is not against the weight of evidence? (Distilled from my ground 2 and 3).

The 1st respondent, through his counsel O.O. Anya Esq., in the brief settled by him, has also formulated three issues herein reproduced:-

(1)     Whether the document dated the 26th day of October 1998 tendered respectively by the appellant and the 2nd respondent as exhibit D and exhibit Z meets the requirements of a Will as a document by itself.

(2)     Whether chief Oji Uke Anya in his lifetime and particularly as at the year 1998 (or more specifically on 26th October 1998 was capable and competent to make a Will, and

(3)     Whether the said Will or document dated 26th day of October 1998 was in fact made by Chief Oji Uke Anya.

In the brief settled by L.C. Martins – Erondu, Esq., counsel for the 2nd – 5th respondents three issues were formulated thus:-

(1)     Whether the document dated 26th day of October, 1988 tendered respectively by the appellant and the 2nd respondent and exhibit ‘D’ and exhibit ‘Z’, meets the requirement of a Will as a document by itself.

(2)     Whether Chief Ohi Ike Anya in his lifetime and particularly as at the year 1998 (or more especially on 26th October, 1998) was capable and competent to make a Will; and

(3)     Whether the said Will or document dated 26th October 1998 was infact made by the Chief Oji Uke….”

Having regard to the facts of this case, I shall determine this appeal on the issues formulated by the appellant. After all, it is his complaint which the appeal is predicated.

In his submission on the 1st issue, the learned counsel for the appellant submitted that the reliance placed by the learned trial judge on Exhibit T, as the basis for his decision in this suit having regard to all the circumstances is misplaced.

That exhibit T is in the specie of documents which by Section 25 and 91(3) of the Evidence Act is inadmissible. The document was made by the parties to the pending suit and same was to serve as an alternative resolution for the suit but parties repudiated it as such it became a worthless document. It was his further contention that the learned trial judge did not have the competence to apply the contents of Exhibit ‘T’ in parts. That were exhibit T, to be the guiding document the argument of the parties was that it should be the judgment of the court.
It was his further submission that the learned trial judge was in grave error when he held that Exhibit T constituted a concession or an admission. Reliance was placed on Fawehinmi v. NBA (No.2) 1989 (2) NLLR (Pt. 105) 558 at 622 – 623 paras E – D. That Exhibit ‘T’ was not and could not constitute an admission as wrongly held by the learned trial judge as such it ought to be expunged. See Abadon v. State (1997) 1 NWLR (Pt. 479) 1 at 23 paras C – E and Achibong v. State (2006) ALL FWLR (Pt. 323) 1147 at 1768 paras E- G. That Exhibit ‘T’ is inadmissible in law.

Learned counsel further submitted that Exhibit T was the sole basis for the decision of the lower court that late Oji Uke Anya made a Will. That without the wrongful admission and/or reliance on Exhibit ‘T’ judgment would have been in favour of the appellant as such he urged the court to resolve this issue in favour of the appellant. Reliance was placed on Okoro v. The State (1998) 14 NWLR (Pt.584) 181 at 208 paras C – D and Owonyin v. Omotosho (1962) 2 N.S.C.C. 179 at 181.

1st respondent’s counsel responded to this submission at pages 24 – 25 of the brief of argument. Learned counsel submitted that Exhibit T flowed from the meetings held by the family as canvassed by the appellant’s counsel. That appellant was fully aware and consented to same hence he executed same together with the 2nd respondent, 3rd respondent and 6th respondent and six other extended family members. It was contended that the case of Dughum v. Andezenge (2007) ALL FWLR (Pt. 385) 499 at pages 524 – 525 paras H – A cited by appellant’s counsel is distinguishable because the origin of exhibit T is not doubtful by any stretch of imagination. That exhibit T was made and executed by a total of 9 persons and same flowed from resolutions reached by the extended family which they not only sought to be open to all the parties but that the same should also be seen as a final resolution of the issue at stake. That it is a fallacy as contended by appellant’s counsel that the parties did not intend exhibit T to be disclosed. That Section 25 of the Evidence Act does not apply exhibit T which was made by and executed by persons outside the direct parties.

It was further submitted that it was the appellant and not the 1st respondent that reneged on a properly produced exhibit T made for filling before the trial court. Counsel contended that exhibit T is legally admissible and that appellant and his counsel were quite aware of it as per the cited sworn depositions above and the same properly tendered and received in evidence. That no law declares it inadmissible counsel opined.

The 2nd – 5th respondents also responded in their brief as reflected in paragraphs 8.2 and 8.3 at pages 24 and 25 of the said brief. The response is in line with that of the 1st respondent. I therefore do not find it necessary to summarize same. It is however, well taken.

The question to be resolved is whether exhibit ‘T’ constituted a concession or an admission. Appellant relied heavily on S.25 of the Evidence Act and S. 91(3) to hold that exhibit ‘T’ is inadmissible. For clarity and emphasis, Section 25 and 91(3) of the Evidence Act 1990 (now Sections 26 and 83(3) of the Evidence Act 2011) read thus:

25. In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or in circumstances from which the court cannot confer that the parties agreed together that evidence of it should not be given.”

S.91(3)

“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceeding were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

I have examined the aborted terms of settlement. The document i.e. exhibit ‘T’ is not marked “without prejudice’ as such Section 25 of the Evidence Act (now Section 26 of the Evidence Act 2011) is inapplicable. There is also no evidence on record from which the court could infer that the evidence of it should not be given.

See UBN PLC v. Okoror (2002) 10 NWLR (Pt. 774) page 1 at 11 paras c – a and Kolo v. FBN PC (2003) 3 NWLR (Pt.806) 215 at 236 paras G – H.

As regards the application of Section 91(3) of the Evidence Act (now Section 83 (3) of the Evidence Act 2011, let me say straight off that the general rule and the law is that documents made by an “interested” party during the pendency of a suit is inadmissible. See Ogidi v. Egba (1999) 6 SCNJ 107, (1999) 10 NWLR (Pt 62) 42.

This section was enacted to render inadmissible a document prepared by an interested person in order to defeat through its clear wordings, the course of justice. Such a document is rendered inadmissible when the maker know about the pendency of the suit to which the document is made and even where he does not know about the existence of a suit, he anticipated that a dispute might arise.

The wisdom in having the section is that a person interested might easily be tempted to depart from telling the truth by reason of the interest he has.
It has been held that the word “interested” in Sec. 91(3) of the Evidence Act must be given a narrow rather than a broad meaning. See Anyaebosi v. R.T. Bsicoe (Nig.) Ltd. (1987) 3 NWLR (Pt.59) Pg.84 or (1987) 6 SCNJ 9 at page 22 – 23, Apera v. Aiyetobi (1989) 1 NWLR (Pt 95) 85 and Abadamosi v. Kobo Trans Ltd. (2000) 8I NWLR (Pt.668) 243.

The question now is whether Sec. 91(3) could be invoked in respect of terms of settlement prepared by parties in pursuit of amicable settlement made at the instance of the court. The terms of settlement is a document prepared with the consent of both parties in pursuit of amicable settlement. Both parties are involved in the preparation of the document as such no one party would take advantage of the other. It is not in doubt that exhibit ‘T’ was made during the pendency of the suit. By the nature of the document i.e. The terms of settlement, it is my humble view that it should not be excluded from being admitted in court by virtue of S.91(3) of the Evidence Act. To every general rule there must be exception. Had all parties signed the document  i.e. Exhibit ‘T’ same would have been converted to consent judgment by the court. Contrary to the submission of appellant’s counsel, I am of the humble view that Section 91(3) is inapplicable in the circumstance. The only problem with exhibit T is that it is an aborted terms of settlement with no legal consequence. The document was not signed by all parties because 1st respondent refused to sign same. Exhibit T cannot therefore be regarded as a valid document. Though same was admitted in evidence the document should not have been afforded any probative value by the lower court.

The case of Dughum v. Aridenge (2007) ALL FWLR (Pt. 385) 499 at 524 – 525 paras H – A and Garuba v. Kwara Investment Co. Ltd. (2005) All FWLR (Pt. 252) 469 at 471 cited by appellant’s counsel are inapplicable to the case at hand. Exhibit T is not of a dubious origin as contended by learned counsel for the appellant. As rightly submitted by 1st respondent’s counsel, exhibit T flowed from the resolutions reached by the extended family in an attempt to settled their dispute amicably. Had all parties agreed to the terms and signed same, the trial court would have entered consent judgment in their favour.

For the reasons stated, I will resolve issue I against the appellant to the extent that S.91(3) of the Evidence Act cannot be invoked to render exhibit T inadmissible.

As to whether the admission of exhibit T affected the appellant’s case, same would be resolved while treating issue 2.

Issue No. 2 is whether the judgment is not against the weight of evidence. This issue was distilled from grounds 2 and3 of the Notice of Appeal.

Learned counsel contended that judgment was against the weight of evidence led in the case. That the learned trial judge meticulously pointed out facts irresistibly leading to the conclusion that late Oji Uke Anya did not leave a will as falsely asserted by the respondent. The facts identified by the appellant are as follows:-

(a)     If there was a will, why was it not brought out at the various meetings held by all the family members at Aba, Enugu and Igbere on how to share the estate of the deceased. These meetings began after 1 whole year of the death of Oji Uke Anya.

(b)     The 6th respondent, a judge of the High Court would not have written Exhibit C, seeking for the daughters of the family to be included in the sharing of the Estate, if the estate had already been shared by the deceased in a will.

(c)     Who deposited the alleged will allegedly made 6 years before the death of Oji Uke Anya with the Probate Registrar Enugu, five months after his death? Oji Uke Anya obviously did not.

(d)     The 1st respondent was allegedly present when the alleged Will was made, she was allegedly appointed Executor of the Will, but she, the appellant, the 2nd respondent (a lawyer) and the 3rd respondent started the process of application for a letter of administration and signed Exhibit E, the Probate Inventory Form.

(e)     The 2nd respondent on behalf of the family of Oji Uke Anya, appointed C.H.C. Nwanya an alleged executor of the Will, the manager of the deceased estate. Significantly C.H.C. Nwanya allegedly prepared the Will as counsel, he did not draw the attention of the family to it. See pages 167 – 168 of the Record of Appeal.

 

It was contended that having X-rayed the facts, the learned trial judge has no hesitation in finding that the purported Will is tainted with suspicion or shrouded in secrecy. See page 169 lines 3 -4 of the record. That there is no appeal against findings of facts that questioned the existence of the alleged Will. Counsel submitted that it was a complete summersault in the face of all these facts enumerated above, for the learned trial judge to dismiss the suit of the appellant which challenged the existence of the alleged Will. That on the imaginary scale of justice, there is nothing on the respondent’s side, supportive of the assertion that Oji Uke Ana, made the Will now attributed to him. See Mogaji v. Odofin (1978) 4 SC 91 at 93 and Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66 at 84. That the judgment in the end, was perverse, and cannot be supported having regard to the weight of evidence.

This court is eminently entitled to interfere where there is failure of the court below to evaluate the totality of evidence before it to set aside the resultant finding as perverse. Counsel placed reliance on Overseas Construction Ltd. v. Grull Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407 and Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626. Counsel urged the court to resolve this issue in favour of the appellant and against the respondent.

1st respondent’s response appears at paragraphs 7.0 – 8.1 of the said brief. Appellant contends that the findings of the learned trial judge numbered a to e were against the judgment given in favour of the counter-claim. Learned counsel submitted that there is ample and unassailable evidence to support the fact that Chief O.U. Anya left a Will and that the judgment in favour of the counter claim was legally sound.

Learned counsel referred to the finding of fact numbered c which runs thus -who deposited the alleged Will — Oji Uke Anya obviously did. It was contended that the issue of the Will being made in 1998 was substantiated by evidence but that nowhere did evidence as given by the parties and as the records attest towards the fact given that the Will was deposited with the Probate Registry in November 2004. That Appellant neither mentioned anything about the Will being deposited in November 2004 in his claim/Further Further Amended Statement of Claim or did he mention same in his affidavit evidence filed as required by Enugu State High Court Rules let alone giving oral evidence to that effect.

Learned counsel further submitted that the issue was raised by appellant’s counsel in his reply address for the first time. That the submission was not based on any evidence. Counsel contended that it is trite that submissions in an address must be predicated on evidence before the court, otherwise such submissions go to no issue. Reliance was placed on Niger Construction Limited v. Chief A.O Okugbeni (1987) 12 S,C. 108 at 114, to show that address of counsel is never evidence, and it can never take the place of evidence. It was submitted that 1st respondent did not appeal against the finding of fact because the fact of when the Will was deposited was not a material issue before the learned trial judge. That there was evidence the Will was deposited some months after the death of the deceased, but that fact alone does not affect the validity of the Will. That Chief Nwanya the solicitor who prepared the Will would have thrown light on this issue but he is deceased. Reliance was placed on Ajuwon v. Akanmi (1994) Kings Law Reports 129 to buttress the point that this court can interfere with the finding of the learned trial judge where such finding is not supported by evidence. Counsel urged the court to reverse the finding that the Will was deposited with the Probate Registry 5 months after the demise of Chief O.U. Anya.

The finding a) runs thus:-

“If there was a Will why was it not brought out at the various meetings held by all the family members at Aba, Enugu and Igbere on how to share the estate of the deceased. These meetings began after 1 whole year of the death of Chief O. U. Anya.”

That appellant’s counsel culled this from the judgment of the learned trial judge appearing at page 167 of the record lines 14 to 15 where the trial court stated thus:-

“1.     Family meetings were held severally after the death of Oji Uke Anya at Aba, Enugu, and Igbere — on how to administer Chief O.U. Anya’s estate — why?”

Learned counsel submitted that the dots between “Igbere” and “on” show that the learned trial judge appeared to be making a quotation – which ostensibly was from the Address/Reply of the appellants counsel. That the addition i.e. “These meetings began after 1 whole year of the death of Chief O.U. Anya was not made by the learned trial judge. According to learned counsel, appellant’s counsel introduced extraneous matters in order to mislead the court. Reference was made to INEC & Ors. v. Comrade Adams Oshiomole (2009) vol. 1 LRCN 178 at 213 wherein this court stated thus:-

“Counsel must remember that they are first and foremost ministers in the temple of justice and owe a duty to the court to assist it in doing justice. To lift a word out of context and create an impression of the Tribunal that is not true is most unfortunate and it is not what is expected from counsel.”

That it was appellant’s counsel that introduced for the first time the finding which is not supported by evidence. See page 95 lines 4 to 11 of the record. Learned counsel contended that there was no evidence of meetings held at Aba, Enugu and Igbere on how to administer Chief O.A. Anya’s estate wrongly postulated by appellant’s counsel. Counsel submitted that except for meeting of 1st August 2004 (the following day after the burial of Chief O.U. Anya) evidence in the record show that the issue of the Will came up and was a settled matter in every meeting including the extended family meeting of 3rd June 2006 that introduced exhibit ‘T’. Reference was made to the testimony of DW1 appearing at page 120 of the record lines 19 to 22 and that of DW2 appearing at page 122 lines 9 – 12 of the record to confirm the existence of the Will. See also 1st respondent’s evidence at page 124 of the record. According to learned counsel, 1st respondent whose husband was only buried the day before and who was undergoing the pain of loss could not have been expected to inform her children by 1st August that her husband left a Will. To do that would have been an exhibition of callousness he argued.

It was further submitted that by the end of September 2004 barely two months after the burial of Chief O.U. Anya the existence of the Will was common knowledge to all the family members as the appellant brought back the information that there was the Will in the Probate Registry and because of that application forms for letters of administration were rejected on presentation at the said registry. Reference was made to the letter dated 21/10/2004 received from the Probate Registry by the appellant. The said Will was read on 11th November, 2004 five months after the death of Chief O.U. Anya. Counsel therefore argued that the meetings were held by all with the full knowledge that there was a Will and the aim was only to find a way to accommodate and appease the appellant who felt he did not receive so much as he had expected in the Will. That a testator who owned a property has the right to dispose of them as he wants; he could have donated same to a foundation or an orphanage and the law will not fault it.

As regards the finding numbered (b), learned counsel referred to the judgment of the trial court at page 167 lines 17 to 20 of the record. According to him exhibit ‘C’ was made on 22/6/2004 – only 25 days after the burial of Chief O.U. Anya. Learned counsel contended that 6th respondent just as the appellant and the rest of the parties excepting the surviving wife of Chief O.U. Anya did not as at then know about the Will of Chief O.U. Anya. That appellant himself testified that he was not aware of the Will even though he expected his father to have made a Will. It was submitted that exhibit C does not remove from the Will nor invalidate it as the maker obviously was not aware of it at the time of writing it. Counsel argued that appellant had no knowledge of the traditional mourning period when he expected and had canvassed that the 1st respondent whose husband was buried on 31st July 2004 should by the meeting of the next day i.e. 1st August 2004 inform him and her other children respondents that there was a Will left by her late husband.

In response to the finding numbered (d) learned counsel submitted that the argument that 1st respondent was present when the alleged Will was made has no connection with the record. That it is borne out by the style of counsel. That the evidence and record show that Chief Nwanya prepared the Will or Chief O.U. Anya and as submitted in article 7.3. of this brief, 1st respondent had to excuse himself on the day Chief Nwanya came to see Chief O.U. Anya with the Will.

Learned counsel urged the court to examine exhibit ‘E’. That there is nothing on the said Exhibit E except the signatures collected in advance by the appellant because the Probate office rejected the forms outright in the face of the record showing the Will of Chief O.U Anya in its custody.

On fact (e) learned counsel referred to page 168 of record lines 15 to 19 and exhibit A attached to sworn deposition of 2nd respondent at page 38 of the record paras. 57 and 58.

That the letter dated 7/9/2004 written 32 days after the burial of Chief O.U. Anya shows that it came under the period the parties had not yet known of the deposited Will except the 1st respondent. Learned counsel submitted that from the totality of the evidence at the trial court and the record, no evidence was given to the effect that Chief C.H.C. Nwanya did not inform the appellant and some of the respondents about the Will of Chief O.U. Anya to have justified the finding of the learned trial judge. Counsel further submitted that no evidence was given as to what transpired in the discussions Chief C.H.C. Nwanya had with the appellant and 2nd and 3rd respondents earlier that 1st September 2004 before the said letter came forth. That no evidence came from either of the parties with respect to whether or not Chief C.H.C. Nwanya said anything about the Will of late Chief O.U. Anya which he, in his position as counsel prepared to Chief O.U. Anya.

Learned counsel further submitted that the letter which speaks for itself simply appointed Chief Nwanya to help collect rents as opposed to being appointed to manage the estate of the deceased, Chief .O.U. Anya. That the estate goes beyond the two developed properties at Enugu to cover the parcel of land at Presidential Road Enugu, his country home at Igbere, four empty plots of land at Igbere and even the Mercedes Benz car he possessed and used until his death which are all covered by the Will Exhibit D/Z. That collection of rents from tenants in two buildings – only an integral part of the estate cannot, amount to an appointment to manage the estate of the deceased. It was argued that the learned trial judge appeared to have erred on this fact due to the style of the appellant’s counsel who in his Reply/Address boldly asserted that from 31/7/2004 – 1/9/2004 the family appointed Bar. C.H.C. Nwanya to manage his estate though same not supported by evidence. See page 75 of the record paragraphs 2.06. Counsel urged the court to reverse the erroneous finding as there is no evidence sustaining same.

Finally, learned counsel submitted that having treated and debunked all these “facts” claimed by the appellant’s counsel to have irresistibly led to the conclusion that there was no Will, this court should hold that appellant counsel’s argument in that regard has woefully failed. That being the case the 2nd respondent as a proponent of the Will in line with the Supreme Court case of Irene Adebaya v. I.A. Adebayo & Ors. (1973) 3 ECSLR 544 has satisfactorily discharged the onus and burden laid upon him by law and so urged the court to affirm the judgment in favour of the counter claim as entered by the trial court.

The response of 2nd – 5th respondents appears at page 12 paragraph 7.0. to page 23 paragraph 7.6. of their brief of argument. It appears 2nd – 5th respondents prepared their brief of argument in line with that of the 1st respondent. I do not therefore find it necessary to summarize the submissions so as to avoid repetition but I would in the course of writing the judgment make reference to relevant portion of the argument canvassed by counsel.

When an appellant employs the phrase that the judgment is “against the weight of evidence”, it postulates that there was no evidence, which if accepted would support the findings of the trial judge or the inference, which he had made. It could also mean that when the evidence adduced by the appellant is balanced against that adduced by the respondent, the judgment given in favour of the respondent, would be against the weight which should have been given, having regard to the totality of evidence before the court. See Mogaji v. Odofin (1978) 4 SC 94: U.B.N. Plc. v. Borini Promo Co. Ltd. (1998) 4 NWLR (Pt.547) 640 and Anachuru Anvaoke & Ors. v. Dr. Felix C. Ardi & Ors. (1986) 3 NWLR (Pt 731). The phrase also constitutes an attack on the findings of fact made by the trial Judge and calls upon the Court of Appeal to make up its mind on the evidence. This, the court does, not disregarding judgment appealed from, but carefully weighing and considering it and not shrinking from overruling it if on full consideration it appears that judgment was given against the weight of evidence. See Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 319.

When a judgment is attacked as being against the weight of evidence, the Court of Appeal has a primary role to do the following:

(a)     Know the evidence before the trial court.

(b)     Know whether the trial court accepted or rejected any evidence upon the correct perception.

(c)     Know whether the trial court correctly approached the assessment of the evidence before it and placed the right probative value on it.

(d)     Know whether the trial court used the imaginary scale of justice to weigh the evidence on either side.

(e)     Know whether the trial court appreciated upon the preponderance of evidence on which side the scale weighed, having regard to the burden of proof.

It has been accepted by a long line of decided cases that in a civil case, the burden of proof is generally on a plaintiff. In order to succeed, a plaintiff has to prove his case on a preponderance of evidence or on a balance of probabilities. In the case of Madam Rabiatu Odofin & Ors. v. A.R Mogaji & Ors. (1978) NSCC P. 275, the Supreme Court explained what it is meant, when it is said that, a civil case is decided on the balance of probabilities or on preponderance of evidence. It is the view of that court that before a judge before whom evidence adduced by the parties in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale. He will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side of the scale and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party but by the quality or the probative value of those witnesses. See FBN Plc. v. Oniyangi (2000) 1 NWLR (Pt.661) 497.

It is trite law that is restated by a long line of judicial decisions on that the appellate court cannot interfere with the trial court’s finding of facts or its other decision on facts, unless in cases where there was no evaluation of evidence or there is improper evaluation of the evidence or it has not properly utilized the advantage of seeing and listening to the witnesses, or where the wrong conclusions are drawn from the evidence. See Eboler v. Osayande (1992) 7 SCNJ 212.

Before commencing the evaluation of the evidence of both sides on the validity of the will left behind by Chief Oji Uke Anya dated 26th day of October, 1998, it has to be borne in mind that an evaluation of the evidence elicited by either side on an issue must involve a consideration of both the pleadings and the evidence because evidence is led on basis of and in proof of facts in the pleadings and must be consistent with the pleadings. Therefore pleadings determine the case established by evidence. The plaintiff elicited evidence through PW2 and PW3. The case for the appellant is that the testator did not make the disputed will or that the signature found on the Will is not that of the testator, or the Will bears no jurat. Exhibit D is the Will being disputed by the parties. The evidence adduced by the plaintiff and his witnesses pertaining to the validity of the Will was in line with paragraphs 6, 7, 8, 12, 14, 15, 16, 19, 20, 21, 22, 23, 29 and 30 of the further amended statement of claim appearing at pages 4 – 8 of the record.

The respondents elicited evidence through DW1, DW2, DW3, DW4 and DW5 in support of their pleadings. The respondents maintained in their evidence that the testator had the mental capacity and was a free agent and that the Will in dispute was duly executed. The relevant paragraphs of 1st defendants amended statement of defence and counter-claim relating to the validity of the Will are: Paragraphs26, 28, 33 and 35. While the relevant paragraphs of the 2nd defendant’s statement of defence and counterclaim at pages 31 – 32 of the record are: Paragraphs 36, 51, 56, 81, 82, 83, 84, 85, 86, 87, 101, 108, 110 and 111.

It is settled that the burden of proof rests with the party who asserts the positive and not on one who affirms the negative. The maxim is “he who asserts must prove”. See Section 135 and 136 of the Evidence Act 1990 now Sections 133 and 134 of the Evidence Act 2011.

It is trite in civil cases that the party who asserts must prove but the rule operates in probate cases in reverse, therefore, the person propounding the Will have in addition to the onus of proving due execution as well as testamentary capacity. The onus always lies on the propounder of a Will to satisfy the court that the document is the last Will of a free and capable testator. This refers only to the first stage, for the burden of proof never remain static but shifts. Where the will is disputed, those who apply to the registrar of probate for grant of probate have initial evidential burden to establish prima facie that there has been due execution and that the testator has the mental capacity and was a free agent. Once the propounders of the Will have prima facie satisfied the court as to the question of the execution and that the testator, being free and capable, the burden of leading evidence is cast on the people assailing the instrument. It devolves on them to show by admissible and credible evidence the onslaught they have directed at the Will in the nature of want of capacity, undue execution or that the signature on the Will is not that of the testator.

In the instant case, the burden of proof rests on the respondents who are the persons propounding the Will before it would shift to the appellant. The apex court in Okelola v. Boyle (1998) 2 NWLR (Pt. 539) 533 at 547 – 549 per Ogundare, JSC quoted with approval the decision in Johnson & anor. v Maja & Ors. (1951) 13 WACA 290 at 292 as follows:-

“Where there is a dispute as to a Will, those who propound it must clearly show by evidence that prima facie, all is in order, that is to say, the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, it seems to me that the burden is then cast upon those who attack Will, and that they are required to substantiate by evidence the allegation they have made as to lack of capacity, undue influence and so forth”.

Clearly, that has been the position and has not changed. I shall therefore examine whether the proponents of the Will were able to convince the court below that the Will was duly executed. I shall also see whether there are debilitating facts which could make the Will to fail. Exhibit D(Z) is the Certified True Copy of the Will being disputed by the parties. The preface of the said Will states:-

“This is the Last Will and Testament of me Chief Oji Uke Anya 25, Ibiam Street, Uwani, Enugu and Onu Ibiana Igbere, Local Government Area of Abia State and I hereby revoke all former testamentary dispositions made by me.

By way of conclusions, it is stated thus:-

“IN WITNESS whereof, I, the said Chief Oji Uke Anya have hereunto set my hand this 26th day of October 1998. SIGNED by the above named Chief Oji Uke Anya as and for his last Will in the presence of us both being present at the same time who at his request and in his presence and in the presence of each other have hereunto subscribed our names as witnesses”.

The question now is whether the Will has satisfied the requirement of S. 9 of the Will’s Act. 1837? Section 9 provides thus:-

“No Will shall be valid unless it shall be in writing —and signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and subscribe the Will in the presence of the testator, but no form of attestation shall be necessary.”

2nd respondent in contending that the Will satisfied the requirements of a valid will referred to THE LAW OF REAL PROPERTY by R.E. Megarry & Wade, third edition page 485 particularly 2.9 reproduced (supra) and contended that the Will in contention satisfied the requirement of the Act. The 1st – 5th respondents’ evidence on the issue is well captured by the evidence of DW1 and DW2. At page 167 of the record, the learned trial judge made the following finding:-

“This is contained in Section 9 of Will Act, 1837, A look at Exhibit ‘D’ and Z will show that there is a compliance, with Section 9 of the Act”.

DW1 at page 121 of the record stated thus:-

“My late husband brought out a Will give it to O.U. Anya, which he read through and examined it with his hand shaking—–.Thereafter, Mr. S.A.O. Ogbu signed as one of the witness. If I see a copy of the Will I can recognize it. I can identify it because of my signature and that of my husband….”

At lines 13 and 14 the same witness continued thus:-

“—Chief Anya read the Will himself before he signed it. I did not go through the Will I only singed it”.

The DW2 Stephen A.O. Ogbu, also a legal Practitioner of over 15 years experience at page 122 of the record, lines 13 -testified in Chief as follows:-

“After going through the Will, late Chief O.U. Anya signed same in my presence, and the presence of late Chief C.H. Nwanya as well as (Mrs.) T.E. Nwanya. Thereafter, I signed the Will as witnessing the signature of late Chief O.U. Anya. I made my signature in the presence of O.U. Anya and late Chief Nwanya and Mrs T.E. Nwanya. Also in my presence, Mrs. T.E. Nwanya signed as witness(ing) the signature of late Chief O.U. Anya”.

These are direct evidence of two credible witnesses. Their evidence before the trial judge was cogent and was not controverted by the appellant during cross examination. I have carefully perused and examined the record and have no option but to agree with the respondents that the evidence of DW1 and DW2 remained unchallenged. The respondents as proponents of the disputed Will have established that exhibit D(Z) was duly executed by the testator. The burden of proof is not static, rather it shifts. See Iza-Iyamu v. Alonge (2007) 6 NWLR (Pt. 1029) 84.

I will now see whether there are debilitating factors which could make the Will to fail. The contention of the appellant is that the purported signature of the testator on the disputed Will is not that of his father. Appellant claimed that as at 1992 his father became blind as such he could not have signed the Will in 1998. The complaint is in line with paragraphs 7 and 8 of appellant’s further amended statement of claim at pages 4 – 5 of the record. Appellant called PW2 a forensic expert who made comparison of the signature and made entries in exhibit ‘O’ PW2’s investigation revealed that both signatures are not the same and therefore found the signature on the Will to be fake or forged. Respondents had argued strenuously that at the time the testator executed the disputed Will he was not blind. He had the mental capacity and competence to make a Will during his lifetime being he 1st University graduate from Igbere in Bende Local Government Area of Abia State. The learned trial Judge agreed with the respondents that Chief Oji Uke Anya had the mental capacity and or competence to make a Will during his life time when he observed at page 170 of the record thus:-

“Again he signed Exhibit K in December 1997. And the same plaintiff said on 30th July 2008, “For all the times he drove, Chief O.U. Anya drove with a Driving Licence.” If it is true that Chief Oji Uke Anya was blind in 1992, the Chief Oji Uke Anya could not have applied for and obtained Exhibit M which is Driving License to cover him from the same 1992 – 1997. See Exhibit V, which was Power of Attorney donated by Chief Oji Uke Anya to O. O. Anya. No jurat was on any of them. In view of the above, I agree with Defence counsel that Chief Oji Uke Anya had the mental capacity and or competence to make Will during his life time.”

This finding clearly demolished the argument of the appellant that Chief Oji Uke Anya as at 1992 was blind and could not have signed the disputed Will. As earlier stated DW1 and DW2 gave cogent and credible evidence that Chief Oji Uke Anya signed the disputed Will Exhibit D(Z) in their presence as witnesses. Their evidence remained unchallenged.

The question now is if it is accepted that as at 1998 when the testator executed the Will he was not blind and the said execution was witnessed by DW1 and DW2 can it still be said that the evidence of the expert (PW2) is uncontradicted? The answer in my humble view is no. The apex court provided the answer in Elf (Nig) Ltd. v. Silla (1994) 6 NWLR (Pt. 350) 258 wherein the court per Adio JSC page 21 paras 3-G stated thus:-

“The persons specially skilled referred to in S. 56(1) of the Evidence Act quoted above are, by virtue of S. 56(2) of the Act called experts. If the evidence of an expert is not shaken under cross-examination and is uncontradicted, it should be admitted. See Oyakhire v. Obaseki (1986) 1 NWLR (Pt. 19) 735 at 742. It has, however, to be pointed out that the admission of such evidence is subject to there being no good reason to reject it and in the process of sanitizing it, could be rejected if there is a reason to do so. See A.G. Oyo State v. Farlakes Hotels (No.2) (1989) 5 NWLR (Pt. 121) 255. If in the light of other relevant credible evidence before the court, the evidence of the expert is not or cannot be true, it cannot be said to be uncontradicted and the court will be entitled to reject it. Indeed, the existence of other relevant and credible evidence before court showing that the evidence of the expert is not or cannot be true will constitute a good reason for rejecting it”.

In another related case of Fayemi v. Oni (2009) 7 NWLR (Pt. 1140) 223, the court at page 276 – 277 of the report stated thus:-

“The court must be weary of admitting a report prepared by an expert, not at the instance of the court but at the behest of any of the parties to the dispute. Such a report must be taken with a pinch of salt” See Waziri v. The State (1997) 3 NWLR (Pt.496) 689.

It has to be borne in mind that forgery is a criminal offence and the legal implication was that the allegation had to be proved beyond reasonable doubt. This is because if the commission of a crime by a party to any proceeding is directly in issue civil or criminal, it must be proved beyond reasonable doubt. See S. 137(1) Evidence Act now Section 135 Evidence Act 2011, Edokpolo & Co. Ltd. v. Ohenhen (1994) 7 NWLR (Pt.358) 511; Omorhirhi & Ors. v. Enatevwere (1988) 1 NWLR (Pt. 73) 746 and Folani v. Cole (1990) 2 NWLR (Pt. 133) 445. From the available evidence, it is my humble view that appellant has failed to discharge the burden of proof placed on him by law. The learned trial judge at pages 173 – 174 of the record acknowledged the fact that expert evidence should not be accepted as the whole truth. The court must scrutinize the evidence. Reliance was placed on the case of Chief Gani Fawehinmi v., Col. Akilu & Ors (1992) 12 SC 136 at 203. PW2 prepared the expert report at the instance of the appellant that was why the learned trial judge could not make specific finding as to whether he accepted the evidence of PW2 as credible. Rather, the learned trial judge only expressed doubt as to whether the, signature of the testator was actually forged. At page 174, the learned tri

“It may well be that Chief O.U. Anya at the age of 74 years suffered from diabetic, stroke and down in health, shows as one would expect that his hands were shaky and that might have accounted for the differences, if any in Exhibits C, Z.”

By this observation, it appears the learned trial judge is in agreement with the respondents that the signature on exhibit ‘D’ belongs to the testator.

As regards exhibit ‘T’ the aborted terms of settlement, I have earlier stated in this judgment that it may be admitted but no weight could be attached to it. The learned trial judge wrongly relied on exhibit ‘T’ in coming to the conclusion that the testator left a Will. In other words, even without exhibit ‘T’ there are other pieces of credible evidence that supports the claim of the respondents that Chief Oji Uke Anya left behind a Will.

The controversy regarding the deposit and/or custody of the Will with the Probate Registry Enugu was well settled by cogent evidence of the parties but more particularly the evidence of the appellant (himself): Appellant under cross examination at page 110 of the record stated thus:-

“—-I went to the Probate Registry, Enugu. I received information that there was a Will. I engaged a lawyer the assignment of finding out when the Will was registered and by whom and she reported to me that there is such a Will.  On 11th November, 2004, I was in the office of Probate Office Enugu with Barr. Mr. Ijeoma Onuchukwu and also the 3rd Defendant, Mr. Ogbonna Anya. On that day, the 2nd Defendant was not inside the office with us. Soon after, we were met with the Will. Four of us were present when the Probate Register brought an envelope and opened it.”

Also at page 111 of the record the appellant admitted under cross-examination as follows:-

“I obtained Exhibit D (the Will in issue) in the Probate Registry Enugu on 11th November 2004. I remember I paid some money to get it. I was working with my lawyer who made the application. The name of my lawyer then was Barr. Mrs Ijeoma Onuchukwu…”

Appellant had raised a challenge in his address that the Will was deposited at the probate Registry Enugu 5 months after the death of Chief O.U. Anya. There is no evidence established by the appellant that the Will was deposited in the Registry at probate Registry 5 months after the death of the testator. I agree with 1st respondent’s counsel that the address of counsel is never evidence, and it can never take the place of evidence. See Niger Construction Limited vs. Chief A.O. Okugbeni (1987) 12 SC 108 at 114.

On the issue of non-disclosure of the existence of the Will at the early stage, after going through the printed record, I agree with 1st respondent’s counsel that apart from the family meeting held on 1st August 2004 which was done immediately after the burial of Chief O.U. Anya, the subsequent meeting which included the extended family discussed the Will and that meeting produced exhibit ‘T’, the aborted terms of settlement. I also agree with the 1st respondent’s counsel that exhibit ‘C’ was written because the 6th respondent and rest of the parties except the surviving wife were then not aware of the existence of Will. I have also examined exhibit ‘E’. There is also no evidence to support the finding of the learned trial judge that the existence of the Will was hidden until the parties have gone a long way toward processing the letter of administration of the estate of the deceased. This finding is set aside. There is also no evidence given to the effect that C.H.C. Nwanya, counsel who prepared the Will did not inform the appellant and other respondents about the existence of the Will to have justified the finding of the learned trial judge. The fact that C.H.C. Nwanya was appointed to manage the two properties as per exhibit ‘A’ by collecting rents from tenants is not sufficient to conclude that the Will (exhibit D) was not executed by the testator Chief O.U. Anya during his lifetime. I also wish to state that Chief O.U. Anya the testator who owned the properly has the right to dispose of them as he wants. The way or manner he decides to share out the properties cannot be questioned nor can it be tempered with. The Will was not shrouded with secrecy as alleged by the appellant.

As earlier stated no weight can be attached to the aborted terms of settlement exhibit ‘T’. From the available evidence on record, respondents adduced cogent and credible evidence in support of the counter-claim to show that Chief O.U. Anya signed the Will to entitle them to judgment even without reliance on exhibit ‘T’. Where a trial court wrongly made use of a documentary evidence, it is the duty of the appellate court, to re-consider, re-assess the evidence, and apply it if the justice of the case so requires. See A.G. Leventis Nig. Plc. v. Akpa (2007) 46 WRN 1 at 27. I have re-assessed exhibit ‘T’ and found that failure to attach weight to it would not affect the conclusion reached by the trial court. The paramount consideration for the appellate court is whether the decision is right and not necessarily whether the reasons are right. See L.T.P.P. Ltd. v. U.B.N. Plc. (2007) 1 WRN 117; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339 at 350 and Jikantoro & 6 Ors. vs. Dantoro & 6 Ors. (2004) All FWLR 390.

Having re-appraised the evidence adduced before the trial court, I am of the humble view that judgment is not against the weight of evidence. Respondents have proved their counter-claim on the balance of probabilities and are entitled to judgment.

For the reasons stated hereinabove, there is no justification for this court to reverse the decision of the lower court. Issue two is similarly resolved in favour of the respondents.

On the whole, and for the various reasons stated hereinabove, I hold that this appeal lacks merit. It is accordingly dismissed. I affirm the decision of the High Court Enugu State delivered on 22.06.2009 by Ozoemena J. I make no order as to costs.

 

IGNATIUS IGWE AGUBE, J.C.A.:

I have had a careful perusal and appraisal of the well researched and articulated Judgment of my learned brother A.G. Mshelia, J.C.A., and am of the candid view that his reasoning and conclusion on all the issues distilled for determination are not only sound but are to say the least, unassailable. I adopt same as mine and agree totally with my Lord that the Respondents had discharged the burden of proving with cogent and credible evidence that Chief Oji Uke Anya (deceased) as at the time he wrote his Will which is now the subject of this Appeal, had the mental capacity and duly executed same which evidence is in support of their Counter-Claim.

The lower court was therefore on very solid ground to have given judgment in their favour upon their Counter-Claim. I shall also dismiss the Appellant’s Appeal and affirm the decision of Ozoemena, J. of the High court of Enugu state delivered on the 2nd day of June, 2009. I abide by the Order as to costs.

EMMANUEL AKOMAYE AGIM, J.C.A.:

I had a preview of the erudite judgment just delivered by my Learned Sister, ADZIRA GANA MSHELIA JCA, I completely agree with the reasoning and conclusions therein I also hold that the appeal lacks merit. It is accordingly dismissed. I also make no order as to costs.