GERALDINE UCHECHUKWU NZERIBE v. HENRY UGOCHUKWU NZERIBE & ANOR (2013)

GERALDINE UCHECHUKWU NZERIBE v. HENRY UGOCHUKWU NZERIBE & ANOR

(2013)LCN/6324(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2013

CA/OW/16/2010

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

Between

GERALDINE UCHECHUKWU NZERIBE Appellant(s)

AND

1. HENRY UGOCHUKWU NZERIBE
2. NGOZI ONUOHA Respondent(s)

RATIO

THE BURDEN OF PROOF IN CIVIL MATTERS

WHETHER OR NOT THE BURDEN OF PROOF CAN REST ON A DEFENDANT TO PROVE A PARTICULAR FACT

From what has been stated above, the general burden of first proving the fact is usually on the Plaintiff who brought the action, and who would lose the case if no evidence at all were adduced in the case. However, there are circumstances or times when the burden will be on the Defendant to prove a particular fact. Such a fact may arise from the pleading. Thus, in civil cases, the state of the pleadings would determine where the burden of prove of a particular fact would lie. By Section 134 of the Evidence Act, 2011 that burden would be discharged on a balance of probabilities or preponderance of evidence. See IGWE v. A.I.C.E (1994) 8 NWLR (Pt. 353) p.459 at 478; UGBO v. ABURIME (1993) 2 NWLR (pt.273) p.101 at 109; GWANI v. EBULE (1990) 5 NWLR (pt.149) p.201 at 215; KWASALBA (NIG.) LTD v. OKONKWO (1992) 1 NWLR (pt. 218) p.407 at 416. At the close of evidence, the trial court would then evaluate the evidence adduced before it so as to determine where the evidence preponderates or the balance tilts. See MOGAJI & ORS v. ODOFIN & ORS (1978) 4 S.C (REPRINT) p.55 at 65.
It is the trial court that has the primary duty of evaluation and ascription of probative value to such evidence adduced before him. In other words, the evaluation of the evidence and ascription of probative value to the evidence are the primary functions of a trial court that saw, heard and therefore assessed the witnesses that testified before it. See IRIRI v. ERHURHOBORA (1991) 2 NWLR (pt. 173) p.252, S.S GMBH v. ID. IND. LTD (2010) 11 NWLR (Pt. 1206) p.889; ANYAMALE v. ATANDA (1988) 1 NWLR (Pt.68) p.28; AJAO v. AJAO (1986) NWLR (pt.45) p.806; KIMDEY v. MILITARY GOVERNOR GONGOLA STATE (1988) NWLR (Pt. 77) p.445 and OSHE v. OKIN BISCUITS LTD (2010) 11 NWLR (Pt. 1206) p.482. That being so, where the trial Court has clearly evaluated the evidence of the parties; and properly appraised the facts and ascribed the right probative value to such evidence, an Appeal court has no business to substitute its own views on the facts, with that of the trial court. See FASIKUN II v. OLURONKE II (1999) 2 NWLR (pt.589) p.1 and IBANGA & ORS v. USANGA & ORS (1992) 5 S.C. (Reprint) p.49. PER TSAMMANI, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT

An Appeal court will only interfere if the findings of facts or the evaluation of the evidence by the trial court are found to be either perverse or show a misapprehension of the facts or it has led to a miscarriage of justice. In arriving at a decision, whether or not to interfere, the appellate court would consider, from the facts or evidence on record, whether:-
(a) there was evidence before the trial Court upon which its decision was based;
(b) the trial court wrongly accepted or rejected any evidence tendered or adduced at the trial;
(c) the evidence adduced by either party to the dispute was properly weighed on the imaginary scale against the evidence on the other side of the scale. In other words, whether the trial court properly approached the evidence before it;
(d) whether the evidence properly admitted was sufficient to support the decision based on the inference drawn from the accepted facts by the trial Court.
See ARE v. IPAYE (1990) NWLR (Pt. 132) p.298; FATUADE v. ONWOAMANAM (1990) NWLR (Pt.132) p.322; ABUSOMWAN v. MERCHANTILE BANK LTD (No. 2) (1987) 3 NWLR (Pt.60) p.190; MAFIMISEBI v. EHUWA (2007) 2 NWLR (Pt. 1018) P.385; OLABANJI v. OMOKEMU (1992) NWLR (Pt. 250) p.671; OMOMEJI v. KOLAWOLE (2008) 14 NWLR (Pt.1106) p.180 and HASSAN v. ALIYU (2010) 17 NWLR (Pt. 1223) p.547.
The complaint of the Appellant on this issue is that the action filed by the Respondents in the Court below, as constituted was incompetent as regards the parties thereto, and that no legal cause of action against the Appellant was established by the Respondents. That in that respect, the trial Court had no jurisdiction to hear and determine the suit. It is necessary to point out here that, the question or issue of jurisdiction is not a matter to be taken for granted. It is an issue that is very fundamental and goes to the competence of the court, for if a Court is not competent to entertain a claim or suit, it would be a waste of valuable time to embark on hearing and determining the matter or suit. See OLOBA v. AKEREJA (1988) 3 NWLR (Pt. 84) p.508 and SHA’ABAN v. SAMBO (2010) 19 NWLR (pt. 1226) p.353. PER TSAMMANI, J.C.A.

FACTORS TO BE CONSIDERED WHEN THE ISSUE OF JURISDICTION IS RAISED

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Abia State High Court, Aba Judicial Division delivered by Ory Zik Ikeorha; J on the 13th day of July, 2009.
The Appellant was the Defendant in the court below, while the Respondents were the Plaintiffs. The Plaintiffs/Respondents, claim at the Court below was for:
1. A DECLARATION that the LAST WILL of Dr. Reuben Chukwudinma Nzeribe, Medical Director of Saint Anthony’s Hospital Limited, Aba (deceased) made on 25th day of March, 1972 has not been implemented to the letter by the Defendant and her agents and privies as far as the plaintiff is concerned.
2. ORDER that the Sections 5, 6, 7, 8 and 15 for the said WILL be implemented fully by the Defendant and her privies or agents to the benefits of the plaintiffs estate of the said Doctor Reuben Chukwudinma Nzeribe from the time of his death up to date of which estate the plaintiff is a beneficiary.
3. ORDER for an account by the Defendant or her agent/agents or representatives of all earnings and income of the estate.
At the hearing the plaintiffs/Respondents called the 1st Plaintiff/Respondent who testified that, they are biological children of late Dr. Reuben C. Nzeribe, and that the Defendant/Appellant is their half – sister. That the late Dr. Reuben C. Nzeribe made a will wherein he appointed Mrs. Benedict N. Nzeribe as trustee and executor of the said will. That by the said will, some benefits were left for the plaintiffs/Respondents. He stated further that, he made several demands on the Defendant/Appellant to make his benefits available to him, but she failed to give him anything. That several letters were written to the Defendant/Respondent by his solicitor, yet she failed to do anything for him. The said will and the letter were tendered and admitted in evidence as Exhibits “A” and “B” respectively.
The Defendant/Appellant did not call any evidence at the trial, as the application to enable her do so was refused by the trial court. The trial court believed the case of the plaintiffs/Respondents and proceeded to give judgment in their favour. It is against that judgment that the Defendant/Appellant has filed this appeal.
The Appellant initially filed a Notice of Appeal dated the 27/7/09 and filed the 04/8/09. Another Notice of Appeal dated 10/8/09 was filed the 10/8/09. The Appellant subsequently withdrew the Notice of Appeal dated 27/7/09 and filed 04/8/09, while adopting that filed the 10/8/09. This appeal has therefore been argued on the Notice of Appeal dated and filed the 10/08/2009. The said Notice of Appeal as contained at pages 130-133 of the Record of Appeal consists of three (3) Grounds of appeal. They are hereunder reproduced without their particulars as follows:
1. The Learned Trial Judge misdirected himself in-law when he entertained this suit and entered judgment therein, awarding the three reliefs contained in the judgment in favour of the plaintiffs against the Defendant.
2. The Learned Trial Judge misdirected himself in-law in entertaining the suit when from the nature of the reliefs sought by the plaintiffs and the evidence adduced by the plaintiffs, particularly Exhibit A, the court lacked the jurisdiction to entertain the suit.
3. The Learned Trial Judge erred in-law by fairing to appreciate that in view of Exhibit A produced by the plaintiffs, and the failure of the plaintiffs to produce the documents pleaded in paragraph 5 of their statement of claim, their suit is clearly incompetent and the Learned Trial Judge lacked the jurisdiction to entertain it.
As required by the Rules of this Court, parties filed and exchanged Briefs of Argument. The Appellant’s Brief Arguments was dated the 06/2/2010 and filed the 15/2/2010. Therein, two (2) issues were distilled for determination as follows:-
1. Whether the learned Trial Judge had the jurisdiction to entertain the suit of the plaintiffs as constituted (Ground 2)
2. Whether the Plaintiffs (Respondents) established any cause of action or proved their case against the Defendant (Appellant), to justify the judgment entered in their favour by the learned trial Judge. (Grounds 1 & 3).
The Respondents’ Brief of Argument was dated the 14/4/2010 and filed the same date. It was however deemed filed the 19/2/2013 vide Motion on Notice dated and filed the 14/4/2010. The issues formulated by the Appellants were adopted by the Respondents as the issues arising for determination in this appeal.
Arguing issue one, learned Counsel for the Appellant submitted that, the court below lacked the jurisdiction to entertain the suit as constituted, because:
(i) the necessary parties who are in fact, indispensable parties to the suit were not before the court. That the trustee and executors named in Exhibit A are indispensable parties to the suit.
(ii) the Plaintiffs did not by their pleadings establish that the Defendant/Appellant is neither (sic) a trustee nor an executor of the Will (Exhibit A), so as to make her a necessary party and a party who would answer to the claim. That no cause of action has therefore been disclosed against the Appellant as to sustain the action as constituted.
(iii) by the above state reasons, the suit was improperly constituted and therefore the trial court lacked the jurisdiction to entertain the suit or make an award in favour of the Respondent against the Appellant.
Learned Appellant’s counsel then referred to the case of BUHARI v. YUSUF (2003) 14 NWLR (pt. 841) p.446 at 519 paras. B-F, to submit that the trustees and executors named in Exhibit A are indispensable parties without whom, the court would not have the jurisdiction to adjudicate on the Respondents’ suit. That there is no way an issue of administration of the estate of Dr. Reuben c. Nzeribe can be adjudicated upon without the persons who are named as the administrators of the estate under the will (Exhibit A). The cases of YUSUF v. DADA (1990) 4 NWLR (pt.146) p.657 at 682 paras. A-C; OJUKWU v. KAINE (1997) 9 NWLR (pt. 522) p.613 at 637 paras C-D; SOLOMON v. SOLOMON (1979) Vol.2 FNLR p.138 at 141 and REIS v. MOSANYA (1964) L.H.C.R. p.19 at 30 were cited in support. That there was nothing either in the pleadings or the evidence led by the Respondents at the trial to show that the Appellant was at any time, either a trustee or executor of the estate of Dr. Reuben C. Nzeribe. That the pleading at paragraph 7 of the statement of claim is speculative, as it shows that the Respondents do not know whether the Appellant was appointed a trustee and executor or not. That in any case, neither the Appellant nor her mother could make such appointment as Exhibit A shows that there are four executors and trustees to the said Will excluding the Appellant’s mother.
It was further submitted by learned counsel for the Appellant that, there was also no evidence that the Appellant was in control of the estate, other than the testimony of P.W.1 that she was living within the estate where St. Anthony’s Hospital is located. He further submitted that the fact that the Appellant who is also a beneficiary under the will is living within the estate without more, does not make such beneficiary the executor or trustee of the said Will. Furthermore, that the Respondents failed to account for the remaining trustees and Executors when they commenced this action against the Appellant. That this failure to join the said Trustees and Executors rendered the suit incompetent and therefore the court below lacked the jurisdiction to hear and determine same. We were accordingly urged to hold that the suit was not properly constituted as regards the parties and that no legal cause of action was established against the Appellant.
Learned counsel for the Respondents submitted that the suit as constituted was competent and thus the court below was right in assuming jurisdiction to hear and determine same. He referred to the averments of the Plaintiffs/Respondents in paragraphs 1-4 of the statement of claim and the testimony of P.W.1, to further submit that the Respondents have by unchallenged evidence established their interest in the estate of the late Dr. Nzeribe, their father. That such evidence which is unchallenged nor controverted is to be accepted and acted upon by the trial. He relied on UNIVERSAL TRUST BANK (NIG.) LTD v. ATAGBULE (2006) 2 NWLR (Pt. 965) P. 447 at 491.
Learned Counsel for the Respondents also cited paragraphs 2, 5, 6, 7, 8, 9 and 10 of the statement of claim, to submit that, those paragraphs show that, despite not being a Trustee or Executor of Exhibit A, the Appellant had usurped the powers of the Executors or Trustees of Exhibit A and thus deprived the Respondents of their entitlements. He therefore submitted that, the facts put before the Court in the averments of the statement of claim and the testimony of the 1st Respondent (P.W.1) were enough to warrant the trial Court to assume and exercise jurisdiction in the suit despite the fact that the persons mentioned as Executors and Trustees in Exhibit A were not made parties. The case of IKENTA BEST (NIG.) LTD v. ATTORNEY-GENERAL RIVERS STATE (2008) 6 NWLR (pt. 1084) p.612 at 638 was cited in support.
It is also the contention of Learned Counsel for Respondents that the Appellant was given notice to produce certain documents, but did not produce same at the trial. That if those documents were produced, they would reveal her status vis-a-vis Exhibit A. He relied on Section 149(d) of the Evidence Act; Cap. E14, Laws of the Federation of Nigeria, 2004 and the case of STATE v. AZEEZ (2008) 14 NWLR (Pt. 1108) p.441 at 492. That in the light of the above therefore, the trial Court was right in-law and the facts, when it concluded at pages 123-124 of the record of appeal, that the Respondents were entitled to their claim. He also relied on the case of UNIVERSAL TRUST BANK (NIG.) LTD v. AJAGBULE (supra) to submit that, the learned trial judge duly evaluated the evidence adduced by the 1st Respondent before arriving at the conclusion he made. We were then urged to hold that the learned trial judge was right when he assumed jurisdiction to entertain the Suit as constituted.
Now, by Sections 131(1) & (2) and 132 of the Evidence Act, 2011, the general or ultimate burden of prove is on the plaintiff. Those two provisions have put in statutory form, the common law rule of evidence to the effect that the burden of proof is on any person to prove the existence of any fact which he alleges or claims to exist.

There is therefore a fundamental requirement that the onus is on a plaintiff who desires the court to give judgment as to the legal right he claims. This general or legal burden remains throughout the trial on the plaintiff and never shifts. See ADEGOKE v. ABIBI (1992) 2 NWLR (pt. 242) p.410; A.G. OYO STATE v. FAIRLAKES HOTELS (No.2) (1989) NWLR (pt.121) p. 255 and TITILOYE v. OLUPO (1991) 7 NWLR (pt 205) p.519. However, in the process of trial in a civil case, the burden of proof may swing from the Plaintiff to the Defendant and vice-versa as the pleadings may require. In other words in court cases, the burden of first proving the existence or nonexistence of a fact is on the party against whom the judgment of the court would be given if no evidence at all were produced on either side, regard being had to any presumption that may arise from the pleadings.
Accordingly, where such party adduces evidence which ought reasonably to satisfy the judge that the fact sought to be proved has been established, the onus will then shift to the party against whom judgment would be given if no more evidence were adduced in the matter. See section 133(1) & (2) of the Evidence Act, 2011 and EGHAREUBA v. OSAGIE (2009) 18 NWLR (Pt. 1173) p.299, AGALA v. OKUSIN (2010) 10 NWLR (pt. 1202) p.412 and C.C.C.T.C.S. LTD & ORS v. EKPO (2008) 6 NWLR (pt.1083) p.362.
From what has been stated above, the general burden of first proving the fact is usually on the Plaintiff who brought the action, and who would lose the case if no evidence at all were adduced in the case. However, there are circumstances or times when the burden will be on the Defendant to prove a particular fact. Such a fact may arise from the pleading. Thus, in civil cases, the state of the pleadings would determine where the burden of prove of a particular fact would lie. By Section 134 of the Evidence Act, 2011 that burden would be discharged on a balance of probabilities or preponderance of evidence. See IGWE v. A.I.C.E (1994) 8 NWLR (Pt. 353) p.459 at 478; UGBO v. ABURIME (1993) 2 NWLR (pt.273) p.101 at 109; GWANI v. EBULE (1990) 5 NWLR (pt.149) p.201 at 215; KWASALBA (NIG.) LTD v. OKONKWO (1992) 1 NWLR (pt. 218) p.407 at 416. At the close of evidence, the trial court would then evaluate the evidence adduced before it so as to determine where the evidence preponderates or the balance tilts. See MOGAJI & ORS v. ODOFIN & ORS (1978) 4 S.C (REPRINT) p.55 at 65.
It is the trial court that has the primary duty of evaluation and ascription of probative value to such evidence adduced before him. In other words, the evaluation of the evidence and ascription of probative value to the evidence are the primary functions of a trial court that saw, heard and therefore assessed the witnesses that testified before it. See IRIRI v. ERHURHOBORA (1991) 2 NWLR (pt. 173) p.252, S.S GMBH v. ID. IND. LTD (2010) 11 NWLR (Pt. 1206) p.889; ANYAMALE v. ATANDA (1988) 1 NWLR (Pt.68) p.28; AJAO v. AJAO (1986) NWLR (pt.45) p.806; KIMDEY v. MILITARY GOVERNOR GONGOLA STATE (1988) NWLR (Pt. 77) p.445 and OSHE v. OKIN BISCUITS LTD (2010) 11 NWLR (Pt. 1206) p.482. That being so, where the trial Court has clearly evaluated the evidence of the parties; and properly appraised the facts and ascribed the right probative value to such evidence, an Appeal court has no business to substitute its own views on the facts, with that of the trial court. See FASIKUN II v. OLURONKE II (1999) 2 NWLR (pt.589) p.1 and IBANGA & ORS v. USANGA & ORS (1992) 5 S.C. (Reprint) p.49.

Thus when an issue of jurisdiction is raised, the Court would consider whether the matter:
(a) is properly constituted as regards numbers and qualification of the members of the bench such that no member is disqualified for one reason or another;
(b) the subject matter of the case is within its jurisdiction, and there is no feature of the case which prevents the court from exercise its jurisdiction; and
(c) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU & ORS v. NKEMDILIM (1962) 2 SCNLR p.341 COTECNA INTL. LTD v. I.M.B. LTD (2006) 9 NWLR (Pt. 985) p.275; UMANAH v. ATTAH (2006) 17 NWLR (Pt. 1009) p.503 and AJAO v. AJAO (1986) NWLR (Pt. 45) p.802
It would appear that all the above stated conditions must co-exist before it can be said that the Court has the competence and thus the jurisdiction to entertain the action. The complaint of the Appellant here is that the properties, to wit: the Executors and Trustee to the Will of Dr. Nzeribe who are necessary parties to any action on the administration of the said Will were not joined in the action now on appeal.
The Rules in the High Court Civil (Procedure Rules) of the Federal High Court and the High Courts of the States, permitting joinder of parties or joinder of causes of action are designed primarily to prevent multiplicity of actions and to avoid delay; and thus save the parties unnecessary costs and expenses. In other words, the primary purpose of joinder of parties is to avoid multiplicity or duplicity actions, so as to save time and expenses of the litigants in the judicial process. See ADENIRAN v. INTERNAL TRANSPORT LTD (1991) NWLR (Pt. 214) p.155; OGOLO v. FUBURA (2003) 11 NWLR (Pt. 831) p.231 and CARENA v. AKINSALE (2008) 14 NWLR (Pt 1107) p. 262.

The settled law therefore is that, all persons who may be entitled to or who claim same share or interest in the subject matter of the suit, or who may likely be affected by the results shall be joined as Plaintiffs or Defendants. The determining factor to be considered, whether or not to join a party is, to enable the court to effectually and completely adjudicate upon and settle all questions in controversy. In other words, the court would consider whether the issue that call for determination cannot be effectually and completely settled unless the party sought to be joined is made a party. Thus, where the issues in controversy involves other persons, whose rights and obligations would be affected and the omission to join them may result in further litigation such persons qualify as persons whose presence will be necessary for the effectual and complete adjudication of the matter before the court. Their presence will therefore be a sine qua non for the purpose of effectual and complete determination of the case. See GREEN v. GREEN (1987) NWLR (pt. 61) p.481; AWONIYI v. REG. TRUSTEES OF AMORC (2000) 10 NWLR (Pt. 676) p.522; ODADHE v. OKUJENI & 2 ORS (1923) 11 S.C (Reprint) p.206; AYORINDE v. ONI (2000) 3 NWLR (pt. 649) p. 348 and CARENA v. AKINSALE (supra).

It follows that, where a person is one who ought to be joined for an effectual and complete determination of the matter, such a person is a necessary party. A necessary party is one who must be joined in an action, as complete relief cannot be given in the matter to the parties already joined without such joinder. Thus a necessary party is one who has such an interest in the controversy that a final judgment or order cannot be made without affecting his interest or leaving the dispute in such a condition that its final adjudication may be wrongly inconsistent with equity and good conscience. He is accordingly one whose presence is essential for the effectual and complete determination of the claim before the Court. See TAIWO v. ABDUL (2006) 2 FWLR (Pt. 309) p.2116; RE ABACHA (2000) 5 NWLR (Pt. 655) p.50 at 72; JOKOLO v. GOV. KEBBI STATE (2009) 11 NWLR (Pt.1152) p. 394 and AMUDA v. AROBO (1995) 7 NWLR (Pt. 406) p.170
It is clear that the main claim of the plaintiffs/Respondents is as stated at paragraph 10(1) of the statement of claim. The other reliefs sought can be said to be incidental to the said main or principal relief. Therein, the Respondents had sought for a declaratory relief to the effect that, the LAST WILL of Dr. Reuben Chukwudinma Nzeribe made on 25/3/1972 has not been implemented to the letter by the Defendant and her agents and privies as far as the Plaintiff is concerned. By the Will of the said Dr. Nzeribe which is in evidence as Exhibit “A”, the Executors of the said Will are Tom Mbanefo, Robert Nzeribe, Francis Nzeribe and Arthur Nzeribe, who were also appointed as guardians of the infant children of the testator. The Appellant herein has not been mentioned as a Trustee or Executor of the said will. It is obvious that the duty of executing or implementing the Will of any testator lies with the Executors of the said Will. Accordingly, if there is any failure to execute or carry out any of the clauses or stipulations in the said Will, it is only the executors of the Will that can be called upon to answer. In the same vein if any person deals with the properties devised under the said Will contrary to the stipulations in the said Will, only the executors have the duty of ensuring that the wishes of the testator as revealed in the wordings of the Will are carried out. Consequently, a person who is not named as an Executor or Trustee of the said Will cannot be called upon to answer where there is a complaint by any of the beneficiaries that the Will has not been implemented.

It therefore follows that the executors and trustees of a Will are the right parties to sue where any of the beneficiaries complains that he has been denied the benefit of any devise made to him in the said Will. In other words, the executors and trustees under the Will are necessary parties where the complaint as in this case, is that the Will has not been implemented as regards the beneficiaries or any beneficiary. I therefore agree with learned counsel for the Appellant that failure to join the executors who are necessary parties is fatal to the competence of this action.
I also find that the Appellant who was the sole Defendant is not a competent party or Defendant in this action. She is neither an executor nor a trustee in the said Will. The only pleading of the Respondents which is aimed on heaping liability on the Appellant is paragraph 7 of the statement of claim. Therein, the Respondents pleaded that:
“The Defendant by either appointing herself or otherwise (appointed by her mother) is now an executrix and a trustee of the Will of the said late Dr. Nzeribe.”
I agree with learned counsel for the Appellant that the above pleading of the Respondents on the appointment of the Appellant as a Trustee and Executor of the will of Dr. Nzeribe is not specific. It is vague. If the Respondents are sure or certain of such appointment they should say so in no uncertain terms. As it is the pleading and evidence thereon border on speculation. The logical conclusion is that the Respondents have not proved that the Appellant was appointed an executor and trustee of the will of Dr. Nzeribe. I also doubt if the Appellant or her mother had the competence to appoint her an executor or trustee of the Will of Dr. Nzeribe “Exhibit A”, as to do that would in my view amount to altering the contents of the Will and thus the wishes of Dr. Nzeribe. Such appointment would be contrary to the wishes of the testator and therefore invalid.
While it is the law that no cause of matter shall be defeated by reason of the mis-joinder or non-joinder of any party still, circumstance may arise when the absence of a proper joinder may be fatal to the competence of the action, as it may well be that it will be futile for the court to proceed to grant the reliefs therein. Such a circumstance may arise where it would be impossible to carry out the orders or judgment of the Court by the party against whom the judgment of the court has been given.

It therefore means that though in law, failure to join a necessary party is treated as an irregularity which does not affect the competence or jurisdiction of the court to adjudicate on the matter before it, circumstances may arise where the irregularity may lead to unfairness which may result in setting aside the judgment on appeal. See UNION BEVERAGES LTD v. PEPSICOLA IND. LTD. (1994) 3 NWLR (Pt. 330) p.1; GREEN v. GREEN (supra) and BELLO v. INEC (2010) 8 NWLR (pt.1196) p.342.

This is moreso in all actions for declaration, such as this, where it is the rule that all persons likely to be affected should be made parties to the action, as the court will not make the declaration in the absence of such necessary parties. See OBAIA v. ADESINA (1999) 2 SCNJ p.1 at 18; PEENOOK INVEST. LTD v. HOTEL PRESIDENTIAL LTD (1982) 12 S.C. p.1 at 54-55 and 144-145; and THOMAS v. LOCAL GOVT SERVICE BOARD (1965) N.W.L.R. P.310.
In the instant case, it is clear from the pleadings and the evidence (both oral and documentary) led by the Respondent, that the Executors and Trustees to the wit of Dr. Nzeribe are necessary parties to this action. The Appellant who is the sole Defendant could not be sued where the execution of the said Will is called into question. She was therefore wrongly sued in this action, as non of the reliefs sought by the Respondent could regally granted against her. If she has improperly, unlawfully or otherwise dealt with or interfered with the estate of the late Dr. Nzeribe contrary to the Will, the proper persons to sue her, in my view, are the Executors and Trustees of the said Will. I therefore hold, thus agreeing with learned counsel for the Appellant that the Suit, as constituted is incompetent.
If an action is improperly constituted, because of mis-joinder or that those who would have been made parties were not made parties, the law is that, an Appeal Court would have a number of options. The options to be taken will depend on the circumstances of the case, as each case is to be treated on its own peculiar facts some of the options available to the court are:
(a) to remit the case for re-trial and for those who ought to be joined;
(b) to strike out the action if a re-trial would entail extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder;
(c) to join for the purposes of the appeal the person(s) who ought to have been joined in the trial Court or
(d) to hold that the person complaining that he ought to have been joined was not such a necessary party and that the non-joinder would not defeat the matter or cause.
See OKOYE v. NIG. CONS. & FURNITURE CO. LTD. (1991) 6 NWLR (Pt.189) p. 501.
In the instant case, two situations have arisen. The first is that, the necessary parties were not joined or sued, and secondly the Defendant who is the Appellant herein was wrongly or improperly joined or sued. The two situations put together is as if there is no Defendant at all. To order a retrial and joinder in such a circumstances would certainly entail a complete over haul of the writ of summons and statement of claim. In that respect, I am of the view that the proper order to make would be that of striking out.
Assuming that the Respondents had shown that they had a claim against the Appellant and therefore the Appellant was properly sued, did the Respondents prove their case against her? This is the question that is raised in issue two and canvassed therein. It is the contention of the Appellant that the Respondents did not establish any case as to justify the judgment of the trial Court against her. Learned Counsel drew our attention to the note made by the learned trial judge at page 37 lines 7-13 of the record of appeal, when admitting Exh. “A” to contend that Exh. A is not a Certified True Copy of the Last Will and testament of Dr. Reuben C. Nzeribe nor is it the original Will and it was not signed by anybody including the solicitor who prepared the document; and the testator and witnesses. That it was not produced from a source from which the trial Court could presume its genuineness and that there was no indication on the face of the document to show that it was ever admitted to probate under Order 24 Rules 16-28 of the High Court (Civil Procedure) Rules, 2009 of Abia State.
That it was based on the scanty evidence of the to Appellant (P.W.1) that the said Exhibit “A” was relied and acted upon by the learned trial judge without any inquiry as to whether it complies with order 24 rule 1 of the Abia State High Court (Civil Procedure) Rules (supra) which is in pari materia with Order 29 Rule 1 and 16-28 of the Abia State High Court (Civil Procedure) Rules, 2001.
Learned Appellant’s Counsel therefore submitted that Exh. A lacked any probative value, as it was not shown to be the original Will of the deceased nor was it shown to have been deposited as required by law nor was it shown to have been admitted to probate at all. That it was neither certified as True Copy nor was it executed as an original and thus should never have been admitted in evidence. He cited the cases of M.R. KENT WEST AFRICA LTD v. MARCHEM IND. (NIG.) LTD (2000) 8 NWLR (Pt. 609) p.459 and NEWBREED v. ERHOMOSELE (2006) 2 SCNJ p.198 at 218 to submit that it does not matter that the statement of defence had been struck out. That the mere fact that the Defendant did not testify or present a statement of defence is no reason for the Court below to have acted on Exh. “A” without evaluating it and ensuring that it amounts to legal evidence and thus a basis for any award in terms of the reliefs claimed by the Respondents.
It is further submitted by learned Counsel for the Appellant that, having regard to the in-sufficient pleading and inadequate evidence put forward by the Plaintiffs/Respondents, the decision of the trial Court is perverse. That the Respondents did not prove that the Appellant was or is an executor or trustee under Exh. “A” and therefore it is not possible to expect her to perform any of the duties now adjudged for her to perform.
To demonstrate the impossibility of executing the judgment of the trial Court by the Appellant, learned Counsel x-rayed clauses 5, 6, 7, 8, and 15 of Exhibit “A” to submit that, it is impossible under the will for the Appellant to account for the administration of the estate of the testator under Exh. “A”, as expressly intended by the said testator to be carried out by the named trustees and executors. That when the Respondents did not prove that the Appellant was ever a trustee or executor or administrator of the estate of Dr. Reuben Chukwudinma Nzeribe, it is a gross mistake to grant a declaration, as done by the learned trial judge that the will of Dr. Reuben C. Nzeribe had not been “implemented to the letter” by the Appellant. That was equally perverse to make such a declaration without hearing from the Executors and Trustees named in the said Will (Exh. A). Furthermore, that it would also be perverse to make such a declaration without proof that Exhibit “A” represents the Will of the deceased and that it was duly admitted to probate.
It was, based on the above submissions, the view of learned counsel for the Appellant that there is no provision in Exhibit “A” that gives the Respondents a cause of action against the Appellant in terms of the claim of the Respondents. We were thus urged to resolve this issue in favour of the Appellant.
Learned counsel for the Respondents referred to the case of EBENOGWU v. ONYEMAOBIM (2008) 3 NWLR (pt.1074) p.396 at 422 on what a cause of action is. He also referred to paragraphs 2-10 of the statement of claim to contend that the Respondents were justified in taking out this suit against the Appellant. That the 1st Respondent testified to the effect that at the death of Mrs. Benedict Nzeribe, the mother of the Appellant, the Appellant took control of their late father’s estate, and that they had severally called upon the Appellant to make available to them the benefits devised to them under the Will, but she failed to do anything. It was therefore submitted that by the testimony of P.W.1, which is unchallenged the Respondents had showed that they had a cause of action against the Appellant while conceding that the Will (Exhibit “A”) did not name the Appellant as an executor or trustee of the Will, he maintained that the averments in the statement of claim were adequate to ground the reliefs sought against the Appellant by the Respondents. That in any case, there were no pleadings or evidence from the Appellant to controvert the fact that the Appellant had since the death of her mother taken control of the estate of late Dr. Reuben C. Nzeribe, and thus became liable to the Respondents for the benefits accruing to them under Exhibit A.
On the propriety of receiving Exhibit A as evidence, it was submitted by learned counsel for the Respondents that the trial court was right in receiving the document in evidence, as the testimony of the witness clearly established that the document was the will of Dr. Reuben C. Nzeribe given to the Respondents’ mother to keep for him, Furthermore, that paragraph 5 of the statement of claim supports the receipt of Exhibit A in evidence as the Respondent had therein given the Appellant Notice to produce same, and which notice the Appellant failed to comply with. That failure to comply with Order 24 rules 16-18 and Order 25 rule 1 of the Abia State High Court (Civil Procedure) Rules, 2009 does not make Exhibit A inadmissible as the fact of non deposit of a Will at the probate Registry of a state High Court does not ordinarily vitiate the Will. It was then submitted that the trial Court was right in-law when it received Exhibit A in evidence and proceeded to evaluate same before arriving at its conclusion in the judgment at page 123 line 15 of the record of appeal. The case of ONWUDINJO v. DIMOBI (2006) 1 NWLR (Pt. 961) p.218 at 338 was cited to contend further that, the trial Court properly evaluated the evidence adduced by the Respondents before arriving at its conclusion. That since the Appellant refused to put its own side of the case before the trial Court; the Court had no choice than to evaluate the only evidence led by the Respondents before it. We were then urged to hold that the Respondent established their claim against the Appellant and thus were entitled to the judgment of the trial Court, as was done by the Court below.
On the issue of admissibility of Exhibit “A”, I wish to point out that, it is now settled law that, admissibility of a document is one thing, while the weight to attach to the document after it has been admitted is another thing. Accordingly, once the document has been duly pleaded and it is relevant to the determination of the issue(s) in dispute, provided it is admissible under the provisions of the Evidence Act, it is admissible. In other words, once a document has been pleaded and is relevant, though not necessarily conclusive of the issue or issues in controversy, it is admissible, except where its admissibility has been specifically excluded by the Evidence Act or any other statutory enactment. See TORTI v. UKPABI (1984) SCNLR p.214; IPINLAIYE v. OLUKOTUN (1996) 6 NWLR (pt. 453) p.148; OYEDIRAN v. ALEBIOSU II (1992) NWLR (pt. 249) p.550; FADLACLAH v. AREWA ILE LTD. (1997) 8 NWLR (pt. 518) p. 546; NIG. CUSTOMS SERVICE v. BAZUYE (2006) 3 NWLR (pt. 967) p.303; OKONJI & ORS v. NJOKANMA & ORS (1999) 14 NWLR (Pt. 638) p.250; BUHARI v. INEC (2008) 19 NWLR (pt. 1120) p.246 at 414-415 per Tobi; JSC and OSIGWELUM v. INEC (2011) 9 NWLR (Pt. 1153) p.425 at 451. In the instant case, the Will of the testator; Dr. Reuben C. Nzeribe was duly pleaded and is relevant to the determination of the matter between the parties. The provisions of Order 24 Rules 16-28 of the Abia State High Court (Civil Procedure) Rules, 2009, in my view, do not determine the admissibility of Exhibit A. They are however relevant to the determination of the weight to attach to the said Exhibit. The learned trial judge was therefore right when he received same in evidence.
I had earlier on stated the principles on the evaluation of evidence by a trial Court, and when it may be necessary for an appellate Court to interfere. I only need to point out at this stage that, in the evaluation of evidence, a trial judge has the duty to put all the evidence called by each side on the issue on either side of the imaginary scale of justice, weigh them together, taking care that only evidence of the same kind are weighed together. That side that outweighs the other or preponderates in probative value should be believed. See UKAEGBU v. NWOKOLO (2009) 3 NWLR (Pt. 1127) p.194 and SHA Jnr v. KWAN (2000) 8 NWLR (pt. 670) p.685.

Though there is no general rule as to the style or approach in judgment writing, there are some minimum or recommended standard and stages to be adopted or followed in writing or reaching a fair judgment.
These include:
(a) the judge should first consider the evidence led by the Plaintiff to see whether he has led evidence on all material issues he needs to prove. At this stage, the question of belief or disbelief of the witnesses does not arise. Thus, if the Court finds that the evidence led by the Plaintiff is not sufficient, as to establish his claim, then it would mean that the Plaintiff has not made out a prima facie case in which case, the trial Court does not need to consider the case of the Defendant; and invariably it would not matter that the Defendant did not call evidence.
(b) the next stage would be for the Court to evaluate the evidence, and in doing so, the Court must bear in mind (i) on whom the burden of proof of particular facts in dispute lies (ii) whether there is any evidence which requires any special approach and (iii) the Court will then make its findings having regard to the onus of proof that will ultimately determine the result of the case.
See TRADE BANK PLC v. CHAMI (2004) ALL FWLR (Pt. 235) P.118 at 145-146 MOGAJI & ORS v. ODOFIN (supra); WOLUCHEM v. GUDI (1981) 5 S.C. P.291 at 294 and WHYTE v. JACK (1996) 2 NWLR (Pt.431) p.407 at 442.

In a case such as this, onus lies squarely on the person who seeks to propound a Will to satisfy the Court that the instrument he relies is the true Will and Last testament of the deceased testator. This is because it is only where the propounders of the Will are able to show by clear evidence that, prima facie, the Will has been duly executed, that the burden will shift to the person who attacks it, to prove any vitiating factor. In other words, it is only where the document or instrument which the Plaintiffs rely on as the last Will and testament of the deceased testator, is on the face of it (ex-facie) duly executed that the Court may pronounce for it. That is because where a document appears on its face to have been duly executed, then the latin maxim omnia praesumuntur rite esse acta, will operate in its favour. See OKELOLA v. BOYLE (1998) 2 NWLR (Pt. 539) p.533, AMU v. AMU (2001) 7 NWLR (Pt. 963) p.164 and EYO v. INYANG (2001) 8 NWLR (Pt. 715) p. 304; ODJEGBA v. ODJEGBA (2004) 2 NWLR (Pt. 858) p.589; IZE-IYAMU v. AGONGE (2007) 6 NWLR (Pt.1029) p.84; BAFUNKE JOHNSON & ORS v. AKINOLA MAJA & ORS 13 WACA p.290 at 291 and NSEFIK v. MUNA (2007) 10 NWLR (Pt. 1043) p.502. That being so, the Respondent who sought to propound the Will of Dr. Reuben C. Nzeribe, and who tendered Exhibit “A” as the last Will and testament of the said Dr. Reuben C. Nzeribe, had the burden of leading credible evidence that the said Exhibit “A” was duly executed, and that their claim against the Appellant is supported by the said Exhibit “A.”
Now, in proof of their claim against the Appellant, the Respondents tendered through the 1st Respondent, who testified as the P.W.1 a document titled “The Last Will and Testament of Doctor Reuben Chukwudinma Nzeribe” dated 25/3/72. It was admitted by the trial Court and marked as Exhibit “A” The said P.W.1 in his oral testimony before the Court below stated that:
“I also know the Defendant. She is my half-sister of the same father and not the same mother. She live (sic) at 62-8 Etche Road, Aba and that is where the St. Anthony’s Hospital is located. Dr. Reuben C. Nzeribe was the founder. He is now late, and he was my father. I am aware that he made a Will before he died. He appointed Mrs. Benedict N. Nzeribe as trustee of the Will and also executor. This Mrs. Benedict N. Nzeribe is the mother to the Defendant but she is also late. After her death it was the Defendant Geraldine that took control of our father’s estate. I have equally seen a copy of the Will my father made. My father gave it to my mother to keep for me; and my mother gave it to me.”
The said last will and testament was then tendered and admitted in evidence as Exhibit “A.” The witness then proceeds to state that:
“By my father Will, I was given some benefits. I have severally asked Geraldine to make my benefits available to me but she did not give me anything. I then consulted my Lawyer and asked him to write a letter to Geraldine. My Lawyer did write and I have a copy here in Court.”
The said letter was admitted in evidence. The 1st Respondent (P.W.1) further stated that as the Appellant failed to do anything, he was asking the Court to declare that the will (Exhibit “A”) and especially paragraphs 5, 6, 7, 8 and 15 thereof be implemented and that the Defendant/Appellant be ordered to give full account of the estate of Dr. Reuben C. Nzeribe, and to give the Respondents their own share.
I have carefully, perused the contents of Exhibit “A”. Indeed, after resolving issue 1 therein, I had held that the Respondent was neither an executor nor a trustee to the Will of Dr. Reuben C. Nzeribe. I have also perused the entire contents of the said Will (Exhibit “A”) and I am unable to see where the testator imposed any obligation on the Appellant to carry out any of the stipulations therein. The Appellant is only mentioned as a beneficiary of the Will. There is also no other document made pursuant to the said Will which imposes any other duty on the Appellant to either execute or administer the said Will. The fact that the Appellant resides in the estate of the testator will not without more, make her liable for the execution of the said Will. I therefore agree with learned Counsel for the Appellant that Exhibit “A” does not show that the Appellant was either an Executor or Trustee of the Will of Dr. Reuben C. Nzeribe and so it did not impose any duty on her to carry out any duty in accordance with the provisions of the said will, for the benefit of the Respondents. There is also no evidence or document or other instrument which appointed the Appellant an executor or trustee under Exhibit “A.” The end result is that the claim of the Respondents against the Appellant as constituted cannot be sustained.
On the whole therefore, I am of the view, and do hold that the Court below was wrong when it held that the Respondents succeeded in proving their case against the Appellant. The Respondents’ claims lie against the Executors and Trustees of the said Will and not the Appellant. The end result is that, this appeal has merit and is accordingly allowed. The judgment of the Court below delivered on the 13/7/2009 is hereby set aside. In that regard, I hereby make an order striking out the suit as constituted before the trial Court.
I award fifty thousand naira (N50,000.00) as cost against the Respondents in favour of the Appellant.

UWANI MUSA ABBA AJI, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother, H. S. Tsammani, JCA just delivered.
My learned brother extensively considered the two issues presented to us for the determination of this appeal and I entirely agree with the reasoning the conclusions arrived at that this appeal is meritorious. It is also allowed by me. The judgment of the court below delivered on the 13/7/2009 is hereby set aside and hereby make an order striking out the suit as constituted.
I abide by the consequential order as to costs.

JOHN INYANG OKORO, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA just delivered and I am in agreement with him that this appeal has merit and ought to be allowed. I agree that Exhibit A does not disclose that the appellant was either an Executor or Trustee of the Will of late Dr. Reuben C. Nzeribe and as such it did not impose any duty on her to carry out in accordance with the provisions of the Will for the benefit of the respondents. It follows that the respondents’ claim against the appellant has no basis at all. This appeal accordingly succeeds and is hereby allowed. I also strike out the said Suit and abide by the order as to costs in the lead judgment.

Appearances

E. C. Ekeafor, Esq.For Appellant

AND

George Ukaegbu, Esq. with Chinenye Kalu, Esq.For Respondent