EMMANUEL U. EZENWERE & ANOR. V. DONALD EZENWERE & ORS.(2002)

EMMANUEL U. EZENWERE & ANOR. V. DONALD EZENWERE & ORS.

2002)LCN/1190(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 14th day of May, 2002

CA/PH/191/93

 

Before Their Lordships

JAMES OGENYI OGEBEJustice of The Court of Appeal of Nigeria

SYLVANUS ADIEWERE NSOFORJustice of The Court of Appeal of Nigeria

MICHAEL EYARUOMA AKPIROROHJustice of The Court of Appeal of Nigeria

Between

 

  1. EMMANUEL U. EZENWERE
    2. SALOME EZENWEREAppellant(s)

 

 

AND

  1. DONALD EZENWERE
    2. CHRISTIAN EZENWERE
    3. EMILIA EZENWERE
    4. CATHERINE EZENWERE
    5. VIRGINIA EZENWERERespondent(s)

M.E. AKPIROROH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Owerri High Court sitting at Owerri, delivered on 27th July, 1993 in Suit No. HOW/302/87.
The Respondents’ case in the lower court put briefly was that the deceased Anthony Ijeoma Ezenwere, a native of Ndi Okike kindred of Aro Umuonyeche Owerri, was a retired Customary Court Official who married four wives and had eighteen children. During his life time, the deceased acquired real property in various places where he worked as Customary Court Official. On his retirement, he sold the properties and with the proceeds of sale and the assistance of his large family, he built a large Estate at Egbu Owerri which he named Silver Valley Estate.
Sometimes in 1986, when he had completed part of the Estate, he moved into the Estate with his most junior wife, Salome, 2nd defendant and her son, 1st defendant, and left his other wives and children behind at his ancestral house of four rooms, as the Estate had not been completed.
Not quite long, he became very ill, on 10th August, 1987 when he was seventy-five years old and later died. When the deceased had not been buried, the Appellants boasted that the entire Silver Valley Estate belonged to them. This prompted the Respondents to go to the land Registry and the Probate Registry to make inquiry. At the land registry, their inquiry revealed that a purported Power of Attorney made by the deceased in favour of the 1st Appellant dated 10th March, 1987, by which the entire Silver Valley Estate was purported to have been sold to the 1st Appellant for the sum of N10,000.00. At the Probate Registry, their inquiry revealed that the deceased was purported to have made a will dated 10th December, 1986. When it was read on 11th November, 1987 the deceased purported to have devised the Estate to the 1st Appellant to whom the deceased allegedly sold the entire Estate for N10,000.00.
Soon after the burial of the deceased, the Respondents commenced this action in the High Court, Owerri challenging the purported Power of Attorney and the Will on the ground of fraud and undue influence.
The Appellants’ case put briefly was that the deceased had a house at No. 50 Douglas Road, Owerri which was built on family land. Silver Valley Estate was purchased by his father and built it up. When his father died, he was forcibly buried at 50 Douglas Road, Owerri by Egbu Elders contrary to his father’s wish. All his brothers knew the hospital where their father was admitted and died but none of them visited him.
His father donated a Power of Attorney, Exhibit C to him on 10/3/87 and he purchased the Silver Valley Estate from him for the sum of N10,000.00. His father also made a Will, Exhibit D, in which he devised the Silver Valley Estate to him exclusively.
At the end of the trial, and in a reserved judgment, the reliefs claimed by the Respondents were granted.
Dissatisfied with the decision of the Court, the Appellants have appealed to this Court and in accordance with the Rules of Court, learned counsel for the Appellants filed a brief of argument and distilled three issues for determination as follows:
“ISSUES FOR DETERMINATION
(a) Whether the trial Court was right in setting aside the Will, the subject matter of the suit and the Power of Attorney on grounds different from that on which the validity of the documents were challenged which grounds constituted no issue at the trial and on which no evidence whatsoever was led by either of the parties.
(b) Whether it was proper for the learned trial judge to grant a relief not asked for by the parties.
(c) Whether the Power of Attorney executed in favour of the 1st Appellant (Exhibit “C”) is invalid assuming, without conceding, that the Appellants did not prove due execution of the Will.”
The Respondents’ counsel also filed a brief of argument and distilled four issues for determination as follows:-
“ISSUES FOR DETERMINATION
1. Did the Plaintiffs/Respondents by their statement of claim and in evidence challenge the validity or authenticity of the document purported to be the Will of late Anthony Ijeoma Ezenwere? In other words, was there a dispute as to the document purported to be the last will and testament of late Anthony Ijeoma Ezenwere?
2. If the answer to the first issue is in the affirmative, did the Defendants/Appellants who propound the purported Will discharge the primary onus of proving that there has been due execution that late Anthony Ezenwere had the requisite mental capacity and that it was freely executed by him as required by law? In particular section 9 of the Will Act 1837.
3. If the Defendants/Appellants who propound the purported Will as that of late Anthony Ijeoma Ezenwere did not show by evidence that prima facie, there was a valid Will does the onus shift to the Plaintiffs/Respondents who cast aspersions on the validity of the Will to prove their allegations against the Will with requisite evidence? In other words, in a case challenging the purported will, on whom is the primary onus or burden of proof that the Will prima facie is valid, placed by law? Is it the propounders of the Will i.e. the Appellants or the challengers of the Will i.e. the Respondents.
4. Whether the term of the purported Will by which the Estate was devised to the Appellants and the Power of Attorney by which the same Estate was sold to the Appellants are consistent and do not reveal fraud, or at least are not absurdities. Did it form part of the case of Appellants in the High Court’s?”
On the first issue, learned counsel for the Appellants submitted that once all the grounds upon which the Power of Attorney and the Will were challenged are not proved or established, the case must fail, stressing that the Court cannot give judgment to a party who failed to establish his case as required by law. It was also his submission that the Respondents neither alleged that the Will was not duly executed as required by law nor did they give any iota of evidence on it. He further argued that it was wrong for the Lower Court to have entered judgment for the Respondents on the ground that the Appellants did not prove the due execution of the Will when it was not the issue before the Court. Reliance was placed on the case of AJIDE V. KELANI (1985) 3 NWLR (Pt.12) 248 at 267. Counsel also submitted that the case of the Respondents must stand or fall on the basis of their pleadings and evidence led before the Court, pointing out that the submissions of counsel for the Respondents on the issue of due execution of the Will are legally misconceived and ought to have been rejected by the trial Court and relied on the cases of ACKA & ANOR. V. AKURE (1987) 1 NWLR (Pt.47) 74. He also relied on the cases of OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt.114) 172 at 189; UWEGBA V. ATT-GEN. BENDEL STATE (1986) 1 NWLR (Pt.16) 303 and MOHAMEMD V. ALI (1989) 2 NWLR (Pt.103) 349 at 370. He further argued that the lower court which is bound by the parties pleadings erred in law by departing from the pleadings to give the Respondents judgment on a ground which never arose from their pleadings and evidence. It was also his contention that the Court erred in law and also misdirected itself when it formulated the issues for determination to include “whether the last Will and Testament purported to have been made by the testator on 16th December was properly executed” and therefore valid. Reliance was placed on the cases of BAMGBOYE V. OLANREWAJU (1991) 4 NWLR (Pt.132) 157; GALVERT V. FALLON (1960) 1 ALL E.R. 281 and OKE-BOLA V. ALHAJI A.T. MOLAKE (1979) 12 S.C. 61 at 62. He further submitted that the Court misplaced the onus of proof in the matter when it held that:
“D.W.1. in his evidence did not give iota of evidence at the execution of the Will.”
He also contended that the Lower Court erred in law in holing that a Will does not satisfy the provisions of section 9 of the Wills Act 1837 if none of the executors of the Will is called to testify as to the simultaneous signing of the Will with the testator, stressing that the judgment of the trial Court based on the Appellants not having proved the execution of the Will is therefore speculative and perverse and relied on the cases of SAKA LAWAL-OSULA & ORS. V. MODUPE LAWAL-OSULA & ORS. (1993) 2 NWLR (Pt.274) 158 at 173 and RE RANDLE (1962) 1 All N.L.R. 1 (Pt. 1) 130 at 137.
In reply to this issue, learned counsel for the Respondents submitted that the parties joined issues on the genuineness, validity or authenticity of the alleged wills from the state of the pleadings, and that the validity of the Will purported to have been made by the deceased was challenged by the Respondents and as such a dispute has arisen as to the genuineness and the validity of the Will. It was also his submission that the learned trial judge was right in holding that the appellants failed to discharge the onus placed on them by failing to call evidence of those who were present during the execution to describe how the Will was executed stressing, that since they failed to discharge the initial onus placed on them, no onus is placed on the Respondents to prove the allegation of undue influence, fraud, forgery, and lack of testamentary capacity. Reliance was placed on the cases of JOHNSON & ANOR. V. MAJA & ORS. 13 WACA 290 and NELSON & ANOR V. AKOFIRAN (1959) LLA 143. He further argued that the sale of the Silver Valley Estate by Exhibit ‘C’ and its only by Exhibit ‘D’ of the same property (Silver Valley Estate) are inconsistent acts and indicative of collusion/fraud or undue influence and do not show that late Anthony Ijeoma Ezenwere was truly a free agent at the time he made Exhibit D. Reliance was placed on the case of ADESANYA & ANOR. V. OLATUNJI & ANOR. (1970) 2 ALL N.L.R. 247. He further contended that these inconsistencies or conflicts between Exhibit ‘C’ (Power of Attorney) by which the deceased allegedly sold the Silver Valley Estate to only the 1st Appellant and Exhibit D, the purported Will by which the same Estate was devised to only the Defendants/Appellants to the exclusion of other wives and children of the deceased are enough to excite the suspicion of any Court to place such onus on the Appellants to prove that that the deceased knew and approved of the content of the Will. He finally submitted that the judgment of the learned trial Judge is justified having regards to the pleadings, the evidence led, and the law on the issue.
In a matter of this nature, the onus is on the part propounding a Will to satisfy the Court that the document is the last will of a free and capable agent. In JOHNSON & ANOR. V. MAJA & ORS. (supra), the West African Court of Appeal held thus:
“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. Once they have satisfied the Court, prima facie, as to those matters, it seems to me that the burden is then cast upon those the attach the Will, and they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence and so forth.”
See also ADESANYA V. ANOR V. OLATUNJI & ANOR. (supra) and OKELOLA V. BOYLE (1989) 5 NWLR (Pt.110) 46.

At this stage, I would like to reproduce section 9 of the Wills Act of 1837. It provides as follows:
“Every Will shall be in writing and signed by the testator or acknowledged by the testator in the presence of two witnesses at one time, who shall attest the Will.”
Section 9 of the Wills Act of 1837 reproduced above introduces evidential requirements in the making and proof of a Will particularly whenever the Will is challenged as not being authentic as was done in this case. In OKELOLA V. BOYLE (1983) 5 N.W.L.R. (Pt.539) 533 at 554, there is a dicta to the effect that where a Will is ex facie duly executed, the Court may pronounce for it on the maxim omnis pra esumuntur rite esse acta but the maxim applies only with force where the Will is entirely regular in form and no suspicion is attached to the Will.
An issue that arouse the suspicion of the Lower Court was that late Anthony Ijeoma Ezenwere was alleged to have made a Will, Exhibit D by which he devised the estate to the Appellants, the same Anthony Ijeoma Ezenwere again, sold the same property to the 1st Appellant before his death as borne out from Exhibit C. It is my view that the sale of the Estate by Exhibit C to the 1st Appellant and the devise by Exhibit D of the same property to the Appellants are inconsistent acts which render the Will suspicious. In ADESANYA & ANOR. V. OLATUNJI & ANOR. (1970) 2 All NLR at page 247, it was held that:
“Where circumstances exist which excite the suspicion of the Court and whatever their nature may be, it is for those who propound the Will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document and it is only where this is done that the onus is thrown on those who oppose the Will to prove fraud or undue influence or whatever else they rely on to displace the case made for proving the Will.”
The inconsistencies or conflicts between Exhibit C by which the deceased allegedly sold the estate to only the 1st Appellant and Exhibit D, the purported Will by which the estate was devised to only the Appellants to the exclusion of other wives and children of the deceased are enough to excite suspicion of any Court to place such onus on the Appellants to prove that the deceased knew and approved of the content of Exhibit D, the Will.
At page 63 lines 23 – 35 of the records, the learned trial judge said:
… When cross-examined by counsel for the Plaintiff, the 1st defendant admitted that he paid his father N10,000.00 as shown in Exhibit C, the Power of Attorney and it was also in respect of the same property that the Will was made. At the time of the purported sale, the property had been disposed of by Will. The question is why did the same Testator seek to sell the same property Willed to D.W.1 and his mother, brothers and sisters to D.W.1, alone?”
At page 64 lines 28 – 32 of the records, he continued:
…It is obvious that having devoid the property registered as 7/67/132, referred to in Exhibit C there was nothing to transfer by Exhibit C”.
It is therefore my view that the Appellants have not discharged the onus cast on them by law to satisfy the Court that the deceased not only approved the contents of the Will, but that he also executed it.
This issue is therefore resolved in favour of the Respondents against the Appellants.
On the second issue, learned counsel for the Appellants submitted that the learned trial judge was wrong to have ordered that “the properties of the deceased testator still unsold including the Silver Valley Estate shall be shared among the four wives of the deceased and the eighteen children in accordance with the custom of Owerri people because the Respondents did not ask the Court to share the property of the deceased and the relief was not pleaded and relied on the cases of EKPENYONG V. NYANG (1975) 2 S.C. 71; EDEBIRI V. EDEBIRI (1997) 4 NWLR (Pt. 498) 165 and CARLEM V. UNIVERSITY OF JOS (1994) 1 NWLR (Pt. 323) 631.
In reply, learned counsel for the Respondents submitted that the trial Court did not grant the Respondents any additional relief sought, pointing out that the trial Court only made consequential pronouncement not of fact but of law governing the state of affairs created by the judgment. He further contended that if the learned trial judge had refrained from saying that the estate of the deceased would be shared among all the beneficiaries, the position would in law and fact be the same, that is to say, upon the death intestate of late Anthony Ijeoma Ezenwere, his estate would have devolved among the four wives and the eighteen children in accordance with the custom of the Owerri people.
Relief three granted to the Respondents at page 66 of the records lines 27 – 35 reads as follows:
“3. The properties of the deceased Testator still unsold including the Silver Valley Estate shall be shared among the 4 wives of the deceased and the 18 children in accordance with the custom of Owerri, people…”
It is beyond argument that the Respondents did not ask for relief 3 reproduced above in paragraphs 25(a) and (b) of their statement of claim at pages 15 – 16 of the records. At the hearing of the appeal, counsel conceded that they sought only two reliefs. I am therefore in full agreement with the submission of the learned counsel for the Appellants that the learned trial judge had no jurisdiction to award a relief which was not asked for by the Respondents in their statement of claim. See EKPENYONG V. NYONG (supra) and EDEBIRI V. EDEBIRI (supra). This issue is therefore resolved in favour of the Appellants against the Respondents.
On issue three, learned counsel for the Appellants submitted that if the setting aside of the Will was proper, (which was not conceded) invalid Will, cannot be used to void the Power of Attorney, Exhibit C executed in favour of the 1st Appellant stressing, that if the Will is invalid, it implied that the deceased died intestate and as such the Silver Valley Estate which he sold to the 1st Appellant as borne out by Exhibit which he sold to the 1st Appellant as borne out by Exhibit C, cannot be questioned in the absence of any fraud or any other vitiating factor which was proved by the Respondents in this case. He referred to paragraphs 18, 19, 20 and 21 of the statement of claim in which the Power of Attorney was pleaded and submitted that apart from paragraph 18 there was no evidence led in support of paragraphs 10 – 21 of the statement of claim and as such they are deemed to be abandoned. Reliance was placed on the cases of NITEL PLC. V. ROCKONOH PROPERTY LTD. (1995) 2 NWLR (Pt. 378) 43 and SARAKI V. SOCIETE GENERAL BANK (1995) 1 NWLR (Pt.271) 325. He further argued that there is copious evidence that he 1st Appellant validly bought the Silver Valley Estate for the sum of N10,000.00 form his father, the owner of the property and relied on page 42 lines 26 – 34 of the records. He finally submitted that the Power of Attorney which is undisputedly executed by the deceased in favour of the 1st Appellant is valid and extant.
In reply, learned counsel for the Respondents referred to paragraphs 18, 19, 20 and 21 of the Statement of Claim relating to the Power of Attorney, Exhibit C and also the evidence of P.W.1 on it at p.30 lines 19 – 20 of the records where he gave ample evidence on Exhibit C and described it as “Fake”. He then submitted that throughout the entire gamut of the appellants’ statement of defence, they did not join issue with the Respondents on the Power of Attorney, Exhibit C. he contended that no paragraph of the statement of defence denied the averments in paragraphs 18 and 19 of the Statement of Claim relating to Exhibit C, the so called Power of Attorney, stressing that there was no denial or any response at all to the averments concerning the Power of Attorney Exhibit C even though evidence was led on it, but there was no challenge against it. He then argued that where a defendant fails to deny specifically any allegation of facts on the statement of claim, a denial cannot be reasonably inferred from the Defendants’ pleading that fact will be taken as admitted and therefore regarded as established at the hearing without any further proof and relied on the cases of OMIBIRHI V. ENATEVWERE (1988) 1 NWLR (Pt.73) 746. It was also his contention that the Appellants never made any case for the validity or genuineness of Exhibit C the (Power of Attorney) and referred to paragraphs 20 and 21 of the Statement of Claim at page 14 of the records where they pleaded that the purchase of the Estate for N10,000.00 by the 1st appellant is fraudulent as the Estate which is family property is worth over N350,000.00 and that they would rely on the Customary Law of Owerri by which family property cannot be sold without the consent of the family.
He then referred to paragraph 16 of the Appellants’ statement of defence where they pleaded that the Silver Valley Estate of Egbu is the property of late Anthony Ijeoma Ezenwere and not to the entire Ezenwere family and as such the deceased had the right to sell or devise it to anybody he liked.
He further argued that the question of the deceased having sold the Estate to the 1st Appellant was carefully avoided, stressing that having avoided it and never made it an issue at the trial court, they cannot make it an issue in this court.
Reliance was placed on the cases of FADIORA V. GBADEBO (1978) S.C. 219; ORODOYIN V. AROWOLO (1989) 4 NWLR (Pt.114) 172 at 190.
It was the contention of learned counsel for the Appellants that the relevant pleadings of the Respondents concerning the Power of Attorney are paragraphs 18, 19, 20 and 21 of the Statement of Claim, except paragraph 18 of the Statement of Claim, there was no evidence led in support of paragraphs 19, 20 and 21 of the statement of claim and as such, they are deemed to have been abandoned. In paragraphs 18, 19, 20 and 21 of the statement of claim, the Respondents pleaded as follows:
“18. Following the boast by the Defendants, the Plaintiffs conducted a search at the Lands Registry Office which revealed a purported Power of Attorney made by Anthiony Ijeoma Ezenwere in favour of the 1st defendant for a consideration of N10,000.00 (Ten thousand naira) by which the Estate was passed to the 1st defendant exclusively. Certified True Copy of the Power of Attorney registered on No. 37 in volume 398 of the Registry is hereby pleaded.”
19. The plaintiff shall at the hearing contend that the purported Power of Attorney is a nullity, it being a fraud on the family which is jointly entitled.
20. The Plaintiff shall further contend that the idea of purchase of the Estate for N10.000.00 by the 1st defendant from his father is bogus and fraudulent as the estate which is family property is worth over N350,000.00.
21. The Plaintiff shall rely on the customary law of Owerri by which family property cannot be sold without the consent of principal members of the family.”
At page 30, lines 19 – 29 P.W.1 of the records testified as follows:
” …. before that, we searched the Registry and found a Power of Attorney made by our father to the 1st defendant. we applied for and obtained a certified copy of the document. This is the document registered as 37 at 37 in Vol. 398 Owerri 7 seek to tender it. No objection Certified True Copy of Power of Attorney registered as 37/37/398, Owerri tendered. No objection and admitted and marked Exhibit C …”
The evidence of P.W.1 reproduced above shown clearly that P.W.1 led ample evidence on paragraphs 19 – 21 of the Statement of Claim and as such the submission of learned counsel for the Appellants is totally misconceived.
On the submission of learned counsel for the Respondents that throughout the entire gamut of their statement of defence, they did not join issue with the respondents on the issue of the Power of Attorney, Exhibit C, and that no paragraph in the statement of defence denied the averments in paragraphs 18 and 19 of the statement of claim.
At this stage, I would like to reproduce paragraph 16 of the statement of defence which in my opinion denied paragraphs 18 and 19 of the Statement of Claim. Paragraph 16 of the Statement of Defence at page 22 of the records reads as follows:
” ….The defendants deny the averments in paragraphs 20 and 21 of the statement of claim. It is their contention that the Silver Valley Estate at Egbu is the property of late Anthony Ijeoma Ezenwere exclusively. It is not family property of the entire Ezenwere family. Anthony Ijeoma Ezenwere has a legal right to sell or devise his personal property to anybody he likes. There is no law known to the Defendants as Customary Law of Owerri.”
It is my view that the Appellants joined issues with the Respondents on the Power of Attorney, Exhibit C in paragraph 16 of the Appellants’ statement of defenece reproduced above. Equally, the Appellants denied paragraphs 18 and 19 of the statement of claim in paragraph 16 of their statement of defence.
The contention of learned counsel for the Respondents that the sale of the Silver Valley Estate to the 1st Appellant for the sum of N10,000.00 was carefully avoided and not made an issue at the trial Court is totally misplaced. At page 42 lines 26 – 35 of the records; the 1st Appellant under cross-examination said:
“……………………  xxxED by Okoronkwo.
Q. You purchased that Silver Valley from your father?
A. Yes.
Q. Your father gave you Exhibit C, Power of Attorney dated 10th March, 1987?
A. It is true.
Q. You paid your father N10,000.00 cash s shown in Exhibit C?
A. Yes.”
In paragraph 18 of the Statement of Claim at page 14 of the records, the Respondents pleaded as follows:
“18. Following the boast by the defendant, the plaintiffs conducted a search at the Land Registry Office which revealed a purported Power of Attorney made by Anthony Ijeoma Ezenwere in favour of the 1st defendant for a consideration of N10,000.00 (Ten thousand naira) by which the Estate was passed to the 1st defendant exclusively.”
From what I have said above, I am unable to accede to the submissions of learned counsel for the Respondents. This issue is resolved against the Respondents in favour of the Appellants.
Having resolved issue one, which I consider to be the main issue in this appeal against the Appellants in favour of the Respondents, the appeal therefore lacks merits and it ought to be dismissed and I hereby dismiss it accordingly. I affirm the decision of the court below save for the 3rd relief which is hereby struck out. The Respondents are entitled to costs assessed at N5,000.00 against the Appellants.

JAMES OGENYI OGEBE, J.C A.: I read in advance the lead judgment of my learned brother Akpiroroh, JCA, just delivered and I agree with his reasoning and conclusion.
Save for the 3rd reliefs granted by the lower court unsolicited and suo motu which I hereby set aside, I dismiss the appeal and affirm the decision of the trial court with costs of N5,000.00 in favour of the respondents.

SYLVANUS ADIEWERE NSOFOR, J.C.A.: I have had a preview of the judgment by my Lord, Akpiroroh, J.C.A, just delivered. I agree with the conclusion. I dismiss the appeal and endorse the order for costs.

 

Appearances

M.O. Nlemedim, Esq.,For Appellant

 

AND

Nonye Okoronkwo, Esq.,
C.U. Njipuome, Esq., and
C.O. Ola, Esq.,)For Respondent

 

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