JOSEPH EKWEBELAM V. MRS GRACE EKWEBELAM & ANOR (2012)

JOSEPH EKWEBELAM V. MRS GRACE EKWEBELAM & ANOR

(2012)LCN/5741(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of December, 2012

CA/PH/1/99

RATIO

ACTION: EFFECT OF FAILURE TO JOIN A PARTY WHICH SHOULD HAVE BEEN JOINED

“Further, under Order XVI, R.11 (as it then was), no action can now be defeated by reason of the misjoinder or non-joinder of any party; but this does not mean that judgment can be obtained in the absence of a necessary party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case.”

See also Kunstler vs. Kunstler (1969) 1 All ER 673. PER MOJEED ADEKUNLE OWOADE J.C.A.

COURT: WHETHER THE COURT CAN GRANT DECLARATION OF RIGHT WITHOUT TAKING EVIDENCE

First, it is now settled law that a court does not grant declaration of right either in default or on admissions without taking evidence and being satisfied that the evidence led is credible.

See, Motunwase vs. Sorungbe (1988) 5 NWLR (Pt. 92) 90, Udo vs. C.R.S.N. (2001) 14 NWLR (Pt. 372) 116, Bello vs. Eweka (1981) 1 SC 101 and Ogunjumo vs. Ademolu (1995) 4 NWLR (Pt. 389) 254.

Second, and relatedly, an admission which has no foundation in law or in fact is valueless and cannot be binding.

See, Odutola vs. Papersack (Nig.) Ltd. (2006) 18 NWLR (Pt.1012) 470 at 494

In that case, Tobi JSC who delivered the lead judgment of the Supreme Court said:

“An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the court, it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a court of law is entitled not to assign any probative value to it.” PER MOJEED ADEKUNLE OWOADE J.C.A.

EVIDENCE: WHETHER DOCUMENTARY EVIDENCE IS KNOWN TO NATIVE LAW AND CUSTOM

Third, documentary evidence is unknown to native law and custom. See, Ajadi vs. Olanrewaju (1969) 1 All NLR 382, Egwu vs. Egwu (1995) 5 NWLR (Pt. 396) 493. PER MOJEED ADEKUNLE OWOADE J.C.A.

EVIDENCE: BURDEN OF PROOF IN CIVIL CASES

It is settled law that a plaintiff must succeed on the strength of his own case and not on the weaknesses of the defendant’s case. The onus of proof does not shift to a defendant until it has been satisfied by a plaintiff with credible and reliable evidence.

See, Kaiyaoja vs. Egunla (1974) 12 SC 55, Ibori vs. Agbi (2004) All FWLR (Pt. 202) 1799 (2004) 6 NWLR (Pt. 868) 78, Adeniran vs. Alao (2002) FWLR (Pt. 90) 1285, (2001) 18 NWLR (Pt. 745) 361 Josephat Onvia vs. Amobi Onyia (2012) 3 NWLR (Pt. 1286) 182 at 1999.

See, Enolor vs. Osayande (1992) 6 NWLR (Pt. 249) 524, Progress Bank of (Nig.) Ltd vs. Ugonna (Nig.) Ltd. (1996) 3 NWLR (Pt.435) 202, Umeania vs. Emodi (1996) 2 NWLR (Pt. 430) 348, Obiasikwor vs. Obiasikwor (2008) 8 NWLR (Pt. 1090) 551 at 569. PER MOJEED ADEKUNLE OWOADE J.C.A.

Before Their Lordships

UWANI M. ABBA AJIJustice of The Court of Appeal of Nigeria

MOJEED A. OWOADEJustice of The Court of Appeal of Nigeria

HARUNA S. TSAMMANIJustice of The Court of Appeal of Nigeria

Between

JOSEPH EKWEBELAMAppellant(s)

AND

1. MRS GRACE EKWEBELAM
2. PROBATE REGISTRAR (High Court, Owerri, Imo State)Respondent(s)

MOJEED ADEKUNLE OWOADE J.C.A.: (Delivering the Leading Judgment): This is an appeal from the judgment I of Justice Maranzu J. in Suit No. HOW/121/92 delivered at the Imo State High Court Owerri on 21st day of August 1997.
By a Writ of Summons dated 24/4/1992 followed by a statement of claim dated 21/7/1992, the 1st Respondent as plaintiff before the court below claimed against the 1st defendant (now Appellant) as follows.
(a) A declaration that the letters of Administration granted by the Probate Registrar, High Court Owerri to the defendant, dated 9th September, 1985 was obtained by fraud in that the letters of Administration was granted pursuant to a forged letter dated 6th March 1985 purportedly written by Dr Sebastian A. Ekwebelam, the late husband of the Plaintiff and younger brother of the defendant, which letter purportedly authorized the defendant to be granted the letters of Administration of the Personal Estate of their late father Mr. Felix Soronnadi Ekwebelam to the exclusion of the said Dr. Ekwebelam, when in fact the said letter was never written by Dr. Sebastian Ekwebelam, and neither the Hand-writing nor signature  thereof belonged to Dr. Ekwebelam, and in consequence of the said forged letter dated 9th September, 1985 the Probate Registrar was deceived and misled into granting the letters of Administration to the defendant.
(b) An Order of Court nullifying the said letters of Administration granted to the defendant, being that the said letter of Administration was granted to him in error, and based on false pretences and fraud.
(c) A declaration that the property known as and called No. 9 Okigwe Road Owerri is not part of the Estate or Property granted to the defendant by the High Court under the said letters of Administration, and so, the defendant has no right, powers or authority whatsoever over the said property based on the said letters of Administration.
(d) A declaration that the two main rooms, one store room in the main building, and one room at the out building of the property known as No. 9 Okigwe Road, Owerri belonged to the late Dr. Sebastian A. Ekwebelam, having been bequeathed to him from the estate of his late father (and father of the defendant), Mr. Felix Soronnadi Ekwebelam, and as such, falls within the estate of the said Dr. Sebastian A. Ekwebelam, now vested on the Plaintiff by virtue of the WILL of the said Dr. Sebastian A. Ekwebelam, which was re-sealed in this court on the 29th day of May, 1980.
(e) An Order of court compelling the defendant to render full, TOTAL AND COMPLETE ACCOUNTS OF all monies collected by him from Tenants and/or all persons in respect of the said Rooms and store, from July 1989 till judgment is delivered in this suit.
(f) Injunction restraining the defendant, by himself, his servants, Agents and Assignees from dealing with the said property generally and the aforementioned Rooms, particularly, in any manner detriment to or inconsistent with the rights of the plaintiff over same, or from putting tenant, collecting rents, managing, running or interfering with the said Rooms in any manner whatsoever.
(g) An Order of Court compelling the defendant to return to and/or surrender to the plaintiff the original of the certificate of occupancy issued to the said DR. EKWEBELAM by the IMO STATE GOVERNMENT, and Registered as No. 51 at page 51 in volume 237 of Lands Registry Owerri, as well as the original of the POWER OF ATTORNEY dated 28th September, 1987 and Registered as No. 84 at page 84 in volume 414 of the Lands Registry Owerri, granted to the said Dr. Ekwebelam by Daniel O. Nnadi, which documents the defendant illegally and fraudulently signed for and collected from one EMMANUEL O. EMENYONU, and which documents the defendant has refused, failed and/or ignored to return to the plaintiff despite several and repeated demands by both the plaintiff and officials of the Ministry of Lands Owerri.
In the court below, the parties exchanged pleadings and by the order of the said court, the Probate Registrar was joined as the 2nd defendant in the suit. The relevant pleadings of the parties on which the judgment of the court below was founded are as follows.
1. Plaintiffs/1st defendant’s statement of claim dated 21/7/92 and filed on 22/7/92.
2. Amended Statement of Defence by 1st defendant dated 19/11/96 and filed on 20/11/96.
3. Statement of Defence of 2nd defendant dated 17th March, 1995
4. Reply to the defendant’s Reply to 2nd Defendant’s Statement of  Defence dated and filed 18/5/95.
5. 1st Defendant’s Reply to 2nd Defendant’s Statement of defence dated and filed 18/5/1995.
6. Amended 1st defendant’s rebuttal to plaintiffs Reply to 1st Defendant’s Statement of Defence.
The case of the 1st respondent as plaintiff in the court below as it concerned the property at 9, Okigwe Road, Owerri was that her late husband who was the second son of late Felix Soronnadi Ekwebelam derived his share of Two Rooms and one store Room in the main building and one Room at the out-building which he incorporated into his WILL as his share when relations of the late Felix Soronnadi Ekwebelam shared the house at No. 9 Okigwe Road, Owerri.
The 1st defendant also said that the sharing was not only in accordance with the customary law of Owerri-Nchi-Ise that all the properties of the said Mr. Felix Soronnadi Ekwebelam belong jointly to both the Plaintiff/1st Respondent’s husband and the defendant but also consistent with the admission of the Appellant in an affidavit in a previous Suit No. L/301/80 where the Appellant deposed inter alia “That Sebastine Ekwebelam and myself are the rightful persons to administer the estate of the said Felix Ekwebelam”.
The Appellant, on the other hand averred that the build-up house at No. 9 Okigwe Road, Owerri where Felix Ekwebelam lived and died was bequeathed to him (the appellant) in accordance with Owerri Nchi-Ise custom, and to the plaintiffs husband, he granted Plot 357 Ikenegbu Layout.
The 2nd Respondent, who was joined as the 2nd defendant, pursuant to an order made by the Honourable trial court, did not present any case at the trial.
The 1st Respondent as plaintiff gave evidence and called two other witnesses in support of her case. The Appellant gave evidence and called one other witness in defence. At the end of the trial, the learned trial Judge gave a considered judgment contained from page 176 – 230 of the record of appeal. Starting from page 216, he was not able to agree with the Plaintiff that the 1st defendant obtained the letters of Administration Exhibit “E” by fraud and therefore could not see any reason why Exhibit “E” the Letters of Administration could be nullified. The learned trial Judge believed that the Plaintiffs anxiety and worry about the letters of Administration Exhibit “E” were based on the impression she alleged that 1st defendant gave to her that Exhibit “E” had granted to him power to own No. 9 Okigwe Road, Owerri alone, which is not correct.
On this, the learned trial Judge quoted paragraph 7 of the 1st defendant’s statement of defence where the 1st defendant categorically asserted that “the Letters of Administration does not confer on him right to the reality of his deceased father because the Letter of Administration is silent on the subject”.
The learned trial Judge opined that the crux of the whole case is centered on the ownership of No. 9 Okigwe Road Owerri. On that, he observed that it is agreed by all the parties that the original owner of No. 9 Okigwe Road, Owerri is late Felix Soronnadi Ekwebelam father of first defendant and the late husband of the plaintiff (1st Respondent). That, it is also agreed by all the parties that late Felix Soronnadi Ekwebelam and late Sebastine Ekwebelam were both buried in front or within the precincts of No. 9 Okigwe Road, Owerri.
The issue in controversy according to the learned trial Judge was whether the first defendant is entitled to own No. 9 Okigwe Road, all alone because according to him and his witness the native law and custom of Owerri Nchi-Ise community to which they belong entitled the first defendant as the undisputed first son of Late Felix Soronnadi Ekwebelam to own their late father’s house alone, OR whether according to plaintiff (1st Respondent) and her witness the late junior brother of full blood of the first defendant late Doctor Sebastian Ekwebelam is entitled to own No. 9 Okigwe Road, Owerri with the first defendant. It is also the case of the Plaintiff, according to the learned trial Judge that not only is the Plaintiffs late husband entitled to own No. 9 Okigwe Road, Owerri, with the first defendant (Appellant) but that in actual fact the first defendant (Appellant) and her late husband had shared No. 9 Okigwe Road, Owerri, between themselves according to Owerri Native Law and Custom and that her late husband was collecting rent from tenants who were occupying her late husband’s share of the rooms in No. 9 Okigwe Road, Owerri, before the death of her husband.
The learned trial Judge further observed in his judgment as from page 218 of the Record of Appeal that when first defendant was cross-examined in Suit No. HOW/134/80 on 27th day of April 1984 before R. U. Aguta J. (as he then was) as per Exhibit ‘N’. He, 1st defendant (Appellant) told the court in part at page 3 of Exhibit ‘N’- last answer quote:-
“At the time my father died 2nd defendant (Plaintiffs husband) was living at Zaria. It is not true that 40 Njemanze Street was given to me by my father when I was getting married. It is not true that Plot 357 was given to 2nd defendant by my father 2nd defendant bought it …. Unquote.”
From the above piece of evidence, the learned trial Judge inferred, formed the impression and held that the Plaintiff (1st Respondent’s) husband and late Dr. Sebastian Ekwebelam was not at home when their father died, and that the assertion of first defendant (appellant) that their later father in his dying bed at Emekuku Hospital in the presence of himself and his late brother Dr. S. Ekwebelam divided his houses between first defendant (Appellant) and his late brother Dr. Ekwebelam giving first defendant (Appellant) No. 9 Okigwe Road, Owerri is false and cannot be sustained.
It is also the view of the learned trial Judge, and he so held that the assertion of first defendant (Appellant) that their late father gave Plot 357 lkenegbu Layout to late Dr. S. Ekwebelam cannot be sustained having regard to the Appellant’s previous evidence that late Dr. Sebastian Ekwebelam owns Plot 357 which he bought himself.
At page 219 of the record, the learned trial Judge also referred to Exhibit ‘G’ sworn to by the first defendant (Appellant) on 3rd September 1980. The learned trial Judge quoted paragraphs 1, 2, 3, 4, 8, 9, 11and 15 of the said affidavit. Paragraphs 11 and 15 read thus:
11. That, according to the native law and custom of Owerri, the first son and his other brothers inherit and administer the estate of their deceased father.
15. That Sebastine Ekwebelam and myself are the rightful persons to administer the estate of the said Felix Ekwebelam.” Unquote.
From the above averments of the 1st defendant (Appellant) on oath, the learned trial Judge held that it is the custom of Owerri that first defendant (Appellant) had complied with this custom and was jointly administering No.9 Okigwe Road, Owerri with his late junior brother Dr. Sebastine Ekwebelam. This view, the learned trial Judge emphasized was derived from Exhibit ‘B’ ‘C’ ‘D’ and ‘Q’.
Now, for ease of reference, Exhibit ‘B’ is a copy of a letter written to one Mrs. Justina Opara by Dr. S. A. Ekwebelam, where he (Dr. Ekwebelam) said that the store she was occupying is part of his inheritance from his father.
Exhibit ‘C’ is a second letter from Dr. S. Ekwebelam to the same Mrs. Justina Opara notifying her of increase of her rent from N100.00 to N120.00.
Exhibit ‘Q’ is a letter written by the first defendant (Appellant) to Dr. S. Ekwebelam while studying in the United States asking for financial assistance so that they may not lose the case filed against them, that is the first defendant (Appellant) and Dr. S. Ekwebelam by their step mother late Mrs. Margret Ekwebelam.
Again, starting from page 224 of the Record of Appeal, the learned trial Judge observed further that Exhibit ‘G’ is an affidavit sworn to on 3rd September 1980 by the 1st defendant (Appellant) and exhibit ‘Q’ was written by first defendant (Appellant) on 30th September about 27 (twenty seven) days after he swore the affidavit Exhibit ‘G’.
The learned trial Judge noted that the above shows clearly that the first defendant’s (Appellant) junior brother and husband to the plaintiff (1st defendant) was in U.S.A., when he (Appellant) swore to that affidavit. For these reasons, the learned trial Judge held that the first defendant (Appellant) “is a very despicable liar; a man who told the court that he did not know the number of children born by his own mother for another man Mr. Ekpo after she left her first husband, father of first defendant and yet told the court on oath that the mother of his has since returned to his father’s house yet he does not know the number of children his own mother born for her second husband- and those children are supposed to be his half brothers and sisters”.
At page 229 of the record, the learned trial Judge remarked that holding as he had already done that late Dr. S. A. Ekwebelam is with first defendant (Appellant) co-owner of No. 9 Okigwe Road, Owerri, it followed naturally that he is entitled to the rents due and payable by the tenants of those rooms and stores that belong to him. And, that, in view of his findings above, first defendant (Appellant) shall render and was thereby ordered to render account to the Plaintiff (1st Respondent) of all the rents he collected from those rooms and stores that belonged to late Dr. S. A. Ekwebelam from the last week of August 1989 when plaintiff left the premises up to the end of the month of August 1997. Also, that plaintiff (1st Respondent) by herself or her attorney should begin to collect rent from the former tenants of her late husband as from the beginning of the month of September 1997.
In conclusion, at pages 229 – 230 of the record, the learned trial Judge ordered as follows:
“1. That two main rooms, one store room in the main building and one room at the out building of the property known as No. 9 Okigwe Road, Owerri is part of the estate of late Dr. Sebastian A. Ekwebelam and is now vested in the Plaintiff by virtue of the WILL of the said late Dr. S. A. Ekwebelam.
2. The first defendant as already stated is hereby ordered to render FULL, TOTAL and complete account of all monies collected by him from tenants and or all persons in respect of the afore-stated rooms and store from August 1989 up to and including the end of August, 1997.
3. The Plaintiff or her attorney shall as from the beginning of September 1997 collect rents from tenants in the aforementioned rooms and
4 The first defendant is hereby ordered to surrender and or return to the Plaintiff personally or through her counsel the original of the certificate of occupancy issued to Dr. S.A. Ekwebelam by Imo State Government registered as 51/51/237 and also original of Power of Attorney dated 28/9/87 registered 84/84/414 also granted to Dr. S. A. Ekwebelam WITHIN TEN DATE from TODAY – date of judgment.
5. The first defendant is hereby perpetually restrained either by himself, his servants and or agents and or assignees from dealing with the afore-mentioned rooms and store in No. 9. Okigwe Road belonging to late Dr. S. A. Ekwebelam now vested in the plaintiff in any manner detrimental to or inconsistent with the rights of the plaintiff over same or from putting tenants, collecting rents, managing, running or interfering with the said room and store in any manner whatsoever.'”
Dissatisfied with this judgment the Appellant filed a Notice of Appeal before this court on 3/9/97. The Appellant’s original notice of appeal contained a lone ground of appeal contained on pages 283 – 284 of the record of appeal. With the leave of this court granted on the 13th day of November, 2000, the Appellant filed additional grounds of appeals. On the 24th day of March, 2003, the Appellant was granted leave to file and argue further grounds of appeal, to wit grounds 6, 7, 8 and 9 of the grounds of appeal. The Appellant later sought and obtained leave to amend his notice of appeal. He also sought and obtained leave to amend his grounds of appeal, and filed a further ground of appeal to wit: ground 10 of the grounds of appeal. Altogether, there are ten grounds of appeal before this Honourable Court.
For the purposes of this appeal, the Appellant canvasses only grounds 1, 5, 6, 7, 8, 9 and 10 of the grounds of appeal and abandoned grounds 2, 3 and 4 of the grounds of appeal.
Grounds 1, 5, 6, 7, 8, 9 and 10 of the Appellant’s grounds of appeal together with their particulars read as follows:
GROUND 1
(i) Error in Law
The decision is against the weight of evidence.
(a) Particulars
The Honourable Learned Justice of the lower court ignored and did not take cognizance of the personal law of the parties which led to a wrong decision.
(ii) Misdirection
(i) Particulars
(ii) Despite the fact that the defendant noticed open bias on the part of the honourable learned Justice and promptly wrote two consecutive letters to the Chief Judge of the State against the Judge. And spite of this the case continued to ill-fated end.
GROUND 5:
Error In Law:
The Learned Trial Judge erred in law in holding that the WILL of Dr. Sebastine Ekwebelam, Exhibit H. was property resealed in the Imo State High Court, and is therefore valid, although, there was no evidence that the Plaintiffs/Respondents complied with the provision of order 50 Rule 55(2) of the Imo state High court (civil procedure) Rules, 1988.
Particulars of Error:
1. By the provision of order 50 Rule 55(2)(b) of the Imo State High Court (Civil Procedure) Rules, 1988, a condition precedent for the resealing of a WILL in the Imo State High Court, is that the application for the resealing of the said WILL, shall be advertised, and shall be supported by an oath sworn to by the Applicant.
2. The Appellant, at page 126, line 31, and page 127, lines 1 – 19 of the Record of Appeal, asserted that the mandatory provisions of Order 50 Rule 55(2)(b) of the Imo State High Court (Civil Procedure) Rules, 1988, were not complied with, thereby challenging the presumption that formal prerequisite for the validity of the resealed WILL, was complied with.
3. The Honourable Court below failed to consider the case put forward by the Defendant/Appellant to wit: that the Plaintiff/Respondent did not comply with the mandatory provision of Order 50 Rule 55(2)(b) of the Imo State High Court (Civil Procedure) Rules, 1988, before reaching the decision that the WILL of late Dr. Sebastine Ekwebelam, was properly resealed in the High Court of Imo State, and therefore valid, which decision occasioned a miscarriage of justice.
GROUND 6:
Error In Law:
The Learned Trial Judge erred in law when he held at page 220 lines 24 – 28, and page 221 lines 1 – 5 thus:
“It is my view in the light of the above averments of the 1st defendant on oath and I so hold that it is the custom of Owerri that 1st defendant and his late brother Dr. Sebastine Ekwebelam should jointly administer their father’s Estate at No. 9 Okigwe Road, Owerri.”
“It is also my view and I so hold that the 1st defendant had complied with this custom and was jointly administering No. 9 Okigwe Road, Owerri, with his junior brother Dr. Sebastine Ekwebelam before his unfortunate death by motor accident.”
Which findings of facts are contrary to the evidence led at the trial, and thereby occasioned a miscarriage of justice.
Particulars of Error
1. The main issue before the Honourable Court below was whether the 1st Defendant/Appellant should inherit No. 9 Okigwe Road, Owerri, alone or whether the said No. 9 Okigwe Road, Owerri, devolved on the 1st Defendant/Appellant and his late brother, Dr. Sebastine Ekwebelam.
2. The evidence of the 1st Defendant/Appellant at the court below was that No. 9 Okigwe Road, Owerri, devolved on him alone by reason that he is the first son of late Felix Ekwebelam, and that under the custom of the people of Owerri, it is the first son that inherits his late father’s homestead (Okpulo).
3. The Honourable Court below failed to consider the evidence of the 1st Defendant/Appellant on inheritance under the native law and custom of people of Owerri, but based his decision on an affidavit sworn to by the 1st Defendant/Appellant in a previous proceeding.
4. The failure by the Honourable Court below to consider the evidence of the 1st Defendant/Appellant on inheritance under the native law and custom of the people of Owerri before reaching the decision that
(a) The Appellant and late Dr. Sebastine Ekwebelam should jointly administer No. 9 Okigwe Road, Owerri, and
(b) The Appellant complied with the custom as he is jointly administering No. 9 Okigwe Road, Owerri, with late Dr. Sebastine Ekwebelam, before his unfortunate death by motor accident, violated the Appellant’s constitutional right to fair hearing and thereby occasioned a miscarriage of justice.
GROUND 7:
Error In Law:
The Learned Trial Judge erred in law in making the order that the two main rooms, one store room in the main building, and one room at the out building of the property, No. 9 Okigwe Road, Owerri, are part of the estate of late Dr. Sebastine Ekwebelam and are now vested in the Plaintiff/Respondent by virtue of the WILL of the said late Dr. Sebastine Ekwebelam, without due consideration of the evidence led by the Appellant on the devolution of a deceased father’s homestead under the customary law of the people of Owerri.
1. The evidence of the Defendant/Appellant before the Honourable Court below was that he is the first son of Felix Soronadi Ekwebelam and so entitled by the custom of the people of Owerri to inherit No. 9 Okigwe Road, Owerri, the homestead (Okpu Ulo) of the said late Felix Soronadi Ekwebelam, to the exclusion of all other persons.
2. It is in evidence that under the customary law of the people Owerri, the homestead of a deceased father, devolves on his first son alone to the exclusion of other persons.
3. The Honourable Trial Court failed to consider the evidence led by the Appellant on devolution of the homestead (Okpu Ulo) of a deceased father under the customary law of the people of Owerri, before making the order complained of herein, which failure violated the Appellant’s Constitutional right to fair hearing, and thereby occasioned a miscarriage of justice.
GROUND 8
Error In Law:
The Learned Trial Judge erred in law in holding that before the death of Dr. Sebastine Ekwebelam, he was owner as shown in Exhibit H: his will, of two main rooms, one store room in the main building and one room at the out building of No. 9 Okigwe Road, Owerri, without due consideration to the evidence led by the Appellant on the native law and custom of the people of Owerri, oh the inheritance of the homestead (Okpu Ulo) of a deceased father under the said custom.
Particulars of Error
1. The real issue in controversy at the lower court was whether No. 9 Okigwe Road, Owerri, the homestead (Okpu Ulo) of Felix Soronadi Ekwebelam, devolved on the Appellant alone or was it a joint inheritance of the Appellant and his late brother, Dr. Sebastine Ekwebelam.
2. It is in evidence that under the customary law of the people of Owerri, the homestead (Okpu Uro) of a deceased father, devolves on his first son alone to the exclusion of ail other persons.
3. The Honourable Court below was in error in failing to give due consideration to this crucial evidence led by the Appellant, but relied on the general custom of the people of Owerri on inheritance, in reaching the decision complained of, which general custom is that the estate of a deceased father (excluding his homestead, Okpulo, which is the exclusive right of the first son) devolves on his sons who share the same amongst themselves.
4. The failure by the Honourable Court below to give due consideration to the evidence led by the Appellant on devolution of the homestead (Okpu UIo) of a father under the customary law of the people of Owerri, before reaching the decision complained of herein, was an assault on the appellant’s constitutional right to fair hearing and thereby occasioned a miscarriage of justice.
GROUND 9:
Error In Law:
The Learned Trial Judge erred in law in assuming jurisdiction to hear and determine Suit No. HOW/121/92: Mrs. Grace Ekwebelam vs. Joseph Ekwebelam & Anor., even though there was no proof that Mr. Azubuike Okeafor: co-executor of the will of Dr. Sebastine Ekwebelam, consented to the institution and/or prosecution of the suit.
Particulars of Error:
1. The Plaintiff/Respondent’s claim to No. 9 Okigwe Road, Owerri, subject matter of this Appeal, is based on Exhibit H, the purported WILL of late Dr Sebastine Ekwebelam.
2. In Exhibit H, one Azubuike Okeafor (who is not a party to the suit) and the Plaintiff/Respondent, were named executors of the WILL of late Dr. Sebastine Ekwebelam.
3. In her statement of claim, the Plaintiff/Respondent did not plead that she (the Plaintiff/Respondent) obtained the consent of Mr. Azubuike Okeafor, before instituting Suit No. HOW/121/92, neither was there any pleading that Mr. Azubuike Okeafor was aware of the pending of the suit at the Court below before his death.
4. Answering a question under cross examination, at page 128 tines 4 – 5 of the records of appeal, the Plaintiff/Respondent stated that she agreed with Mr. Azubuike Okafor to take out the action, even though it is settled law that evidence elicited under cross examination on facts not pleaded, go to no issue.
5. The Trial Court’s holding that the Plaintiff/Respondent obtained the consent of Mr. Azubuike Okeafor, before commencing the said Suit No. HOW/121/92, is not borne out of the pleadings and evidence before the Honourable Court below, and thereby occasioned a miscarriage of justice.
GROUND 10
The learned trial Judge erred in law and acted without jurisdiction, when His Lordship proceeded to deliver judgment in Suit HOW/121/92, on the 21st day of August, 1997, seven clear weeks after commencing his pre-retirement leave from the service of the Imo State Judiciary.
Particulars of Error
1. When the learned trial Judge commenced his pre-retirement leave on the 1st day of July, 1997, he ceased to have jurisdiction to hear and determine any matter pending before him, pre-retirement leave, being a willful period of absence from duty with the intent not to return to service.
2. By the 21st day of August, 1997, when the learned trial Judge delivered judgment in the suit, His Lordship had lost jurisdiction and competence to continue hearing the matter.
3, Neither the feeling of the Honourable Trial Judge about the adverse effects of a trial de novo, nor the consent of the parties and/or their counsel, can confer jurisdiction on the Honourable Trial Judge, to continue hearing the matter after the court had ceased to have jurisdiction.
4. The judgment in Suit No. HOW/121/92, delivered by the Honourable Trial Court on the 21st day of August, 1997, whilst observing his pre-retirement leave, was without jurisdiction, and therefore a nullity.
The relevant briefs of argument for this appeal are as follows:
1. Appellant’s further amended brief of Argument dated 7/3/11 and filed on 11/3/11 settled by Naths Epelle Esq
2. 1st Respondent’s further Amended brief of argument dated 17/3/2011 and filed on 23/3/11 – settled by H.O. Afolabi, Esq.
3. 2nd Respondent’s brief of Argument dated 14/9/2007 and filed on 17/9/07 – settled by T.E. Chukwuemeka – Chikeka (Mrs.)
Learned counsel for the Appellant nominated five (5) issues for determination, to wit:
1. Whether the 1st Respondent is entitled to the judgment in Suit No. HOW/121/92, having regard to the weight, nature and quality of evidence led by both parties at the trial?
2. Was the Honourable Trial Court not in error in holding that the WILL of late Dr. Sebastine Ekwebelam was properly resealed in the High Court of Imo State and therefore valid, without due consideration of the appellant’s case that the Plaintiff/Respondent did not comply with the requisite provisions of Order 50 Rule 55(2) of the Imo State High Court (Civil Procedure) Rules, 1988?
3. Can it be said that the Honourable Trial Court’s failure to consider the evidence of the Appellant on devolution of property under the customary law of the people of Owerri before reaching the decision that:
(a) The two main rooms, one store room in the main building and one room at the out building of the property No. 9 Okigwe Road, Owerri shown in Exhibit H vested in Dr. Sebastine Ekwebelam before his death and should therefore be part of his estate, and that:
(b) The Appellant and his late brother dr. Sebastine Ekwebelam, should jointly administer, and were both administering their father’s estate at No. 9 Okigwe Road, Owerri even before the death of Dr. Sebastine Ekwebelam, is not a violation of appellant’s constitutional right to tau hearing, occasioning a miscarriage of justice?
4. Whether the Honourable court below had jurisdiction to hear and determine Suit No. HOW/121/92, on the 21st day of August, seven clear weeks after commencing his pre-retirement leave from service of the Imo State Judiciary.
Learned counsel for the 1st Respondent formulated the following issues for determination:
“1. Whether from the facts, evidence, findings and conclusion of the trial judge, it can rightly be said that the judgment of the learned trial judge cannot be justified? Grounds 1, 5, 6, 7 and 8.
2. Whether appellant proved that Azubuike Okafor did not consent to the filing of this suit and whether the non joinder of Azubuike Okafor is fatal to the plaintiff’s action? Ground 9.
3. Whether the learned trial Judge acted beyond the jurisdiction of the court to deliver his judgment? Ground 10.”
Learned counsel to the 2nd Respondent brought out two (2) issues for determination, namely:
“(a) Whether the judgment of the trial court cannot be sustained regarding the totality of the facts, evidence, findings and conclusion of the trial judge with respect to Exhibit ‘H’ – Grounds 1, 5, 6, 7 and 8.
(c) Whether non-joinder of Azubuike Okafor as co-plaintiff being one of the executors of the 1st Respondent’s husband’s WILL, exhibit “H” in the suit occasioned a miscarriage of justice – Ground 9.
This appeal will be decided on the issues formulated by the appellant. However, in so doing I will re-arrange and decide the appellant’s issues in this order. Issue 4, 5, 1 and 3 and finally issue 2.
Issues 4 and 5 deal with the competence of the suit and the jurisdiction of the court below to entertain the suit.
Issues 1 and 3 would be taken together because both of them deal with evaluation of evidence.
Issue 2 concerns the WILL of the late Dr. Sebastine Ekwebelam, it is therefore ancillary and consequential to the main contest between the parties which is the intestate devolution of the property at No. 9 Okigwe Road Owerri.
On Issue No. 4, learned counsel for the appellant reminded us that from the facts, two persons, Mrs. Grace Ekwebelam, the 1st Respondent herein and one Mr. Azubuike Okafor, were named in Exhibit H, the purported WILL of late Dr. Sebastine Ekwebelam, as executors to the said WILL. That, the Plaintiff/Respondent commenced the action in Suit No. HOW/121/92, in the High Court 123 in 1992. Mr. Azubuike Okafor died in October, 1994 (see page 128 lines 9 – 10 of the record). Thus, it is not disputed that Mr. Azubuike Okafor was alive when the Plaintiff/Respondent sued the Defendant/Appellant in 1992.
Mr. Azubuike Okafor, said counsel was not joined as a plaintiff in the said Suit No. HOW/121/92, and there is neither pleading nor evidence that Mr. Azubuike Okafor renounced probate. That, in the statement of claim, it was not pleaded that the Plaintiff/Respondent commenced those proceedings in the High Court, with the consent of Mr. Azubuike Okafor. Counsel submitted that where there are more than one executor to a WILL, all of them must join as plaintiffs in an action brought on behalf of the estate for the action to be competent.
Counsel relied on the case of Emecheta vs. Ogueri (1997) 8 NWLR (Pt. 516) 323 at 338 and said that where as in this case the action was commenced by only one of the two executors, the action is incompetent and the court is robbed of jurisdiction to entertain the plaintiffs claims.
Counsel submitted that the two executors named in the WILL, must jointly commence the proceedings, for the Honourable court to be seized with jurisdiction. He further submitted that this defect in the competence of the suit, is fatal and that the entire proceedings conducted by the court below in Suit No. HOW/121/92 is a nullity.
On this, counsel referred to the cases of A-G. Anambra State vs. A-G. Federation (1993) 6 NWLR (Pt. 302) 665 and Madukolu vs. Nkemdilim (1962) 2 SCNLR 342
Learned counsel for the Appellant further submitted that although the Plaintiff/Respondent stated in evidence (under cross-examination) that she agreed with Mr. Azubuike Okafor to file the action, that evidence is inadmissible and of no consequence, since there is no pleading in the statement of claim upon which that evidence could stand. The law, counsel says, is that facts not pleaded, but extracted from cross-examination, go to no issue, and ought not to be admitted in evidence. He referred to the case of Salaudeen vs. Mamman (2000) 4 NWLR (Pt. 686) 63 Tewogbade vs. Agbabiaka (2001) 5 NWLR (Pt. 705) 38 at 53.
He submitted that where a court of first instance inadvertently or mistakenly admits evidence that is inadmissible, an Appellate Court should not hesitate to expunge such evidence from the record, irrespective of whether or not the opposing party objected to its admissibility.
On this, counsel referred to the case of Eyo Ita & Anor vs. Dadzie (2000) 4 NWLR (Pt. 652) 168 at 184 and urged that the issue be resolved in favour of the appellant.
The learned counsel for the 1st Respondent treated Issue No. 4 in the consideration of his Issue No. 2. He noted that Order 11 Rule 2, 5(1) and 27 of the High Court of Imo State Civil Procedure Rules is very relevant for consideration of the point raised by the Appellant. He submitted that by the provisions of the above Rules, non-joinder is not fatal to the action of the Plaintiff/1st Respondent. The court is vested with jurisdiction to order that any person who has not been made a party to the proceedings should be so made.
He referred to the cases of Ifeanyi Chukwu (Osondu) Ltd. vs. Soleh Boneh Ltd. (2000) 5 NWLR (Pt. 656) 322 at 348 – 349, Kunstler vs. Kunstler (1969) 1 At ER 673, Anyanwoko vs. Okoye (2010) 5 NWLR (Pt.
1188) 492 at 515.
He submitted that even if Azubuike Okafor were to be made a party to the proceedings, he would have been a co-plaintiff. That, there is no single claim which the court cannot decide in the absence of Azubuike Okafor. And, that the issue of non-joinder here is not a matter jurisdiction, as the court is eminently qualified and competent to determine the case brought before it by the plaintiff.
Counsel submitted that the situation in the instant case would appear to make unnecessary the making of an order joining Mr. Azubuike Okafor as a co-plaintiff in this suit. In the first place, said counsel, there is unchallenged evidence that, Mr. Azubuike Okafor consented to the filing and the prosecution of this action, in the form and manner same was filed.
On this, 1st Respondent’s counsel referred, first, to the evidence of PW1 on pages 127 – 128 of the record. Second, he referred to on the same point to the cases of Rimdam vs. Har (1999) 9 NWLR (Pt. 620) P.614 at 629. Olomosola vs. Oloriawo (2002) 2 NWLR (Pt. 750) 113 at 124.
According to counsel, it is important to point out the fact, that the question as to whether or not Azubuike Okafor consented to the filing of Plaintiff’s suit was not part of the case of the plaintiff. It was the 1st Defendant/Appellant who made it an issue while cross-examining the plaintiff. He submitted that, the Defendant/Appellant is bound by the answer he got from the cross-examination of the Plaintiff, he cannot resile or come back to now say that the fact or evidence given was not pleaded. In any event, said counsel, there is unchallenged evidence that Mr. Azubuike Okafor is dead, which means that, it is not possible to make him a co-plaintiff, as the court would not make an order in vain.
He referred to the case of Nnodim vs. Amadi (1993) 1 NWLR (Pt.271) 568. Counsel urged us to hold that, under the relevant Rules of the High Court of Justice of Imo State, non- joinder of Azubuike Okafor as co-plaintiff is not fatal and that failure not to so join him has not occasioned a miscarriage of justice. He submitted that the case of Emecheta vs. Ogueri (supra) cited by the Appellant’s counsel is not relevant, because the reasoning in that case was not predicated on the provisions of the High Court Civil Procedure Rules of Imo State, which is the relevant Rules of Court for our present situation.
Learned counsel for the 2nd Respondent supported the arguments of the 1st Respondent on this point and added that even though Azubuike Okafor was not joined as a co-plaintiff, he,as an executor of the WILL of the 1st Respondent’s husband should have taken necessary action pursuant to Order 11 Rule 27 of the Imo State High Court (Civil Procedure) rules, 1988.
Secondly, counsel to the 2nd Respondent by her counsel’s address as contained in pages 172 – 173 of the record urged the trial court to amend the title or capacity in which the Plaintiff/1st Respondent sued to reflect a the co-executor as co-plaintiff, but the court could not accede to the request as by that point in time, Mr. Azubuike Okafor was dead (see page 228 of the record).
The non-joinder of Azubuike Okafor, according to counsel, did not occasion a miscarriage of justice, is not fatal and now merely a technical point which should not be used to defeat the ends of justice.
He referred to the case of U.B.M. vs. Europharm Nig. Ltd. (1990) 6 NWLR (Pt. 150) 239 at 249 – 250.
It seems to me that the critical question in the determination of Appellant’s Issue No. 4 is whether the non joinder of Mr. Azubuike Okafor the co-executor as co-plaintiff in the action by the 1st Respondent was fatal. My simple answer to the question is in the negative.
Order 11 Rule 2, 5(1) and 27 of the High Court of Imo State (Civil Procedure) Rules 1988 is relevant to the point raised by the Appellant.
“2 where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the court or a Judge in chambers, may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just.
5(1) If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either Plaintiffs or Defendant in the suit, as the case may be. In such case the court shall issue a notice to such persons which shall be served in the manner provided by these rules for the service of a writ of summons or in such other manner as the court thinks fit to direct; and on proof of the due process of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause:
Provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may at any time before judgment in the suit, apply to the court for leave to appear, and such leave may be given upon such terms (if any) as the court shall think fit.
27. In probate actions, any person not named in the writ may intervene and appear in the action on filing an affidavit showing how he is interested in the estate of the deceased.”
Truly, arising from the provisions above, and as suggested by the learned counsel for the Respondents is the fact that, non-joinder is not fatal to the action of the Plaintiff/1st Respondent. The court is vested with the jurisdiction to order that any person who has not been made a party to the proceedings should be so made.
In Ifeanyi Chukwu (Osondu) Ltd. Vs. Soleh Boneh Ltd. (2000) 5 NWLR (Pt. 656) 323 at 348 – 349, the Supreme Court per Ogundare JSC (of blessed memory) stated the law thus:
“The effect of this rule has been determined by this court in such cases as Peenok Investment Ltd. Vs. Hotel Presidential Ltd. (1982) 11-12 SC 1, Uku vs. Okumagba (1974) 1 All NLR (Pt. 1) 475. Okoye vs.  Nigerian Cons & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 302) 692, Laibru Ltd. Vs. Building & Civil Engineering Contractors (1962) 2 SCNLR 118, Ekpere vs. Aforije (1972) 1 All NLR (Pt. 1) 220 (1972) ANLR 224. And that is that no cause or matter shall be defeated by reason of the non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it.

Failure to join as a party a person who ought to have been joined will not render the proceedings a nullity on ground of jurisdiction or competence of the court. It is only where a person is a necessary party in the sense that, that person is likely to be affected by the result of the action that his joinder becomes essential. For the court ought to have before it such parties as would enable it to “effectually and completely adjudicate upon and settle all the question” in the suit see: Uku vs. Okumagba (supra), Peenok Investment Ltd. Vs. Hotel Presidential Ltd (supra, Performing Rights Society Ltd. Vs. London theatre of Varieties Ltd. (1924) AC 1 at P.14. Where the court said:
“Further, under Order XVI, R.11 (as it then was), no action can now be defeated by reason of the misjoinder or non-joinder of any party; but this does not mean that judgment can be obtained in the absence of a necessary party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case.”
See also Kunstler vs. Kunstler (1969) 1 All ER 673.
“Can it be said that Mosudi Akanbi is a necessary party who is likely to be affected by the result of the action against the Defendant? I rather think not. Nor do I think that his presence is necessary in order to enable the court “effectually ad completely adjudicate upon and settle all the questions” in the action. I think the Plaintiff could prove its case against the Defendant without joining Mosudi Akanbi. It was for him to produce sufficient evidence to establish the liability of Mosudi Akanbi for the accident; it would be for the defendant to rebut the evidence for the Plaintiff, thereby defeating its claim. It anything, it was the Defendant who would need the presence of Mosudi Akanbi and ought to have moved the trial court to join him or call him as a witness. I cannot see how Plaintiff’s case could be defeated by the failure of the defendant to do so.”
See also Anyanwoko vs. Okoye (2010) 5 NWLR (Pt. 1188) 467 at 515 – 516.
In the instant case the non-joinder of Azubuike Okafor has nothing to do with the competence of the action of the 1st Respondent a fortiori the jurisdiction of the court below to try the case. This, is because the court below could have and was indeed able to ‘effectually and completely adjudicate upon and settle all the questions” in the absence of Azubuike Okafor.
Still on Appellant’s Issue No. 4, the fact that the 1st Respondent answered the Appellant in the process of cross-examination that Azubuike Okafor consented as co-executor of the WILL of the Plaintiffs/1st Respondent’s husband to the action cannot as suggested by the learned counsel to the Respondents be dismissed with a wave of the hand. Although, non of the parties to the action pleaded the consent of Azubuike Okafor to the 1st Respondent’s action, the Appellant cannot now resile from the uncontradicted and unchallenged answer of the 1st Respondent elicited in cross-examination which in a sense was part of the case of the Appellant himself. The 1st Respondent’s answer in those circumstances binds the appellant.
The reason for the above position of the law is that except in a very rare situation, once a party has concluded his examination in chief, the imaginary scale of justice invariably weighs in his favour. In order therefore that the other party tries to even balance he has to take measures by putting in court enough facts in support of his own case. Some of these facts may be within the exclusive knowledge of his adversary who has just been led in chief. He would therefore cross-examine his opponent with a view to eliciting facts within the knowledge of the adversary in proof of his own case.Thus, it cannot be gainsaid, that the object of cross-examination is amongst others to elicit more facts in proof of the case of the party conducting the cross-examination. This is aside from the direct object of cross-examination which is to weaken, or destroy the case put forward in his examination -in-chief by his opponent.
For example, in the case of Ifeajuna vs. Ifeajuna (1997) 7 NWLR (Pt. 513) 405 at 427, Achike JCA (as he then was) declared that:
“The main purpose of cross-examination is to elicit from the witness being cross-examined the case of the party cross examining him as well as to destroy the case of the party fielding the witness by casting aspersions or creating doubt as to the credibility or accuracy of the evidence being adduced by the witness.”
Counsel for the Respondents also submitted that at the address stage in the court below, the learned counsel for the Plaintiff/1st Respondent urged the court to exercise its discretion to join Azubuike Okafor as Co-plaintiff in the suit. This, on the basis that the parties can amend their pleadings at any stage of the proceedings. But, that at page 228 of the record, while recognizing his power under the relevant Rules of procedure to join Azubuike Okafor, the learned trial Judge put the matter of joinder or perhaps non-joinder to rest having realized that at that point in time, Azubuike Okafor was dead.
He remarked:
“I have been urged by the learned counsel for the Plaintiff to exercise the inherent powers of this court and amend the title or capacity in which the Plaintiff sued to reflect a representative action for and on behalf of Plaintiffs co-executor who is dead. I am aware that this court can exercise such powers but I am a little bit uncomfortable to do so now, having regard to the fact that Azubuike Okafor is known to have died since three years ago though he was alive when the suit was commenced and consented to the institution of the suit.”
Finally, on Issue No. 4, the case of Emecheta vs. Ogueri (supra) relied upon by the learned counsel for the Appellant is distinguishable of the present case. In essence, the case of Agnes Emecheta vs A.U. Qgueri & Anor (supra) centres on the locus standi of the Plaintiff/appellant, the widow of a deceased husband in respect of a claim “for declaration that the purported sale of the property registered as 84/84/626 Enugu (now Owerri) by the 2nd defendant to the 1st defendant by public auction is null and void.”
It was held in that case that the Appellant who was Plaintiff in the suit had a duty to establish the capacity in which she had sued. Therefore, unlike the present case, Emecheta vs.Ogueri’s case was not directly concerned with the joinder or non-joinder of co-executors as plaintiffs in the suit.
Secondly, the statement by Rowland JCA, at page 338 of the Law Report in the case of Emecheta vs. Ogueri to the effect that “It is not in doubt that the law is settled that if there are more than one executor, all of them should join as plaintiffs except such as have renounced probate, was obiter in all the circumstances in the case. First, because, the court was not called upon to decides the non-joinder of co-executors or its effect as plaintiff in a probate action. Second, and perhaps more importantly the Plaintiff’s/Appellant’s action in the Emecheta vs. Ogueri’s case was dismissed not for any reason of joinder but because still at the same page 338 of the Law Report,
“Exhibit ‘C’ the alleged WILL is clear that the Appellant was not the Executrix and as such the action was very incompetent. See Bullen and Leak and Jacobs Precedents of pleadings 12th Edition page 415. It must be remembered again that the purported WILL was never admitted to probate. See Appellant’s answers at page 22 lines 25 – 26 of the record of proceedings.”
Issue No. 4 is resolved against the Appellant.
Issue No. 5 relates to ground 10 of the appellant’s Grounds of Appeal. In arguing the issue, learned counsel for the appellant quoted from the judgment of the learned trial Judge at page 214 tines 21 – 31 of the record of appeal where the Honourable court said:
“I commenced my pre-retirement leave on the 1st day of July 1997 while both contending counsel submitted in open court their written addresses and the same marked as exhibit on 30th day of June 1997. I felt that it would be unkind to ask the parties to start their case de novo when they and their witnesses had all concluded their oral evidence in open court and their counsel had submitted their written addresses. That was why I considered favourably the plea of all the counsel in the matter that I should write and deliver this judgment during my pre-retirement leave.”
Counsel submitted that his Lordship commenced his pre-retirement leave on the 1st day of July 1997. That, pre-retirement leave is a willful period of absence from duty with the intent not to return.
That, when the Honourable Trial Judge commenced his pre-retirement leave on the 1st day of July 1997, he ceased to have jurisdiction to hear the case. Although his Lordship considered the adverse effects of having to start the case de novo, and counsel for the parties appealed to him to conclude the case and deliver his judgment during the period of his pre-retirement leave, it is submitted that neither the adverse effects of a trial de novo, nor the plea of consent of the parties and/or their counsel, can confer jurisdiction on the court to continue hearing the matter after the court had ceased to have jurisdiction.
Counsel submitted that the trial court acted without jurisdiction when he proceeded to deliver his judgment in Suit No. HOW/121/92, on the 21st day of August, 1997, seven clear weeks after commencing his pre-retirement leave from service of the Imo State Judiciary.
On this point, Appellant’s counsel finally submitted that judgment delivered by the trial court below on the 21st day of August 1997 whilst observing his pre-retirement leave from the service of Imo State Judiciary was without jurisdiction and therefore a nullity.
Learned counsel to the 1st Respondent reacted to appellant’s Issue No. 5 under his Issue No. 3.
The counsel submitted that the complaint of the Appellant on trial Judge to deliver his judgment is very strange. He argued that the concept of jurisdiction has become established on the tripod principle enunciated in the case of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341.
He submitted that Appellant has not shown in what way or manner the jurisdiction of the trial court has been ousted consequent on the delivery of the judgment during leave.
Learned counsel for the 1st respondent submitted that the question the Appellant should have addressed is, at the time of delivery of judgment, has the learned trial judge ceased to be a judicial officer under the provision of Section 291(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999.
Counsel submitted that, Appellant has failed to prove that, as at the time the learned trial Judge delivered his judgment, he was sixty-five years of age, He further submitted that, the fact that, the learned trial Judge was on pre-retirement leave has not made him to cease to be a judge of the High Court of Imo State.
I do agree with the learned counsel for the 1st Respondent that the complaint of the Appellant under Issue No. 5 is indeed strange. Truly, the case of Madukolu vs.- Nkemdilim (supra) laid down the tripod principle on which the jurisdiction of a court is to be founded. They are:
“(i) The court is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other.
(ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising is jurisdiction; and
(iii) The case comes by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction.”
Clearly, there was no feature in the case which prevented the court below from exercising jurisdiction. The qualification of the learned trial Judge was saved by the fact that even at the point he was still a serving judicial officer by virtue of the applicable provisions of the Constitution.
Section 291(1) and (2) of the 1999 Constitution (as amended) provides on tenure of a judicial officer as follows:
‘(1) A judicial officer appointed to the Supreme Court or the Court of Appeal may retire when he attains the age of sixty-five years and he shall cease to hold office when he attains the age of seventy years.
(2) A judicial officer appointed to any other court, other than those specified in subsection (1) of this section may retire when he attains the age of sixty years. And he shall attains the age of sixty-five years.”
In the instant case, the appellant has failed to prove that, as at the time the learned trial Judge delivered his judgment he has attained sixty-five years of age or has ceased to hold office. The fact that the judgment was delivered by consent of the parties during his pre-retirement leave does not render the judgment so delivered a nullity.
Issue No. 5 is resolved against the Appellant.
On Issues Nos. l and 3, learned counsel to the appellant restated the case put forward by the pleadings and evidence of the parties. He submitted that in proof of her case, the 1st Respondent called as PW3, one Lawrence Ikegwuruka, who according to his testimony, was a businessman, contractor and ex-service man. That, for the Plaintiff/Respondent to succeed in her claim, she must lead direct and positive evidence to establish the existence of the alleged custom to wit:
“that, by virtue of the customary law of Owerri – Nchi-Ise that all the properties of the said Mr. Felix Soronnadi Ekwebelam belong jointly to both the Plaintiff/1st Respondent’s husband and the Appellant…..”
Counsel submitted that the existence or otherwise of a custom is a question of fact which must be proved by oral or documentary evidence. The onus, he said, lies on the party alleging the existence of such custom. The onus may be discharged by calling expert evidence in proof of the alleged custom
On this, counsel referred to the cases of Bello Adedibu vs. Gbadamosi Adewoyin (1951) 13 WACA 191 and Liadi Giwa vs. Bisiriyu Erinmolokun (1961) All NLR 294 at 296.
He submitted that in proving the existence of a custom, regard must be had to the quality of witnesses called. That, it is not just any person that can be called as witness in proof of a custom.
Counsel referred to the provision of Section 59 Evidence Act LFN 1990 (now Section 70 Evidence Act 2011, that:
“In deciding questions of customary law and custom, the opinions of traditional rulers, Chiefs or other persons having special knowledge of the customary law and manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies are admissible.”
Learned counsel for the appellant submitted that it is not in evidence that PW3, Lawrence Ikegwuruka, is a native chief or a person having special knowledge on the native law and custom of the people of Owerri Nchi-Ise. His evidence is that he is a contractor, a business man and an ex-service man. He submitted that the credentials of PW3 as shown by evidence, do not prove that PW3 falls within the category of persons whose opinion can constitute proof of the custom of the people of Owerri Nchi-Ise on inheritance. The court ought not to rely on the opinion of PW3 as that of an expert on the customary law of inheritance of Owerri Nchi-Ise people.
Learned counsel for the Appellant submitted that on the contrary, the expert evidence called by the Appellant on the custom of the people of Owerri Nchi-Ise, satisfied the legal requirement enunciated in the authorities hereinbefore cited.
That, DW2, Chief Moses Nkwoderima, who hails from Owerri Nchi-Ise, gave evidence on the issue of inheritance of the homestead (Okpulo) of a deceased father under customary law of the people of Owerri. That, is evidence is that the homestead (okpulo) of a deceased father, devolves on the first son (Diokpara) to the exclusion of all other persons. That, other sons, other than the first son, wives and grandsons, are excluded from such inheritance. (See page 156, lines 28- 30 and page 157 lines 1 – 10).
Counsel submitted that the credentials of the DW2 speak for themselves. The witness stated on oath, that:
“My kindred is Ogba-Nneke in Amawom, Owerri. I am the Chairman of Ogagba-Naneka kindred meeting. I am a member of the Cabinet of Eze Dr. Njemanze of Owerri Dr. Njemanze is Osuruigbo V of Owerri. I am a Chief. I was given Chieftaincy, title by Eze Emmanuel Njemanze, Osuruigbo V of Owerri, my chieftaincy title is Chigoziri of Owerri (see page 206 lines 1 – 7 of the Record of Appeal).”
Counsel submitted that the credentials of DW2 accord with the requirements of Section 59 (now Section 70) of the Evidence Act on the quality and qualification of witnesses to testify and/or prove the existence of an alleged custom.
Counsel submitted that in spite of the foregoing, and for some strange reason not apparent on the face of the record of appeal, the trial Judge preferred the evidence of PW3, and acted on it, although the PW3, by his credentials as stated above, did not satisfy the requirements of Section 59 (now Section 70) of the Evidence Act.
Counsel submitted, with respect, that, the trial Judge should not have accepted the evidence of PW3, he, not being a native chief nor did he claim to have special knowledge of the custom of the people of Owere Nchi-Ise. Counsel furthered, PW3 is only a contractor, businessman and an ex-service man. There is no evidence that he lives in the Owerri Nchi-Ise community so as to be in position to know and prove the existence of the alleged custom. His evidence is not credible and ought to have been rejected by the trial court.
Counsel submitted that the unchallenged evidence of DW2, to the effect that:
“As a Chief, I know the custom of our people. According to our custom if a man dies and at the time of his death, he has sons, the first son takes over the house in which their late father lived. I know the inherit (sic) as regards the last son- he inherits the mother’s kitchen or house. If the last son dies before his mother the house or kitchen of his mother when eventually she dies belongs to the grandchildren of the deceased last son.
Married mothers or widows do not share family property with direct sons of the family. Direct sons and grand children do not share family property.”
See page 156 lines 28 – 30, page 157 lines 1 – 9 of the record of appeal.
Should have been accepted and acted upon by the Honourable court, the same having satisfied the requirements of Section 59 (now Section 70) of the Evidence Act.
Learned counsel for the Appellant emphasized that DW2’s evidence is very credible and should have been accepted and acted upon by the learned trial Judge as the position of the custom of the people of Owerri Nchi-Ise on inheritance of the homestead (Okpulo) of a deceased father, in the absence of any other credible evidence to the contrary.
After relying on the case of S.O. Nwobuoko vs. P. N. Ottih (1961) All NLR 487, Appellant’s counsel continued and said that unfortunately, the trial Judge did not even evaluate the evidence of DW2, but instead accepted and believed the evidence of PW3 as the true position of the custom of the people of Owerri Nchi-Ise.
Learned counsel for the appellant quoted two passages from the judgment of the Supreme Court in the case of Alhaji A. N. Akibu vs. Joseph Opaleye & Anor. (1974) 11 SC 189 at 203 to say that the law is that
“…..the use of the expression, I believe and ‘do not believe’ without really evaluating the evidence of vital witnesses does not stop an appeal court from itself evaluating the evidence and seeing whether there is any justification for the use of such expression.”
And, that:
“Although this court (the Supreme Court) re-hears a case on appeal, it does this only on the records, and where it is quite clear that evidence has been led in the lower court which establishes a fact, it will make the necessary findings which the lower court failed to make.”
Still on this, learned counsel for the appellant further referred to the case of Thomas vs. Thomas (1974) A.C. 484 at 487, Fatoyinbo vs. Williams (1956) 1 F.S.C. 87.
Counsel submitted that evidence, having been led to establish the custom that the first son of a deceased father, inherits the homestead of his deceased father, this court, is urged, should make the necessary findings which the lower court failed to make.
He submitted that the claim of the 1st respondent that No. 9 Okigwe Road, Owerri, had been shared between her late husband and the appellant, by their relations was not proved by evidence, as the 1st Respondent’s witnesses did not say so in their testimony.
He submitted further that none of the persons who were alleged to have shared the property between the two brothers, was called to testify in proof of the alleged sharing.
Counsel submitted that some letters, Exhibits ‘B’ ‘C’ and ‘D’ were however tendered in evidence by DW1. Exhibits B, C and D, he says, do not prove that No. 9 Okigwe Road Owerri was shared between the Appellant and his late brother. The makers of Exhibit B, C and D, were not called as witnesses so as to afford the defence the opportunity of cross-examining them as regards the contents of the documents which the Respondent claimed established her allegation that No. 9 Okigwe Road, Owerri had been shared between the Appellant and his late brother, Dr. Sebastine Ekwebelam.
Counsel submitted that no credible evidence was led by the 1st Respondent to support her claim that No. 9 Okigwe Road, Owerri was shared between the Appellant and his later brother Dr. Sebastine Ekwebelam.
The 1st Respondent’s claim that No. 9 Okigwe Road, Owerri, had since been rebutted by the evidence of DW1 to the effect that no such sharing took place.
Counsel submitted that the finding of the trial Judge that it is the custom of the people of Owerri Nchi-Ise that sons of a man share his homestead (Okpulo) with the man’s first son (Diokpara), and that the said No. 9 Okigwe Road, Owerri, had actually been shared between the Appellant and the husband of the 1st Respondent, is perverse and cannot be supported in the light of the quality, weight and nature of evidence led by the parties at the trial.
He urged this court to make the proper findings of fact based on the evidence as established by the Appellant that:
(a) Under the native law and custom of the Owerri Nchi-Ise, the homestead, domicile (Okpulo) of a deceased father devolves upon his first son to the exclusion of all other persons.
(b) No. 9 Okigwe Road, Owerri, being the homestead, domicile (Okpulo) of late.Mr. Felix Soronnadi Elrwebelam, devolved on the Appellant, who inherited the same upon the demise of late Mr. Felix Soronnadi Ekwebelam, in accordance with the custom of the people of Oweri Nchi-Ise.
(c) No. 9 Okigwe Road, Owerri was never at any time shared between the appellant and the late husband of the 1st Respondent.
The submissions of the learned counsel for the appellant on Issue No. 3 which covers grounds 6, 7 and 8 of the Grounds of appeal follow closely to that of Issue No. 1.
Counsel submitted that Exhibit H, the purported WILL of late Dr. Sebastine Ekwebelam as shown on page 259 – 262 of the record of appeal, listed inter alia the real property for late Dr. Sebastine Ekwebelam, to include the two main rooms, one store room in the main building, and one room at the out building of the property, No. 9 Okigwe Road, Owerri.
The general rule, said counsel, is that, family property cannot be disposed of, by WILL of a deceased person unless it is proved that such property inheres in the testator at the time of death. A mere declaration of title to property in a WILL does not prove ownership of the said property.
Counsel referred to the cases of Egonu vs. Egonu (1978) 11 & 2 S.C. 111 at 125, and Okelola vs. Boyle (1998) 2 NWLR (Pt. 539) 533 at 556 and said that the burden of proving that family property was partitioned and vested in a deceased testator at the time of his death, is on the person who so alleges.
And, that, it follows that the validity or otherwise of property listed in a WILL, is dependent on whether the property so listed belongs to the testator as at the time of his death.
Counsel submitted further that the Plaintiff/Respondent, in paragraph 4 of her statement of claim, pleaded thus:
“Based on the Owerri custom on inheritance upon intestacy pleaded above, after the burial of the said father of the Plaintiffs husband and the Defendant they invited their relations and in their presence, they shared their late father’s house at No. 9 Okigwe Road, Owerri, which consisted of the main building and an out building. The plaintiff’s husband was giving two rooms and one store room in the main building and one room at the out building” See page 7 lines 8 – 15 of the record of appeal.”
That, in her evidence, the Plaintiff/Respondent, at page 70 lines 4 – 5, said:
“The original owner of No. 9 Okigwe Road, Owerri was my late father in law, Mr. Felix Soronnadi Ekwebelam who is now dead. He died on 6th March, 1980. Upon his death, in accordance with the customary law of Owere Nchi-Ise as supported by the affidavit sworn to by the 1st Defendant in the High Court on 3rd September, 1980, paragraphs 11, 15, 16 my late husband and 1st Defendant shared No. 9 Okigwe Road, Owerri, since they were the only surviving sons of their father. My late husband during the sharing of No. 9 Okigwe Road, got one store and two rooms from the main building and one room from the out building of No. 9 Okigwe Road, Owerri.”
Counsel observed that there is nothing in the affidavit of the appellant referred to herein, which appears to suggest that the appellant stated on oath that No. 9 Okigwe Road, Owerri was shared between the appellant and the 1st Respondent’s husband (see pages 253 – 255 of the record of appeal.)
On the contrary, said appellant’s counsel, the Defendant/appellant rebutted the foregoing in paragraph 7 of his Amended Statement of Defence, where he pleaded that:
“Paragraph 4 of the statement of claim is denied. It is denied that after the death of their father, the Defendant and the plaintiff’s husband invited their relations who shared their father’s property between them, particularly the rooms and out house of No. 9 Okigwe Road, Owerri” See page 290 lines 26 – 30 of the supplementary record of appeal.”
Also, that at page 142 lines 4 – 5 of the record, the appellant, who testified as DW1 at the court below, said:
“After our father’s death non of our relations ever came to share No. 9 Okigwe Road, for us.”
And, at page 145 lines 2 – 8 of the record, DW1 further stated:
“I did not at any time share No. 9 Okigwe Road, Owerri, with my late brother Dr. Sebastine Ekwebelam during his life time. This is because No. 9 Okigwe Road, Owerri, was the residential house of our late father, which belongs to the first son by our custom. Such buildings are not usually shared.”
Counsel submitted that the burden of proving that No. 9 Okigwe Road, Owerri, was shared between the plaintiff’s husband and the Defendant/Appellant, by their relations lay on the Plaintiff/Respondent who alleged the existence of that fact. He said, the Plaintiff/Respondent failed to prove the fact pleaded in paragraph 4 of her statement of claim. Be that as it may, said counsel, the appellant, duly established by evidence, that No. 9 Okigwe Road, Owerri was never shared, but devolved on him as the first son of Felix Soronnadi Ekwebelam, in accordance with customary law of the people of Owerri. After referring to the evidence of DW1 and DW2. Counsel submitted that the appellant further testified that by the custom of the people of Owerri Nchi-Ise on inheritance, a deceased father’s homestead (Okpulo) is never shared but devolved on the first son as of right. (See page 145 lines 2- 8, page 140 lines 26- 30 and page 141 lines 1 – 3 of the record of appeal.)
He submitted that the Honourable trial court failed to evaluate and/or make findings of fact on the question of whether No. 9 Okigwe Road, Owerri, was shared, but proceeded to declare the two main rooms, one store room in the main building and one room at the out building of No, 9 Okigwe Road, Owerri as part of the estate of late dr. Sebastine Ekwebelam, even when the Respondent failed to prove that the said property vested in her late husband as at the time of his death.
Counsel submitted that the parties, having joined issues on the question of the sharing of No. 9 Okigwe Road, Owerri, the lower court was bound to resolve the same and make specific finding on it. He referred to the case of Anyakora vs. Obiakor (1990) 2 NWLR (Pt. 130) 52 at 62, where it was held that “the trial court must make up its mind on the evidence led, and determine each issue of fact one way or another by making specific finding on it.”
Counsel submitted that a finding on the above issue becomes important as it would have a crucial effect in deciding whether No. 9 Okigwe Road Owerri, was indeed shared between the Appellant and the husband of the 1st Respondent.
In this respect, Appellant’s counsel referred to the decision of the Supreme Court per Karibi-Whyte JSC in Welli vs. Okechukwu (1988) 2 NWLR (Pt. 5) 63 at71 -72 to the effect that
“Where at the end of the day, any of the material issues whose determination is likely to effect the result of the litigation between the parties, is not resolved, the issue between the parties would appear not determined. It is for this reason that where several issues affecting the determination of a matter, before the court, are specified, it is essential for the court, in determining the case to decide such issues… In all cases where issues are joined, there is a duty on the court to state how such issues have been disposed of.”
Counsel submitted that the learned trial Judge did not abide by this principle of law and thereby failed to determine whether No. 9 Okigwe Road, Owerri, was shared. The trial Judge, said counsel failed to consider the contention of the Appellant that there was no sharing of the disputed property. This failure, counsel said, amounted to an assault on the Appellant’s constitutional right to fair hearing which assault, he submitted occasioned a miscarriage of justice.
This is so, according to counsel, because, if the trial court had considered the case of the Appellant before reaching the decision complained of herein, it definitely would have come to a different conclusion
Counsel submitted further that at page 220 lines 24 -28 and page 221 lines 1-5 respectively of the record of appeal, the honourable trial court held as follows:
“It is my view in the light of the above averments of the 1st Defendant on oath and I so hold that it is the custom of Owerri that 1st Defendant and his late brother Dr. Sebastine Ekwebelam should jointly administer their father’s Estate at No. 9 Okigwe Road, Owerri.
“It is also my view and I so hold that the 1st Defendant had complied with this custom and was jointly administering No. 9 Okigwe Road, Owerri, with his junior brother Dr. Sebastine Ekwebelam before his unfortunate death by motor accident.”
Learned counsel for the Appellant further reviewed the evidence of DW1 and DW2 in contrast to the evidence of the Plaintiffs Respondent’s witnesses particularly PW3 and observed, that the appellant’s case is not based on the general custom of the people of Owerri on inheritance with respect to a deceased father’s estate generally, but on the custom of the people of Owerri on how or who inherits the homestead (okpulo) of a deceased father.
Counsel submitted that it is common ground that:
(a) The Appellant is the first son of late Felix Soronnadi Ekwebelam who died intestate in 1980.
(b) Felix Soronnadi Ekwebelam lived and died at No. 9 Okigwe Road, Owerri.
(c) No. 9 Okigwe Road, Owerri was the homestead (okpulo) of late Felix Soronnadi Ekwebelam.
(d) Dr. Sebastine Ekwebelam the late husband of the 1st Respondent, was the second and not the first son of late Felix Soronnadi Ekwebelam.
Appellant’s counsel submitted that the law is that the principle enunciated in the case of A.R. Mogaji & Ors. vs. Rabiatu Odofin (1978) 1 LRN 212 in relation to the totality of the evidence adduced in the whole case, applied to the assessment of the evidence called by either side, on any important issue of fact.
On this, counsel further referred to cases of Olujinle vs. .Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 254, Dingyadi vs. INEC. (2010) All FWLR (Pt. 550) 1210, In Time Connection Ltd. Vs. Ichie (2010) All FWLR (Pt. 543) 1883, and Unilorin vs. Adesina (2010) 9 NWLR (Pt. 1199).
Counsel concluded on Issue No. 3, that the Honourable trial court neither considered, evaluated nor made specific findings of facts on the issue (5) canvassed before him before reaching the decision herein.
The response of the learned counsel for the 1st Respondent to appellant’s Issue Nos. 1 & 3 are contained in the 1st Respondent’s Issue No. 1. 1st Respondent’s counsel noted that the learned trial Judge made some important findings and conclusions in relation to the case before him. That, accordingly, he found amongst other things:
(i) That the late Dr. Sebastian Ekwebelam, deceased husband of the 1st Respondent was not at home when their father died, hence the assertion of the 1st Defendant/Appellant that their father on his dying bed at Emekuku Hospital in the presence of himself and his late brother Dr. Sebastian Ekwebelam divided his houses between 1st Defendant and his late brother Dr. Sebastian Ekwebelam giving 1st Defendant No. 9 Okigwe Road, Owerri, is false. See pages 224 -225 of the record.
(ii) That the 1st Defendant/Appellant had earlier on sworn to an affidavit that according to their native law and custom, the first son and his other brothers inherit and administer the estate of their deceased father, hence the 1st Defendant/Appellant and his late brother Dr. Sebastian Ekwebelam are to jointly administer their father’s estate at No. 9, Okigwe Road, Owerri. See page 220 of the record.
(iii). That it was falsehood for the Appellant to say that the affidavit “Exhibit G” which he signed was prepared by the late Dr. Sebastian Ekwebelam and he did not know what he was signing at that time, because at the material time when the affidavit was made, Dr. Sebastian Ekwebelam was in the United States of America. See page 223 of the record.
Learned counsel for the 1st Respondent submitted that, it is the law that in omnibus grounds, the complaint is of necessity against the totality of the evidence adduced before the court and not on a finding of fact on a specific issue. Thus, where a specific finding, holding or conclusion is to be challenged, it must be by way of a substantive ground of appeal.
He referred to the cases of Ajibona vs. Kolawole (1996) 12 SCNJ 270 at 277, (1996) 10 NWLR (Pt. 476) 22 at 30, Ndiwe vs. Okocha (1992) 7 NWLR (Pt. 252) 129 and Anyaduba vs. NRTC, Ltd. (1992) 5 NWLR (Pt. 243) 535 and submitted that findings not challenged are deemed to be correct and the appellate court will not intervene to set aside such a finding or conclusion. The Appellant, according to counsel has not challenged the above findings and conclusions of the learned trial Judge.
Counsel submitted that on the strength of the available evidence before the trial court, it is true that under the native law and custom of the Owerri Nchi-Ise people, all the children of a deceased man, are entitled to inherit his estate and that his house belong to his male children.
Counsel submitted further that both parties had before the learned trial Judge, gave conflicting evidence as to what the native law and custom of the parties is as to the estate of a deceased man. The 1st Respondent in her evidence and that of PW3 revealed that all the male children of a deceased man are entitled to the house in which their father lived and died. The Appellant however contended that, it is only the first son that is entitled to the house in which their father lived and died. Counsel added, that documentary evidence were tendered in the course of the proceedings and of importance is Exhibit G, which was the affidavit sworn to by the Appellant on his own freewill in 1990, almost twelve years before this present action was instituted.
Respondent’s counsel contend that in Exhibit ‘G’, the Appellant stated the native law and custom of Owerri Nchi-Ise people on inheritance, when he deposed in paragraphs 11, 15 and 16 therein thus:
“11 That according to the Native Law and Custom of Owerri, the first son and his other brothers inherits and administer the estate of their deceased father.
15. That Sebastian Ekwebelam and myself are the rightful persons to administer the estate of the said Felix Ekwebelam.
16. That Sebastian Ekwebelam and myself are adults and are the sons of the said Felix Ekwebelam and we are the rightful persons to be granted letters of administration to the estate of the said Felix Ekwebelam.”
Learned counsel for the 1st Respondent submitted that Exhibit ‘F’ is another documentary piece of evidence which corroborated the testimony and position of the Respondent, that, her late husband had interest in the property in dispute, that is 9, Okigwe Road, Owerri.
According to counsel, Exhibit F is a letter dated 2/4/88 addressed to Dear brother and signed by the Appellant. The 1st Respondent claimed that the letter was in respect of the property rate at No. 9 Okigwe Road, Owerri whereby the appellant demanded her late husband’s share of the property rate. Still on Exhibit F, 1st Respondent’s counsel submitted that the Respondent was never cross-examined as to the fact that, appellant rendered account to the 1st Respondent’s husband in respect of No. 9 Okigwe Road – subject matter of this appeal. He submitted that, a piece of evidence not challenged is deemed admitted. Furthermore, said counsel, when appellant testified, he did not challenge Exhibit ‘F’, meaning that he accepted the contents of Exhibit ‘F’.
Counsel submitted that Exhibit ‘F’ clearly corroborates the case of the 1st Respondent that, her deceased husband had interest in No. 9 Okigwe Road, in that the property had been shared between the appellant and 1st Respondent’s deceased husband. The effect of Exhibit F which was admitted without objection and which was never challenged put paid to the contention of the appellant that, the property known as No. 9 Okigwe Road, Owerri is exclusively vested in him to the exclusion of the late husband of the 1st Respondent.
The golden question here, said counsel is if indeed the property at No. 9 Okigwe Road, belong to the Appellant alone, why then was he rendering accounts to the husband of the 1st Respondent.
Counsel submitted that Exhibit F clearly demonstrated the fact that Appellant is not saying the truth when he claimed to be the sole owner of No. 9 Okigwe Road, Owerri.
Counsel referred to the case of Olujinle vs. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 241 and submitted that it is the law that where pieces of documentary evidence have been admitted in evidence, they are to be used as a touch stone by which oral testimony is to be assessed.
Accordingly, said counsel this Honourable court is urged to use Exhibit A, B, C, D and G, all of which have been in existence long before this present suit was contemplated, to resolve the issue.
(i). What the native raw and custom of the people is in relation to No. 9 Okigwe Road, Owerri Imo State.
(ii) Whether, the rate Dr. Sebastian Ekweberam has any right to the property the plaintiff claimed in this suit.
Counsel urged us to conclude that, under the native law and custom of the parties herein, the late husband of the Plaintiff was entitled to No. 9. Okigwe Road, and that his entitlement has been duly bequeathed by his WILL.
Learned counsel for the 1st Respondent submitted that in considering the evidence given by PW3 on the custom under reference, Appellant has sought to puncture the said evidence by arguing that PW3 being a contractor, businessman, ex-serviceman who had not lived his life in Owerri Nchi-Ise was not competent to have given evidence as to the correct position of native law and custom being sought to be proved. That, against the testimony of PW3, Appellant has given embellishment to the testimony of DW2 but he has not shown anything which could make the Honourable court conclude that the evidence of PW3 is unreliable or that his own (Appellant’s evidence) actually represent the correct position of the native law and custom sought to be proved.
Counsel submitted that the case of the Appellant was impaired by so many foibles and contradictions which demonstrated beyond doubt that, the appellant is not a witness of truth and nothing can be made out of his case.
It is appreciated, said counsel that, under our rules of evidence, the burden of proving a specific fact is on the person who asserts its existence. However, that burden is not static, hence the burden can also shift to that person who would fail if no further evidence is led. He referred to Sections 136 and 139 of Evidence Act Cap. 112 LFN 1990 (now Sections 133 and 136, Evidence Act, 2011).
Accordingly, said counsel the Plaintiff/1st Respondent having proved what the custom of the parties is as to inheritance, the onus of debunking her assertion, shifts to the Appellant who has contended otherwise.
He submitted that Exhibit ‘G’ being a sworn and solemn deposition made by the Appellant, of his own free will, on the native law and custom of his people in relation to the subject matter of this case becomes an admission against interest, which must be so treated and this Honourable Court is urged to hold accordingly.
Furthermore, said counsel, Appellant’s DW2, gave evidence on oath that in Owerri Nchi-Ise custom a man is buried where he has inheritance. (See page 158 lines 29 – 31 of the record).
That, the evidence of DW2 becomes damaging to the case of the appellant, if one considers the fact that, Dr. Sebastian Ekwebelam was buried at No. 9 Okigwe Road, Owerri. This, counsel said, is because he has inheritance at that place.
On this, he referred to the cases of Anyabunsi vs. Ugwunze (1995) 6 NWLR (Pt. 401) 255 at 261, Adeyeye vs. Ajiboye (1987) 3 NWLR (Pt.61) 432.
The trial Judge, said counsel, gave reasons to conclude that, the Appellant is not a man to be believed. He reasons amongst others were that:
(i) Contrary to his sworn affidavit, he said that under native law and custom of his people, his is the only person entitled to inherit the last place of abode of their deceased father. See page 220 of the record.
(ii) Contrary to his evidence in Exhibit ‘A’, he said at the time of the death of their father, that their father on his sick bed divided his properties amongst his children, whereas the late husband of the Plaintiff was not around. See page 219 of the record.
(iii) Appellant said that the late Dr. Ekwebelam was the one who made Exhibit G for him and he only signed same, whereas from Exhibit Q, it was apparent that at the time Exhibit G was made, Dr. Ekwebelam was not in Nigeria. See page 223 of the record.
(iv) The Appellant would not know the number of children his mother bore for another man. See page 225 of the record.
Counsel submitted that a witness is not entitled to any honour or credibility, where there are so many inconsistencies in his testimony such as the above highlighted.
On another wicket, learned counsel for the 1st Respondent said that Appellant also contended that, Plaintiff/1st Respondent did not prove that the property of Felix Soronadi Ekwebelam (deceased) was ever shared between Dr. Sebastian Ekwebelam (deceased) and himself. That, according to the Appellant, the trial Judge did not find that the property was vested in Dr. Sebastian Ekwebelam (deceased) before effect was given to the WILL, Exhibit H.
Counsel submitted that, a fact can be proved either by way of oral or documentary evidence or both. Exhibits B, C, D & Q were tendered as evidence of the fact that Dr. Sebastian Ekwebelam, had interest in the property covered by Exhibit H. Exhibit-D was tendered and admitted to show that the property covered by Exhibit D was vested in the maker of Exhibit H. Exhibit D, said counsel was not impugned by the Appellant.
The learned trial Judge, said counsel, after considering the various documentary evidence tendered concluded thus:
“I have underlined the words; BEFORE YOU TOOK OVER: which to my mind shows that late Dr. Sebastian Ekwebelam had become as it were landlord for the particular store.”
See page 222lines 27 – 29 of the record.
Counsel further submitted that plaintiff (1st Respondent) as PW1 gave evidence thus:
“My late husband and the first Defendant shared No. 9 Okigwe Road, Owerri, since they were the only surviving sons of their father. My late husband during the sharing of No. 9 Okigwe Road, Owerri got one store and two rooms from the main building and one room from the out building at No. 9 Okigwe Road.”
See page 70 lines 10 – 15 of the record.
Again, that PW1 said:
“There are matters to show that my late husband got one store and two rooms in the main building and one room at the outbuilding. After the sharing the first Defendant was the caretaker for my late husband and he was giving to my late husband account of rents he received from tenants of my late husband in my late husband’s share of the store and rooms. For example, on 12th January, 1986 the first Defendant wrote a letter to my late husband and therein gave him accounts of the rents he received on behalf of my husband in respect of tenants living in my late husband’s share of the store and room.”
See page 71 lines 10 – 22 of the record.
Counsel submitted that the Plaintiff/1st Respondent, again said:
”…..throughout the life time of my husband after he had shared the stores and rooms at No. 9 Okigwe Road, Owerri, with the first Defendant, he did not have any problem with the first defendant.”
See page 76 lines 29 -32 of the record.
Counsel submitted that the pieces of evidence given by the plaintiff (1st Respondent) as quoted above were not challenged under cross-examination. And, that the position of the law is that evidence not contradicted or challenged by cross-examination are deemed to be correct. He referred to the case of Omoregbe vs. Lawani (1980) 3 – 4 SC 108.
The above being the situation, said counsel, the learned trial Judge followed the laid down procedure in concluding that, the properties mentioned in Exhibit H had been vested in Dr. S. Ekwebelam and effect was duly given to the Exhibit.
Counsel submitted further that the point raised by the Appellant that most of the issues raised by him were not considered by the learned trial Judge was without basis. That, apart from the various documentary pieces of evidence relied upon by the learned trial Judge, he (the learned trial Judge) concluded his perception of the appellant thus:
“I have no hesitation in the circumstance in holding that 1st Defendant is very despicable liar a man who told the court that he did not know the number of children born by his own mother for another man Dr. Ekpo after she left her first husband father of 1st Defendant and yet he told the court on oath that, that mother of his has since returned to the father’s house yet he does not know the number of children his own mother borne (sic) for her second husband and those children are supposed to be his half brothers and sisters.”
Counsel urged us to conclude that, on the basis of the evidence available before the learned trial Judge, the 1st Respondent was entitled to judgment which was given in her favour.
As I noted earlier oh, Appellant’s Issues Nos. 1 and 3 are related species of evaluation of evidence. Issue No. 1 captures its more general form on the nature, weight and quality of evidence led by the parties. Issue No. 3 specifically attacks the failure to consider the evidence of the appellant on devolution of property under customary law of the people of Owerri leading to the decision and the awards made to the Plaintiff/1st Respondent. The learned counsel for the 1st Respondent reacted to Appellant’s issues Nos. 1 and 3 in his Issue No. 1.
In deciding these two related issues, it is appropriate to take another look at the pleadings of the parties. First to determine the crucial areas on which they have joined issues. Secondly, to appreciate which of the parties to the suit carry particular burdens of proof by their pleadings.
The relevant pleadings as I can see are paragraphs 2, 3, 4, 5 and 6 of the Plaintiffs/1st Defendant statement of claim, paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the Appellant’s Amended Statement of Defence and paragraphs 1 and 2 of the 1st Respondent’s Reply to the Statement of defence.
Statement of Claim:
“2. Both the Defendant and the late husband of the Plaintiff (that is Dr. Sebastine A. Ekwebelam) were the only surviving sons of Mr. Felix Soronnadi Ekwebelam of Amawom Owerri, within jurisdiction. The said Felix Soronnadi Ekwebelam died on the 5th day of March 1980 at Owerri. He died INTESTATE. At the time of his death, the Plaintiff’s husband, Dr. Sebastine A. Ekwebelam was still alive, and under Customary Law of Owerri Nchi-Ise all the properties of the said Mr. Felix Soronnadi Ekwebelam belong jointly to both the Plaintiffs husband and the Defendant. The Plaintiff hereby pleads this custom and shall lead evidence to prove same.
3. The properties of the said Felix Soronnadi Ekwebelam include the premises known as No. 9 Okigwe Road, Owerri. The said Felix Soronnadi Ekwebelam erected a building at on a part of the said premises, which building he owned and occupied till he died. During his lifetime also, he allotted a piece of land within the premises of No. 9 Okigwe Road, Owerri to the Defendant and he erected his personal house thereon, which he still occupies till date. No similar piece was allotted to the Plaintiff’s husband.
4. Based on the Owerri custom on inheritance upon intestacy pleaded above, after the burial of the said father of the Plaintiffs husband and the Defendant, they invited their relations and in their presence, they shared their late father’s house at No. 9 Okigwe Road, Owerri which consisted of the main building and an out-building. The Plaintiffs husband was given TWO ROOMS AND ONE STORE ROOM in the main building and ONE ROOM at the out-building.
The Defendant was given the REST OF BOTH the main house and the out-houses. Both of them accepted the sharing, even though it was most uneven and most inequitable against the Plaintiff’s husband, but he allowed it for peace and unity in the family.
5. At the time of the sharing pleaded above, one Mrs. Justina Opara was in occupation of the store. Consequently, by a letter dated 13th December, 1987, the Plaintiffs husband notified the said Justina about the fact that he now owns the store and directed her to be paying all rents to his Bank Account No. 1861 at co-operative and commerce Bank, Okigwe Road, Owerri. The copy of the said letter now in the Plaintiff’s possession is hereby pleaded and shall be tendered and founded upon at the hearing.
6. Also, by a letter dated 7th January 1989, the Plaintiffs husband notified the said Mrs. Justina Opara of an increase in rent payable in respect of the store from N100.00 monthly to N120.00 monthly. The said letter is also hereby pleaded and shall be tendered at the hearing. One Gabriel Opara, the husband of the said Mrs. Justina Opara replied to the two letters pleaded above, and pleaded that the rent be left as it was. The said letter dated 27 – 1 – 88 and addressed to the Plaintiff’s husband is hereby pleaded and shall be founded upon at the hearing. Following the plea contained in the said letter, the plaintiff’s husband, by another letter dated 1st March, 1988 reduced the rent from N120.00 monthly to N110.00 monthly. The plaintiff pleads a copy of the said letter which she discovered amongst her late husband’s papers on his death, and shall tender same at the hearing. Also, on the 1st October, 1988, the plaintiff’s late husband demanded from the said Justina Opara evidence of payment of Rent from June – September, 1988. A copy of the said letter is hereby pleaded.”
Amended Statement of Defence:
“3. With regard to paragraph 2 of the statement of claim, the Defendant admits:
(a) The Plaintiff’s husband and himself were the only surviving sons of their father, Felix Soronnadi Ekweberam, late, before Plaintiff’s husband died on the 20th day of July 1989.
(b) That the late Felix Soronnadi Ekwebelam died on the 5th of March, 1980, at Owerri and that at that time of his death, Plaintiff’s husband was still alive.
BUT DENIES that under customary Law of Owerri Nchi-Ise, all the properties of their late father are jointly owned by him and Plaintiffs husband
4. In further answer to paragraph 2 of the Statement of Claim, the Defendant pleads the custom of Owerri Nchi-Ise on inheritance which he intends to prove at the hearing namely:
(a) That on the death of a father, his Okpulo or domicile devolves on his eldest surviving son as of right.
(b) That grandsons in Owerri Nchi-Ise do not share family property with direct sons of the family.
(c) That married women/widows do not share family property with direct sons.
5. It is hereby pleaded that the defendant is the first and elder son of the fate Felix Soronnadi Ekwebelam, while the plaintiff’s husband was the second and junior son.
6. In answer to paragraph 3 of the statement of claim the defendant admits that the premises known as No. 9 Okigwe Road, Owerri was owned by their father who erected a building thereupon and which building was his Okpulo or domicile till his death, but denies vehemently that his late father allotted a, piece of land to him within the precincts of No. 9 Okigwe Road or elsewhere upon which he erected his own personal house. It is a statement of fact that there is only one house or building of 8 rooms and appurtenances standing at the premises of No. 9 Okigwe Road, Owerri built by the defendant’s late father.
7. Paragraph 4 of the Statement of Claim is denied. It is denied that after the death of their father, the defendant and plaintiff’s husband invited their relations who shared their father’s property between them. Particularly the rooms and out-house of No, 9 Okigwe Road, Owerri.
8. Before his death, the late Felix Soronnadi Ekwebelam shared his realty comprising
(i) the built up house at No. 9 Okigwe Road, Owerri where he lived and died, and
(ii) an unbuilt up piece of land known as Plot 357 or No. 4 Port Harcourt White Street, Ikenegbu Owerri
Between his two sons. To the defendant, he bequeathed No. 9 Okigwe Road, Owerri, in accordance with Owerri Nchi-Ise custom, and to the plaintiff’s husband, he granted Plot 357 Ikenegbu Layout. The grant was by a Deed which is hereby pleaded. The plaintiff’s husband had since erected a building of 6 flats on the said Plot 357. The plaintiff now lives there with her children. The late Felix Soronnadi Ekwebelam did not share to his sons his money in the bank made up of N994.75 current Account and N623.05 savings.
9. In answer to paragraph 5 of the Statement of Claim, it is still denied that No. 9 Okigwe Road was shared between the defendant and plaintiff’s husband. The defendant further deposes that at the time when the payment of property rate for No. 9 Okigwe Road became difficult for him, he borrowed the sum of N1,000.00 (one thousand Naira) from his junior brother (plaintiff’s husband) to off-set the bill. In order to refund the money, the defendant assigned one store to the plaintiff husband to collect rents therefrom up to the amount borrowed and no more, the said letter pleaded in paragraph 5 of Plaintiffs Statement of Claim was incidental and consequential to that event.
10. Paragraph 7 of the Statement of Claim is denied. It is denied that the plaintiff husband was ever allotted portions of No. 9 Okigwe Road, except for the brief period the one – room store was assigned to him by the defendant to recoup his money lent to the defendant with which defendant off-set the said property rate bill.”
Reply to the Statement of Defence:
“1. The plaintiff, in reply to paragraph 4 of the Statement of Defence, pleads that the defendant by an affidavit he swore to on the 3rd day of September 1980 in respect of Suit No. 1/301/80, had deposed in paragraph 11 thereof that:
“11. That according to the Native Law and Custom of Owerri, the first son and his other brothers inherits and administers the estate of their deceased father.”
The said affidavit is hereby pleaded and shall be founded upon at the trial.
2. The plaintiff, in reply to paragraph 6 of the Statement of Defence pleaded that defendant, in a letter dated 30th September 1980, which he wrote from his former address of No. 4 Accra Street Port-Harcourt, to the plaintiffs late husband, stating that the house at No. 9 Okigwe Road which belongs to their late husband, was then the subject of litigation and asked the plaintiffs late husband to bring money for the case to be fought. The letter is hereby pleaded and shall be tendered and founded upon at the trial. Also another letter written by the defendant to the plaintiff’s late husband, dated 2-4-88, wherein the defendant stated, in respect of No. 9 Okigwe Road Owerri, that:
“Our property rate is out, we are owing almost about N973.50 is hereby pleaded and shall be rendered and founded upon at the trial.”
From the pleadings of the parties in this case, it is common ground that:
(a) The Appellant is the first son of late Felix Soronnadi Ekwebelam who died intestate.
(b) Felix Soronnadi Ekwebelam lived and died at No. 9 Okigwe Road, Owerri.
(c) No, 9 Okigwe Road, Owerri was the homestead (okpulo) of late Felix Soronnadi Ekwebelam.
(d) Dr. Sebastian Ekwebetam, the late husband of the 1st respondent, was the second and not the first son of late Felix Soronnadi Ekwebelam
Also, from the pleadings of the parties, it is clear that the plaintiff/1st respondent must prove:
1. In accordance with paragraph 2 of the Statement of Claim that “under Customary Law of Owerri Nchi-Ise all the properties of the said Mr. Felix Soronnadi Ekwebelam belong jointly to both the plaintiffs husband and the defendant. …….”
In accordance with paragraph 4 of the Statement of Claim that “Based on the Owerri custom on inheritance upon intestacy pleaded above, after the burial of the said father of the plaintiffs husband and the defendant, they invited their relations and in their presence, they shared their late father’s house at No. 9 Okigwe Road, Owerri. .”
3. Still in accordance with paragraph 4 of the Statement of Claim that by the sharing, “the plaintiffs husband was given TWO ROOMS AND ONE STORE ROOM in the main building. The defendant was given the REST OF BOTH the main house and the out-houses….”
It is by the simple interplay of the rules of evidence as to proof that we can confidently assert that until the plaintiff/1st respondent had reasonably satisfied the court as to the existence of the above facts that any form of burden shifts unto the Defendant/Appellant to dislodge those facts.
In the words of Section 133(1) and (2) of the Evidence Act 2011.
“133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regards being had to any presumption that may arise on the pleadings.
(2) lf the party referred to in subsection (1) of this section adduced evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
The question arises, how did the 1st respondent as plaintiff fair in this matter of proof?
In an attempt to prove the alleged custom of Owerri Nchi-Ise, the 1st respondent called PW3, one Lawrence Ikegwuruka, a 53 year old man who hailed from Umuodu, Owerri Nchi-Ise and who tellingly described himself as a business man, a contractor and a retired Warrant office 11 in the Nigerian Army.
In this respect, I think learned counsel for the Appellant was right when he said that it is not in evidence that PW3 is a native chief or a person having special knowledge on the native law and custom of the people of Owerri Nchi-Ise, and that the credentials of PW3 as shown by evidence, do not prove that PW3 falls within the category of persons whose opinion can constitute proof of the custom of the people of Owerri Nchi-Ise on inheritance, for the court to rely upon such evidence as the opinion of an expert.
Learned counsel for the appellant went further to compare the credentials of PW3 with that of DW2 who is from the same village with the parties to the suit, a member of the Ogba-Nneke Kindred in Amawom Owerri, a member of the cabinet of Eze Dr. Njemanze of Owerri and he himself a Native Chief, the Chigoziri of Owerri.
Section 67 of the Evidence Act 2011, provides for the general rule of irrelevancy and inadmissibility of opinion evidence.
It says:
“67. The opinion of any person as to the existence or non-existence of a fact in issue or relevant to the fact in issue is inadmissible except as provided in Section 68 to 76 of this Act.”
An exception to the general rule of inadmissibility of opinion evidence is the opinion of experts. In this respect, Section 70 of the Evidence Act provides for the admissibility of opinions as to customary law and custom as follows:
“70. In deciding questions of Customary Law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the Customary Law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law and custom applies are admissible.”
In the instant case, I do agree with the learned counsel for the Appellant that in contradistinction to the evidence of DW2, the evidence of PW3 on account of the credentials of the witness cannot be said to be that of a person having special knowledge of the custom of the Owerre Nchi-Ise people on inheritance and his evidence (PW3) falls within the general rule of irrelevancy and inadmissibility of opinion evidence under Section 67 of the Evidence Act and is inadmissible under Section 70 of the same Evidence Act
It must also be stated in relation to adjudication, that custom is a question of fact which must be pleaded and proved by independent witness or witnesses. It must be pleaded and proved by direct and credible evidence.
See Momodu Olubodun & 4 Others vs. Oba Adeyemi Lawal & 1 Other. (2008) 17 NWLR (Pt. 1115) 1 at page 33.
In the instant case, the opinion evidence of PW3 as to the custom of the Owerri Nchi-Ise people on inheritance is not relevant, not admissible and not credible in all the circumstances of the case.
The 1st respondent, as plaintiff before the court below also made attempt to establish the custom of the Owerri Nchi-Ise people through Exhibit ‘G’. The content of Exhibit ‘G’ was a previous affidavit deposition by the Appellant when he stated inter alia that:
’11. That, according to the Native Law and Custom of Owerri, the first son and his other brothers inherits and administers the estate of their deceased father.”
There are three, perhaps four reasons why the learned trial Judge in the court below acted in grave error in accepting amongst other things the above deposition of the Appellant in proof of the custom of Owerri Nchi-Ise on inheritance.
First, it is now settled law that a court does not grant declaration of right either in default or on admissions without taking evidence and being satisfied that the evidence led is credible.
See, Motunwase vs. Sorungbe (1988) 5 NWLR (Pt. 92) 90, Udo vs. C.R.S.N. (2001) 14 NWLR (Pt. 372) 116, Bello vs. Eweka (1981) 1 SC 101 and Ogunjumo vs. Ademolu (1995) 4 NWLR (Pt. 389) 254.
Second, and relatedly, an admission which has no foundation in law or in fact is valueless and cannot be binding.
See, Odutola vs. Papersack (Nig.) Ltd. (2006) 18 NWLR (Pt.1012) 470 at 494
In that case, Tobi JSC who delivered the lead judgment of the Supreme Court said:
“An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the court, it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a court of law is entitled not to assign any probative value to it.”

Third, documentary evidence is unknown to native law and custom. See, Ajadi vs. Olanrewaju (1969) 1 All NLR 382, Egwu vs. Egwu (1995) 5 NWLR (Pt. 396) 493.
Fourth, and of equal significance, the above deposition of the Appellant bears no relevance to the specific issue joined by the parties to the suit as to who inherits the homestead (okpulo) of a deceased father under the custom of Owerri Nchi-Ise.
Again, in this case, the 1st respondent did not offer any iota of evidence in support of paragraph 4 of her Statement of Claim that relations were invited to share the property at No. 9 Okigwe Road Owerri between the Appellant and her deceased husband.
Now, the law relating to proof of partition of family property is now well settled. It is important, to prove partition of family property, that evidence of those who were present at the time the partition took place and the extent of the property so partitioned be given. See, Akinloye vs. Eyilola (1968) N.M.L.R 92, Okerengwo vs. Imo State Education Board (1989) 5 NWLR (Pt. 121) 295, Obiazikwor ys. Obiazikwor (2008) 8 NWLR (Pt. 1090) 551 at 576
In the instant case, the 1st respondent did not plead the names of those present when the family property was shared, did not give the names of the relations that she claimed were invited to share the family property and did not render any shred of evidence as to those who did the sharing.
In the absence of proof of the custom of the Owerri Nchi-Ise people as to inheritance and the absence of acceptable evidence of the sharing or partition of the family property at No. 9 Okigwe Road Oweri, the 1st Respondent and indeed the learned trial Judge then hung on two categories of documentary evidence to seek to establish the interest of the 1st respondent’s husband in the property in issue.
The first in the series were Exhibit B, C, and D which were correspondences between the late husband of the 1st respondent (Dr. Sebastian Ekwebelam) and one Mrs. Justina Opara and her family tending to establish the relationship of landlord and tenant between the late Dr. Sebastian Ekwebelam and the said Mrs Justina Opara in respect of one of the stores in the house at No. 9 Okigwe Road Owerri.
The second, as in Exhibit ‘F’ are letters in between the Appellant and his brother Dr. S. Ekwebelam whereby in seeking financial assistance from the late husband of the 1st Respondent especially as regards the payment of tenement rate, the Appellant consistently used the plural language of “our house” to describe the property at No. 9 Okigwe Road, Owerri for his brother.
The learned trial Judge, in this respect did not consider the possibilities raised in the pleadings and evidence of the Appellant that at a point in time he borrowed a sum of N1,000 from his late brother and that, that was the reason why he allowed his brother to start collecting rents from Mrs Justina Opara.
The learned counsel for the 1st Respondent also relied on the case of Omoregee vs. Lawani (1980) 3-7 SC 108, for the proposition that documentary evidence, is the yardstick for testing of oral testimonies.
Here, I think both the learned trial Judge and the learned counsel for the 1st Respondent, with due respect got it all wrong.
Documentary evidence can only be a yardstick to the hanging or testing of oral evidence, where the oral evidence tends to establish a fact in issue and also where the documentary evidence supports or corroborates the fact in issue.
In the instant case the oral evidence offered by the 1st Respondent on the custom of the Owerri Nchi-Ise people on inheritance is not credible, the Plaintiff/1st Respondent also did not offer any proof on the alleged sharing of the property at No. 9 Okigwe Road, Owerri. In such a situation, the documentary evidence tendered especially Exhibit B, C, D and F which are sought to prove the interest and/or possession of the property by the late husband of the 1st Respondent do not have any legs to stand upon, can only hang in the air and cannot on their own without the necessary foundation of evidence of custom or sharing be proof of any of the facts in issue.
Speaking particularly on Exhibit ‘F’ a letter dated 2-4-88 presumably from the Appellant to the 1st Respondent on which the learned counsel for the 1st Respondent emphasized the fact that it was tendered without objection. I do not see anything in Exhibit ‘F’ contained at pages 251 – 252 of the record which suggest in fact that the maker of the document was writing about No. 9 Okigwe Road, Owerri, neither do l see Exhibit ‘F’ and indeed the other Exhibits including B, C and D as proof of the sharing of the property at No. 9 Okigwe Road Owerri, as alleged in paragraph 4 of the 1st Respondent Statement of Claim.
In not too dissimilar circumstances as the present one, Nwodo JCA held in the election case of Goyol vs. I.N.E.C (No. 2) (2012) 11 NWLR (Pt.1311) 218 at 233 that:
“It is the documentary evidence that shall be used to evaluate the oral testimony. The Appellants tendered Exhibit A to A 376 to establish his case. The exhibits must be linked to the areas of pleadings or particulars it is meant to establish. This is because they are documentary evidence and there must be a connection between the exhibits and the facts in support of the petition. The obligation on the tribunal is to consider whether the documentary evidence tendered in support of a specific fact deposed to by a witness supports same or is at variance. Therefore the tribunal rightly found that the petitions did not link any of the documents to specific areas of their pleadings. Parties must confine their evidence to issues raised in their petition.”
Also, in case of George Abi vs. Central Bank of Nigeria & 2 Ors. (2012) 3 NWLR (Pt. 1286) 1 at 28 – 29, the same Nwodo JCA relying on the case of Alao vs. Akano (2005) 11 NWLR (Pt. 935) 160 SC reasoned that documents are not objects that can be subjected to cross examination when tendered and admitted in evidence. The usefulness would not be of much assistance to the trial court in the absence of admissible oral evidence by a person who can explain their purport.
And, that though document speaks for itself, the object for which the document was tendered must be linked to the point made in oral evidence in support of the case. The settled law that evidence unchallenged and uncontradicted is deemed admitted and ought to be accepted by the court is not without exception. The unchallenged evidence cannot be conclusive proof of a plaintiff’s case when the realm of law involved specifically sets out conditions to be met before the court can hold the plaintiff’s case succeeds.
Finally, in relation to Appellant’s Issues Nos. 1 and 3, the attempt by the learned trial Judge in the court below and before us in this court the learned counsel for the 1st Respondent to capitalize on the contradictions inconsistencies, perhaps lies by the Appellant and also on the evidence of DW2 that a person is buried where he has an inheritance (not pleaded by either of the parties) are all to my mind species of weaknesses in the defendant’s case which do not arise for consideration unless and until the plaintiff establishes a prima facie case on the assertions in his pleadings.
It is settled law that a plaintiff must succeed on the strength of his own case and not on the weaknesses of the defendant’s case. The onus of proof does not shift to a defendant until it has been satisfied by a plaintiff with credible and reliable evidence.
See, Kaiyaoja vs. Egunla (1974) 12 SC 55, Ibori vs. Agbi (2004) All FWLR (Pt. 202) 1799 (2004) 6 NWLR (Pt. 868) 78, Adeniran vs. Alao (2002) FWLR (Pt. 90) 1285, (2001) 18 NWLR (Pt. 745) 361 Josephat Onvia vs. Amobi Onyia (2012) 3 NWLR (Pt. 1286) 182 at 1999.

In other words, it is a settled principle of law that he who asserts must prove. In civil cases, the onus of proof is generally on the party who asserts and he has to prove his case by credible evidence. Where as in the instant case, the plaintiff failed to discharge the burden, defendant would not be called upon for his defence, and the plaintiff would nevertheless not be entitled to the judgment of the court.
See, Enolor vs. Osayande (1992) 6 NWLR (Pt. 249) 524, Progress Bank of (Nig.) Ltd vs. Ugonna (Nig.) Ltd. (1996) 3 NWLR (Pt.435) 202, Umeania vs. Emodi (1996) 2 NWLR (Pt. 430) 348, Obiasikwor vs. Obiasikwor (2008) 8 NWLR (Pt. 1090) 551 at 569.
Issues Nos. 1 and 3 are resolved in favour of the Appellant.
Appellant’s Issue No. 2 related to ground 5 of the appeal. On this issue, learned counsel for the Appellant contends that the WILL of late Dr. Sebastine Ekwebelam was not properly resealed at the High Court of Imo State, in that the purported resealing of the WILL, did not conform with the provision of Order 50 Rule 55(2) of the Imo State High Court (Civil Procedure) Rules, 1988. That, although the Probate Registrar, High Court, Owerri Imo State, was joined in the proceedings as 2nd defendant, the said 2nd defendant did not testify but abandoned the proceedings mid way.
Counsel submitted that the Defendant/Appellant at page 126 line 31 and page 127 lines 1- 19 of the record specifically challenged the 1st Respondent claim that the WILL of Dr. Sebastian Ekwebelan (deceased) was resealed as required by law. That, at page 127, lines 14 – 15 of the record of appeal, Appellant’s counsel specifically put the question to the 1st Respondent;
“I put it to you that it was your duty as an executrix to make it known to all other beneficiaries and executors that the WILL was being resealed in Owerri.”
That, the 1st Respondent’s response at page 127 line 17 was “That was not my duty.”
Counsel submitted that the Plaintiff/Respondent expressly stated that it was not her duty to comply or ensure compliance with the provision of Order 50 Rule 55(2) of the Imo State High Court (Civil Procedure) Rules, 1988. And, that the 2nd defendant, the Probate Registrar, whose duty, the 1st Respondent alleged it was, did not testify, neither did he call evidence. Also, that the 1st Respondent, on her part, failed to call the 2nd Respondent to testify on the issue.
He submitted that from the foregoing, the matter of resealing of the WLL of late Dr. Sebastian Ekwebelam, cannot be said to be substantially regular, the Appellant having shown that the provisions of Order 50 Rule 55(2) of the Imo State High Court (Civil Procedure) Rules, 1988 were not complied with.
Counsel submitted further that the trial court failed to consider the case of the appellant on the matter of the resealing of the WILL aforesaid, before reaching the decision that the appellant failed to rebut the presumption of regularity stipulated in Section 150(1) of the Evidence Act.
Counsel submitted that failure by the 1st Respondent to comply with the provision of Order 50 Rule 55(2) of the Imo State High Court (Civil Procedure) Rules, 1988, denied the Appellant the opportunity to know of, and challenge the purported WILL of late Dr. Sebastine Ekwebelam. And, that the finding by the trial court, that the provisions of Order 50 Rule 55(2) of the Imo State High Court (Civil Procedure) Rules, 1988, were substantially complied with by the 1st Respondent, without considering the case put forward by the Appellant, occasioned a miscarriage of justice.
Learned counsel for the 1st Respondent furnished a reply to Appellant’s Issue No. 4 in the treatment of his Issue No. 1.
He started by saying on this issue that the question is whether on the pleadings any issue has been made out on the re-sealing of the WILL to warrant the complaint being made by the Appellant. He said, the only paragraph of the appellant’s pleading that has bearing on the WILL of late Sebastian Ekwebelam is paragraph 13 of the Amended Statement of Defence, where it was averred that:
‘With regard to paragraph 11 of the Statement of Claim, the defendant has not seen or read the purported WILL of the plaintiffs husband, and is not in a position to aver as to its contents. He is emphatic however, that No. 9 Okigwe Road, Owerri was never shared between him and the plaintiff’s husband. He shall contend at the hearing that plaintiffs husband did not make a WILL and shall, on the contrary, put the plaintiff to the strictest proof thereof’
Counsel submitted that from the above quoted averment, no issue has been made out of resealing of the WILL. That, however, in the course of cross-examination of the plaintiff, defendant’s counsel introduced the issue of re-sealing and to his various questions, plaintiff relied that the WILL was re-sealed.
Learned counsel to the 1st Respondent submitted that fact elicited under cross-examination, which is not supported by the pleadings goes to no issue.
On this, counsel referred to the cases of Ezewusim vs. Okoro (1993) 5 NWLR (Pt. 294) 478 at 493 – 494 and Salaudeen vs. Mamman (2000) 14 NWLR (Pt. 686) 77.
Counsel argued, that given the above exposition of the law, the contention as to the re-sealing of “WILL” is of no consequence, as it is not an issue which arose from the pleadings.
At any rate, said Respondent’s counsel, it is settled law, that the onus of establishing a fact lies on a party who asserts that fact.
Counsel submitted that the Defendant/Appellant did not lead any evidence to substantiate his contention that the WILL was not re-sealed. He urged us to hold that the Appellant has not proved that the WILL was not re-sealed.
Learned counsel for the 2nd Respondent supported the position of the 1st Respondent on this score. It was further submitted on behalf of the 2nd Respondent that it was the evidence of the Plaintiff/1st Respondent at page 77 of the record in line with her averment in paragraph 10 of her Statement of Claim as can be found at page 9 of the record that:
“Before my husband died he left a WILL, after his death, the WILL was proved in Oyo State High Court on 2nd day of April, 1990 and re-sealed in Imo State High Court on 29th May 1990.”
That, under cross-examination, as can be found at page 127 of the record, the Plaintiff/1st Respondent maintained that the WILL, Exhibit ‘H’ was re-sealed at Imo State High Court, Owerri and she took the usual official steps to re-seal the WILL. But, that it is not her duty to personally publish her intention to re-seal the WILL but that of the court which she knew took all the necessary steps in performing its duty the way it should be done.
Learned counsel for the 2nd Respondent submitted that the WILL, Exhibit ‘H’ which includes the re-sealing bears the necessary official endorsement as shown at page 256 of the record. However, that the appellant neither by his pleadings nor by evidence showed steps required to be taken to re-seal the WILL at the Imo State High Court which was not complied with by the relevant persons or authorities.
Counsel submitted that a party who asserts must prove and that the 1st Respondent having made out a prima -facie case, the onus of proof shifted to the Appellant. On this, counsel referred to the provision of Section 150 (1) of the Evidence Act Cap. 112 LFN 1990, Sections 137(1) and 139 of cap 112 (now Sections 136(1) and 138 of the Evidence Act 2011) as well as the cases of Ike vs. Ugboaja (1993) 6 NWLR (Pt. 301) 539 at 543 and Uzokwe vs. Daizy Industries Nig. Ltd. (2002) F.W.L.R (Pt.90) 1322 at page 1333.
Finally, learned counsel for the 2nd Respondent referred to the cases of Awosile ,vs. ,Sotunbo (1986) 3 NWLR (Pt. 29) 471 at 485 and Elema vs. Akenzua (2000) 6 S.C.N.J 226 at 238 and submitted that the acts of admitting the WILL to probate and re-sealing same being acts in pursuance of official duty and have been shown to have been done in a manner substantially regular, the court will presume that the necessary steps required to make them valid have been complied with.
First, I do agree with the learned counsel for the Respondents that the parties to this Suit in the court below did not join any issues on the resealing of the WILL of the late husband of the 1st Respondent, Dr.
Sebastian Ekwebelam. The issue of re-sealing of the WILL of the late husband of the 1st Respondent was not raised in the pleadings of either of the parties
The joinder of issue is (1) the submission of an issue jointly for decision (2) the acceptance or adoption of a disputed point as the basis of argument in a controversy (3) the taking up of the opposite side of a case, or of the contrary view on a question.”
See, Black’s Law Dictionary 8tn Edition, page 854.
Secondly, and in-spite of lack of joinder of issues by the parties in their pleadings on the re-sealing of the WILL of Dr. Sebastian Ekwebelam, the positive answer elicited by the Appellant in the course of cross-examination of the 1st Respondent that the WILL was re-sealed in the Imo State High Court which was consistent with the evidence in chief of the 1st Respondent does not in any way contradict the 1st Respondent’s case, neither does it in any way support the case of the appellant.
In any event, judging from the totality of the evidence of the 1st Respondent both in Examination in Chief and at Cross-Examination, having reasonably satisfied the court that the WILL of Dr. Sebastian Ekwebelam was indeed re-sealed at the Imo State High Court, the burden of proof shifts from the 1st Respondent to the Appellant to show by evidence that the WILL was not re-sealed. This, the appellant failed to show. It was the duty of the Appellant to prove in terms of the provision of Order 50 Rule 55(2) of the Imo State, High Court (Civil Procedure) Rules, 1988 that (a) an inland Revenue affidavit was not lodged as if the application were one for a grant in the state and (b) that the application was not advertised in such manner as the Registrar may direct ….. ….,……..,…………”,
That, apart, the Appellant also carried the burden of rebutting the presumption of regularity of official acts and deeds, the WILL Exhibit ‘H’ having on its face shown substantial regularity of official acts as stipulated under Section 150(1) of the Evidence Act cap. 112 LFN 1990.
Thus, in the case of Chief Rasaki vs. Kolawole Sodipo and 2 Olhers vs. Mr. Ayinla Shadeko Ogidan and 3 Others (2008) 4 NWLR (Pt. 1077) 342 at 346, the Court of Appeal (Lagos Division) on the interpretation of the then Section 150(1) of the Evidence Act LFN 1990 held inter .alia that by virtue of Section 150(1) of the Evidence Act, when an official act is shown to have been done in a manner which is substantially regular, it is presumed that the formal pre-requisites for the validity of the said act were duly complied with.
In the instant case, the learned trial Judge was right in invoking the presumption of regularity of official acts in favour of the 1st Respondent for the validity and re-sealing of Exhibit ‘H’ the WILL of the late Dr. Sebastian Ekwebelam and to hold that the Appellant failed to rebut the presumption under Section 150(1) of the Evidence Act Cap 112 LFN 1990.
The learned trial Judge would still have been right on that score even today, by virtue of Section 159 of the Evidence Act 2011 which declares that “when any document purporting to be, and stamped as, a deed, appears or is proved to be or to have been signed and duty attested, it is presumed to have been sealed and delivered although no impression of a seal appears on it.”
I do not need to add that a presumption of law as in the case of Section 150(1) of the Evidence Act cap. 112 LFN 1990 as to regularity of official acts or Section 159 of the Evidence Act 2011 as to sealing and delivery of documents is an invocation of a rule of law compelling a fact-finder or the judex to reach a particular conclusion in the absence of evidence to the contrary. Presumption of law is in fact a preliminary rule of law which may disappear in the face of rebuttal evidence. However, as in the instant case, in the absence of evidence to the contrary, or rebuttal evidence, the presumption stands. The maxim is omnia praesumuntur rite esse acta. See, Albion Construction Ltd. Vs. Rao Investments & Pro. Ltd & Anor. (1992) 1 NWLR (Pt. 219) 583 at 595, Ojiako vs. Ogueze (1962) 1 SCNLR 112, R.V. Magnugson vs. K. Koiki & 2 Ors. (1991) 4 NWLR (Pt. 183) 119 at 129.
Issue No. 2 is resolved against the Appellant.
In this appeal, Issues Nos. 4, 5 and 2 have been resolved against the Appellant.
Issues Nos. l and 3 have been resolved in favour of the Appellant. Consequently, this appeal is allowed in part. The further consequence of resolving Issues Nos. 1 and 3 in favour of the appellant is that any or all of the portions of the judgment of the court below which vests any portion of the ownership of the property in dispute that is No. 9 Okigwe Road Owerri in the late husband of the 1st Respondent inclusive of such vesting in Exhibit ‘H’ that is the WILL of the said Dr. Sebastian Ekwebelam as co-owner with the appellant, is hereby set aside. This, for the reason that the Plaintiff/1Wt Respondent did not prove the entitlement of her late husband to any portion of the property at No. 9 Okigwe Road, Owerri.
In particular and for the avoidance of doubt the following orders of M.O. Maranzu J. as contained on pages 229 – 230 of the record in the judgment delivered on 21 – 8 – 97 as arising from the statement of claim of the plaintiff (now 1st Respondent) are accordingly set aside.
“1. That two main rooms, one store in the main building and one room at the out building of the property known as No. 9 Okigwe Road, Owerri is part of the estate of late Sebastian A. Ekwebelam and is now vested in the plaintiff by virtue of the WILL of the said late Dr. S.A. Ekwebelam.
2. The first defendant as already stated is hereby ordered to render Full, Total and Complete accounts of all monies collected by him from tenants and or all persons in respect of the afore-stated rooms and store from August 1991 up to and including the end of August, 1997.
3. The plaintiff or her attorney shall as from the beginning of September 1997 collect rents from tenants in the aforementioned rooms and store.
5. The first defendant is hereby perpetually restrained either by himself, his servants and or agents and or assignees from dealing with the afore-mentioned rooms and store in No. 9 Okigwe Road belonging to late Dr. S.A. Ekwebelam now vested in the plaintiff in any manner detrimental to or inconsistent with the rights of the plaintiff over same or from putting tenants, collecting rents, managing running or interfering with the said room and store in any manner whatsoever.”
There shall be no orders as to costs. That shall be the judgment of the Court.

UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, M. A. Owoade, JCA just delivered.
My learned brother has painstakingly and exhaustively considered and resolved all the issues raised in the appeal. I entirely agree with his reasoning and the conclusion reached therein that the appeal succeeds in part. My learned brother captured every point raised with precision and professionalism to the extent that I have nothing useful to add but to adopt same as mine. The appeal has merit to the extent of issues No. 1 and 3 and it is hereby allowed. Consequently, the judgment of the Lower Court delivered on the 21st’ day of August, 1997 as contained in orders 1, 2, 3, and 5 are hereby set aside. I also do not make order as to costs.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment just delivered by my learned brother, M. A. Owoade; JCA.
My learned brother admirably waded through the intricate facts of this case and the legal issues arising therefrom. I therefore agree with his reasoning and conclusion that the appeal has merit having resolved issues 1 and 3 in favour of the Appellant. I also allow the appeal and adopt all the consequential orders made therein, as mine.
I abide by the order on cost.

Appearances

N. Epelle, Esq; with A. Emeharole, Esq.For Appellant

AND

H.O. Afolabi, Esq.
S. A. Njoku, A.G. Imo with M.C. Uwasomba, DCL and C. J. Iroh(Miss) SC,For Respondent