MRS EUCHARIA NWINYI & ORS V. MR. ANTHONY IKECHUKWU OKONKWO (2013)

MRS EUCHARIA NWINYI & ORS V. MR. ANTHONY IKECHUKWU OKONKWO

(2013)LCN/6115(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of April, 2013

CA/E/189/2008

RATIO

CUSTOMS: WHEN A CUSTOM CAN BE ADOPTED AS PART OF A LAW GOVERNING A PARTICULAR SET OF CIRCUMSTANCES

It has not been shown or even alleged that such a custom can be judicially noticed. Therefore, its existence can only be proved by evidence. S. 16(1) of the Evidence Act 2011 provides that a custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence. S.18(1) of the Evidence Act provides that where a custom cannot be established as one judicially noticed, it shall be proved as a fact. In KARREEM & ORS VS. OGUNDE & ANOR (1972) All NLR 75 or (1972) 1 SC 126 the Supreme Court applying similar provisions held that a custom or customary law could be proved or sustained if it is shown by facts given in evidence or judicially noticed.PER EMMANUEL AKOMAYE AGIM, J.C.A.

CUSTOM: BURDEN OF PROOF OF CUSTOMS

EXECUTOR DE SON TORT: DEFINITION

It is clear from the above restatement of the law on who is an executor de son tort that the factors that indicate that a person dealing or meddling with a property is an executor de son tort are:
(1) The property is owned by the another person.
(2) A person other than the owner of the property has meddled with it.
(3) The intermeddler has no legal authority to meddle with the property.
All these factors must exist before a person can be adjudged an executor de son tort. In the absence of any of these factors, then he cannot be correctly described as an executor de son tort. So I will now find out if these indicators exist in this case.PER EMMANUEL AKOMAYE AGIM, J.C.A.

RENT: COLLECTION OF RENT AS AN EXECUTOR DE SON TORT

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. MRS EUCHARIA NWINYI (NEE OKONKWO)
2. MR. EMEKA OKONKWO
3. MR. CHIZOBA OKONKWO
4. MR. CHINEDU OKONKWO
5. MRS CHINYERE NYAMA (NEE OKONKWO)
6. MR. NNAMDI OKONKWO
7. MRS. MAUREEN OKOLO (NEE OKONKWO) Appellant(s)

AND

MR. ANTHONY IKECHUKWU OKONKWO Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): Chief Reuben Nwoye Okonkwo, a native of Umudunu village Abagana in Njikoka Local Government Area of Anambra State died intestate on the 14th November 2001, survived by his only wife Mrs Comfort Okonkwo and the respondent and all the appellants, (his children by his said wife,) leaving behind an estate consisting many buildings at Onitsha and Abagana including his obi in his compound at Umudunu village and some chattels. His personal law was the Abagana native law and custom. Mrs Comfort Okonkwo died on 29th January, 2005.
The respondent, the first and eldest child of late Chief Reuben Nwoye Okonkwo (diokpala) instituted suit No. A/202/05 on the 21st July 2005 at Awka Judicial Division of Anambra State High Court against his siblings claiming for
(a) A declaration that the plaintiff is the first son of late Chief Reuben Nwoye Okonkwo who died intestate on the 14th day of November 2001.
(b) A declaration that under the Abagana native law and custom, the plaintiff by virtue of his position as the first son and head of family of late Chief Reuben Nwoye Okonkwo’s family, is entitled to inherit his late father’s compound at Umudunu village Abagana including his Obu and an empty plot of land known as Ana onye isi
(c) A declaration that the 1st, 5th and 7th defendants, being married women have no right of inheritance in their late father’s compound or partake in the sharing of their father’s properties under the Abagana native law and custom.
(d) A declaration that the 2nd, 3rd and 4th defendants have no customary right of inheritance within their late father’s compound as they are neither the first son or the last son.
(e) A declaration that the defendants excluding the 4th and 6th defendants are executors de-son-tort for intermeddling with the estate of their deceased father without legal authority.
(f) An order of court commanding the defendants excluding the 4th and 6th defendants to return all their late father’s properties including the two cars which they removed and sold without legal authority.
(g) A declaration that the purported sale or grant of parcels of land made by the defendants excluding the 4th and 6th defendants from their late father’s landed properties at Nkwelle Ezunaka, and 3-3 Nsugbe, are illegal, null, void and of no effect whatsoever.
(h) An order of court partitioning the entire estate of late Chief Ruben Nwoye Okonkwo excluding his residential building at Umudunu village Abagana which customarily belongs to the plaintiff, and all the defendants excluding the 1st, 5th & 7th defendants who are all married women.
(i) An order of perpetual injunction restraining the defendants from demanding and collecting further rents from all the tenants in their late father’s estate including the shops at the Onitsha main market and the buildings at Abagana until the determination of this suit.
(j) An order of court directing the defendants, except the 4th and 6th defendants to render account of all rents and monies collected from their late father’s estate from January 2002 up to date, and pay over to the plaintiff his own share.
(k) An order of court committing the defendants (except the 4th and 6th defendants) to prison, in the event of their failure to render such account.
Both sides exchanged pleadings and led evidence through several witnesses in support of their pleadings. On the 16th January 2008, the trial Court per M.I. Onochie J. entered judgment in the said suit in favour of the respondent herein granting the reliefs claimed in paragraphs 19(a), (d), (e), (f) and (i) of the amended statement of claim. It granted the relief in paragraph 19(c) of the said amended statement of claim for as long as 1st, 5th and 7th defendants live with their husbands. It granted the relief sought for in paragraph 19(j) of the said amended statement of claim subject to the qualification that the account to be rendered should run from the date of the death of the respondent’s mother. It granted the relief sought for in paragraph 19(h) but ordered that the estate be partitioned between the respondent, 2nd, 3rd, 4th and 6th appellants. The trial Court refused to grant the reliefs sought for in paragraph 19(b) and (g) of the amended statement of claim. It remained silent concerning the relief sought for in paragraph 19(k) of the amended statement of claim.
Dissatisfied with the above judgment of the trial Court, the appellants herein (who were defendants at the trial Court), commenced this appeal No. CA/E/189/2008 on the 21st February 2008 by filing a notice of appeal containing 7 grounds. The appeal is against the whole judgment. Both sides have filed, exchanged and adopted their briefs as their arguments in this appeal. The appellants filed an appellant’s brief and an appellant’s reply brief. The respondent filed a respondent’s brief.
The appellants in their brief of argument raised the following issues for determination:
1. Whether the learned trial judge was right when he preferred the evidence given by the plaintiff/respondent’s witnesses as to the custom of Abagana people to that given by the defendants/appellants witnesses on the issue that where a 1st son demands from the father an Ana obi (land for homestead) and same is granted him and he develops and packs into same in his father’s lifetime, he loses his right of inheriting the father’s compound?
2. Whether the learned trial judge was right to have failed to resolve the issue of whether the grant of land made to the plaintiff/respondent by his father, was for him to build a factory or Ana obi (land to build a residential house)?
3. Whether the learned trial judge was right when he resorted to guessing and thinking in determining whether the defendants/appellants have proved that the plaintiff/respondent was granted Ana obi by his father instead of making a finding?
4. Whether the learned trial judge was right when he found that the plaintiff/respondent was still entitled to inherit his father’s compound despite the grant of land made to him by the father?
5. Whether the learned trial judge was right when he held that the defendants/appellants are executors-de- son-tort?
6. Whether the learned trial judge evaluated or properly evaluated the evidence adduced and led before him by the parties?
7. Whether the judgment delivered by the learned trial judge was against the weight of evidence?
The respondent also raised several issues for determination as follows:
1. Whether the learned trial Judge has a discretion to prefer & rely on the evidence of the custom of the people of Abagana given by Respondent and his witnesses, as against the evidence of the appellants, based on the evidence of the parties adduced at the trial, on the issue of whether the 1st son or (Diokpala) of a man can inherit his father’s compound or obi upon the death of the father under Abagana native law and custom?
2. Based on the totality of the evidence led by the parties and their witnesses whether the appellants were able to establish that it is the custom of the people of Abagana for a man to make a grant of a land called Ana-obi to his 1st son during his life time, and that such a grant disentitles the 1st son from inheriting his father’s compound upon the death of the father?
3. Whether the appellants adduced any credible evidence at the trial to show that the term “ANA-OBI” in fact exists for a 1st son under Abagana native law and custom, and that the Respondent was indeed granted an Ana-obi by his late father, and that the said grant disentitled him (Respondent) from inheriting his father’s compound as the 1st son of their late father?
4. Whether the respondent as the 1st son of his late father can ever be granted a land called Ana-obi under Abagana native law and custom, or whether he is entitled to inherit his late father’s compound in line with their custom as borne out by the evidence adduced at the trial
5. Whether the appellants particularly the 2nd defendant/appellant interfered or intermeddled in the estate of their deceased father by collecting rents from the tenants of the estate, without obtaining letter of Administration?
6. Whether the findings of fact made by the learned trial Judge on all the issues raised in the pleadings in this matter, can be said to be perverse, or that the learned trial Judge did not perform his duty of evaluating the evidence adduced at the trial properly so as to warrant the intervention of this court?
7. Whether in all the circumstances of this case, this appeal ought not to be dismissed in its entirety, as being frivolous and lacking in merit?
Considering the judgment, the grounds of appeal, the issues raised for determination by both sides and the arguments of the issues, I prefer to couch the issues for determination thus:
1. whether the respondent was disentitled from the obi of their late father Chief Reuben Nwoye Okonkwo.
2. whether the trial Court was right to have held that the defendants/appellants are executors-de-son tort.
3. whether the trial court evaluated or properly evaluated the evidence before it and whether its judgment is against the weight of evidence.
I will start with the first issue. It is agreed by all sides that the respondent is the first and eldest child and male child of late Chief Reuben Nwoye Okonkwo. It is also agreed by all sides that by virtue of an existing rule of Abagana customary law, the respondent as the first and eldest child and male child of the deceased intestate, he is entitled to inherit the right to permanently occupy the late father’s obi (residential house) at Umudunu village, Abagana subject to the right of his male siblings to also reside therein until they have been given land to build their residential home (anaobi) or built their own house and also subject to the right of the unmarried female siblings to also reside there until they are married or remarried as the case may be.
The appellants, however contend that the respondent is disentitled from inheriting their late father’s obi because while their father was alive the respondent requested his anaobi from their father to build his residential home and that their father gave him the said anaobi on which he built the house where he is currently living. See particularly the evidence of the 2nd appellant (as DW4) in cross-examination as follows:-
” Q. You know that you have no place in your father’s Ngwulu because you are neither the first nor the last son?
A. I have a place in my father’s compound. I have a right to live there though I am not entitled to the obi or Nkpuke.
Q. If your father did not die he would not have given you Ana-obi because he had no vacant land?
A. I will then stay in my father’s compound until I build my own house.
Q. You have a right to live in your father’s compound but you do not have any control over the compound?
A. I have a right to live there now since my elder asked and was granted Anaobi by my father. I am now the person to control the compound”.
It is clear from this testimony that the 2nd appellant is a rival claimant to the right to inherit their late father’s obi. They alleged, as the basis of their contention, and the rival claim of the 2nd appellant the existence of a rule of Abagana customary law that “any first son that asks for and is given an Ana obi by his father in his father’s life time loses his right of inheritance of the obi or Iba of his father. The respondent and his witnesses disputed the existence of such a custom. This contention is one of the main causes of the dispute in this case. The trial court considered the pleadings and the evidence led by both sides on this issue. After holding that the appellants could not prove instances when a diokpala lost his right to inherent anaobi and that the appellant did not prove that the respondent was granted anaobi by his father, the trial court found as a fact thus:-
“I therefore find as a fact that notwithstanding the grant of land made to the plaintiff by his father, he is still entitled to inherit his late father’s compound. The plaintiff is not however entitled to evict his other male brothers from the said property. On his own showing, they are entitled to live there until they are granted Anaobi or build houses of their own.”
The appellants complained against this part of the judgment in issues numbers 1 – 4 of their brief which are based on grounds 1 – 4 of the notice of appeal.
Learned counsel for the appellants contends that:
“The trial court was wrong to have preferred the evidence led by the respondent than that led by the appellants on the existence of the rule of Abagana customary law that disentitles a diokpala from inheriting the late father’s obi if he chose to ask for and obtain anaobi from the father during the latter’s life time.” Learned Counsel for the respondent has argued in reply that the trial Court was right to prefer the evidence led by the respondent and his witnesses because there were material contradictions in the evidence led by the appellants and their witnesses.
It has not been shown or even alleged that such a custom can be judicially noticed. Therefore, its existence can only be proved by evidence. S. 16(1) of the Evidence Act 2011 provides that a custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence. S.18(1) of the Evidence Act provides that where a custom cannot be established as one judicially noticed, it shall be proved as a fact. In KARREEM & ORS VS. OGUNDE & ANOR (1972) All NLR 75 or (1972) 1 SC 126 the Supreme Court applying similar provisions held that a custom or customary law could be proved or sustained if it is shown by facts given in evidence or judicially noticed.

The burden of proving a custom lies upon the person alleging its existence. It is the appellants that assert or allege the existence of such a custom. I therefore agree with the decision of the trial Court that the appellants had the duty to prove the existence of the said custom. It is a trite principle of law restated in a long line of decisions including the decisions of our Supreme Court in OKPOWAGHA & ANOR VS. EWHEDOMA (1970) All NLR 208, AGBAI & ORS VS OKOGBUE (1991) 9-10 SCNJ 49 or (1991) 9-10 SC 57 and KARREEN & ORS VS. OGUNDE & ANOR (1972) All NLR 75 or (1972) 1 SC 126 that the burden of proving the existence of a custom or a rule of customary law is on the party alleging or asserting the said existence.
The trial court considered the evidence led by the appellants and their witnesses in proof of the existence of this custom and the evidence led by the respondent and his witnesses in denial of the existence of the said custom and held thus –
“I prefer the evidence as to the custom of the people of Abagana given by the plaintiff’s witnesses to the evidence of the defendant witnesses on the alleged custom. It is not just sufficient to assert a custom. Where the existence of an alleged custom is being disputed, it is my view that in order to prove the existence of such custom the party asserting it must lead evidence to show that the practice in question has from long usage obtained the force of law. This is usually done by pleading and leading evidence of instances in the past where the alleged rule has been practiced. The defendants in the instant case could not give a single instance of an occasion where the first son of a man demanded for and was granted Anaobi and lost his right to his father’s compound. The only instance given by DW1 was an occasion when the first son on his own volition relinquished his right to his father’s compound having built a house of his own. This cannot be proof that the first son of a man loses his right to his father’s compound if he is granted Anaobi.”
It is clear from this portion of the judgment that the only reason given by the trial Court for preferring the evidence of the respondent and his witnesses to that of the appellant and their witnesses on this issue is that the appellants “could not give a single instance of an occasion where the first son of a man demanded for and was granted Anaobi and lost his right to his father’s compound.” I will now consider the evidence of both sides to find out if the above reason is justified or not by the evidence.
The appellants led evidence through Vincent Okonkwo (DW1), late Chief Reuben Nwoye Okonkwo’s only sibling, Ichie Fidelis Anyakora (DW2) a close friend of the deceased, Chief Fidelis Onyenchonam Anunobi (DW3) an Ozo title holder in Abagana and Emeka Okonkwo (DW4), the 2nd appellant herein and the 2nd eldest child and male child of Late Chief Reuben Nwoye Okonkwo. None of these witnesses could give evidence of any instance where a diokpala lost his right to inherit the obi because he requested for and received anaobi in his father’s life time. DW1 was asked by Learned Counsel for the respondent in cross-examination the following question “can you give us one example in Abagana where the first son of a man was given Anaobi.” DW1 answered that “In Orofia Abagana the first son of one Okafor bought a parcel of land where he established his house stead and left, the compound for his other brothers.” He was asked further thus- “Did the first son ever go to Court to fight for his right.” DW1 answered that “He did not do that.” The question that followed was “they did not go to Court because there is no dispute over the matter.” DW1 answered that “it is true.” The trial Court was right when it held that “this cannot be proof that the first son of a man loses his right to his father’s compound if he is granted Anaobi.” Apart from the fact that Okafor left the compound to live elsewhere of his own volition, he was not given anaobi by his father. The land he built on was purchased by him. He did not loss his right to the late father’s obi. He merely decided to live in his house built elsewhere. The example did not show that he lost his right to the late father’s obi.
The 2nd appellant as DW4 was cross-examined as follows:
“Question by the Court – can you tell the court one instance where the 1st son was granted Anaobi in Abagana Town.
Ans: I do not know of any case where such a thing happened.”
The respondent testified as PW1. PW2, Augustine Chido, who lives at Umudunu in Abagana, PW3, Levi Chikata who also lives at Umudunu, Abagana, PW4 Ichie Francis Umeadi Osiji, a teacher, and the Secretary General of Abagana Town Union who lives at Umudunu, Abagana and PW5, Ichie S.J. Okafor also living at Umudunu Abagana testified in support of the respondent. PW1 , PW2, PW3, PW4 and PW5 disputed the existence of such a custom. They consistently maintained in their evidence that the 1st son never takes Anaobi because the obi is his right. According to them the Anaobi belongs to the male children following the 1st male child, except the last child who is entitled to the mpuke (the house their mother lived in before her death). They also maintained that it is unheard of and anathema for a 1st son to demand Anaobi from the father during the father’s life time. According to them it has never happened that a 1st child asks for or takes Anaobi. They maintained also that the obi belongs to the 1st son as of right and that it has never happened that he lost the right because he took Anaobi. The evidence elicited from PW5 by the Learned Counsel for appellants during cross-examination is very instructive. He stated that “a man may grant land to his first son in his life time. That notwithstanding the first son is still entitled to the man’s compound on his death.” He was asked as follows:-
“where Diokpala demands Anaobi and he is given anaobi, that amounts to a rejection of his right to the obi.” He answered thus-
“that is an abomination. He should as well bury his father in his Anaobi. The 1st son is entitled to the obi even if he is given other lands.”
His cross-examination by Learned Counsel for the appellants continued thus:-
Question – Diokpala cannot take the obi and the Ana-obi at the same time?
Ans. – My father’s eldest son took different parcels of land
Question – Did your brother demand for Anaobi form your father in his life time?
Ans. – He did so. I tried to resist, but was told that my brother is also entitled to the obi.”
The respondent and his witnesses gave consistent and cogent evidence that the custom alleged by the appellants to exist does not exist.
DW1 and DW2 were cross-examined by Learned Counsel for the respondent in respect of instances where the 1st son had built a house or houses on lands outside his father’s residential compound and still retained his right to the late father’s obi. They admitted the instance of late Chief Sir Joe Ozoemena Nwankwo who built a house for his first son and other sons, and the 1st son still inherited the obi, even though he also built his own house outside the father’s residential compound. DW2 admitted the instance of Emmanuel Nwude who built many houses outside his father’s residential compound and still inherited the late father’s obi. Learned Counsel for the appellants has argued that these instances are inapplicable here because:
(a) in respect of late Chief Nwankwo’s case, the 1st son did not ask to be given Ana obi and he continued to live with his father even after the latter built a house for him elsewhere. The house he built for himself was on a land he purchased.
(b) In respect of Emmanuel Nwude’s case, the 1st son purchased his own lands and built houses outside his father’s compound, he demolished his fathers house and built another for him in its place and built his own house within his father’s residential compound.
These arguments of Learned Counsel for the appellant distinguishing these examples from the present case are defeated by the testimony of DW1 during cross-examination that “if the Diokpala built a house in his life time, he cannot inherit his father’s compound if he leaves his father’s compound in the life time of his father.” By this testimony DW1 is saying that under the said rule of Abagana customary law the Diokpala must reside in the father’s compound throughout the fathers life time and should not build a house anywhere outside the father’s compound if he is to inherit the obi of his late father. So if he builds a house or houses outside his father’s compound or leaves the father’s compound to reside elsewhere, he is disentitled from inheriting the late father’s obi.
The trial Court was right to insist that the appellants show instances when the first son lost his right to the obi because he obtained anaobi from the father, or built a house elsewhere and or lived elsewhere outside the father’s compound in the latter’s life time. This is because, practice can only crystallize into custom through repetition over a period of time to the extent that it becomes prevailing amongst the members of the community who accept it as binding upon them.

A custom is not declared or enacted but grows or develops through time. As Lon Fuller said in his Anatomy of law (1968) at page 71 “it expresses itself not in a succession of words, but in a course of conduct.” It is such conduct that has over time come to be accepted and prevail among a certain community or group of persons as a standard of conduct. It is defined in Black Law Dictionary (9th Edition) by Bryan A Garner at page 442 as “a practice that by its common adoption and long, unvarying habit has come to have the force of law.”
This court in OZO (PROF) CHIWEYITE EJIKE & ANOR VS. CHIEF ANAKO ONUZULIKE & ORS (unreported decision in CA/E/381/2007 delivered on 27-3-2013) held per AKEJU JCA that “for custom, usage, convention or tradition to be binding and enforceable among the people of a particular community it must have either been accepted, adopted or acquiesced to over a long period of time.” In NWAIGWE VS. OKERE (2008) All FWLR (Pt.431) 843 at 870 the Supreme Court per TOBI JSC held that:
“customary law emerges from the tradition, usage and practice of people in a given community which, by common adoption and acquiescence on their part and by long and unvarying habit, has acquired, to some extent, element of compulsion and force of law with which it has acquired over the years by constant, consistent and community usage, it attracts sanctions of different kinds and is enforceable. Putting it in a more simplistic form, the customs, rules, traditions, ethos and cultures which concern the relationship of members of a community are generally regarded as the Customary Law of the people.”
Since the existence of the practice of a first son losing his right to the obi by taking anaobi as a custom in Abagana is disputed by the respondent and his witnesses and since it has not been shown nor alleged that it can be judicially noticed as such custom, the appellants had a duty to elicit evidence to show not only a singular instance of such practice, but also that it has been repeated severally and is now an unvarying habit and that the natives of Abagana accept it as binding on them. The evidence of the appellants and their witnesses did not establish any of these requirements.
The appellants did not prove the existence of any rule of Abagana customary law that qualifies, limits modifies or oust the operation of the Abagana rule of customary law that on the death of a man intestate, his first male child is entitled to inherit his obi as of right.
After rightly holding that the appellants failed to prove the existence of the custom that disentitles the respondent from enjoying his right to inherit their late father’s obi, the trial court stated that “it does not think that in the instant case, the defendant even proved that the plaintiff was granted Anaobi by the father.” Further in its judgment it stated “I therefore find as a fact that notwithstanding the grant of land made to the plaintiff by his father, he is still entitled to inherit his late father’s compound.”
Both sides agree that the 2nd respondent did request for land from his late father Chief Reuben Nwoye Okonkwo and that the father, who was then alive granted him the land. Both sides however disagree on the purpose of the grant. The appellants in their pleadings and evidence maintain that the respondent was given the land as anaobi. The respondent in his pleadings and the evidence in support thereof maintain that the land was for the building of a factory. The trial Court held that the land was not granted as anaobi. The appellants on the basis of ground 2 of their appeal attacked this part of the judgment under issue No 2 of their brief arguing that the trial court failed to resolve the question of what the land was granted for. I do not think so. The trial court was very clear that it does not think that the appellants had proven that the land was granted as anaobi. By that decision the Court made a choice between the two conflicting positions. There is no doubt that the trial court may not have been clear as it should have been in stating its reasons for this choice. This lapse has not, in my view occasioned any miscarriage of justice. It is not every error in proceedings that vitiates the proceedings. It is only such error that is substantial enough to occasion a miscarriage of justice that can vitiate the proceedings. An error is substantial and occasion a miscarriage of justice if it influenced the decision of the Court. In other words the decision would have been different but not for the error, so that if the error is corrected, the decision is likely to change. The failure to clearly state the reasons for the opinion of the trial Court that the appellants did not prove that the land was given as anaobi has no effect on the outcome of the case. Even if reasons were stated, the decision would have remained the same for the following reasons
The purpose for the grant of the land to the 2nd respondent becomes redundant and of no moment following the holding of the trial Court that the appellants failed to prove the existence of the rule of Abagana customary law disentitling the respondent from inheriting his right to the late father’s obi as a first son for the reason that the late father in his life time gave the respondent land as anaobi. In the absence of any custom depriving the respondent a right that is his automatically as of right by virtue of his status as the eldest male child of their father under a rule of Abagana customary law whose existence is accepted by all sides, it becomes idle and academic to inquire into the purpose of the grant or to find out if any land was given the respondent by his father at all. The appellants, particularly the 2nd appellant, are alleging that if the purpose of such a grant is for anaobi (place of residence) the respondent automatically losses his right to the obi as a first son and the 2nd appellant as a 2nd son becomes entitled to the obi by virtue of another rule of Abagana customary law whose existence they have failed to proof. So now that the custom upon which the 2nd appellant’s claim of right is based has not been shown to exist, the purpose of the grant becomes meaningless. I therefore agree with the trial court when it found as a fact that notwithstanding the grant of land made to the respondent by his father, he is still entitled to inherit his late father’s obi. In the light of the foregoing, issue No I herein which covers issues Nos. 1, 2, 3 and 4 of the appellants brief and issues Nos. 1, 2, 3 and 4 of the respondents brief is hereby resolved in favour of the respondent.
I will now consider whether the trial court was right to have held that the defendants/appellants are executors – de – son – tort.
The appellant in paragraph 4 of the amended statement of claim averred that:-
“All the defendants with the exception of the 4th and 6th defendants who are presently based in Italy and Belgium respectively have since the death of their father in 2001, been meddling with the estate of their deceased father without legal authority, and knowledge, consent or authority of the plaintiff as the first son of their father.”
In paragraphs 5 to 18 of the amended statement of claim, the respondent stated detailed particulars of the appellants’ intermeddling with the intestate. The appellants in paragraphs 3 to 35 of their further amended statement of defence denied intermeddling with the said estate. It is important to note that there is nothing in their said further further amended statement of defence that denied the implicit averment in paragraph 4 of the statement of claim that the appellants needed the consent and authority of the respondent as a first son to meddle or deal with any part of the said estate of their late father. The appellants averred in their further further amended statement of defence that it is their mother, Mrs. Comfort Okonkwo who administered the said estate until she died and that thereafter non of them has administered the estate. In paragraph 31 of the said further amended statement of defence the appellants stated that “after the death of their parents, they only started to take care of their father’s property and to maintain them to avoid dilapidation and waste, as the plaintiff was not interested in the maintenance of the properties. It is pure falsehood that Barrister H.N.C. Moghalu Esq. encouraged them to collect rents from tenants.”
The respondent as PW1 testified that the 2nd and 3rd appellants have been letting out some of their late father’s buildings to tenants, collecting rents from tenants and even claiming personal ownership of some of the shops at Onitsha. PW6 and PW7 who are tenants in some of the buildings testified that they have been paying rents to the 2nd appellant. DW1 (the younger brother of their late father) who stated that he and their late father jointly owned some properties, testified giving their late father’s share of the earnings from such jointly owned properties to the 2nd appellant, while agreeing that the respondent is the person who should manage the late brother’s property as his first son. The 2nd appellant testifying as DW4 admitted collecting rents from virtually all the properties to maintain the buildings, and admitted receiving payments from DW1 representing their late father’s share of earnings from properties jointly owned by DW1 and their late father. He testified that when their mother died, all the children including the respondent agreed that rents be collected in advance to bury their mother. The respondent in paragraph 15 of the amended statement of claim averred that he has made several demands on the appellants to render account for all monies and properties in their control, they have not rendered account. In response to this averment, the appellants in paragraph 17 of the further further amended statement of defence denied the averment and stated that “they never administered the estate of their late father to warrant rendering of accounts”. The appellants including the 2nd appellant clearly admitted that they had not rendered the said account.
In paragraph 16 of the amended statement of claim, the respondent averred that at his instance a solicitor wrote to all the tenants occupying the late fathers properties to stop paying rents to the appellants. The appellants in paragraph 18 of the further further amended statement of defence admitted paragraph 16 of the amended statement of claim and admitted writing through their solicitor to the tenants to ignore respondent’s letter and continue paying the rents to them. This admitted fact is further supported by the evidence of the respondent as PW1 and the evidence of the 2nd appellant as DW4. What is obvious from the entire tenor of the pleadings and the evidence in this case, particularly the testimony of the 2nd appellant as DW4 is that there is a rival claim by the 2nd appellant to control and manage the estate of Chief Reuben Nwoye Okonkwo. This is clear from his statement in cross examination that as 2nd son he is entitled to their late father’s anaobi and not the respondent, the first son and his direct control and management of all their late father’s properties at Abagana and Onitsha with the active support of DW1. The letter on behalf of the appellants instructing the tenants to disregard the respondent’s Solicitor letter and continue paying rent to the appellants as well as the refusal to render account for the monies and properties under the control of the 2nd appellant establishes the rivalry beyond doubt. Even though they keep denying that they were administering the estate, it is obvious from the evidence of PW1, PW6, PW7 and more particularly the evidence of 2nd appellant (DW4) and their solicitors letter above mentioned that the 2nd and 3rd appellants were managing the estate of their late father without the consent and authority of the respondent who is the first son of their late father. DW1, the brother of the late father testified that the respondent as the first son should be the person to manage the estate of his late brother.
Learned Counsel for the appellant has argued that only the 2nd appellant is shown by the evidence to have actually intermeddled by collecting rents that there is no evidence that other appellants did so and so there is no basis for the finding of fact by the trial Court that they too intermeddled with the estate. I do not agree with this submission. The finding of fact of the trial Court that all the appellants intermeddled is justified by the admission of the appellants themselves in paragraphs 18 and 31 of the further futher amended statement of defence that:
“18. The defendants admit paragraph 16 to the extent that sometime in August, 2005 after the death of their mother Mrs. Comfort Okonkwo, they engaged a solicitor to write to the tenants occupying their late father’s estate not to stop paying rents to the family in reaction to the plaintiff solicitor’s letter on the same subject matter warning the tenants to stop further payment of rents to the family, but deny ever receiving rents from the said tenants after writing then through their solicitor.
31. Paragraphs 2i and j of the reply are denied. In answer to paragraph 2j the defendants aver that after the death of their parents, they only started to take care of their father’s property and to maintain them and to avoid dilapidation and waste, as the plaintiff was not interested in the maintenance of the properties. It is pure falsehood that Barrister H.N.C. Moghalu Esq encouraged them to collect rents from tenants.”
This is confirmed by paragraph 44 of the statement on oath of the 2nd appellant (DW4) which repeats the facts in paragraph 31 above. All the appellants instructed a Solicitor to write to the tenants resisting the attempt by the respondent to stop the payment of rents to them. The appellants Solicitor’s letter at page 68 of the record reads:
1. “We have been consulted and our services retained by the children of late Chief Reuben Nwoye Okonkwo, excluding Mr. Anthony Ikechukwu Okonkwo, to write to you this letter. They shall hereinafter be referred to as our clients. We write on their instructions, authority and consent.
2. Our clients are the authorized legal and personal representatives of estate of late Reuben Nwoye Okonkwo and the persons authorized by the said late Chief Reuben Okonkwo before he died, to manage his properties to prevent same from being wasted and damaged. Our clients have come across a notice sent to you by Barrister C.O.I. Agwuna acting for Mr. Anthony Ikechukwu Okonkwo.
3. Our clients have forwarded the said contained in Barrister C.O.I. Agwuna letter dated 11th August, 2005 to us and have instructed us to write to you and to notify you that they are not aware that any action has been taken out against them as alleged in the said notice and to advise you to ignore the contents of the said notice and to continue to carry out your obligation towards maintaining and updating the respective properties of late Chief Reuben Nwoye Okonkwo in which you are staying?”
As this letter shows, the appellants held themselves out as being the persons authorized by their late father while alive, to manage his estate. It is clear therefore that what they were doing was in the purported exercise of the said authority. I will now consider if all the above mentioned activities of the appellants in dealing with the estate render them executors de son tort of their late father’s estate. I will start the consideration of this issue with a restatement of the law on who is an executor de son tort.
According to Blacks Law Dictionary, 9th Edition by Bryan A. Gaymer, page 651, an executor de son tort is a person who, without legal authority, takes on the responsibility to act as an executor or administrator of a decedent’s property usually to the detriment of the estate’s beneficiaries or creditors. He has taken upon himself the responsibility of an executor by his wrongful dealings in the estate. He is an executor by virtue of his delict. He is deemed such an executor because he had no legal authority to meddle in the estate. Such legal authority can derive from his appointment as an executor by a testator under a will or by the grant of letters of administration to administer the estate. In UDENSI VS. MOGBO (1976) 7 SC 1 the Supreme Court held that “a person who has not been lawfully appointed an executor or administrator of an estate may by reason of his own intrusion upon the affairs of the estate be treated for some purpose as having assumed the executorship and in law such a person is called an executor de son tort”. In YUSUF VS. DADA & ORS (1990) 7 SC (Pt 11) 18 at 36 – 37 the same court per AGBAJE JSC defined an executor de son tort as “a person not lawfully appointed executor or administrator and without title to a grant, who may by reason of his own intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship. Such an intermeddler is called a tort executor or executor de son tort (i.e of his own wrong) The same term is used whether the deceased died intestate or testate, for the law knows no such appellation as “administrator de son tort”.

The first question is upon the death intestate of Chief Reuben Nwoye Okonkwo, on who did his estate vest? In Anambra State, the succession to the estate of a deceased intestate whose personal law is customary law is generally regulated by customary law, the Administration and Succession (Estate of Deceased Persons) Law Cap 4 Vol. 1 Revised Laws of Anambra State of Nigeria 1991 and the principles of equity. By virtue of and in accordance with the Abagana customary law of inheritance, the respondent and the appellants as children of the late Chief Reuben Nwoye Okonkwo are his heirs and therefore the persons legally entitled to succeed to his assets. From the pleadings and the evidence all sides understand that those assets are now jointly owned by all the said children as family property and that the respondent as the eldest son is entitled to manage the said family property on behalf of and for the benefit of all the children. See paragraphs 4, 5, 6, 7, 15 and 17 of the amended statement of claim and paragraphs 4, 5, 6, 7, 9, 10, 17, 18 and 31 of the further further amended statement of defence and the testimony of DW1 2nd appellant as DW4 and the respondent as PW1. This accords with the position generally under customary law.
S. 81 of the Administration and Succession (Estate of Deceased Persons) Law provide that “where a person dies intestate, his real and personal estate, until administration is granted in respect thereof shall vest in the Court who shall have and exercise such powers in relation to the realization, preservation or prevention of waste, of the estate.” “Court” here is defined by S. 3 of the same law to mean the High court.
The effect of this statutory provision is to suspend the vesting of the estate in the family of the deceased intestate until the distribution of the estate and suspend the power of the first male child to administer the estate until the grant of letters of administration to him or any other person in accordance with the Abagana rule of customary law on succession. S.81 of the said Administration and Succession (Estate of Deceased persons) Law overrides any existing rule of customary law on succession to property or inheritance of property without completely abrogating or extinguishing such rule of customary law.

As a result of this statutory provision the only interest the beneficiaries have pending the distribution of the estate is an equitable interest in the preservation or protection of the estate to ensure that their succession to the estate is not frustrated by the destruction or waste of the estate.

This equitable interest of the beneficiary of the estate in the preservation of the estate pending distribution gives no right and power to the beneficiary to manage, alienate or deal with the estate in any manner. By virtue of this equitable interest a beneficiary of an intestate estate can take lawful steps to get the High Court to physically resume the administration of the estate or get the Administrator General apply for the grant of letters to administer the estate under the Administration and Succession (Estate of Deceased Persons) Law. On general legal doctrine, he or she can by virtue of this equitable interest also, before the distribution of the estate, sue to prevent wastage of the estate or improper dealings in the estate by an executor or administrator of the estate.
The entitlement to succeed to the estate is a future equitable interest that materializes only upon distribution by the administrator of the estate. Pending such distribution this interest is floating or in abeyance.
The eldest male child as the family head and as the person automatically entitled to administer the estate under customary law has an immediate equitable right to protect and preserve the estate pending when the High Court physically takes over the administration of the estate in exercise of its power under S.81 of the Administration and Succession Law or when the Administrator General enters upon and take over the administration of the property pursuant to a grant of letters of administration under the Administration and Succession Law. Pending the grant of the letters of administration to him the eldest male child has equitable interest to protect the estate so as to protect his right to inherit the management of the estate and ensure the protection of the interest of the heirs in the estate. It is clear from the foregoing that the estate at customary law and under statute does not vest in any of the appellants.
The estate, following the death of Chief Reuben Nwoye Okonkwo, automatically vested by operation of S.81 of the Administration and Succession Law on the High Court. The immediate equitable right to protect the estate pending when the High Court physically takes over the administration of the estate vests in the respondent. The existence of the first factor is hereby established.
The existence of the second factor is already established. I have already referred herein to the several activities of the appellants intermeddling with the estate of their late father.
I will now deal with the question of whether the appellants had the legal authority to intermeddle with the estate. It is obvious from the pleadings and the evidence that the appellants had no authority in fact and in law to intermeddle with the estate. They were not so authorized by the respondent. The trial Court rightly held that there is no evidence before it that letters of administration has been granted to the appellants to administer their late father’s estate. They were therefore managing their late father’s estate without being appointed administrators of the estate by any letters of administration. They had no legal authority to meddle in the estate. The existence of the three factors that indicate that they are executors de son tort is clearly established in this case.
Learned Counsel for the appellants has argued that the appellants cannot be regarded as executors de son tort because the intermeddling was to enable 2nd appellant collect rents to maintain the estate and discharge certain family obligations such as the burial of their mother. According to learned counsel “if the intermeddling with the property is a means to preserve the property, such a person’s act cannot be regarded as an assumption of authority or an intention to exercise the functions of an executor and that being the case, such a person cannot be regarded as an executor de son tort as to make him liable to account.” It is obvious that the appellants, knew that the property they were managing did not belong to them personally, that the rents being collected is family property and not theirs and that it is the respondent and not them that has the power to manage the said property. It is natural to expect that a person who manages property that belongs to another, collects rents from such properties and uses the rents to maintain the building should account to the owner of the property for the rents collected and how much of it was spent in maintaining the properties. It is equally expected that since the power to manage the estate belongs to the respondent, they should render account to him concerning the things they have done in the exercise of that power. It is illogical and contrary to common sense for the appellants to claim that they are not liable to render account because they were collecting rents to maintain the buildings and take care of other family obligations like the burial of their late mother.
Learned Counsel for the appellant also argued that the mere collection and possession of the rents collected from the properties does not show an assertion of dominion or intention to exercise the functions of an executor so as to render him executor de son tort. All these submissions are not valid in the face of the pleadings and evidence that the appellants decided on their own to take over the care and maintenance of the properties to prevent waste and dilapidation and the evidence that they resisted the attempt by the respondent to stop the tenants continuing to pay rents to them and the evidence that they have refused to account for all they have done. All these clearly show assertion of dominion and a clear intention to exercise the functions of an executor of the estate. I do not think that the appellants intermeddled for the purpose of preserving the properties. In any case, even if the intermeddling was for that purpose, they are still liable to render account. Even the Roman-Dutch or civil law concept of negotiorum gestio applied in the case of ADMINISTRATOR GENERAL AND PUBLIC TRUSTEES VS. ASIKA ILOBI (1972) 2 ECSLR 587 at 593 cited by Learned Counsel for the appellant requires the rendering of account by the negotiorum gestor. The negotiorum gestio is a species of spontaneous agency or an interference by one in the affairs of another, in his absence, from benevolence or friendship, and without authority. The negotiorum gestor acquires no right of property by means of the interference and is strictly bound not only to good faith but to ordinary care and diligence. He is bound to deliver the proceeds to the person on whose behalf he interfered. A negotiorum gestio does not exist if the gestor acted self interestedly or if the owner expressly forbade the gestor from acting on the owners behalf. See Blacks Law Dictionary, 9th Edition, page 1137.

In UDENSI VS. MOGBO (supra) the Supreme Court held that the collection of rents for over a period and in the face of opposition by the beneficiaries, from tenants in the property in dispute qualifies the person collecting the rents as an executor do son tort rendering him liable to account. In the same case the Supreme Court further held that “the slightest interference with the goods or property of the deceased is sufficient to create such liability and such a person (executor de son tort) is liable to be sued by the rightful representatives of the estate, or by a creditor to the estate, or by a beneficiary thereof. (see Halsbury Laws of England 3rd Edition p. 149-235); but he is liable for no more than has actually come into his hands.”
Learned Counsel for the appellant also argued that “it is the law that to succeed in a claim against a person alleged to be an executor de son tort, evidence of the value of the deceased’s goods which passed into the hands of such a person must be adduced.” I do not agree with this submission. What is required is to establish by evidence the properties in the control and possession of the executor de son tort and not necessarily their monetary value. Both counsel cited the Supreme Court decision in EDOZIE VS. AMADI in which it was held per ADEMOLA CJN that:
“an executor de-son-tort is one who intermeddles with estate of a deceased person. And to succeed in an action against an executor de-son-tort, the respondent must establish by evidence which goods were actually taken away by the appellant, since an executor-de-son-tort is only liable for those portions of the deceased’s property that came into his hands.”
As held by the Supreme Court in UDENSI VS. MOGBO (supra) the executor de son tort “is liable for no more than has actually come into his hands.” The above decisions require the plaintiff to identify the properties in the hands of the defendant. The decisions did not lay down any law that a plaintiff; even though he or she has shown by evidence that certain identified properties are in the hands of the defendant, cannot succeed unless he or she establishes their actual monetary value. It is not pragmatic to require that in all situations, the claimant must establish the value of the properties before an order for account can be made. In some situations it may not be possible for a claimant for an account to know the monetary value of the properties or the exact amount of money in the control of the executor de son tort until an account is rendered. In a situation such as in this case, where the 2nd appellant collected rents from several properties and other income over a period of time and the claimant does not know the exact total amount so far collected, the purpose of the account is to determine the various amounts collected at each time and the total amount so far collected. As the 2nd appellant has claimed, that he applied some of the rents to repair the buildings and fulfill some family obligations, it is expected that he has to account for the items of expenditure and amount spent on each. In UDENSI VS. MOGBO (supra) even though there was no evidence of the exact amount of monies collected as rent by the defendant the trial court still ordered the defendant to account. This decision was upheld by the Supreme Court. The 2nd appellant (DW4) gave no evidence of the particulars of the repairs and the amount spent. In a situation where property is being retained or managed without legal authority an account will include returning the property and explaining how it was managed including returning the proceeds of the property. In Abusomwan vs. Aiwerioba & Anor (1996) 4 NWLR (Pt. 441) 130 the Supreme Court per Onu JSC held that “it is trite law that when one holds property beneficially owned by another person, the property remains that of the true owner and the holder is merely to account for such goods.” His Lordship went further to hold that “in my view an order for accounts should have been made by the Learned trial Judge in view of the evidence that dominated the trial that the proceeds of sale of the nails and iron rods were paid in to accounts of the appellant and the respondent, indiscriminately. Surely the best way to ascertain what were sold out of the goods ordered by either party, was for the Court to order that the documents before the court should be examined by those qualified to carry out such an exercise. In the case under consideration there can be no doubt that the learned trial Judge in his judgment was entitled to, as the issue before the court was what each party could lawfully claim. And as this was not clearly ascertainable, the Justice of the case demanded that an order for account ought to have been made by the learned trial Judge.”
The fiduciary responsibility of an executor de son tort is imposed by equity to meet the demands of substantial justice. Equity implies a form of constructive trust upon the intermeddling to render the intermeddler accountable. The duty to account arises upon the slightest interference or intermeddling with the estate or properties of another. The owner of the property or a beneficiary of the estate has no other duty beyond establishing the fact that there is such intermeddling with the estate or specific property.
The purpose or content of the account will depend on the peculiar circumstances of the case.
The 2nd appellant (DW4) has in his evidence admitted collecting rents from tenants in their late father’s numerous building. He also admitted receiving from DW1 a monthly sum of N18,000 as their late father’s share of earnings from properties jointly owned by their late father and DW1. He claimed he carried out repairs of the various buildings and made other payments. It is clear from his own evidence and the testimonies of PW1, PW6, PW7 and DW1 that he was controlling and managing the entire estate of their late father with the active collusion and support of the other appellants. He has resisted the respondents attempts to retrieve the control and management of the estate. It is preposterous to suggest that the respondents claim for an account should fail because the evidence has not shown the exact monetary value of the properties under the control of the appellants. The implication of such a suggestion is that inspite of the facts highlighted above, the appellants including the 2nd appellant should not render an account because the respondent cannot show the exact value of the properties in the hand of the 2nd appellant. Justice will certainly not be done in this case to agree with such a suggestion.
Learned Counsel for the respondent has argued that the appellants did not appeal against the order of the trial Court that the appellants render account. I do not support this submission. I think that the order to render account derives from the trial Court’s determination that the appellants are executors de son tort and are therefore liable to account for the rents they have collected and the management of the estate. The trial Court was right to have held that appellants are executors de son tort. In ground five of this appeal, the appellants challenged the decision that they are executors de son tort.
(c) that the trial Court did not consider the evidence led by both sides on the nature of and purpose of the grant of land to the respondent by their late father and therefore failed to resolve the issue of the nature and purpose of the grant.
(d) that if the trial Court had evaluated the evidence led by both side, it would have come to the conclusion that the appellants are not executors de son tort.
(e) that the trial Court should not have preferred the evidence of the respondent and his witnesses.
As I had said, these matters have been argued by the appellants under issues Nos. 1 to 5 of their brief. I have determined them under issues Nos. 1 and 2 herein. There is therefore no need to stress the matter further.
I must, however, state that the appellants did not show how the evidence on the above matters was not evaluated or improperly evaluated. It is not enough to allege or assert that the trial Court did not consider or properly consider or should not have considered evidence on a particular issue. You must go further to demonstrate why you so allege or assert. If the allegation, is say, for example that a particular evidence was not considered, you must refer to the evidence, the decision that was made without considering the evidence and show why you think that the decision did not consider that evidence. The argument that the trial Court failed to evaluate or consider some evidence will fail if the appellant fails to refer to the relevant evidence, the part of the decision that was made in disregard of the evidence and demonstrate why such a decision can be said to have disregarded the evidence. A complain of improper evaluation of evidence presupposes that there was some evaluation but that it was improperly done. Such a complain, to be valid, must refer to the evidence to be evaluated show the evaluation that was done and show in what respects the evaluation was improperly done.
Let me also add, that even if the complain of lack of evaluation or improper evaluation of evidence is shown to be valid, the appeal will not automatically succeed on this ground unless the appellant shows that the lack of evaluation or improper evaluation is so substantial that it has caused a miscarriage of justice. See the decision of this Court in CHIEF TITUS ANAMASONYE ONWUGBELU VS. MR EJIOFOR EZEBUO & ORS (unreported delivered in CA/E/56/2009 on 21-2-2013) following its earlier decision in ELI DAKUR VS. ALI DAPAL & ORS. (1998) 10 NWLR (Pt 571) 573 at 586-589 held 12 that for an appellant who complains of improper evaluation of evidence to succeed, he must be able to identify or specify the evidence improperly evaluated or not evaluated and show convincingly that if the error had been corrected, the judgment appealed cannot stand.

It is obvious from the foregoing that the appellants have not shown that the evidence was not evaluated or was improperly evaluated or that any part of the decision of the trial court resulted from such improper evaluation or lack of evaluation. There is therefore no basis for this Court to interfere with the decision of the trial court. As this court held in ONWUEGBELU VS. EZEBUO (supra) it is only where the trial court did not evaluate or properly evaluate the evidence before it that this court as an appellate court can intervene and itself evaluate or properly evaluate the evidence.
I had earlier held herein that the decision of the trial court on the lack of proof of the existence of the custom of a diokpala losing his right to the late fathers obi on account of receiving anaobi, the decision that the land granted is not for anaobi, the decision that the appellants are executors de son tort is supported by the evidence on record.
The appellants contend under issue No 7 of their brief that the judgment, is against the weight of evidence. Learned counsel for the appellants made no clear submissions directing or guiding the mind of the court on how the judgment can be considered to be against the weight of evidence. After restating the often quoted and celebrated statement of the Supreme Court in MOGAJI VS. ODOFIN (1978) 4 SC 91 at 93, he proceeded to argue speculatively in support of his general contention under issue no 7 of the appellants brief. For ease of reference and understanding I hereby reproduce his entire argument under that issue as follows:-
“In the instant case, all that the appellants are saying is that if the learned trial judge had properly placed the totality of the evidence they adduced on the imaginary scale against that adduced by the plaintiff/respondent, that the scale would tilt in their favour. An excursion into the evidence as adduced by the parties will prove the above correct. Firstly, the evidence of custom of the Abagana people which the defendants/appellants led at the trial which ought to be accepted as led was compared with the inadmissible evidence of the plaintiff/respondent on this said custom. The learned trial judge went as far as preferring the inadmissible evidence to the admissible evidence. It is our submission that if the inadmissible evidence which weighed heavily on the mind of the judge is removed, the judgment delivered by the learned trial judge that the plaintiff/respondent is entitled to inherit his father’s compound, will crumble. Again, if the learned trial judge had put all the evidence led by the defendants/appellants on one side of the scale, there would been nothing left which the learned trial judge believed favoured or strengthened the plaintiff/respondent’s case. Finally if all the evidence led by the parties on the issue of executor-de-son-tort were properly put on the scale, it would tilt in favour of the defendants/appellants.”
On the basis of this speculative submission learned counsel said “we therefore urge the court to resolve the issue in favour of the defendants/appellants.”
Learned Counsel for the appellants had in his above arguments acknowledged that a complaint that a judgment is against the weight of evidence requires an excursion into the evidence adduced by the parties to establish it as correct. Yet he refused to embark on the said excursion to demonstrate the correctness of his complain. He rather continued making general and speculative statements without reference to the evidence to support such statements. Clearly, Learned Counsel for the appellant failed his own test. Without an excursion into the evidence led by both parties, the correctness of the complain cannot be proven. It is important to recall that it is trite law that a party who alleges that a judgment of a court is wrong in any respect has the duty to show that the judgment is wrong. Therefore the appellants who complain that the judgment is against the weight of evidence have a duty to show how the judgment is against the weight of evidence. They can only succeed in doing so by referring to the evidence adduced by both sides on the issue and review the said evidence to show that if they are put side by side on the imaginary judicial scale, the evidence on behalf of the appellants will outweight that on behalf of the respondent on the issue. The statement of the Supreme Court in MOGAJI VS. ODOFIN (supra) relied on by Learned counsel for the appellants in arguing issue No 7 is very instructive here. It states:
“Where an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence is adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all.”
In the light of the foregoing I hold that the appellants have failed to show that the judgment is against the weight of evidence. Issue No 3 herein (which covers issues Nos. 6 and 7 of the appellant’s brief and issues Nos. 6 and 7 of the respondent’s brief) is resolved in favour of the respondent.
On the whole, I hold that this appeal lacks merit and is accordingly hereby dismissed. The appellants shall pay cost of N30,000 to the respondent.

MOJEED ADEKUNLE OWOADE J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother E. A. Agim JCA. I agree with the reasoning and conclusion. In particular, I agree that the appeal lacks merit and ought to be dismissed. I abide with the consequential orders.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, EMMANUEL AKOMAYE AGIM JCA. I am in agreement with the reasoning and conclusion. I therefore dismiss the appeal and abide by the award of costs to the respondent.

Appearances

H.N.C. Moghalu Esq with Rev. O.C . AkaboguFor Appellant

AND

C.O.I. Agwuna Esq with Miss Chidera NgeneFor Respondent