NDUBISI OKEKE & ORS v. ENGR. OBIUKWU OKEKE & ORS (2019)

NDUBISI OKEKE & ORS v. ENGR. OBIUKWU OKEKE & ORS

(2019)LCN/13065(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/E/424/2015

RATIO

WHEN THE COURTS WILL NOT BE CONFINED TO THE ISSUES RAISED BY THE PARTIES

Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distill such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.PER ABUBAKAR SADIQ UMAR, J.C.A.

WILLS: EXECUTION OF WILLS

The law is trite as to the various modes of executing a valid Will and these modes include:
1. By the testator signing the Will personally. This mode is the most common mode of executing a Will and before this ascribing any legality to this, it is required that the execution must be done in the presence of at least two witnesses who much must be present at the same time. So therefore in a situation where the testator signs the Will in the presence of only one witness, the Will is invalid. See APATIRA V AKANKE (1994) 17 NLR 149; WYATT V BERY (1893) ALLER 321.
2. The second mode of executing a Will is that the testator can execute his testament by requiring another person to sign it on his behalf and the execution by his delegate or appointee will only be valid so long as it is done at the instance of the testator and in his presence. The Will must also be signed by other person in his presence and by the testator?s directions. Anything done to the contrary invalidates the Will. See PARKER V FELGATE (supra); GOODS V DAVIES 163 ER 1337.
3. In a situation where a testator signed the Will in the absence of the required witnesses, a testator can validly acknowledge his signature before the witnesses. Consequently, the Will which would have been invalid for being executed by a testator in the absence of witnesses will become valid once the signature of the testator is acknowledged before them. The acknowledgment could be by words or conducts or even by gesture. See GOODS V DAVIES (Supra).PER ABUBAKAR SADIQ UMAR, J.C.A.

WILLS: PROPOUNDERS OF A WILL ARE DISCHARGED OF THE INITIAL BURDEN OF PROOF WHEN IT HAS BEEN ADMITTED INTO PROBATE

It is the law that once a will has been admitted to probate, the propounders of the Will are discharged of the initial burden of proof which they carry. This Court in the case of CHIEF EYO EDEM NSEFIK & ORS. V. ROSEMARY MUNA & ORS. (2007) LPELR-3934 (CA) held that:
The will is being propounded when application is lodged with registrar of probate for the grant of probate, that is to say when the executors apply for a grant of probate of a will. It is during the pendency of the application for grant of probate at the probate registry of the Court, when there is a dispute as to the will that those who propound it must manifestly establish by evidence prima facie that there has been due execution and that the testator had the necessary capacity and was a free and capable testator. This is the only time the defendants have the burden of proof and duty of commencing the trial.PER ABUBAKAR SADIQ UMAR, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

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

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. NDUBISI OKEKE
2. AFAM OKEKE
3. CHUMA OKEKE
4. UGOCHUKWU OKEKE
5. IKECHUKWU OKEKE Appellant(s)

AND

1. ENGR. OBIUKWU OKEKE
2. MRS. VICTORIA ERONINI
(NEE OKEKE)
3. EBELE OKEKE
4. MRS. NONYELUM EGBUNA
(NEE OKEKE)
5. CHUKWUKA OKEKE Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Enugu State High Court of Justice, Holden at Enugu, delivered on the 16th March, 2015, Per I.A. UMEZULIKE J.

The Appellants as Plaintiffs in the Court below instituted the action which culminated into the instant appeal and by a Statement of Claim dated 12th January, 2005, they sought the following reliefs:
1. A declaration that the purported document essayed to be the last WILL and testament of Chief James Chukwuma Okeke dated 13th April, 1999, is a nullity and non-existent for lack of due execution by Chief James Chukwuma Okeke.
2. A declaration in the alternative that the bequeath or depositions in the said document/will in so far as they are respectively contrary to native law and custom; inconsistent in their provisions and are made of gift already given intervivos, is illegal and void.
3. An order restraining the defendants from acting on the said WILL and in any form or manner interfering with the estate of Late Chief James Chukwuma Okeke.
4. An order appointing interim administrators from the

family estate of the deceased excluding the defendants to administer the estate of late Chief James Chukwuma Okeke pending the grant of letters of administration to the nominated children of the said deceased.
OR IN THE ALTERNATIVE TO NO.4
An order that the estate of Late Chief James Chukwuma Okeke to be shared to the beneficiaries according to his number of wives in accordance with the native law and custom of the Nnewi to which he belonged.

Upon receipt of the Originating processes, the Defendants now Respondents in the instant appeal, filed a joint statement of defence. During trial, the Appellants called five witnesses while the Respondents also called five witnesses. A total number of seven exhibits were tendered which includes Exhibit 1, the said last Will and testament of Chief James Chukwuma Okeke dated 13th April 1999; Exhibit 2, a letter dated January 2005 by the Probate Registry in respect of the last Will and testament of Chief James Chukwuma Okeke to all the beneficiaries inviting them on 03/02/2005 for unsealing notice dated 24th March, 2004 in Suit No. E/126M/04. Exhibit 4 is a counter affidavit dated 5th April, 2004, Exhibit 5 is a

letter dated 8th October, 2004 by Barr. Mrs. V.O. Eronini, Exhibit 6 is also a letter dated 1st November, 2004 by Afam Okereke to Barr. V.O. Eronini and lastly, Exhibit 7 is a building lease dated 22nd November, 1996.

BRIEF FACTS OF THE CASE
The brief facts that led to the instant appeal is that the Appellants as Plaintiffs in the Court below brought this action as individual members of Late Chief James Chukwuma Okeke?s estate against the Respondents as Defendants.

Chief James Chukwuma Okeke died on the 28th day of January, 2004. It is important to state here that the 1st and 2nd Respondents who were equally 1st and 2nd Defendants at the Court below are surviving brothers and cousin of Late Chief James Chukwuma Okeke while the 3rd, 4th and 5th Respondents as Defendants in the Court below are the children of the deceased. As could be gleaned from the records, the deceased got married to five (5) wives but was survived by two (2) wives during his lifetime.

?It is the contention of the Appellants that a document which purported to be a Will of the said Late Chief James Chukwuma Okeke was not and could not have been made by him as same is a

fraud on the Appellants. On the 28th November, 2004, a family meeting was held where the 1st and 2nd Respondents informed all present that the said Chief James Chukwuma Okeke (deceased) made a Will prior to his demise. The 3rd Respondent thereafter was said to have bought a sealed envelope containing the said Will of Chief James Chukwuma Okeke (deceased) and by agreement of all present, the Appellants inclusive, the sealed envelope was opened and the purported Will and last testament of Chief James Chukwuma Okeke (deceased) was read by the 3rd Respondent in the presence of the family members.

After the close of evidence and adoption of final written address by parties, the learned trial judge at page 295-296 of the record held extensively as thus:
?From all credible and cogent evidence adduced at trial which this Court believed Exhibit 1 was duly executed in the presence of witnesses as required by law.
DW1 is Dr. E.K Ngata. He testified that he was the personal physician of Late Chief James Chukwuma Okeke. DW1 stated that the late Chief James Chukwuma Okeke was of sound mind until the end. This piece of evidence was not contradicted or

dismantled. There was evidence before this Court that shortly before making the WILL, the Late Chief James Chukwuma Okeke was very hale and hearty and gave out his daughter in marriage which was not dismantled at trial. For these reasons I am unable to place my finger on the vitiating element against exhibit 1?
The allegation and or proof that under Exhibit 1 the late Chief James Chukwuma Okeke?s Obi at Nnewi was not bequeathed to the 1st son as required under customary law is not sufficient to invalidate exhibit 1 entirely. I say so because it is an anomaly which this Court can rectify in this judgment. Even though there why (sic) testimony in this Court that a situation could arise to warrant denial under customary law of the 1st son?s inheritance of the father?s Obi upon his death. However such situation has not been established in this case to the satisfaction of this Court. The holding of this Court therefore is that the 1st Son of Chief James Chukwuma Okeke is entitled to inherit the deceased Obi at Nnewi.
Consequently the conclusion of law and judgment of this Court is that subject to the first son of Chief James

Chukwuma Okeke inheriting the Obi at Nnewi to the exclusion of all other children of the deceased James Chukwuma Okeke, all other claims of the plaintiffs in this case fall on the ground and are therefore denied and dismissed even as I make no order as to costs.?

However, the Appellants being dissatisfied with the judgment, have appealed to this Court vide an Amended Notice and Grounds of Appeal dated 25th day of September, 2017 and filed on the same date.

In line with the rules of this Court and pursuant to an Order of this Honourable Court made on the 5th day of February, 2019, the Appellants on the 4th day of February, 2019 filed their Appellants? Amended brief of argument dated 1st day of February, 2019. A Reply Brief dated 20th January, 2019 and filed on same date was also filed by the Appellants. The said briefs were settled by FIDELIS MBADUGHA ESQ. who distilled the following issues for determination of this appeal to wit:
a. Whether the learned trial Court was right in accepting the evidence of the defence on the question of execution and validity of Exhibit 1 thereby placing the burden of proving the validity of Exhibit 1 on

the Appellants when the propounder of the WILL did not discharge the primary onus on them by law? (Grounds 1 and 2).
b. Whether the learned trial judge was right in holding that the WILL Exhibit 1 was duly executed? (Ground 3)
c. Whether the learned trial judge was right in placing undue reliance on the evidence of the defence that Chief J.C Okeke was hale and hearty when he gave out his daughter in marriage thereby gave judgment in favour on the grounds that the Plaintiffs did not dismantle the said evidence (Ground 4).

The Respondents on the 20th day of March, 2018 filed their Respondents? Brief dated 19th day of March, 2018. The said brief was settled by C.G. ONYEACHO ESQ., who also identified a sole issue for determination which are:
a. Whether having regards to the pleadings and evidence adduced, the learned trial judge was justified and right in giving/delivering judgment in favour of the Defendants/Respondents.

APPELLANTS? ARGUMENTS
It is the submission of learned counsel to the Appellants that where a dispute as to the validity of a Will abounds, the primary onus of proof lies on the propounders of the Will to

establish prima facie, that the WILL was duly executed. Counsel submitted further that the burden of proof in civil matters is never static but successfully shifts and that if the party that propounds a will discharges its primary onus, the secondary onus of proofs of the allegation that the Will has not been duly executed shifts unto the party challenging the due execution to substantiate the allegation. Counsel referred this Honourable Court to the case of ADAMU V IKHARO (1988) 2 NWLR (Pt. 89) 474; OKELOLA V BOYLE (1989) 5 NWLR (Pt. 119) 46.

Learned counsel to the Appellants submitted that Exhibit 1 is not the Will and testament of the Chief J.C Okeke (deceased) and same is a fraud on the Appellants. He referred this Court to the testimony of PW2 when he stated that:
?My signature is on Exhibit 1 quite right but that was not the document Chief James Chukwuma Okeke gave me to sign on that date. The document I signed is heavier or bigger than Exhibit 1?
The ten page document which I signed is not in Court.?

?Counsel submitted further that the Respondents based on their pleadings and the evidence of the 5 witnesses called by

them during trial did not challenge the allegation of the Appellant and provide a cogent and credible ground to enable them discharge the burden on them as the propounders of the Will.

He referred this Court extensively to the evidence of DW1 (one Dr. E.K. Ngati who was said to be the personal physician of late Chief J.C. Okeke). DW2 (one Clifford Chukwuma), DW3 (one Mr. K.V. Ndu), DW4 (one Victoria Obianuju Eronini) and lastly DW5, (one Price Emma Iwuchukwu).

It is the submission of counsel to the Appellants that it was after the burial of the late Chief Chukwuma Okeke on the 16th April, 2004 that DW4 on the 28th November 2004 summoned a family meeting at No. 9 Uwka Street, Independence Layout, Enugu and produced an envelope telling the family in the meeting that she had a message from their late father which was given to her a few years ago which turned out to be a purported WILL of Chief James Chukwuma Okeke (late).

?Counsel submitted that PW3 and PW4 gave evidence to the effect that they have made several search of the WILL even to the knowledge of the 3rd Defendant/Respondent but to no avail, he refers to pages 19 and 20 of the supplementary

record of appeal, that DW4 in her evidence in chief and cross-examination contradicted herself on the issue of custody of the WILL, that there are four pages in one copy of the will and there are 10 copies of the WILL and that C.C Okoli signed the WILL in her presence.

Counsel submitted that during evidence in Chief DW2 at pages 34 ? 35 of the Record say that Chief James Chukwuma Okeke signed his WILL in the presence of Professor Ezejiofor, Hon. Clifford Chukuma, Mr. C.C. Okolo and (DW3 Prof. Ezejiofor) that on that day Pro. Ezejjiofor brought the Will in a brown envelope and the WILL was read by Chief James Chukwuma Okeke page by page and he commend Prof. Ezejiofor for good work, and signed the WILL and gave to Hon. Chukwuka to sign, who signed and gave it back to Chief James Chukwuma Okeke.

Counsel further submitted that DW3 Prof. Ezejiofor brought the WILL of 4 pages and 10 copies thereof, all of the 10 copies were signed, C.C. Okolo also signed all the 10 copies, Hon. Chukwuka also signed all the 10 copies, but DW2 was thrown off balance when he said under cross examination, that there are 4 pages in one copy of the WILL.

Counsel further submitted that DW4 (Mrs. Ebele Eronini), who identified Exhibit 1 says she saw it when she visited Chief James Chukwuma Okeke at Enugu on her routine visit, that she took the custody of the WILL that Chief James Chukwuma Okeke gave her a sealed brown envelope being a copy of his new WILL and that she took it back to Owerri.

Counsel refers to page 37 of the supplementary record of appeal and submitted that nothing stops DW4 from disclosing the existence of the WILL should be read after 6 months of burial, that DW4 knew about Exhibit 3 coming after three meeting held on the issue of reading of the WILL before the burial contrary to her denials in evidence.

Counsel contended that there was no reason why the 1st ? 3rd Defendants/Respondents shrouded the existence and the possession of the WILL of late Chief James Chukwuma Okeke if Exhibit 1 was a genuine part of their father, the six months instruction was not contained either in the WILL nor in the pleadings and the 4th defendant witness Mrs. Ebele Eronini admitted that the pleading were written on her instruction. Counsel submitted that the deceased under this circumstances would not have

given such an instruction, that the trial Court proceeded and went on to accept the evidence of the defence as credible.

Counsel contended that it is trite that a trial Court has the primary duty in a trial whether civil or criminal to listen to, watch and observe the demeanor of witness, it has a duty to admit or reject document or other material or objects tendered in evidence as Exhibit, It has a duty at the close of trial, to weigh and ascribe probative value to all the evidence placed properly before it, the trial Court can do this by placing the totality of the testimonies adduced by the parties on an imaginary scale balance.
Counsel submitted that the evidence of PW1 and PW2 are more credible and the trial Court failed to consider same.

Counsel contended that there is contradiction on the evidence of DW4 and DW2 as to Exhibit 1, referred to page 39 of the supplementary records Appeal, and further stated that Exhibit 1 contain an avalanche of inconsistencies, contradictions and syntax errors which hardly represent the intellectual prowess of the erudite learned legal luminary said to have allowed it, and that Exhibit 1 is not the original

last will and testament of late Chief James Chukwu Okeke, and finally urge the Court to hold that Exhibit 1 is not the original WILL of Late Chief James Chukwuma Okeke.

THE RESPONDENTS ARGUMENTS
The counsel to the Respondents on the other hand submitted that the Respondents discharged the onus placed on them by calling evidence which prima facie shows that Exhibit 1 is valid, and that that the Appellants failed completely to establish the heavy allegation of fraud made in their Amended Statement of Claim, and that Appellants evidence were contradictory and inconsistent.

Counsel further submitted that the bedrock of the claim of the Appellants is that Exhibit 1 which is the Last WILL and Testament of Chief James Chukwuma Okeke (late) is a nullity and it lacks the due execution by the said Chief James Chukwuma Okeke (late) and consequently a fraud on the side of the Plaintiffs/Appellants, counsel submitted that when there is a clear dispute to a validity of a WILL in that there was lack of due execution by the testator, those who propound it must manifestly establish by prima facie evidence that the testator has the necessary capacity, and

was a free and capable testator and that there has been due execution, in other words, those who propound the WILL must show that prima facie all is in order in respect of the WILL. He further contend that the Defendants/Respondent had prima facie by evidence shown that Exhibit 1 was duly executed by the Defendants/Respondents, and that (Late) Chief James Chukwuma Okeke had the necessary testamentary capacity to execute the WILL, they referred to JOHNSON VS MAJA (1951) 12 WACA 290; ADEBAJO VS ADEBAJO (1973) ALL NRL 361.

Counsel submitted that the testator (Late) Chief James Chukwuma Okeke has the testamentary capacity at the time he executed the WILL, and that the testator understanding and he does understand that he is executing a WILL, for which he has given instruction. Counsel referred this Court to PRERERA VS PRERERA (1901) AC 354 361 362; PARKER VS PELGATE (1883) 8. PD 171.

Counsel contend that a testator?s capacity is determined at the time or date of execution of the WILL, referred this Court to BALONWU VS NEZIANYA (1959) 3 ERLR, 4 AND FEDERAL ADMINISTRATOR GENERAL VS JOHNSON (1961) LLR 291.

Counsel submitted that the Plaintiffs/Appellants did not adduced any evidence to show that the testator had a mental disease and/or suffered insane delusion which affected his reasoning and judgment, that evidence of DW2 and DW3 shows that on the 13/04/1999 the testator was rational and understood what he was doing at the material time. Counsel submitted that mental capacity of a testator is determined at the time and date the WILL was executed. He referred this Court to ADEBAJO VS ADEBAJO (1973) 1 ALC NLR 361; BANKS VS GOODFELLOW (1890) LRQB 549.

Counsel also contend that PW2 also demonstrated that at the date of execution of Exhibit 1, the testator Chief James Chukwuma Okeke appreciate and understood the nature of what he was doing, he knew he was executing Exhibit 1, refers to PARKER VS FELGATE (supra), that evidence of DW2, DW3 and PW2 categorically showed that the testator read the content of Exhibit 1 and consequently approved the said content of Exhibit 1, and that DW3 had lived for 30 years with the testator who clearly pinpoint Exhibit 1, and that the testator had a sound mind at the time and date of executing Exhibit 1. Counsel referred to JOHNSON VS MAJA (supra).

Counsel contend that the Appellants plead particulars of fraud in their paragraph 19(a) of their amended statement of claim which the Appellants failed to prove. Counsel submit argued that the burden of proving the existence of any fact is in the party who assert it, he referred this Honourable Court to Sections 131(2), 132 ? 133 and 136 of the Evidence Act, 2011 (as amended) and JALLCO LTD VS OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (PT. 391) 534 and urge the Court to hold from surrounding evidence that the testator had the requisite testamentary capacity at the execution of the WILL.

Also, the counsel to the Respondents argue that Exhibit 1 was produced from the probate registry by PW1, and PW1 said Exhibit 2 was sent to them for the purpose of unsealing Exhibit 1, counsel contend that the Plaintiffs/Appellants did not lead any evidence to the fact that he entered any caveat or objection nor did he treat PW1 as a hostile witness, from evidence of PW1, the plaintiffs were present when Exhibit 1 was read, counsel submitted that the piece of evidence by PW1 has completely knocked down the Appellants argument as contained in paragraph 12 and 19 of the Appellants? statement of claim.

It is also the submission of counsel to the Respondents that the evidence of PW2 contradicted the case of the Appellants when PW2 stated under cross-examination that he did not read the content before appending his signature, because the late Chief James Chukwuma Okeke did not allow him (PW2) to read it as he said it was his WILL, and PW2 signed the last page of Exhibit 1. Counsel submitted further that it is not in doubt that PW2 has confirmed that there was a WILL made by late Chief James Chukwuma Okeke and that PW1 and PW2 demolished the case of the Plaintiffs/Appellants in this regard and cannot be treated as a truthful witness as his evidence is not stable, that where a witness gives different versions of the evidence, the witness exposed himself whose evidence cannot is correct. On the basis of this, counsel submitted that PW2?s testimony should be rejected by the Court, as he is not a witness of truth. Counsel referred this Court to the case of SOWEMIMO VS STATE (2004) 11 NWLR PT. 885 515

Counsel further contended that the evidence of PW1, PW2, PW3, PW4 and PW5 are inconsistent and

completely worthless inadmissible, completely at variance, and are contrary to the Appellants amended statement of claim as their evidence proved nothing against the Respondents.

Counsel contend that there is no evidence adduced by the Appellants in proof of their averments as contained in paragraphs 19(a) (b) (c) (d) (e) (g) (i) 20 and 21 of the Amended Statement of Claim as this averments are deemed abandoned and also the allegation of fraud alleged in the Amended Statement of Claim was not proved.

Counsel further argued that documentary evidence is the best form of evidence and he submitted that Exhibits 1, 2, and 3 are in conflict with PW3 and PW4?s assertion that late Chief James Chukwuma Okeke owns the Eastern Medical Centre. Counsel submitted further that Exhibits 3, 4 and 6 shattered the oral testimony of PW3 and PW4 and also that Exhibits 4 and 5 shows that the 3rd Respondent was not one of the parties in Exhibit 3 and she has no knowledge of the same. It is also the submission of counsel that Exhibit 5 shows that the 3rd defendant did not inform the PW4 about the existence of the WILL and that evidence of PW2 and

PW3 under cross-examination knocked out the allegation in paragraph 22 of the Amended Statement of Claim.

Counsel to the Respondents contended that the evidence of DW2, DW3 and PW2 established that the testator executed Exhibit 1. It is his submission that DW3 said in his testimony that the testator read the contents of Exhibit 1 and approved same. Counsel submitted further that the irregularities, incorrect spellings and imprimatur of a solicitor on a WILL does not affect the validity of a will that is properly executed. He referred this Court to NNB LTD VS BAZUNU (1998) 11 NWLR (PT. 575) 645, 12A, IYAMU VS ALONGE (2007) 1 NWLR (PT. 1029) 84.

Counsel submitted that the Respondents have discharged the burden of proof of the validity, and due execution of Exhibit 1. He referred this Court to OKELOLA VS BOYLE (supra) to support his position that there was a prima facie evidence that the deceased not only duly executed the WILL but also had testamentary capacity to do so and that it is only after discharging the primary duty that the onus would shift to the evidence of PW2 supported and substantiate the evidence of DW2 and DW3 on the testamentary capacity

of the testator Chief James Chukwuma Okeke (late).

Counsel also submitted that DW2, DW3 and PW2 who were present during the execution of the said testamentary document proved testamentary capacity of the testator and the due execution of Exhibit 1 and that there was no evidence by the Appellants in rebuttal of the testamentary capacity of the testator and due execution.
On a final note, counsel urged this Court to dismiss the Appellants appeal and uphold the judgment of the trial Court.

APPELLANTS REPLY
In reply to the submissions and arguments of the Respondents, the Appellants submitted inter-alia that Exhibit 1 which purport to be the Last WILL and Testament of Chief James Chukwuma Okeke was ex facie duly executed, and that where suspicion in the case is attached the WILL cannot be said to be ex facie regular or where the testator suffers from some disability such as deafness, blindness or literacy, the maxim omina preasumtur rite esseacta does not apply with same force, counsel refers to OKELOLA VS BOYLE (1998) 2 NWLR (PT.539) AT PG 536. He referred

this Court to his brief of argument in particularly paragraphs 5.0 – 5.17 to support his position and also to refer Order 55 Rule 4 of the Enugu State High Court Rules 2006 which provides thus:
Any person having his possession or under his control any paper or writing of any deceased person, being or purporting to be testamentary, shall forthwith deliver the original to the Probate Registrar of the Court. If any person fails to do so within 3 months after having had knowledge of the death of the deceased, he may be liable to a fine of N5,000.00 (Five thousand Naira) as the Judge having regard to the condition of such person in default and other circumstances of the case deem fit to impose?.

It is also the contention of counsel to the Appellants that PW3 (Afam Okeke), told the Court that they have searched at the probate registry in search of the WILL but to no avail. He referred this Court to pages 12 Lines 4 ? 13 of the Supplementary Record of Appeal.

On the whole, Counsel to the Appellants urged this Court to discountenance the submissions of the Respondents in its entirety and allow the Appeal.

RESOLUTION
I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered.

In effect of the above, I consider the issue distilled by learned counsel to the Respondents as apt and germane for the determination of this appeal.

ISSUE FOR DETERMINATION
WHETHER HAVING REGARD TO THE PLEADINGS AND

EVIDENCE ADDUCED, THE LEARNED TRIAL JUDGE WAS JUSTIFIED AND RIGHT IN GIVING/DELIVERING JUDGMENT IN FAVOUR OF THE RESPONDENTS?

GOODS V DAVIES 163 ER 1337.
3. In a situation where a testator signed the Will in the absence of the required witnesses, a testator can validly acknowledge his signature before the witnesses. Consequently, the Will which would have been invalid for being executed by a testator in the absence of witnesses will become valid once the signature of the testator is acknowledged before them. The acknowledgment could be by words or conducts or even by gesture. See GOODS V DAVIES (Supra).

Considering the instant appeal, the bone of contention between the parties is that the Appellants are contending that the Respondents were parading Exhibit 1 and the said Exhibit 1 is not validly written by their father, Chief James Chukwuma Okeke (deceased) and that the deceased was not hale and hearty as at the time of executing Exhibit 1.

The first issue I shall seek to address is the Appellants? contention that the trial Court placed on the Appellants the initial burden of proving the validity of the Exhibit 1 when the onus of proof on the validity of a Will lies on the propounders of the Will to establish that, prima facie, the Will was duly executed.

The law is trite that the burden of proof lies on the party whose claims will fail if no evidence is adduced. In essence, the burden of proof in civil actions, the initial burden of proof lies on the party against whom the Court would give judgment if the evidence were not produced on either side. See SECTION 131 OF THE EVIDENCE ACT, 2011 (as amended).
However reverse is the case where there is a dispute as to the validity of a Will as the primary onus or the initial burden lies on the propounders of the Will to establish that the Will was duly executed as required by the relevant provisions of our extant laws. It is until this burden is discharged on the preponderance of probability that the onus shifts to that party who contest the validity of the said testamentary document. The exceptions to the rule does not stop here and I am of the opinion that the learned counsel for the Appellants did not avert his mind to another situation where the initial onus does not lie on the propounders of the Will but goes straight to the party challenging the validity. It is the law that once a will has been admitted to probate, the propounders of the

Will are discharged of the initial burden of proof which they carry. This Court in the case of CHIEF EYO EDEM NSEFIK & ORS. V. ROSEMARY MUNA & ORS. (2007) LPELR-3934 (CA) held that:
The will is being propounded when application is lodged with registrar of probate for the grant of probate, that is to say when the executors apply for a grant of probate of a will. It is during the pendency of the application for grant of probate at the probate registry of the Court, when there is a dispute as to the will that those who propound it must manifestly establish by evidence prima facie that there has been due execution and that the testator had the necessary capacity and was a free and capable testator. This is the only time the defendants have the burden of proof and duty of commencing the trial.

From the above judicial pronouncement, I do not agree with learned counsel to the Appellants that the trial Court placed on the Appellants the initial burden of proving the validity of the Will of Chief James Chukwuma Okeke (deceased). Considering the circumstances of the matter and the time in which the action was brought, the Respondents were not

propounding the Will to warrant the placing on them the initial burden of proof.

After ascertaining who had the initial burden of proof and whose claim will fail if no credible evidence was adduced, the next point of consideration is whether Exhibit 1 was duly executed by Chief James Chukwuma Okeke (deceased) because to me the crux of the legal squabble between the parties is the validity or otherwise of the said Exhibit 1.

Going by the provisions of Section 140 (a), (b) and (c) of the Administration of Estate Law Cap 56 Laws of Enugu State which provides thus:
No Will shall be valid unless it shall be executed in the manner hereinafter mentioned, that is to say:
a. It shall be signed or thumb impressed or otherwise marked at the foot or end thereof by the testator or by some other person in his presence and at his direction; and
b. Such signature, thumb impression or mark, as the case may be shall be made or acknowledged by the testator in the presence of two or more witnesses who shall be present at the same time and shall see the testator?s signature, thumb impression or mark at the time the same shall be affixed or acknowledged; and

c. Such witnesses shall attest and shall subscribe the Will in the presence of the testator, but no form of attestation shall be necessary.

Flowing from the above provision, I shall seek to consider whether or not, Chief James Chukwuma Okeke (deceased) truly made Exhibit 1 and also if same was duly executed in accordance with the provisions of Section 140 (a), (b) and (c) of the Administration of Estate Law Caps 56 Laws of Enugu State 2004. In carrying out the above judicial exercise this Court will look to see and determine by the evidence adduced by both sides to know which is weightier that the other. See BRENCHLEY V STILL 163 ER 1277, 1282.

I shall proceed to take a cursory look at the testimonies of the relevant witnesses as borne out of records. I have considered the evidence of PW2 in his evidence in chief at pages 7-8 of the Supplementary Records state clearly that:
I knew Chief James Chukwuma Okeke. He is deceased now. My signature is on Exhibit 1. I remember signing a document for Chief James Okeke. In April, 1999, Chief James Okeke called me to his house and after breaking of kola, he told me

that he had a document I would sign for him. My signature is on Exhibit 1 quite alright, but that was not the document Chief James Okeke gave me to sign on that date. Chief James said I should not read the document because it was his WILL, but that I should sign it. That document I signed is heavier or bigger than Exhibit 1. I know Hon. Clifford Chukwuka. He was not present on that day I signed the document.

PW3 also testified in his evidence that the signature on Exhibit 1 looks like his father?s signature but looks like what was forged.
DW3 in his testimony also testified that he witnessed the signing of Exhibit 1. The said testimony of DW3 was corroborated by that of DW2.
DW3 in his evidence at page 34-35 of the Supplementary Records stated that:
I remember on the 13th day April, 1999. That was the day Chief J. C Okeke signed his Will. In the presence of Professor Ezejiofor, Hon. Clifford Chukwuma, Mr. C.C. Okoli and myself, K.K. Ndu. On that day, Prof. Ezejiofor brought the WILL in a brown envelope. Ezejiofor brought the WILL and the WILL was read by J.C Okeke page by page and he commended Prof. Ezejiofor for good work done

and signed the WILL and gave it to Hon. Chukwuka to sign, who signed and gave it back to Chief J.C Okeke who handed it over to Mr. C.C Okoli who signed and gave it back to Chief J.C Okeke. The execution of the WILL took place at No. 9 Uwka Street, Independence Layout in J.C Okeke?s sitting room. After the execution of the WILL, Chief J.C Okeke blessed the cola nut and the Eva Wine on the table and we all ate and drank.

The evidence of DW2, one Clifford Chukwuma at page 31 of the Supplementary record also corroborated the above evidence of DW3 when he stated that he was invited by Chief James Chukwuma Okeke (deceased) and that he met C.C. Okoli, Prof Gaius Ezejofor and Kalu Ndu and that they all signed in the presence of Chief James Chukwuma Okeke. I am of the considered view that these pieces of evidence are direct and credible.

I have taken a close perusal at the testimonies of the Appellants witnesses i.e. PW1, PW2, PW3, PW4 and PW5 at pages 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 27 of the Supplementary Records and I am of the view that their evidence are irreconcilably inconsistent. For

instance, the evidence of PW2, one Christian Chukwuka Okoh at pages 9 and 10 of the supplementary records shows that Chief James Chukwuma Okeke (deceased) made Exhibit 1. The evidence of PW2 is at variance with that of PW3 and PW4 which in my mind is inconsistent. PW3 and PW4 under examination-in-chief asserted that the gift under Exhibit 1 favoured the 4th ? 6th Defendants but under cross-examination, they admitted that 131 Zik Avenue was given to the 5th Plaintiff and his sister, the flat at Ukwa Street was said to be given to all the children according to their mothers. PW3 admitted under cross-examination that his mother was given a life interest at Grant Street. PW4 asserted that he did not receive Exhibit 2 but PW1 under cross-examination admitted that Exhibit 2 was sent to the parties and Exhibit 1 was read to all of them.

The evidence of PW2 and DW3 showed clearly that the deceased was of sound mind as at the time of executing Exhibit 1. The law is trite that a testator?s mental capacity is determined at the time or date the Will was executed. See ADEBAJO V ADEBAJO (supra). The evidence of DW2 and DW3 were definite as to the time of executing Exhibit 1.

The Appellants pleaded the particulars of fraud in paragraph 19(a) of their Amended Statement of Claim without leading evidence to proof same. I have no doubt in my mind that the averment in the said paragraph alleging fraud is abandoned by the Appellants. I completely agree with the evidence of the Respondents and I am of the opinion that the DW2, DW3 and PW2 proved the testamentary capacity of the deceased and also the due execution of Exhibit 1. There was no convincing evidence to rebut the testamentary capacity of the testator and due execution of Exhibit 1 as DW2, DW3 and PW2 were present during the execution of Exhibit 1 therefore fulfilling the second limb of the conditions necessary for the validity of a Will. See APATIRA V AKANDE (supra); WYATTA V BERY (supra).

It is also equally important to state that the Appellants contended that the trial Court failed to evaluate the evidence place before it or failed in its duty of evaluation of the entire evidence. It is my view that the entire evaluation of evidence involves assessment of evidence so as to give probative value or quality to it and all the Court to need do is place it

on record how it arrived at its conclusion of preferring one piece of evidence to the other. See ALAKE V STATE (1992) 9 NWLR (Pt. 265) Per. Akinbanmi J.C.A (P.27) paras. D-E
It is well settled that the evaluation of evidence is the primarily exclusive preserve of the trial Court. In the instant, I cannot fault the trial Court in evaluating the evidence. I therefore think that the Court can only evaluate the evidence placed before it and where none is provided, the Court cannot go all way to manufacture evidence for a party.

In the final analysis therefore, I resolve the sole issue distilled by this Honourable Court in favour of the Respondents and against the Appellants. I hereby affirm the decision of the trial Court delivered on the 16th day of March, 2015 by the Enugu State High Court, Per I.A Umezulike J. In all, this appeal is bereft of merit and is hereby dismissed. I award the sum of N50, 000.00 (Fifty Thousand Naira Only) as cost against the Appellants and in favour of the Respondents.

IGNATIUS IGWE AGUBE, J.C.A.: I have read the illuminating Judgment of my Learned brother A. S. Umar,

JCA and I am in total agreement with his reasoning and conclusion on the Sole Issue distilled for determination that this Appeal lacks merit and same is accordingly dismissed.
The decision of the Learned trial Judge of the Enugu State High Court delivered on the 16th day of March, 2015 is hereby affirmed and I abide by the order as to costs as made by my Learned brother.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I was privileged to read the draft judgment of my learned brother HON. JUSTICE ABUBAKAR SADIQ UMAR, JCA. I agree with his lordship’s reasoning and conclusion therein that this appeal has no merit and is dismissed. I abide by the consequential orders made therein.

Appearances:

M.O. BissongFor Appellant(s)

Prof. G.M. Nwogbagu with him, C.A. NwogbaguFor Respondent(s)

Appearances

M.O. BissongFor Appellant

AND

Prof. G.M. Nwogbagu with him, C.A. NwogbaguFor Respondent