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MR. DAVID CHIDULUO & ORS v. MRS. MARY ATTANSEY & ANOR (2019)

MR. DAVID CHIDULUO & ORS v. MRS. MARY ATTANSEY & ANOR

(2019)LCN/13591(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of June, 2019

CA/K/29/2016

JUSTICES:

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

1. MR. DAVID CHIDULUO
2. MR. INNOCENT NNAMDI ATTANSEY
3. MRS. CECILIA ATTANSEY – Appellant(s)

AND

1. MRS. MARY ATTANSEY
2. MR. INNOCENT ATTANSEY – Respondent(s)

RATIO

WHETHER OR NOT THE IGBO NATIVE LAW AND CUSTOM WHICH DISENTITLES A FEMALE FROM INHERITING HER FATHER’S ESTATE IS IN CONFLICT WITH THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999

It is now settled law that the Igbo native law and custom which disentitles a female from which inheriting her late father’s estate is in conflict with Section 42(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See Okafor v. Isitorh & Anor (2015) lpelr-25892 (CA). In the case of Onyibor Anekwe & Anor v. Mrs. Maria Nweke (2014) LPELR-22697 (SC), the Supreme Court described such a practice as not only barbaric but height of insensitivity, shameful, unacceptable and a custom that only belonged to the Stone Age. PER ABUNDAGA, J.C.A.

THE IMPORTANCE OF DOCUMENTARY EVIDENCE

It is important to state that it is settled law that the importance of documentary evidence is that it could be used to resolve an issue or conflicting evidence. It could be used as a hanger from which to test the veracity of the oral testimonies. See Bunge v. Gov. Rivers State & Ors. (2006) LPELR-816 (SC). In the case of Inter drill (Nig.) Ltd & Anor v. UBA Plc (2017) LPELR-41907 (SC), it was held:
Once documentary evidence supports oral evidence, oral evidence becomes more credible as documentary evidence always serves as a hanger from which to assess oral testimony. See Kimdey & Ors. v. M. G. of Gongola State (1988) 2 NWLR (Pt. 77) P. 473, Omoregbe v. Lawani (1980) 3-4 SSC P. 17. Per Rhodes-Vivour JSC (P. 26, Paras E-F). PER ABUNDAGA, J.C.A.

WHETHER OR NOT DOCUMENTARY EVIDENCE NEEDS TO BE SPECIFICALLY PLEADED

The law is firmly established that documentary evidence need not be specifically pleaded, provided facts by which a document is connected are expressly pleaded. I place reliance onANPP v. Usman (2009) FWLR (Pt. 463) 1292 @ 1360, Paras A-B. In addition to the Respondents specifically pleading the said documents by virtue of pleading facts by which they are connected, the appellants in their amended statement of defence put the paternity of the 2nd Respondent in issue when they described him as an impostor. I refer to page 307 of the record of appeal. The law is that a party will be entitled to lead evidence on a point raised in the other party’s pleading. See Bamgboye v. Olarenwaju (1991) 4 NWLR (Pt. 184) 132 @ 155 Paras D-F.PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): At the High Court of Kano State, the plaintiffs/respondents caused a writ of summons to be issued against the defendants/appellants upon the claims endorsed on the said writ. The writ was issued on 14th January, 2008. Against the claims endorsed on the writ the 2nd and 3rd defendants/appellants filed a joint statement of defence and counter-claim. This was filed on 24th May, 2010. The plaintiffs/respondents subsequently sought and amended their statement of claims by which they claimed as follows:
1ST PLAINTIFF:
(a) A declaration that by virtue of the letters of administration granted to the plaintiffs on the 14th March, 2007 by the probative Registrar of this Court the plaintiffs are solely and exclusively entitled to administer and manage the property situated at No. 13 Ibadan Road, Sabon Gari Kano as well as collecting rents from the tenants occupying the property.
(b) An order of perpetual injunction restraining the 1st defendant, his officers, servants, agents privies or otherwise, from trespassing on, interfering or intermeddling with the plaintiffs management and

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administration of the property situated at No. 3 Ibadan road, Sabon Gari, Kano.
(c) An order compelling the 1st Defendant to file a comprehensive account of his stewardship of No. 13 Ibadan road, Kano property from 2005 to the date of judgment.
(d) An order directing the 1st defendant to pay to the 1st plaintiff, 50% of all rents collected within the period.
(e) Cost of this action.

THE SECOND PLAINTIFF CLAIMS AS FOLLOWS:
(a) A declaration that by virtue of the letters of administration granted the plaintiffs on the 14th March, 2007 by the Probate Registrar of this Court, the plaintiffs are solely and exclusively entitled to administer and manage the property situated at No. 13 Ibadan road, Sabon Gari Kano as well as collecting rents from the tenants occupying the property.
(b) An order or perpetual injunction restraining the 1st defendant, his officers, servants, agents privies or otherwise, from trespassing on, interfering or intermeddling with the plaintiff’s management and administration of the property situated at No. 13 Ibadan Road, Sabon Gari, Kano.
(c) An order compelling the 1st defendant to file a

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comprehensive account of his stewardship of No. 13 Ibadan Road, Kano property from 2005-2007.
(d) An order directing the 1st, 2nd, and 3rd defendants jointly and severally to pay to the 2nd plaintiff 25% of all rents collected from the property from 2005 to the date of judgment.
(e) Cost of this action.

The 2nd and 3rd defendants/appellants also sought and obtained leave of the Court to amend their joint statement of defence and counter claim. Whereof they counter claimed as follows:
(1) A declaration that the purported letters of Administration, affidavit of loss of document, police extract, newspaper publication and certificate of occupancy in the joint names of Mary Attansey and Innocent Attansey are all premised on acts of criminality of conspiracy, forgery, fraud, and impersonation, as such cannot confer legal rights and interests on both plaintiffs.
(2) An order setting aside the purported Letters of Administration of 14th March, 2007 granted by the probate Registry of this Honourable Court, affidavit of loss of document, police extract, newspaper publication and certificate of occupancy in the joint names of Mary Attansey

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and Innocent Attansey based on the fraudulent acts of both plaintiffs.
(3) An order of perpetual injunction restraining both plaintiffs by themselves, their agents, representatives, privies, etc from trespassing on the premises situate at No. 13, Ibadan Road, Sabon Gari, Kano or disturbing or interfering with the management of the said premises.

The plaintiffs filed a reply to the 2nd and 3rd defendants statement of defence and counter-claim in which they denied the claims of the 2nd and 3rd defendants as contained in their counter claim.

With pleadings fully exchanged, the matter proceeded to trial at the end of which the trial Court presided over by Hon. Justice A. R. D. delivered its judgment on 8th May, 2015, partly in favour of the plaintiffs, and partly in favour of the defendants/counter claimants, as follows:
(1) The letters of administration dated 14th March, 2007 is hereby set aside having been obtained by fraud.
(2) The new letters of administration shall be issued to the 2nd plaintiff and the 2nd defendant in their names by the probate registry of Kano State High Court to jointly administer No. 13 Ibadan Road,

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Sabon Gari, Kano.
(3) The 1st plaintiff shall be entitled to 50% of No. 13 Ibadan Road by virtue of her inheritance of her mother’s share Christiana Attansey in Exhibit A renew (sic) in Exhibit J2.
(4) The 2nd plaintiff shall share the remaining 50% of No. 13 Ibadan Road with the 2nd defendant and his siblings as part of the 50% of Godwin Attansey.
(5) The 1st defendant shall share the proceeds of rents collected by him according to No. 4 above.

The 2nd and 3rd defendants are not satisfied with this judgment and decided to appeal against it vide a notice of appeal which they filed on 31st July, 2015, containing 9 grounds of appeal with all their particulars. The grounds of appeal without their particulars are as hereunder stated:
GROUND 1
The learned trial judge erred in law when having set aside the letters of administration i.e. Exhibit B because it was fraudulently obtained by both plaintiffs/respondents in their names, went ahead to enter judgment in their favour.
GROUND 2
The learned trial judge erred in law when having adjudged the respondents to have lied on oath, yet went ahead to believe other pieces of

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their evidence/testimonies on oath.
GROUND 3
The learned trial judge erred in law when he wrongly admitted in evidence and relied on documents which are by their nature inadmissible in law thereby resulted to miscarriage of justice.
GROUND 4
The learned trial judge erred in law by failing to scrutinize and evaluate evidence before ascribing probative value to it.
GROUND 5
The learned trial judge erred in law by misinterpreting, misconstruing and misapplying the provisions of Birth and Death (compulsory Registration) Act, Cap. 36, Laws of the Federation, 1990.
GROUND 6
The trial Court misdirected itself when it made a finding that one Florence Aharia is the wife of late Godwin Attansey and the mother of PW2 (Innocent Attansey).
GROUND 7
The trial Court erred in law when it failed to discharge the judicial duty of considering and pronouncing on all salient and live issues raised by parties during trial, thereby occasioning miscarriage of justice.
GROUND 8
The trial Court misdirected itself when it failed to properly and correctly evaluate the evidence before it on the true identity of the 2nd

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respondent (2nd plaintiff) which evidence clearly shows him to be an imposter.
GROUND 9
The trial Court misdirected itself when it failed to judiciously, judicially and discretely evaluate the evidence of PW2 (1st plaintiff/respondent) which was replete and punctuated with falsehood and material contradictions which have occasioned miscarriage of justice.

The Appellants seek the Five (5) Reliefs as contained in paragraph 5 of the Notice of appeal, located at pages 673-674 of the record of appeal.

The plaintiffs are also not satisfied with a portion of the judgment. They accordingly sought and obtained leave of the Court to file a notice of cross appeal. The notice of cross appeal was filed on 25th February, 2017.

The record of appeal was compiled and transmitted on 19th January, 2001, and deemed properly transmitted on 6th December, 2017. The appellants’ brief of argument settled by M. I Ikpe, Esq was filed on 18th January, 2018. In the Appellants’ brief of argument three issues were distilled for determination, and argued. The said three issues are:
(1) Whether part of the judgment of the learned trial judge in

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favour of the respondents is not perverse having found and adjudged the respondents to have committed the heinous crime of fraud, went ahead to grant all their reliefs (Distilled from Grounds 1 and 2).
(2) Whether the learned trial judge received credible, reliable, factual and legal evidence in proof of the marriage between PW1 and late Godwin Attansey; and the paternity of the 2nd respondent as a son of Late Godwin Attansey before granting him reliefs (Distilled from Grounds 3, 4, 5, 6, and 8).
(3) Whether from the strong material contradictions in the evidence adduced by the respondents witnesses on record, it was in the judicial and judicious discretion of the Learned trial judge to hand pick evidence to believe on one hand, and those to disbelieve on the other hand, which he did, and has consequently resulted to a perverse judgment (Distilled from Ground 9).???

The Respondents filed their brief of argument, settled by Okitikpi Toritseju, Esq, on 19th February, 2018. The Respondents subsequently sought and obtained leave of Court to amend their brief of argument. The said Respondents’ amended brief of argument, settled by

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Okitikpi Toritseju, Esq, was filed on 25th February, 2019.

In the said Respondents’ amended brief of argument, the Respondents adopted the Appellants three issues for determination of the appeal but arguments diametrical to the Appellants’ arguments were canvassed. In reaction to the Amended Respondents’ brief of argument, the Appellants filed a reply brief of argument in response to issues newly raised in the Amended Respondents’ brief of argument.

The issues formulated by the Appellants and adopted by the Respondents are in my view appropriate for the determination of this appeal. I hereby adopt them for determination of the appeal. However, in my view they dovetail or are interwoven and will therefore he considered together.

OVERVIEW OF ARGUMENTS OF COUNSEL ON THE ISSUES.
ISSUE ONE

Whether part of the judgment of the learned trial judge in favour of the respondents is not perverse having found and adjudged the respondents to have committed the heinous crime of fraud, went ahead to grant all their reliefs.

It is the contention of the Appellants that it is an act of absurdity and travesty of justice that the learned trial judge,

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having found and adjudged both respondents to have committed crimes, proceeded in the end to award them their claims. It was submitted that the entire claim of the Respondents at the trial Court was founded on Criminality of fraud, Conspiracy, deceit, perjury and ultimate illegality. Counsel therefore submitted inter alia that a party who has committed an illegality cannot be allowed to benefit from same. Reliance is placed on Alh. B. Saleh v. Alh. Shetimah Monguno & Ors (2006) 7 SCNJ 236. Counsel contended that a cause of action, cannot arise from an act of illegality, and cited further, UBN Plc. v. Ayodare & Sons (Nig.) Ltd (2007) ALL FWLR 1.

The appellants’ counsel submitted that the judgment of the Court was influenced by emotions and sentiments, an action that has been deprecated by our superior Courts. Reliance is placed on the case of Adekeye v. Adesina (2010) 18 NWLR (Pt. 1225) 449 and Atagbor v. Okpo (2013) ALL FWLR (Pt. 680) 1362 @ 1381. It is contended by the Appellants that by virtue of the findings and pronouncement which declared the respondents to have committed fraud and consequently liable to prosecution, they no longer have

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credible and reliable evidence standing before the Court in their favour. That all the evidence adduced by them, both oral and documentary is bound to fail. It is therefore the appellants’ further contention that where, as in this appeal, a trial Court made credible and unimpeachable findings but reached a wrong conclusion, such a conclusion is obviously perverse and a wrong exercise of judicial discretion liable to be set aside on appeal. Counsel therefore urged us to resolve this issue in favour of the Appellants.

Arguing issue one, it was submitted for the Respondents that legally the children and lineal descendants of a deceased person are entitled to administer the property/estate of the deceased person. For the definition of lineal descendants, the respondents referred to the Black’s Law Dictionary, 6th Edition at page 929. It is their contention that it is not in dispute by parties that the 1st respondent is a grand-child and a lineal descendant of both Chinwuba and Esther Attansey, and that the only grouse of the appellants is that she was a female child who by Ibo custom and tradition is not entitled to share in the estate of their grandparents.

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Further submission for the Respondents is that since the evidence before the Court shows that the respondents are lineal descendants of both Chinwuba and Esther Attansey, it necessarily follows that they are legally entitled to apply for letters of administration relating to the property at No. 13 Ibadan Rod, Sabon Gari, Kano. Reliance is placed on Kekerogun v. Alimi Oshode (1971) ALL NLR P. 97 @ 101. They described as faultless the trial judge’s order setting aside Exhibit B and issuance of a new one to the 1st appellant as well as the two respondents. It was also contended that the 2nd and 3rd reliefs sought on the Appellants’ counterclaim puts the issue of who was entitled to inherit and administer the property in issue, and that the trial Court rightly found based on Exhibit C that the 2nd Respondent is the son of Godwin Attansey and a grandson of late Chinwuba and Esther Attansey.

ISSUE TWO
Whether the learned trial judge received credible, reliable, factual and legal evidence in proof of the marriage between PW1 and late Godwin Attansey; and the paternity of the 2nd respondent as a son of Late Godwin Attansey before granting him reliefs.

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The appellants’ submission on issue two is that the trial Court made erroneous findings and conclusions on both the purported marriage of PW1 to Late Godwin Attansey and the paternity of the 2nd respondent, thereby occasioning miscarriage of justice. It was pointed out that the trial Court made the right and correct observation that both PW1 and PW2 who testified on the purported marriage between PW1 and Late Godwin Attansey, materially contradicted themselves, and failed to put in independent witness to prove same. That doubt was therefore created on this vital issue. It was also submitted that doubt was therefore created about the purported marriage. That instead of stopping at that the trial judge embarked on a voyage of fact finding instead of evaluation. He therefore faulted the Court on going into correspondence in the Land file kept at Kano Municipal Council (Exhibit 1). We were referred to pages 498-581 of the record of appeal. Counsel submitted that Courts are not allowed to embark upon examination of documents tendered as exhibits when such examination will amount to a fact finding investigation that leads to discovery of fats which could be

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proved by evidence. Counsel relied on the case of West Africa Breweries Ltd v. Savannah Ventures Ltd (2002) FWLR (Pt. 112) 53 @ 72 Per Ayoola, JSC. Counsel further submitted that while marriage was pleaded the Court went into investigation to make findings about co-habitation, and which in counsel’s submission amounted to making issue for the Respondents, much against the principle laid down by law. Again reliance is placed on West African Breweries Ltd v. Savannah Ventures Ltd (supra).

It was further contended that Exhibits C, D, & E even though tendered and admitted in evidence without objection are inadmissible, and in law the Court can expunge them, and indeed urged us to expunge them from the record. Reliance is placed on Nwaogu v. Atuma (2013) ALL FWLR (Pt. 693) 1893 @ 1908 Per Fabiyu, JSC. For counsel’s submission that Exhibit C has no probative value to prove paternity, we were referred to the Birth and Deaths (Compulsory Registration Act, Cap. 36 LFN, 1990, Sections 1, 2 and 11 thereof; and the cases of Ukeje v. Ukeje (2014) ALL FWLR (Pt. 730) 1323, and Olaiya v. Olaiya (2002) FWLR (Pt. 109) 1588 @ 1602.

Counsel urged us on the above

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submission to disturb the lower Court’s finding on the marriage of PW1 to Late Godwin Attansey and Paternity of the 2nd Respondent. We are further urged to resolve issue two in favour of the Appellants.

Respondents’ submission on this issue is that the 2nd Respondent successfully proved his paternity through Exhibits C, D and E. It was submitted for the Respondents that a birth certificate is conclusive proof of a person’s parentage. Reliance is placed on Ukeje v. Ukeje (supra) and Olaiya v. Olaiya (supra). Counsel submitted that the fact that Exhibit C was not registered in the compulsory Births and Deaths registry in accordance with Birth and Deaths (Compulsory Registration) Act, Cap. 36, 1990 does not invalidate it, and in effect the paternity of the 2nd Respondent.

Counsel also relied on the case of Motoh v. Motoh (2011) FWLR (Pt. 584) 73 @ 120, and S. 42(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It was further submitted that the appellants neither challenged nor objected to the admissibility of Exhibits C, D and E, and that the lower Court was entitled to accept them and rely on them. Counsel relied on

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Ebienwe v. State (2011) FWLR (Pt. 566) 413 @ 424 Para D. Further submission by counsel on Exhibit C is that it was pleaded in paragraph 2 of the Amended Statement of claim on this, counsel relied on ANPP v. Usman (2009) FWLR (Pt. 463) 1292 @ 1360 Paras A-B.

It was further contended that the appellants put the existence of the 2nd respondent in issue in paragraph 9c and (d) of the joint statement of defence, and referred to page 307 of the record of appeal. Reliance on this was placed on Bamgboye v. Olarenwaju (1991) 4 NWLR (Pt. 184) 132 @ 155 Paras D-F. Counsel urged us to hold that Exhibit C conclusively proved that the 2nd Respondent is a son and heir to late Godwin Attansey.

ISSUE THREE
Whether from the strong material contradictions in the evidence adduced by the respondents’ witnesses on record, it was in the judicial and judicious discretion of the Learned trial judge to hand pick evidence to believe on one hand, and those to disbelieve on the other hand, which he did, and has consequently resulted to a perverse judgment.

Under issue three, it was contended for the appellants that from the material contradictions which touch on

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salient and live issues in the respondents’ witnesses testimonies on oath they cannot be said to be credible and reliable worth believing on either the balance of probabilities or preponderances of evidence. Counsel went on to highlight what he believed are the material contradictions and conflicting evidence of the respondents and their witness, PW1 (the mother of the 2nd respondent).

Counsel therefore submitted that when the evidence of the respondents is juxtaposed with that of the appellants, the inevitable and inescapable conclusion to be drawn, contrary to the conclusion reached by the learned trial judge is that the appellants’ evidence is more reliable, truthful, unimpeachable and impeccable than the respondents. That a witness is not permitted to approbate and reprobate at the same time, citing in support the case of Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410 @ 514 Per Eko, JSC.

It is therefore counsel’s submission that the judgment of the trial Court is most perverse. Counsel therefore urged as to resolve issue three in favour of the appellants and against the respondents.

The Respondents’ answer on issue three is that, even

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if it is conceded by the Respondents that there are contradictions in the case of the Respondents the contradiction are not material to the determination of the live issue before the Court. Counsel relied on the case of Lawson v. Afani Continental co. (Nig.) Ltd (2002) FWLR (Pt. 109) 1736 @1768 Paras F-H.

Counsel went further to submit that a trial judge is empowered to accept part of the testimony of a witness and reject other part, and relied for this submission on the case of Okputu Obiode v. State (1970) ANLR 36, and the case of Yau v. State (2004) FWLR (Pt. 231 1310 @ 1332, Paras B-C. We were urged to resolve this issue in favour of the Respondents.

To really reach a fair and just resolution of the issues canvassed in this appeal it is most vital to identify the live issues with profound objectivity. To my mind and I hold this view very firmly, the live issue is, whether the judgment of the lower Court entitling the 1st and 2nd respondents to a share of the subject property is sustainable in view of the oral and documentary evidence before the Court.

The basis upon which the lower Court found for the two Respondents is different. This

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therefore calls for a separate treatment of the issues canvassed in relation to them.

I will start with the 1st Respondent, that is, Mrs Mary Attansey. It is not in dispute by the parties that the 1st Respondent is a grandchild and a lineal descendant of both Late Chinwuba and Esther Attansey parents of Late Godwin Attansey and Christiana Attansey and on whom the subject property devolved. It is admitted in the appellants’ pleading that Christiana Attansey, Late Godwin Attansey’s sibling is the mother of the 1st Respondent. I refer on this, to paragraphs 5 and 6 of the Appellants’ amended statement of defence. My clear understanding of paragraphs 10, 11 and 12 of the Appellants amended statement of defence is that the 1st Respondent is not entitled to a share in her grandfather’s property because she is a female, and that her mother was married to Aniagboso’s family. In his submission, learned counsel to the appellants pointed out that the 1st Respondent intentionally deceived and misled the trial Court to believe that she is truly of Attansey’s family by commencing the action in her name asMary Attansey whereas her real and

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factual maiden name and surnames are Nwanko and Aniagboso respectively. Counsel submitted further that her evidence in Court that at the time of her marriage she was told that she was not from Attansey’s family but that her father’s name is Patrick Nwankwo shows that she knew from the time of her marriage that she was not from Attansey’s family, but used the name of Attansey for the sake of this case and her rapacity to get and share in the interest and ownership of the subject property instead of her current surname of Aniagboso as a married woman.

It is now settled law that the Igbo native law and custom which disentitles a female from which inheriting her late father’s estate is in conflict with Section 42(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See Okafor v. Isitorh & Anor (2015) lpelr-25892 (CA). In the case of Onyibor Anekwe & Anor v. Mrs. Maria Nweke (2014) LPELR-22697 (SC), the Supreme Court described such a practice as not only barbaric but height of insensitivity, shameful, unacceptable and a custom that only belonged to the Stone Age. In view of this position of the law, the 1st

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Respondent as a grandchild and a lineal descendant of both late Chinwuba and Esther Attansey from whom the subject property was inherited are ab initio entitled to the share of the inheritance, and therefore, with or without the letters of administration which was her mission and that of the 2nd respondent and PW1 in their acts of fraud, that right cannot be taken away, or she cannot be dis-inherited. Probably, as advocated by the lower Court, she and her cohorts could be made to account for their actions by way of prosecution.

I am therefore on the same page with the Respondents’ counsel’s submission that the contradictions in the Respondents’ case are not material to the question as to those entitled to share in the subject property. It is in law permissive for a trial Court upon due consideration of the totality of evidence adduced by him to accept part of the evidence of a witness and reject the other part depending on the circumstances of the case. I rely on Yau v. State (supra) and Okputu Obiode v. State (supra).

Therefore, the judgment of the lower Court in favour of the 1st respondent is not perverse. I so hold.

I will now consider

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the issues as canvassed in relation to the judgment of the lower Court in favour of the 2nd respondent.

So much premium has been put by the Appellant on the non-proof of the marriage between PW1 and Late Godwin Attansey. This is not the live issue in my view. I say this with all sense of responsibility in view of what the trite position of the law is on children born out of wedlock, as thus stated in the case of Ukeje & Anor v. Ukeje (2014) LPELR-22724 (SC):
The trial Court, I hold did rightly declare as unconstitutional, the law that dis-inherits children from their deceased fathers estate. It follows therefore that the Igbo native law and custom which deprives children born out of wedlock from sharing the benefit of their fathers estate is conflicting with Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The reproduction of the section states thus:
42(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

Per Ogunbiyi, JSC (P3) Paras B-D).

It is my candid view that in view of the

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above position of the law, the attention of counsel and this Court should be more directed to the question whether the 2nd Respondent is the child of Late Godwin Attansey or not Even though proof that there was marriage between PW1 and Late Godwin would have proved that the 2nd Respondent is a product of a lawful wedlock since that issue has been enmeshed in controversy and contradictions the Court shall direct its attention to the evidence adduced to the prove the paternity of the 2nd Respondent, whether or not out of wedlock.

It is important to state that it is settled law that the importance of documentary evidence is that it could be used to resolve an issue or conflicting evidence. It could be used as a hanger from which to test the veracity of the oral testimonies. See Bunge v. Gov. Rivers State & Ors. (2006) LPELR-816 (SC). In the case of Inter drill (Nig.) Ltd & Anor v. UBA Plc (2017) LPELR-41907 (SC), it was held:
Once documentary evidence supports oral evidence, oral evidence becomes more credible as documentary evidence always serves as a hanger from which to assess oral testimony. See Kimdey & Ors. v. M. G. of Gongola State

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(1988) 2 NWLR (Pt. 77) P. 473, Omoregbe v. Lawani (1980) 3-4 SSC P. 17. Per Rhodes-Vivour JSC (P. 26, Paras E-F).

Exhibits C, D and E were tendered to prove the paternity of the 2nd Respondent. They were tendered and admitted in evidence without objection. However, appellants’ counsel has urged us on appeal to hold them to be inadmissible, and to expunge them from the record. Counsel has taken the strongest opposition or objection to Exhibit C, the birth certificate of the 2nd Respondent. Even though I agree with the appellants’ counsel that this Court can in principle expunge these documents, even though admitted without objection if I hold them to be inadmissible, I do not accept his submission that they are inadmissible. As to his submission that they are not pleaded, I hold that the documents, all of them have been pleaded. See paragraph 2 of the Amended statement of claim (P. 316 of the record of appeal). It is therein averred thus:
The 2nd plaintiff is the son of Mr. Godwin Attansey, now deceased.

The law is firmly established that documentary evidence need not be specifically pleaded, provided facts by

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which a document is connected are expressly pleaded. I place reliance on ANPP v. Usman (2009) FWLR (Pt. 463) 1292 @ 1360, Paras A-B. In addition to the Respondents specifically pleading the said documents by virtue of pleading facts by which they are connected, the appellants in their amended statement of defence put the paternity of the 2nd Respondent in issue when they described him as an impostor. I refer to page 307 of the record of appeal. The law is that a party will be entitled to lead evidence on a point raised in the other party’s pleading. See Bamgboye v. Olarenwaju (1991) 4 NWLR (Pt. 184) 132 @ 155 Paras D-F.

Furthermore on the strength of the authority of Ukeje & Anor. V. Ukeje (2014) FWLR (Pt. 730) 1323 @ 1335 paras A-B, and Olaiya v. Olaiya (2002) 5 SCNJ 155 @ 157, I hold that Exhibit C, is admissible. In Ukeje & Anor v. Ukeje (supra) it was held by the Supreme Court:
I must say that a birth certificate is conclusive proof that the person named therein was born on the date stated, and the parents are those spelt out in the document.

I am therefore on solid ground in holding that Exhibit C is

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conclusive. That the 2nd Respondent is the son of Godwin Attansey. Exhibits D and E have given Exhibit C further impetus. These documents more than anything else resolve the conflicts and contradictions which I hold to be minor, on the paternity of the 2nd respondent. Being a son of late Godwin Attansey there can be no doubt that he is entitled to share in the subject property.

The question that necessarily follows is whether being already in his own right entitled to share in his late father’s estate, the 2nd Respondent could now be disinherited on account of the fraud committed by him and his co-conspirators which was aimed at obtaining letters of administration. I think not. Let me draw an analogy this way:- Mr ‘A’ graduates from the University with a pass degree, but in order to brighten his fortunes, he decides to forge a 2nd class upper division degree certificate and is caught in the process. Does this act invalidates his pass degree certificate? Definitely not, though he is liable to be prosecuted for forgery. I think this is the same scenario here. The 2nd Respondent cannot be dis-inherited of his entitlement to share in his late father’s

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estate, even though he and his cohorts can be punished through prosecution for their criminal actions.

I am on the footing of the foregoing unable to see any perversity in the trial Court’s judgment in favour of the 2nd Respondent.

On the whole I find no merit in this appeal. It is hereby dismissed. The judgment of the lower Court is hereby affirmed.

CROSS-APPEAL
By motion on notice dated 6th June, 2018 and filed on 14th June, 2018, the Respondents sought and obtained leave of this Court to file a cross-appeal against part of the judgment of the lower Court. The notice of cross-appeal containing two grounds of appeal was filed on 25th February, 2018.

The grounds of cross-appeal without their particulars (even though supplied) are as follows:
GROUND ONE
The learned trial judge erred when he wrongly admitted and considered Exhibits J1, J2, J3, J4, J5, J6, which were at variance with the pleadings of the cross respondents and thereafter made a finding of fraud against the cross appellants.
GROUND TWO
The learned trial judge erred in law when he held thus by the provision of S. 164(1) & (2) of th Penal Code,

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the act of the plaintiffs falls squarely within the provision of the penal code as such criminally liable to be prosecuted for fraud.

The cross-appellants’ brief of argument settled by Okitikpi Toritseju, Esq, was filed on 25th February, 2019. In reaction to the cross-appeal, and the brief of arguments there on served on the Appellants/cross-respondents, they filed cross-respondents’ brief of argument, settled by M. I. Ikpe, Esq and a notice of Preliminary Objection against the cross-appeal on 15th March, 2019. Arguments canvassed in response to the submissions in the cross-appellants’ brief of argument, and in support of the notice of Preliminary Objection are contained in the cross- Respondents’ brief of argument. On 19th March, 2019 the cross appellants’ counsel filed a reply brief in which he responded to submissions in the Preliminary Objection.

The Notice of preliminary objection seeks to terminate in limine the cross-appeal. Therefore it is pertinent to determine it as a matter of priority over the cross-appeal, because its success will render the consideration of the cross-appeal otiose.

The Notice of preliminary objection is

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predicated on the following grounds:
(1) Grounds 1 and 2 of the cross appeal are new or fresh issues which were not raised and canvassed at the Court below.
(2) That the respondents/cross appellants did not obtain leave of this Court to appeal on the new issues.
(3) That issues 1 and 2 for determination in the cross-appeal are also incompetent having been derived from incompetent grounds of appeal without leave.

In the written address in support of the Notice of Preliminary Objection, one issue was framed for consideration, and that issue is:
Whether fresh or new issues which were not decided upon by the trial Court are competent to be brought for appellate adjudication without leave of the appellate Court first sought and had.

Appellant/cross-respondents’ argument on the issue is in the negative, and counsel relied on a number of cases namely; Owie v. Ighiwi (2005) ALL FWLR (Pt. 248) 1762 @ 1794, Salami v. Mohammed (2000) FWLR (Pt. 18) 382, @ 390, Ezukwu v. Ukachukwu (2004) ALL FWLR (Pt. 224) 2137 @ 2153, Obiakor v. State (2002) FWLR (Pt. 113) 299 @ 309 and A. G. Oyo State v. Fair lakes Hotels Ltd (1988) 5

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NWLR (Pt. 92) 1.

Counsel submitted that ground one of the cross-appeal revolves round Exhibits J1, J2, J3, J4, J5 and J6 which were tendered by the cross-respondents without objection from the cross-appellants, and consequently admitted in evidence. We were referred to pages 201-203 of the print record.

Similarly, counsel argued that ground 2 and issue for determination center on the lack of the lower Court’s power to turn or convert its civil jurisdiction to criminal summary trial. That it is no doubt a fresh or new issue which was not argued or canvassed upon at the trial.

In regard to Exhibits J1-J6, counsel contended that counsel to the cross-appellants only objected on the point of the omission of the name of the certifying officer of those exhibits which was corrected immediately by DW5 while testifying. That the Exhibits were thus admitted in evidence without objection. That the same fate befall both issues, and thus renders ground 2 in the cross-appeal and issue 2 framed therefrom incompetent without leave of Court.

Counsel further cited the case of Kayode v. Regd Trustess United African Church (2016) ALL FWLR (Pt. 852) 1422 @

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1450. In the cross appellants’ reply brief which contained their arguments against the Notice of Preliminary Objection, the cross Appellants formulated for determination, the issue, Whether grounds 1 and 2 of the Notice of cross appeal are fresh issues. It was contended for the cross-appellants that grounds 1 and 2 in the Notice of Cross appeal are not fresh issues. As for the meaning of fresh issue counsel relied on the case of Taraba v. INEC (2010) FWLR (Pt. 544) 176 @ 183 Para H where the Court defined a fresh issue in the following manner:
An issue is regarded as fresh if it was not before the Court and is raised or appearing for the first time at the Appellate Court.

Counsel went further to submit that the issue raised in ground one is not a fresh one having been earlier argued in the cross-appellants’ final written address at the lower Court. We were referred to pages 472-473 of the record of appeal. He pointed out that the cross-respondents responded to it in the defendants reply to plaintiffs final written address at the lower Court. Counsel referred to page 482 of the record of appeal.

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On ground two, the contention of the cross-appellant is that it is not a fresh issue as same could not have been canvassed at the trial Court before now. It is counsel’s further contention that ground 2 of the Notice of cross-appeal relates to the ratio decidendi of the lower Court, and therefore entitles the cross-appellants to appeal against it. Counsel relied on the case of Obi v. INEC (2007) 7 SC 268. We were thus urged to dismiss the notice of preliminary objection.

The cross-appellant has conceded the point that it is trite law that a fresh issue cannot be raised on appeal without leave of Court. He however is not in agreement with the cross-respondents’ submission that his two grounds of appeal and the issues formulated therefrom raise new issues. In relation to ground one, it is counsel’s argument that argument in relation to ground one were canvassed in the cross-appellants’ final written address at the lower Court. He referred us to pages 472-473 of the record of appeal. We were dutiful in going to the record and I can confirm that at paragraphs 10.8, 10.9 and 10.10 and 10.11 at pages 473 of the record of appeal, which is also page 17 of the

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final written address of the plaintiffs dealt with the issue. Arguments of the plaintiffs on that issue was concluded at paragraph 10.10, where counsel submitted:
On this score, we urge this honourable Court to disregard Exhibits J-J16 as these documents were at variance with the pleadings of the 2nd and 3rd defendants statement of defence.

It is therefore without doubt that the objection to ground one of the notice of cross appeal lacks substance, and accordingly devoid of merit, and is accordingly dismissed.

As regards ground two, there is no doubt the issue therein was not raised as a point at the lower Court. However, there was a pronouncement of the lower Court on it with which the cross-appellant is not satisfied. The cases cited before this Court were cases in which the fresh issues were neither raised nor pronounced upon by the Court, and are therefore distinguishable from the instant case. The issues canvassed being issues arising from the pronouncement of the Court cannot be regarded as a fresh issue and does not require the leave of the Court to be argued on appeal.

The preliminary objection in relation to

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ground two in the cross-appeal also lacks merit. Accordingly it is hereby dismissed. In sum, the Notice of Preliminary objection is devoid of merit, and is hereby dismissed.

This now leads me to the consideration of the cross-appeal. Two issues were formulated in the cross appellants’ brief of argument, filed on 25th February, 2019. The issues are:
(1) Whether the lower Court rightly considered Exhibits J1, J2, J3, J4, J5, J6 which were at variance with the pleadings in coming to its conclusion.
(2) Whether the lower Court veered off civil jurisdiction into a summary trial when it pronounced as follows:

By the provision of Section 164(1) & (2) of the Penal Code, the act of the plaintiffs falls squarely within the provisions of the penal code and as such criminally liable to be prosecuted for fraud.

The cross-respondents adopted these same issues in arguing the cross-appeal. I consider the issues objectively framed and therefore appropriate and comprehensive to deal with the vital complaints arising for determination in the cross-appeal.

ARGUMENTS AND RESOLUTION OF THE ISSUES
ISSUE ONE

Whether

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the lower Court rightly considered Exhibits J1, J2, J3, J4, J5, J6 which were at variance with the pleadings in coming to its conclusion that the cross appellants committed fraud.

It is the contention of the cross appellant that the 2nd and 3rd cross respondents by the facts pleaded in paragraph 24 of the 2nd and 3rd defendants’ statement of defence sought to demonstrate that Exhibit J6 (Certificate of Occupancy No. 00166) was fraudulently procured by the cross appellants. Counsel submitted that Exhibits J1-J6 tendered by the Cross respondents in proof of the aforesaid averments carry the name Nnamdi Attansey. Counsel went on to submit that a party can only make a case based on facts pleaded and evidence adduced in proof or support of such facts. Reliance is placed on Haruna v. Isa (2016) ALL FWLR (Pt. 818) 918 @ 955 to 956 Paras G-A. Further submission is that parties are bound by their pleadings, and that Exhibits J1-J16 are at variance with paragraph 24 of the 2nd and 3rd cross respondent statement of defence. That where evidence is at variance with pleadings, such evidence goes to no issue. Cited in support are Nwabode v. Ngodu (2011) FWLR (Pt. 604)

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26 @ 46 Para 7, Abubakar v. Joseph (2008) FWLR (Pt. 432) 1065 @ 1085 Para A.

Counsel submitted that had the trial Court disregarded Exhibits J1-J6, it would not have reached a finding of fraud and misrepresentation of facts as it did against the cross-appellants. Counsel urged us to expunge the said Exhibits. Counsel drew our attention that the learned trial judge relied on the statement of defence and counter claim that had become extinct by the amendment and replacement with the amended statement of defence and counter claim. That this being the case there is no basis for the trial Court’s finding. He reiterated his call that the Exhibits be expunged.

The Cross respondents’ counter submission on issue one is that Exhibits J1, J2, J3, J4, J5, J6 having been duly and validly pleaded by the cross respondents as conceded to by the cross appellants in the particulars of ground 1 of their cross appeal are not at variance with their pleadings. Counsel referred us to the amended pleadings of the cross appellants (defendants) at page 349 of the record. Counsel submitted that no ambiguity had been created from the misstatement of the name in the

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cross-respondents’ pleadings under reference. It was further contended for the cross respondents that the argument of the cross-appellant that Exhibits J1-J6 have no foundation in the pleadings for admissibility is misleading and without substance. He also submitted that even if the lower Court relied in their initial joint statement of defence which was amended in arriving at its judgment it is still not a cogent reason to set aside the judgment. He submitted that this Court (Court of Appeal) is empowered to rehear the case as a Court of first instance. That so long as there is abundant facts and evidence in the printed record, the appellate Court is enjoined to use the evidence at arriving at a just conclusion as the trial Court. In so doing we are urged to assume full jurisdiction as Court of 1st instance to evaluate the evidence of the cross-respondents particularly as to the exhibits (Exhibits J1-J6) as having been properly pleaded in the amended statement of defence of the cross-respondents. And if it is so done there will be no basis to expunge Exhibits J1-J6.

Let me first of all start by looking at precisely at what pleadings is supposed to

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serve. It is settled law that cases are decided on pleadings as joined in the pleadings, the purpose being to avoid surprise at trial see Adeosun v. Gov. Ekiti State & Ors. (2012) LPELR-7843 (SC). I have meticulously read paragraph 24 of the cross-respondents’ amended statement of defence. By what counsel for cross appellants has submitted the name pleaded is Nnamdi Attansey where as the name shown in Exhibit J6 which the cross appellants procured by fraud is Innocent Attansey.

However, particulars of conspiracy, fraud and forgery in the same paragraph 24 supra unmistakenly referred to 1st Plaintiff as an impostor called Innocent Attansey. See Paragraph 24, particular No. 1 @ Page 349 of the record of appeal. The 2nd Cross-appellant knew that the Nnamdi Attansey in the said paragraph referred to him. And to demonstrate that knowledge, the cross appellants filed a reply to the 2nd and 3rd defendants amended statement of defence, paragraph 27 of which frontally replied to the averments in paragraph 24 of the joint amended statement of defence thus:
The plaintiff deny paragraphs 24(a) and (b) of the 2nd and 3rd defendants statement of

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defence and in reply state that the letters of administration were validly obtained by herself and the 2nd plaintiff after complying with the due process and without any misrepresentation of facts to the Court. The 2nd and 3rd defendants is put to the strictest proof.

Now having made this reply and dared the defendants to prove their averments, they then proceeded to tender Exhibits J1-J6. Now, they are now claiming that the pleadings are at variance with the documents. Are the cross-appellants being consistent in their case? Aren’t they approbating and reprobating? I think they are, and they need to be reminded that the law frowns at a party who approbates and reprobates at the same time.

I am therefore firm in holding that Exhibits J1-J6 were properly pleaded in paragraph 24 of the amended statement of defence and counter-claim of the 2nd and 3rd defendants/cross respondents. This holding, therefore negates the submission of the cross appellants that had the trial Court disregarded Exhibits J1-J6 it would not have reached a finding of fraud and misrepresentation of facts as it did against them.

There is an alternate submission to the

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effect that the learned trial judge in her judgment relied on the statement of defence/counter claim of the 2nd and 3rd cross respondents contained at pages 306-309 of the record, even though the case of the 2nd and 3rd cross respondents’ case at the trial Court was fought on the amended statement of defence/counter claim at pages 346-351 of the record, and that therefore there is no fundamental basis on which Exhibits J1-J6 can be admitted in evidence. There is no appeal against this complaint and the no issue therefore formulated from it. it would therefore amount to a waste of the precious judicial time to go into the rigors of considering that submission because it will be a finding founded on sinking sand. I therefore discountenance that submission.

In sum, I am therefore not in any iota of doubt that this issue (issue one), ought to be, and is hereby resolved against the appellants and in favour of the Cross respondents.

ISSUE TWO
Whether the lower Court veered off its civil jurisdiction into a summary criminal trial when it pronounced as follows: By the provision of S. 164 (1) & (2) of the Penal Code, the act of the plaintiffs

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falls squarely within the provisions of the penal code as such criminally liable to be prosecuted for fraud.

It is submitted for the cross appellants that the 2nd and 3rd cross respondents did not in their counter claims pray the Court to determine the criminal liability or otherwise of the cross appellants but basically to set aside and discountenance Exhibit B. Counsel further contended that the criminal jurisdiction of the trial Court was not invoked by the cross respondents. He pointed out also that there was no FIR nor a formal charge informing the cross appellants of any crime against them in line with the dictates of fair hearing. It is their contention that the pronouncement of the Court amounted to a conviction of the cross appellants without trial. That the Court did not limit itself to what was submitted to it for trial. He cited many cases on this issue which will be referred to in due course if need be. We were urged to set aside the finding of fraud against the cross appellants, and to allow the cross appeal.

On issue two, the submission of the cross respondents is that the trial Court is a Court imbued with unlimited jurisdiction.

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That the law empowers the trial Court to make findings or pronouncements on elements of crimes even in civil proceedings, hence the provision of S. 135(1) of the Evidence Act, 2011. It was contended that the issue of crime was well ventilated and canvassed with both oral and documentary evidence before the trial Court leading to a thorough and discreet evaluation of the evidence. Counsel to the cross respondents noted that the trial Court did not convict the cross appellants. That if it was a summary trial as posited by the cross appellants, there would have been a conviction, and consequent sentence of the cross-appellants, but there was none. That what the trial Court did was the discharge of the duty placed on it by law and nothing more.

Counsel urged us to resolve issue two in favour of the cross respondents.

I am in total agreement with the counsel for the cross respondents that issue two is misconstrued by the cross appellants. I like to point out the following:
An allegation of crime can be made in a civil cause and if is done the Court has an inescapable duty to make a finding on it, and in doing so, the law mandates the Court to

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observe the provision of S. 135(1) of the Evidence Act which provides that:
If the commission of a crime by a party to any proceedings is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
This provision has received approval in an unprecedented number of decided cases by our superior Courts. The cross respondents made the commission of crimes of forgery, fraud, impersonation and conspiracy an issue directly in their defence. See the amended statement of defence and counter claim of the 2nd and 3rd defendants. All that the Court did was a discharge of its duty of evaluating the totality of the evidence on both sides and making a finding on the respective cases of the parties as it is wont to do, no more no less. The Court did not do it unsolicited and it did not make any conviction. I will not mince words in stating that the arguments of the cross respondents’. Counsel on issue two is unassailable. This leads me to hold that issue two is also hereby resolved against the cross appellants and in favour of the cross respondents.

On the whole, the cross appeal is devoid of merit and is

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hereby dismissed. The part of the judgment cross appealed against is hereby affirmed.
No order as to costs.

SAIDU TANKO HUSSAINI, J.C.A.: I read in advance the judgment just delivered in this appeal case and the cross-appeal. I am one with my Lord, JAMES GAMBO ABUNDAGA, J.C.A, and I agree with his line of reasoning and conclusion. The appeal and cross-appeal are both dismissed by me. The judgment delivered at the High Court of Kano State on the 8th May, 2015 is affirmed.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, James Gambo Abundaga, JCA, where the facts of the case and the issues in contention have been lucidly set out and eloquently determined.

It is clear, as succinctly set out by my learned brother that the finding of the lower Court with regard to the fraud with respect to the grant of the Letters of Administration in favour of the Appellants/Cross Respondents did not affect their entitlement to the estate of the deceased. At best they could have been prosecuted for these acts.

It has been well settled that the Igbo native law and custom that disentitles a female child

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from her inheritance is in conflict with Section 42 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Such custom has been described as barbaric and unacceptable. See Ukeje v Ukeje (2014) 14 NWLR Part 1418 Page 384 at 408 Para CE Per Rhodes Vivour JSC.

It is also settled that children born out of wedlock can also not be deprived from sharing from the estate of their deceased father. Any law that seeks to do this is in violent conflict with Section 42(2) of the Constitution of the Federal Republic of Nigeria Supra.
See. Ukeje v Ukeje Supra at Page 410 Para DE, Per Ogunbiyi JSC.

For all the fuller reasons given by my learned brother, I also find no merit in the appeal and dismiss the same. I affirm the judgment of the lower Court.

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Appearances:

M. I. Ikpe, Esq. For Appellant(s)

Okitikpi Toritseju, Esq. For Respondent(s)

 

Appearances

M. I. Ikpe, Esq. For Appellant

 

AND

Okitikpi Toritseju, Esq. For Respondent