Felix Udegbunam V. Hon. Justice Edmund Uzodike & Ors (2016)
LawGlobal-Hub Lead Judgment Report
RITA NOSAKHARE PEMU, J.C.A.
The Suit the subject matter of this Appeal, was instituted by Originating Summons and claim by the appellant (Plaintiff in the Court below) and filed on the 26th of May 1994 ? Pages 1 ? 5 of the Record of Appeal.
After considering same, on the 18th of July 1995, the lower Court delivered its Judgment, dismissing the Suit and refusing the Plaintiffs claim for forfeiture ? Pages 38 ? 45 of the Record of appeal.
The Appellant, dissatisfied with the Judgment of the lower Court, and pursuant to the Practice Directions of this Honourable Court, filed a Notice of Appeal on the 1st of September 1995 encapsulating seven (7) Grounds of Appeal ? Pages 46 ? 50 of the Record of Appeal.
In a process filed on the 29th of September 2014, the Appellant notified the Court and the advance party of the death of all the 1st set of Respondents.
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Even though the appellant alleged that they filed no process in Court, it is apparent that they were never substituted, but they however, from the records, filed a brief of Argument on the 13th April
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2012.
FACTS OF THE CASE
The Appellant and the Respondent Adeline Udegbunam, had become beneficiaries of the Will and last testament of the deceased SILVANUS ABABIELO UDEGBUNAM, as eldest son and second wife respectively. The said Will was made on the 26th of October 1976. ? Page 6 of the Record of Appeal.
The Appellant prayed the Court below for construction of certain portions of the said Will, indeed Paragraph 4 of the last Will and Testament of his father, the testator, as it affects the Respondent.
The said portion of the Will, in its paragraph 4 had this to say ?
?,,,,,,,,, my house compound, poultry and incubator and poultry houses excluding the one adjoining the house occupied by Adeline Udegbunam except that grown up chicks will be shared equally among Felix, Nwabuko and Ifeakandu?.
Specifically the Appellant had sought a determination of the following questions:
(a) From a proper construction of the Will, Exhibit ?A? in this matter, is Adeline Udegbunam 2nd set of Respondent a beneficiary under the said Will or put differently, from a proper construction of the said will, was
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any property denied or bequeathed to Adeline Udegbunam?
(b) If the answer to the above question is in the affirmative, does a testator have the power capacity or right to Will or divide the compound between the first son and any other person?
(c) If the answer to the same question is in the negative, what is the nature of the interest of the said Adeline Udegbunam in the house/compound of the Late Sylvanus Abasielo Udegbunam vis-avis the Plaintiff? A tenant at the will of the Plaintiff? A mere life interest?
(d) Does the phrase ? poultry houses, excluding the one adjoining the house occupied by Adeline Udegbunam mean two or one poultry house?
The Appellant claimed a relief in forfeiture against the 2nd set of Respondents at the lower Court, who filed a Counter affidavit opposing the originating Summons. – Pages 8 ? 11 of the Record of Appeal.
The Appellant filed his brief of argument on the 5th of March 2012. It is settled by B.S. Nwankwo Esq.
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The Respondent (originally referred to as 2nd Set of Respondent) Adeline Udegbunam filed an amended Respondent?s brief of Argument pursuant to an order of Court on the 16th
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of June 2015. It is settled by Chief G. Oseloka Osuigwe.
The Appellant filed a reply on point of law on the 7th of May 2012.
On the 21st of March 2016, the parties adopted their respective briefs of argument.
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The Appellant, in his brief of argument, distilled four (4) issues for determination. They are ?
(a) ?WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN PROCEEDING TO JUDGMENT WITHOUT TAKING ORAL EVIDENCE TO RESOLVE MATERIAL CONFLICTS IN THE AFFIDAVITS OF THE PARTIES ON FUNDAMENTAL AND CRUCIAL ISSUES?
(b) WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT IN HIS CONCLUSION THAT THE POULTRY HOUSE ADJOINING THE HOUSE OCCUPIED BY ADELINE UDEGBUNAM AND THE HOUSE OCCUPIED BY ADELINE UDEGBUNAM WERE BY THE COMBINED OPERATION OF THE WORDS OF THE WILL AND THE NNEWI CUSTOMARY LAW AS DISCLOSED IN THE AFFIDAVIT EVIDENCE DEVISED TO ADELINE UDEGBUNAM WHICH HER LAST SON COULD INHERIT.
(c) WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT IN HOLDING THAT THE TESTATOR HAD TWO COMPOUNDS.
(d) WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT TO RELY ON AFFIDAVIT EVIDENCE AND NNEWI NATIVE LAW AND CUSTOM IN DETERMINING THE ISSUES OF LAW RAISED IN THE
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ORIGINATING SUMMONS.
The Respondent proffered two (2) issues for determination and they are ?
1) ?WHETHER THE AFFIDAVITS FILED IN THE SUIT WERE IRRECONCILABLY IN CONFLICT TO REQUIRE ORAL EVIDENCE.
2) WHETHER THE LEARNED TRIAL JUDGE CORRECTLY CONSTRUED THE SAID WILL.?.
In arguing his issues, the Appellant argued Issues 1, 3 and 4 together, and argued Issue No 2 separately.
ISSUES 1, 3 AND 4
The plank of the Appellant?s contention is that the 2nd (Defendant Respondent in this Appeal) is not entitled to what was given to her in the Will of the Late husband, as the compound where the deceased lived, includes the part apportioned to the Respondent.
That according to the Nnewichi Custom of succession and inheritance all over Igbo land, the compound of a father is not divisible between the first son and any other person.
He deposed in Paragraph 9 of his affidavit in support of the originating summons thus ?
?That the First Son of the 2nd set of Defendant Nwabuko has built a house on one of the lands denied the him, he rented out and himself and all his younger ones are still living with
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their mother in the SAME COMPOUND OF TWO HOUSES HE making thins difficult for me?
On the part of the Respondent, she countered Paragraph 9 of the affidavit in support of the originating summons in her Paragraphs 10, 20, 21 and Paragraphs 3, 4, 5, 6, 7, 8 of the Further Counter affidavit. The plank of her argument is that where a man has more than one wife, according to the Nnewichi custom, and has no other land outside his compound, and has many children, both male and female, all his children and their mothers would continue to live in his compound unless any of the male children acquire land elsewhere, and unless any of his female children gets married. She denied that her son built a house in the compound, as he is still at school.
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She deposed to the fact, in her reply to Paragraph 8 of the claim that from a proper construction of her late husband?s Will, he is a beneficiary under the Will as Paragraph 3 recognized her, as the occupier of the three roomed bungalow, in which she has been living with all her children, since his late husband?s life time. That the bungalow was built for her by her late husband himself, who
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demarcated it from his main house with a wall fence, which is still there up till today.
That alternatively, her two rooms would be understood under Nnewi Native Law and custom as his ?NKPUKE?, (which will not be construed as part of her late husband?s OBI house) to which the Plaintiff/Respondent is exclusively entitled to.
The Appellants have submitted that there were so many fundamental contradictions in the affidavit evidence of the parties before the lower Court, who would have requested for oral evidence to resolve these issues, but he did not. They submit that the learned trial Judge had no discretion in the matter at all.
ISSUE NO 2:
It is the contention of the Appellant in arguing this issue, that Rule 2 of the Fourth Schedule to the Administration and Succession (Estate of Deceased Persons) Law Cap 4, Laws of Anambra State 1986, by its provisions, talks about the meaning of the ascertainment of any clause in a will. It provides ?
?The meaning of any clause in a will is to be ascertained from the entire instrument, and all the provisions of such Will are to be construed with reference to each
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other, but where two clauses or provisions are irreconcilable, so that they cannot pointedly stand together, the last shall ?prevail?.
He argues that the phrase HOUSE COMPOUND cannot possibly stand together, but the word ?COMPOUND? has to prevail. To that extent, the Appellant is entitled to the entire compound of his late father.
That the Testator clearly identified the circle of inheritors at Paragraph 2 of his Will when he said ?
?I make this Will in order to avoid trouble for my sons namely: Felix Udegbunam, Nwabuko Udegbunam and Ifeakandu Udegbunam.”
He submits that apart from these three sons of the deceased, no other person benefited from his Will. That no devise was made at all to Adeline Udegbunam by the Testator. That if he had intended to devise any property to her, he would have said so expressly.
He submits that judicial construction of Will is not an acceptable mode of redistribution of assets of a Testator.
RESOLUTION OF ISSUES
ISSUES 1, 3 AND 4
A cursory look at the respective issues for determination of the parties, it seems to me that they portend
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the same questions. I shall consider this appeal with the understanding that the issues proffered by the Respondent is essentially an adoption of the issues proffered by the Appellant.
It is a common Rule of law, that the object of all construction of the terms of a written agreement, is to discover there from the intention of the parties to the agreement.
The Rules which govern the Construction of contracts are the same at law and in equity. ? RE TERRY & WHITES CONTRACT 1886. 32 CHD. 14 @ 21. This applies to simple contracts and to specialities, of which I dare add, – the construction of Wills.
In the Construction of Wills of deceased persons, the Courts duty, and indeed their concern, is to give effect to the intention and wish of the deceased testator. It therefore becomes imperative on the Courts to adopt the golden rule, by giving the words used in the Will its literal and ordinary meaning.
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The law is trite that a party would not be allowed to import, or impute anything into the terms of a document. Therefore, where the letters of a document are plain and unambiguous, the Court is duty bound to give effect to it, by
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giving it, its plain and ordinary meaning.
Paragraph 2 of the last Will and Testament of the deceased ? Silvanus Abasielo Udegbunam, made on the 26th of October 1976 has this to say ?
?I make this will in order to avoid trouble for my sons namely, Felix Udegbunam, Nwabuko Udegbunam, and Ifeakandu Udegbunam.
I bequeath and or devise to my son Felix Udegbunam Plot 3, Arch Bishop Heery Street Onitsha, my house compound, poultry and incubator and poultry houses excluding the one adjoining the house occupied by Adeline Udegbunam except that grown up chicks will be shared equally among Felix, Nwabuko and Ifeakandu?. (underlining mine)
? Page 6 of the Record of Appeal.
There was clearly an EXCEPTION clause in this paragraph of the Will. In paragraphs 5, 6 and 7 of the affidavit in support of the Originating Summons the Appellant had deposed thus ?
PARAGRAPH 5 ?That I am the first son of my late father.
PARAGRAPH 6 ?That the 2nd set of Defendant Adeline Udegbunam was my father?s Last wife who begat Nwabuko and Ifeakandu.
PARAGRAPH 7 ?That there is a building
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of three rooms the said Adeline Udegbunam has been living in which has some other conveniences near same and there is one poultry house near same and another poultry actually adjoining it all at Nnewichi Nnewi?.
? Page 4 of the Record of Appeal.
Above are words from the lips of the Appellant.
In Paragraph 13 of the Counter affidavit filed by the Respondent on the 15th of July 1994, she deposed thus ?
?That for the reasons contained in paragraph 12 above my said late husband partitioned off one third of his entire compound and erected a 3 bedroom house for me and my children on it, with separate toilets, with adjoining poultry houses.”
The parties are therefore agreed by their respective affidavit evidence that the Respondent lived in part of the compound of the deceased with her children Nwabuko and Ifeakandu, whose names are clearly reflected in the last will and testament of the deceased Silvanus Abasielo Udegbunam, as his sons.
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The Appellant has frowned at the failure of the learned trial Judge, to take oral evidence in view of the conflicting facts in the respective affidavit of the
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parties.
It is my humble view that the gravemen of this appeal is whether the Respondent was bequeathed part of the compound of the deceased.
In this regard, the affidavit evidence of the respective parties are not conflicting, and seem to support this fact.
Therefore the trial Judge was not obligated to adduce oral evidence.
Decidedly, where respective affidavit evidence reveal no serious contradictions, to be resolved by oral evidence, the case of FALOBI V FALOBI cited by the Appellant is of no moment, and will not apply.
In A-G. ADAMAWA STATE & ORS V A-G. FEDERATION & ORS (2005) 12 SC (Pt 11) 133 @ 150, it was held that where the proceedings relate to construction of the effect and validity of a statute by Originating Summons, the narrow areas of conflict in the affidavits were considered unnecessary for resolution by calling oral evidence.
In the present appeal, there is no area of conflict in the affidavit evidence of the parties, as the Appellant agreed that the Respondent lived in the adjoining apartment to the testator?s compound with her children in his lifetime. That suffices. The Appellant has also not
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denied that the Respondent was his father?s wife in his lifetime. The Appellant did not say that the deceased took the adjoining apartment where the Respondent lived with her children from the Respondent.
Moreso, the law is trite that in a written document, nothing should be imported by way of oral evidence, to alter and change the character of the document.
I deem it pertinent to go back to the express provisions as put down in the WILL in question. And a painstaking perusal of Paragraph 2 therein, show clearly that the testator though bequeathed his ?house compound, to Felix Udegbunam, his eldest son, that bequest excluded the part of the compound adjoining the house occupied by Adeline Udegbunam. There is evidence by both parties in their respective affidavit evidence that Adeline Udegbunam had her own separate apartment in the said compound.
Even though the learned trial Judge alluded to the Nnewi Customary Law, it is my view that the provisions of the Will ALONE bequeathed part of that compound to Adeline, who had always lived there with her children.
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The learned trial Judge was therefore right in holding so, and indeed its
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reference to the Nnewi Customary Law was superfluous.
It is not that the testator had two compounds, but he had a compound within his house compound which housed Adeline Udegbunam, and the testator was careful in my view, in the wording of his WILL.
Decidedly, when constructing a Will, in which the testator?s intention is clearly indicated on how his property must be shared, the Court has no business entertaining argument regarding the issue of Native Law and Custom, as this would defeat the very intent and purpose of the Testators wish in his WILL.
The learned trial Judge only observed regarding the issue of customary law of Nnewi thus:-
?It will follow from this that the issue of customary law of Nnewi cannot be ruled out altogether but it cannot be interpreted or applied to defeat specific and clear denies made in the Will.”
As in this case, there was a clear and specific devise made regarding the property of the testator, when the Court observed that ?
?From the expression in the will, it seems to me, clear that the testator recognized the fact that his wife Adeline occupied a house
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and but there is a poultry house adjoining that house?.
Pg. 44 of the Record of Appeal.
He was right. Not only did Adeline occupy a house, but the house was adjoining to the so called ?HOUSE COMPOUND?. This, as rightly observed by the trial Court, meant that there was more than one house in that compound of Silvanus Abasielo Udegbunam.
In RE FREEMAN, HOPE VS FREEMAN (1910) 1 CH. 681 @ 691 it was held inter alia, that in determining what the intention of the testator is as disclosed in the Will, and how can effect be given to that intention, the Court must ascertain the language of the Will, read the words used and ascertain the intention of the testator from them.
And in ascertaining the intention the Court is bound to ask itself the following questions:-
a) ?What words has the testator used to express the intention.
b) What is the meaning of such words in relation to the person and things described (i.e.), who are the specific persons to be identified as the subjects of disposition.
c) What is the meaning of the words in relation to the disposition of the property among the
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donees.”
The learned trial Judge aptly applied the above principles, in the determination of this case.
Let me reiterate again that in Paragraph 7 of the supporting affidavit to the Originating Summons, the Appellant had deposed to the fact ?
?That there is a building of three rooms, the said Adeline Udegbunam has been living in which has some other conveniences near same and there is one poultry house near same and another poultry actually adjoining it all at Nnewich Nnewi.”
In Paragraphs 12 and 13 of the Respondent?s counter affidavit, filed on the 15th of July 1994, she had this to say ?
PARAGRAPH 12 ?That as regards Paragraph 7 of the affidavit of Felix Udegbunam I admit that in his lifetime, my Late husband Silvanus Agbasielo Udegbunam considered that his main house in which he and His first wife Mrs Rosaline Udegbunam had been living before he married me in 1966 could not conveniently accommodate me and my children Without feelings of rancour from his said first wife?.
PARAGRAPH 13 ?That for the reasons contained in Paragraph 12 above my said late husband
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partitioned off One third of his entire compound and erected a 3 bedroom house for me and my children on it, with separate toilets, with adjoining poultry houses.”
Notably is that the Appellant filed no reply to these depositions. The facts therein are therefore deemed admitted by the Appellant HOMKA SAWMILL V HOFF (1994) 2 SCNJ 8 @ 96 ? 105; UNIBIZ LTD V CBL NIG LTD (2005) 14 NWLR (PT 944) 47; ATT. GEN. PLATEAU STATE V ATT.GEN NASSARAWA STATE (2005) ALL FWLR PT 266 1227. AJOMALE V YANUAT N0 2 (1991) 5 NWLR (PT 191) 257. At 282 -283; ALAGBE V ABIMBOLA (19780 2 SC 39 @ 40; H.S. ENG. LTD V S.A. YAKUBU NIG LTD (2009) 10 NWLR (Pt 1149) 416 A-G ONDO STATE V. A-G EKITI STATE (2001) FWLR (PT 29) 1431.
In MCI VS THAN BALASINGHAM (2006) F.C.A. 14, The Canadian Federal Court of Appeal held that ?
?An equitable remedy is only available to an Applicant who has not committed an inequity.”
The Appellant is in essence seeking an equitable remedy. But can he be said not to have committed an inequity by his conduct? I think not. He is the eldest son to the deceased. The Respondent was the deceased wife and begat children for
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him to the knowledge of the Appellant. They all lived together in separate apartments in the same compound, to the knowledge of the appellant. Adeline Udegbunam (the Respondent) remained in that three bedroom flat with her children as at the time of the death of the deceased, to the knowledge of the Appellant.
Why would the Appellant now want to change the provisions in the WILL and LAST TESTAMENT of his late father, as it affects the Respondent and his children? That would amount to INEQUITY and the law frowns at that. Why would the Appellant want to discard his father?s wife as a piece of furniture after his death? This amounts to inequity.
I am of the view that these three issues are ones which shall be resolved in favour of the Respondent and against the Appellant, and they are hereby so resolved.
ISSUE NO 2
The expression of a Judge in a Judgment must be taken, with reference to the facts of the case which he is deciding, the issues calling for decision and the answers to these issues.
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It was not the intention of the learned trial Judge to interpret the provisions of Rule 2 of the Fourth Schedule to the Administration
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and Succession (Estate of Decease Persons) Law, Cap, 4, Laws of Anambra State 1986. In my view he only referred to it as a guide.
For the Appellant to construe the term ?HOUSE COMPOUND? as two separate meaning, not standing together is highly misconceived and I so hold. Therefore the provisions of Rule 2 of the Fourth Schedule to the Administration and Succession (Estate of Deceased Persons) Law, cannot apply to the instant Appeal.
For purposes of elucidation, the provisions of the said Rule 2 is that ?
?The meaning of any clause in a will is to be ascertained from the entire instrument, and all the provisions of such Will are to be constructed with reference to each other, but where two clause or provisions are irreconcilably, so that they cannot possibly stand together, the last shall ?prevail.”
Section 165 of the Cap 4 stipulates that wills shall be construed in accordance with the Rules set out in the Fourth Schedule.
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There is nothing in the Will and last testament of the testator that suggests two or more clauses or provisions that are irreconcilable. Nothing. The provisions of the WILL,
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in my humble view are clear, direct and comprehensible.
The submission by the Appellant that the only inheritance to the Will are Felix Udegbunam, Nwabuko Udegbunam and Ifeakandu Udegbunam is utterly misconceived. When the Testator excluded the house adjoining the house occupied by Adeline Udegbunam, it was clear that that adjoining house occupied by Adeline Udegbunam did not form part of the ?house compound? of the deceased. The bungalow had separate conveniences and was walled off.
The learned trial Judge, rightly in my view was right to have held as he did in answering the questions for determination, in his Judgment which questions were proffered by the parties in the Court below.
This issue No 2 is resolved in favour of the Respondent and against the Appellant.
The Appellant claimed for Forfeiture against the Respondent.
It is apparent that the Appellant made no submissions in support of his claim for forfeiture, neither did he allude to it in his reply brief. The presumption is that he has abandoned same.
The Result is that the Appeal fails and same is hereby dismissed.
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The Judgment of Hon. Justice
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G.U. Ononiba delivered on the 18th of July 1995 in Suit No. HN/100/94 at the High Court of Anambra State, Nnewi Judicial Division is hereby affirmed, with N50,000 costs in favour of the Respondent.
Other Citations: (2016)LCN/8625(CA)
