Emmanuel Ezenwosu V. Vitus Nwafor Okeke Agbasi (2003)

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JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment of Keazor, J., while sitting at the High Court of Justice, Ekwulobia in Anambra State of Nigeria on 25th February, 2000. The claim of the Appellant was dismissed.

On page 4 of the transcript record of appeal, the Appellant herein, as plaintiff at the lower Court claimed against the Respondent herein and Defendant thereat, his agents, servants and privies as follows:
“(a) A Declaration that the Documents dated 5th January, 1992 purporting same to be the last Will and Testament of the late Ezeobi Ezenwosu of Okeani Village, Oko is void, ineffective and illegal.
(b) A Declaration that all the devise or gifts of land to the Defendant by the said late Testator (Ezeobi Ezenwosu) are invalid, void and of no effect as the said Testator has not the testamentary capacity to make the said gifts or devises.
(c) A Declaration that the Defendant being a maternal grandson in the Ezenwosu family is not competent to inherit or have by way of testamentary disposition of any Lands in Ezenwosu family of Ikeani Village, Oko.
(d) A Declaration that the lands the subject-matter of the Will being the family lands of Ezenwosu family cannot be a valid object of testamentary disposition.
(e) A Perpetual Injunction restraining the Defendant, agents, servants and privies from ever taking, holding or taking possession of the said lands by virtue of the said Will.”

It should be noted at this point that late Ezeobi Ezenwosu, Appellant’s paternal uncle made a Will and Testament, Exhibit ‘A’, in respect of the landed property, subject matter of the suit at the trial Court. Late Ezeobi bequeathed, the landed property to the Respondent, a maternal grandson of Ezenwosu. The Appellant desired to invalidate the said Will. He alleged that the landed property constitute and continue to remain property of Umuezegenyi family of Okeani in Oko since Late Ezeobi died childless.

The Appellant maintained that late Ezeobi had no right or capacity under Oko Customary Law to bequeath the said landed property to the Respondent. The serious issues for contention are contained in paragraph 20 of the Statement of Claim.

It reads as follows:
“20. The Plaintiff shall contend at the trial that:
(a) Ezeobi Ezenwosu has no testamentary capacity at the time he purportedly made the said Will having been bedridden for years.
(b) The said Ezeobi Ezenwosu has no right or capacity to devise to the Defendant the said family lands.
(c) The said Ezeobi Ezenwosu having led a childless and miserable life full of tragic losses of his over seven wives in his last years on earth, was generally a mentally incapacitated person or mildly put frustrated to the point of delirium and the Defendant exploited the said situation to concoct the said Will which is hereby pleaded.”

The Respondent denied the case of the Appellant as set out in his pleadings. The Respondent maintained that the landed properties, the subject matter of the last Will and Testament of Late Ezeobi formed part of the properties enjoyed exclusively by the said Ezeobi during his life time as same was granted him inter-vivos by his father-Ezenwosu in accordance with Oko Native Law and Custom. As beneficial owner, he bequeathed same to the Respondent under his last Will as he was entitled to do in accordance with Oko Native Law and Custom. He maintained that the land devised to him was not communal property of the Appellant’s family.

The learned trial Judge garnered evidence adduced by the parties and their witnesses. After an appraisal of same, he found that the ‘land given to Ezeobi inter vivos became his absolutely and he would dispose of it inter vivos or by Will.’ He also found that the testator, late Ezeobi was of full testamentary capacity and dismissed Appellant’s claim after concluding that the same failed.

The Appellant was not happy with the stance posed by the learned trial Judge. He has appealed to this Court. Incidentally, the learned trial Judge wrote the judgment 17 months after completion of address as he was transferred out of Ekwuiobia Judicial Division of the High Court of Anambra State. Appellant’s counsel applied to the Chief Judge of Anambra State for the grant of an assignment order to enable the trial Judge deliver his judgment.

The application was approved and the assignment order was granted. The judgment was written and delivered on 25-2-2000. Appellant has made out a Constitutional issue relating to the validity of the judgment delivered after nearly 17 months from conclusion of evidence and final addresses by counsel.

On page 3 of Appellant’s Brief of Argument, five issues were couched for the determination of this appeal. They read as follows:
“1. Whether the judgment of the learned trial Judge was constitutional and valid in this matter having been delivered after nearly two years from the conclusion of evidence and addresses of counsel on both sides and whether same occasioned a miscarriage of justice.
2. Whether from the state of the pleadings in this matter the learned trial Judge was justified in his conclusion that the issue of the Will being invalid on account of non-execution was not an issue in the pleadings.
3. Whether the learned trial Judge was right in not holding that the issue of the invalidity of the Will was admitted in this matter having regard to the state of pleadings.
4. Whether the learned trial Judge was correct in holding that the lands in question were family lands and yet same could be devised in a Will or inter-vivos.
5. Whether the learned trial Judge was correct in holding that the Testator had the requisite testamentary capacity to make the Will.”

On behalf of the Respondent, two issues have been concisely formulated for the adequate consideration of this appeal. They read as follows:
“i. Whether the learned trial Court properly evaluated the case of the parties as formulated in the pleadings and evidence led at the trial.
ii. Whether the judgment of the Lower Court dated 25-2-2000 is unconstitutional and therefore a nullity.”

At this point, it is apt to deal with the 1st issue formulated on behalf of the Appellant. It has the same tenor as the Respondent’s 2nd issue. Briefly put, it is whether the Lower Court’s judgment dated and delivered on 25:2:2000 is unconstitutional and therefore a nullity. It is of moment to resolve this issue at this point in time.

In determining the issue, section 294(1) (5) (6) of the Constitution of the Federal Republic of Nigeria, 1999, the Organic Law or ground-norm provides the guiding factors. It provides as follows:
“294(1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of delivery thereof.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.”

As it is manifest in the transcript record of appeal, the Defendant/Respondent closed his case on 18-5-98. On 23-7-98, learned counsel for the Defendant/Respondent, E. E. Umejiaku ESq., commenced his address. He was not allowed to go far before the trial Judge ordered that written addresses be filed. He adjourned the matter to 16:9:98 for judgment and directed that written addresses should reach him before vacation. On 16:9:98, both counsel for the parties indicated that they had submitted their addresses. The trial Judge then adjourned the matter to 30-10-98. Within the interim, the trial Judge-was transferred out of Ekwulobia Judicial Division of the High Court of Anambra State. Sequel-to an application by Appellant’s counsel, the Hon.Chief Judge of the State granted an assignment order to the trial Judge to deliver his judgment. The judgment was delivered on 25:2:2000 which is a little over 17 months from 16:9:98.

I need to state it clearly here that is it immaterial that it was the Appellant’s counsel who prompted the writing and delivery of the stale judgment as handed out by the trial Judge on 25:2:2000. The vital question is whether he thereby suffered a miscarriage of justice, such that would render the judgment unconstitutional and, afortiori, a nullity.

Appellant’s counsel observed that within the long period between the filing of written address – 16-9-98 and 25:2:2000 when judgment was delivered, the learned trial Judge undoubtedly had lost the impression the witnesses made in his mind.

I must say that after considering the appraisal of evidence by the learned trial Judge, the long span of time between final addresses and delivery of judgment hampered or blurred his performance. I need to pin-point some salient examples. At page 53 lines 24-26 of the record of appeal, the learned trial Judge appraised evidence thus:
“Evidence that the land was family land and cannot be devised by Will came from the Plaintiff’s witnesses”.

And down on the same page 53 lines 38-40, the learned trial Judge stated as follows:
“Evidence that the land in dispute in this case remained family land and cannot be disposed of inter-vivos or by Will came from the Defendant and his witnesses”.

The above evidence credited to the Defendant and his witnesses is wrong. Such evidence came from the Plaintiff and his witnesses. The learned trial Judge, after appraising the evidence of D.W.2, concluded thus at page 54 lines 9-12:
“I fell (sic) able to accept and rely on this evidence that other land given to Ezeobi inter vivos became his absolutely and he would dispose of it inter vivos or by Will”. (Underlined by me).

I must note it that the learned trial Judge referred to ‘other land’ given to Ezeobi inter-vivos. I am unable to surmise with adequate precision what he means by ‘other land’. This is because the Appellant’s claim relates to parcels ‘A’, Ezeobi’s homestead and it’s surroundings and ‘B’ farmland where family members allegedly farm as in Exhibit ‘B’ – Appellant’s plan. Which one of the two is the ‘other land’? What about the land separate from the ‘other land’? The learned trial Judge goofed as he did not pronounce on same. It is difficult for me to settle same. The confusion in the mind of the trial Judge did not stop here. After saying that the ‘other land’ given to Ezeobi inter-vivos became his absolutely and he could dispose of it inter-vivos or by Will, he concluded his judgment at page 55 lines 41-42 that:
“The land in dispute is family land but could be disposed of by Will or intervivos.”

The above scenario clearly shows that the learned trial Judge was not in firm grasp of the evidence garnered by him. If the ‘other land’ was granted to Ezeobi by his father, it became his absolutely and he could dispose of same inter-vivos or by Will. But if the land in dispute is family land, he cannot dispose of same by Will or inter-vivos. Refer to Johnson & Ors. v. Macaulay (1961) 1 All NLR (Pt.iv) 743, Ogunmefun v. Ogunmefun 10 NLR 82.

I have no hesitation in saying that the above confusion arose as the judgment was no doubt, stale. Clearly, the appellant thereby suffered a substantial miscarriage of justice.

There is yet another point relating to proper execution of the Will – Exhibit ‘A’. The learned trial Judge failed to consider the point as he maintained that the issue was not raised in the pleadings. Such a stance was based on a shifting sand as a clear view of paragraph 19 of the statement of claim pleaded that the Will was an invalid testament, surreptitiously procured by the Defendant/Respondent.

The onus probandi lied on the Respondent to satisfy the conscience of the court that all was well with the Will in respect of the testamentary capacity of the testator and due execution of same. Refer to Johnson & Anor. v. Maja 13 WACA 290 at 291-292, Okelola v. Boyle (1998) 2 NWLR (Pt.539) 533 at 558; Adebajo v. Adebajo (1973) 1 All NLR 361 at 377. The evidence by the Respondent must first be considered. It is only thereafter that the onus will shift to the challenger of the Will to wit-Appellant herein to substantiate his allegations. The learned trial Judge appeared to have taken his steps in the reverse. Again, this certainly precipitated miscarriage of justice to the Appellant herein.

In Nnajifor & Ors. v.Ukonu & Ors. (1985) All NLR 334 at 345, Uwais, JSC, as he then was cautioned that in this type of situation, one has to scrutinise the judgment in order to discover what deleterious effect, if any, the long adjournment had on the judgment of the trial Court. In a similar situation as the one in hand in Ariori & Ors. v. Elemo & Ors. (1983) 1 SC. 13 at 97, Aniagolu, JSC pronounced thus:
“The contents of the judgment have shown that the long adjournment and the consequent delay beclouded his mind in the recollection and appreciation of the facts and issues in the case resulting in his judgment not being a fair assessment and fair hearing which litigants were entitled to, the consequences being the accessioning of injustice to at least one of the parties.”

I agree completely with Appellant’s counsel that there is lack of fair hearing when the hearing is delayed so inordinately that the trial Judge, by sheer lapse of time, has forgotten the sequence of trial. Refer to Ihewuezi & Ors. v. Ekeanya & Ors. (1989) 1 NWLR (pt.96) 239.   Any judgment or judicial act performed in contravention of fundamental right to fair hearing is a nullity. See Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt.200) 659.

For the reasons adumbrated above, I allow the appeal. I have no hesitation in declaring the judgment delivered by the learned trial Judge on 25-2-2000 a nullity. I order accordingly; set same aside and direct that the matter be determined afresh by another Judge of Anambra State High Court of Justice. Each party should bear his own costs.

Other Citations: (2003)LCN/1403(CA)