HARRISON OKECHUKWU OMENAZU v. VICTOR OMENAZU & ORS
(2019)LCN/13083(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/OW/371/2014
RATIO
WILLS: VALIDITY OF A WILL: WHO HAS THE DUTY TO PROVE THE VALIDITY OF THE WILL
The law is trite, as stated by the Respondents, that once there is a dispute as to the validity of a Will, the primary onus is on the party who propounds the Will, to show clearly that, prima facie, it was duly executed ? that the Will was made by the deceased as testator with requisite mental capacity, properly witnessed by at least two witnesses, who saw when the testator signed it, and in the presence of each other, and dated it. Once that is established, the duty shifts to the person disputing the Will to establish whatever defect he alleges against the Will, including improper execution, fraud, forgery,etc. See the case of Ize-Iyamu Vs Alonge (2007) ALL FWLR (Pt.371) 1570 at 1591; (2007) LPELR 8689 CA:
It is settled, that the burden of proof of the genuiness and authenticity of a Will lies on the party propounding it. Where there is a dispute as to a Will, as in this Case, the person who propounds it must clearly show by evidence that, prima facie, everything 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. Having done that, the burden is then cast upon the party who attacks the Will to substantiate by evidence the allegation made.PER ITA GEORGE MBABA, J.C.A
WILLS: THE CONDITIONS OF THE VALIDITY OF A WILL
See also Udo Vs Dan & Anor (2018) LPELR 44415 (CA); Ajakwe Vs Ajakwe & Ors (2016) LPELR 41046 CA; and Dawodu Vs Isikalu & Ors (2019) LPELR ? 46435 SC, where the Supreme Court, per Sanusi JSC said:
No Will shall be valid unless:
(a) It is in writing;
(b) It is signed by the testator or signed in his name by some other person in his presence and by his direction in such a place on the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature of the writing signed as his Will;
(c) The testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time;
(d) The witnesses attest and subscribe the Will in the presence of the testator, but no form of attestation or publication shall be necessary.PER ITA GEORGE MBABA, J.C.A
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
HARRISON OKECHUKWU OMENAZU Appellant(s)
AND
1. VICTOR OMENAZU
2. DANIEL OMENAZU
3. FRANKLIN OMENAZU
4. EVELYN OMENAZU
5. ROWELL OMENAZU
6. MRS. N.K. AZUMA
(Former Probate Registrar, High Court, Umuahia) Respondent(s)
ITA GEORGE MBABA, J.C.A (Delivering the Leading Judgment): Appellant filed this Appeal against the judgment of Abia State High Court in Suit No. A/369/2003, delivered on 16th March, 2014, by Hon. Justice L. Abai, who dismissed the claims of the Plaintiff and granted the reliefs sought by the 1st to 3rd and 5th Defendants/Counter Claimants, as well as that of the 4th Defendant/Counter Claimant.
At the Lower Court, the Plaintiff (now Appellant) had sought the following reliefs against the Defendants (now Respondents):
(a) A declaration that the purported Will No. 403 is null and void and a product of conspiracy, forgery and fraud in that the Will was allegedly deposited in the Probate Registry, Umuahia on February 5th, 1991 when Abia State was non-existent. Abia State was, in fact, created on August 27, 1991.
(b) A declaration that the codicil dated January 29th, 1991 and deposited in an imaginary Abia State Probate Registry is also a production of forgery, conspiracy and fraud and is therefore null and void.
(c) A declaration that the late Moses Ihekoromadu Omenazu died intestate and that by Ngwa Native Law and Custom, the
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Claimant/Appellant as the 1st son of the family is entitled to hold the estate of the deceased on trust for the rest of the family members until the estate is shared according to Ngwa Native Law and Custom.
(d) An Order of the Court directing that the Defendants be charged and tried for conspiracy, collusion, fraud and forging a Will and Codicil
(e) An Order of the Court directing that the 6th Defendant be charged and tried for offering bribe to Dominic A. Nwaogbe of Counsel to the Claimant in order to influence or prevent him from doing his legitimate duties as legal practitioner.
(f) An order of Court directing that the reading of a codicil without a Will sought to be amended by the Codicil is not procedural, null and void.
(g) The Sum of N100,000,000.00 (One Hundred Million Naira) being proceeds from the estate of late Moses Ihekoromadu Omenazu which the Defendants connived to hold over without the will and consent of the Claimant being the person accredited by Ngwa Native Law and Custom to hold the estate on trust until sharing is effected.?
The 1st to 3rd and 5th Defendants filed joint Statement of Defence and Counter-Claimed as follows:
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(a) A declaration that Moses Ihekoromadu Omenazu made a Will dated 29th day of January 1991 which was read and proved at the probate registry of Abia State High Court of Justice, Umuahia.
(b) A declaration that the Defendants are, by virtue of letter of administration granted them executors/Administrators beneficiaries and/or owners of personal property consisting of (1) Motor Vehicle 504 Peugeot SR Reg. No. Abia AE237NGK, (2) residential building at No. 25 Omenazu Avenue, Aba, (3) 2 Plots of Land No. 25 Omenazu Avenue, Aba, (4) Room 6 jointly with a big store with 3 apartments at No. 16 – 18 Faulks Road, Aba, (5) Six Plots of land at Nos. 17 ? 20 Omenazu Avenue, Aba, now 25 Omenazu Avenue, Aba, (6) Nos. 16 18 Faulks Road, Aba, jointly (two plots) of late Elder Moses Ihekoromadu Omenazu of Osusu Aba North Local Government Area Abia State of Nigeria as bequeathed and contained in the deceased?s Will dated 29th day of January 1991, read and proved.
(c) N1,000,000.00 (One Million Naira) special and general damages for various acts of trespass, interference committed by the Plaintiff with aid of his agents on or
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about 26th day of June 2003 before and thereafter over the aforesaid testamentary property in possession of the Defendants as Executors and/or Administrators thereof.
The 4th Defendant, on his part, filed a separate Statement of Defence and also Counter-Claimed, as follows:
(a) A declaration that Moses Ihekorormadu Omenazu died testate.
(b) A declaration that the Will/Codicil dated 29th January 1991 read and proved at Probate Registrar?s Office, Umuahia is the last Will and Testament of Moses Ihekoromadu Omenazu.
(c) The sum of One Hundred and Eighty Thousand Naira (N180,000.00) being rents collected from the and store at 17 Omenazu Avenue and 16/18 Faulks Road, Aba bequeathed to the 4th Defendant under the Will of Moses Ihekoromadu Omenazu.
(d) Refund of rents at the monthly rate of N2000 per room and store at 17 Omenazu Avenue and 16/18 Faulks Road, Aba respectively from April 2006 until the Plaintiff withdraws from his unlawful entry, use and occupation of the room and store at 17 Omenazu Avenue and 16/18 Faulks Road, Aba property of the 4th Defendant.
(e) An Order perpetually restraining the Plaintiff from
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further trespass into the said room and store at 17 Omenazu Avenue Aba and 16/18 Faulks Road, Aba, property of the 4th Defendant.
(f) One Million Naira (N1,000,000.00) general damages for the unlawful trespass of the Plaintiff into the room and store at 17 Omenazu Avenue Aba and 16/18 Faulks Road, Aba,property of the 4th Defendant.?
After hearing the case and considering the evidence adduced and the addresses of Counsel, the trial Court held:
I am satisfied that the Claimant has failed to prove beyond reasonable doubt that there was any fraud or forgery in relation to Will No. 403 of Moses Ihekorormadu Omenazu. I am satisfied that the propounders of the Will have proved Will No. 403 is valid and genuine and is the last Will and testament made by Moses Ihekoromadu Omenazu. The Claimant?s Suit is hereby dismissed.? (See Page 478 of the Records of the Appeal).
The trial Court, thereafter, granted the Reliefs sought by the Defendants in the separate Counter-claims, but in respect of damages, allowed the sum of N300,000.00 general damages to the 1st to 3rd and 5th Defendants for trespass and the
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same amount (N300,000.00) to the 4th Defendant as general damages for trespass. The trial Court also gave the 4th Defendant N1,500.00 per month (instead of N2,000) for the store at 16/18 Faulks Road, Aba, from April 2006, until the Claimant withdraws from the store, property of the 4th Defendant See pages 479 – 480 of the Records of Appeal.
Those are the decisions Appellant has appealed against, as per the Notice of Appeal on pages 481 to 483 of the Records of Appeal, filed on 2/6/2014. Appellant filed an Amended Notice of Appeal on 23/6/16, which was deemed duly filed on 4/4/17, wherein he raised three grounds of Appeal. He filed his brief of argument on 23/6/16, which was deemed duly filed on 4/4/17, too. Appellant distilled two Issues for the determination of the Appeal, as follows:
(1) Whether the trial Court was right when he held that the Will/Codicil subject matter of the proceeding was not forged and fraudulently contrived by the Defendants.
(2) Whether the trial Court was right in granting the Counter-claim of the Defendants/Respondents.
The 1st to 3rd and 5th Respondents filed their Brief of arguments on 3/5/17 and adopted the
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issues as distilled by the Appellant for determination of the Appeal. The 4th Respondent filed no brief, and when the Appeal came up for hearing, on 13/3/19, the parties adopted their briefs and urged us, accordingly. Appellant did not relate any of the Issues to the grounds of Appeal, formally, but a simple glance of the processes, shows that the Issue one flows from the ground 2 of the Appeal, which (without its particulars) states:
The Learned Trial Judge erred in law in concluding that the Will/Codicil subject matter of the proceedings was not a fraudulent contrivance by the Defendants.
In the same way the Issue 2 derived from ground 3 of the Appeal, which says:
“The Learned Trial Judge erred in law in granting the reliefs in the Counter-claim of the Defendants.
Counsel should always endeavor to formally relate their issue(s) to the ground(s) of Appeal, to save the Court from speculating on it, and to reduce the work-load of the Appellate Court. See the case of Ejiogu vs Nwauzoagba & Ors (2018) LPELR ? 44577 CA; Diamond Bank Plc Vs HRH Eze (Dr.) Peter Opara & Ors (2018) LPELR 43907
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SC; UBN Ltd Vs Odusote Book Stores Ltd (1995) NWLR (Pt.421) 563.
Arguing the Appeal for Appellant, Ogbonna C. Ajuzie Esq., on Issue one, said that Appellant had established his case and proved the allegation of forgery and fraudulent production of the Will/Codicil, beyond reasonable doubt, but the trial Court ruled otherwise. He conceded that allegations of fraud and forgery, being criminal offences, needed to be proved beyond reasonable doubt, as required by Section 135 of the Evidence Act, 2011.
Counsel said that the question before the trial Court was whether the codicil was made by the deceased before he died, or was forged by another, after the death of the deceased; not whether the Will was regular on its face. He argued that the act of franking/authenticating a document is to show who prepared it; that when there is nobody that prepared it, the document is worthless; he said that the Exhibit D (the Will/Codicil) was fraudulent, in that it was signed without the name of a Lawyer who made it; thus it was impossible for anybody (including the Court) to trace, if it was the deceased who gave the instructions, contained therein or some other person.
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Counsel added that the document was carefully made to conceal the person who fraudulently prepared the purported Will after the death of the deceased; that to make matters worse, the defendants/propounders of the Will neither called the lawyer who prepared it from the chambers of THEO NKIRE & CO to come and testify, nor did they call any person who witnessed the signing of the Will by the testator. He argued that the above showed that it was not the deceased that gave the instruction and the codicil was not his; rather that it was forged, with the intent to deceive. Counsel said the trial Court failed to examine the Exhibit D, but rather imported Exhibit K and used.
Counsel said the trial Court was in error, when it ignored Exhibit D and issues raised by the Appellant, and failed to apply the authorities he (Appellant) cited at the Lower Court. He relied on the case of Okafor Vs Nweke (2007) 10 NWLR (Pt.1043) 521, to the effect that, a Will is a legal document and legal process filed in Court, and should be authenticated.
Counsel referred us to the Black?s Law Dictionary, 9th Edition for the meaning of Will and probate, saying that a
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Will is a legal document and a Court process and whenever it is authenticated or franked by a lawyer, the principle of law in the decision of the Supreme Court in Okafor Vs Nweke (supra) should necessarily follow. He added that the particulars of fraud and forgery was that the Will/Codicil was unsigned as shown in Exhibit D; but that the trial Court had abandoned the Exhibit D and went for Exhibit K in a frolic that made defences for the Respondents, without regard to Appellant?s right to be heard.
Counsel also said that the Will was deposited in an imaginary Abia State, which was not in existence as at February 5, 1991, since Abia State was created on August 27, 1991. He relied on the case of UBN Plc and Anor Vs Ayodare & Sons (Nig.) Ltd & Anor SC.375/2001, to say that a document is the best evidence as it speaks for itself. He said that the document shows that the Codicil was deposited in Umuahia on 5th February 1991, when Abia State was not yet created. He relied on Exhibit H4 (the lodgment receipt) and on Exhibit A. He also relied on Section 128 of the Evidence Act, 2011. Counsel said there is no way a Codicil could have been
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deposited in the Probate Registry, Umuahia as at that date 5/2/1991; that the trial Court was wrong for not considering that point, or for explaining it away, with oral evidence of CW2.
Counsel also said that the trial Court admitted the Exhibit K (original Will & Codicil) suo motu; that the Court should have given the parties opportunity to address it on the document. He relied on Odedo Vs Oguebego (2015) 13 NWLR (Pt.1476) 236, as to the need to protect Appellants right of fair hearing. He argued that assuming, without conceding, that the trial Court saw the need to call for the original of the Will, the fact that the Codicil was alleged to be forged, unsigned and fraudulently contrived, was enough to make trial Court to call on the parties to see the said Exhibit K, before admitting it and basing its decision on it. He noted that the Court did not make reference to Exhibit D again, and based its decision on the Exhibit K; that the said Exhibit K was wrongly admitted by the trial Court. He urged us to expunge the Exhibit K, and retrace everything the trial Court did on the basis of the said Exhibit K, as the same would
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collapse upon the expunge of the Exhibit K. He relied on UAC Ltd Vs Macfoy (1961) 3 ALL ER 1169, where Lord Denning said:
“Any purported exercise of any function being without any legal or constitutional authority was null and void and of no effect If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient for the Court to declare it to be so. And every proceeding, which is founded on it, is also bad and incurably bad. You cannot place something on nothing and expect it to stay there. It will collapse.
Counsel submitted that the decision of the trial Court, having been founded on the Exhibit K, was therefore baseless, null and void and of no effect. He added that a judge is an adjudicator not an investigator, and so must determine issues based on evidence placed before him by the parties. He cannot go in search of evidence for any party. Counsel relied on Audu Vs INEC (2010) 13 NWLR (Pt.1212) 456; Ucha & Anor. Vs Elechi & 1774 Ors (2012) 3 SC (Pt.1) 26 at 71.
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On Issue 2, whether the trial Court was right to grant the Counter-Claims, Counsel answered in the negative, saying the Respondents did not prove the Counter-Claims as required by law, the same being separate actions, to be proved, independently. Sawaba Vs Gaadi (2016) ALL FWLR (Pt.823) 1867. Also, Counsel relied onOgbonna Vs A.G. Imo State (1992) 1 NWLR (Pt.220) 2; Gowon Vs Ike Okongwu (2003) FWLR (Pt.147) 1027, on the standard of proof in civil cases. And in declaratory reliefs, as in this case, Counsel said the Counter-claimant must prove his position by adducing concrete, cogent and compelling credible evidence in support of the claim, as the Court does not grant a declaratory relief upon the weakness of the defence or defendant?s admission. Thus, the Counter-claimant must succeed on the strength of his own case. Sawaba Vs Gaadi (supra); Kodilinye Vs Odu (1935) 2 WACA 336; Nwokidu Vs Okaru (2010) 3 NWLR (Pt.1181) 362; Omisore Vs Aregbesola (2015) All FWLR (Pt.813) 1771.
Pursuant to the above Counsel said the Respondents had a duty to prove their claims, that there was a Will/Codicil Exhibit D, made by the deceased. Counsel
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argued that since the trial Court erred by admitting suo motu, Exhibit K and examining it without doing the needful, and having failed to consider Exhibit D, properly tendered and admitted, the decision was bound to be set aside. Counsel asserted again, that the Court was wrong to admit the Exhibit K suo motu and to rely on it to give judgment to the Counter-claimants, without hearing from the Appellant. He relied again on Odedo Vs Oguebego (supra); TAPP IND. VS PROV. LIQUIDOR TAPP IND. (1995) 5 NWLR (Pt.393) 9; Olusanjo Vs Olusanya (1983) SCNLR 134; Hairods Ltd Vs Antipalaje & Anor. (1986) NWLR (Pt.43) 603, saying that the trial Court failed to comply with or abandoned the principles of natural justice, which is rooted in the concept of rule of law.
He urged us to resolve the Issues for Appellant and to allow the appeal.
The 1st to 3rd and 5th Respondents? Counsel, C.N. Enyeribe Esq., on Issue one, said the trial Court was right in its decision; that the Will forms the wishes of the testator and it will be absurd to ask the Court to void the wishes of a dead man, because the lawyer who prepared the document which carries the wishes, did
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not properly frank the document. He said that the signature or name of the lawyer who prepared the Will is not part of a Will.
Counsel submitted that once there is a dispute as to the validity of a Will, the primary onus is on the party who propounds the Will to show clearly that prima facie, the Will was duly executed ? that it has the name of the testator, was properly witnessed by two witnesses and it was signed by the testator and dated. He relied on the case ofIze-Iyamu Vs Alonge (2007) ALL FWLR (Pt.371) 1570 at 1591.
Counsel said that once that primary duty is discharged, it becomes the duty of the assailant or impugner, who contests the Will, to substantiate his claim against the Will; for example if the challenger says the Will is not properly executed or that it is tainted with fraud or forgery, etc, that becomes his burden to discharge ? Adamu Vs Ikharo (1988) 4 NWLR (Pt.89) 478.
Counsel said the Exhibit D is the C.T.C. of the Will/Codicil, while Exhibit K is the original copy; while Exhibit D was made available to the Appellant, upon application and payment of the necessary fees required by law. He said that
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by Section 146(1) and (2) of the Evidence Act, 2011, Courts are enjoined to presume that C.T.C. of a document is genuine.
Counsel said it was common knowledge that the Court Registry was recently equipped with computers and photocopying machines; that in those days processes were typed and original copies, typed out, were duly executed and usually the signature column would be appended with the letters ?sgd? to authenticate it. That that was the case in Exhibit D. Counsel relied on the case of Odesanya Vs R.T.D.C.L.M. (2016) ALL FWLR (Pt.848) 619, to say that once the genuiness or validity of a document (in the nature of Exhibit D) is called to question, the best way to resolve it is to produce the original, bearing the signature.
He said that by Order 22 Rule 1 of the Abia State High Court (Civil Procedure) Rules, 2009, the High Court may, in all causes and matters, make any order which it considers necessary for the doing of justice, whether such an order has been expressly asked for or not. Counsel said the trial Court saw the need to call for the original copy of the Exhibit D and ordered for the production of same in accordance with
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the rules of practice. He reproduced the provisions of Order 24 Rule 5 of the High Court (Civil Procedure) Rules of Abia State and said that, by that provisions, the trial Court, in pursuant of fair play and need to do justice and determine all questions submitted to it, was right to order for the production of the Original Will ? Exhibit K.
Counsel added that the Appellants was not forth right or chose to be economical with the truth, when he said that the trial Court did not sit on 14/5/2014 (when Exhibit K was produced), and that the Court did not call for address of the parties on it. Counsel referred us to pages 2 and 3 of the Supplementary/Additional Records of Appeal where the proceedings of 14/5/14 were recorded, and that the document was produced and admitted in evidence, without objection by the Counsel for the parties including Onwudara, C.K. Esq for Appellant. Counsel said that Appellant was trying to indict the trial Court, especially as he omitted the proceedings of 14/5/2014 in the Records of Appeal compiled and transmitted to this Court by him.
Counsel said it should be noted that the documents emanated from the probate Registry, Umuahia. He
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referred us to the evidence by CW3, who admitted that through Exhibit G the Probate Registry Umuahia applied to the Probate Registry Imo State Owerri for transfer of Will 403 to Abia; that CW3 further admitted that Will 403 was transferred to Abia State (see pages 298 – 299 of the Records of Appeal).and the Exhibit D came by that process. Counsel further said that in Exhibit H6 (CTC of CW2s evidence at the Magistrates Court), the CW2 admitted that Will 403 was transferred to Abia State in a sealed envelop; that the lodgment receipt number was also written on Exhibit K, produced in Court, and shown to all the lawyers involved in the case.
Counsel said the errors complained about by Appellant, on the face of the document, were administrative blunders, which cannot be visited on the Respondents. He relied on OGWE VS IGP (2015) 61 NSCQR 627. Counsel urged us to hold that document was not forged.
On Issue 2, whether the trial Court was right to grant the reliefs sought in the Counter-claim, Counsel answered in the affirmative. He said that all that Respondents needed to prove, to succeed in the case, was that the Will had been
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made, and once that was proved the onus shifted to the Appellant to establish his allegation of fraud or forgery of the Will.
Counsel noted that in his pleadings, Appellant had averred that the father made no Will, that he had died in testate. But that under cross examination, Appellant said the father did not make a Will as he had no property to give, but that he shared his empty lands among his 8 Sons, while he was alive. Counsel then wondered about the properties Appellant was asking the Court to declare him as trustee of, pending when they are shared, having admitted that the father shared his property while alive to his 8 Sons!
He urged us to resolve the issues against the Appellant and dismiss the Appeal, with punitive cost.
RESOLUTION OF THE ISSUES
The facts of this case, in my opinion, throw-up, again, the unhealthy tussle over inheritance of the fortune left behind, at death, by parents for children and other family members; that often, they elect to fight dirty, and even kill, to short-change, cheat and cajole each other in the scheme to appropriate alone or reserve the fortune for a few or some selected members of the family, making it to
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appear as a curse, to be rich and leave behind wealth for children! Of course, only lazy and ungrateful children/spouses would fight and kill each other over the estate of their parent/spouse!
Appellant in this case was the first son of late Elder Moses Ihekoromadu Omenazu. His father had many children including the 1st to 4th Respondents. The 5th Respondent was one of the surviving wives of the deceased. Appellant may have been a problem to the father while alive and so made himself a stranger to the father?s Will. He wanted to enjoy the operative native law and custom of the Ngwa people, to take charge of and control the estate of his late father, claiming to do so in trust for the other beneficiaries of the estate, pending the sharing of the estate amongst them. But his brothers and his step mother (1st to 5th Respondents) had pleaded the Will made by the father, which the Appellant disputed, claiming same to be fraudulently obtained and forged. Of course, the trial Court upheld the Will ? as per Exhibits D and K, and by it, granted the Counter-claims sought by the Respondents.
I shall consider this appeal on the two Issues formulated
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by the Appellant and take them, together. Was the trial Court right to hold that the Will was proved and that it was not forged or fraudulently contrived by the Respondents, and to rely on same to grant the reliefs sought in the Counter-claims
The law is trite, as stated by the Respondents, that once there is a dispute as to the validity of a Will, the primary onus is on the party who propounds the Will, to show clearly that, prima facie, it was duly executed ? that the Will was made by the deceased as testator with requisite mental capacity, properly witnessed by at least two witnesses, who saw when the testator signed it, and in the presence of each other, and dated it. Once that is established, the duty shifts to the person disputing the Will to establish whatever defect he alleges against the Will, including improper execution, fraud, forgery,etc. See the case of Ize-Iyamu Vs Alonge (2007) ALL FWLR (Pt.371) 1570 at 1591; (2007) LPELR ? 8689 CA:
It is settled, that the burden of proof of the genuiness and authenticity of a Will lies on the party propounding it. Where there is a dispute as to a Will, as in this Case, the person
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who propounds it must clearly show by evidence that, prima facie, everything 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. Having done that, the burden is then cast upon the party who attacks the Will to substantiate by evidence the allegation made.?
See also Udo Vs Dan & Anor (2018) LPELR ? 44415 (CA); Ajakwe Vs Ajakwe & Ors (2016) LPELR ? 41046 CA; and Dawodu Vs Isikalu & Ors (2019) LPELR ? 46435 SC, where the Supreme Court, per Sanusi JSC said:
No Will shall be valid unless:
(a) It is in writing;
(b) It is signed by the testator or signed in his name by some other person in his presence and by his direction in such a place on the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature of the writing signed as his Will;
(c) The testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time;
(d) The witnesses attest and subscribe the Will in the presence of the testator, but no form of
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attestation or publication shall be necessary.
I have already said that the burden of proof is on the party disputing a Will to establish his fears/claims. In the case of Anya Vs Anya & Ors (2014) LPELR ? 22479 CA, it was held:
Once the propounders of the Will have prima facie satisfied the Court as to the question of the execution and that the testator, being free and capable, the burden of leading evidence is cast on the people assailing the instrument. It devolves on them to show by admissible credible evidence the onslaught they have directed at the Will in the nature of want of capacity, undue execution or that the signature on the Will is not that of the testator.? Per Mshellia JCA.
See also Nze Edozie Okafor & Anor Vs Ugwumba Uche Okafor & Anor (2016) LPELR 40457 CA, and Anumege Vs Anumege (2014) LPELR ? 23996 CA, where my lord, Orji-Abadua JCA said, relying on Johnson & Anor Vs Maja & Ors (1953) 13 WACA 290:
Where there is a dispute as to a Will, those who propound it must show by evidence that prima facie all is in order; that is to say, that the testator had the
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necessary mental capacity and was a free agent. Once they have satisfied the Court, prima facie, the burden is then cast upon those who attack the Will and that they are required to substantive by evidence the allegation they have made as to lack of capacity, undue influence and so forth. See also Okelola Vs Boyle (1998) 2 NWLR (Pt.593) 533.
It should also be noted that the solicitor, who prepared the Will, is not part of the requirement for the validation of the Will. See Okafor Vs Okafor (2016) LPELR 40457 CA, where we held:
“the fact that a solicitor who wrote and read the will to all the witnesses did not sign as the maker of the document was inconsequential as that is not a pre-requisite for validation of a Will.?
In this case, at hand, the Appellant had denied the existence of a Will by his father, and when the Respondents asserted the existence of a Will, and produced same, Appellant attacked it, alleging forgery and that it was fraudulently contrived by Respondents.
To prove the above allegations, he (Appellant) alleged that the Exhibit D (Exhibit K), being the Will/Codicil could not have been made by his father before
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his death; that the franking/authentication of the document did not show the name of the lawyer who signed it, and that the Will, which was made on 29/1/91, carried some description that it proceeded froma lodgment at the Probate Registry, Umuahia, Abia State, where it was lodged on 5th February, 1991, whereas Abia State came into existence on 27th August 1991! Appellant also quarreled with the way the trial Court obtained and used the Exhibit K (the original copy of the Will) which was earlier tendered as Certificate True Copy – Exhibit D.
It is obvious that, that submission was not honest, as Appellant appeared to be economical with the truth, when he vilified the trial Court for admitting and using Exhibit K to resolve the disputes. Appellant had claimed that the trial Court admitted the Exhibit K, suo motu, without calling on the parties to address the Court on it, and that the Court scouted for evidence for the Respondents by so doing. He also said that the admission of the said Exhibit K was not done in the open Court!
Those were very unfair and false allegations against the trial Court and, in my view, exhibition of mischief and recklessness by
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Appellant and his Counsel, especially as they tactfully omitted the proceedings which carried what transpired in Court on 14/5/2014 from the Records of Appeal transmitted to this Court by them. If the Respondents did not compile and transmit the Supplementary Records of Appeal to this Court, Appellant would have sold that lies and mischief against the trial Court to us. Pages 2 and 3 of the Supplementary Records of Appeal show that there was a sitting on 14/5/14 and the parties were present (including Appellant) except the 6th Defendant. Onwudara C.K. Esq represented the Claimant, while F.I. Nwaogwugwu represented 1st to 3rd and 5th Defendants; P.O.N. Ogbonna appeared for the 4th Defendant. The following transpired:
Court: on the last date I ordered the probate Registrar to produce in Court the original copy of the document in dispute
Court: the Representative of the Probate Registrar is present.
Mr. N.C. Udoka: Affirms and states in English language. I am a civil servant with the probate Registry, High Court, Umuahia. I am an Asst. Registrar, Probate Division High Court of Justice, Umuahia. I was served
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with the Order of this Court which was brought to my attention by the Chief Registrar. I have produced the original document.
Court to Counsel: Have a look at it. I will then admit it in evidence.
Mr. Onwudara: I have seen it.
Mr. Nwogwuogwu: I have seen it.
Mr. Ogbonna: I have seen it.
Court: The original copy of the ?Codicil made on 29/1/1991? by Moses Ihekoromadu Omenazu is admitted in evidence ?K? (it is a Brown Envelope)
Court: Witness is discharged. Do Counsel need to further address the Court.
Mr. Nwogwuogwu: The document speaks for itself
Mr. Onwudara: No
Mr. Ogbonna: No
Court: The matter is adjourned to 16/5/2014 for judgment.
The above exposes the lies and mischief of the Appellant who said, as follows in Appellant?s Brief:
4.11 The Appellant having established that it clearly proved beyond reasonable doubt that Exhibit D was fraudulent and forged; but unfortunately the trial Court never examined the said exhibit D rather he imported Exhibit K.
4.18 It is further submitted at this point that the learned trial Judge erred when he neglected the above point which shows
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substantial proof of forgery and fraud in the production of the document itself and leads to one irresistible conclusion that the Codicil was clearly forged.
4.19 The second point in the particulars of fraud and forgery was that the Will/Codicil was unsigned as shown in exhibit D. We shall not dwell on the point as the trial Court erred when he abandoned the said Exhibit D properly tendered and admitted, and went on its own frolic to descend and import Exhibit K and making defences for thedefendants/Respondents having regard to the Claimant/Appellants right to be heard
4.32 The Court neglected and abandoned the said Exhibit D and admitted Exhibit K suo motu and based its entire judgment on the Exhibit K
4.37 I must state that the judgment was delivered on 16th day of May 2014, the said document marked Exhibit K produced on 14th May, however the Court did not sit on that day (14 May) rather the Court sat last on 28th March, 2014 before the judgment on 16th May. This is clear from the Records at pages 457 and 463, where the Court stated that:
The Registrar has been unable to compile the records
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and trace the evidence due to irregular endorsements. I ask that Counsel list out the dates to assist her. The matter is adjourned to 16th May, 2014.? (Underlining mine) (See Pages 13, 15, 17 and 18 of the Appellant?s Brief.)
Appellant was the person who produced and tendered the Exhibit D. He had earlier taken out a motion seeking an order of Court to compel the 7th Defendant to produce and ?deliver to the Chief Registrar, High Court, Aba two certified true copies of each of the following documents for onward transmission to the Applicant (Appellant):
(i) Purported WILL No.403 of late Moses Ihekoromadu Omenazu which was allegedly deposited in the Probate Registry, Umuahia on February 5, 1991.
(ii) Codicil amending the Purported WILL No. 403 of the said late Moses Ihekoromadu Omenazu.
That application was granted on 9/5/2007. (See pages 106 ? 107 of the Records). Appellant had argued that the Exhibit D was a forgery and did not disclose the name of the lawyer who prepared it. The trial Court therefore had cause to order for the production of the original copy of the document from
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which the C.T.C was made as Exhibit D. That Order issued on 7/5/14 is carried on page 461 of the Records, as follows:
UPON THIS SUIT COMING UP before the Court and after hearing from Counsel on both sides. Mr. Onwudara for Claimant and P.O.N. Ogbonna for 4th Defendant.
IT IS ORDERED AS FOLLOWS:
That the Probate Registrar, High Court of Justice, Umuahia (or her representative) produce before the Assignment Court sitting at High Court Aba presided over by Hon. Justice L. Abai on the 14th May, 2014, the original copy of the last Will/Codicil of late Moses Ihakoromadu (sic) Omenazu No. 403 deposited at the Probate Registry.
I have already reproduced what transpired on 14/5/14, when the said original copy of the Will/Codicil was produced and marked Exhibit K, and the fact that the parties and Counsel (including Appellant) were in agreement with the process and procedure, and they even declined the offer by the Court to be addressed further on the document. Of course, the trial Court, in my view, acted within the law to seek the production of the original document from the custody of the Probate Registrar for comparism and use. See Order 22
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Rule of the Abia State High Court (Civil Procedure) Rules, 2009, which allows the Court to make such orders necessary for the purpose of doing justice, whether expressly asked for or not, by parties. And by Order 24 Rule 5 of the same Rules, it is stated:
Where it appears that any paper of the deceased, being or purporting to be testamentary, is in the possession of, under the control of any person, the Court may in a summary way, whether a Suit or proceeding respecting probate or administration is pending or not, order him to produce the paper and bring it into Court.
Appellant, who earlier asserted that the father died intestate and did not make a Will, but later changed his stand by obtaining Court order for the production of the C.T.C. of the fathers Will (Exhibit D), should have been happier to have the original copy of the said Will/Codicil as produced by the Probate Registrar, as per the Exhibit K (which the Court referred to) and there is nothing to show that it was not the same as Exhibit D ? the certified true copy of Exhibit K!
In the case of Okafor Vs Okafor (Supra), this Court held:
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it is not unusual for the Courts in a clear case to form their opinion as to handwriting, by comparing a genuine specimen with a disputed one but the opinion and observation made in respect of the disparities in the writings ought to have been known to the parties in open Court so as to attract their reactions before making his final findings per Agube JCA.
That was what the trial Court did, as per the supplementary Records of Appeal!
On pages 468 469 of the Records, the trial Court made the following findings about Appellant:
Under cross examination it is his evidence that his father did not make a will or codicil? His father did not tell him such documents existed and so it must be forged? He admitted that Exhibit B confirmed Will No. 403 was deposited in the Probate Registry Owerri. He went on to say, his father had no property to share, as during his lifetime he shared his empty plots to his 8 Sons. Also in Exhibit D, the house his father sold to Sister was included and two plots he sold to one Barrister Nwala included. He went on to admit his father owned several properties but said the land at
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plots 17 20 Omenazu was his share given to him by his father. He admitted his other brothers had plots in that area. He admitted he collects rents from the two commercial stores allegedly given to the 4th defendant. No. 17 Omenazu Avenue, Aba had no tenants.
On page 469, the trial Court further said that, under Cross examination, CW3, Rev. Onyeike, Court Administrator and Probate Registrar ?admitted that by Exhibit D, the testator said he had revoked his Will made in 1988. He admitted Exhibit D contains the features of a Will.?
It is therefore, clear that the trial Court considered the Exhibits D and K as the same document, but preferred to refer to same as Exhibit K (that being the original copy). See page 473 of the Records, where the trial Court said:
A consideration of the evidence as led by the parties show that the document in dispute is referred to by them as Will/Codicil. A consideration of the document exhibit K (D and H2) shows that it is headed CODICIL TO MY WILL DATED 15th Day of March 1988.
Thus, whether the Court mentioned Exhibit K or Exhibit D, it meant one and the same document
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the last Will/codicil No. 403 of late Moses Ihekoromadu Omenazu, No. 403 deposited at the Probate Registry High Court Owerri, per Exhibit H/4 dated 5/2/91. There is also evidence that the Will was lodged in the Probate Registry, Owerri, on 5/2/91. The trial Court observed on page 477 of the Records of Appeal, as follows:
This brings me to exhibit A (now A1) and J dated 17/6/02, inviting claimant and others to the reading of the ?last will and testament of Moses Ihekoromadu, deceased.? In that invitation it is stated that the last Will and testament was deposited on the 5th February 1991? in then Probate Registry High Court, Umuahia.There is no doubt that Abia State was not in existence on 5th February, 1991. It is however, the evidence of CW2 the then Probate Registrar Owerri, which evidence I believe that the Will No. 403 was still deposited at the Probate Registry, High Court, Owerri as at 19/2/2002 when he wrote to Barrister C.C.T. Adiele. See evidence of CW2 under cross examination
I think the Appellant was only trying to advance his mischief, too far, when he tried to fault the Exhibit D (or
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Exhibit K) alleging forgery, that it claimed to have been lodged in Probate Registry, Abia State on 5/2/1991, when Abia State was not in existence; that Abia State was created on 27/8/1991. Appellant or his Counsel should know, or is expected to know, that Exhibit K (as every Probate instrument) lodged in the Probate Registry, Owerri, stood automatically transferred to Probate Registry, Umuahia, the Capital of Abia State, upon the creation of Abia State from the parent State Imo State, on 27/8/1991. Thus, Exhibit D or K would reflect the Probate Registry, Umuahia (no more Owerri) upon the creation of Abia State, as at the date the parties were invited for the reading of the last Will of their father.
I cannot therefore see anything fraudulent or untoward about the Exhibit D or K, to suggest fraud or forgery, as the Will/Codicil of the deceased father of Appellant and of 1st to 4th Respondents, and husband of the 5th Respondent.
On page 478 of the Records of Appeal, the trial Court said:
After a consideration of the evidence before the Court and the pleadings, I am satisfied that the Claimant has failed to prove beyond
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reasonable doubt that there was any fraud or forgery in relation to Will No. 403 of Moses Ihekoromadu Omenazu. I am satisfied that the propounders of the Will have proved Will No. 403 is valid and genuine and is the last Will and testament made by Moses Ihekoromadu Omenazu.
I agree completely, with the trial Court and hold that the Will being proved, and the allegation of fraud/forgery unsubstantiated, the case of the Respondents in respect of the counter claims, stood established.
I resolve the Issues against the Appellant, and dismiss the appeal for lacking in merit.
Appellant shall pay the cost of this Appeal, assessed at Fifty Thousand Naira (N50,000.00) only, to the 1st to 3rd and 5th Respondents.
THERESA NGOLIKA ORJI-ABADUA. J.C.A.: I agree.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have the privilege of reading before now the judgment just delivered by my learned brother Hon. Justice Ita George Mbaba, JCA.
I completely agree with his reasoning and conclusions. I have nothing more to add.
I also abide by the consequential order with regard to costs.
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Appearances:
Ogbonna C. Ejuzie Esq.For Appellant(s)
C.N. Enyeribe, Esq. for 1st to 3rd and 5th Respondents.
4th respondent: not representedFor Respondent(s)
Appearances
Ogbonna C. Ejuzie Esq.For Appellant
AND
C.N. Enyeribe, Esq. for 1st to 3rd and 5th Respondents.
4th respondent: not representedFor Respondent
