TONY CHIBUEZE OKOLONWAMU & ANOR v. MRS. THERESA NKEM OKOLONWAMU & ORS (2014)

TONY CHIBUEZE OKOLONWAMU & ANOR v. MRS. THERESA NKEM OKOLONWAMU & ORS

(2014)LCN/6967(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of March, 2014

CA/B/113M/2007

RATIO

ON WHOM LIES THE BURDEN OF PROVING THE VALIDITY OF A WILL?

It is trite law that the burden of proving validity of a Will is on the propounder of the Will. Thus, the onus is on the party who propounds it to show clearly that prima facie, it was duly executed. This is otherwise called primary burden of proof. If this is discharged, the burden will shift to the other party challenging its proper execution (secondary burden of proof) to prove that the Will is not properly executed or that it is tainted with fraud or forgery. See Adamu v. Ikharo (1988) 4 NWLR (Pt. 89) Pg. 474, Egharevba v. Oruonghae (Supra), Ize-Iyamu v. Alonge (2008) WRN (Vol. 21) Pg. 103 at 110, Okoli v. First Bank (1986) 5 NWLR (Pt. 46) Pg. 1052.

The propounder must also prove testamentary capacity – that the document is the last Will of a free and capable testator. Once it has been proved that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under influence is on the party who alleges it. See Johnson v. Maja (1951) 13 WACA 920, Okelola v. Boyle (1998) 2 NWLR (Pt. 539) Pg. 533, Nsefik (Since Dead) v. Muna (2013) LPELR-21862 SC.

FAMILY LAW: CONSTITUENTS OF THE PROOF OF AN EXISTING CUSTOMARY MARRIAGE

It is trite that the most common feature of customary marriages in Nigeria is the payment of bride price and handling over of the bride to the groom. These are the least and basic requirements of any Nigerian customary marriage. Thus the proof of an existing customary marriage must contain the two. In this case, the appellants failed in proving the marriage between their late mother (Jane Nwafulugu) and the deceased. Per HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. TONY CHIBUEZE OKOLONWAMU
2. AUTHUR OKOLONWAMU Appellant(s)

AND

1. MRS. THERESA NKEM OKOLONWAMU
2. NGOZI ROSEMARY OKWUASABA
(Nee Okolonwamu)
3. UCHE OKOLONWAMU
4. IFEOMA OKOLONWAMU
5. OFILI OKOLONWAMU
6. NWABUIKE OKOLONWAMU
7. NONSO OKOLONWAMU
8. OKWUDILI OKOLONWAMU
9. ANTHONY IKEDIASHI
10. THEOPHILUS OKONKWO
11. PROBATE REGISTRAR Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of Hon. Justice Roseline P.I. Bozimo (Chief Judge) of the Delta State High Court delivered on the 31/10/2006. Below are the undisputed facts that led to this appeal:

The deceased, late Tony Nokwai Okolonwamu was a native of Asaba, Delta State. He got married to Mrs. Theresa Nkem Okolonwamu, the 1st respondent, under Asaba native law and custom on 16/04/1963 and later under the Marriage Act in the Holy Cathedral Church, Enugu on 19/07/1974. The deceased later left for United States of America in 1986. In 1998, the deceased underwent a heart surgery in America.

He made a Will on 9/9/1999 in New York County, in the United States of America. Peter Okwusiaba and Ike F. Onyia attested the Will. The deceased came to Nigeria in December 1999 for the traditional marriage ceremony of his daughter-2nd respondent and Peter Okwusiaba. He died in the United States of America on 26/01/2003.

The appellants are sons of late Mrs. Jane Nwafuludu who hailed from Ojoto Nwgugwu Village but they never knew the deceased as their father nor lived with him from birth. In 1985, the deceased in company of two of his friends took the appellants to his wife, and introduced them to her as his foster children, and the appellants started living with the Okolonwamu family. Later, the appellants changed their surnames from their mother’s maiden name to Okolonwamu.

The 2nd-8th respondents are children whom the 1st respondent bore for the deceased during the pendency of their over 35 years’ marriage and till death of the deceased. The 9th respondent is a cousin and the 10th respondent is a family friend of the Okolonwamus. The 11th respondent is the Probate Registrar of Delta state, a nominal party in the litigation.

The deceased, during his lifetime was an Ogbu title holder in Asaba. This title requires that upon the death of anyone holding it, it must be renounced before the holder is buried. The renunciation ceremony is customarily to be funded by the deceased’s eldest son who would also tie a white ribbon on the renunciation day and stand to do the rites. The Diokpa of Asaba testified at the trial Court that either the first son or any other person authorized by the Diokpa could tie the white ribbon.

In this case, the eldest son born by the 1st respondent for the deceased, Ofili Okolonwamu was writing his examinations in the United States of America and could not attend but he sent N200,000 which was used to purchase items for the ceremony. In the end, the 1st respondent, the 1st Appellant and the 3rd respondent, a female child of the deceased, tied the ribbon while 3rd respondent stood for the renunciation rites and the deceased was laid to rest.

After the burial of the deceased, the probate registrar wrote to the family and picked a date for the reading of the deceased’s will. The appellants and respondents were present at the reading of the deceased’s will.

Dissatisfied with the contents of the will, the appellants filed a writ of summons on 02/05/2003 before the High Court of Delta State and sought the following reliefs:

1. A declaration that the document dated 9/9/99 purporting and or pretending to be the Will of Tony Nokwai Okolonwamu (deceased) who died on the 26th of January, 2003 at New York, United States of America is null and void for not being the act of the deceased as well as for non-compliance with the relevant statutory requirements relating to WILLS.
2. A declaration that in accordance with Asaba Customary Law of succession, the 1st Plaintiff as the eldest son of the deceased succeeds to the house/property lying and situate at No.14 Nda Street and known as (Mrs. Ndumma Okolo’s House) in Umuda Umuaji Quarters, Asaba.
3. A declaration that the Plaintiffs are entitled to a grant of letter of administration of the estate of Tony Nokwai Okolonwamu (deceased).
4. An order of perpetual injunction restraining the defendants from executing the purported Will of Tony Nokwai Okolonwamu the subject matter of this suit or and ministering, expending any monies or disposing of or dealing in any way with the deceased’s Estate or any part thereof willingly and monies in Accounts or shares of the deceased.
5. A declaration that the Power of Attorney made by the deceased Tony Nokwai Okolonwamu to any of the defendants is null and void and that the Real and Personal Estates devised bequeathed or disposed of thereto are contrary to the Asaba Customary Law.
6. An order compelling the defendants to restore to the said Estate any part thereof unlawfully disposed of or dealt with by them.
7. Any other reliefs.

The respondents counter-claimed as follows:

1. A declaration that the WILL dated 9/9/99 is the valid and subsisting Last WILL of Tony Nokwai Okolonwamu who died on the 26th day of January, 2003.
2. A declaration that the last WILL Testament of Tony Nokwai Okolonwamu was duly and personally delivered at the probate Registry of the Delta State in accordance with the relevant law.
3. A declaration that the Plaintiffs are not entitled to the grant of letters of Administration in respect of the testate Estate of late Tony Nokwai Okolonwamu.
4. An order of perpetual injunction restraining the plaintiffs, their agents, privies, surrogates or any body or person acting for them or on their behalf in any manner whatsoever from doing or causing to be done anything inconsistent with the last WILL/Testament dated 9/9/99 or any part thereof of late Tony Nokwai Okolonwamu.

Ordinarily in civil suits, the plaintiff opens its case first but in this case since the plaintiffs now appellants were the challengers of the will and the defendants now respondents were the propounders, by a counter-claim, the trial court on authority of Egharevba v. Oruonghae (2002) FWLR (Pt. 121) Pg. 1945 at 1964 allowed the defendants now respondents to open their case first.

The Respondents called four witnesses who were while the Appellants called five witnesses. The respondents witnesses were:

DW1 – The Probate Registrar, Probate Department, High Court of Justice, Asaba.
DW2 – Rev. Apostle Francis Bialose Nwamu, the Diokpa (Head) of Nwamu Family and Umuda Village, Asaba.
DW3 – Godwin Aworu, Mortician at Maduemezie Medical Centre, Asaba.
DW4 – Chief Godfrey Ngozi Konwea, the Onoi of Asaba.

The Plaintiffs/Appellants on the other hand, called five witnesses thus:

PW1 – Paul Ejima Okogba, a motor mechanic and purported friend of the deceased.
PW2 – Obi Patrick Okoye, a red cap Chief of Asaba.
PW3 – Christina Ugwu, sister to the deceased.
PW4 – Mrs. T. O. Uloho, Director of Civil Litigation, Delta State Ministry of Justice, Asaba.
PWs – Barrister Micheal Ofodu Okolonwamu

Hon. Justice Rosaline P.I Bozimo [Mrs.], in a well-considered judgment dismissed the Appellants’ claim in its entirety and upheld the Respondents’ counterclaim.

Aggrieved, the appellants filed a notice of appeal on 8/11/2006. The appellants’ brief was filed on 26/01/2010. The 1st-10th respondents filed their brief on 23/04/2010 while the 11th respondent filed its brief on 5/06/2013.

The appellants in the brief settled by Ike Odionu Esq. raised four issues for determination. The issues were adopted by the 1st-11th respondents. I must mention that the 11th Respondent supported and adopted the arguments as canvassed by the 1st-10th Respondents and added nothing useful to the arguments. I will also adopt the issues adopted by all the parties in the determination of this appeal but will rearrange them as follows:

(1) Whether the 1st-10th respondents, who are the propounders of the will succeeded in proving the validity of the will and that the deceased Tony Nokwai Okolonwarnu at the time of making the purported will had testamentary capacity.
(2) Whether the will of the (deceased) Tony Nokwai Okolonwamu ran contrary to the customary succession law of the Asaba people.
(3) Whether the gift made under the said will to the 2nd Respondent whose husband witnessed the will was valid.
(4) Whether the appellants succeeded in establishing that he is the first/eldest son of the (deceased) Tony Nokwai Okolonwamu though his mother lawfully married to the deceased and thereby making him solely entitled to the property known as No. 14 Uda Street (also known as Ndumi Obi Okolo’s House) Umuda Umuaji Quarters, Asaba.

ISSUE 1

Whether the 1st-10th respondents, who are the propounders of the will succeeded in proving the validity of the will and that the deceased Tony Nokwai Okolonwamu at the time of making the purported will had testamentary capacity.

Counsel for the appellants argued that the contents of the Will, Exhibit A, pointed to the fact that the deceased lacked mental capacity. Counsel argued that an example of the mental incapacity of the deceased at the time of making the will was the fact that the deceased devised No.14 Uda Street, Asaba to his mother, Mrs. Josephine Obiokolo for life knowing full well that the said property was built by the deceased’s father for his mother. Counsel submitted that given the fact that the deceased’s mother died on 23/01/2003 and the Will was made in 1999, the deceased was not entitled to the said property.

Counsel in reference to the evidence of PW3 on oath, posited that the deceased was behaving like a mad man after his surgery in the United States of America.

Counsel also referred to clause 4(F) of the Will and stated that the accused allotting shares to 1st respondent after he had earlier given the shares inter vivos to the 1st respondent also depict the mental incapacity of the deceased. Learned counsel in trying to establish that the Will was made under suspicious circumstances argued that the 1st respondent who was in constant communications via phone and letters imply that the 1st respondent had undue influence on the deceased. Counsel submitted that influence or suspicious circumstances vitiate a will and cited Wintle v. Nye (1959) 1 All ER 552, Hail v. Hall (1868) LRI P & D 421, Parfitt v. Lawless (1882) LP & D 421.

Ike Odionu for the appellants on this issue argued that it is the duty of the propounders to a will to prove that the deceased was of sound disposing mind when he made the will, that he knew the content of the will and that the will was validly executed by law. Counsel also argued that the propounders were duty bound to remove the suspicion and cited Joana Amu v. Mrs. Ebun Amu & Ors (2000) 7 NWLR (Pt.662) Pg. 64 at 170-171, Ita v. Dadzie (2000) 4 NWLR (Pt. 652) pg. 168 at 184, Okelola v. Boyle (1998) 2 NWLR (Pt. 539) pg. 533 at 561.

Counsel reiterated the argument that the deceased was exhibiting insane demeanor after his surgery and argued that the respondents did not call any expert witness to prove the sound mind of the deceased.

Appellants’ counsel in trying to discredit the evidence of PW6 (now 3rd respondent) argued that her testimony as an expert should be discredited as an expert witness and that she had an interest to protect being a beneficiary. Counsel in further attacking the evidence of PW6 (now 3rd respondent) argued that her evidence was inadmissible under Section 91(3) of the Evidence Act. Counsel labeled PW6 (now 3rd respondent a tainted witness and cited Moses v. State (2003) FWLR (Pt. 141) Pg. 169, Amobi v. Amobi (1996) 9-10 SCNJ, Anyaebosi v. R.T. Briscoe Nig. Ltd (1987) 3 NWLR (Pt. 59) at 84, Bearmans Ltd & Anor v. Metropolitan Police District Receiver (1961) 1 WLR 634 at 655.

Counsel on this issue finally submitted that the failure of the respondents to call the witnesses to the Will as witness in the trial court was fatal to the respondents’ case.

Senior learned counsel for the 1st-10th respondents in trying to puncture PW3’s evidence noted that the said behavior “like a mad man” was allegedly noticed after the deceased had made the Will and not before. Senior counsel further stated that PW3 could not have known the mental state of the deceased as at the time of making the will since the deceased made the will in America and PW3 was in Nigeria then. Senior Counsel further argued that the evidence of PW3 on the deceased’s state of mind be discredited since PW3 was and is not a medical expert.

Senior learned counsel in further trying to lead credence to the mental stability of the deceased at the time of making the will argued that Exhibits N and N12 being receipts of the work done by the deceased between 1996-2003 as a social worker showed clearly that he was mentally alert and sound before, during and after the surgery. Senior counsel relying on excerpts from DW5’s evidence at page 464 of the record argued that the deceased underwent a mere heart bypass surgery which did not affect mental capacity. Senior counsel argued that the evidence of DW5 was corroborated by DW5 who was a physician assistant in California.

Senior learned counsel further argued that the appellants’ reliance on Section 91(3) of the Evidence Act was misconceived in the circumstances of this case as only oral evidence was relied on by the appellants. Senior counsel cited Anyaebosi v. R.T. Briscoe Nig. Ltd (1987) 3 NWLR (Pt. 59) Pg. 84. Senior counsel submitted that the cases of Moses v. State (supra) and Amobi v. Amobi (supra) cited by the appellants in relation to Section 91(3) Evidence Act are inapplicable.
Chief Akpofure (SAN) for the 1st-10th respondents on this issue argued that the 1st-10th respondents had proved the validity of the Will to the satisfaction of the Court. Senior counsel pointed out that the standard of proof on propounders of a Will is not beyond reasonable doubt. He argued that the trial Judge who heard the matter concluded rightly that there was a sustainable Will and that the onus is on the appellants to rebut same.

As to mental capacity of the deceased, Senior counsel referred to excerpts from evidence of DW2, DW5, DW6 in trying to demolish appellants’ claims of mental incapacity of the deceased submitted that the deceased underwent a heart bypass surgery and nothing more. Senior counsel argued that Section 91(3) of the Evidence Act relied on by the appellants was misconceived and inapplicable to this appeal. He further argued that oral evidence adduced by a witness in Court does not fall under Section 91(3) Evidence Act and that for it to fall under the portion of the Act, the statement must be documentary. Senior counsel cited Anyaebosi v. R.T. Briscoe Nig. Ltd (1987) 3 NWLR (Pt. 59) Pg. 84. Senior counsel submitted that the cases of Moses v. State (supra) and Amobi v. Amobi (supra) cited by the appellants in relation to Section 91(3) Evidence Act are inapplicable.

Finally, Senior counsel submitted that all arguments of the appellants on testamentary capacity based on nature of gifts are inapplicable to this case.

Resolution:

Testamentary capacity means legal capacity to make a Will. The law requires that a testator must have a sound disposing mind both at the time of giving instructions and execution. In Adebajo v. Adebajo (supra), the Court in following the ratio Banks v. Goodfellow (1861-73) All ER 47, held that what constitutes a sound and disposing mind is a question of fact and evidence that a person who can converse rationally and conduct his business is sufficient proof of mental capacity. The most prominent issues of incapacity arise from unsound mind, senility, drunkenness and undue influence. The propounder of a Will has to prove the absence of all these where testamentary capacity is in issue.
A careful perusal of the Will, a 7-page document, would reveal the innermost wishes of a cerebral and meticulous man. Nothing in the whole of the document showed him as lacking in any of the four guidelines of Cockburn J. The following tests were put forward in the judgment by Cockburn C.J. in the case of Banks v. Goodfellow (supra):
1. The testator must understand the nature of the act that he is making in his will and its effect.
2. He must understand and recollect the extent of the property of which he is disposing.
3. He must understand and appreciate the nature and extent of the claims upon him by those whom he is including in his Will.
4. The manner in which the property is distributed must be rational that no disorder of the mind has poisoned his affection or perverted the exercise of his will.

The respondents have also at the trial Court proved that the testator only underwent a heart surgery which did not affect his reasoning faculty or mind in any way. I agree with the medically layman view of Respondent’s counsel that the heart and brain being two separate organs of the body, and in the absence of expert testimony to state that complications from heart surgery affected the brain, the testator was in a sound mental state at the time he made the will.

The appellants in trying to puncture testamentary capacity hinged on undue influence by the 1st respondent on the testator. However, it is not enough to allege that a person had exerted duress or undue influence on a testator, such duress must be proved. See dictum of Lewey J. in Johnson v. Maja (supra), Eigbe & Ors v. Eigbe & Ors (2013) LPELR-20292. In the instant case, the appellant’s contention that the 1st respondent influenced the deceased’s Will seems improbable. This is because the deceased made the Will while resident in America while 1st respondent was resident in Nigeria.

Again, it must be noted that the material time to be proved in proving mental capacity of a testator is the mental state of the testator at the time of giving instructions and execution of the WILL not his mental state before, or after giving instructions and execution of the Will. The testator made the Will six months before he came to Nigeria to attend his daughter’s wedding. There was concession that he did not behave like a mad man in spite of the evidence of PW3.

I am persuaded that the testator had testamentary capacity at the time he made the Will. This issue is resolved against the appellants.

ISSUE 2

Whether the will of the (deceased) Tony Nokwai Okolonwamu ran contrary to the customary succession law of the Asaba people.

Learned appellants’ counsel, Ike Odionu opened his argument of this issue by citing Sec. 3 (1) of the Wills Law of Bendel State (applicable to Delta State) and posited that any will made by a native of Asaba is subject to the Asaba customary law. Counsel cited Ogbabon v. Registered Trustees of Christ Chosen Church of God & Anor (2004) 1 NWLR (Pt. 675) Pg. 712, Idehen v. Idehen (1991) 6 NWLR (Pt. 198) Pg. 383, Lawal Osula v. Lawal Osula (1995) 9 NWLR (Pt. 419) Pg. 382.

Counsel also referred to a paragraph of DW4’s testimony on oath and excerpts from the will (marked Exhibit A1) where the deceased devised a flat at No.14A Uda Street Asaba to three of his daughters who are the 2nd-4th respondents in this appeal. Counsel submitted that from the evidence of DW4, the devise of No.14A Uda Street, ran contrary to the customary law of Asaba and ought to fail. Counsel argued that since No.14A Uda Street is within Asaba village and a testator cannot devise his property in Asaba Village to his daughters, the device must fail.
Counsel also argued that the devise of No.14A Uda Street Asaba to the deceased’s mother in her lifetime to revert to his eldest son on his death must fail because the house never belonged to the testator to give as it belonged to his mother.

Chief Akpofure (SAN), representing the 1st-10th respondents argued issues 1 and 2 together. On issue 1, counsel submitted that before the appellants could rely on Sec 3(1) of the Law of Bendel State (supra), the appellants must first show that the customary law in question had been duly pleaded, was manifest from the records, or has been notoriously applied as to make the courts take judicial notice of it. Senior counsel argued that the cases cited by the appellant’s counsel only apply to Bini ‘igiogbe’ custom and not Asaba custom. Counsel then submitted that any argument based on Sec. 3(1) of the Wills Law of Bendel State is in vacuo and goes to no issue.

Senior learned counsel further argued that the appellants at the lower Court argued that the said No.14A Uda Street did not belong to the deceased and submitted that appellants now asking that the said property be inherited by them was an absurd situation. Senior counsel in reference to excerpts from the testimony of DW4 submitted that the property in question could be given to a daughter who shall hold it in trust for her brothers.

Senior counsel further argued strenuously that there was no evidence to show that No.14A Uda Street was inside Asaba village. Counsel argued that No.14 Uda Street Asaba was different from No.14A Udah Street Asaba. Senior counsel also argued that the property at No 14A Udah Street Asaba was a block of four flats and the property willed to the daughters while the property at No. 14 Uda Street Asaba was a bungalow.

Resolution:

Let us look at the provision of Section 3(1) of the Wills Law of Bendel State (applicable to Delta State) thus:
“Subject to any Customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by its Will executed in manner hereinafter required, all real and all personal estate which shall be entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeath and disposed of would devolve him, or if he became entitled by descent, of his ancestor or upon his executor or administrator.”
From the perusal of the above statute, a native of Asaba is entitled to make a Will but such native must make such Will subject to the Asaba customary law. The court in Odjegba v. Odjegba (2004) 2 NWLR (Pt. 858) pg. 589 at 607 in interpreting Section 3(1) of the Wills Law of Bendel State held that:
“…The Supreme Court considered the above position in Oke v. Oke (supra) and came to the following conclusion at page 10 that: ‘The introductory phrase subject to any customary law relating thereto necessarily makes the power given to a testator under the subsection dependant upon the particular customary law permitting it, in effect, the power of the testator to devise his real and personal estates by will is limited by the extent, if any, to which its exercise is permissible under the relevant customary law’.
Whenever the expression ‘subject to, is used at the commencement of a statute, it is an expression of limitation. It implies that what the section or subsection is subject to shall govern, control and prevail over what follows in that section or subsection.”

Before going into the resolution of this issue, I have to say that I agree with the learned Senior counsel that the cases of Ogbabon v. Registered Trustees of Christ Chosen Church of God & Anor (supra), Idehen v. Idehen (Supra), Lawal Osula v. Lawal Osula (Supra) cited by the appellants are completely inapplicable in this case. This is because all the cited cases were decided on the Bini “Igiogbe” custom which is not automatically applicable to Asaba custom. Asaba and Benin peoples are peoples of different culture and custom and the acts of an Asaba man should not be subjected to scrutiny using Benin custom.

The appellant’s grouse in this issue is centered on Asaba custom. It is trite law that a customary law is a matter of fact to be pleaded and proved by evidence except where such law has been of such notoriety and has been judicially noticed. It is desirable that a person other than the person asserting a customary law should testify in support of the law. See Magomya v. A.G. Adamawa State (2007) 5 NWLR (Pt. 1028) Pg. 567 at 582, Lipede v. Shonekan (1995) 1 NWLR (Pt. 374) Pg. 668. The Asaba customary law of succession has not been judicially noticed like the Bini custom of Igiogbe and therefore anyone who asserts Asaba custom must prove the existence of the said custom to the Court.

PW2, a red cap Chief of Asaba testified for the appellants at the lower Court and in his evidence tried to prove Asaba customary law of succession as follows:

“Upon the death of a man if he has more than one wife and he dies the 1st son inherits the father’s property and then shares to other brothers. When a woman dies her 1st son takes over her landed property. When a man dies having wives and children the property of the man handled by the 1st son will be shared. I can’t tell what happens to the WILL made by a man as to how his property is to be shared. All I know is this is tradition.”

I have read the more copius evidence of Asaba customary law as sworn to by DW2. I agree with the learned trial Judge on the credibility of DW2 a half brother of the testator and the Diokpa of the family and the village who in his evidence gave a better expert opinion of Asaba inheritance law. On the making of a Will, he said:

“The making of a Will is not forbidden in Asaba custom. The Will supercedes the custom in Asaba because the Will is legal.”

On the role of the first son during the burial rites and the entitlements of the first son, he said:

“It was Ofili the 1st son that gave the money for the ceremonies to the 1st defendant his mother.

The white ribbon is tied by the 1st daughter and first son. Generally if the first son is not available the 2nd son ties it. In this case the 1st son was not available. The 2nd son said he was born again. They came to report to me so I said the foster son should tie it. The 1st daughter was not present for the burial. Somebody had to tie the ribbon on her behalf. The 3rd defendant was present for the burial. She tied the ribbon on behalf of Ngozi. In Asaba custom if the Diokpa financed the burial if there is no Will, the Diokpa inherits the property of the father. This Diokpa is the Diokpa of the deceased. The Diokpa of the family co-ordinates the activities of the burial. Where there is no will the Diokpa of the family calls a meeting where the property of the deceased is shared. If the 1st son carried the burial expenses, at the end of the burial he is entitled to the property of the man. Even if the burial expenses is not carried out by the 1st son, the 1st son is still entitled to the properties of his father because it is the custom of this town.”

On the status of No.14 Uda Street which the testator left for his mother to revert to his 1st son, he said:

“My late father also built a house for Tony’s mother. That house also fell. Later, the wife came to start to build house on the land. Later the husband came and two of them completed the block building on the land.

By Asaba custom, the late Tony is the owner of the house like I am the owner of my own and barrister Nwamu is the owner of his own.”

The trial Judge on this issue held that:

“The question may be asked, what evidence did PW2 the red cap chief produce to support the submission of the learned J.C. Dikedi for the Plaintiffs. Did he state that under Asaba Native Law and custom the late Tony Okolonwamu could not make a WILL to bequeath his Igiogbe to any other except his eldest son?

It will be appropriate at this stage to revisit the evidence of PW2 which for the sake of clarity I will set out verbatim. It states inter alia that:

‘Upon the death of a man if he has more than one wife and he dies the 1st son inherits the father’s property and then shares to other brothers. When a woman dies her 1st son takes over her landed property. When a man dies having wives and children the property of the man handled by the 1st son will be shared. I can’t tell what happens to the WILL made by a man as to how his property is to be shared. All I know is this is tradition.’

It is obvious that the evidence of PW2 relates to a situation where a man dies intestate. He was categorical that he could not tell what happens to the WILL made by a man as to how his property is to be shared. Consequently the principle in OLUWA v. OLUWA (supra), IDEHEN v. IDEHEN (supra), OSULA v. OSULA (supra) and AGIDINGBI v. AGIDINGBI (supra) cannot apply to the case before this Court.

The late Tony Okolonwamu did not die intestate. He made a WILL which is Exhibit A1 in this case. PW2 did not state that the WILL Exhibit A1 violated the Native law and custom of the Asaba people in any way.”

To my mind, the evidence of DW4, a retired Engineer from Guinness Nig. Plc, the Onoi (Prime Minister) of Asaba, next in rank to the Asagba of Asaba, an impartial witness in the proceedings was most helpful in determining the question whether the Will was contrary to Asaba custom.

The witness was careful to emphasize the fact that a daughter cannot be given landed property in the traditional Asaba village. He said at page 457 of the record thus:

“For example ownership of a property in the traditional Asaba village, a daughter cannot be given or Willed a property inside that Asaba village. The reasons are in the main that the daughter can marry and move out of that traditional village and cannot own property there which can be transferred to either her husband or children who are not members of the village. However the daughter that has not married or has problem with her husband can return to her father’s house and be given accommodation until death. If a girl is given a property within the Asaba village she has that property or room or accommodation being held in trust for the brothers. It is the brothers that really own that property”

He also said at page 458 of the record that:

“If my mother dies leaving a house and I am the only son with other sisters being the only son I will inherit the house in Asaba custom and not my sisters who are daughters. However my sisters will have a room if the need arises in the house until they die.”

He clinched the issue on page 459 of the record thus:

“A man can WILL his property to any of his children including the daughter as long as the property is not in the traditional village. If it is in the traditional village he can only Will it to his sons. Where a Will runs contrary to this last aspect the tradition will be superior as no Will can give out the property in the traditional village to a daughter.”

There is no doubt in my mind that by the evidence of DW2 and DW4 both witnesses for the defendants now respondents, the testamentary disposition of the house at No.14A Udah Street, Asaba to his daughters merely means that the flats are held in trust by the daughters for the sons. Upon their death the property reverts back to the sons. An outright gift of 14A Udah Street to the daughters would be contrary to Asaba native law and therefore null and void. If the property had been outside Asaba, the daughters could inherit it absolutely.

In respect of the disposition of his house to his mother to revert to his first son, evidence at the trial Court shows that the testator’s mother predeceased him. Also, the evidence of the custom is that even if the house was owned by his mother (having been built for her by her husband, the deceased’s father) the property devolved on him on her death being the only surviving son. At his death, the property devolved on his first son according to the Asaba native custom. Therefore the devise of No.14 Udah Street which was essentially to the person the testator designated as his first son met generally the dictates of customary law and would therefore stand. This issue is partially resolved in favour of the appellants.

ISSUE 3

Whether the gift made under the said will to the 2nd Respondent whose husband witnessed the will was valid.

Learned appellant’s counsel in citing Section 12 of the Wills Law of Bendel State (applicable to Delta State) argued that one of the witnesses to the deceased’s will, Peter Okwuasaba is the husband of the 2nd respondent. Counsel argued that Sec 12 of the Wills Law (Supra) invalidates the gift to the 2nd respondent and that the section does not make distinction on the time of marriage and cited Ross v. Counters (1980) CH. 297.

Senior learned counsel for the respondent on this issue argued that the appellants counsel’s argument hinged on Section 12 of the Wills Law of Bendel State (supra) was misconceived and that the mere fact that a witness to the will married 2nd respondent does not vitiate the Will. Senior counsel referred to excerpts from the book Wills: Law and practice by Kole Abayomi. Senior counsel argued that the Will having been executed in September 1999 and the witness got married to 2nd respondent in December 1999, the Will predates the marriage and as at the time of making the Will the witness was single.

Senior counsel argued that the case of Ross v. Cauncer (supra) relied on by the appellant’s counsel was irrelevant as no one could be a spouse before a marriage ceremony is contracted.

Resolution:

Let us look at the provision of the Law in Sec 12 of Wills Law of Bendel:
“If any person shall attest the execution of any WILL to whom or whose wife or husband any beneficial devise, legacy, estate, gift or appointment of or affecting any real or personal estate (other than and except charges and directives for payment of any debt or debts) shall be thereby given or made, such devise, legacy, estate, interest, gift or appointment shall, so far only as concerns such person attesting the execution of such WILL or the wife or husband of such person or any other person claiming under such person or wife or husband, be utterly null and void, such person so attesting shall be admitted as a witness to prove the execution of such WILL or to prove the validity thereof, notwithstanding such devise, legacy, estate, gift or appointment mentioned in such WILL”
The position of the law above is in tandem with the Court holding in Ross v. Caunters (supra) that if a witness who at the time of witnessing a Will, was married to a beneficiary to the Will, such gift to the said beneficiary under the Will must fail. Of important note is the fact that the material status is the status of the witness as at the date of the execution of the Will, not the status before or after execution. His Lordship held at page 319 of the record thus:

“It is true that one of the witnesses is the husband of the 2nd defendant. The question however is – was Mr. Peter Okwuasaba the husband of the 2nd defendant when the WILL was made on 9/9/99? There is no such evidence before this Court. Instead there is evidence from PW3 that the traditional marriage was celebrated in Asaba in December. There is evidence that it was on the 18/12/99.

PW 3 stated that it was after this that the wedding took place in America. Consequently Section 12 of the WILLS LAW (supra) was nor breached and I so hold”

The learned trial Judge had rightly put the law as it is. This issue is resolved against the appellants.

ISSUE 4

Whether the appellants succeeded in establishing that he is the first/eldest son of the (deceased) Tony Nokwai Okolonwamu through his mother lawfully married to the deceased and thereby making him solely entitled to the property known as No.14 Uda Street (also known as Ndumi Obi Okolo’s House) Umuda Umuaji euarters, Asaba.

Learned appellants’ counsel argued that although the 1st-10th respondents referred to the appellants as the deceased’s foster children, the evidence of DW5 led credence to the acceptance of paternity of the appellants by the deceased. Counsel argued that this was what resulted in the appellants changing their surnames from their mother’s maiden name to the deceased’s surname. Counsel further argued that the respondents never contested the fact that the appellants bear the same surname with the deceased.

Learned appellants’ counsel further argued strenuously that PW1 being a friend to the deceased testified that the appellants were children of the deceased and that the 1st appellant was born in 1965. Counsel also referred to the evidence of PW2 who claimed to have attended the marriage ceremony of the deceased to the appellant’s mother in 1964.

Appellants’ counsel in trying to discredit DW2’s evidence stated that DW2 was a half brother to the deceased while PW3 was a full sister to the deceased and as such the evidence of PW3 should be preferred by the court. Counsel further argued that the evidence of DW2 that he was not the Diokpa of the family as at 1964 made him incompetent to give evidence on the said marriage between the appellants’ late mother and the deceased.

Learned counsel further argued that it was not in dispute that the 1st appellant tied the white ribbon and renounced the Ogbu title of the deceased which customarily was the duty of the deceased’s first child. Counsel submitted that the fact that PW2 authorized the 1st appellant to tie the ribbon knowing full well the implication, gave recognition to the 1st appellant’s eldest son status.

Senior Counsel for the 1st-10th respondents submitted that the tying of white ribbon is not conclusive of the paternity of the appellants. Senior counsel in referring to the evidence of DW2 argued that the ribbon is not even an exclusive preserve of the eldest male son as there are circumstances under which other persons apart from him may tie the ribbon.

Senior counsel in trying to discredit the evidence of PW1 on the paternity of the appellants argued that PW1 who claimed to be a ‘close friend’ of the deceased did not know any of the deceased’s biological children, his wife and even the several years the deceased spent in America. Senior counsel also argued that the evidence of PW1 as to the alleged marriage to late Jane Nwafulugu and the alleged paternity of the appellants be held false and unreliable. Counsel further submitted that the change of surname and tying of ribbon are not conclusive proofs of paternity as it was bereft of biological exactitude.

Senior learned counsel argued that if truly the 1st appellant was the eldest son why did he not provide the money for the items used in denouncing the Ogbu title as required by custom. Senior counsel further argued that the failure of the 1st appellant to present any birth certificate or document evidencing his birth was gravely fatal to appellants’ paternity claims. Senior counsel reiterated the fact that no member of the deceased’s family went for the said marriage between the deceased and late Jane Nwafulugu.

Senior counsel in further dismissing the contention of the appellants that late Jane Nwafulugo was married to the deceased argued that the failure of the appellants to call siblings of late Jane, who the appellants admitted to be alive under oath, to testify to the marriage was fatal to the appellants’ case. Senior counsel also argued that payment of bride price, being an important element of a customary marriage was not proved by the appellants. Senior counsel cited Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) Pg. 1, Iyanda v. Laniba (2003) 1 BWLR (Pt. 801) Pg. 267, F.A.T.B Ltd v. Partnership Inv. Co. Ltd (2003) 18 NWLR (Pt. 851) Pg. 35, Atta v. COP (2003) 17 NWLR (Pt. 849) Pg. 250.

Resolution:

I am of the humble view that the 1st appellant in this case is saddled with the responsibility of proving two facts under this issue; first that he was fathered by the deceased and secondly, his exact date of birth as to make him the eldest son of the deceased. The first leg of this issue borders on paternity of the appellants. How can paternity be proved? Paternity of a child can be determined by three major ways which are akin to the ways of proving legitimacy of a child. They are:
(1) Paternity by existing Marriage: A child born during the pendency of a valid marriage between a couple is automatically presumed to be legitimate.
(2) Paternity by Subsequent Marriage to the mother: This occurs when a child is born at a time when the mother was not married to the father and after whose birth the mother and father entered into a valid marriage.
(3) Paternity by acknowledgement by the father accepting paternity of the child: This includes paying for the hospital bills and upkeep of the child, introducing the child to his family as his child etc.
The Supreme Court in Adeyemi & Ors v. Bamidele & Ors (1968) NSCC pg. 26 at 31 had this to say on legitimacy of a child:
“In Nigeria, a child is legitimate if born in wedlock according to the Marriage ordinance. There are also legitimate children born in marriage under Native Law and Custom. Children not born in wedlock (Marriage Ordinance) or who are not the issues of a marriage can also be regarded as legitimate children for certain purposes, if paternity has been acknowledged by the putative father. See Bamgbose v. Daniel 14 W.A.C.A 111 at page 115 and Alake v. Prat 15 WACA 20.”
The appellants in this case are obviously relying on paternity by existing marriage of the appellants’ mother and the testator. The marriage of the said parents must first be proved, before paternity can be presumed.

Could the appellants be said to have successfully proved the marriage between the late Tony Okolonwamu and their deceased mother late Jane Nwafulugu? How is customary marriage proved? The Court in Agbeja v. Agbeja (1985) 3 NWLR (Pt 11) Pg.11 held that:
“While the evidence of the Head of the family who received the money is desirable, what is essential is an eye witness account of the transaction. For a marriage under native law and custom to be valid, there must be on the one side the ceremony of the giving of the bride for a marriage under native law and custom.”
It is trite that the most common feature of customary marriages in Nigeria is the payment of bride price and handling over of the bride to the groom. These are the least and basic requirements of any Nigerian customary marriage. Thus the proof of an existing customary marriage must contain the two. In this case, the appellants failed in proving the marriage between their late mother (Jane Nwafulugu) and the deceased.

In the instant case, the appellants called PW3 a sister to the deceased who testified that she attended the customary marriage ceremony. However, PW3 only claimed to have attended the ceremony, her testimony did not contain detailed accounts of the ceremony. No head of the Nwafulugu family was called as witness. No sibling of the late Jane Nwafulugu was called as witness even though the appellants testified that she had surviving siblings.

I have thoroughly read the records. I find that I cannot believe the evidence of PW3 in view of the fact that it seems improbable that she would be the only witness to the celebration of the marriage between the testator and the appellants’ mother. On the other hand, the DW2 the brother of the testator and the Diokpa (Head) of the family stated categorically on oath that the testator had introduced the appellant to him as his foster children. I believe the evidence of DW2 that the appellants were mere foster children of the testator and not his biological children. The appellants tried to make a case that DW2 was not the Diokpa of the family during the relevant period of the purported marriage, however the fact that in the intervening years, his brother told him he was not their father is of great significance.

DW4 the independent witness who gave evidence of traditional custom relating to paternity of a child at page 457 of the record stated as follows:

“In Asaba custom it is the father that is able to say who his children are. If a non native woman has a child for me as an Asaba man and I am not married to that non native woman I must let my Diokpa know. He will then delegate one or two people to join me to the family of the girl friend and he will then go there to recognize the children as mine. We will take drinks there. No money is involved. This is done so that the in-laws will know the father of the children or child and to know where the child or children will be taken to, will be staying. Where the parents of the girlfriend dies, we will go to the family during the burial ceremony. These children will have responsibility and I will also have responsibility at the burial. My village through my Diokpa will organize a dance troupe to represent that village in that burial.

If the children of a girl friend were born before the girl married and he does the ceremony to possess his children such children will come and take their rightful place in the family. Where the father dies the 1st of the children if a boy will tie the piece of cloth round his head.”

Let us remember that DW4, the Onoi of Asaba was subpoenaed to give evidence of Asaba custom.

It is clear that the father must have accepted paternity in unmistakable terms. There is no unequivocal evidence of that acceptance. In fact, Exhibit A was very clear and not nebulous on that point. In Paragraph 3 under “Composition Of My Family”, the deceased testified on this issue thus on page 161 of the record:

“COMPOSITION OF MY FAMILY

I hereby declare that my family is composed of the following persons:

(a)(i) Mrs. Theresa Nkem Okolonwamu (Nee Chime) who is my only wife duly married to me both under native law and custom and under the marriage Act. The marriage was solemnized at the Holy Ghost Cathedral Church Enugu on 19 July, 1994.
(ii) Ngozi Rosemary Okolonwamu (Female)
(iii) Uche Okolonwamu (Female)
(iv) Ifeoma Okolonwamu (Female)
(v) Ofili Okolonwamu (Male)
(He is the one I recognize as my bona fide first son entitled to all the rights and privileges of a first son.
(vi) Nwabuike Okolonwamu (Male)
(vii) Nonso Okolonwamu (Male)
(b) I must also remark that I am alleged to be the father of
(i) Chibueze and (ii) Arthur, both of whom are the children of Jane Nwafulugo now late, a native of Ojoto, Anambra State, whom I met in Port Harcourt, in the 60s. She (Jane Nwafulugo) was my concubine sometime ago. We were never married, under any system of marriage, customary or statutory.

It is true, that I didn’t mind acting as a foster father to Chinueze and Arthur, but that was, and still is, without prejudice to the position of Ofili as my first son, duly recognized as such by me, and I insist that everybody should respect this stance of mine and on no account should this be derogated from.”

Apart from the above, efforts have been made to use the fact that the 1st appellant tied the white cloth at the testator’s funeral as the family’s acknowledgement of him as the first born son. However, this flies in the face of evidence on record. As I said, the star witness at the trial, DW4 stated categorically as follows on page 458 of the record:

“It is not only the 1st son of a deceased that can tie piece of cloth however it is the 1st son’s primary duty. The Diokpa of that unit can tell anybody to tie it.”

The learned trial Judge held at page 18 of the record on this issue thus:

“There was no birth certificate before this Court to show that the Plaintiffs are the children of the late Tony Okolonwamu. There is no record of the hospital or maternity where they were born. Be it as it may, the late Tony Okolonwamu introduced them to the 1st defendant and to the DW2 as his foster children. Thus a link was established between the plaintiffs and the late Tony Okolonwamu. Now the issue whether the 1st Plaintiff is the 1st son of late Tony is very shaky. This is because the PW1 who had testified in his examination in chief that it is the 1st son, in this case, the 1st Plaintiff, of the deceased that renounces the Ogbu title, somersaulted under cross examination and declared –

‘It is true that the 3rd defendant stood to defend title’.

I had stated in this judgment that if the 1st son was present, why was it necessary for the 3rd defendant a female child to denounce the Ogbu title? There is doubt from the evidence of the Plaintiffs and their witnesses particularly the evidence of PW1 that 1st Plaintiff is actually the 1st son of the deceased Tony Nokwai Okolonwamu and that doubt must be resolved in favour of the 1-10th defendant.”

On the second leg of this issue, the 1st appellant only adduced oral evidence as to his age when he stated that he was born in 1965. Considering the fact that birth certificates had been in use in Nigeria before that year, the failure of the 1st appellant to adduce cogent documentary or other evidence as to his date of birth is fatal to his case. There was no corroborative evidence of an elder who could have known the time of birth of the appellant before the court neither was there expert evidence to that effect.

I disagree with the learned appellants’ counsel that paternity could be determined by tying of ribbon at Ogbu ceremony. The mere fact that certain persons share a surname with a man does not reasonably mean that they were fathered by that man. Of course the failure of the deceased to object to their using his surname seems quite suspicious; it cannot however be a valid proof of fatherhood.

Also, the evidence of DW2 an expert in Asaba custom showed that persons other than the first son of a deceased can tie the white ribbon including females. Thus, it would be wrong to conclude that the tying of white ribbon conclusively implies that the 1st appellant was the eldest son of the deceased.

In the second head of this claim, the 1st Appellant sought the declaration that he is the eldest son of the testator. The burden of proof was on him. I agree with the learned trial judge that he was not able to discharge that burden. This issue is resolved against the appellants.

In sum, this appeal is totally without merit and is hereby dismissed. The judgment of the Delta State High Court delivered in Suit No. A/76/2003 on 31st October 2006 by Hon. Justice R. P. I. Bozimo (Chief Judge) is hereby affirmed. I award N50,000.00 costs to the 1st-10th Respondents against the appellants.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. I am so much in agreement with the manner in which the issues identified for the determination of the appeal were resolved given the exposition of the law on the issues that I have nothing useful to add to the lucid lead judgment.

In the circumstances, I too, find the appeal to be devoid of merit and dismiss the same. The judgment of the lower court delivered on 31/10/2006, is hereby affirmed. I also abide by the order relating to costs as made in the lead Judgment.

TOM SHAIBU YAKUBU, J.C.A.: The draft of the judgment just delivered by my Lord, HELEN MORONKEJI OGUNWUMIJU, J.C.A., was made available to me. I read it before now. His Lordship meticulously and to my full satisfaction dealt with all the issues thrown up in the appeal. His thoughts and conclusion on the appeal represent mine too, hence I agree with him.

The appeal is devoid of merits and it is dismissed. I, affirm the well-considered judgment of his Lordship, R.P.I. Bozino, C. J., in suit No. A/76/2003 delivered in 31st October, 2006.

I abide by the order as to costs contained in the lead judgment and adopt it as mine.

Appearances

C. S. ObianyidoFor Appellant

AND

Chief E. E. Esosuakpo with HIM O. AKPOFURE – 1st-10th Respondents

N. W. Ogbodu Director of Revenue Matters,
Monye DCL, Egbuna Miss PSC,
Isokpan Miss PSC All from Delta State for 11th RespondentFor Respondent