GODWIN ONYEKWELU OKAFOR v. CECILIA OKAFOR & ORS (2014)

GODWIN ONYEKWELU OKAFOR v. CECILIA OKAFOR & ORS

(2014)LCN/7337(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/E/140/2010

RATIO

EVIDENCE: BURDEN/ONUS OF PROOF; THE ONUS OF PROVING THE GENUINENESS AND AUTHENTICITY OF WILL WHERE THERE IS A DISPUTE AS TO THE GENUINENESS AND AUTHENTICITY OF A TESTAMENTARY WILL

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER THE CONTENT OF A DOCUMENT MAY BE PROVED EITHER BY PRIMARY OR BY SECONDARY EVIDENCE AND THE MEANING OF PRIMARY EVIDENCE UNDER THE EVIDENCE ACT

By virtue of Sections 85 and 86 (1) of the Evidence Act, 2011, the contents of a document may be proved either by primary or by secondary evidence.

EVIDENCE: DOCUMENTARY AND ORAL EVIDENCE; WHETHER DOCUMENTARY EVIDENCE SHOULD BE USED AS THE HANGER TO ASSESS THE CREDIBILITY OF THE ORAL EVIDENCE

The law is settled that where there is oral as well as documentary evidence, documentary evidence should be used as the hanger or the yard stick to assess the credibility of the oral evidence. This is so because a document once written is permanent and documents in most cases do not tell lies, human beings do. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

EVIDENCE: THE PRESUMPTION OF REGULARITY; THE NATURE OF THE PRESUMPTION OF REGULARITY IN RELATION TO A WILL

EVIDENCE: UNCHALLENGED AND UNCONTROVERTED EVIDENCE; WHETHER THE COURT IS AT LIBERTY TO ACCEPT AND ACT ON UNCHALLENGED AND UNCONTROVERTED EVIDENCE

Of course, the law is trite that a Court is at liberty to accept and act on unchallenged and uncontroverted evidence. There is a qualification to that principle of law, for the Court to accept and act on unchallenged and uncontroverted evidence, the evidence must in itself be admissible and must be credible. Where the evidence is glaringly incredible and not capable of being believed, the court will neither accept nor act on such evidence. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF THE TRIAL COURT UNLESS IT IS PERVERSE

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

GODWIN ONYEKWELU OKAFOR Appellant(s)

AND

CECILIA OKAFOR
JOSEPHINE IFEYINWA OKAFOR
CHUKWUEMEKA OKAFOR
IFEOMA OKAFOR
AMAECHI OKAFOR
OBIECHINA OKAFOR
CHUKWUGOZIE OKAFOR
UZOAMAKA OKAFOR
OBINNA OKAFOR
ERNEST NDU
(For himself and on behalf of the Executors of the Will of late Chief Japheth Obiechina Okafor) Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant and the 2nd – 9th respondents are all children of late Chief Japheth Obiechina Okafor, a native of Oranto Village, Ukpo, Anambra State who died on the 22nd January, 1999. The 1st defendant was his wife and the mother of the appellant. The appellant is the first son. After the funeral ceremonies of their father, both the appellant and the respondents were invited to the Probate Registry, Awka where a Will and Testament of their father was read to them. In that will, their father devised his compound where he lived till his death and was buried to his children excluding the appellant. The appellant then instituted suit No A/53/2000 in the High Court of Anambra State, Awka Judicial Division. In paragraph 14 of his amended statement of claim dated 24th April, 2008 and filed on the same day and which was deemed as properly filed on 19th June, 2008 the appellant claimed as follows:
“1. A declaration that the purported last Will and testament of Chief Japheth Obiechina Okafor is invalid and of no effect.
2. A declaration that the plaintiff being the first son of late Chief Japhet Obiechina Okafor of Oranto Village, Ukpo is the person entitled under Ukpo customary law to the custody and possession of the unshared and/or undistributed landed property of the said late Chief Japheth Obiechina Okafor which property the plaintiff holds in trust for other decedent’s children (sic) until the same is shared or distributed in accordance with the said Ukpo native law and custom.
3. A declaration that the plaintiff being the first son of Late Chief Japhet Obiechina Okafor is the person entitled under Ukpo customary law to the inheritance of the compound (land known under Ukpo Igbo parlance as the “Obi”) of the said Late Chief Japheth Obiechina Okafor which said compound/land is lying and situates at Oranto Village, Ukpo town, within jurisdiction.
4. A declaration that the devise of the said compound/land to the 2nd to the 9th Defendants in the document dated 5/8/94 which is purported to be the last will and testament of Chief Japhet Obiechina Okafor for is null, void and of no effect
5. A Declaration that the plaintiff is the person entitle or deemed to be entitled to the statutory right of occupancy in respect of the compound of late Chief Japhet Obiechina Okafor situate and being at Oranto Village, Ukpo town.
6. An order setting aside the devise of the compound land of the late Chief Japheth Obiechia Okafor to the 2nd to the 9th Defendants and consequential directives thereto as contained in the document purported to be the last will and testament of late Chief Japhet Obiechina Okafor.
7. An order setting aside the entire last will and testament of Chief Japhet Obiechina Okafor, including the devise and distribution contained therein.
8. An injunction restraining the Defendants their servants and/or agents, including privies from interfering with the estate or property of the late Chief Japhet Obiechina Okafor, without the authority and consent of the plaintiff.
9. An order directing the Defendants to file a proper account of the estate of Chief Japhet Obiechina Okafor deceased from the date of his death to present and then serve a copy of the accounts on plaintiff.
10. An order on the Defendants to pay over to the plaintiff what is due to them (sic) from the estate for the period they administered the estate
11. An order of injunction restraining the Defendants from disposing or attempting to dispose any assets of the estate of Chief Japhet Obiechina Okafor.
12. An order appointing the plaintiff and 3rd Defendant as the administrators of the estate of Chief Japhet Obiechina Okafor.
13. An injunction restraining the defendants their servants and or agents from submitting the said last will and testament of late Chief Japheth Obiechina Okafor to probate.
14. An injunction restraining the defendants their servants and/or agents from interfering with the plaintiff in the exercise of his rights in relation to the compound land inherited under Ukpo customary law from his father late Chief Japheth Obiechina Okafor.
15. N500, 000.00 being damages for the 2nd to 9th Defendants continuing trespass”. (page 135-137 of the records)

Both parties led evidence and their counsel exchanged written addresses. In a considered judgment delivered on 28th October, 2009, the Court below dismissed the appellant’s claim. Having been dissatisfied with that judgment, the appellant filed a notice of appeal dated 30th October, 2009 and filed on 2nd November, 2009. The seven (7) grounds of appeal without their particulars are as follows:-
GROUND ONE (1) ERROR IN LAW
“The learned trial judge erred in law by admitting Exhibit ‘Q’ (a purported undertaking at the police, (sic) dated August 9 1989), a public document that was not certified by the custodian of the said document and was not tendered by any of the makers, when the said document was totally irrelevant to the issues before the Court and when the document was not even admitted for impeachment purposes, and the learned trial judge failed to expunge the said erroneously admitted Exhibit ‘Q’ during his judgment but instead attached great weight on this legally inadmissible Exhibit ‘Q’ and relied heavily on it in dismissing the plaintiffs case, thereby prejudicing the plaintiff/appellant and occasioning a miscarriage of justice”.
GROUND TWO MISDIRECTION IN LAW:
The leaned trial judge misdirected himself in law and thereby occasioned a miscarriage of justice when, relying on Section 108 of the Evidence Act, he suo motu compared the purported signatures of the plaintiffs father in Exhibit ‘P’ and ‘Q’ with the signature in Exhibit ‘A’ and held as follows: “It is my view that the two signatures are the same. I do not therefore believe the plaintiff that the Exhibit ‘A’ was not signed by his father”.
GROUND THREE (3) ERROR IN LAW
The learned trial judge erred in law when he held that Exhibit ‘A’ the purported Will of the plaintiff’s father, was executed in accordance with the law even though neither the plaintiff nor the propounders of the said will (the Defendants) ever identify the said will as that of the testator nor did any witness ever identify the signatures therein.
GROUND FOUR (4) ERROR IN LAW
The learned trial judge erred in law when he held that the plaintiffs father could by way of a will devise his compound at Oranto Village, Ukpo to persons other than his first son (the plaintiff), when it is clear from the parties’ pleading and evidence that the said compound was built on an undivided common property of the parties’ extended family land which was allotted to the said testator and that the plaintiff was the person entitled to inherit the said compound under Ukpo native law and custom.
GROUND FIVE (5) MISDIRECTION IN LAW
The learned trial judge misdirected himself in law and thereby occasioned a miscarriage of justice when he held that “a will once made displaces devolution by customary law except where there is express provision in the Wills Law of a particular State limiting the right of a testator to devise by way of a will property which he cannot devise under customary law” and thereby dismissed the plaintiff’s case on the ground that in Anambra State there is no provision limiting the right of the testator to devise property held under customary law.
GROUND 6 (SIX) ERROR IN LAW AND MIXED LAW AND FACT
The learned trial judge erred in law when he entered judgment dismissing the Plaintiff’s case.”
GROUND 7 (SEVEN) ERROR IN EVALUATION OF FACT
The Judgment is against the weight of evidence

The appellant’s counsel in his brief of argument filed on 2nd August, 2010 distilled the following four (4) issues from the grounds of appeal
“1. Whether the trial court properly admitted Exhibit “Q” and properly used the said exhibit, in conjunction with exhibit ‘P’, to compare with the alleged signature of late Chief Japheth Obiechina Okafor in Exhibit “A”, when the said signature was not even proved or identified in either Exhibit ‘Q’ or Exhibit ‘A’ [Grounds 1 & 2]
2. Whether the Defendants/Respondents who were propounding the purported Will of Late Chief Japheth Obiechina Okafor discharged the primary burden of proving that there has been due execution of the Will and that late Chief Japheth Obiechina Okafor had requisite mental capacity at the time of making the purported Will and that he freely executed it as required by law. [Ground 3].
3. Whether Late Chief Japheth Obiechina Okafor can by his last Will and testament validly dispossess the Plaintiff/Appellant – his first son or “Diokpala”- of the ‘Obi’ built on an unshared family land allotted to the decedent by the family, which ‘Obi’ is normally the birth right of the said first son under Ukpo native law and custom [Grounds 4 & 5]
4. Whether the Plaintiff/Appellant is entitled to the reliefs sought in the Amended Statement of Claim”. (Grounds 6 & 7)”.

The respondents’ counsel in his brief of argument dated 5th November, 2012 and filed on the same day identified the following two issues for determination: –
“i. Whether the Court below was right in holding that Exhibit “A” is validly the last Will and Testament of late Chief Japheth Obiechina Okafor
ii. Whether the Court below was right in holding that the late Chief Japheth Obiechina Okafor was at liberty to devise his landed property at Oranto Village, Ukpo, the way he did”.

I have considered the grounds of appeal and the issues formulated by both counsel, the respondents’ counsel, in my view has succinctly identified the real and substantial issues in dispute in this appeal, issues 1 and 4 formulated by the appellant’s counsel are subsumed into those two issues. I will therefore adopt the two issues formulated by the respondents’ counsel in the consideration and determination of this appeal.

Issue 1 is whether the Court below was right in holding that exhibit A is valid and last Will and Testament of Late Japheth Obiechina Okafor. On this issue, the appellant’s Counsel submitted that the law is elementary that the onus is on the propounder of a Will to clearly show by evidence that (1) The testator was of sound disposing mind, (2) The testator knew and approved of the contents of the Will and (3) The Will was validly executed in accordance with the law, he relied on OKELOLA V. BOYLE (1998) 2 NWLR (PT. 539) PAGE 533 AT 54, ITA V. DADZIE (2000) 4 NWLR (PT. 652) PAGE 168 AT 184 (12). He further submitted that none of the respondents’ witnesses mentioned the state of mind of the testator at the time of execution of the purported Will, none claimed that the testator knew or approved the contents of the Will at the time of execution and none made any attempt to show that the Will was actually made by late Japheth Obiechina Okafor in accordance with Section 140 of the Administration and Succession (Estate of Deceased Persons) Law, Cap. 4, Laws of Anambra State of Nigeria, 1991. He referred to IZE-IYAMU V. ALONGE (2007) 6 NWLR (PT. 1029) page 84 at 106 (1 & 2). He also submitted that the evidence of the appellant in paragraph 3 of his further written statement on oath Sworn to on 29th April, 2008 that his father was not sound in mind, memory and understanding at the time the Will was purportedly made remains unchallenged, uncontroverted and not denied while DW2 admitted in his evidence under cross-examination on page 275 of the record that late Japheth Obiechina Okafor was sick for sometime before his death. He finally submitted that the respondents who are the propounders of the Will could not discharge the primary burden placed on them by law.

The respondents’ counsel submitted that presumption of regularity enures in favour of the respondents in this case because there is really no question of fraud or incapacity properly speaking in this case. He contended that the appellant made flippant and frivolous allegations of fraud, want of capacity, undue influence and want of due execution in that in one breath he alleged that the Will was forged by the respondents after the death of the testator, in another breath he alleged that it was made by the testator while suffering from undue influence exerted by the 1st respondent and yet in another breath he alleged that the Will was made by the testator while his health was bad, therefore the Court below was right when he held that the maxim Omina praesumuntur rite esse acta should enure in favour of the respondent who are the propounders of the Will and that the evidential burden shifted to the appellant to prove that there was lack of due execution. He submitted that the finding and conclusion of the Court below, cannot be faulted in the light of the decision of Supreme Court in the estate of LIONEL RANDLE (1962) 1 ALL NLR 132 that where a testamentary instrument is ex-facie perfectly regular as regards all the formalities of signature and attestation, a presumption of due execution arises to which great weight must be given. He argued that the fact that the Court below thereafter proceeded to carry out comparison of signatures is a surplusage which whether rightly or wrongly done would not have altered the earlier finding and conclusion that the presumption of regularity enures in favour of the Will. He submitted that there is nothing in DW2’s evidence under cross-examination that suggests that the testator was sick when he made the Will in 1994 or that the sickness affected his sound disposing mind, he referred to ADEBAJO V. ADEBAJO (1973) 1 ALL NLR 297.

In his reply brief, the appellant’s counsel submitted that in law, it is proper for a party in an action to include in his pleadings two or more inconsistent sets of facts and claim relief there under in the alternative, he referred to M.V. CAROLINE MAERSK V. NOKOY INVEST. LTD (2002) 12 NWLR (PT. 782) PAGE 472 AT 509 (12). He argued that the appellant herein simply attacked the Will on separate and distinct grounds as permitted by Order 16 rules 1 of the High Court of Anambra State (Civil Procedure) Rules, 2006. He submitted that the respondents ought to at least identify the Will as the last Will and Testament of late Japheth Obiechina Okafor and the signature thereon as his own to merit any slight presumption of regularity in law as presumption of regularity is not built on a vacuum. He also argued that since exhibit Q used by the court below to attempt to prove the signature of the purported testator in the Will was misapplied and in any event inadmissible as a matter of law, the said exhibit A is merely a worthless piece of paper.

The law is settled that where there is a dispute as to the genuiness and authenticity of a Testamentary Will, the onus of proving the genuiness and authenticity of the Will lies on the party propounding the Will. The propunder of the Will must clearly show by evidence that prima facie the Will had been executed in accordance with the provisions of the relevant law, See among the plethora of authorities on this principle of law, IZE-IYAMU V. ALONGE (2007) 6 NWLR (PT 1029) PAGE 84, OKELOLA V. BOYLE (Supra). The starting point in the determination of this issue is the alleged failure of the respondents to identify exhibit ‘A’ as the Will of late Japhhet Obiechina Okafor. In my view, it is the appellant who is attacking the Will of his father, after all he instituted this case. It is thus his duty to produce and identify the Will he is contesting as not having been made by his father and which he did. The evidence of clear identification of the Will came from him when on page 256 of the record, he testified as follows:-
“In paragraph 4 of my deposition I mentioned a Will purportedly made by my father. If I see a certified true copy of the Will I would recognize it. The document shown is the document”.

In his first written statement on oath sworn to on 27th November, 2007, paragraphs 11 and 12 on page 33 of the record the appellant stated thus:-
i. “After the burial ceremony of our late father, One Ernest Ndu gave me a paper requesting me to attend the Probate Registry of the High Court, Awka which I did.
ii. At the Probate Registry, a document was read which they said was the Will of our late father indicating how he shared his properties. All the defendants, 1st to 8th were present with me when the Will was read.”
Both parties pleaded and frontloaded the document tendered by the appellant. From the entire pleadings and the evidence on record, exhibit A was clearly identified as the Will and Testament of late Japheth Obiechina Okafor which the appellant is underling.
From the pleadings and the evidence led, the respondents, in this appeal have the burden to prove the following:-
1. That the will was duly executed in accordance with the law
2. That the testator was of sound disposing mind at the time of execution
3. That the testator knew and approved the contents of the Will at the time of execution.
See OKELOLA V. BOYLE (supra) AT PAGE 548 where the Supreme Court stated the burden on propounder of a Will as follows:
“Where there is a dispute as to a Will, those who propound it must clearly show by evidence that prima facie all is in order, that is to say, that there has been due execution and that the testator had the necessary mental capacity and was a free agent”. See also, EZENWERE V. EZENWERE (2003) 3 NWLR (Pt 807) 238, 248, R 2.

Section 140 of the Administration and Succession (Estate of Deceased Persons) Law, Cap. 4, Laws of Anambra State of Nigeria, stipulates the way and manner a valid Will should be executed. It reads:-
“No will shall be valid unless it shall be executed in the manner hereinafter mentioned, that is to say
1. It shall be signed or thumb-impressed or otherwise marked at the foot or end thereof by the testator or by some other person in his presence and at his direction; and
2. Such signature, thumb-impression or mark, as the case may be shall be made or acknowledged by the testator in the presence of two or more witnesses who shall actually be present at the same time and shall see the testator’s signature, thumb-impression or mark at the time the same shall be affixed or acknowledged; and
3. Such witnesses shall attest and shall subscribe the Will in the presence of the testator;
4. But no form of attestation shall be necessary”.

The learned trial judge rightly placed the initial burden on the respondents as the party propounding the Will and in my view applied the correct principle of law when he examined the Will and came to the conclusion that this is a proper case where the maxim Omnia Praesumuntur rite esse acta should enure in favour of the respondents. The complaints of the appellants as regards the validity of the Will are in paragraphs 4 and 5 of his Amended Statement of Claim on pages 132-133 of the record. Those paragraphs read:
4. The purported Last Will and Testament of Chief Japheth Obiechina Okafor is invalid, inauthentic, obtained by fraud and/or forged and otherwise illegal for noncompliance with the law.
PARTICULARS OF THE FRAUD AND FORGERY
i. The said last will and Testament was not signed by Chief Japheth O. Okafor nor in his name by some other person in his presence and by his direction in such place on the will as that it is (sic) apparent on the face of the will that the testator intended to give effect by the signature of the writing signed as his will (sic).
ii. The said last will and testament was not signed in the presence of witnesses as the testator did not make or acknowledge the signature in the presence of at least two witnesses present at the same time.
iii. The alleged attesting witnesses did not attest and subscribe the will in the presence of the testator.
iv. The witnesses did not sign or attest the said Last Will and testament in the presence of each other and did not witness the said Chief Japheth O. Okafor sign the purported will
v. The said (sic) was made and produced by the defendants or their agents in secret after the death of Chief Japheth O. Okafor
vi. The said will is contrary to and violates the Wills Act and the provisions of laws relating to testamentary dispositions applicable in Anambra State.
5. In the alternative, the plaintiff avers that when testator was making the purported Will, if he ever made it, the testator was suffering under undue influence of the 1st Defendant, who was guiding him on what to do while he was seriously sick/ill

By virtue of Sections 85 and 86 (1) of the Evidence Act, 2011, the contents of a document may be proved either by primary or by secondary evidence.

Primary evidence means the document itself produced for the inspection of the Court. In this case, it was asserted that the document which is the Will was produced by the probate registry; it was duly certified as a true copy of the original by the probate registrar. By virtue of Section 146 (1) of the Evidence Act, there is a presumption of genuiness in favour of certified copies of documents, that section of the Evidence Act reads:-
“The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.”
A Community reading of the Sections 85-86(1) and 146 of the Evidence Act, 2011 clearly brings to the fore, the principle of law that the only means of proving the contents of a document is by production of the document itself. Where the document produced is a certified true copy duly certified in accordance with section 104 of the Evidence Act to be genuine, the presumption of genuiness enures in favour of the document particularly where the content of the document is substantially in the form and purports to be executed in the manner directed by the applicable law. In this case, the applicable law is Section 140 of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State earlier reproduced in this judgment. I am of the view that once the document under contention was produced and admitted in evidence, the learned trial judge adopted the right procedure by examining the contents of the document to see whether it was executed in compliance with the law. I have examined the Will (exhibit A), on its face, it is the Last Will and testament of Chief Japheth Obiechina Okafor of Orofia Ward Oranto Village, Ukpo. It was signed by him on 5th August, 1994. According to the attestation on the document it was signed by the father in the presence of two witnesses who also signed and stated to be present at the same time and who also signed the Will. By virtue of Sections 145 and 146 of the Evidence Act, there is in law a presumption of due and valid execution of the will. It is apparent from the entire submissions of the appellant’s counsel that he misunderstood the principle that the onus of proving the valid execution of a Will is on the propounders of the Will. First, the Onus of proof is not static, once there is prima facie evidence of the execution of the Will before the Court, in this case the will itself which the Court examined and came to the right conclusion that it attracts presumption of regularity, the onus shifted to the appellant who is the attacker of the Will to lead evidence in rebuttal of that presumption, See OKELOLA V. BOYLE (Supra) at Page 558 – 559 (B – F)

It is also apparent from his submissions that he laboured under the impression that the evidence of due or valid execution of the Will must come viva voce from the propounder of the will. The law is settled that where there is oral as well as documentary evidence, documentary evidence should be used as the hanger or the yard stick to assess the credibility of the oral evidence. This is so because a document once written is permanent and documents in most cases do not tell lies, human beings do. What I am saying in essence is that failure of the respondents to adduce oral evidence of due execution of the Will does not affect the probative value of the Will particularly when the document was not produced by them. On the appellant’s own showing, it was produced by the probate registrar and read to them at the probate registry and it was from the registry that the appellant himself obtained a certified true copy.

On nature of the presumption of regularity which enures in favour of a Will, See the Estate of LIONEL RANDLE (Deceased) (1962) 1 ALL NLR 132 at 137 where the Supreme Court referred to BLAKE V. KNIGHT 163 E.R. 821 held thus “in that case, it was held that positive affirmative evidence by the subscribed witnesses of the fact of signing or acknowledging the signature of a testator in their presence is not absolutely essential to the validity of a will. The Court may presume due execution by the testator upon the circumstances. In that case, Sir Herbert Jenner Fust, in his judgment said”.
“The first point to consider is, is it absolutely necessary to have positive affirmative testimony by the subscribed witnesses that the Will was actually signed in their presence or actually acknowledged in their presence; is it absolutely necessary, under all the circumstances, that all the witnesses should concur in stating that these facts took place: or is it absolutely necessary, where the witnesses will not swear positively, that the Court should pronounce against the validity of the Will? I think these are not absolute requisites to the validity of a will: I think the Court must take into its consideration all the circumstances of the case, and judge from them collectively whether there was not at least an acknowledgment of a signature, clearly existing on the face of the will at the time of attestation; I think, under all the circumstances of this case, that the Court can have no doubt that is what has taken place here….”
The evidence of the appellant in rebuttal of the presumption of regularity is that the said Will was not signed by Chief Japheth Obiechina Okafor nor in his name by some other person in his presence and by his direction in such place on the Will as that is apparent on the face of the Will. The alleged witnesses did not sign or attest to the Will in the presence of each other and did not witness Japheth Obiechina Okafor sign the Will. If the content of exhibit A is put side by side with the above testimony, it is not difficult to come to the conclusion that the evidence of the appellant is not credited and totally lacks probative value. The learned trial judge was on a firm ground when he applied the maxim of Omnia Praesumuntur rite esse acta.

I agree with the appellant’s counsel that the learned trial judge erred in law by making use of exhibits P and Q to carry out the exercise of comparison of the signature in the Will with the signatures on exhibits P and Q. Section 101 (1) and (2), of the Evidence Act which provides for such comparison reads:
“1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.
2) The Court may direct any person present in Court to write word or figure or to make finger impressions for the purpose of enabling the court to compare the words, figures or finger impressions so written with any word, figure or finger impression alleged to have been written or made by such person. Provided that where a defendant does not give evidence he may not be so directed to write such words or figures or to make finger impression.
3) After the final termination of the proceeding in which the Court required a person to make his finger impressions, such impressions shall be destroyed”.

Exhibit P is the specimen signature of DW1; it is not the signature of the testator. Exhibit Q is the undertaking allegedly given by the appellant. On the face of the document, it is apparent that it was given to the police. It is therefore a public document under Section 102 (a) of the Evidence Act. By virtue of Sections 89 (e) and 90 (1) C of the Evidence Act, only a certified true copy certified in accordance with the provisions of Section 104 of the Evidence Act is admissible.
The wordings of Section 104 of the Evidence Act is very clear and unambiguous, it is only an officer who has custody of the original and who in the ordinary course of his official duty is authorized to deliver copies of the document or who has custody of the document who can certify a public document. I am of the view that the appropriate officer who should have certify exhibit Q is the police officer who normally keeps custody of such documents. Such certification would have raised the presumption of geniuness in favour of the document.
In my view, exhibit ‘Q’ is inadmissible and ought not to have been admitted. An inadmissible document can not be used for comparison of a signature or form the basis of any finding by the court. Exhibit is hereby discountenanced. Having considered the entire evidence led, I am of the view that the error does not affect the conclusion of the learned trial judge that the presumption of regularity on the face of the Will enures in favour of the respondents.

The learned trial judge held that the appellant was not competent to give evidence as to whether there was due execution of the Will because on his own showing, he was not present when the Will was executed. Though one of the attesting witnesses was dead while the evidence of the surviving one was disregarded, it is my view that the attestation clause which appears on the Will is a sufficient confirmation of the due execution of the Will.

The onus is on the appellant who attacked the Will to substantiate by evidence the allegations of lack of capacity, undue influence and fraud. The appellant’s evidence is that it was the 1st defendant his mother, who signed the document and she was the one who invited those who signed the document. The appellant’s counsel argued that the appellant’s evidence is unchallenged and uncontroverted, the Court ought to have acted on it. Of course, the law is trite that a Court is at liberty to accept and act on unchallenged and uncontroverted evidence. There is a qualification to that principle of law, for the Court to accept and act on unchallenged and uncontroverted evidence, the evidence must in itself be admissible and must be credible. Where the evidence is glaringly incredible and not capable of being believed, the court will neither accept nor act on such evidence. In this case, the same witness who said the 1st defendant signed or forged the Will said he does not know when the Will was made. He later said the Will was forged after his father’s death. He also said he was not present on the day the Will was forged. If he was not present on the day the Will was forged, how did he know it was the 1st defendant who forged and signed the Will? The same appellant said Ik Okafor told him that he signed the Will when his father was bedridden. This his entire evidence on forgery and invalidity of the Will is hear say and clearly inadmissible. The evidence of the appellant in rebuttal of the due execution of the Will and allegation of forgery is not the kind of evidence any reasonable Court will accept or act on. The appellant who asserted that the 1st defendant forged the Will and signed it did not bother to tender any document containing the 1st defendant’s signature. He asserted the positive that the Will was forged. While the defendants asserted the negative. The law is that the onus is on the party who asserts the affirmative to prove his assertion. The onus is on the appellant who asserted that the will was forged to prove his positive assertion and this he must do beyond reasonable doubt since forgery or fraud is a criminal allegation. The appellant also stated in his 1st Further Written Statement on oath on page 143 of the record that at the time the Will was allegedly executed, the testator was not sound in mind, memory and understanding. DW1 (5th defendant) said the testator was never sick, DW2 under cross-examination, said that when he saw the testator two days before his death, the testator told him he was sick, he had high blood pressure. There was no evidence of the state of his alleged sickness, state of mind and mental capacity at the time he made the Will, See ADEBAJO V. ADEBAJO (Supra). There is no scintilla of evidence in respect of the alleged mental incapacity of the testator. On the contrary, the testator was the one who told DW2 himself two days before he died that he was sick which means his alleged sickness was not even apparent. In any case, the will was made on 5th August, 1994, the testator died five years later. There is no scintilla of evidence to show that the testator was sick in 1994 when he made the Will.
On the appellant’s allegation of undue influence, the learned trial judge after reviewing the evidence of the appellant and stating the relevant principle of law held as follows: as follows:-
“In this case, there is no evidence that the 1st defendant exerted any form of coercion on the testator. Aside from the sweeping assertion made by the plaintiff in his further written deposition on oath, no concrete evidence was laid in proof of the fact that the 1st defendant exerted undue influence on the testator I therefore hold that the plaintiff failed to prove his assertion that in making exhibit A, his father acted under undue influence exerted on him by the first defendant. I therefore resolve issue number one in favour of the defendants and hold that Exhibit A was duly executed by the testator and that in so doing he was not under influence of the 1st defendant”.

I find no reason to disturb the well considered evaluation of evidence and finding made by the learned trial judge. The law is settled that where a will is ex-facie duly executed in compliance with the statutory requirements, the Court will uphold it on the maxim ominia praesumuntur rite acta, that is to say all things are presume to have been rightly and duly performed unless there is cogent and credible evidence of fraud, forgery, mental incapacity and undue influence or coercion on the testator none of which has been established in this case. For these reasons issue 1 is resolved against the appellant.

Issue 2 is whether the Court below was right to hold that the late Chief Japheth Obiechina Okafor was at liberty to devise his landed property at Oranto Village, Ukpo the way he did in his will. On this issue, the appellant’s counsel submitted that the combined effect of Sections 135 (2), 136, 138 (1) (d) and 164 (1) of the Administration and Succession (Estate of Deceased Person) Law, Cap. 4, Revised Laws of Anambra State of Nigeria is to prevent a testator from devising by his will, family or communal land in which he has undivided share or interest though he is in possession of such land. He submitted that from the pleadings and the evidence led, the parties agreed that the testator built his Obi or family compound on an unshared portion of the extended family land which means that he only had a life interest in the property and could not dispose of it in a will. He further submitted that it is undisputed that under Ukpo native law and custom, it is the appellant who must inherit the ‘Obi’ or compound of late Chief Japheth Obiechina Okafor because it is his birth right as the Diokpala. He submitted that the law applicable to the purported will of late Chief Japheth Obiechina as far as deposition or devise of his “Obi” or compound is concerned is the law of the place where the land situates and that is the Ukpo native law and custom. He argued that there is no provision in the entire Administration and Succession (Estate of Deceased Persons) Law of Anambra State that excludes the application of customary law in considering the intrinsic validity of a will with regards to interest in land or that makes the application of borrowed English law or the Anambra State Law exclusive in the consideration of a will.

The respondents’ counsel submitted that Sections 137 (1) and 138 (1) of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State makes no provision whatsoever that the rights of a testator to devise his properties could in anyway be limited by customary law, he referred to IKECHUKWU NWOBU v. NWOBUEKE NWOBU & ORS (2007) VOL. 7, LAW REPORTS OF ANAMBRA STATE, PAGE 300 AT 310, JOSEPH ANUNOBI V. A. E. OKEKE & ORS, SUIT NO A/236/99. Judgment delivered by Hon. Justice M. I. Onochie (unreported).

Counsel submitted that it was never the case of the appellant that the testator built his compound on a family land which has not been partitioned He urged the Court to dismiss the appeal. The learned trial judge after considering the pleadings, the evidence led and the relevant law held as follows:-
“In Anambra State, the law relating to Wills is contained in Part IV of Administration and Succession (Estate of Deceased Persons) Law Cap. 4 revised Edition, Laws of Anambra State of Nigeria, 1991 Section 137(1) of the said law provided as follows:
“137(1) Subject to the provisions of this part, it shall be lawful for any person to devise, bequeath or otherwise dispose of any disposable property which he shall be entitled to at the time of his death, or any part thereof by a will made in writing and executed in manner hereinafter prescribed. A will made and executed in such manner shall be valid and binding on the estate of the testator”.
I have repeatedly held in my previous judgments that the provisions of our law are radically different from the provisions of the Wills Law of Lagos State, 1990; the Wills Law of Oyo State, 1990; as well as the Wills Law in the defunct Bendel State. In the Wills Law of those states, the power of a testator to make dispositions under a will is curtailed and limited only to properties which he can otherwise dispose of under customary law. There is no equivalent provision in our own Administration and Succession (Estate of Deceased Persons) Law (Supra)”.

The law is settled that an appellate court will not disturb the finding of facts by the lower court unless it is shown that the lower court did not properly evaluate the evidence led and therefore came to a wrong conclusion or that the finding is perverse. Applying the settled principle to this case, it is clear from the records that both parties agreed and confirmed that under the native law and custom of Ukpo where the testator lived, established his compound called “Obi” and died, it is the first male child who inherits the ‘Obi’ upon the death of his father. It is also common between both parties that the law which is applicable to making of Wills in Anambra State is the Administration and Succession, (Estate of Deceased Persons) Law of Anambra State. It is therefore clear that the learned trial judge rightly identified the real issue in controversy between the parties when he held as follows:
“The issue that really calls for determination in this case is whether under our law as it presently stands, a man can devise by way of a Will his compound or “Obi” to a person other than his first son. I must confess that I am very much in sympathy with the plaintiff and that I am not unmindful of the attachment which people from this part of the country place on the right of the Diokpala or first son to inherit his father’s ‘Obi’. Perhaps this is the time for us to revise our laws on disposition of property by a Will to bring them in line with those of the Old Western States and Lagos States. But until that is done, I do not have any option than to interpret the law as it presently stands. Issue number two is again resolved against the plaintiff.”

The relevant sections of the law to the issue under consideration are Sections 136, 137 (1), 138 (1), 164 (1) of the Administration and Succession (Estate of the Deceased Persons) Law of Anambra State. The law is trite that where the words used in a statute or law are plain and unambiguous, they should be given their ordinary and literal meaning.

Section 137 (1) stipulates that any person can make a will in respect of any disposable property he or she may be entitled to at the time of his death.

Section 136 defines “disposable property” as Property which a person shall be entitled to under any system of law in force in the state for an interest not ceasing at his death and which, if not sold or otherwise disposed of in that person’s lifetime or by his will, would devolve upon his heirs, executors or administrators. According to the same Section 136 property includes real estate and personal estate and real estate means buildings, messages, lands, rents and hereditaments whether freehold, customary or of any other tenure, and whether corporeal or personal and any undivided share thereof and any estate, right of interest (other than a chattel interest) therein, but does not include an undivided share or interest in family or communal land”.

Section 138 (1) states that all property may be disposed of by Will.

Section 164 (1) stipulates what law will be applied in case of conflict of laws: Those sections of the law reads:-
“Section 138 (1) the power of testamentary disposition given in this Part of this Law shall extend to-
a. All contingent, executory or other future interests in any real or personal estate, whether the testator may or may not be ascertained a the person or one of the persons in whom the same respectively may become vested and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will;
b. All rights of entry for condition broken and other rights of entry;
c. Estate pur autre vie whether there shall or shall not be any special occupant thereof and whether the same shall be freehold or of any other tenure and whether the same shall be a corporeal or an incorporeal hereditament; and
d. Such of the same estates, interests and rights respectively and other real and personal estate as the testator may be entitled to at the time of his death, notwithstanding that he becomes entitled to the same subsequently to the execution of his will
“Sections 164(1) and (2)
1) Subject to the other provisions of this section, the formalities and manner of making, and the intrinsic validity and effect of a will, so far as the will relates to an estate or interest in land, shall be governed by the law in the place where the land is situated.
2) Subject to the other provisions of this section, the formalities and manner of making and the intrinsic validity and effect of a will, so far as the will relates to an interest in movables, shall be governed by the law of the place where the testator was domiciled at the time of his death.
The side note to Section 164 reads: “conflict of laws”.
A careful reading of the provisions of Section 164 would clearly show that the conflict that the section provides for relates to the formalities and manner of making a Will, validity and effect of a will as it relates to land. The making of a will is unknown to customary law, therefore there cannot be any conflict between any customary law and the Administration and Succession (Estate of Deceased Person Law) in respect of formalities and manner of making a will, intrinsic validity or effect of a will. No one, not even the Court in its duty of interpreting the law has a right to import words not used by the legislature into the statute. The duty of the court is to confine itself to the words used in the statute unless such would lead to absurdity. If the legislature had intended that where there is a conflict, the customary law of the place where the land situates will prevail, it would have expressly stated so as was done in Section 3 (1) of the Wills Law, Cap 172, Laws of Bendel State 1976, which was considered by the Supreme Court in IDEHEN V. IDEHEN (1991) 6 NWLR (PT. 198) PAGE 382, OKE V. OKE (1974) 1 ALL NLR 443 AT 450. The position of the Supreme Court in IDEHEN’s case was dictated by the opening words of Section 3 (1) of the said Wills Law which are: “Subject to any customary law relating thereto”. This phrase is not in Section 137(1) of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State which confers on the testator the capacity or the right to bequeath or otherwise dispose of any disposable property which he shall be entitled to at his death by will.

By Section 136 of the Law disposable property include real estate and real estate include buildings and lands except an undivided share of interest in family or communal land.

Unlike Section 3 (1) of the Wills Law of Bendel State, Section 137 (1) of Administration and Succession (Estate of Deceased Persons) Law contains no qualification or limitation to the testator’s capacity to make a will or the property to be devised. The appellant’s counsel relied on Section 71 (3) of the Law and submitted that customary law is part and parcel of Nigerian Legal System and applicable in Anambra State. Section 71 (3) and (4) of the Law reads:
“71. Where a person dies intestate with regard to his estate or part of it, the provisions of this section shall apply to determine what law shall govern succession thereto.
(3) For the purposes of this section-
(a) Every citizen of Nigeria shall be presumed to be subject to customary law unless the contrary is proved;
(b) A purported marriage in accordance with any law shall be deemed to be a marriage in accordance with that law.
(c) “Customary law” shall include Islamic law of all sects and schools.
(4) Nothing in this section shall be construed to affect any disposition of property made by will.”
One of the cardinal principles of interpretation of statutes is that a section or sub-section of statue must not be read or construed in isolation. If the entire provisions of section 71 of the law is read together with part C of the law, it becomes very clear that the provision in Section 71 (3) is not applicable to any disposition of property made by will, it applies where a person dies intestate. I am thus of the firm view that the opening paragraph of Section 71 and the provision of 71(4) make it clear that customary law is not applicable to disposition of any property made by will.

I have perused the records in respect of the contentions of the parties on how the testator acquired the land on which he built his house and which both parties agreed is the ‘Obi’ under Ukpo native law and custom. As rightly stated by the learned trial Judge, it was the respondents who raised the issue of how the testator acquired the land in paragraph 8 of their Amended Statement of Defence as follows:-
“8. Still in further answer to paragraph 8 of the Amended Statement of Claim, the defendant’s state that members of the larger Okafor family gave not divided the property of their father Okafor Onyemachi up till date. When Chief Japheth Obiechina Okafor the testator was ready to build a house the Umu Onyemachi family only have a small portion of land from the family common land to him because the members of the family have not shared their lands. Chief Japhet Obiechina Okafor thereafter bought and fully paid for three adjoining pieces of land under Ukpo Native Law and Custom from three families Viz: Nwafor Izzu family, Nwanocha family and Umu Nkpuechina family in the presence of witnesses, it is these four pieces/portions of land that Chief Japheth Obiechina Okafor walled together into one compound and put up a two-storeyed family building on it with gate and two stores. Chief Japheth Obiechina Okafor has not got any other lands elsewhere or any share from his father’s land to which plaintiff or any other person can purport to lay claim to. The defendants say that their compound now in dispute is not an “Obu” as known in Ukpo Custom”. See page 167 of the record of appeal.

The appellant’s reply to the above averment as contained in paragraph 3 of his reply is that:-
“The plaintiff, in answer to paragraph 8 of the statement of defence states that irrespective of how a man’s living compound is acquired the said compound retains the character of his “Obi” or “Ngwulu” once the man founds his homestead there and is buried there upon his death”.

In paragraph 3 of his 2nd further written statement on oath on page 183 of the record, the appellant stated exactly what was averred in his reply.
However in paragraph 32 of his statement on page 36 of the record, he stated that the testator inherited the compound from his own father, Aaron Okafor. Under cross-examination, contrary to his evidence in chief, the appellant stated on page 265 of the records that Onyemaechi family has shared all their lands. The contention of the appellant’s counsel that the appellant’s case is that the testator’s ‘Obi’ was built on the unshared common family property is baseless. His evidence on the state of Onyemeachi family land is inconsistent and cannot be believed by any reasonable tribunal or court. The evidence of DW2 clearly established how the testator acquired the land on which he built his compound, he was an eye witness. He testified thus under cross-examination.
“It is not true that Japhet Okafor was allotted land where he build his house. I know Umuonyemaechi kindred. Umuonyemaechi kindred granted Japhet Okafor small portion of land within his compound. He was not granted land because he wanted to build a house. Umuonyemaechi families have not shared their property. It is not our custom that whoever wants to build a house is given a portion of land to build on. Umuonyemaechi granted land to the late Japhet Okoye about 1974-1974 so that he can have a back yard. I was present when he was granted the land. Land carved out and given to Japheth was part of the common land of Umuonyemaechi family. The compound of Japheth Okafor comprises the land granted to him by Umuonyemaechi family and other lands. It is not true that when Japheth wanted to build his house; the Umuonyemaechi family granted him part of their family land. Jacob Okafor paid E50, E100 for parts of the land that make up his compound. I was present when negotiations for the other lands he bought were made. (See page 275 of the record of appeal).

On the face of the above cogent and credible evidence of how the testator acquired the land on which he established his compound, a conclusion that the compound is on an unshared common land of testator’s family which he cannot dispose of by Will can not be supported

I agree with the learned trial judge that the duty of the Court is to interpret the law as it is and not as it ought to be.

The Administration and Succession (Estate of Deceased Persons) Law of Anambra State as it is now is that the capacity or the right of a testator to dispose of any property which he may be entitled to at death by will is not restricted or subject to any native or law and custom. For the above reasons, issue 2 is also resolved against the appellant.
In conclusion this appeal lacks merit and it is hereby dismissed by me. The judgment of the lower court is hereby affirmed.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, Misitura Omodere Bolaji-Yusuff, JCA. Indeed, I agree with his reasoning and the conclusion that the appeal is devoid of any semblance of merit and substance. It should be dismissed. In this regard, I also dismiss this appeal as lacking in merit. I adopt the said encompassing and elucidating judgment of my learned brother, Bolaji-Yusuff, JCA. I have no gainful addition to make appertaining to the said judgment. The decision of the lower court is thereby affirmed by me.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned Sister, MISITURA OMODERE BOLAJI-YUSUF, JCA. I am in complete agreement with the reasoning and conclusions therein.

Appearances

DR E.S.C. OBIORAH WITH A. C. OGBUODUDYFor Appellant

AND

A. ONWUALUFor Respondent