Patrick Okwuchukwu Ajakwe V. Ifeanyi Ajakwe & Ors (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A. 

The appellant was the plaintiff at the High Court of Justice of Anambra State, holden at Awka. He had vide a Writ of Summons, issued on 8th October, 2007, and with a Statement of Claim, contemporaneously filed on the same 8th October, 2007; prayed at paragraph 16 thereof, for the following reliefs:
?a. A DECLARATION that Mr. Patrick Nnonyelu Okafor Ajakwe (deceased) was a man subject to the native law and custom of the people of Awka, Anambra State.
b. A DECLARATION that the document purporting to be the last Will and testament of late Mr. Patrick Nnonyelu Okafor Ajakwe is not the last Will and testament of late Mr. Patrick Nnonyelu Okafor Ajakwe who died intestate.
c. A DECLARATION that Mr. Patrick Okwuchukwu Ajakwe being the first son of the late Mr. Patrick Nnonyelu Okafor Ajakwe on the death of his father succeeded his father as the head of the family and inherited his father?s ?Obi? being the piece or parcel of land known as No. 69 Zik Avenue Awka, formerly No. 79 Enugu Road, Awka, Anambra State (the ?property?) to the exclusion of all other

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persons, including and especially the 1st and 2nd Defendants, in accordance with the native and custom of the people of Awka, Anambra State.
d. A DECLARATION that under native law and custom of the people of Awka, a man?s ?Obi? is not subject to alienation, partition or disposition by Will or otherwise.
e. A DECLARATION that Mr. Patrick Okwuchukwu Ajakwe being the first son of late Mr. Patrick Nnonyelu Okafor Ajakwe on the death of his father is entitled to the possession or custody and control of all other property real and personal of the said Mr. Patrick Nnonyelu Okafor Ajakwe (deceased) in accordance with the native law and custom of the Awka people of Anambra State, pending the sharing of same amongst the son, of Mr. Patrick Patrick Nnonyelu Okafor Ajakwe (deceased).
f. A DECLARATION that the 3rd to 5th Defendants are strangers to Mr. Patrick Nnonyelu Okafor Ajakwe?s estate and have no interest thereto and that all acts done by them in relation to the estate is null and void having acted without authority and amount to trespass.
g. AN ORDER of Court directing the Defendants to deliver immediate possession of the

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property (including all the rooms and the keys thereat) to the plaintiff.
h. ACCOUNT of all monies collected by the Defendants from the property and immediate payment of same to the plaintiff.
i. A PERPETUAL INJUNCTION restraining the Defendants by themselves, servants, agent, privies or otherwise howsoever from trespassing on the property or otherwise interfering with the plaintiff?s rights in the property.
j. N5m (Five Million Naira) jointly and severally against the 3rd to 5th Defendants for trespass to the property and for acts prejudicial to the interest of the plaintiff in the property.?
?
The respondents, resisted the claim and filed their statement of defence. The suit then proceeded to trial. Some documentary exhibits were admitted into evidence by consent of counsel while the appellant tendered into evidence some other documentary exhibits. The appellant testified for himself and called one other witness who testified for him. The respondents, on their part, fielded four witnesses, who testified for them. Thereafter, learned counsel for the parties filed and exchanged written addresses which were later adopted by them,

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as their submissions on the claim.

The learned trial judge, Hon. Justice C. A. Emembolu, on 27th November, 2012, in his judgment found for the respondents and dismissed the claim. This appeal, is against that judgment. There are seven grounds of appeal.

?The appellant, in order to prosecute the appeal, filed the appellant?s brief of argument dated 26th May, 2015 on 27th May, 2015. It was settled by Tochukwu Maduka, Esq., who identified four issues therein, for the determination of the appeal thus:
1. Whether the learned trial judge was right, in the entire circumstances of this case, in upholding Exhibit ?A? as the last Will and Testament of the Appellant?s father, the late Mr. Patrick Nnonyelu Ajakwe? (Grounds 1, 2, 3, 4 and 7).
2. Whether the learned trial judge was not in error in holding that the Court is bound by the date in Exhibit ?A? and act on same as the date of its execution because Exhibit ?A? was admitted by consent by both parties? (Ground 5).
3. Whether the learned trial judge was not in grave error which occasioned a miscarriage of justice when she failed to make a finding

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as to the year of death of the late Patrick Nnonyelu Ajakwe, the alleged Testator of the Will in dispute, notwithstanding that same was a fundamental issue before the trial Court? (1st Ground 6 at page 322 of the Record).
4. Whether the learned trial judge was not in error when she held that having found Exhibit ?A? to be valid, other claims of the Appellant automatically fail? (2nd Ground 6 at page 323 of the Record).

The Respondents? brief of argument settled by Uba Anene, Esq., dated 4th November, 2015 and filed on 10th November, 2015 was deemed as properly filed and served on 20th April, 2016. He nominated a sole issue for the resolution of the appeal, thus:
Whether in the circumstances of the case the decision of the learned trial judge dismissing the case of the appellant is in consonance with the law and evidence led at the trial.
?
Having perused the pleadings of the parties vis-a-vis the evidence led by them; the judgment of the Court below, the grounds of appeal against the said judgment and the issues identified by the respective counsel in their briefs of argument, I am satisfied that the sole issue nominated by

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the respondents? counsel, will serve to resolve the appeal. I, accordingly adopt it, in my consideration and determination of the appeal.

A resum of the submission of appellant?s learned counsel are that the learned trial judge was in error for upholding Exhibit ?A? as the last Will and Testament of the appellant?s father ? the late Mr. Patrick Nnonyelu Ajakwe and that the Court was bound by the date on Exhibit ?A? and act on it as the date of its execution, which was the 16th October, 1987. He contended that the onus was on the respondents, the propounders of Exhibit ?A? to prove (a) the due execution of the Will; (b) the testamentary capacity of the testator and (c) the sound disposing mind of the testator and that in the instant case, the respondents failed to prove the Will in Exhibit A, in accordance with Section 140 of the Administration of Estate Law, Cap. 4 Laws of Anambra State, 1991, which is in pari materia with Section 9 of the Wills Act 1837. He referred to Ezenwene v. Ezenwene (2003) 3 NWLR (pt. 807) 238.
?
Furthermore, it is the contention of the appellant?s

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counsel that after finding that Exhibit ?A? was valid, the learned trial judge ought to have considered and determined the other claims/reliefs of the appellant, on their merits. He urged that by virtue of Section 15 of the Court of Appeal Act, this Court should re-evaluate the evidence placed before the Court below and enter judgment for the appellant as per his claims at the Court below. He placed reliance on U. B. A. Ltd v. Achoru (1990) 6 NWLR (pt. 254) 254 (SC).

On his part, the respondents? learned counsel submitted that the respondents duly proved that Exhibit A was (a) in writing, (b) was signed by the testator and (c) it was attested to by two witnesses. He referred to Halsbury?s Laws of England 4th Edition, pages 128 ? 137 at paragraphs 251 ? 268 and that it is settled that there is a presumption of the due execution of a Will where ever there is an attestation clause in the Will. He referred to In the Estate of Randle (1962) 1 All NLR 130; Ize-Iyamu v. Alonge (2007) All FWLR (371) 1570 at 1588 (CA). He furthermore submitted that the learned trial judge, properly evaluated the evidence placed before him and

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ascribed probative value to each piece of such evidence in accordance with the law before arriving at its well considered judgment. He insisted that there was no perversity in any finding of the learned trial judge, therefore there was no miscarriage of justice in the said judgment.

Resolution:
The law has long been well settled to the effect that it is the propounders of a Will, that have the primary duty/onus of proving that the Will was validly made by the testator. That is, that the testator made the Will in writing and that he had the mental capacity and soundness of mind as at the time he made the Will. And also that there were witnesses who attested to the fact that the testator made the Will in their presence, which they too appended their signatures thereto, in the presence of the testator. The Supreme Court, in Okelola v. Boyle (1998) 2 NWLR (pt. 539) 533 at 547 ? 549, per his Lordship, Ogundare, JSC, citing with approval the decision of the West African Court of Appeal in Johnson & Anor v. Maja & Ors (1951) 13 WACA 290 at 292, stated that:
?Where there is a dispute as to a Will, those who propound it must clearly

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show by evidence that prima facie, all is in order: that is to say, that the testator had the necessary capacity, and as 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 the 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.?
Further see: Adebajo v. Adebajo (1973) All N.L.R. 297; (1973) 8 NSCC 204; Eyo v. Inyang (2001) 8 N.W.L.R. (pt. 715) 304; Amu v. Amu (2007) 7 NWLR (pt. 663) 164; (2000) 23 WRN 53; Odutola & Ors v. Mabogunje & Ors (2013) 7 N.W.L.R. (pt. 1354) 522 at 541 (SC).

In the instant case, the burden fell squarely on the respondents, to first prove the validity of the Will contained in Exhibit ?A?, in accordance with Section 140 of the Administration of Estate Law, Cap. 4 Laws of Anambra State, 1991 which provides that:
No Will shall be valid unless it shall be executed in the manner hereinafter mentioned, that is to say-
(a) it shall be signed or thumb-impressed or otherwise marked at the foot or end thereof by the

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testator or by some other person in his presence and at his direction; and
(b) such signature or thumb-impression or mark, as the case may be, shall be acknowledged by the testator in the presence of two or more witnesses who shall actually be present at the same time and shall see the testator?s signature, thumb-impression or mark at the time the same shall be affixed or acknowledged; and
(c) such witnesses shall attest and shall subscribe the Will in the presence of the testator.?

In the instant case, the evidence of DW1 ? Ozo Madubobu Nwogbo, who said he was one of the witnesses to the making/execution of Exhibit ?A?, is crucial.
His deposition at paragraph 9 contained at page 104 of the record of appeal is that:-
?9. Barrister Obi then produced the Will and read it to our hearing before we signed, Ajakwe being the first, and we witnesses after him.?
?
DW1 is the 4th respondent in this appeal. He was cross-examined by the appellant?s counsel at pages 291 ? 294 of the record of appeal. There was no question asked of the DW1 in respect of any deficiency in the mental capacity

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and unsoundness of mind of the testator. There was no question asked by the appellant?s counsel, of DW1 in respect of the inability of the testator to write or append his signature on the Will ? Exhibit ?A?. The only relevant question that was asked with respect to the execution of the Will by the testator, related to his signature on Exhibit ?A? vis-a-vis the signature on Exhibit ?B?. From the responses of the DW1 to those questions, it was clear as rightly accepted by the learned trial judge, that the testator at his early or youthful age used to write his signature in full, as indicated on Exhibit ?B? whereas, in his later years, his signature became shorter as indicated on Exhibit ?A? ? the Will. Thereafter, at page 314 of the record of appeal, his Lordship, found that:
?I have taken a cursory look at the signature on the WILL made on 16/10/87 and the signature on the driving licence which was made on 27-9-56, and after a close scrutiny, I am of the opinion that both signature(s) are similar. I hold as a fact that the signature in Exhibit ?A? the WILL was

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signed by the late Patrick Ajekwe. The signature in Exhibit(s) ?A? and ?B? are to my mind similar in comparison.?

The parties had joined issues with respect to the date that Patrick Nnonyelu died at paragraph 1 of the appellant?s statement of claim vis-a-vis paragraph 2 of the defendants? statement of defence. The appellant testified to the fact that his father died in 1986. Apart from the bare denial by the respondents that the testator did not die in 1986, there is no date suggested or pleaded by them as to when he actually died, so they led no evidence with respect to the date that the testator died, if not in 1986. However, at page 293 of the record of appeal, DW1 was pressed to admit that the testator died in 1986.
?
There is the serious contention by the appellant, that Exhibit ?A? was not the last WILL made by the testator ? the late Patrick Ajakwe. He contended that if as testified to by the DW1, that the testator died in 1986 and Exhibit ?A? was executed on 16/10/1987; it meant that the said Exhibit ?A? was made after the death of the testator in 1986. The

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learned trial judge, in his decision on this crucial aspect of this matter, said at page 315 of the record of appeal, thus:
?It is my considered view that the document the WILL Exhibit ?A? speaks for itself being a documentary evidence. The Courts are bound by the date the WILL was executed as shown in Exhibit A and D1. Both parties tendered the documents the WILL and prayed that the said copy of the WILL be admitted in evidence. It is settled law that if a document is admitted by the consent of both parties without objection, it will be within the right of the trial Court to act on it. … In the final analysis, I hold that the WILL Exhibit ?A? was duly executed.?
?
In my considered opinion, the learned trial judge, ought to have been cautious in admitting Exhibit ?A?, to probate. The respondents as the propounders of Exhibit ?A? ought to have led evidence clearly as to the date that it was really executed by the testator. The admission by the DW1 that the testator died in 1986, does not add up to commonsense, that his WILL ? Exhibit ?A?

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was executed on 16th October, 1987. I agree with the submission of appellant?s learned counsel to the effect that a dead man cannot execute a WILL from his grave. His Lordship?s conclusion that because Exhibits ?A? and D1 were admitted into evidence, by consent of the parties, the same thereby gained probative value automatically and must be acted upon by the Court, is certainly, not the law. It is elementary that the admissibility into evidence of a document as being relevant is different from the probative value to be ascribed to it. That is why the Courts have insisted that every document tendered and admitted into evidence, must be demonstrated by evidence by the party who tendered it and tie it to his case. The authorities on this principle are a basketful. Just see: Ndulue v. Ojiakor (2013) 8 N.W.L.R. (pt. 1356) 311 at 328 (SC); Egharevba v. Osagie (2009) 18 N.W.L.R. (pt. 1173) 299 (SC); (2009) 12 SCNJ 166; SOLOMON v. MONDAY (2014) LPELR ? 22811 (CA).
?
In the circumstances of this matter, I am of the considered and firm opinion that the presumption of regularity in the alleged execution of Exhibit ?A?

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by the testator on 16th October, 1987 after his demise in 1986, certainly casts some doubt with respect to the validity of the said Exhibit ?A?. I, so hold and strike down the said Exhibit ?A?.
?
The other aspect of the complaint of the appellant against the judgment of the Court below, is in respect of the non-consideration of the appellants claim bordering on the native law and custom of the Awka people that on the demise of a father like the late Patrick Nnonyelu Ajakwe who had inherited the property in question from his own father, that is, the grandfather of the appellant, the said appellant?s father was not entitled to disinherit the appellant who was his eldest son of the property at No. 69 Zik Avenue, Awka, by executing a WILL to that effect. The learned trial judge did not consider this aspect of the claim, which he ought to have considered, for whatever it was worth. In any event, the law is well settled that where there is a complaint that the trial Court did not make findings premised on the evidence proffered before him, the appellate Court, is in as good position, like the trial Court, to re-evaluate the pieces

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of evidence, placed before the Court and evaluate the same with a view to reaching a just decision between the parties. U. B. A. Ltd v. Achoru (1990) 6 N.W.L.R. (pt. 254) 254; Jason Umesie & Ors v. Hyde Onuaguluchi & Ors (1995) 12 SCNJ 120 at 134 ? 135; MPANG v. NDEM (2013) 4 NWLR (pt. 1344) 302 at 321.

The appellant at paragraphs 4, 5, 7, 8, 9, 10, 11 and 12 of the statement of claim, pleaded the Awka Custom of inheritance and averred, inter alia:
?4. The plaintiff?s father in his time lives in accordance with the native law and custom of the people of Awka and was buried in accordance with the native law and custom of the people of Awka, and all the requisite traditional burial rites and ceremonies performed during his burial.
5. The plaintiff?s father married three wives namely: Marget Ekwutosi Ajakwe (first), Roseline Ebele Ajakwe (deceased) (second), the mother of the plaintiff and Philomena Chinwe Ajakwe (third), the mother of 1st and 2nd Defendants. All the children of the plaintiff?s father have attained maturity.
6. The plaintiff?s father died without making a WILL.
The document

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purporting to be the Will and testament of the Plaintiff?s father, deposited at the Probate Registry Enugu, in 1991, 5 years after the death of the Plaintiff?s father, is null and void on the grounds of defects in the execution, and want of knowledge and approval of the plaintiff?s father. The plaintiff pleads his father?s driver?s licence and shall rely on same at the trial.
7. At his death, the estate of the plaintiff?s father devolved in accordance with the native law and custom of the people of Awka.
8. The custom of Awka people is that at the death of a man, his first son succeeds him as the head of the family and inherits, as of right, his deceased father?s ?Obi? which is the father dwelling house and the immediately surrounding compound. The Obi cannot be shared, partitioned, given out or disposed off under a Will.
9. The first son is also entitled by custom to the possession or custody and control of all other property real and personal of his deceased father until same is shared amongst the sons of his deceased father.
10. The plaintiff?s father inherited the property as

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?Obi? from his own father (plaintiff?s grandfather) Mr.Nwokafor Ajakwe. Mr. Nwokafor Ajakwe first acquired the property and lived and dwelled thereat all his life and worshipped his personal god or ?chi? in the shrine in the property. On his death Mr. Nwokafor Ajakwe was buried in the property. At the death of Mr. Nwokafor Ajakwe, the plaintiff?s father exclusively inherited the property as ?Obi?.
11. The plaintiff?s father also lived all his life in the property. At the death of the plaintiff?s mother she was buried in the property at the direction of the plaintiff?s father. On his death, the plaintiff?s father was also buried in the property.
12. On the death of the plaintiff?s father in 1986, the plaintiff assumed the headship of the family and like his own father, inherited the property as ?Obi? exclusively and has been exercising positive acts of ownership in relation thereto without any disturbance or interference by the Defendants until sometime in 2006. The plaintiff pleads and shall rely on the counterfoil of the receipts he issued to tenants in the

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property.?

In their statement of defence, the respondents, admitted paragraphs 5, 10 and 13 of the averments in the statement of claim partly and denied the other paragraphs of the statement of claim, reproduced above. From the partial admission of paragraphs 5, and 10 of the statement of claim at paragraphs 6, 11 and 13 of the statement of defence, respectively; it is established on the pleadings that the appellant?s father had three wives, and the appellant?s father inherited his own father?s property. Furthermore, vide paragraph 12 of the statement of defence, the averment at paragraph 11 of the statement of claim was admitted, that is,
?The plaintiff?s father also lived all his life in the property. At the death of the plaintiff?s mother she was buried in the property at the direction of the plaintiff?s father. On his death, the plaintiff?s father was also buried in the property.?
?
The appellant at the trial testified to the fact that he has the right to inherit his father?s property ?the Obi? in question, he being the first son or ?diokpala? in

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accordance with the Awka native law and custom and that it is an exclusive inheritance. He also called PW2 who supported his evidence to the same effect. PW2 at page 169 of the record of appeal testified thus:
?3. In accordance with Awka native law and custom, when a man inherited a property from his father, such property is not the private property of the man and he cannot share, give or will out the property.
In Awka we say ?Onwelu n?eke? meaning ?it is a person that owns a property that can share the property.?
4. In accordance with Awka native law and custom, where a man has inherited a property from his father, he cannot give or will out or share the property. In Awka a man can only give, will out or share a property which he personally purchased or acquired during his time but not an inherited property.
5. In accordance with the Awka native law and custom, it is the first son of a man that exclusively inherits the property which the man inherited from his own father. The first son?s right of inheritance to such property is not subject to any conditions.?
?
Upon my perusal of the

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cross examination of the appellant and PW2 by respondents? counsel, their pieces of evidence in respect of the Awka native law and custom regarding exclusive inheritance of an ?Obi? by the 1st son ? the ?diokpala? of his father, remained unshaken and uncontroverted. In his evidence, under cross examination, the DW1 admitted that the appellant is the first son of Patrick Ajakwe. He however, did not know if the said Patrick Ajakwe had invited his umunna and deprived the appellant as the first son of the Obi. DW2, on his part, was cross examined to admit that both the father of Patrick Ajaekwe and the latter himself were buried at No. 69 Zik Avenue Awka.

In answer to a question, under cross-examination, that is:
?Q. In accordance with Awka native law and custom is the custom of Awka the first son inherits the Obi?
A. Yes, if the men (sic) did not make a will. Yes the plaintiff is the first son of his father, but his father made a will.?

In the light of the pieces of evidence proffered by the appellant and PW2 vis-a-vis those by the DW1 and DW2 recounted above, with respect to Awka native law and

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custom, on exclusive inheritance of a man?s Obi by his first son, it is clear to me that upon the death of Patrick Nnonyelu Ajakwe, the father of the appellant, the latter being his first son, was entitled to inherit exclusively, the property at No. 69 Zik Avenue, Awka. In effect, the sole issue discussed above, is resolved in favour of the appellant. Consequently, the appeal is allowed. The Judgment of Emembolu, J., delivered on 27th November, 2012 in re Suit No. A/170/2007 is set aside. In its stead, the claim of the appellant succeeded. Therefore,
?a. A DECLARATION that Mr. Patrick Nnonyelu Okafor Ajakwe (deceased) was a man subject to the native law and custom of the people of Awka, Anambra State, is granted.
b. A DECLARATION that the document purporting to be the last Will and testament of late Mr. Patrick Nnonyelu Okafor Ajakwe is not the last Will and testament of late Mr. Patrick Nnonyelu Okafor Ajakwe who died intestate, is granted.
c. A DECLARATION that Mr. Patrick Okwuchukwu Ajakwe being the first son of the late Mr. Patrick Nnonyelu Okafor Ajakwe on the death of his father succeeded his father as the head of the family

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and inherited his father?s ?Obi? being the piece or parcel of land known as No. 69 Zik Avenue Awka, formerly No. 79 Enugu Road, Awka, Anambra State (the ?property?) to the exclusion of all other persons, including and especially the 1st and 2nd Defendants, in accordance with the native law and custom of the people of Awka, Anambra State, is granted.
d. A DECLARATION that under native law and custom of the people of Awka, a man?s ?Obi? is not subject to alienation, partition or disposition by Will or otherwise, is refused.
e. A DECLARATION that Mr. Patrick Okwuchukwu Ajakwe being the first son of late Mr. Patrick Nnonyelu Okafor Ajakwe on the death of his father is entitled to the possession or custody and control of all other property real and personal of the said Mr. Patrick Nnonyelu Okafor Ajakwe (deceased) in accordance with the native law and custom of the Awka people of Anambra State, pending the sharing of same amongst the sons, of Mr. Patrick Patrick Nnonyelu Okafor Ajakwe (deceased), is granted.
f. A DECLARATION that the 3rd to 5th Defendants are strangers to Mr. Patrick Nnonyelu Okafor

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Ajakwe?s estate and have no interest thereto and that all acts done by them in relation to the estate is null and void having acted without authority and amount to trespass, is granted.
g. AN ORDER of Court directing the Defendants to deliver immediate possession of the property (including all the rooms and the keys thereat) to the plaintiff, is granted.
h. ACCOUNT of all monies collected by the Defendants from the property and immediate payment of same to the plaintiff, is refused.
i. A PERPETUAL INJUNCTION restraining the Defendants by themselves, servants, agent, privies or otherwise howsoever from trespassing on the property or otherwise interfering with the plaintiff?s rights in the property, is granted.
j. N5m (Five Million Naira) jointly and severally against the 3rd to 5th Defendants for trespass to the property and for acts prejudicial to the interest of the plaintiff in the property, is refused.

Costs of N100,00.00 is awarded to the appellant against the respondents jointly and severally.

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Other Citations: (2016)LCN/8899(CA)