MR. OKECHUKWU OBIANWU & ORS v. MR. EMMANUEL IKEM OBIANWU & ORS (2017)

MR. OKECHUKWU OBIANWU & ORS v. MR. EMMANUEL IKEM OBIANWU & ORS

(2017)LCN/10188(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of July, 2017

CA/E/238/2016

RATIO

COMMENCEMENT OF ACTION: INSTANCES WHERE THERE IS A METHOD OR PROCEDURE FOR INITIATING A COURT PROCEEDINGS

Where the legislature or the Rules Maker/Giver has prescribed a method or procedure for initiation of proceedings that must be followed by the parties. See Din v. Federal Attorney-General (1988) 4 NWLR (pt. 87) 147 at 186; Obajimi v. Attorney-General & Ors. (1967) NMLR 96; Lohan v. Attorney-General (1963) 1 ALL NLR 226 and Commissioner of Lands v. Edo Osagie (1973) 6 S.C. 155. PER JOSEPH TINE TUR, J.C.A.

ORIGINATING SUMMONS: THE DUTY OF A CLAIMANT SEEKING TO INITIATE AN ORIGINATING SUMMONS PROCEEDINGS UNDER THE PROVISIONS OF ORDER 3 RULE 5 OF THE ANAMBRA STATE HIGH COURT (CIVIL PROCEDURE) RULES 2006; THE PROCEDURE TO BE FOLLOWED BY A PARTY SEEKING TO OPPOSE SUCH ORIGINATING SUMMONS PROCEEDINGS

For a claimant to invoke the provisions of Order 3 Rule 5 of the Anambra State High Court (Civil Procedure) Rules 2006 in order to initiate originating summons proceedings he or she has to show that the construction of a “deed, will, enactment or other written instrument” is involved. The person has to show that he is claiming to be interested under a deed, will, enactment or other written instrument. The purpose of initiating the originating summons must be “…for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested”. In such a case the Rules Giver/Maker contemplated that no dispute or controversy will be involved in the mere construction of the deed, will, enactment or other written instrument. But where other people or persons have interests under the deed, will, enactment or other written instrument, a dispute or controversy may likely arise. For instance a rival party may produce a contrary deed, will, enactment or other written instrument and rely on the circumstances that are materially in conflict on crucial issues with the deed, will, enactment or other written instrument which the claimant(s) seeks should be construed and declaration of the rights of the persons interested made by the Court. Where the claims are by rival parties and the declarations of the rights of the persons interested are in material conflict, the procedure is for the rival party that had not instituted the originating proceedings to invoke the provisions of Order 17 Rule 16(2) of the Rules to set out the nature of his or her interest and claim remedies that the party thinks are his or her entitlement under the deed, will, enactment or any other written instrument. This will enable the Court to determine once and for all the respective rights in the deed, will, enactment or other written instrument. This will save a proliferation of law suits and minimize the time and cost of litigation. The procedure for doing so in an originating summons is set out in Order 17 Rules 16(1) and (2) of the Anambra State High Court Civil Procedure Rules 2006 to wit; “1. A respondent to an originating summons shall file a counter-affidavit together with all the exhibits he intends to rely upon and a written address within 21 days after service of the originating summons. 2. A respondent to an action begun by originating summons who has entered an appearance to the summons and who alleges that he has any claim or is entitled to any relief or remedy against the Plaintiff in respect of any matter, whenever and however arising, may make a counter-claim in the action in respect of that matter instead of bringing a separate action. The counter-claim shall be made in the counter-affidavit opposing the originating summons.” There are two kinds of counter-claims, compulsory and permissible counter-claims. Black’s Law Dictionary supra, page 402 defines the two types of counter-claims as: “Compulsory Counter-Claim:- A counterclaim that must be asserted to be cognizable, usually, because it relates to the opposing party’s claim and arises out of the same subject matter. If a defendant fails to assert a compulsory counterclaim in the original action, that claim may not be brought in a later, separate action (with some exceptions)… Permissive Counterclaim:- A counterclaim that need not be asserted to be cognizable, usually because it does not arise out of the same subject matter as the opposing party’s claim or involves third parties over which the Court does not have jurisdiction. Permissive counterclaims may be brought in a later, separate action…” In Maxwell On The Interpretation of Statutes, 12th edition by P. St. J. Langan, page 320 appears the following passage; “Rules of Procedure – Enactments regulating the procedure in Courts are usually construed as imperative, even where the observance of the formalities in question is not a condition exacted from the party seeking the benefit of the statute, but a duty imposed on a Court or public officer when no general inconvenience or injustice seems to call for a different construction.” Order 17 Rule 16(2) of the 2006 Rules of Practice and Procedure is couched in mandatory language if the appellants had any genuine interest in the disputed property they would had any genuine interest in the Will. The express intention of the Rules Maker is that in an originating summons all counter-claims should be set out in the counter-affidavit to be determined once and for all in order to avoid the proliferation of proceedings. Order 17 Rule 16(2) of the Rules have complied with the provisions of the Rules. The absence of compliance in an originating summons with the provisions of Order 17 Rule 16(2) may be evidence that the appellants had no claim nor interest in the property subject-matter of the Will. It would seem to me that where a party did not counter-claim the property subject of the Will, such a party may have an herculean task in bringing a separate action when that should have been done in the counter-affidavit in opposition to the originating summons. That is the clear intention of the lawmaker in Order 17 Rule 16(2) of the Anambra State High Court (Civil Procedure) Rules 2006. PER JOSEPH TINE TUR, J.C.A.

COMMENCEMENT OF ACTION: THE METHOD OR PROCEDURE FOR COMMENCING PROCEEDINGS WHOSE PURPOSE IS THE CONSTRUCTION OF WILLS

Order 3 Rules 5 of the High Court (Civil Procedure) Rules, 2006 provides the method or procedure for commencing proceedings whose purpose is the construction of Wills: “3(5) Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.” The Rules vests a discretion in any party to initiate originating summons proceedings to construe a Will by the use of the word “may” in Order 3 Rule 5 of the Rules supra. In Mokelu v. Federal Commissioner for Works & Housing (1976) NMLR 329, Madarikan JSC held at pages 332 to 333 as follows: “It only remains for us to consider the alternative argument urged upon the Court by Mr. Balogun. It relates to the construction of Section 22(2) of the Federal Revenue Court Act, 1973. It reads: “(2) No cause or matter shall be struck out by the Federal Revenue Court merely on the ground that such cause or matter was taken in the Federal Revenue Court instead of the High Court of a State in which it ought to have been brought, and the Judge of the Federal Revenue Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State in accordance with rules of Court to be made under Section 43 of this Decree.” We think that Mr. Balogun was on firm ground when he submitted that where an action is instituted in the Federal Revenue Court instead of the High Court in which it ought to have been brought, Section 22(2) enjoins the Federal Revenue Court not to strike out the action merely on that ground. In the expression “no cause or matter shall be struck out by the Federal Revenue Court” we are of the view that the word “shall” must be given its natural and proper meaning which is that a mandate is enjoined…” It is within the province of a party to initiate proceedings to construe a Will by originating summons. It is also within the judicial discretion of a learned trial Judge to assume or decline jurisdiction to interprete or construe a Will under the originating summons proceedings. However, it may be noted that the Rules Maker did not prescribe any other method or procedure for construing a Will than originating summons. The parties are bound to comply with the procedure laid down in the Rules of the Court. PER JOSEPH TINE TUR, J.C.A.

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

1. MR. OKECHUKWU OBIANWU
2. MR. CHUKWUEMEKA OBIANWU
3. CHINEDU OBIANWU
4. MR. CHUKWUKA OBIANWU
(Sued as representing themselves and other children of late Alphonso Obianwu) Appellant(s)

AND

1. MR. EMMANUEL IKEM OBIANWU
2. BARR. ANDY O. OBIANWU
3. OGOCHUKWU OKWUOSAH
(Suing as surviving beneficiaries of the last Will of Late Madam Henrietta Nonyem Obianwu) Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Sections 294(1)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered are couched as follows;
?1. Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
2. Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
3. A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
4. For the purpose

of delivering its decision under this section, the Supreme Court or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
XXXXXXXXXXXXXXXXXXXXXXX
318(1) ?Decision? means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation.?
The intention of those who enacted the Constitution is that any determination by a Court established under the Constitution of the Federal Republic of Nigeria 1999 as altered that hears evidence and relies on addresses by the parties or their legal representatives a ?decision?, to be rendered within 90 days at the close of final addresses. An authenticated copy is to be made available to the parties within 7 days. But any determination by a Justice of the Supreme Court or the Court of Appeal is a ?decision? or an ?opinion? as the case may be.
?The conditions set out in Section 294(1) do not apply to Section 294(2) – (4) of the Constitution. I have headed this determination a ?decision? to conform with the

provisions of Sections 294(2) – (4) and 318(1) of the Constitution.

The appeal is against the determination of the High Court of Justice of Anambra State of Nigeria, Onitsha Judicial Division, holden at Onitsha by M.N.O. Okonkwo J., which the learned trial Judge rendered in favour of the Respondents on 5-5-2016. The Respondents were the Plaintiffs in the lower Court. The Appellants were the defendants in the Court below. The Notice of Appeal was filed by the Appellants on 6-5-2016. Another Notice of Appeal was filed on 21-6-2016. The Notice of Appeal filed on 6-5-2016 was withdrawn when the appeal came up for hearing on 20-3-2017 and was accordingly struck out. The Appellants filed a Brief of Argument on 8-7-2016. The 1st – 3rd Respondent?s Joint Brief was filed on 8-8-2016. All the briefs were adopted by learned counsel representing the parties when the appeal was argued on 20-3-2017. The Appellants set out in their Joint Brief of 8-7-2016 at pages 3 – 4, paragraph 2.01 of the brief the genesis of the dispute to wit;
?2.01 APPELLANTS? CASE
The Appellants case is that the originating summons procedure, is not the appropriate

judicial process of determining this suit. This contention is based on the Appellants? belief that the affidavits on both sides are violently in conflict. The Appellants contend that the testatrix is not the owner of the property No. 9, Okolo Street, Onitsha. It is the Appellants? view point that the trial Court ought to have directed pleadings to be filed so that full trial will commence. The sole issue for the Court to determine as far as the Appellants are concerned, is who is the owner of No. 9, Okolo Street, Onitsha, as that Will determine if it was rightly included in her Will by Madam Henrietta Nnonyem Obianwu.?

The Respondents set out in paragraphs 1.01 to 1.02 of pages 1 – 2 of their brief filed on 8-8-2016 the facts which culminated in the initiation of the originating summons the following facts;
?1.01 The Respondent?s case at the Court below is that by the Last Will of Madam Henrietta Nnonyem Obianwu read on the 25th May 1983 and proved/admitted to probate on the 16th February 1984, made grants of No. 9, Okolo Street directly to the 1st and 2nd Respondents and through late Madam Agnes Nwanyiuzor

Agusiobo, grandmother to the 3rd Respondent to her. Late Alphonsus Obianwu the father to the Appellant who died in 2010 did not challenge the Will all his life and did not challenge the ownership of the property against the late Madam Henrietta Obianwu since 1930?s when she assumed ownership and built the houses on the land which she acquired from Okposieke family of Onitsha. Respondents lived in the building at No. 9, Okolo since their birth long before the civil war and after unsealing the Will in 1983, invited the late Alphonsus Obianwu, father of the Appellants to occupy part of the ground floor occupied by tenants in the lifetime of the testator and where he eventually died in 2010.
1.02 It was after his death in 2010 that the Appellants started laying claim of ownership of the house and adjoining land as belonging to their father and took the Respondents to the Obi in Council Court of Onitsha where they lost the case. They continued to lay blind claim even after the judgment and forcefully buried a certain woman not known to the Respondents in the compound without their consent, whereupon the Respondents instituted the originating summons

praying among other reliefs, an order upholding the Last Will of Madam Henrietta Obianwu as it affects 9 Okolo Street, Onitsha. See pages 1 to 30 and 135 to 160 of the Record of Appeal.?

The learned trial Judge heard the controversy based on the affidavits, counter and further affidavits, with documentary exhibits and the addresses of learned counsel to render his decision in favour of the Respondents hence this appeal. The Appellants formulated the following issues for determination at page 4, paragraphs 4.01 to 4.03 to wit;
?4.01 Whether the trial Court was correct in determining this originating summons based only on the affidavit evidence before the Court, instead of ordering pleadings to be filed and viva voce evidence taken?
4.02 Whether the mere fact of the Appellants not filing a counter-claim to the originating summons, entitles the trial Court to determine this suit, on affidavit evidence?
4.03 Was the trial Court correct when it entered judgment for the Respondents as per their claim, based on its perception that the Will was valid and over 20 years old

The Respondent?s issues for

determination are set out in their brief at page 3, paragraphs 3.0 – 3.01 as follows;
?3.0 ISSUES FOR DETERMINATION: Whether the trial Judge was right in determining this suit under originating summons and whether there were enough grounds to award judgment to the Respondents as claimed.
3.01 ISSUE NO. 1: Whether the trial Judge was right in determining this suit under originating summons and whether there were enough grounds to award judgment to the Respondents as claimed.?

My candid opinion is that, it is a party aggrieved with the decision of a Court below that usually appeals and formulates issues for determination. The party has to show why the Court of Appeal should interfere with that decision. That is the purport of Order 19 Rule 3(1) of the Court of Appeal Rules, 2016 which reads as follows;
?3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant?s view, the issues arising in the appeal as well as amended or additional grounds of appeal.?
The duty of the Respondents who did not cross appeal nor filed a

Respondent?s Notice is to answer all the questions or points raised by the Appellants in their brief showing why the appeal should be dismissed. The intention of the Rule Maker is set out in Order 19 Rule 4(1) – (2) of the Court of Appeal Rules, 2016 as follows;
?4(1) The Respondent shall also within thirty days of the service of the brief for the Appellant on him file the Respondent?s brief which shall be duly endorsed with an address or addresses for service.
(2) The Respondent?s brief shall answer all material points of substance contained in the Appellant?s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform to Rule 3(1), (2), (3), (4), (5) and (6) of this Order.?
The parties or their legal representatives are to assume that I have read the briefs, considered the arguments and examined the exhibits before rendering this decision. This is provided in Order 19 Rules 3(2) and (3) of the Rules supra:
?3(2) Where possible or necessary, the reasons in the brief shall also

be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.?
I do not need to review in detail the facts in dispute, the argument of learned counsel, etc. This was the posture adopted by the Privy Council in Ijale v. B.A. Shonibare, Privy Council Judgments (1841-1973) by Olisa Chukura, SAN, 1980 edition, page 947 at 948 per Lord UpJohn to wit:
?There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the

respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.
In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES .?
In Odutola Holdings Ltd. & Ors. v. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63 where Ejinwumi, JSC held at pages 79-80 to wit:
?Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my

humble view, not all the issues raised are necessary for the determination of the appeal. This is because several of the issues raised by the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the trial Court in respect of the application brought before it by the respondents.
After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the light of the arguments advanced in the consideration of the merits of the appeal.?
MERGER OF ISSUES FOR DETERMINATION
It is permissible to merge issues formulated for determination where they overlap, particularly if doing so will enable the Court to determine the real issues in controversy. See Anie v. Uzorka (1993) 8 NWLR (pt. 309) 1 at 16. I shall merge all the issues as distilled by the Appellants and

consider them together.

The arguments by the Appellant?s learned counsel in respect of the three issues in a nutshell is that there were material conflicts in the affidavit of the respondents which were countered by the appellants that could have been resolved only by oral evidence. Originating summons was not to have been the mode for initiating the proceedings in the Court below. Learned counsel drew attention to various paragraphs of the affidavits, counter or further affidavits the parties relied upon in their respective claims and defences in the Court below. Reference was also made to passages in the decision of the learned trial Judge to show that in the face of these material conflicts, the learned trial Judge should have called for an oral hearing. Learned counsel contended it was immaterial that the Appellants did not counter-claim the property in dispute in the originating summons, citing Eke v. Okwaranyia (2001) 12 NWLR (pt. 726) 181; Adegbuyi v. A.P.C. (2015) 2 NWLR (pt. 1442) 26 and the High Court (Civil Procedure) Rules of Anambra State, 2006. It was argued that filing a counter-claim was a matter of choice, citing Ajao v. Obele

(2005) 5 NWLR (pt. 918) 400 at 415. Okechukwu Obianwu & Ors. v. Mr. Emmanuel Obianwu & Ors was referred to as an unreported suit No. 0/15/2016 between the Appellants and the Respondents that was pending in High Court No. 6 Onitsha, Onitsha Judicial Division of Anambra State, initiated by the appellants in respect of the property in dispute. Counsel cited Order 17 Rule 16(2) of the High Court (Civil Procedure) Rules of Anambra State 2006 and Section 137 of Administration and Succession (Estate of Deceased Persons) Law, Revised Laws of Anambra State, 1991. That the law provided that a testatrix can bequeath only what she is entitled to, at the time of her death. On the bindingness of the customary arbitration proceedings conducted in respect of the disputed property and various exhibits put in by the parties in the Court below, counsel referred to Agu v. Ikewibe (1991) 3 NWLR (pt. 180) 385 at 408 and Eke v. Okwaranyia (2001) 12 NWLR (pt. 726) 181 at 209 to show when a previous customary arbitration would have binding effect on parties in litigation. Counsel further cited Uwaifo v. Uwaifo (2005) 3 NWLR (pt. 913) 479 at 511. Learned counsel contended at

page 20, paragraph 7.01 to page 22 paragraph 7.09 of the Appellants Joint Brief as follows;
?7.01 The trial Court in its judgment held that:- ?The issue for determination is the validity or otherwise of the Last Will and Testament of Madam Henrietta Nnonyem Obianwu dated 30-10-1982 which was read on 25-5-1983 and proved on 16-2-1984?. See page 177, lines 24 – 27 of the Records.
7.02 It is our respectful submission that, that is not the appropriate issue for determination. We adopt our argument as contained in paragraph 6.02 of this brief as part of our argument herein, and submit that the issue that was presented before the trial Court, for its determination was who is the owner of No. 9, Okolo Street, American Quarters, Onitsha.
7.03 The decision of the trial Court on the validity of the Will is, we submit with the utmost respect, off the tangent. Whether the Will was in writing, signed by the testator or signed in his name by some other person, the testator signed in the presence of at least two witnesses present at the same time, the witnesses subscribed to the Will in the presence of the testator, were not issues

in contention at the trial. It is not even the case of the Appellants that the Will be set aside. All the Appellants contended was that No. 9, Okolo Street, American Quarters which the testator included in her Will does not belong to her and as such the bequest affecting that property is void.
7.04 For the limitation law as encapsulated in Section 22(2) of the Actions Law to come into effect, the Appellants must have had Notice of the existence of the Will. The Appellants clearly deposed in their affidavit that they came to know about the existence of the Will, at Ime Obi, during the native arbitration and that was in 2010. They also averred that their father had no knowledge of the existence of the Will. See paragraphs 55 to 61 of the Counter Affidavit at pages 44 to 45 of the Records. The Supreme Court in MULIMA v. USMAN (2014) 16 NWLR (pt. 1432) p. 160 at 201 para ?F? – ?G? per Okoro JSC, held that – ?I think it is only reasonable and just that a party can only sue when he becomes aware that his right has been tampered with for, as long as he is unaware that someone has dealt with his property inconsistent with his

ownership, he cannot sue as you cannot shave a man?s hair in his absence?. The Will may be more than twenty years old, but the issue is, when did the Appellants become aware of its existence?
7.05 Section 22(2) provides that ?no action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or if it accrued to some person through whom he claims, to that person?.
7.06 The right of action for the Appellants accrued in 2010, when the Respondents asserted a claim adverse to the interest of the Appellants. The Respondents have a duty and onus to attach notice of the Will to the Appellants and/or the late Alphonsus Obianwu. This they have failed to do. To be able to do that, with respect to Alphonso Obianwu, the Respondents have to exhibit a credible and clear evidence that he was aware of the Will and did nothing. Their mere assertion which the Appellants denied was not enough.
7.07 The above apart, the Appellants deposed in paragraph 24 of the Counter Affidavit to the fact that the land No. 9, Okolo Street Onitsha is subject to

the Okposieke family Kola tenancy customary land tenure system, evidenced by the consent to inherit kola tenancy, Exhibit E. By the provisions of Section 18 of the Actions Law of Anambra State, Cap. 3, 1991 such lands are exempt and free from the period of limitation. The same principle applies to the doctrine of laches and acquiescence.
7.08 It is therefore, obvious that the trial Court was wrong in its conclusion that the Appellants? rights of action abated in 1995 pursuant to the effect of the Actions Law of Anambra State. There is, as well, a proviso to Section 162 of the Evidence Act 2011, replied upon by the trial Court. That proviso is that – ?unless and except so far as they be proved to be inaccurate?. We submit that our Counter Affidavit has cast sufficient doubt on the case of the Respondent to warrant pleadings to be filed and full trial commenced.
7.09 We humbly submit that the trial Court was in error when it entered judgment for the Respondents instead of ordering pleadings. The trial Court?s perception of the Will have heretofore been shown to be wrong and we urge the Court of Appeal to resolve this issue in

our favour and allow the appeal.?

Learned counsel urged this Court to allow the appeal and remit the case for retrial on pleadings.
RESPONDENT?S ARGUMENT:
Learned counsel to the Respondents? argument in a nutshell is that, there were no material conflicts in the affidavit evidence that necessitated the calling of oral evidence. Counsel drew attention to the affidavits and documentary exhibits including the findings of the learned trial Judge in favour of the Respondents. Learned counsel submitted that the purport of an originating summons was to ensure speedy trial at a less cost to the parties: Okada Airlines Ltd. v. Federal Airports Authority of Nig. Decided on the 7-7-2014 in unreported case in CA/B/8/2010; Famfa Oil Ltd. v. AGF (2003) 18 NWLR (pt. 852) pg. 453; Doherty v. Doherty (1968) NMLR 241; Keyamo v. House of Assembly Lagos State (2002) 12 S.C. (pt. 1) 190 and Nwosu v. Isesa (1990) 2 NWLR (pt. 135) pg. 688. It was contended that oral hearing is not to be resorted to just because there were conflicts in the affidavit, citing Nwosu v. Isesa (1990) 2 NWLR (pt. 135) 688 and Ossai v. Wakwah (2006) 4 NWLR (pt. 969) 208.

On the ownership of the property in dispute, learned counsel argued that the Appellants did not establish any root of title as laid down in Idundun v. Okumagba (1976) NMLR 200. That the Appellants were bound by the decision of the customary arbitrators. The Court?s attention was also drawn to the provisions of Order 17 Rule 16(2) of the High Court of Anambra (Civil Procedure) Rules, 2006 to the effect that the failure of the Appellants to have counter-claimed as provided under the provisions of the Rules was fatal in the circumstances. Learned counsel referred to the exhibits and passages in the decision of the learned trial Judge to support his argument. Learned counsel urged that the three issues be resolved against the appellants and the appeal should be dismissed.

RESOLUTION OF DISPUTE:
Where the legislature or the Rules Maker/Giver has prescribed a method or procedure for initiation of proceedings that must be followed by the parties. See Din v. Federal Attorney-General (1988) 4 NWLR (pt. 87) 147 at 186; Obajimi v. Attorney-General & Ors. (1967) NMLR 96; Lohan v. Attorney-General (1963) 1 ALL NLR 226 and Commissioner of Lands v. Edo

Osagie (1973) 6 S.C. 155. The respondents commenced proceedings in the Court below on 7-5-2015 by originating summons seeking the following prayers or remedies against the appellants;
?i. An Order of the Court upholding the Last Will of late Madam Henrietta Nnonyem Obianwu and grants made to the Plaintiffs in it as valid and lawful having been unchallenged in excess of 30 years since it?s unsealing and admission into probate.
ii. Declaration that No. 9, Okolo Street, being subject to the Last Will of late Henrietta Nnonyem Obianwu cannot be claimed or trespassed by the Defendants without the express authority of the Plaintiffs who are the beneficiaries to the Will.
iii. An Order of Court restraining the Defendants, their agents, privies or workmen from trespass and making any claim to the property of No. 9, Okolo Street, Onitsha or any part of the building, the same being in the possession and ownership of the Plaintiffs.
iv. An Order of Court restraining the Defendants from laying any claim of ownership whatsoever over No. 9, Okolo Street Onitsha, including attempt to bury the remains of late Alphonsus Obianwu or anybody

else, the same being subject of the Last Will and testament of Madam Henrietta Nnonyem Obianwu dated 30-10-1982 and read on 25-5-1983 devised to the Plaintiffs.
v. An Order declaring as illegal the forceful burial of late Mary Igweike at No. 9, Okolo Street, Onitsha and an order of exhumation of the said corpse at the expense of the Defendants.?

The questions to be construed by the Court below were couched as follows;
?a. Whether or not the Last Will of late Madam Henrietta Nnonyem Obianwu made valid devices of No. 9, Okolo Street, Onitsha to the Plaintiffs to the exclusion of the Defendants.
b. Whether the Plaintiffs can enforce the rights and interests derived from the Last Will of Madam Henrietta Nnonyem Obianwu regarding No. 9, Okolo Street, Onitsha against the Defendants who are wrongly laying claim to the property.
c. Whether the Plaintiffs can bring this suit successfully under the originating summons.?

Order 3 Rules 5 of the High Court (Civil Procedure) Rules, 2006 provides the method or procedure for commencing proceedings whose purpose is the construction of Wills:
?3(5) Any person

claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.?
The Rules vests a discretion in any party to initiate originating summons proceedings to construe a Will by the use of the word ?may? in Order 3 Rule 5 of the Rules supra. In Mokelu v. Federal Commissioner for Works & Housing (1976) NMLR 329, Madarikan JSC held at pages 332 to 333 as follows:
?It only remains for us to consider the alternative argument urged upon the Court by Mr. Balogun. It relates to the construction of Section 22(2) of the Federal Revenue Court Act, 1973. It reads:
?(2) No cause or matter shall be struck out by the Federal Revenue Court merely on the ground that such cause or matter was taken in the Federal Revenue Court instead of the High Court of a State in which it ought to have been brought, and the Judge of the Federal Revenue Court before whom such cause or matter is brought may cause such cause or matter to be transferred to

the appropriate High Court of a State in accordance with rules of Court to be made under Section 43 of this Decree.?
We think that Mr. Balogun was on firm ground when he submitted that where an action is instituted in the Federal Revenue Court instead of the High Court in which it ought to have been brought, Section 22(2) enjoins the Federal Revenue Court not to strike out the action merely on that ground. In the expression ?no cause or matter shall be struck out by the Federal Revenue Court? we are of the view that the word ?shall? must be given its natural and proper meaning which is that a mandate is enjoined
It is within the province of a party to initiate proceedings to construe a Will by originating summons. It is also within the judicial discretion of a learned trial Judge to assume or decline jurisdiction to interprete or construe a Will under the originating summons proceedings. However, it may be noted that the Rules Maker did not prescribe any other method or procedure for construing a Will than originating summons. The parties are bound to comply with the procedure laid down in the Rules of

the Court.

A learned trial Judge before whose Court a party commences an originating summons is enjoined to act under Order 3 Rule 7 of the Rules as follows;
?3(7) A Judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such orders as he deems fit.?

other written instrument. But where other people or persons have interests under the deed, will, enactment or other written instrument, a dispute or controversy may likely arise. For instance a rival party may produce a contrary deed, will, enactment or other written instrument and rely on the circumstances that are materially in conflict on crucial issues with the deed, will, enactment or other written instrument which the claimant(s) seeks should be construed and declaration of the rights of the persons interested made by the Court.
?Where the claims are by rival parties and the declarations of the rights of the persons interested are in material conflict, the procedure is for the rival party that had not instituted the originating proceedings to invoke the provisions of Order 17 Rule 16(2) of the Rules to set out the nature of his or her interest and claim remedies that the party thinks are his or her entitlement under the deed, will, enactment or any other written instrument. This will enable the Court to determine once and for all the respective rights in the deed, will, enactment or other written instrument. This will save a proliferation of law

suits and minimize the time and cost of litigation. The procedure for doing so in an originating summons is set out in Order 17 Rules 16(1) and (2) of the Anambra State High Court Civil Procedure Rules 2006 to wit;
?1. A respondent to an originating summons shall file a counter-affidavit together with all the exhibits he intends to rely upon and a written address within 21 days after service of the originating summons.
2. A respondent to an action begun by originating summons who has entered an appearance to the summons and who alleges that he has any claim or is entitled to any relief or remedy against the Plaintiff in respect of any matter, whenever and however arising, may make a counter-claim in the action in respect of that matter instead of bringing a separate action. The counter-claim shall be made in the counter-affidavit opposing the originating summons.?
There are two kinds of counter-claims, compulsory and permissible counter-claims. Black?s Law Dictionary supra, page 402 defines the two types of counter-claims as:
?Compulsory Counter-Claim:- A counterclaim that must be asserted to be cognizable, usually,

because it relates to the opposing party?s claim and arises out of the same subject matter. If a defendant fails to assert a compulsory counterclaim in the original action, that claim may not be brought in a later, separate action (with some exceptions)?
Permissive Counterclaim:- A counterclaim that need not be asserted to be cognizable, usually because it does not arise out of the same subject matter as the opposing party?s claim or involves third parties over which the Court does not have jurisdiction. Permissive counterclaims may be brought in a later, separate action
In Maxwell On The Interpretation of Statutes, 12th edition by P. St. J. Langan, page 320 appears the following passage;
?Rules of Procedure – Enactments regulating the procedure in Courts are usually construed as imperative, even where the observance of the formalities in question is not a condition exacted from the party seeking the benefit of the statute, but a duty imposed on a Court or public officer when no general inconvenience or injustice seems to call for a different construction.?
Order 17 Rule 16(2) of the 2006

Rules of Practice and Procedure is couched in mandatory language if the appellants had any genuine interest in the disputed property they would had any genuine interest in the Will. The express intention of the Rules Maker is that in an originating summons all counter-claims should be set out in the counter-affidavit to be determined once and for all in order to avoid the proliferation of proceedings. Order 17 Rule 16(2) of the Rules have complied with the provisions of the Rules. The absence of compliance in an originating summons with the provisions of Order 17 Rule 16(2) may be evidence that the appellants had no claim nor interest in the property subject-matter of the Will. It would seem to me that where a party did not counter-claim the property subject of the Will, such a party may have an herculean task in bringing a separate action when that should have been done in the counter-affidavit in opposition to the originating summons. That is the clear intention of the lawmaker in Order 17 Rule 16(2) of the Anambra State High Court (Civil Procedure) Rules 2006.

?The first question to ask in this appeal is; did the late Madam Henrietta Obianwu confer

any rights or benefits on the respondents and the appellants in her last Will? Secondly, are the rights in dispute which required the Court below to construe the last Will and make any declaration appropriate in favour of the respondents or the appellants?

The last Will of Madam Henrietta Obianwu has to be constructed and interpreted to see whether the testatrix conferred any rights or interests on the respondents and the appellants or any other person, body or authority which are in dispute that required the Court below to make any declaration either in favour of the respondents or the appellants. Paragraphs 5-10 of the affidavit of Emmanuel Ikem Obianwu is very clear that the Will of late Madam Henrietta Obianwu did not bequeath any property to the appellants or their deceased father. This I find to be true in the last Will. The last Will reads as follows;
?The Last Will of Madam Henrietta Nnoyem Obianwu (Exhibit ?A?) is at pages 16 – 17 of the printed record as follows; ?THIS IS THE LAST WILL AND TESTAMENT OF HENRIETTA NNOYEM OBIANWU (MRS) RESIDING AT NO. 9, OKOLO STREET ONITSHA IN ONITSHA LOCAL GOVERNMENT AREA, ANAMBRA

STATE OF THE FEDERAL REPUBLIC OF NIGERIA. I hereby revoke all other Wills and testamentary dispositions at any time heretofore made by me. And I declare this to be my only Will.
I appoint Augustine Obieze of Odajo village a Staff Nurse in the General Hospital Onitsha, at present residing at Agusiobo Lane/Benjamin Street, Onitsha to be an Executor, and my daughter Agnes Nwanyiuzo Obianwu residing at No. 9, Okolo Street, American Quarters, to be an Executrix of this my Will. I declare that both shall be the two executors of this my Will.
I direct the said Executor and the said Executrix of this my Will to pay all my just debts, funeral and testamentary expenses as soon as both shall find it convenient to do so after my decease.
I direct that both my said Executor and my said Executrix shall pay all bequeaths and legacies hereinafter made by me in this my Will.
I give and bequeath the sum of N500.00 (Five Hundred Naira) only in Nigerian currency cash from my estate to my daughter Flora Ifenu Obianwu. To her, my said daughter Flora Ifenu Obianwu I also give and bequeath my gold chain.
I give and bequeath to my grandson Ifeanyi Obianwu the

sum of N300.00 (Three Hundred Naira) only in Nigerian currency cash from my estate.
I give, devein and bequeath to my daughter Agnes Nwanyiuzo Obianwu my building and landed property known as and being No. 8, Old Market Road, Onitsha absolutely.
I give, devein and bequeath to my granddaughter Stella Omunwanyi Agusiobo absolutely my building and landed property known as No. 76, Zik?s Avenue, on Plot 10, Block 43, Fegge Layout, Onitsha.
I give, devein and bequeath to Emmanuel Obianwu and Andrew Obianwu in equal shares one portion of unbuilt Plot at No. 9, Okolo Street as per Plan No. 1671/76. The said unbuilt Plot has already been shown physically by me to the two legacies aforementioned.
I hereby revoke the gift of my house at No. 9, Okolo Street Onitsha, together with the building Plan thereof which made by me to my grandson Ifeanyi Obianwu, and in his name. The said Ifeanyi Obianwu should now on no account and under no circumstances whatever be construed as my heir or successor under any instrument whatsoever.
I also hereby revoke both the gift of an Indentors dated the 9-4-1980 executed by the Okposieke Family of Onitsha in my

favour, as their Kola Tenant, and the promise by me to give the said property of mine situate at No. 9, Okolo Street, Onitsha together with its premises to my said grandson Ifeanyi Obianwu. Having now revoked the said gift all documents relating thereto which documents are at presents in the possession of my said grandson, (Ifeanyi Obianwu aforementioned), are hereby declared as void and I hereby still pronounce same as void in all material particular and for any purpose whatsoever.
I give and bequeath to my granddaughter Chinyelu Okwuoga my long bead chain, five sovereigns, one gold necklace with bangles to match, one Indian bangles and one gold ring.
I give and bequeath all other property of mine not mentioned hereinbefore whether such or same be realty or personality (including any other jewelery and household furniture of mine anywhere) all to my daughter Agnes Nwanyizo Obianwu and her daughter Stella Omunwanyi Agusiobo.
I give, devein and bequeath any residue or my estate whatsoever not otherwise disposed of hereinbefore as well as all properties of mine whatsoever not mentioned hereinbefore in this my Will whether same be realty or

personality to which I am or may hereafter become entitled, or which at present is or is not in my possession or which may accrue later by reversion jointly with any one of otherwise, all absolutely to both my daughter Agnes Nwanyiuzo Obianwu and my granddaughter Stella Omunwanyi Agusiobo (both aforementioned) to share equally as both of them may deem fit.
And I further declare this my Will to be irrevocable.
In witness whereof, I the said Henrietta Nnonyem Obianwu (Mrs.) have to this my Will set my hand this 30th day of October, in the year of our Lord 1982. Signed: Testatrix.
Signed and acknowledged by the said Henrietta Nnonyem Obianwu (Mrs.) as her Last Will in the presence of both being present at the same time, who at her request, in her presence and I the presence of each other are hereunto witnesses:
1. Name: Enoch Ugwuegbu
Occupation: Prophet
Address: 30, New Cementry Road, Onitsha.
2. Name: Varist Egbuchi Umeogu
Occupation: Trading
Address: Plot 9, New Nkisi, G.R.A Onitsha.
Certified True Copy. Signed: P. N. Onukwugi, for Probate Registrar.?

A careful examination of the Last Will of

Madam Henrietta Nnoyem Obianwu (Exhibit ?A?) shows that it had remained unchallenged for the past 32 years, long after it was admitted into probate by the executrix to the Will. No one sets out to prove what has not been denied. See Olale v. Ekwelendu (1989) 7 SCNJ (pt. 2) 62 at 102. The 1st respondent swore that late Madam Henrietta Obianwu bought the property in the 1930s from the Okposieke family the ?superior landlords and original owners of the area?. The testatrix bequeathed nothing in her last Will to the appellants. The appellants did not discharge the onus of proving their interests in the last Will of the testatrix in the Court below, hence were unable or did not seek for a declaration of their rights as ?persons interested? in the last Will of the testatrix. But if the appellants had shown how their interests had arisen under the last Will they ought to have taken advantage of the provisions of Order 17 Rule 16(2) in their counter-affidavit to seek a declaration of their rights as ?persons interested? or as ?beneficiaries? etc in the last Will of the testatrix.
?A ?person

interested? in a Will under con may be an heir or one who is entitled to have derived any benefit(s) from the last Will who was however erroneously or wrongly excluded, in this case, by the testatrix in her last Will. Such a person may invoke the provisions of Order 3 Rule 5 and 17 Rule 16(2) of the Rules to be joined as a ?person interested? or as a beneficiary, etc in the benefits arising from the Will, if not already a defendant in the originating summons. In that case, the person interested or the beneficiary will raise a defence in the counter-claim and seek declaratory remedies from the Court to protect his rights arising from a construction of the Will. The purport of Order 17 Rule 16(2) of the Rules is to counter the facts and documentary exhibits the respondents may rely upon to initiate the originating summons. This is set out in Order 3 Rule 8(2)(a)-(c) of the 2006 Rules as follows;
?8(2) An originating summons shall be accompanied by:-
a) an affidavit setting out the facts relied upon,
b) all the exhibits to be relied upon,
c) a written address in support of the application.?
?This is

clear evidence that the Rules Giver/Maker anticipated that the facts in the affidavit including the documentary exhibits a party intends to support the originating summons may be disputed by the defendants in the originating summons hence the Rules Giver/Maker made provision to cover the situation under Order 17 Rules 16(2) of the Rules. The procedure set down in the Rules for any defendant(s) or persons interested in the Will should be adopted to contest the declarations of the party that initiated the originating summons. Order 3 Rule 6 of the Rules comes into play where a party or parties are ?claiming any legal or equitable right(s)? and the question for determination would be whether he is entitled to the right depends upon a question of construction of an enactment?. That is when the person(s) may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed. The respondents were not claiming any rights – legal or equitable under any enactment as defined in Section 37(1) of the Interpretation Act Cap. 123 hence the provisions do not cover the questions

they submitted to the Court below for adjudication.
The respondents founded their claims on the last Will of the testatrix on the grounds they are the only beneficiaries the testatrix conferred rights and benefits to the exclusion of the appellants. The claims are supported by the contents of the last Will of Madam Henrietta Obianwu the sub-jecter in dispute in the Court below and in this Court. The appellants claimed no legal or equitable interests or defences in the last Will of the testatrix. In Okpaloka & Ors. v. Umeh & Anor. (1976) 2 FNLR 189, Obaseki Ag. JSC held at page 201 as follows:
?These defences which are equitable remedies are open only to those who have no title in law to the land they occupy but have had undisturbed possession over a considerable length of time.?
His Lordship further held at page 203 as follows:
?Where an absolute owner of land brought an action for trespass against a person alleged to be in possession, all that the owner had to prove was his title and an intention to regain possession (Portland Managements v. Harte (1976) 1 All E.R. 225 at 229, Danford v. McAnnulty (1883) App.

Cas. 456 at 462).
When trespassers knowingly and unlawfully take possession of lands the defence of laches is not available to them or their successors in interests who persist in the continuance of the original trespass. (Nwakobi v. Nzekwu) (1961) 1 All NLR 445.
Reasonable bona fide action is the sine qua non of the grant of equitable relief.?
The purpose of a sworn affidavit is to provide evidence to prove a fact in dispute. What is not denied in an affidavit by way of a counter-affidavit is deemed admitted. What is to be denied is usually set out in a counter affidavit. See Banque De?L Afrique Occidental v. Alhaji Baba Sharfadi & Ors. (1963) NWLR 12; In re Odutola (2002) FWLR (pt. 119) 1624 at 1633; Iyama v. FMBN(1999) 13 NWLR (pt. 634) 178 at 188 and Akuma Industries Ltd. v. Ayman Enterprises Ltd. (1999) 13 NWLR (pt. 634) 68 at 88. In Bamaiyi v. The State (2001) FWLR (pt. 46) 956, Uwaifo JSC held at page 978 par. ?G? – ?H? as follows: ?An affidavit for use in Court stands as evidence and must as near as possible, conform to oral evidence admissible in Court.?
In proceedings

commenced by a writ of summons followed with pleadings, once a Court declines jurisdiction, the proceedings are usually struck out. See Ajayi v. Odunsi (1959) 4 FSC 189 and Fasakin v. Shosanya (2006) 4 SCNJ 229 at 240. But in an originating summons, if the Court declines jurisdiction, the remedy is for the learned trial to ?make any such Orders as he deems fit? – See Order 3 Rule 7 of the Rules. The superior Courts have however held that originating summons should not be resorted to if there are facts in dispute. Some superior Courts have held on appeal that the Court below should have ordered pleadings. See NBN & Ors. v. Alakija & Ors. (1978) 9 & 10 S.C. 59; Doherty v. Doherty (1968) NML 241; Akunnia v. Attorney-General of Anambra State (1977) 5 S.C. 161 at 177; Ejura v. Idris (2006) ALL FWLR (pt. 318) 646 at 663, par. ?E? to ?H?; Osuagwu v. Emezie (1998) 12 NWLR (pt. 579) 640 and Olumide v. Ajayi (1997) 8 NWLR (pt. 517) 443. A party seeking that the contents of a Will should be construed or interpreted and given effect to may not know or anticipate that the Will would be in contest unless the proceedings are

initiated and there is a counter-will or there are counter affidavit and perhaps supported by documentary exhibits. Section 128(1) – (3) of the Evidence Act, 2011 reads as follows;
?128(1) When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given or such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act, nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.
Provided that any of the following matters may be proved:-
a) Fraud, intimidation, illegality, want of due execution, the fact that it is wrongly dated, existence or want or failure, of consideration, mistake in fact or law; want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract, or any other matter

which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating to it;
b) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them;
c) The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property;
d) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property;
e) Any usage or custom by which incidents not expressly mentioned in any contract are annexed to contracts of that description, unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of the contract.
(2) Oral evidence of a transaction is not excluded by the fact that a

documentary memorandum of it was made, if such memorandum was not intended to have legal effect as a contract, grant or disposition of property.
(3) Oral evidence of the existence of a legal relationship is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on.?
Ordering pleadings when a learned trial Judge declines to interprete or construe a Will under the originating summons procedure is not provided in Order 3 Rules 5 – 8 of the Anambra State High Court Civil Procedure Rules 2006. It is not within the province of a learned counsel or an appellate Court to determine what order a learned trial Judge should make if jurisdiction to hear any claim under the originating summons procedure is declined. Order 1 Rule 1(1) of the Rules shows that the High Court Civil Procedure Rules 2006 came into effect on 1-10-2006. The respondents initiated the originating summons in the Court below on 7-5-2015. The relevant law applicable to a cause of action is that which was in force at the time the cause of action

arose. See Utih v. Onoyivwe(1991) 1 SCNJ 25 at 45; Uwaifo v. Attorney-General of Bendel State (1989) 7 S.C. 124; Attorney-General v. Dosunmu (1989) 3 NWLR (pt. 111) 552 and Aminu Are v. Attorney-General (1960) 5 FSC 111 at 112. My humble opinion is that the provisions of Order 3 Rules 5 – 8 of the Rules are to be construed without a blind adherence to previous authorities or decisions. Argument should be tailored in line with the express intention of the Rules Maker. In Odu v. The State (1965) NMLR 129, Brett JSC held at pages 131-132 as follows:
?As regards the specimen signature card and the paying-in-slip, the trial judge held that they ?came within the principle of the cases in which it has been held that the use of a pretended name of a fictitious person amounts to forgery?, and he referred to the case of Anne Lewis (1) having previously entered into a lengthy examination of what constitutes forgery at common law. With respect, we think that the most profitable approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself, and that decisions on the common law are only of value where the

wording of the Code is obscure or capable of bearing more than one meaning, when they may be referring to for the purpose of ascertaining the sense in which words are used in the Code. Under Section 465 of the Code forgery consists of making a false document or writing, knowing it to be false and with the necessary intent, and Section 464 defines a false document or writing as including one of which ?the whole or any material part purports to be made by or on behalf of some person who does not in fact exist.? In this case the appellant presented the two documents as having been made by himself, and the fact that he did so under a false name does not mean that the document purported to be made by some person who did not exist. The officials of the Bank of West Africa at Uyo knew that the person with whom they were dealing was the appellant, even if they did not know his true name, and the documents did not purport to be made by or on behalf of anyone but the appellant. The convictions on these two counts also set aside.?
Bello JSC (as he was) might have had the above decision in mind where his Lordship held in Nwobodo v. Onoh (1984) ALL

NLR 1 at page 13 that;
?I think, I may end this part of my judgment with this observation. In the application of the provisions of a statute to a particular case, a Court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the Court in order to ascertain whether the two statutes are in pari material. It is only when the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other.?
In Maxwell On The Interpretation of Statutes, 12th edition by P. St. J. Langan appears the following passage at page 33:
?It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: ?It is a strong thing to read into an Act of Parliament words which are not there, and in the

absence of clear necessity it is a wrong thing to do?. ?We are not entitled?, said Lord Loreburn L.C., ?to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself?. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.?
Order 3 Rule 1 of the Rules provides that;
?(1) Subject to the provisions of these rules or any applicable law requiring any proceedings to be begun otherwise than by writ, a writ of summons shall be the form of commencing all proceedings:
a) where a Plaintiff claims:
i. any relief or remedy for any civil wrong, or
ii. damages for breach of duty, whether contractual, statutory or otherwise, or
iii. damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property.
b) where the claim is based on or includes an allegation of fraud, or
c) where an interested person claims a

declaration.?
The construction or interpretation of the contents of a Will is omitted from the provisions of Order 3 Rule 1(a)-(c) of the Rules. The express mention of one or two or more things in a provision of a rule or statute expressly excludes those not mentioned or omitted. See Udoh v. Orthopedic Hospitals Management (1993) 7 SCNJ (pt. 2) 436 at 443 per Karibi-Whyte JSC; Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (pt. 118) 646 and Military Governor of Ondo State v. Adewunmi(1988) 3 NWLR (pt. 82) 280.
The High Court Civil Procedure Rules of Anambra State 2006 guides Civil Proceedings in the Court below. It is not within the province of the parties or the Court to embark on a procedure not provided under the Constitution, a Statute or the Rules of Practice and Procedure. Order 1 Rule 1(3) – (4) of the Rules provides as follows;
?1(3) These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such causes and matters.
(4) Application of these Rules shall be directed towards the achievement of a just efficient and speedy dispensation of

justice.?
When a learned trial Judge declines jurisdiction not to interprete or construe a Will under the originating procedure and orders pleadings this defeats the provisions of Order 1 Rule (4) of the Rules of the Court regarding the achievement of a just, efficient and speedy dispensation of justice between the parties or the beneficiaries of the Will. However, the learned trial Judge did not decline jurisdiction but proceeded with the hearing and determination of the questions submitted to the Court below for construction. Construction of statutes, deeds, wills, etc is defined interalia as ?the act or process of interpreting or explaining the sense or intention of a writing (usu. A Constitution, statute, or instrument); the ascertainment of a document?s meaning in accordance with judicial standards?. See Black?s Law Dictionary, 9th edition, p. 355. The meaning of what the testatrix willed has to be interpreted or constructed and given effect to.

Paragraphs 1-13 of the affidavit of Emmanuel Ikem Obianwu, the 1st Plaintiff and now the 1st Respondent in this appeal is as follows;
?1. That

I am the 1st Plaintiff in this case and have the full consent of the rest of the Plaintiffs who are co-beneficiaries in the Will to swear to this affidavit being conversant with the facts thereof.
2. That we the Plaintiffs are the surviving beneficiaries of No. 9, Okolo Street, Onitsha subject of the Last Will and testament of late Madam Henrietta Obianwu who died in February 1983 and was buried on 5th April 1983.
3. That the 3rd Plaintiff is the surviving heir to late Madam Agnes Agusiobo, the beneficiary to the residual interest created by the Will of late Madam Henrietta Nnonyem Obianwu.
4. That late Madam Henrietta Nnonyem Obianwu left behind a Will dated 30-10-1982, was read on the 25-5-1983 and proved on the 16-2-1984 by the late executrix Mrs. Agnes Agusiobo in which she made specific grants of her properties both real and chattel to named beneficiaries including us directly and through residuary grant in her Will. A certified copy of the Will is hereby Annexed and Marked Exhibit ?A?.
5. That late Madam Henrietta Nnonyem Obianwu owned the following properties in her lifetime and which she disposed through her Last

Will; No. 3, Old Market Road, Onitsha, No. 76, Ziks Avenue Fegge, Onitsha and No. 9, Okolo Street, American Quarters, Onitsha as specified in her Last Will.
6. That no mention was made of late Alphonsus Obianwu, nor any of the Defendants who are his male children in the said Will.
7. That after the official unsealing of the Will and No. 9, Okolo Street was devised to us the Plaintiffs as a specific grant and residual gift, I and the 2nd Plaintiff on the advice of our mother, Madam Eunice C. Obianwu invited Alphonsus Obianwu with his family who was then a tenant at the residence of one Byron Maduegbunam at No. 26B Isiokwe Road to move into part of No. 9, Okolo Street, rent free as an act of goodwill.
8. That late Alphonsus Obianwu engaged the service of one Charles Ubaka Obianwu who then used his Toyota vehicle with which he runs commercial taxi in Onitsha, to assist him in conveying his household property from Isikowe Road, Onitsha to 9, Okolo Street, Onitsha where the 1st and 2nd Plaintiffs showed him one parlour and 2 bedrooms and actually assisted him to move his property to the apartment against the vehement opposition of late Madam Agnes

N. Agusiobo a co-beneficiary and executor to the Will of her mother Madam Henrietta Obianwu and who also was the residual beneficiary to the Will.
9. That the apartment showed to late Alphonsus was till the demise of Madam Henrietta Obianwu occupied by a tenant of late Henrietta Obianwu, Mr. Sunday Azukaego Chukwuma, who was asked by I and the 2nd Plaintiffs in the presence of some members of the family to evacuate their property for the purposes of using the same, to lay Madam Henrietta in state, since she lived upstairs in her life time and put rent paying tenants in the other apartments.
10. That No. 9, Okolo Street was acquired from the Okposieke Family by late Madam Henrietta Obianwu in the 1930s and the Okposieke family is the superior landlords and original owners of the area referred to as American Quarters which included Okolo Street, where the property in issue situates, they operate cola tenancy system and deal with their land purchasers as kola tenants.
11. That I and the 2nd Plaintiff who are over 50 years of age each are the last 2 children out of 5 of Madam Eunice Chukwudi Obianwu the younger mate of Madam Henrietta Obianwu whose

husband was late John Ebokosia Obianwu.
12. That late Madam Henrietta Obianwu who died at the age of 81 in 1983 was a famous and successful ile merchant with the U.A.C Nig. Ltd. and had landed properties as she itemized and distributed in her unchallenged Will of 32 years long admitted into probate by the executor to the Will.
13. That Madam Eunice Chukwudi Obianwu had lived with her senior mate, late Madam Henrietta Nnonyem Obianwu, the testatrix, since the acquisition of No. 9, Okolo Street, Onitsha from the Okposieke Family of Ogbolieke Village Onitsha, the original owners of the area known as American Quarters, Onitsha from the time it was a thatched house, through the period part of it was sold to one late Joseph Njelita by the testatrix up to the time the thatched house gave way for a bungalow in the mid 1940s, before it was eventually remodeled and refashioned into a storey building being its present state.?

The right of a testatrix to acquire and own property which at death the estate may be the subject of a Will was recognized by the Privy Council in Fatoyinbo & Ors. v. Williams & Ors. Privy Council Judgments (1841 –

1973) by Olisa Chukura, SAN, Lord Hodson set out the facts at pages 736 to 737 as follows;
?This is an appeal by special leave from a judgment of the Federal Supreme Court of Nigeria (Jibowu, Acting F.C.J, Nageon de Lestang, F.J. and Hubbard, Acting F.J.) allowing the Respondents? appeal from a judgment of the High Court of Lagos (Jobling, J.). The Appellants claim and Jobling, J. held, that they are jointly with the Respondents owners of property situate at 42 and 44 Ereko Street, Lagos. The Respondents claim to be the sole owners of that property and their contention was upheld by the Federal Supreme Court, who accordingly dismissed the claim of the Appellants. This appeal raises a question of pedigree and relates to the devolution under Native Law and Custom of the property which was formerly owned by a woman named Opoola, she having derived her title from a Crown grant. On Opoola?s death in 1885 the property devolved on her surviving children if more than one in equal shares. She had without question two children, Aina, who died in 1933 and Oniyoku, who predeceased her without issue. The Appellants are the surviving children of

Buraimah Fatoyinbo who died in 1912 and are the grandchildren of Dada who died in 1896, and the question is whether, as the Appellants claim, Dada was a child of Opoola and a sister of Aina. The Respondents are the only surviving children of Aina?s son Sanni who died in 1921.?
Having analyzed the fact Lord Hodson held as follows;
?As might be expected, a body of oral evidence was called on behalf of each side directed to family history and tradition based to a great extent on hearsay. Jobling, J., having heard this evidence, found it too contradictory to be relied upon but reached his conclusion in favour of the Appellants by inferences which he drew from documents and by reliance upon an admission made by the first Respondent at the trial to the effect that on one occasion he received an amount of 175 as rent of the property and paid 87 10s. 0d. (half of it) to the first Appellant. The Federal Supreme Court was of opinion that the oral evidence given on behalf of the Respondents was more direct than that given by the Appellants and further that the inferences to be drawn from other evidence, principally documentary

evidence, carried more weight in favour of the Respondents than in favour of the Appellants and accordingly allowed the appeal. As the Federal Court pointed out, the learned trial Judge did not in coming to his decision rely on the advantages of having seen and heard the witnesses and it was open to the Appellate Court to examine all the evidence and decide for itself whether the relationship claimed was established. It is unnecessary to refer in detail to the oral evidence of family history since the trial Judge?s failure to assess this in favour of one party or the other cannot be criticized. Their Lordships are of opinion that there is little to choose between the witnesses on both sides so far as direct evidence of relationship is concerned, although, as the Federal Court said, one witness that for the Respondents, Kasali Ipakodo, testified that he knew Opoola herself, that she had two children, Aina and Oniyoku, and that Dada was not a daughter of Opoola but of Opoola?s sister Efunte. If the Appellants? case depended on evidence directed to relationship, they failed to prove it and the substantial matter for consideration is whether the

other evidence in the case leads to a conclusion in favour of the Appellants. First there was produced a deed of gift made in January 1914, between Aina and her son Sanni, wherein it was recited that Opo (i.e. Opoola) died in 1885 leaving her surviving Oniyoku and Aina her children and that Oniyoku had since died leaving Aina his sister surviving him. This statement in the recital to the deed made over forty years ago before any dispute arose strongly supports the Respondents. The deed is a formal one professionally prepared and the only explanation put forward in support of the view that the recital was false, in that Dada?s name was wrongly omitted, rests on the assumption that the deed of gift which was made in favour of Sanni to enable him to raise money by mortgaging the property never had any practical effect and that it mattered not that the recital was untrue since Dada?s issue never suffered any loss or were intended to be injured whereas if Dada had been named, in view of the minority of her grandchildren, of whom the first Appellant, the eldest, was only twelve years of age, it would have complicated the transaction or made it impossible

to carry out. This explanation is based largely on conjecture and there is no sufficient reason to draw the inference that the recital in the deed of gift should be regarded as false. Their Lordships agree with the observations of the Federal Court as to the other matters which were thought by Jobling, J. to support the Appellants? claim.?
Lord Hodson upon a further examination of the oral and documentary exhibits finally held at page 738 thus:
?Accordingly their Lordships are of opinion that the other evidence adduced on behalf of the Appellants including such admissions as can be extracted from the Respondents? own witnesses do not advance the claim of the Appellants, which must fail for want of proof. For these reasons, their Lordships will humbly advise Her Majesty that the appeal ought to be dismissed. The Appellants must pay the costs of the appeal.?
There is no evidence in the Court below that the Native Law and Custom of the parties precludes or prohibits a married woman from acquiring property which she will bequeath to her offspring in a Will. The unchallenged evidence is that late Madam Henrietta

Obianwu acquired the property in dispute from Okposieke family of Ogbolieke village Onitsha, Anambra State under a kola tenancy arrangement. In Augustine Udensi v. Alice Mogbo (Nee Udensi) (1976) 2 FWLR 150, Idigbe JSC explained the meaning of ?kola tenancy? practiced among the Ibos of Onitsha at pages 150 to 151 as follows;
?1. Kola tenancy in the main has the features of most customary tenancies; it creates a landlord and tenant relation between the parties to it and it is certainly more than a mere occupational licence which confers no interest in land. Like most customary tenancies, kola tenancy, confers on the grantee full rights of possession, but confers no more than mere possessory right, i.e. a right of occupation by the tenant.
2. Once it is admitted that property (or a parcel of land) is held under kola tenancy, the one thing which the holder cannot do under customary law is absolute or entire alienation.
3. Kola tenancy (under the Mgbelekeke family customary law) is inheritable by the children of the deceased kola tenant, no matter the sex, but only upon production by the succeeding child, and acceptance by the

Mgbelekeke family, of further kola.?

Chinedu Obianwu (3rd Appellant) however swore in paragraphs 1-14 of the counter-affidavit as follows;
?1. That I am the 3rd Defendant on record.
2. That I have the consent of the other Defendants to depose to this Counter-affidavit to the Affidavit in support of the originating summons deposed to by the 1st Plaintiff on record in this suit.
3. That I have read the originating summons and other processes served on the Defendants, including me, by the Plaintiffs in this suit, and I state that all the facts as deposed to in the affidavit in support of the originating summons, except for paragraphs 3, 4, 11, 12 and 13 which are true to some extent, the facts as deposed therein are all false and in answer the Defendants through the Deponent herein answer as follows
4. That the 1st Defendant is the first son of late Mrs. Mary Igweike who was married to our father late Mr. Alphonso Obianwu.
5. That the said late Mrs. Mary Igweike left her matrimonial home and remarried to Mr. Vincent Igweike.
6. The 2nd, 3rd and 4th Defendants are the children of late Mr. Alphonso

Obianwu born to him by late Mrs. Patricia Obianwu, the other children include; Ngozi Obianwu and Ifeanyi Obianwu.
7. That John Ebokosia Obianwu got married to the following wives in order of seniority:
a) Madam Henrietta Obianwu who bore him two female children – Mrs. Agnes Agusiobo and Miss Flora Obianwu.
b) Mrs. Chineze Obianwu who bore him Mr. Alphonso Obianwu.
8. That the 1st and 2nd Plaintiffs are not the children of late Mr. John Ebokosia. Their mother is Eunice Chukwudi who was a house help to late Madam Henrietta. The said Eunice Chukwudi was not married to John Ebokosia but was staying with Madam Henrietta Obianwu as a house help. Eunice Chukwudi was brought as a house help to Madam Henrietta Obianwu in 1942. John Ebokosia Obianwu died in 1932 and has never set his eyes on the said Chukwudi Eunice. Eunice Chukwudi was never married to John Ebokosia Obianwu and has never set her eyes on him. The said Chukwudi Eunice could not have been married to late Mr. John Ebokosia Obianwu as it is against Onitsha Native Law and Custom for a woman to be married to a dead person.
9. That the 3rd Plaintiff is the granddaughter of late Madam

Agnes Nwanyiuzo Agusiobo the Executrix and beneficiary in the purported Will, the daughter of Stella Omunwanyi Okwuosa, the great granddaughter to the late Madam Henrietta Obianwu.
10. That the late Madam Henrietta Obianwu died on Saturday 5th of March 1983 and was buried on the 9th of April, 1983 and not on the dates stated by the Plaintiffs. The order of burial service of late Madam Henrietta is hereby attached and marked as exhibit ?A?.
11. That the existence of the purported Will of late Madam Henrietta Obianwu was not known to late Mr. Alphonso Obianwu and the said Will was not read before the family members. The letter written to the 1st and 2nd Plaintiffs was only signed by the Executrix Madam Agnes Agusiobo without the signature of the 2nd Executor who was alive at the time the letter was issued.
12. That the late Madam Henrietta Obianwu never had a property situated at No. 9, Okolo Street, American Quarters, Onitsha and the 1st and 2nd Plaintiffs did not help the late Mr. Alphonso Obianwu eject any tenant on the property. The ejection of the tenant was done by Mr. Alphonso Obianwu aided by Ononenyi William Obianwu.
13.

That the property situate at No. 9, Okolo Street, American Quarters, Onitsha belonged to late John Ebokosia Obianwu who is the father of Mr. Alphonso Obianwu. In the last page of the ?Order of Burial Service of late Madam Henrietta Obianwu, in the first paragraph, it was acknowledged that No. 9, Okolo Street, Onitsha belonged to the husband, late John Ebokosia Obianwu.
14. That late John Ebokosia Obianwu had an elder brother who is also late, called Abraham Odiakosa Obianwu.?

A counter-affidavit is ?An affidavit made to contradict and oppose another affidavit? – See Black?s Law Dictionary, 9th edition, page 67. The Counter-affidavit of Chinedu Obianwu admitted that late Henrietta Nnonyem Obianwu left behind a Will dated 30-10-1982 which was read on the 25th day of May 1983 and proved on the 16th day of February 1984 by the late executrix Mrs. Agnes Agusiola O. The witness deposed in paragraphs 3-4 and 11-13 of the affidavit that these facts are true to some extent – See paragraph 3 of the counter-affidavit. Paragraph 30 of the Counter-affidavit of Chinedu Obianwu is very instructive;<br< p=””

</br<

?30. That late Mr. Alphonso Obianwu only moved back to the property situate at No. 9, Okolo Street, Onitsha after the death of late Madam Henrietta Obianwu on his own accord and not that anybody, including the 1st and 2nd Plaintiffs, persuaded him to do so and occupies the major and central space and or rooms on the property.?

This is an admission that late Mr. Alphonso Obianwu was not in occupation or possession of the property in dispute during the lifetime of late Madam Henrietta Obianwu but moved in only after her demise. Paragraph 30 of the counter-affidavit supports paragraph 7 of the affidavit of Emmanuel Ikem Obianwu in regard to the originating summons. Thus it is the testatrix that was in possession/occupation of No. 9, Okolo Street till her death. The appellants swore in paragraphs 15-18 of the counter-affidavit as follows;
?15. That late Abraham Odiakosa Obianwu, the brother of late John Ebokosia Obianwu bought the property later known as No. 9, Okolo Street, American Quarters, Onitsha in the name of his brother, late Mr. John Ebokosia Obianwu.
16. That the said property was bought in the name of late John

Ebokosia Obianwu in good faith by late Abraham Odiakosa Obianwu due to the increasing population of their family, that is, the family of late John Ebokosia and Abraham Odiakosa Obianwu as they were living together.
17. That before the property was bought, they, that is, late Abraham Odiakosa Obianwu and late John Ebokosia Obianwu were both living at No. 26, Egerton Road, Onitsha with their families.
18. That when the property at No. 26, Egerton was shared, the family did not give late Mr. Alphonso Obianwu a share in the property as they told him that he inherited No. 9, Okolo Street, American Quarters from his father that is late John Ebokosia Obianwu. A copy of the sworn Affidavit of Obianwu Family History by Ononenyi W. N. Obianwu is hereby attached as exhibit ?B1?. The sworn Affidavit of the Obianwu Family History sworn to by Ezennia M. D. Obianwu is hereby attached and marked as exhibit ?B2?.

There is no evidence in the counter-affidavit from whom the late Abraham Odiakosa Obianwu bought the property in dispute. The fact that late Madam Henrietta Obianwu bought the property from the Okposieke family of Onitsha in the

1930s remains unchallenged. What then is a counter-claim and its purpose? A ?counter-claim? is defined in Osborn?s Concise Law Dictionary, 9th edition, page 109:
?A response by the defendant to a claim who alleges in his defence a claim, relief or remedy against the Claimant, instead of bringing a separate action. A counter-claim may also be made against any other person who is liable to him together with the Claimant in respect of the counter-claim or the original subject matter of the action, see Part 20, CPR 1998. Accordingly a counter-claim is often referred to as a Part 20 claim?.
In Black?s Law Dictionary, 9th edition, page 402, a counter-claim is also defined as:
?Counterclaim:- A claim for relief asserted against an opposing party after an original claim has been made; especially, a defendant?s claim in opposition to or as a setoff against the plaintiff?s claim. Also termed counteraction; countersuit; cross-demand?
?Under (Fed. R. Civ. P.) Rule 13 the Court has broad discretion to allow claims to be joined in order to expedite the resolution of all controversies

between the parties in one suit. Rule 13(c) specifically provides that the counterclaimant is not limited by recovery sought by the opposing party but may claim relief in excess of that amount. Further, the general legal rule is that it is immaterial whether a counterclaim is legal or equitable for purposes of determining whether it properly is brought under Rule 13? The expectation is that this liberal joinder policy will further the elimination of circuity of action and multiple litigation.? 6 Charles Alan Wright et al., Federal Practice and Procedure, paragraph 1403, at 15-16 (2nd edition, 1990).?

If the appellant?s claim is that the property in dispute was that of late John Ebokosia Obianwu, but not Madam Henrietta Obianwu the testatrix, that is a counter-claim. The logical conclusion is that the appellants would have asked for reliefs or remedies against the respondents showing how their interest arose in the property.

?The respondents did not foist this originating summons on Order 3 Rule 6 of the High Court of Anambra State (Civil Procedure) Rules, 2006. The Rule provides as follows;
?6. Any person

claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed?.

What is a ?Will A ?will? is defined in Osborn?s Concise Law Dictionary, 9th edition page 410 as follows:
?Will:- A disposition or declaration by which the person making it (the testator) provides for the distribution or administration of property after his death. It is effective on death and is therefore revocable by him up until death.
The testator must be 18 years or over and have mental capacity to make a will. The testator must also have the intention to make that particular will. To be valid a will must in ordinary cases comply with the formal requirements of the Wills Act, 1837 as amended. The will must be in writing, signed by the testator (or some one else in his presence and by his direction), and be attested by two witnesses (the signature must be either made or acknowledged

by the testator in the presence of the two witnesses present at the same time). A devise or bequest to an attesting witness, or to his or her wife or husband, does not affect the validity of the will, but the gift is void (Wills Act, 1837), S.15). See ATTESTATION CLAUSE.
However, a privileged will (a nuncupative will) can be made without formality and whatever the age of the testator (by a soldier or seaman on active service (see the Wills (Soldiers and Seamen) Act, 1918 and the Navy and Marines (Wills) Act, 1953))?
A will may be revoked by: (a) a later will; (b) destruction, burning or tearing by the testator, or by some person in his presence and by his direction, with the intention of revoking it (Wills Act, 1837, S.20); (c) marriage (ibid, Section 18), unless the will is expressed to be made in contemplation of marriage; (d) dissolution or annulment of marriage. The Wills Act, 1837, Section 18, as amended revokes a gift to a former spouse and treats as omitted an appointment of a former spouse as an executor
A ?Will? is not an ?enactment?.

An ?enactment? means ?any provision of an

act or subsidiary instrument?. A ?subsidiary instrument? means ?any order, rules, regulations, rules? of Court or bye-laws made either before or after the commencement of this Act in exercise of powers conferred by an Act?. See Section 37(1) of the Interpretation Act Cap. 123 Laws of the Federation of Nigeria 2004. When this dispute arose, the Appellants instituted an action against the Respondents before the Traditional Court of the Obi-In-Council holden at Ime Obi, Ezechima Square, Onitsha on Wednesday, 9th June 2010 in suit No. TC/54/2010. The determination of the Traditional Court is at pages 94-95 of the printed record as follows;
?PROSECUTOR: Chinyelugo E.C. Anierobi -Ogbo-So-Achi-Ani
1. SUBJECT MATTER: The subject matter centered on the contention between the Plaintiffs and Defendants over the burial arrangements of late Elder Alphonso Chukwurah Obianwu taking place at No. 9, Okolo Street, American Quarters, Onitsha, on June 12, 2010.
4. JUDGMENT
4B. RULING: After exhaustive deliberation on the above case and careful evaluation of the facts placed before Ime-Obi, including written and

oral presentations from both the Plaintiffs and the Defendants, Obi-in-Council ruled as follows;
a) That it is highly commendable that the Obianwu Family was so magnanimous as to provide late Elder Alphonso Chukwarah Obianwu refuge at No. 9, Okolo Street, American Quarters, Onitsha where he lived with his family since 1984 until his demise on April 17, 2010;
b) That in the circumstance, the Plaintiffs should proceed to seek for written permission from the Defendants, the owners of the property, so as to perform the burial obsequies of their late father at No. 9, Okolo Street, Onitsha, giving whatever required undertaking including refraining from ever laying claims to the said property;
c) That the Defendants, Mr. Emmanuel Obianwu and Barr. Andrew Obianwu should extend the same measure of magnanimity to the Plaintiffs now that their father/husband has passed on; and
d) That the Defendants should feel free to assist the Plaintiffs, Okey Obianwu and four (4) others in the said burial obsequies, as much as possible, or in any other way, provided that they are of good conduct/behavior.
The above represents a true and certified record

of this section of the proceedings, the entire write-up under preparation would be ready later.
Signed: Chief (Prof.) E. Ngozi Okafo C.Chem.
JUDGES PRESENT
Sections 15, 57 and 59 of the Evidence Act, 2004 provides as follows:
?15. Relevant facts as to how matter alleged to be custom understood: Every fact is deemed to be relevant which tends to show how in particular instances a matter alleged to be a custom was understood and acted upon by persons then interested.
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57. Opinions of experts:
1) When the Court has to form an opinion upon a point of ?, native law or custom, ?the opinions upon that point of persons specially skilled in such?, native law or custom?, are relevant facts.
2) Such persons are called experts.
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59. Opinions as to Native Law and Custom: In deciding questions of native law and custom, the opinions of native chiefs or other persons having special knowledge of native law and custom? are relevant?.

?The proceedings were of the Traditional Council of 9-6-2004 which favoured the respondents

are relevant admissible under the provisions of Sections 15, 57 and 59 of the Evidence Act, 2004. Sections 45, 46, 49, 50, 54 and 64 of the Evidence Act, 2004 further provides as follows;
?45. Family or communal tradition in land cases: Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.
46. Acts of possession and enjoyment of land: Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done
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49. Previous judgment relevant to bar a second suit or trial: The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.
50. Relevancy of certain judgments in certain jurisdiction:
1) A final judgment, ?of a competent Court, in the exercise of

probate?, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such persons to any such thing, is relevant.
2) Such judgment, order or decree is conclusive proof-
a. that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
b. that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
c. that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and
d. that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or declares that it had been or should be his property.

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54. Judgment conclusive of facts forming ground of judgment: Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.
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64. Opinion on relationship, when relevant: When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings for a divorce or in a petition for damages against an adulterer or in a prosecution for bigamy?.

It does not matter when the appellants became aware of the Will. They are not beneficiaries to the estate created by the last Will of the testatrix

hence the time they became aware is not of any significant importance. The appellants did not disparage paragraph 4 of the affidavit of Emmanuel Ikem Obianwu, one of the beneficiaries named in the last Will that it was read on 25-5-1983 and proved on 16-2-1984 by the late executrix Mrs. Agnes Agusiobo and there has not been a challenge to the Will or publication since 25-5-83 or 16-2-84. What is not denied is deemed admitted. Sections 70-71(2)(a)-(b) of the Law confers jurisdiction on the High Court or a Magistrate Court to entertain suits relating to probate or administration of any estate subject to general or customary law as follows;
?70(1) The High Court shall have and exercise jurisdiction in accordance with this Law for the grant of probate or administration of any estate whether the estate would otherwise be subject to the general law or to customary law.
(2) A Magistrate?s Court shall have and exercise jurisdiction under this Law for the grant of administration in respect of any estate which is subject to customary law regarding distribution of estates: Provided that such jurisdiction shall be within the limits prescribed

by the Magistrate?s Court Law.
71. Where a person dies intestate with regard to his estate or part of it, the provisions of this Section shall apply to determine what law shall govern succession thereto:-
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(2) Where the property concerned is land or interest in land and is situated within this State, and also where the property, wherever situated, is other than land or interest in land, then:-
a) if the deceased in his lifetime was subject to customary law and married in accordance with customary law only, the law applicable shall be the customary law applying to the deceased;
b) if the deceased in his lifetime was subject to customary law and died without marrying, the law applicable shall be the customary law applying to the deceased;
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(3) For the purposes of this Section –
a) every citizen of Nigeria shall be presumed to be subject to customary law unless the contrary is proved;
b) a purported marriage in accordance with any law shall be deemed to be a marriage in accordance with that law;
c) ?customary law? shall include Islamic law

of all sects and schools.
(4) Nothing in this Section shall be construed to affect any disposition of property made by Will?.

The appellants chose to have the dispute as to the ownership of the property at No. 9, Okolo Street, Onitsha subject of the last Will of the testatrix determined by the Traditional Court-In-Council. This is permitted under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The provisions reads as;
?36(1) In the determination of his civil rights and
obligations?, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality?.
The Traditional Court-In-Council is equivalent to any ?other tribunal? within the meaning of Section 36(1) of the Constitution. Why should the appellants not be bound by the decision of the Traditional Court of Obi-In-Council delivered on Wednesday 9th June, 2010 and rendered in favour of the respondents? No cogent reasons were adduced in the Court below and in this Court. Where the

parties are natives nothing prevents them in agreeing to have their disputes determined according to Native Law and Custom, and this can be done orally. In Oline & Ors. v. Obodo & Ors. (1958) 3 FSC 84, the learned counsel to the Defendants/Appellants argued at page 86 as follows:
?Counsel for the Defendants/Appellants (5-8) has also submitted that no arbitration was held by Mr. Lawrence and that if there was an agreement between the parties to submit the dispute to an arbitrator, the agreement should have been in writing as it related to land and that the Statute of Frauds should apply?.
Quashie-Idun Ag. F.J., held at page 87 as follows;
?As to the contention on behalf of the Appellants that no arbitration was held, it is submitted that the Arbitration Ordinance Cap. 13 applies and that written submissions should have been made by the parties. I do not agree. Counsel, however, conceded that there may be a binding oral agreement to arbitrate under Native Law and Custom. There can be no doubt that, that is so. The parties are natives and there was nothing to prevent them agreeing to have their dispute settled in

accordance with Native Custom. There was evidence before the Court that although the parties did not send written submissions to Mr. Lawrence they agreed orally that Mr. Lawrence should settle their dispute by arbitration and that the award of Mr. Lawrence should bind the parties. This evidence was accepted by the learned trial Judge. It is also submitted that Mr. Lawrence should have recorded evidence which was given at the arbitration. In my view, this was not necessary. The representatives of the parties were present on the land and Mr. Lawrence heard what they had to say and which enabled him to assess on the land the amounts of the rents the parties were entitled to as their shares. It is true that although in the Statement of Claim the Plaintiffs averred that the parties by writing submitted the dispute to an arbitrator, the Plaintiffs gave evidence that the submission was made orally. There was no objection on behalf of the Defendants. The Defendants, therefore, were aware of the nature of the arbitration which the Plaintiffs relied upon on the claim.
As to the submission that the agreement to submit the dispute to arbitration should have been in

writing by virtue of the Statute of Fraud, it is sufficient to say that the Statute of Frauds was not pleaded and that it is not available to the Defendants. (See Emily Malomo and Other V. E. J. Olushola and Others (1)). In the case of Opanin Asong Kwasi and Others V. Joseph Richard Obuadang Larbi (2), Privy Council Judgment, it was held that where the parties submitted their dispute for settlement by arbitration in accordance with Native Customary Law and one party withdrew from the arbitration before it was completed the award of the arbitration was nevertheless binding on all the parties. In the present case, there is a finding of fact against the Appellants that they attended the arbitration and that they agreed to be bound by the award of the arbitrator. The judgment of the learned Chief Justice is supported by the evidence and these appeals are dismissed with costs assessed at 28 guineas?.

The effect of a voluntary submission of a dispute to traditional arbitration was again explained in Kobina Foli v. Ahene Obeng Akese (1930) 1 WACA 1 by Deane C.J., at pages 2-3 as follows;
?Before doing so, however, it will be as well to consider

first the principles by which the Court should be guided I setting aside the award of an arbitrator whose decision it has been agreed shall be final. These may be summed up in the statement that in submissions to arbitration the general rule is that as the parties choose their own arbitrator to be the Judge in the disputes between them, they cannot when the award is good on its face, object to his decision, either upon the law or the facts. In Fuller V. Fenwick (1846) 16 L.J. C.P. 79 where it was sought to set aside an award Maule, J. stated: ?if this case had gone on, in the usual course the law would have been determined by a Judge and the facts by a jury. The parties have thought fit to withdraw the case from this form of trial and have thought that an arbitrator was more proper to decide matters of fact than a jury and could more conveniently dispose of matters of law than a Judge on account of the expense of contesting before a Court an intricate point of law. The Courts therefore treat a reference as an agreement by the parties to leave matters both of law and fact to be arbitrator and to consider his award final unless there is something upon the

face of it which is inconsistent – In Montgomery Jones & Co. and Liebenthal, In re (1898) 78 L.T. 406 C.A. Smith L.J. said: ?I for my part have always understood the general rule to be that parties took their arbitrators for better or for worse both as to decisions of fact and decisions of law. That is clearly the law?. Now in this case, there had been a long standing dispute as to the ownership of this piece of land, judgment had been given so long ago as 1923 in Ashanti but had not reached the Full Court for review until 1928; there it had been seen that the matters could not be decided finally on the materials before the Court and therefore on the application of the parties, the Court had agreed instead of sending the matters back before a Tribunal before which litigants have not the right to appear by counsel to render skilled assistance in the unraveling of the intricacies of these cases and which therefore must inevitably be handicapped in every way from giving a reasonable decision within a reasonable time to spare one of its own Judges who commanded the confidence of both sides to act as an arbitrator to give a final decision on a

matter in which it was of the utmost importance that a speedy and proper settlement should be arrived at. The rule of law therefore which prohibits the Court from interfering unless there is some error apparent on the face of the award will be seen to be of great importance in this case and this Court will not interfere to set it aside unless such error is clearly apparent?.
In Anjoku v. Nnamani 14 WACA 357, Verity C.J. held at pages 358 to 360 as follows;
?Exception is taken to all these findings in the grounds of appeal but the principal argument of counsel for the Appellants is that the decision of the District Officer is not a judicial decision in judicial proceedings and cannot therefore operate as an estoppels ?per rem judicatam? in subsequent judicial proceedings. Before entering upon an examination of this contention, I think it desirable to make clear both the position of the parties in relation to the inquiry and the purpose and intention of the legislature as expressed in the Ordinance under which the inquiry was held. It is clear from the record that the parties to the initial proceedings in the Native Courts, to

the inquiry and to the present proceedings are ?tribes? within the meaning of the Ordinance, for Section 2 provides that the expression ?tribe includes a sub-tribe, clan of a tribe?and the inhabitants of a village? and the parties to this dispute are admittedly one or the other, clan or village. Apart from the short title to the Ordinance, ?The Inter-Tribal Boundaries Settlement Ordinance?, Section 3 thereof provides that:- ?Any District Officer may, with the approval of the Resident in charge of the province, inquiry into and decide any dispute between two or more tribes as to the boundaries between the lands of such tribes?. The decision arrived at by the District Officer is referred to in Sections 4 and 5 as a ?settlement? of the dispute. His decision is subject to review by the Resident and the Lieutenant-Governor is also empowered to review the proceedings either before the District Officer or the Resident. Section 9 provides that the Director Officer or Resident shall have all the powers of a Magistrate in connection with any civil cause in respect of enforcing the attendance of witnesses

and compelling the production of documents. Section 10 provides that any decision or order given on an inquiry or review shall be recorded in writing and shall be registered and preserved by the Resident, while Section 11 provides that any person acting in disregard or defiance of any such order shall be liable to penalties. Now in the present case, it is clear that a dispute had arisen between the two ?tribes? represented by the Plaintiffs and Defendants respectively as to the boundaries between their lands, that the District Officer decided this dispute and settled it by fixing the boundary, that this decision was reviewed by the Resident and by the Chief Commissioner (now Lieutenant-Governor) at the instance of the present Plaintiffs and in each case the boundary settled by the District Officer was affirmed. It is this dispute that the Plaintiffs sought to bring before the Supreme Court, for it is in my view beyond doubt that when a dispute arises between two tribes as to the boundary between their communal lands and this boundary is settled under statutory authority, an attempt by either tribe to secure a declaration that their communal land

lies the other side of the boundary so fixed raises in substance the identical issue as that which has been so settled. It is indeed the original dispute raised in another form. It is difficult for me to conceive that the legislature intended to set up elaborate machinery for the settlement of such disputes if either party thereto, after having availed themselves of all means open to them under the Ordinance to secure a decision, were to be at liberty then to have recourse to the Courts in the hope of securing a judicial decision at variance with that solemnly recorded and registered by statutory authority. Counsel for the Appellants has contended that nevertheless the acts of the District Officer and, presumably, the Resident and Chief Commissioner, are administrative and not judicial and that, therefore, their decisions are not judicial decisions in judicial proceedings and cannot support a plea of res judicata. It would appear to follow from this contention that if the legislature intended that a decision under this Ordinance should be a bar to subsequent proceedings in the Courts it would have so enacted in unmistakable terms. In this connection, Mr.

Ibekwe for the Appellants, drew a distinction between a judicial decision in judicial proceedings, and an administrative decision arrived at in accordance with judicial principles, basing his argument upon a statement in Spencer Bower on Res Judicata, a -book which I agree is entitled to respect. It is a nice distinction but I do not think that it avails in respect of the proceedings of a statutory authority set up for the purpose and with the plain intent of deciding disputes. The short answer is, indeed, to be found in the words of the learned author of the work cited to us by counsel, Spencer Bower on the Doctrine of Res Judicata (1st Edition) at p. 16. ?Every domestic forum, that is to say:- ?any arbitrator or arbitrators or other persons or body of persons?who may be vested with judicial authority to hear and determine a particular dispute or class of dispute by consent of the disputants or by an order of the Court or by a provision of a statute, is undoubtedly a ?judicial tribunal and its awards are as conclusive and unimpeachable as the decisions of any of the constituted Courts of the realm?. There is no doubt in my

mind that a District Officer acting under Section 3 of the Inter-Tribal Boundary Settlement Ordinance is a person vested with judicial authority to hear and determine a class of disputes by the provisions of a statute and that when so acting he is a judicial tribunal and his decision, subject to the rights of review thereof provided by the statute, is conclusive upon the issue so determined by him. There is equally no doubt in my mind that the Plaintiffs in the present action are seeking to question a decision which is conclusive and that the learned Judge was right in holding that the matter being res judicata the Court was precluded from entertaining it?.
In Larbi & Ors. v. Kwasi & Ors. 13 WACA 81, Blackall P. held at page 82 that:
?It appears from the record that during the proceedings in the Native Court ?B? the case was adjourned, and the parties attended before what is described as arbitration panel of elders. The first question for this Court to decide is whether those proceedings amounted to an arbitration and whether the parties were bound by the award. As to this, a perusal of the proceedings satisfies me

that this was not a mere negotiation for a settlement, it was a formal arbitration. It was contended, however, by Mr. Akufo-Addo for the Respondents that the award was not binding under native customary law because at a certain stage, i.e. when the arbitrators went to inspect the land, the Defendants refused to point out their boundaries and withdrew from the proceedings. Now, the general principle governing arbitrations is well known, and it is set out, inter alia in the case of Omanhene Kobina Foli v. Ohene Obeng Akese (1). In that case Deane, C.J. said:- in submission to arbitration the general rule is that as the parties choose their own arbitrator to be the Judge in the disputes between them, they cannot when the award is good on its face, object to his decision, either upon the law or the facts?. I might also refer to the case of Ekua Ayafie v. Kwamina Banyea (2), where it was held that where matters in difference between two parties are investigated at a meeting, and in accordance with customary law and general usage, a decision is given, it is binding on the parties and the Supreme Court will enforce such decision. In that case

Bailey, C.J. said:- after the arbitration was concluded, Defendant objected to the award, because it was against him. The Plaintiff, no doubt, would have objected had the award been but this way?. But notwithstanding that object, the Court held the award was a good one Mr. Akufo-Addo suggests that this case is distinguishable from the present one because the Fanti law does not exactly agree in detail with Akan law. That is no doubt true, but the general principles of native customary law are based on reason and good sense and it would take a lot to convince me that Akan customary law is so repugnant to good sense as to allow the losing party to reject the decision of arbitrators to whom he had previously agreed?.
The Privy Council affirmed the decision in Larbi & Ors. v. Kwasi 13 WACA 76, Lord Normand held at pages 77-78 as follows;
?It was then ?mutually agreed upon by both parties to submit the dispute to arbitration by a panel of Elders of Apapam?. The arbitration Court comprised eleven persons of whom four were Stool Holders. The sum of five shillings was paid by Opanin Adu, one of the Stool

Holders, as an adjournment fee and the sum of sixteen shillings was paid by each of the parties to signify their consent to refer the matter to the arbitrators. The Court then adjourned the case. The arbitration proceedings also are fully described in the ?Findings of Special Arbitration? which is subscribed by ?Opanyin Kwami Ayim, President, Arbitration Panel of Apapam Elders?. It is a formal document setting out the proceedings with great clearness and considerable detail. It appears from it that the case was duly called for hearing on the 5th November 1947, when both parties were present. Every effort was made by the arbitrators to give each side the fullest opportunity to state its case thoroughly and to call witnesses. There are findings which summarize the evidence with comments upon the value of some of the testimony offered. The document then states that after hearing all the relevant statements on both sides and their witnesses and thoroughly satisfying themselves through cross-examinations, the arbitrators decided to send messengers to view the land under dispute. Both parties were asked to pay an advance of 12, which

they paid. The messengers were appointed and a date for viewing the land was fixed and both parties were asked to meet the messengers on the spot and agreed to do so. The viewing party met both parties on the land but the Appellants refused to show their boundaries. The Respondent on the other hand took the party to the land and pointed out the boundaries. After viewing the land, the messengers instructed both parties to appear before the arbitrators at Apapam on the 18th November 1947. At this sitting of the arbitrators the Respondent was present but the Appellants absented themselves and sent a letter intimating their decision to dissociate themselves from the arbitration and demanding a refund of the 12 advanced by them. It is not clear whether this sum was in fact refunded but their Lordships do not consider that this is a material point. The arbitrators considered the questions before them. After a long discussion they decided ?to break the last minute deadlock created by the Defendants (the Appellants) to brush aside their objections and to proceed with the case?. They then gave their decision in favour of the Respondent?.<br< p=””

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Lord Normand finally held at pages 79-80 to wit;
?Their Lordships agree with the finding of the Court of Appeal that the proceedings before the Elders were of the nature of an arbitration and not merely of a negotiation for a settlement. The reasons can be briefly stated. The suggestion that the case should be brought before the Elders came, not from the parties themselves, but from the representatives of the Odikro, and the parties gave their consent. In native customary law, the Elders have a recognized judicial function and are in fact a tribunal before which natives can bring their disputes for judicial decision. (Danquah, Akan Laws and Customs, pp. 83 ff). It seems to their Lordships improbable that the intervention of the Odikro and the Elders was for the purpose of aiding a settlement by negotiation rather than for the purpose of discharging a judicial function in the form of an arbitration. Secondly, the proceedings before the Elders, as narrated in their findings, have no resemblance to negotiations for a settlement but have all the marks of a well conducted formal arbitration. Thirdly, the Native Court ?B? when the case again

came before it treated the award as an award in an arbitration and acted upon it by giving judgment in accordance with it. They knew how and with what intention the proceedings had originated and they could not honestly have acted as they did if the proceedings had been for the purpose of facilitating a settlement. The fact that the case was adjourned is not in their Lordships? opinion inconsistent with this view of the proceedings, it was indeed appropriate to adjourn rather than to strike out the action if only because the arbitration proceedings might for one reason or another have aborted. No authority was cited to support the Appellants? contention that it is incompetent for the Native Court to adjourn with the consent of parties in order to allow the dispute to be determined by arbitration, and it would be unfortunate if so convenient a procedure were prohibited. Other criticisms of the procedure of the Court were submitted by Counsel for the Appellants. It was said that if the proceedings were of the nature of an arbitration, the Court ought not to have given judgment conform to the award, but ought at that stage at latest to have struck out

the action leaving to the Respondent the right to raise another action to enforce the award. Their Lordships are of opinion that there is no substance in this argument. The Native Court had authority under Regulation 40 of the Procedure Regulations of Native Courts made under Section 70 of the Native Courts (Colony) Ordinance, 1944 to make in its discretion any order within its powers and jurisdiction which it considered necessary for doing justice. The order made in the present case was an order within the Court?s powers and jurisdiction in an action for enforcement and under Regulation 40 the Court could competently pronounce the order in the pending case since that would at once do justice and avoid multiplicity of actions. It was further said that the Court had refused to hear witnesses before giving judgment and that such a refusal might have resulted in shutting out objections to the award, as ultra fines compromissi or as being vitiated by the improper conduct of the arbitration which could have been stated and heard in an independent action to enforce the award. The answer to this is that there never has been and there is not now any suggestion

that the arbitrators either exceeded the powers committed to them or acted otherwise than with exemplary probity. It objections of that sort had been stated it would of course have been the duty of the Court to entertain them and to receive evidence in support of them, and there is no reason to suppose that they would have refused to do so. They did in fact hear a technical objection to the award, that no record had been made of the arbitration proceedings. These objections failed because evidence was immediately given that the minutes had in fact been recorded. Had other and more fundamental objections been put forward they would no doubt have been heard. But it was not the duty of the Court to hear evidence which had been or which ought to have been led before the arbitrators. All this is, of course, on the assumption that there was no right to resile from the arbitration before the award was made. If there is such a right, it is clear that the Appellants intended to exercise it and intimated their withdrawal from the arbitration proceedings to their opponent and to the arbitrators. The question is whether the native customary law recognizes such a right. It

is established that there is no such right after the award is made (Ekua Ayafie and Kwamina Banyea (1); Kuturka Yardom and Kurankyi Minta III (2), but there is no authority on the question of the right to resile before the award. There is in the judgment of this Board in Abotohe Kponuglo and Adja Kodadja (3) a single sentence which, divorced from its con, appears to support the Appellants? proposition. But in that case, as appears from the judgment of the Supreme Court, there had been no binding arbitration, and no more than an attempt to arrive at a settlement. Moreover there was evidence that the alleged arbitrators had so conducted themselves that the party who claimed to have resiled would have had a plain right to do so even in an arbitration. Further the proceedings such as they were, had in the end proved abortive. Considered in the light of these circumstances the observation founded on by the Appellants affords no support to their contention. No positive assistance is to be found in any of the judgments in the present case but it is difficult to believe that if the right to resile exists it should not have been mentioned by any of the Judges

in any of the Courts. Since it is established that the parties gave their consent to the submission of the dispute to the Elders without any express reservation of a right to resile, and since there is certainly no right to resile after the award is made, it is for the Appellants to satisfy the Board that a right so contrary to the basic conception of arbitration is recognized by native customary law. In this they have failed. Their Lordships will therefore humbly advise Her Majesty that the appeal should be dismissed. As the argument on Section 3 of the Native Court (Colony) Ordinance, 1944 took only an insignificant part of the time occupied by the hearing, the Appellants must bear the costs of the appeal. Appeal dismissed?.
The purpose the parties brought the dispute to the Traditional Court is of great importance. SeeInyang v. Essien (1957) 2 FSC 39.
?The appellants initiated the proceedings in the Traditional Court of the Obi-In-Council. They did not resile from the proceedings till the dispute was finally determined in favour of the respondents by the Traditional Council. No law has been cited to show that all the elders or chiefs

that determined the dispute must append their signatures to the determination of the Traditional Council to render the determination valid. In Nthah v. Bennieh (1930) 2 WACA 1, Lord Atkin held at pages 3-4 thus:
?By colonial legislation all suits relating to the ownership of land held under native tenure are placed within the exclusive original jurisdiction of native tribunals, unless satisfactory reason to the contrary is shown. It appears to their Lordships that decisions of the native tribunal on such matters which are peculiarly within their knowledge, arrived at after a fair hearing on relevant evidence, should not be disturbed without very clear proof that they are wrong, and their Lordships fail to find such proof in the present case. The Provincial Commissioner determined the case on the evidence before the trial Court and on further evidence taken in his Court. He also had a view of the land in question, but his survey was not as complete as that of the native tribunal. He also was accompanied for part of the journey by the litigants, and he records in his notes of his survey that both parties agreed that Kampuni lands extend down to the

sea.
Relying on this agreement the Commissioner in his judgment defined Kampuni lands as extending from the sea coast north-wards, and allowing the appeal, gave judgment that the lands as above described, belonged to the plaintiff.
Their Lordships cannot regard this extension of the boundaries in dispute as satisfactory. In view of the admission by the defendant, made definitely both in the native Court and before the Commissioner, that at the present time Bakanta and Ayansini belonged to the plaintiff, it seems probable that there has been some misunderstanding as to the admission; but in any case in view of the legislation referred to, it appears quite irregular to have extended the dispute so as to give the Commissioner on appeal, original jurisdiction over land which had never been in dispute before the native tribunal, and as to which there was no reason for interfering with their jurisdiction if the dispute had been raised before them. The unfortunate effect of this misunderstanding was that the Commissioner who relied for his decision upon his view of the effective occupation of the land in dispute, took into account the occupation of the

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littoral as to which the defendant made no claim. Their Lordships are far from saying that the admitted ownership of the littoral was not evidence which the tribunal was entitled to take into account in considering proof of title to the ownership of the bush land north of the river; but it should not have been treated as admitted ownership and occupation of the land in dispute. The actual oral evidence before the Commissioner does not appear to have added anything of substantial value to what was given before the trial Court.
The Full Court were unable to find any reason for differing from the Commissioner?s view as to the weight of effective occupation. They do not appear to have had their attention drawn to the extension of the area in dispute to which their Lordships have already referred. In the result there appears to have been no sufficient reason for disturbing the decision of the native tribunal, which should be restored. As there appear to be other possible claimants to this land it may be advisable to state the obvious proposition that this judgment only determine the right between the plaintiff and the defendant.
Their Lordships

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will humbly advise His Majesty to allow the appeal and restore the judgment of the native tribunal, dated the 23rd October, 1923. The respondent must pay the costs of this appeal and of the appeals before the Provincial Commissioner and the Full Court.?
In Hagan & Ors. v. Adum & Ors. (1935) 5 WACA 35, the Native Tribunal had jurisdiction to hear and determine the dispute which related to the estate of late Thomas Hagan, a native who died at Winneba in the Central Province of what was then called Gold Coast on the 22-2-1932. Lord Thankerton set out the facts at page 35 to be as follows:
?The appellants are the brothers and sister of the deceased, and they were granted letters of administration of his personal estate by the Divisional Court of the said Province on the 22nd February, 1932. The respondents Effuah Adum and her children claim to be interested in the estate, both real and personal, as the domestic ?slave-wife? and children of the deceased. The respondents Araba Tanuah claims to be interested in the estate as the head of the family of the deceased. It is common ground that the succession to the estate falls

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to be determined according to the native customary law.?
The Native Tribunal heard the dispute and rendered its discretion in favour of the respondents. There followed series of litigations some of which purported to set aside the decision of the Native Tribunal. When the matter finally got to the Privy Council, Lord Thankerton held at page 40 as follows;
?Lastly, the appellants sought to have the judgment of the Native Tribunal reviewed on the merits by this Board, but their Lordships agree with the West African Court of Appeal that the judgment of the Native Tribunal is now final and binding on the appellants.?
Lord Thankerton finally held at page 41 that;
?The judgment of the Native Tribunal is therefore final and binding on the appellants, and it follows that the Court of Appeal were right in setting aside the judgment of the Divisional Court in suit ?B?, and in holding that the respondent Araba Tanuah had sufficient interest to entitle her to an accounting by the appellants, and in granting her the relief claimed by her.
The appeal, accordingly, fails as regards both suits, and their Lordships

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will humbly advise His Majesty that the appeal should be dismissed and that the judgments appealed against should be affirmed. The appellants will pay to the respondents their costs in the appeal.?

The learned trial Judge held at page 180 lines 15 to page 183 lines 1 to 12 of the printed record as follows;
?There is no dispute between the parties in respect of the Will made by Henrietta Nnonyem Obianwu. Both parties exhibited it to their respective affidavits. The Plaintiffs annexed it as ?Exhibit ?A? while the Defendants marked it ?Exhibit ?M?. The contents of the two exhibits are substantially the same. Both documents devised and bequeathed to the Plaintiffs in equal shares one portion of unbuilt plot No. 9, Okolo Street as per plan No. 1671/76?. The said Will was duly executed on 30-10-1982 and unsealed on 25-5-1983 after her death and admitted to probate on 16-2-1984. In the case of Odunewu v. Martins & 5 Ors. (2011) 8 NWLR (prt. 1250) 574 at 585 – 586, par. ?A?-?G?, it was held that no Will shall be valid unless (a) it is in writing, (b) it is signed by the

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testator or signed in his name by some other person in his presence and by his direction, in such place on the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature to the writing signed as his Will, (c) the testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time, (d) the witnesses attest and subscribe the Will in the presence of the testator but no form of attestation or publication shall be necessary. See also the case of Mrs. Foluke Mudasiru & 3 Ors. v. Ibrahim Abdullahi (2011) 7 NWLR (pt. 1247) 59 at 610 – 611, par. H.C. In the instant case, the Will is in writing and satisfied all the other requirements of a valid Will. The devises therein should therefore be respected unless there is any shown factor warranting its being set aside. However, a Will can only be set aside under the following grounds:- (a) fraud, (b) mental incapacity of the testator, or (c) undue influence. See Odutola & Ors. v. Mabogunje & Ors. (2013) 7 NWLR (pt. 1354) 522 at 562, par. ?C? – ?D?; Johnson v. Maja (1951) 13 WACA 290. In the

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instant case, the Defendants did not make any attempt to establish any of the above vitiating factors. That being the case, there is no basis to set the Will aside and the devises therein is subsisting and shall continue to be enjoyed by the beneficiaries. Section 22(2) of the Actions Law of Anambra State bars any action against an interest in land after 12 years from when such right accrued. The Will through which the Plaintiffs were vested with the property at No. 9, Okolo Street, Onitsha was unsealed in 1983. Twelve years from 1983 will be 1995. It therefore follows that the right of the Defendants to bring any action, in respect of any right (if any) that accrued to them pertaining to No. 9, Okolo Street or any other property covered by the Will abated in 1995. They cannot therefore bring any action in respect of whatever interest they may have over the said premises. This may be the reason they have not sued the Plaintiffs over the property ever since or counter claimed in this suit. Allied to the above is Section 162 of the Evidence Act, 2011. The said Section provides:- ?Recitals, statements and description of facts, matters and parties contained

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in Deeds, Instruments and Acts of the National Assembly or Statutory declarations 20 years old or more at the date of the contract in which such deed, instrument or other documents is sought to be relied upon shall unless and except so far as they be proved to be inaccurate, be taken to be sufficient evidence of such facts, matters and descriptions?. The said Will was made in 1982 and unsealed in 1983. That is about 33 years now. The Defendants have not proved the Will or the devises made therein to be inaccurate. They are therefore precluded from raising any issue against the document (Will) which is over 20 years old (precisely 33 years) at the time of raising this subtle challenge to it. The Defendants, by the doctrine of laches and acquiescence, cannot, at this point, question the right of the Plaintiffs over the property at No. 9, Okolo Street, American Quarters, Onitsha. See the view expressed by Lord Cranworth in the case of Ramsden v. Dyson L.R.H.L 129, 140, 141. As I have already held, the Plaintiffs by the provisions of Order 3 Rules 5 and 6 of the High Court (Civil Procedure) Rules, 2006 of Anambra State, can bring this suit under the

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Originating Summons as specifically provided for, being construction of a Will and declaration of interests bestowed by the Will. Having considered the affidavits in support and against the Originating Summons, the views expressed and the conclusions reached above, I am convinced that the Plaintiffs have placed sufficient materials before the Court to entitle them to all the reliefs contained in this Originating Summons. They have proved their case as required by law, i.e. on the preponderance of evidence. See Mogaji v. Odofin (1978) 4 SC 91; Adekunle v. Aremu (1998) INWLR (pt. 533) 208. The imaginary scale of justice weighs so much in favour of the Plaintiffs. The Plaintiffs are, therefore, entitled to judgment. I hereby give judgment in favour of the Plaintiffs. They are entitled to all the reliefs they sought from this Court. I hereby so order. Signed: M.N.O. Okonkwo (Judge): 5-5-16?.

In Johnson & Ors. v. Lawanson & Ors. (1971) 1 NMLR 380, Coker JSC held at page 381 held (8) and (9) as follows:
?8. For the future, the true implication of Section 129 of the Evidence Act is that a deed to be competent for the presumption

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contemplated must be 20 years old ?at the date of the contract? in respect of which the deed is sought to be relied upon, and not 20 years old at the date of the proceedings at which such a deed is being offered in evidence.
9. In the present case, the recital in the document, Exhibit ?M? carries no presumption in favour of the appellants, inasmuch as it is neither referred nor referable to any contract occurring at least 20 years after the date of its execution?.

Section 73(1) – (3) of the Administration and Succession (Estate of Deceased Persons) Law Cap. 4, the Revised Laws of Anambra State of Nigeria, 1991 further provides as follows;
?(1) Real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased to be held on trust for persons entitled thereto either on intestacy or by Will, subject to the payment therefrom in appropriate cases of the deceased person?s just debts, funeral and testamentary expenses.
(2) The

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personal representative for the time being of a deceased person shall be deemed in law to be his heirs and assigns within the meaning of all trusts and powers.
(3) The personal representatives shall be the representatives of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate?.

Sections 137(1) and 144 of the Law supra reads thus;
?137(1) Subject to this Part, it shall be lawful for any person to devise, bequeath or otherwise dispose of any disposable property which he shall be entitled to at the time of his death, or any part thereof, by a Will made in writing and executed in manner hereinafter prescribed. A Will made and executed in such manner shall be valid and binding on the estate of the testator.
XXXXXXXXXXXXXXXXXXXXXXXX
144. Every Will made in the manner hereinbefore required shall be valid without any other publication thereof?.

?In view of all what transpired in the Traditional Court, why should the Court below have embarked on an oral hearing under the coloration that there were conflicts in the

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affidavits and counter-affidavits of the parties as has been argued by the appellant?s learned counsel in this appeal? A Court ought to embark on oral hearing when the affidavit evidence on crucial facts are irreconcilable, for instance, when credibility of what the witnesses deposed in the affidavits are materially in conflict and difficult or impossible to reconcile. Sections 116 and 124 of the Evidence Act, 2011 reads;
?116 When there are before a Court affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponents of the affidavits and such other witnesses as may be called by the parties?.
XXXXXXXXXXXXXXXXX
124(1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is:-
a) common knowledge in the locality in which the proceeding is being held, or generally; or
b) capable of verification by reference to a document the authority of which cannot

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reasonably be-questioned.
(2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this Section refers, and shall take such knowledge into account.
(3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced?.
I see no rational reason to support the argument. But where the material conflicts on crucial issues can be resolved by reference to documentary exhibits, there would be no need for an oral hearing. See Nwosu v. Imo State Environmental Sanitation Authority & Ors. (1990) 4 SCNJ 97 at 115; Fashanu v. Adekoya (1974) 9 NSCC 327 at 331; Olujinle v. Adeagbo (1988) 2 NWLR (pt. 75) 238 at 253 and Ebba v. Ogodo (1984) 4 S.C. 84. A ?document? is defined in Section 258(1) of the Evidence Act, 2011 as follows:
?Documents? includes:-
a) books, maps, plans, graphs, drawings, photographs and also includes any matter expressed or described upon any

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substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;
b) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
c) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
d) any device by means of which information, is recorded, stored or retrievable including computer output?.
The crucial fact is that No. 9, Okolo Street, Onitsha was adjudged by the Traditional Court-In-Council at Onitsha on 9th June, 2010 to be the property of the respondents. It is not in dispute that a married woman can hold landed property and bequest same by Will.
The word ?conflict? means ?1. opposition between ideas or interests, 2. a struggle or battle? 3. To be incompatible (Latin Confligere to combat) conflicting

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adj.? See Collins Dictionary, 2009 edition, page 154. Section 116 of the Evidence Act 2011 is very clear. It is within the province of the learned trial Judge to determine whether the affidavits are irreconcilably in conflict on crucial facts in order to demand an oral hearing. Where they are not, there would be no need to embark on the luxury of an oral hearing. Moreover what is ?irreconcilable? and what are ?crucial facts? etc have not been defined by the legislature in the Evidence Act, 2011. The issue is left to the discretion of a learned trial Judge, seized with the proceedings to determine when the affidavits supported by documentary exhibits, are irreconcilable on crucial facts. This will be dependent on the nature of proceedings and the remedies in question. See Gleeson v. J. Wippel & Co. Ltd. (1977) 3 ALL E.R. 54 and Nwosu v. Imo State Environmental Sanitation Authority & Ors. (1990) 4 SCNJ 97 at 115. If the conflict is in relation to points of law there may not be any need to call for an oral hearing. See Oketie v. Olughor (1995) 5 SCNJ 217 at 230; Momah v. VAB Petroleum Inc. (2000) 2 S.C. 142 and Sanusi Bros

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(Nig) Ltd. v. Cotia Commercio Exportacao, etc (2000) 6 S.C. (pt. 3) 43. Where no serious contradiction exists in the affidavits, there will be no need for an oral hearing. See Odedeyi v. Odedeyi (2000) 2 S.C. 93. Sections 223-225 of the Evidence Act, 2011 sets out the purposes of examination-in-chief, cross-examination and re-examination of witnesses as follows;
?223 When a witness is cross-examined, he may, in addition to the question referred to in preceding Sections of this Part, be asked any question which tend to:-
a) test his accuracy, veracity or credibility; or
b) discover who he is and what is his position in life; or
c) shake his credit, by injuring his character;
Provided that a person charged with a criminal offence and being a witness may be cross-examined to the effect, and under the circumstances, described in Paragraph (c) of the proviso to Section 180 of this Act.
224(1) If any question permitted to be asked under Section 223 of this Act relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide

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whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it.
(2) In exercising its discretion, the Court shall have regard to the following considerations:-
a) Such question are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
b) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies; and
c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness?s character and the importance of his evidence.
(3) The Court may, if it deems fit, draw, from the refusal of the witness to answer, the inference that the answer if given would be unfavourable.
225. Any question

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referred to in Section 224 of this Act may not be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded?.
There is no need for a counter-affidavit where an applicant?s affidavit in support of an application or an originating summons is useless, self-contradictory or is lacking in credibility. See Royal Exchange Assurance v. Vaswani iles Industries Ltd. (1992) 2 SCNJ (pt. 2) 346 at 355, per Akpata JSC and Bank of Baroda v. Merchantile Bank Ltd. (1987) 3 NWLR (pt. 60) 233 at 240 & 242. What is ?irreconcilable is, if differences or disagreements are irreconcilable, ?they are so great that it is not possible to settle them?. And ?2. if an idea or opinion is irreconcilable with another, it is impossible for somebody to have both of them together? 3. People who are irreconcilable cannot be made to agree See Oxford Advanced Learners? Dictionary, 9th edition, page 833. ?Irreconcilable opinions, aims or disagreements are so opposed to each other that it is impossible to read an agreement?. See Macmillan

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English Dictionary for Advanced Learners, 2nd edition, page 801. Something that is ?crucial? is extremely important because it has a major effect on the result of something See MacMillan English Dictionary, etc page 355. What is crucial is ?extremely important, because it will affect other things See Oxford Advanced Learners? Dictionary, ante, p. 369. Critical or Crucial evidence is ?Evidence strong enough that its presence could tilt a juror?s mind?. This is also termed ?crucial evidence?. See Black?s Law Dictionary, 9th edition, page 646. ?Crucial Evidence? may also be that which is ?indispensable Evidence?, namely, it is ?Evidence without which a particular fact cannot be proved?. See Black?s Law Dictionary ante, p. 638. The same may be equated to ?relevant evidence?.
Admissibility of evidence is governed by its relevance. Relevance is determined by the purpose tendered by a party. See Musa Sadau v. State (1968) 1 ALL NLR 124 at 129; Agunbiade v. Sasegbon (1968) NMLR 223 at 226 and ACB Ltd. v.

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Alhaji Gwagwada (1994) 4 SCNJ (pt. 2) 268 at 277.
An oral hearing is to be embarked upon by a Court ?when there are before a Court affidavits that are irreconcilably in conflict on crucial facts See Section 116 of the Evidence Act, 2011. The mere fact that a defendant countered the facts the respondents relied upon in support of an originating summons is not enough to warrant a learned Judge to embark on oral hearing. The Rules Maker envisaged that the facts including the exhibits a claimant intends to use to support an originating summons may be countered by defendants or parties interested in the outcome of a proceedings in a counter or further affidavit hence the provisions of Order 17 Rules 16(1) and (2) of the Rules.

The crucial fact is that the property in dispute had been resolved by the Traditional Court-In-Council and the lower Court in favour of the respondents hence there are two concurrent findings of fact in favour of the appellants. In Atta Kwamin v. Kobina Kufuor, Privy Council Judgments (1841 – 1973) by Olisa Chukura SAN, 1980 edition, 97, Lord Kinnear held as follows;
?Their Lordships have seen no

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sufficient reason for disturbing the judgment in this case. It raises some questions of considerable difficulty. But the difficulties are occasioned by the obscurity of the facts, and the learned Judges below, from their familiarity with the customs and sentiment of the natives, have an advantage for dealing with the evidence which is wanting to this Committee. In such a case, it would not be consistent with an approved rule to reverse the concurrent judgments of two Courts, unless ?it be shown with absolute clearness?, to use the language of Lord Herschell, ?that some blunder or error is apparent in the way in which the learned Judges below have dealt with the facts?. It is true that Lord Herschell?s rule applies in terms to those cases only in which the judges have been unanimous; and one of the Judges of the Court of Appeal has dissented in the present case. But this ought not to detract from the weight which is due to the opinion of the majority on the matter of fact, since the dissent is not based on a different view of the evidence, which indeed the learned Judge has hardly considered, but upon grounds of law which their

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Lordships are unable to adopt?.
Again in Ometa v. Chief Dore Numa (1934) XI NLR 18, Lord Atkin set out the facts in dispute at page 18 as follows;
?This is an appeal from the Full Court of the Supreme Court of Nigeria who dismissed the present Appellant?s appeal from a judgment of Mr. Justice Webber in an action in which the Appellant was Plaintiff and the Respondents were Defendants. It was an action brought by the Plaintiff on behalf of a tribe or sub-tribe in that district of the Agbasa people claiming the territorial rights over land known as the Agbasa land in the Warri district of the Southern Province of Nigeria. The dispute was between the Plaintiff representing the Agbasa people and the Defendants representing another tribe or sub-tribe of the Jekri people claiming to be the overlords of this territory?.
Lord Atkin concluded at pages 18 – 19 as follows;
?The question was, as it appears to their Lordships, entirely a question of fact and a question depending upon the knowledge of tribal tenures and of the habits and customs of native people in relation to dealing with land. It was decided by both

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Courts in favour of the Defendants, and it appears to be a case peculiarly within the principle of the rule that their Lordships have laid down themselves, that as a general rule they will not interfere with concurrent findings of fact in cases of this description. There obviously was ample evidence upon which the learned Judge was entitled to find that the Plaintiff people came into this country which originally belonged to the Jekris some hundred years or so ago, and they throughout recognized the overlordship of the Defendants, and that on the other hand the Defendants throughout this period have exercised rights of ownership over the land and in particular from time to time have leased land to the Government. In pursuance of those leases buildings have been erected on the land which could not possibly have escaped the notice of the Plaintiff and his people, which leases have not in any way been complained of by the Plaintiff people. In these circumstances, there being concurrent findings of fact and there being in addition ample evidence to support them, it is quite impossible for their Lordships to interfere with the decisions which have been arrived at

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by both Courts, and their Lordships will therefore humbly advise His Majesty that this appeal should be dismissed. The Respondents must have the costs of the appeal?.
See also Nwuba Mora v. H.E. Nwalusi (1962) 1 ALL NLR (pt. 2) 675 per Lord Evershed in the Privy Council at page 681. The onus is on the appellants to show why the Court of Appeal should interfere with the verdict of the Court below. The powers of the Court of Appeal to interfere with the decision of a Court below is circumscribed by the provisions of Order 4 Rules 9(1) – (4) of the Court of Appeal Rules 2016 as follows:
?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with

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the finding or decision on any other question, and it if appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial –
a) substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;
b) reduce or increase the sum awarded by the Court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded. But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below?.

?Where it is contended that a learned trial Judge proceeded to determine the originating summons on conflicting affidavits, the

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onus is on the contender to show that ?some substantial wrong or miscarriage of justice has been thereby occasioned?. See Order 4 Rules 9(1)-(4) of the Rules. I am not satisfied that the learned trial Judge committed any wrong in his determination of the controversy under the originating summons proceedings. There is no miscarriage of justice to warrant this Court to interfere with the verdict in favour of the appellants. Rather, the respondents have shown why the appeal should be dismissed. I resolve all the issues for determination against the appellants. This appeal lacks merit and is dismissed. I award N100,000.00 cost against the appellants in favour of the respondents.

TOM SHAIBU YAKUBU, J.C.A.: My brother – JOSEPH TINE TUR, JCA, made available to me, the draft of his decision on this appeal. Upon my perusal of the pieces of evidence proffered and tendered at the trial High Court vis–vis the findings made there from, by the learned trial Judge at pages 180-183 of the record of appeal, I am in agreement with the conclusion reached in the lead judgment, to the effect that the appeal is devoid of

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merits. I too dismiss it, accordingly.

I subscribe to the order of costs contained in the lead judgment.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH TINE TUR, JCA. I agree with his reasoning and conclusion that this appeal lacks merit and is hereby dismissed. I abide by the consequential orders made therein.

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Appearances:

Chudi Obieze, Esq. with him, Uche Arah (Miss) and Precious Chudi (Miss)For Appellant(s)

C.C. Iwuchukwu, Esq. For the 1st and 3rd Respondents.
A.O. Obianwu, Esq. For the 2nd Respondent.For Respondent(s)

Appearances

Chudi Obieze, Esq. with him, Uche Arah (Miss) and Precious Chudi (Miss)For Appellant

AND

C.C. Iwuchukwu, Esq. For the 1st and 3rd Respondents.
A.O. Obianwu, Esq. For the 2nd Respondent.For Respondent

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