NZE EDOZIE OKAFOR & ANOR v. UGWUMBA UCHE OKAFOR & ANOR (2016)

NZE EDOZIE OKAFOR & ANOR v. UGWUMBA UCHE OKAFOR & ANOR

(2016)LCN/8457(CA)

In The Court of Appeal of Nigeria

On Thursday, the 31st day of March, 2016

CA/OW/319/2011

RATIO

EVIDENCE: BURDEN OF PROOF; ON WHOM LIES THE BURDEN OF PROVING THE AUTHENCITY OF A WILL
On this Issue, parties are ad idem that where there is a dispute as to the validity of a Will the initial onus of proof is on the propounders of the Will (in the instant case, the Appellants) who ought to show by credible evidence prima facie that the Will was duly executed and that the Testator (in this case Chief Nzedioranma Uche Okafor (Deceased) had the mental capacity or corpus mentis to execute the Will as a free agent without undue influence or fraud. Upon the Appellants having satisfied/discharged this initial burden, the onus shifted to the 1st Respondent who impugned the Will and its validity to prove the contrary also with credible evidence. In the instant case, since the 1st Respondent alleged that the Will was a forgery he ought to have established these allegations of lack of mental capacity of the Deceased and the forgery beyond reasonable doubt.
In Ize Iyamu V. Alonge 2007 6 NWLR (Pt.1029) page 84 at 89 ably cited by the learned Counsel for the 1st Respondent at page 20 of the 1st Respondent?s Brief the Court held in line with the decision in Odjegba V. Ojegba (2004) 2 NWLR (Pt.858) 566; at 585- 856, Paras. G – B, and 587, Paras B. C. also cited by the learned Counsel for the Appellants at page 8 of the Appellants? Brief that:
“The burden of proof of the genuineness and authencity of a will lies on the party propounding it. Where there is a dispute as to a Will the party who propounds it must clearly show by evidence that prima facie everything is in order that is to say that there has been due execution and that the testator had the necessary capacity and was a free agent.
See also Johnson & Ors. V. Maja & Ors. 13 WACA290 at 291 – 292 quoted in Ojegba V. Ojegba (supra) per Muhammad, JCA at pages 24 -25 of (2003) LPELR – 7211 (CA) who reasoned thus:
“On they (the Propounders of the Will) having satisfied the Court, prima facie, as to these matters, it seems to me that the burden is then cast upon those who attack the Will; and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence and so forth. PER IGNATIUS IGWE AGUBE, J.C.A.
ACTION: NATURE OF A COUNTER CLAIM
I say this without being oblivious of the fact and position of the law that a Counter-Claim is a cross-action (see, Dabup V. Kolo (1993) LPELR -905 (S.C.) per Ogundare, JSC at page 38; Ogli Oko Memorial Farms. Ltd. & Anor V. Nigerian Agricultural & Co-Operative Bank Ltd. & Anor (2008) 12 NWLR (Pt.1098) 412 at 428; Jeric Nig. Ltd. V. Union Bank Plc. (2000) 12 SCNJ 184 at 2201; General Oil V. F.S.B. International Bank Plc. (2005) 5 NWLR (Pt.979) at 597, Chief Adison Onya & Ors. V. Chief Godwin & Ors. (2009) LPELR – 8508 (CA) where this Court per Saulawa relying on Supreme Court authorities like Garba V. Kur (2003) NWLR (Pt. 831) 280; Usman V. Garke (1991) 1 NWLR (Pt. 587) 466; Jeric Nig. Ltd. V. Union Bank of Nigeria plc (Supra) and Kwajaffa V. BON (1999) 1 NWLR (Pt. 587) 423; rightly stated the position of the law that it is trite that a Counter-Claim is, for all intents and purposes a separate, independent and distinct action.
This being the case as settled by a plethora of authorities, the onus lies on the Counter-Claimant who has assumed the position of a plaintiff to prove the Counter-Claim with credible and cogent evidence to satisfy the Court that he is entitled to the Reliefs sought. He also, like the plaintiffs in this case who sought for Dedicatory Reliefs, shall rely on the strength of his case and not on the weakness of the Plaintiff?s case since the dismissal would not necessarily result in the success of the Counter-Claim. See further Ogunola & Anor V. Saka & Ors. (2011) LPELR – 8946 (CA) Per Salami JCA at page 11 Paras. D – E and Ogbonna V. The AG Imo State & Ors. (1992) LPELR 2287 (SC) Per Nnaemeka-Agu, JSC of Blessed Memory at Paras. B – D and Per Galinje JCA in Susainah (Trawling Vessel) and 2 Ors V. Mr. Segun Abogun (2006) LPELR -7732 (CA) at 37 – 38 Paras. F – G ).
In spite of the independent and distinct nature of the Counter-Claim or Cross action from the main Claim of the Respondent as in this case, where however the claims of the respective rival parties are the direct opposite of each other on the same facts and same evidence led in proof of one is the same as the other as in this case, it seems to me that the Trial Court having dismissed the main Suit in its entirety cannot turn somersault and dismiss the Counter-Claim as the learned trial Judge had done in the Lower Court as this would tantamount to sitting on Appeal over and setting aside his earlier Judgment dismissing the Claim of the Plaintiffs/Respondents and the Reliefs sought which are the direct opposite of the Counter-Claim except the learned Trial Judgment non suited the parties. PER IGNATIUS IGWE AGUBE, J.C.A.
APPEAL: CIRCUMSTANCES WHERE LEAVE OF COURT IS REQUIRED BY A RESPONDENT
Order 9 Rule 3 of the Court of Appeal Rules, 2011 is very clear on this point that:
“3. Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the Appeal to contend that the decision of the Court below should be varied upon grounds not specified in a Notice given under this Rule, to apply for any relief not specified or to support the decision of the Court below upon any grounds not relied upon by that Court or specified in such a Notice.”
See, Ifegwu V. UBN (2011) 16 NWLR (Pt.1274) 555; Lagos City Council V. Ajayi (1970) 1 ALL NLR 291; Eliochin (Nig.) Ltd. V. Mbadiwe (1986) 5 NWLR (Pt.122) 377; Obi V. INEC (2007) 11 NWLR (Pt.1046) 565 and Buhari V. Obasanjo (2003) 17 NWLR (Pt. 850) 587. PER IGNATIUS IGWE AGUBE, J.C.A.
EVIDENCE: ON WHOM LIES THE DUTY OF PROVING THE VALIDITY OF A WILL
Of Course, by law, once the requirement of due execution of a Will (that is, that the testator signed the Will under correct state of mind, in the presence of two or more witnesses, who, together witnessed the said signing and they too attested and subscribed the Will) is satisfied, the validity of the Will is established, and the person contesting the Will is saddled with the burden of rebutting that presumption. In a recent case of Joseph Akujobi vs. Dr. Nelson Ehirim & Ors: CA/OW/269) 2011, delivered on 13/11/15, this Court held:
“The law is that, where there is a dispute concerning the due execution of a Will or the testamentary capacity of the testator, the burden is on those who propound the Will to prove its validity or due execution, and where they have discharged that burden, satisfactorily, it becomes incumbent on those attacking it, to adduce cogent and credible evidence to substantiate their allegation of improper execution. See Chidebelu & Anor vs. Probate Registrar, High Court of Anambra State and Ors. (2013) LPELR 21215 (CA): Johnson vs. Maja (1951) 13 WACA 290; Adebayo vs. Adebayo (2000) 4 NWLR (Pt.652) 168.”
It was further held in that case of Akujobi v. Ehirim (supra) that:
“The evidence of DW1 and DW2, who both together witnessed the signing of the will, at the very time the testator signed it and also attested to the same, in the presence of the testator and of each other was credible… Endorsement of a Will, in my view, can only confirm a will, and it is not meant to validate it, just as failure to confirm does not invalidate it. Therefore, an already valid Will (or document) cannot be invalidated or diminished/destroyed by error or defect on the face of it, traceable to the official(s) meant to endorse the document, as long as the endorsement was not meant to validate the document.” (Pages 27 – 28 thereof). PER ITA GEORGE MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. NZE EDOZIE OKAFOR
2. NIDB TRUSTEES LIMITED Appellant(s)

AND

1. UGWUMBA UCHE OKAFOR
(For himself and as representing the five wives and children of Chief NZEDIORANMA UCHE OKAFOR (deceased) excluding the 2nd Defendant, the wives and children of the Dibugo and Ukaegbo kitchens of Chief Nzedioranma Uche Okafor Family)
2. THE PROBATE REGISTRAR HIGH COURT UMUAHIA Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment):? This Appeal is against the Judgment of the Hon. Justice Onuoha A. K. Ogwe, then sitting at Umuahia Judicial Division of the High Court of the Justice of Abia State of Nigeria which Judgment was delivered on the 21st day of February, 2011 dismissing both the main claim of the Plaintiffs (now 1st set of Respondents) and the Counter?Claim of the Defendants/Counter-Claimants (now Appellants).?

It would be recalled that the Plaintiffs in their Writ of Summons dated and filed on the 7th day of December, 2007 and the accompanying Statement of Claim dated and filed same date, sought for the following Reliefs against the Defendants jointly and severally:
?a. A Declaration that Chief Nzedioranma Uche Okafor made no Will in? his life time and therefore died intestate.
?b. A Declaration that having made no will, the Properties/Estate of Chief Nzedioranma Uche Okafor should be shared/devolved according to the Customs and tradition of Nkwukwo Village Unubi in Nnewi South Local Government Area of Anambra State and/or in line with the declaration made by

the deceased on the 4th day of January, 2007.
?c. A Declaration that the purported Document titled ?Last Will and Testament of Chief Nzedioranma Uche Okafor? dated the 21st December, 2000 is a forgery and/or the deceased had no testamentary capacity to make same and therefore same, is null and void and of no effect whatsoever.
?d. An Order of Court setting aside the purported Will and/or pronouncing against same.
?e. An Order directing that the properties/Estate of Chief Nzedioranma Uche Okafor be shared/devolved on his beneficiaries according to the Custom and tradition of Nkwukwo Village Unubi in Nnewi South Local Government Area of Anambra State.
?f. An Order of Court restraining the 1st Defendant its agents, servants, privies from tampering and/or interfering with the properties/Estate of the Chief Nzedioranma Uche Okafor in any manner.
?g. An Order of Court restraining the 2nd Defendant, his agents, servants or privies from interfering with the properties/Estate of Chief Nzedioranma Uche Okafor save in accordance with the Customs and traditions of Nkwukwo Village, Unubi in Newi South Local

Government Area of Anambra Sate.
?h. An Order of Court restraining the third Defendant his agents, servants or privies from granting Probate/Letters of Administration to the 1st and 2nd Defendants relative to the Estate of Chief Nzedioranma Uche Okafor or to any other person whatsoever or in any other manner interfering with the Estate save in accordance with the Custom and Traditions of Nkwukwo Village, Unubi in Nnewi South Local Government Area of Anambra State?. (See pages 2, 12-13 of the Records).

Accompanying the Wirt of Summons and Statement of Claim was an Authority to sue in representative capacity donated to the Plaintiff Ugwumba Uche Okafor OF No. 285, Port Harcourt Road, Aba, by the wives and Children of the deceased Nzedioranma Uche Okafor which Authority is captioned “CERTIFICATION OF AUTHORITY? signed and dated the 21st February, 2007 by all the said five wives and children. See pages 14 ? 16 of the Records.
?
Upon being served with the originating processes the respective Defendants entered conditional Appearances through their learned Counsel on the 19th day of February, 2007 and 17th March, 2008.

See pages 29 ? 31 of the Records. The 1st and 2nd Defendants? Statement of Defence dated 17th March, 2008 was filed on the 18th of March, 2008 whereof they Counter-Claimed at pages 29 – 30 of the Records as follows:-
?(a) A Declaration that the Last Will and Testament of Chief Nzedioranma Uche Okafor and lodged with the Probate Registry, Umuahia sufficiently complied with all the Legal rules and regulations with respect to the due execution of Wills.
?(b) A Declaration that the said will of the Deceased Testator (Chief N. U. Okafor) remain authentic, valid, lawful and subsisting and suffers no fundamental defect known to Law.
?(c) An Order directing the Probate Registry/Officials, High Court of Justice, Umuahia to grant Probate to the 1st Defendant as Executor/Trustee to manage the estate of Late Chief N.U Okafor in accordance with all the instructions contained in the Will.
?(d) An Order perpetually removing/setting aside the Caveat entered or preventing further renewals of same and authorizing the 3rd Defendant to deal with the 1st Defendant and 2nd Defendant as mandated by the Will As

Executors/Trustees of the said will.
?(e) An Order restraining the Plaintiff, those in the class he represents, their agents, privies, servants, workmen, and successors?in-title and/or Assigns from interfering or in any way disturbing the 1st and 2nd Defendants in their role as Executors/Trustees and business and in accordance with stipulations contained in the Will of late Chief N. U. Okafor.
?f. N10,000,00.00 (Ten Million Naira) only against the Plaintiff as general damages suffered by the Defendants by reason of the unwarranted acts and unjustifiable claims of the Plaintiffs relating to the estate of Late Chief N.U. Okafor, the validity of the Will, the inception of executorships and trusteeship as management of the Estate, the issuance of Probate etc.?

The 3rd Defendant on his part filed his Statement of Defence dated the 7th day of May, 2008. (see pages 31 ? 42 of the Records). Upon being served with the respective Statements of Defence of the Defendants and the 1st and 2nd Defendants? Counter-Claim, the Plaintiff filed his Reply to Statement of Defence and Counter-Claim dated 22nd day of July, 2008 the

same date. (See page 45- 52 of the Records.)

Parties also filed their respective Statements on Oath according to the High Court (Civil Procure) Rules Abia State, 1988. At the hearing of the case the Plaintiff (now 1st Respondent) called Four witnesses while the 2nd Respondent called a witness. The Appellants on their part also called Four witnesses and at the end of the Trial and adoption of the written Addresses of the respective learned Counsel for the parties, the learned Trial Judge in respect of the Plaintiff/1st Respondent?s claim found at page 283 of the Records thus amongst others:
?I see the claim as a desperate one for if Chief Okafor did not make a Will, he would not need that unsolicited meeting and declaration, but simply live his life and join his ancestors and the custom will take its course.
I find against the Claimant and hold that due to the unsatisfactory evidence before me, I hold that Chief Okafor did not make a declaration, that he did not make a Will and that his estate should devolve according to Custom. I am unable to grant the Claimants Reliefs.
I hereby dismiss the Suit.?

As for the

Counter-Claim, the learned Trial Judge in spite of the above decision/findings held that:
?I am of the view that the 1st and 2nd Defendants have not proved due execution of the Will to make it valid.
The Onus placed on them has not been discharged. I therefore find as a fact and hold that there is no proper and admissible evidence before me that Chief Okafor made a Will. I cannot therefore pronounce Exhibit 1 in a solemn form. The consequences of this are well known to the effect that Chief Okafor died intestate. I so hold.
The Counter-claim is dismissed.
I make no order as to cost.?

It is against the dismissal of the Counter-Claim that the 1st and 2nd Defendants have now appealed by a Notice of Appeal with Four Grounds dated the 9th day of May, 2011 but filed on the 18th of May, 2011. (See pages 286 ? 294 of the Records).

The Plaintiffs did not appeal the decision of the Lower Court dismissing their Claim. For purposes of emphasis, I shall set down here under the Grounds of Appeal of the Appellants albeit without their respective particulars:-
?GROUNDS OF APPEAL
GROUND 1: ERROR IN LAW :
The

learned trial Judge erred in Law in holding that the deceased, Chief (Nzedioranma) Uche Okafor died intestate after dismissing both the Suit of 1st Respondent and the Counter-Claim of the Appellants.
?GROUND 2: ERROR IN LAW:
The learned trial Judge erred in Law when he rejected the admissibility of the Video recording of the execution of the Will, which evidence was extremely relevant to the proceedings.
?GROUND 3: ERROR IN LAW :
The learned trial Judge erred in Law when he held that the Appellants (as Counter-Claimants) had failed to prove due execution of the Will.
?GROUND 4: ERROR LAW:
The learned Trial Judge failed to properly evaluate the evidence before him thereby came to wrong conclusion.
?RELIEFS SOUGHT FROM THE COURT OF APPEAL:
(i) An Order setting aside the finding of the Court below that Chief (Nzedioranma) Uche Okafor died intestate.
(ii) An Order setting aside the Ruling of the Lower Court delivered on 2nd June, 2010 refusing to admit in evidence the two video recordings of 21st December, 2000 (evidencing the signing of the Will) and of 1st January, 2001 (evidencing the

declaration by the Testator of the Will made by him).
(iii) An Order setting aside the dismissal of the Counter-Claim of the Appellant, and Pursuant to Section 15 of the Court of Appeal Act, granting the Reliefs sought therein by the Appellants.
OR IN THE ALTERNATIVE
(iv)An Order for retrial of the Counter-Claim by the High Court of Abia State.?

Upon transmission of the Records of the Lower Trial Court hereto and the entry of the Appeal, the respective learned Counsel for the parties exchanged their Briefs of Argument in accordance with our Rules. For the Appellants, their Brief of Argument settled by Chief Chris Uche, SAN & Co. which Brief is dated the 10th day of April, 2015 but filed on the 15th of day April, 2015; Two (2) Issues were distilled from the Four Grounds of Appeal as calling for determination and they are reproduced as couched hereunder:-
?ISSUES FOR DETERMINATION .
1. Was the learned Trial Judge right in holding that the Appellants had failed to prove due execution of the Will in the light of the overwhelming evidence adduced by the Appellants?. (Grounds 2, 3 and 4).
2. Was the learned Trial

Judge right in dismissing the Appellants? Counter-Claim, wherein the Appellants claimed that the deceased died testate, after having dismissed the 1st Respondent?s case that the deceased died intestate? (Ground 1).”

On the part of C. Ike Inegbu, Esq who settled the Brief of Argument of the 1st Respondent, Four (4) Issues were distilled as reproduced hereunder:-
?(a) Was the learned Trial Judge right when he held that the deceased Chief Nzediorama Uche Okafor made no Will and therefore died intestate?
?(b) Was the learned Trial Judge right when he rejected the admissibility of the Video Recording of the purported execution of the Will?
?(c) Was the learned Trial Judge right when he held that the Appellants (as Counter-Claimants) had failed to prove due execution of the Will?
?(d) Did the learned Trial Judge Properly evaluate the evidence adduced at the trial?
Issue ONE relates to Ground One, Issue TWO relates to Ground
Two; Issue Three relates to Ground Three while Issue Four relates to Ground Four.?

Having been served with the 1st Respondent?s Brief of Argument, the

Learned Counsel for the Appellants filed the Appellants? Reply Brief dated 8th day of July, 2015 same date.

The case of the 1st Respondent who was the Claimant/Plaintiff at the Lower Court was that the 1st Respondent (then Claimants) in the Lower Court are wives and children of Nzedioranma Uche Okafor who died interstate on the 30th day of January, 2007. According to 1st Respondent and her Co- Claimants, prior to the demise of Chief Nzedioranma, Uche Okafor, on or about the 4th day of January, 2007, he summoned a meeting of the various Kitchens and other members of the extended family to instruct them on how his property shall be shared and/or devolved upon his demise.
?
Present at the meeting were some of the sons of the late Chief Nzedioranma Uche Okafor as well as members of his maternal home and friends namely Azukenyi Obi Eze, Chukwuma Azubuike Obi Eze, Chukwuma Anabuche, Chief Sylvester Asuzu and Comrade Azubuike Asuzu. At the said meeting Chief Nzedioranma Uche Okafor who was a traditionalist and prominent member of the Gordian Traditional Religion told the persons present emphatically that as a traditionalist he made no Will and that at

his demise everything about him including his burial Ceremony sharing and devolution of his properties will be in accordance with the Custom and tradition of Nkwukwo Village, Unubi in Nnewi South Local Government Area of Anambra State.

However, at the demise of Chief Nzedioranma Uche Okafor the First Respondent was surprise to receive various letters one of which was from one Barrister Ibe Nwachukwu of Nkeiruka Chambers informing him and other members of the family that Chief Nzedioranma Uche Okafor made a Will. The 1st Respondent also received a letter from the Probate Registrar High Court of Justice, Umuahia (the 2nd Respondent) who informed him that the last Will and Testament of Chief Nzedioranma Uche Okafor was deposited in the Probate Registry High Court Umuahia and that same would be read on the 16th of May, 2007.
?
The 1st Respondent also received another letter from one Barrister Komifa Nsolo of E. O. Osoka & Co. Legal Practitioners informing him and others that Chief Nzedioranma Uche Okafor in his lifetime executed a Will and that same would be read on the 16th of May, 2007. Upon these developments the First Respondent and other members

of the family (including) the five wives of the deceased as well as many of his children, protested and objected to any Will being read but the Probate Registrar (2nd Respondent herein) went ahead to read the Will. The 1st Respondent and the five wives and children of Chief Nzedioranma Uche Okafor were constrained to file a Caveat at the Probate Registry against the grant of Probate/Letters of Administration to any person or group of persons. The 1st Respondent therefore brought his action claiming amongst other Reliefs, a Declaration that Chief Nzedioranma Uche Okafor, made no Will.

In the view of the 1st Respondent, the Learned trial Judge after consideration of the evidence adduced before him held that there is no admissible evidence before him that Chief Nzedioranma Uche Okafor made a Will and therefore the said Chief died intestate against which decision the Appellants have now appealed to this Court.
?
On the part of the Appellants, the 1st Appellant is the first son of the Late Chief Nzedioranma, Uche Okafor of Nkwukwo Unubi, in the Nnewi South Local Government Area of Anambra State. The said Late Chief Nzedioranma Uche Okafor was a Polygamist,

married to 7 (Seven) wives and a total of 53 children. The deceased was said to be a very wealthy and successful businessman, a holder of several cultural and social titles and a respected community leader in Igboland. According to the Appellants, the deceased being a very organized family man and who remained relatively in sound health even after 80 years made a Written Will to regulate his affairs after his death, in the light of his large family. The Will was said to have been duly prepared by a Legal Practitioner, who visited the deceased severally to take instructions from the deceased, which Will was later signed in the presence of the deceased and duly witnessed and attested to by 2(two) witnesses who signed in the presence of the deceased and one another, while the execution of the Will was captured vividly and recorded on a permanent form on Video.
?
The said Will is also said to be in accordance with the Wills Law of Abia State filed and deposited at the Probate Registry of the High Court, Umuahia, on the 14th day of February, 2001, by the Solicitor who prepared the Will and in whose presence the attesting witnesses signed before each other and in

the presence of the deceased testator. On the death of the Testator the Probate Registry of the High Court of Abia State, Umuahia wrote letters inviting the wives and children of the deceased to the official un-sealing and reading of the last Will and Testament of the Deceased testator.

The Probate Registry was also on the appointed date said to have unsealed and read the Will and Testament of the Deceased in the presence of the Deceased?s Wives and Children on the 16th of day of May, 2007, after due notice to all interested parties.

The 1st Respondent deliberately refused to attend the reading of the Will, erroneously reasoning that the Testator?s Will may not have adequately provided for them. Incidentally the Will made adequate provisions for all the wives and children of the deceased and even went further to create a Trust Scheme with the 2nd Appellant- NIDB Trustees Limited to manage the shares of the testator in his various Companies.
?
Not being satisfied with the said Will and Testament of his said father the 1st Respondent brought the action at the Trial Court in representative capacity (For himself and as representating the

five Wives and children of Chief Nzedioranma Uche Okafor (deceased) excluding the 2nd Defendant, the wives and children of the Dibugo and Ukaegbo Kitchens of Chief Nzedioranma Uche Okafor family, challenging the Will, contending that the Deceased made no Written Will.)
ARGUMENTS OF THE LEARNED COUNSEL FOR THE APPELLANTS ON THE ISSUES FORMULATED FOR DETERMINATION:
ISSUE NUMBER ONE (1): ?WAS THE LEARNED TRIAL JUDGE RIGHT IN HOLDING THAT THE APPELLANTS HAD FAILED TO PROVE THE DUE EXECUTION OF WILL IN THE LIGHT OF THE OVERWHELMING EVIDENCE ADDUCED BY THE APPELLANTS? (GROUNDS 2, 3 & 4).?

Arguing this first Issue, the learned Counsel submitted firstly that the Appellants proved the due execution and validity of the Will of the Deceased Chief N. U. Okafor and the Trial Court was wrong to have held otherwise. Conceding to the position of Law as to whom the initial onus lies where there is a dispute as to the validity of a Will, to show due execution, he further submitted that the Appellants as propounders of the Will now in dispute, have satisfied the trial Court on this Onus of proof and onus of proving otherwise shifted to the 1st

Respondent who was impugning the validity of the Will to substantiate by credible evidence his allegations of forgery of the Will and the Deceased?s lack of mental capacity. Odjegba V. Odjegba (2004) 2 NWLR (Pt. 858) 566, 585- 586, Paras. G ?B; 587, Paras. B ? C. Citing Section 6 of the Wills Law, CAP. 37, Laws of Abia State of Nigeria, 1991 2000 Vol. II which is applicable to this matter, the learned Counsel noted that in Prima facie proof of due execution of the Will and the mental capacity of the deceased, the Appellants called the DW3 (Barrister/Mrs. Osoka) who was instructed and took instruction from the Deceased who was sound mentally during the execution of the Will.

On the other hand, he argued, the 1st Respondent?s totality of evidence and his witnesses were contradictory with their pleadings and clearly, supported the case of the Appellants on the mental capacity of the Deceased Testator during the execution of the Will. References were made to pages 11 and 114 of the Records the pleadings of the 1st Respondent as against his evidence under Cross-examination.

Further references were made to pages 121 and 125

of the Records the answers to cross-examination by the CW2 and CW4, to further point out that the Will was executed on 1st day of December, 2000 while the Will was deposited at the Registry of the High Court, Umuahia, on 14th day February, 2001 by the Solicitor who prepared the Will which confirm that the Deceased was in a State of mental Capacity 7 (Seven) years after signing and due execution of the Will going also by the 1st Respondent and his witnesses? admissions.

On the contention by the Respondents that the Deceased was of unsound mind, the learned Counsel for the Appellants placed reliance on the case of Mabogunje V. Adewunmi (2006) 11 NWLR (Pt. 991) 224, 264 Paras D ? F and the Records, the evidence of CW1 at page 115 of the Records after the Respondents had alleged that their father was blind and it was submitted that their witnesses also could not substantiate this allegation. He then submitted that the learned Trial Judge in the First place, had found at page 283 of the Records as he did on the evidence of the CW2, CW3 and CW4, that these witnesses had ulterior motives when they testified in favour of CW1; but surprisingly the

learned Trial Judge turned around to hold that the onus placed on the Appellants to prove prima facie the validity of the Will had not been discharged.

On due attestation of the Will, the learned Counsel also referred to the evidence of DW1 (Gilbert Nnabuife) who testified to the effect that he attested the Will along with Architect Okwaraoha in the presence of the DW3 (the Solicitor) who prepared the Will as was captured on Video and that the Deceased was of sound mind in the course of the exercise. The learned Senior Counsel further Placed reliance again on Amadi V. Nwosu (1992) 5 NWLR (Pt. 241), Gaji V. Paye (2003) 8 NWLR (Pt.823) 593, 605 Para. B ; on the purpose of Cross-examination and the effect of the DW3 not being cross-examined as to whether the said Architect Okwaraoha, the second witness also attested to the Will in the presence of the Testator without any fraud, undue influence, duress, coercion or force or under any suspicious circumstances.
?
He again questioned why despite the tacit acceptance of the evidence of the DW1 and DW3, the learned Trial Judge still went on to hold that:
?Even in proving the due attestation, only

one Witness out of the mandatory two was called. Could it then be said that it was proved that Arc. Okwaraoha signed the WILL? Why was he not called

The learned Senior Counsel still went on to cite Section 6 of the Wills Law CAP.37, Laws of Abia State of Nigeria, in submitting that what is required is that the ?Witnesses attest and subscribe the Will in the presence of the testator? adding that there is no corresponding evidential duty that the two attesting witnesses must physically testify in Court in proving the validity of the Will. He maintained on the authority of Ize ? Iyamu V. Alonge (2007) 6 NWLR (Pt.1029) 84,104, where only the DW3 gave evidence on having witnessed the execution of the Will and the Second witness was not called yet this Court still upheld the Learned Trial Judge?s upholding the existence and validity of the Will in dispute.
?
On the supporting evidence of the DW3 in this case the Solicitor who prepared the Will and the misapplication of Law by the learned Trial Judge, the learned Senior Advocate for the Appellants again referred us to Halsbury?s Laws of England, 4th Edition, page 25,

Para. 362 thereof, to assert that the evidence of the said DW3 was not dislodged and accordingly, we should resolve the fact of due execution in favour of the Appellants.

As for the requirement of Due Execution of the Will, it was the learned Counsel for the Appellants? contention that there was also ample evidence to this effect before the Trial Court that the Testator actually executed the Will as his signature was clearly affixed as also confirmed by the 1st Respondent at page 116 of the Records under Cross examination as provided by Halsburys Laws of England (supra) at page 245, Para. 353 on the Validity of a duly executed Will which showed that the Testator intended to give legal effect to the said Will.

Further reference was also made to the evidence of the DW1 in Paragraphs 7, 8 and 9 of his Statement on Oath, Kwentoh V. Kwentoh (2010) 5 NWLR (Pt.1188) 543, 566, Para B; and the confirmation by the CW1 at page 117 of the Records where he Stated that his father retired in 2004 at a meeting where he was appointed an Executive Director in which case according to the learned Counsel for the Appellants, the said Testator was of sound mind

when he executed the Will; apart from the number of times the DW3 and Solicitor who prepared the Will flew from Lagos to Aba to take detailed instruction from the Deceased Testator as was amply demonstrated by her tendering Exhibits S1 ? S5 the Airline Flight Tickets which were duly admitted by the Court below.

The learned Counsel to the Appellants also alluded to the fact that from the contents of the Will all the assets of the Testator were correctly enumerated and devised to show that no one else except the Testator could have given such details to the Solicitor nor could the Solicitors have manufactured such intimate details on her own as confirmed by the 1st Respondent at pages 114 and 116 of the Records that the Will in its detailed form even took care of all the Testator?s wives, grand children and his Godian Religion.
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Furthermore, he maintained, the testator as was his custom to video all special events, captured his signing and attestation of the Will by his two Witnesses on Video records which practice was confirmed by the CW2 (1st Respondent?s Witness) under Cross- examination at Page 121 of the Records but surprisingly

in spite of all the above admissions, the learned Trial Judge relying on technicalities refused to admit the Video recording in evidence showing the execution of the Will even though same was pleaded and had been played in Open Court. He insisted that the Testator being a prudent man and to avoid any discord from his many wives and children, went further in the Will to provide a Trust Fund to take Care of his family, to be managed by an unbiased, independent corporate body, the 2nd Appellant. In the circumstances as highlighted above by his submissions, the learned Senior Counsel concluded on the First Issue that without any iota of doubt, the Will was executed by the Testator which truly represents his good wishes for his family.

We were therefore urged to resolve Issue One in favour of the Appellants.

ISSUE NUMBER 2 (TWO): ?WAS THE LEARNED TRIAL JUDGE RIGHT IN DISMISSING THE APPELLANTS? COUNTER?CLAIM AND HOLDING THAT THE DECEASED DIED INTESTATE ? (GROUND 1)?.

Arguing this second Issue, the learned Senior Counsel for the Appellants submitted that the Court below in dismissing the Counter- claim took into consideration

irrelevant matters which apart from not being contested and tested in open Court had no relevance to the validity of the Will which was the fulcrum of the Appellants Counter-Claim. The learned Trial Court was also alleged to have gone outside the issues canvassed by the parties and erroneously went on unsolicited voyage of discovery, raking up legal defences in a bid to discredit the Will, jeopardize the merits of the Appellants Counter-claim and wrongfully arrived at a wrong conclusion that the Testator died intestate.

The learned Trial Judge was also alleged to have embarked on suo motu fact finding investigation on issues not contested by parties thus erroneously leading to speculation on facts which ought to have been proved while shutting his eyes to obvious proved facts which led to its making perverse decision. For this submission he placed reliance on the cases of Udengwu V. Uzuegbu (2003) 13 NWLR (Pt.836) 136 and West African Breweries Ltd. V. Savannah Ventures Ltd. (2002) 10 NWLR (Pt.775) 401, in drawing our attention to the holdings of the Court at page 285 of the Records which failed to take into consideration the fact that the

relevant signatures which if absent in a Will would render same invalid in Law were those of the Testator and Witnesses more so as the Solicitor testified on Oath as DW3 and identified the Will as having been prepared by her and submitted to the Probate Registry.

The learned Counsel further referred to the holding of the Court below that not one person out of the people who were told at the many fora about the Will was called as a Witness to confirm same in submitting further that ,that was also not an issue as even that Section 149 d) of the then Evidence Act, 1990 (now Section 167 of the 2011 Act ,) dealing with presumption that any evidence which is not produced is adverse, relates to non production of evidence and not failure to call a particular witness as was decided in Ezemba V. Ibemere (2004) 4 LRN 1 at 28.

On the further finding/holding of the Court about Exhibit A, it was again submitted that the Appellants had nothing to do with a second Will allegedly prepared by another Solicitor apart from DW3 whose Will was the one read over to the parties and which was challenged by 1st Respondent and the 1st Respondent did not

call the said Solicitor Mr. Chukwunta who purportedly prepared the second Will. The said 1st Respondent did not cross examine the DW5 on the actual existence of such a Will but the Court below misplaced the duty to cross-examine the DW5 on the Appellants which led to a wrong conclusion.

On the admonition of trial Courts not to do cloistered justice by embarking on inquiries into a case outside what is in open Court as a Judge is an adjudicator not an investigator, he relied on the Authorities of Duriminya V. COP (1961) NRNLR 70; Queen V. Wilcox & (1961) 1 SCNLR 296, (1961) All NLR 633; Dennis Ivienagbor V. Henry Osato Bazuaye (1999) 6 SCNJ 235 at 243; and Onibudo V. Akibu (1952) 7 S. C. 60; to submit that the Learned Trial Judge was wrong to have done the contrary thereby occasioning the Appellants miscarriage of Justice and holding that: These highlights above cast a hazy cloud on the validity and genuineness of the Will.

Citing again Odiase V. Agho (1972) 3 S. C. 71; Sanui V. Ademiluyi (2003) 3 NWLR (Pt. 807) 381, Anyankpole V. Nigerian Army (2000) 13 NWLR (Pt.684) 209 at 215 and Transbridge Co. Ltd. V. Survey

International Ltd. (1986) 4 NWLR (Pt.37) 576 at 597, per Eso, JSC, on repeated holdings that the function of a Court is to decide between the parties on the basis of the case put before it by them and the need to confine itself to adjudicating on Issues before it, he drew our attention to the learned Trial Judge?s holding that the signature in Exhibit E (the Photocopy of Exhibit ?E?) is not the same.

On the disparity in signatures, the learned Counsel contended that the said Exhibit ?E? being a Photocopy of a Public Document within the meaning of Section 102 of the 2011 Act, ought not to have been received in evidence and even if received inadvertently, is liable to be expunged by the Trial Court in its Judgment. For the above submission he relied on the case of Hon. Justice Araka V. Egbue (2003) 17 NWLR (Pt.848) 1 at 4 ? 5 (S. C) on the position of the Law that it is only the Certified True Copy that can be admitted in place of the Original of Public Document Pursuant to Section 97 (2) (c) of the Evidence Act but that the Trial Court rather than expunge the Photocopy of the Will for failure to meet the standard of

proof as required by Section 112 of the Evidence Act, 1990 (now Section 105) of the Evidence Act 2011), it elevated the said Exhibit ?E? produced from the Custody of the 1st Respondent and susceptible to manipulations and alterations over and above Exhibit ?T? the original Copy of the Will produced from the custody of the Probate Registry.

Citing again the dictum of Okoro, JCA (as he then was) in Mudarishu V. Abdullahi (2011) 7 NWLR (Pt. 1247) 591, 616 Para. G ; where his Lordship deprecated the authencity of photocopies of public documents uncertified, the learned Counsel for Appellants asserted that it is even more curious that the 1st Respondent who attempted to challenge the signature of the Testator on the Will never fielded any handwriting expert nor did he Summon any witnesses/persons who are familiar with the handwriting impressions of the Testator and accordingly there were no materials brought before the learned Trial Judge which would have given rise to his confusion and the ?hazy cloud? which prevented him from granting the Counter-Claim.
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Furthermore, the learned Counsel maintained, the 1st

Respondent?s allegations of forgery of the Testator?s signature being criminal allegations ought to have been proved beyond reasonable doubt, which the Respondent failed to do. Relying on Ize ?Iyamu V. Alonge (2007) 6 NWLR (Pt.1029) 84 at 109 Paras. F ? G ; where a similar allegation was made by the attacker of the Will, Mabogunye V. Adewunmi (2006) 11 NWLR (Pt.991) 224 Para. E ? G, the learned Counsel again conceded that where there is a dispute as to signature, a Trial Judge is entitled by Virtue of Section 108 (1) of the Evidence Act, 1999 (now 101 of the 2011 Act) to compare the documents but he however added on the authorities of Ezechkwu V. Onwuka (2006) 22 NWLR (Pt.963) 151, Adenle V. Olude (2002) 18 NWLR (Pt.799) 413 and Omoniyi V. Sodeinde (2003) 13 NWLR (Pt.863) 53, 56 ; that the learned Trial Judge had forgotten that the burden of proof of the validity of a Will is not fixed on the propunders of the Will (in this case the Appellants) but shifts as evidence is adduced. In the instant case, the learned Counsel took the view that the learned Trial Judge failed to remember that once the Propounders of the Will have prima

facie satisfied the Court as to the question of the due execution and the Testator being free and capable, the burden of proof is cast on the persons asserting the contrary in this case, the 1st Respondent (Nsefik V. Muna (2007) 10 NWLR (Pt. 1043) 502, 515 ? 516 refers).

The learned Counsel for the Appellants also expressed worry on the facts that learned Trial Judge after having already dismissed the 1st Respondent?s case having held that: ?I hold that Chief Okafor did not make the declaration that he did not make a Will or died testate? in a rather strange somersault turned around in the very same Judgment to dismiss, the Appellants? Counter-Claim and hold ?that Chief Okafor died intestate?. I so hold.
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It was therefore submitted from the forgoing, that by this somersault, the Trial Court had inadvertently granted to the 1st Respondent the same Relief which he sought and which had been dismissed by the Trial Court as the real Relief sought by the 1st Respondent was for the Court to declare that the Testator died intestate. He noted that not surprising, the 1st Respondent did not appeal against the Judgment

dismissing their case.

Against the above back ground, the learned Counsel for the Appellants observed that having held that all the 1st Respondent?s witnesses were unreliable and dismissed the case of the 1st Respondent, the overwhelming evidence adduced by the Appellants ought to have swung the pendulum of the Judgment in their (Appellants?) favour but for wrong evaluation of evidence led in support of the Appellants? Counter-Claim, by the Court below. We were therefore in conclusion urged to resolve the second Issue in favour of the Appellants and allow the Appeal.

ARGUMENTS OF THE LEARNED COUNSEL FOR THE RESPONDENT ON THE ISSUE NUMBER ONE : ?WAS THE LEARNED TRIAL RIGHT WHEN HE HELD THAT THE DECEASED CHIEF NZEDIORANMA UCHE OKAFOR MADE NO WILL AND THEREFORE PIED INTESTATE

On this Issue which is akin to Issue Number 2/Ground 1 (One) of the Appellants? Grounds of Appeal, the learned Counsel for the 1st Respondent answered the question posed by this Issue in the affirmative and submitted that the testimonies of the CW1 ? CW4 are the evidence of the wives and Children of Chief Nzedioranma Uche Okafor

(deceased) which were to the effect that the said Uche Okafor estate devolved on his wives and children in accordance with the custom and tradition of Nkwukwo Village, Unubi Nnewi South Local Government Area of Anambra State as the Deceased desired.

The learned Counsel specifically referred to the evidence of the CW1 at Pages 103 -104 of the Records in line with his pleadings in Paragraphs 5, 6, 7 and 8 of the Statement of Claim at pages 4 – 6 of the Records which averments the Appellants admitted in their Paragraphs 6, 7 and 12 of their Statement of Defence at page 2-24 of the Records and the 2nd Respondent also admitted in Paragraph 8 of his Statement of Defence at page 34 of the Records the effects of these which are clear admissions as held in the cases of Omega Bank Nig. Plc Vs. OBL Ltd. (2002) 16 NWLR (Pt 794) 483 at 494 ratio 13 and Balogu Vs. E. O. C.B Nig. Ltd (2007) 5 NWLR (Pt.1028) 584 at 587 ratio 2.

Upon the foregoing, he then submitted that the fact that Chief Nzedioranma Uche Okafor was a core traditionalist, a frontline member of the traditional Gordian religion and a former President of Nze-na-Ozo title holders was not in doubt and

therefore not in contention by the parties in line with Section 75 of the Evidence Act and the decision in Barji V. Gundman (2001) 13 NWLR (Pt.371) 673 at page 673.

According to him, being a Traditionalist and a member of the Gordian Religion that has to do with Traditional worship and member of the Nze?na?Ozo title holder the Deceased lived a life and regulated his personal affairs within the confines of the custom and tradition of his village and did not believe in Wills and/or Statutory testamentary disposition and/or devolution of properties as confirmed by the 1st Respondent and witnesses that on 4th day of January, 2007 the Deceased Chief summoned a meeting of the representatives of the various kitchens within his family and other members of his extended family to instruct them on his extended family to instruct them on how his property or estate shall be shared and/or devolved upon his demise, in the presence of the 1st Appellant, the 1st Respondent and many of the children of the Deceased including the deceased?s brothers and relations from his material side. At the said meting Chief Nzedioranma Uche Okafor told those present

emphatically that as a traditionalist he made no Will and that at his demise everything about him including his burial, sharing and devolutions of his properties shall be in accordance with the Custom and tradition of Nkwukwo Village Unubi Nnewi South Local Government Area of Anambra State. Page 106 of the Records refers.

The learned Counsel for the 1st Respondent further alluded to the evidence of CW2/Deposition (Exhibit ?G?); CW3 Via Exhibit ?H? and CW4 (Exhibit ?J?) who testified that they were all at the meeting and these witnesses were very important to the life of the Deceased but that the Appellants did not call any evidence to dislodge these testimonies and witnesses who were not shaken under cross ?exanimation and accordingly in line with the decision in Udo V. CSNC (2001) 14 NWLR (Pt.732) 116 at 131 ration 116, the Court below ought to have acted on this testimonies as the truth of the case they sought to support. This is more so, in the view of the learned Counsel for the Respondent, where the 1st Appellant did not produce before the trial Court any member of the family to controvert or deny the purpose

of the meeting of 4th January, 2007 and the declaration by the Deceased and more especially when the Appellants admitted in Paragraph 9 of their Statement of Defence of the 1st and 2nd Defendants that the meeting actually took place except that the tried to give it a different interpretation and pleaded the Video Recording of the proceedings which the Appellants however failed to tender during the hearing.

The effect of the above scenario in law according to the learned Counsel was stated in Daniel Kalio V. Daniel Kalio (2005) 4 NWLR (Pt. 915) 305 at 309 Ratio 2. He further alluded to the evidence of CW1 on the declaration of the Deceased that his burial ceremonies should commence after one year of his demise as admitted in Paragraph 22 of the Statement of Defence but claimed that was part of the declaration in the Will yet such declaration is neither contained in Exhibits ?E? or ?T? which shows that the Will was not made by Chief Nzedioranma Uche Okafor but that declaration of 4th January, 2007 was make by the Nze. He referred us therefore to the decision in Motoh V. Motoh (2001) 16 NWLR (Pt.1274) 474 at 492; on the duty of the

Court to give effect to the wishes of a deceased who is no longer capable of protecting his right or defending his estate in submitting still on the burial ceremonies that it was in line with the declaration that the deceased?s burial ceremonies were carried out one year after his demise (Paragraph 9 of the 1st Appellant?s Deposition referred) and from which he urged us to draw the conclusion and inference to that effect and in line with Savannah Bank of Nig. Plc. V CBN & Ors. (2009) 6 NWLR (Pt.1137) Page 237.

Placing reliance again on Ezemba V. Ibeneme (2000) 10 NWLR (Pt.674) 61, he submitted further that in Paragraph 30 of the 1st Appellant?s Deposition at page 69 of the Records, the 1st Appellant stated emphatically that their father did not state that Nnubi custom shall be relevant or applicable over his assets yet Exhibits ?E? and ?T? the purported Will stated at page 4 that the Deceased stated that the devolution of the family house shall be in accordance with the custom and Tradition of his Village. Thus, the evidence of the said 1st Appellants/DW2 contradicts the said Will which shows that the Will

never existed or was made by the Deceased.

On the controversy as to whether there were two Wills whereas only the one prepared by Barrister Elizabeth Osoka was tendered, the learned Counsel also submitted that this goes to show that there was no Will made by Nzedioranma Uche Okafor and that the actions of the Appellants were desperate attempts at dislodging the declarations and wishes of the deceased.

He recalled how the Probate Registry wrote the 1st Respondent of the last Will of his father which would be proved on the 16th of May, 2007 but the said letter (Exhibit B) did not clearly state the Will to be read which is even more appalling as the Will Exhibits ?E? and ?T? was not endorsed by the Legal Practitioner who prepared it which discrepancies buttressed the fact that the Will was full of lies and falsehood and cannot be believed. Mini Lodge Ltd V. Ngei (2009) 18 NWLR (Pt.1173) 254 and Oduah V. FRN (2012) 11 NWLR (Pt.1310) 76, were cited in support of the assertions of the CW1 that Exhibits ?E? and ?T? were not made by his father as it was a forgery as the signature there on was not that of his

father.

On the offence of forgery and its constituents, the learned Counsel for the 1st Respondent also referred us to the case of Garba V. Cop (2007) 16 NWLR (Pt 1060) 378; Osondu V. FRN (2000) 12 NWLR (Pt.682) page? and the Supreme Court case of Nigerian Air Force V. Kamaldeen (2007) 7 NWLR (Pt.1032) 164 and submitted on the authorities of Daniel-Kalio V. Daniel ? Kalio (2005) 4 NWLR (Pt.915) 305; Tomtec Nig. Ltd V. FHA (2005) 18 NWLR (Pt.1173) 358 at 365 S. C; that the CW1 proved the forgery of the Will by tendering the Minutes of UOO Nigeria Plc wherein the signature of Chief Nzedioranma Uche Okafor appears as a Director and same marked Exhibit ?N? which the Court is entitled to make necessary comparison between the signature in the Will.

He maintained that both the Claimants and Defendants admitted that the signature on Exhibit ?N? was that of their father and the Court below also found out at page 285 of the Records that the signature in Exhibits ?E? and ?T? are different from that in Exhibit ?N?. Accordingly, on the authority of Odunewu V. Martins (2011) 8 NWLR (Pt.1250) 573, it

was contended that the Trial Judge?s comparison of the signatures cannot be faulted as he painstakingly made the requisite comparisons more so when he observed that the illiterate jurat appearing on the purported Will was inserted on it in different characters from the ones used in the Will.

The learned Counsel for the 1st Respondent still on the contention that the Will is a forgery referred us to the evidence of the CW1 that he was close to his father and that Barrister Elizabeth Osoka who wrote the Will was never on the retainership of their late father which fact the Barrister/DW3 admitted not having had contact with the Late Chief Prior to the making of the Will but only came into contact with the Chief/Deceased for the purpose of making the Will.
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Furthermore, learned Counsel noted, the CW1 also testified that his father during his life time had shared out some of the shares he held in some Companies to his children and that his Deceased father was not in Aba on the dates the Will was made but had travelled to Nkwukwo Village on 18th February, 2000 to settle Village dispute and only came back on 22/2/2000 all pieces of evidence which were

never contradicted or controverted and the learned Trial Judge was therefore right to have held that the late Chief Uche Okafor never made a will but died intestate.

Relying on the case of Afribank Nig. Plc. Vs M. Ent. Ltd. (2008) 12 NWLR (Pt.1098) 223 on the need to admit uncontroverted evidence, it was submitted by the learned Counsel for the 1st Respondent that having established by credible evidence that Chief Uche Okafor made no Will and that Exhibits ?E? and ?T? were forgeries, the onus shifted to the Defendants/Appellants to prove the contrary that Exhibits ?E? and ?T? were validly made. (Odutola V. Mabogunje (2013) 7 NWLR (Pt.1354) 522, Modrishu V. Abdullahi (2011) 7 NWLR (Pt.916) 591; Egbuziem VS. Egbuziem ?(2005) 4 NWLR (Pt.916) 488; Ezenwere V. Ezenwere (2003) 3 NWLR (Pt.807) 238 and Ize-Iyamu V. Alonge (2007) 6 NWLR (Pt.1029) 84; were, all cited on the position of the Law that in probate actions the onus of proof is on the propounders of the Will and that in the instant case the Appellants never discharged the onus cast on them as they did not call any witness to identify the signature on Exhibit

?E? or ?T? as belonging to the Deceased and that the only evidence was the Video wherein the deceased was shown to have signed a document which document was rejected and that even if same was admitted there is no evidence to show that what the deceased was signing was Exhibit E? or ?T?.

Again, the learned Counsel for the 1st Respondent highlighted inconsistencies in the evidence given by the Appellants in Paragraphs 11 and 12 of the 1st Appellants Deposition at page 66, Paragraph 15 of the Deposition at page 67 of the Records which according to him are vital and as such cannot be believed. Ezemba V. Ibeneme (2000) 10 NWLR (Pt.674) 61 referred.

On the neglect to call Arch. Alban Okwaraoha who witnessed Exhibit ?E? because the evidence would have been unfavourable, he cited Oduche V. Oduche (2005) 5 NWLR (Pt.972) 102 ; and on the agreement that Chief Nzedioranma Uche Okafor was a Traditionalist of the Gordian Religion, member of Nze-na-Ozo Title who never attended nor had a church wedding having married seven wives who apart from his declarations, his way of life clearly suggested

that the devolution of his property should be by Native Law and Custom, the learned Counsel took umbrage on the authorities of Obusez V. Obusez (2001) 15 NWLR (Pt. 736) 377; Umaru V. Pam (2010) 2 NWLR (Pt.1178) 404; Ironbar V. FMF (2009) 15 NWLR (Pt. IT65) 506 and Odiari V. Odiari (2009) 11 NWLR (Pt.11.51) 26; to finally reiterate that the learned Trial Judge was right when he held that Chief Nzedioranma Uche Okafor made no Will and therefore died interstate and urged us to so hold.

ISSUE NUMBER TWO: ?WAS THE LEARNED TRIAL JUDGE RIGHT WHEN HE REJECTED THE ADMISSIBILITY OF THE VIDEO RECORDING OF THE PURPORTED EXECUTION OF THE WILL?

Arguing this Issue the Learned Counsel for the 1st Respondent also answered the question posed above in the affirmative and recalled what transpired on the 20th day of April, 2010 at the trial when the learned Counsel for the Appellants applied that the Video Recordings of 1/1/2001 and 21/12/2000 be shown in Court and same was played (pages 137 -139 of the Records refer). There after the learned Counsel for the Appellant applied to tender the video of 12/12/2000 and 1/1/2000 which the Counsel to the 1st Respondent

objected and the learned Trial Judge reserved Ruling. (pages 138 to 139 refer) and ruled subsequently rejecting the video Recordings because they were not tendered by the persons who made/recorded them.

The learned Counsel therefore insisted that the learned Trial Judge by the Provisions of the Evidence Act and the decision in T. A. Orji V. Onyema Ugochukwu (2009) 14 NWLR (Pt.1161) 207 at 223, was right to have rejected the admissibility of the said Video Recordings in that their makers were not called to tender them and the question of relevance does not defeat this provision of the Law as same is not a question of technicality. For the submission that the maker of the Video Recordings ought to be called to meet the Provisions of the Evidence Act, he called in aid the authorities of INEC V. Action Congress (2009) 2 NWLR (Pt.1126) 524 at page 549 and Madueke V. Okorafor (1992) 9 NWLR (Pt.263) 69; to urge us finally on this Issue to hold that since the Provisions of the Evidence Act were not complied with, the learned Trial Judge was right to have rejected the Video Recordings in evidence.

ISSUE THREE: ?WAS THE TRIAL JUDGE RIGHT WHEN HE HELD

THAT THE APPELLANTS (AS COUNTER-CLAIMANTS) HAD FAILED TO PROVE DUE EXECUTION OF THE WILL

On this Issue which is similar to Issue NUMBER ONE (1) of the Appellants the learned Counsel for the 1st Respondent also answered the question in the affirmative and recalling his earlier submissions on the position of the Law that the onus probandi of establishing the validity of a Will and due execution rests squarely on the Proponents of the Will as decided in Egbuziem V. Egbuziem (supra) and Ize-Iyamu V. Alonge (supra) at 89, it was contended that the Appellants failed to prove the execution of the Will in question.
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Citing also Section 6 (1) of the Wills Act, CAP.37, Laws of Abia State of Nigeria 1999 on the attributes of a valid Will, he repeated his argument on the finding of the Court that the Court compared the signatures in Exhibits ?E? and ?T? and that in Exhibit ?N? tendered by the 1st Respondent and found the signatures inconsistent, the inability of the Appellants to provide a Hand Writing Expert to prove the signatures in ?E? and ?T? nor another document showing the signature of the

Deceased for comparison. He therefore concluded again on the authorities of Nigerian Air Force V. Kamaldeen (2007) 7 NWLR (Pt.1032) 164 and Eze V. Okoloagu (2010) 3 NWLR (Pt.1180) 183 at 189; that the Appellants failed to remove the suspicion cast on the Will (Exhibits ?E? and ?T?).

The learned Counsel maintained that this is more so as the 1st Respondent insisted and testified positively that the Deceased made no Will. And thus died intestate. For the above submission he placed reliance on the cases of Johnson & Anor. V. Maja & Ors. (1951) 13 WACA 290; Ojegba V. Ojegba (2004) 2 NWLR (Pt.858) 566 and Okelola V. Boyle (1998) 2 NWLR (Pt. 539) 533.

Still on the conflict between the evidence of the DW1, DW2 and DW3 as to whether the DW2 was present when the Will was signed, and the need to discountenance the evidence of these Witnesses in their entirety, he referred us to the case of Nwoga V. Benjamin (2009) 5 NWLR (Pt.1133) 152 at 155 Ratio 1 ; to insist that the Will is a forgery more so as the DW5 testified that had he been the Probate Registrar of the High Court of Abia State when the Will was lodged, he would not have

accepted it. He maintained that the Court was right when he held that the Appellants/Counter-Claimants had failed to prove due execution of the Will.

ISSUE NUMBER FOUR: ?DID THE LEARNED TRIAL JUDGE PROPERLY EVALUATE THE EVIDENCE ADDUCED?

On this Issue, the learned Trial Judge also answered the question posed in the affirmative as the learned Trial Judge enumerated the evidence adduced both for the Appellants and the Respondents and did not omit any including the cross-examination of the witnesses at end of which he formulated two Issues for determination and at the end of evaluation believed some witnesses and disbelieved some of the witnesses and came to the conclusion that Nzedioranma Uche Okafor did not make a Will and that the Estate of the Deceased should devolve in accordance with his Custom.

On the priority of the learned Trial Judge to believe and disbelieve the witnesses before him he cited Omozeghian V. Adjarho (2006) NWLR (Pt.969) 33 at 40, to further submit that the Trial Court was right to have found that the 1st Defendant NIDB Trustees Ltd. does not know anything about the Will because 1st Defendant (2nd Appellant) was only

appointed an Executor in the purported Will (Exhibit ?E? or ?T?) and her function only comes into effect after the Will must have been admitted to Probate.

Referring us to page 284 of the Records, it was further contended that the learned Trial Judge in the evaluation process and before arriving at his conclusion bore in mind the position of the law that the onus probandi was on the 1st and 2nd Appellant to establish the validity of the Will and its due execution and applying the above principle held as he did at page 285 of the Records after a comparison of the signatures in Exhibit ?N? and ?E? or ?T? (the Will). TOMTEC Nig. Ltd. V. FHA (2007) 7 NWLR (Pt. 728) 685 at 694, Oyebanji BMS Ltd V. UBA Plc. (2001) 6 NWLR (Pt. 708) 80; Omokomowo V. Audu (1985) I NWLR (Pt. 3) 530; were also relied upon on the inferences and conclusions reached after placing the evidence of the parties on the imaginary scale and weighing them before holding as the learned Trial Judge did that the Deceased died intestate and that his Estate should devolve according to the tradition of Nkwukwo Village Unubi Nnewi South

Local Government Area of Anambra State as that was the wish of the Deceased.

On the need to presume that a Deceased died intestate in the absence of proof of a Will, the learned Counsel again referred us Zangina V. Commissioner of Works Borno?State (2001) 9 NWLR (Pt.718) 460 at 468.

Reacting to the submissions of the learned Counsel for the Appellants at pages 9 to 12 of the Brief on the mental capacity of the Deceased, he submitted that the Trial Judge also rightly held that the principal question was whether the deceased made a Will during his life time or died intestate which question he answered in the negative and held that the Deceased died intestate. The learned Counsel maintained that the Court below did not make any finding on the mental capacity of the Deceased and that conscious of this point, the Appellants did not make same a Ground of Appeal yet the said Appellants? Counsel argued extensively on the mental capacity of the Deceased.

On the position of the Law that an Appeal should be a complaint against the decision of a Court, he cited and relied on SPDCN Ltd. V. Oruambo (2014) 5 NWLR (Pt.1294) 591 at 897, AIB Ltd. V. IDS

Ltd. (2012) 17 NWLR (Pt. 1221) 53, NDIC V. SBN PLC (2003) I NWLR (Pt.801) 311, Babalola V. The State (1989) 4 NWLR. (Pt.115) 264 and Oredouiu V. Arowolo (1989) 4 NWLR (Pt.114) 172; to submit that an Appeal should also be confined to issues decided by a trial Court and that an issue not canvassed at the trial Court and decided by the Court should not be canvassed on Appeal.

Turning to the issue of attestation of the Will and the submission of the learned Counsel for the Appellants that the DW1 (Gilbert Nnabuife) testified to that effect, the learned Counsel for the 1st Respondent again referred us to Oduche V. Oduche (2006) 5 NWLR (Pt.972) 102 at 112 and submitted that no reason was given for not calling Architect Okwaraoha and it was on that basis that the Trial Court held as he did at page 285 of the Records that only one witness instead of the mandatory two was called and accordingly the reasoning and conclusion of the Trial Judge cannot be faulted.
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On the contention by the learned Counsel for the Appellants that the Will was detailed and comprehensive, the learned Counsel for the 1st Respondent countered that the Will made unreasonable provisions

of One Thousand Naira to the daughters of the deceased and dispossessed the male children of their rights to live in the family house until they build theirs while the shares granted to children of the deceased in UOO Nigeria Ltd far exceeded the share capital of the company.

The learned Counsel for the 1st Respondent in respect of the Appellants Senior Counsel?s contention that learned Trial Judge took into consideration irrelevant matters in reaching his decision, argued that all issues considered were contested and tested in open Court by the parties and were relevant Consideration of the validity of the Will. The learned Trial Judge, he further maintained never went fishing on the evidence but based his decision on the evidence adduced by the parties. He therefore placed reliance on the authorities of Adebayo V. Adusei (2004) 4 NWLR (Pt.862) 44 and Adenle V. Olude to finally contend that the case of Ize-Iyamu V. Alonge (supra) cited by the learned Senior Counsel for the Appellants to submit that forgery was not proved is distinguishable from the present case where the 1st Respondent produced Exhibit ?N? for comparison. We were

therefore in conclusion urged to discontinuance the submissions of the learned Senior Counsel for the Appellants and dismiss the Appeal.

RESOLUTION OF ISSUES:
In the resolution of the Issues nominated by the respective learned Counsel for the parties in this Appeal, I propose to adopt the Two Issues of the learned Senior Counsel for the Appellants and shall subsume the Four issues of the learned Counsel for the 1st Respondent within those of the Appellants, since most of his arguments are respetitive of each other.

ISSUE NUMBER ONE (1): ?WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT APPELLANTS HAD FAILED TO PROVE DUE EXECUTION OF THE WILL OF THE DECEASED CHIEF N. U. OKAFOR IN THE LIGHT OF OVERWHELMING EVIDENCE ADDUCED BY THE APPELLANTS

On this Issue, parties are ad idem that where there is a dispute as to the validity of a Will the initial onus of proof is on the propounders of the Will (in the instant case, the Appellants) who ought to show by credible evidence prima facie that the Will was duly executed and that the Testator (in this case Chief Nzedioranma Uche Okafor (Deceased) had the mental capacity or corpus

mentis to execute the Will as a free agent without undue influence or fraud. Upon the Appellants having satisfied/discharged this initial burden, the onus shifted to the 1st Respondent who impugned the Will and its validity to prove the contrary also with credible evidence. In the instant case, since the 1st Respondent alleged that the Will was a forgery he ought to have established these allegations of lack of mental capacity of the Deceased and the forgery beyond reasonable doubt.
In Ize ?Iyamu V. Alonge 2007 6 NWLR (Pt.1029) page 84 at 89 ably cited by the learned Counsel for the 1st Respondent at page 20 of the 1st Respondent?s Brief the Court held in line with the decision in Odjegba V. Ojegba (2004) 2 NWLR (Pt.858) 566; at 585- 856, Paras. G ? B, and 587, Paras B. C. also cited by the learned Counsel for the Appellants at page 8 of the Appellants? Brief that:
?The burden of proof of the genuineness and authencity of a will lies on the party propounding it. Where there is a dispute as to a Will the party who propounds it must clearly show by evidence that prima facie everything is in order that is to say that there

has been due execution and that the testator had the necessary capacity and was a free agent.?
See also Johnson & Ors. V. Maja & Ors. 13 WACA290 at 291 ? 292 quoted in Ojegba V. Ojegba (supra) per Muhammad, JCA at pages 24 -25 of (2003) LPELR ? 7211 (CA) who reasoned thus:
?On they (the Propounders of the Will) having satisfied the Court, prima facie, as to these matters, it seems to me that the burden is then cast upon those who attack the Will; and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence and so forth.?

The learned Counsel on both sides have also cited the relevant Provisions of the Wills Law, Cap. 37, Laws of Abia State of Nigeria, 1991? 2000 Vol. 11 (now CAP.175, Vol. 7, Laws of Abia State of Nigeria, 2005) Section 6 thereof which provides in very clear terms on the Validity and requirements for the execution of a Will that:
?6(1). NO. Will shall be valid unless
(a) it is in writing.
(b) it is signed by the testator or singed in his name by some other person in his presence and by his direction in

such place on the Will so that it is apparent on the face of the Will that the Testator intended to give effect by the signature to the writing signed as Will;
(c) the Testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time.
(d) the witnesses attest and subscribe the Will in the presence of the Testator but no form of attestation or publication shall be necessary.
2. No signature under this section or under any other Provision of this Law shall be operative to give effect to any disposition or direction which is underneath or follows it nor shall it give effect to any disposition or direction insisted after the signature shall have been made.?

In the instant case the Plaintiff/1st Respondent had pleaded severally that the Deceased was a Traditionlist and could not have made a Will and in particular paragraphs of the statement of claim, alleged that the Deceased lacked the corpus mentis as at the time the Will was purportedly made and accordingly the Will was a forgery. See Paragraphs 29, 30, 31, 32, 33, 34 and 35 of the Statement of Claim where the 1st Respondent

averred/alleged as follows:-
?29. The Plaintiff avers herein unequivocally that the deceased Chief Nzedioranma Uche Okafor, did not make a Will and that the deceased expressly stated this in his life time in the presence of Witnesses wherein he stated that his estate shall be shared/devolve according to the Custom and traditions of Nkwukwo Village Unubi in Nnewi South Local Government Area Anambra State.
?30. Further or in the alternative the making or writing of Will is not known in the Custom or tradition of Nkwukwo Village Unubi in Nnewi South Local Government Area Anambra State which doctrines the deceased believed and adhered to strictly while he was alive.
?31. Besides sometime in 2001 the deceased underwent an eye surgery after which he became totally blind. The deceased could not be able (sic) to written a Will or to read a Will already written as he was totally blind, and these facts were well known to the Defendants.
?32. The Plaintiff further contends/avers that the document dated 21st day of December, 2000 purporting to be the last Will and Testament of Chief Ndezioranma Okafor is a forgery and/or was

not made by the deceased.
PARTICULARS.
g. The signature appearing in the document does not represent the true signature of Chief Nzedioranma Uche Okafor. Besides from the year 2002 up till the time of his death the deceased was blind.
?33. The Plaintiff shall contend and herein avers further and/or in the alternative that at the time the alleged Will was executed the deceased did not know nor approve of the contents and also the deceased at the time when the alleged Will was purported to have been executed was not of sound mind, memory and understanding.
?34. The nature of the case on which the plaintiff intends to rely is as follows;-
i. That the deceased was not in very good health and from time within the period had professional medical consultations.
ii. That the age and bodily illness which afflicted the deceased was such as to impair his mental ability and concentration. The deceased from the year 2002 was totally blind and could not read or write anything.
iii. In view of these he could not have been able to give detailed and sensible instructions of the nature required for dispositions contained in the

alleged Will or to understand or approve of its contents.
iv. Whoever procured the signature of the deceased must have or ought to be fully aware of these facts pleaded.
v. The date shown as the date of the alleged Will was put there in Order to set up a false representation that the deceased executed the Will at a date when the state of his health had not deteriorated to what it was around the time when it was in fact executed.
?35. The Plaintiff shall therefore contend and avers that the said Will was not executed by the deceased at all and/or as a free agent without undue influence or coercion.?

In response to the above averments, the Defendants/Appellants pleaded denying all the allegations contained in Paragraphs 29 ? 35 of Statement of claim and in Paragraphs 33 – 41 of their Statement of Defence in sum stated in the said averments which were replicated in their Statement on oath and adopted at the trial thus:
“1. That Chief N.U. Okafor duly made a Will which was executed and lodged with the Probate Registry same having been prepared upon the deceased?s instructions. The video clips of Chief N. U. Okafor

informing the children/family members that he made a Will and another during the due execution/signing of the Will were Pleaded. (Paragraph 33 of the Statement of Defence and Counter-Claim.)
2. The Defendants/Appellants put the 1st Respondent to the strictest proof of the averment in Paragraph 30 of the Statement of claim that Will making was not part of Nkwukwo Village, Unubi Nnewi South Local Government Area of Anambra State nor known to their said custom and people.
3. In further reply to Paragraphs 29 and 30 of the Statement of Claim, the Appellants contended that their Deceased father wanted/desired to leave a well organized and orderly corporate establishment in the mould of companies like Leventis, P.Z; U. A. C. and Dangote Group e.tc. which led him to entrust his estate into the care of a Well-known Corporate Body with good reputation to act as his Executors in accordance with his instructions and desire as contained in the Will.
4. They stated that the Testator was not blind in 2001 though they admitted that he went for eye operation for cataract but was still using his eyes well when he executed the Will and indeed addressed the

family on 1st January, 2001 which Video recording of that event was also pleaded to counter the fabrications of the 1st Respondent and his cohorts.
5. They deprecated, denied and repudiated the allegations by the 1st Respondent in Paragraph 32 of the Statement of claim and stated that the Will was not forged but remained the testamentary and ambulatory desire/wishes of the Testator, personally made and duly executed without fraud, misrepresentation, duress, undue influence by anybody whatsoever or any suspicious circumstances.”

In reply to the Particulars of the averment, in Paragraph 32 of the Statement of Claim the Defendants/Appellants amongst others in their Paragraph 38 of the Statement of Defence stated that the Testator in Sub-paragraph (d) of the Will detailed personal instructions and directions to Barr. Elizabeth Osoka, who reduced same into writing and followed the legal procedures laid down till the document was dully executed and lodged. They denied knowledge of who Barrister Ibe Nwachukwu was or whether he claimed to have written a Will for the Testator but averred that only the letter written by E. Osoka and Co. is authentic and the

said Legal Practitioner only acted for the Testator in preparing the Will which was accordingly lodged at the Registry.

In Sub-paragraph (g) of Paragraph 38 of the Statement of Defence they also denied that the signature on the Will is not that of the late Testator as same is his usual signature as could be seen in the video where he was signing the Will. The Defendants pleaded other documents, letters and official papers signed by him.

In Paragraph 39, they pleaded that the Testator was not a psychiatric case but had full control of his senses; memory and understanding until death and the contents of the Will after preparation were understood and approved as his instructions prior to the execution of same.

In Paragraph 40, they averred amongst others that the Testator remained in very sound health until 2005 when his health started ebbing away at 87 or 88 years old and even then he continued as the Chairman and CEO of UOO Group of Companies and was signing all documents concerning the Group which documents they also pleaded.

As for the averments of the 1st Respondent in Paragraph 35 of the Statement of claim the Defendants/Appellants

pleaded in Paragraph 41 of the statement of Defence thus:
?41. The Defendants (sic) denies Para. 35 of the Statement of Claim stating instead that the deceased, a man of forthright integrity and strength of character could not have been influenced or coerced into doing anything he does not like. He whole heartedly and personally executed the Will?.

It would be recalled that Plaintiff/Respondent who pleaded in Paragraphs 33 and 34 (i) – (iii) that his father lacked the mental capacity to make the Will as he was not of sound mind, memory and understanding also testified in-chief at page 108 lines 18 ? 21 that:
?At the date of the Will, my father was not in good health, and could not have made any Will under that situation. He was not of sound memory and understanding and his health was deteriorating.?

However, at page 114 of the Records when cross-examined on the mental capacity of the Testator (his father) as at 30th January, 2007 when he died, the 1st Respondent unequivocally stated thus in lines 21 ? 23 of that page that:
?At the time of his death, my father was not mad. My father was

not diagnosed of any mental delusion or disease?.

Azubuike Asuzu (the CW2) whose Statement on Oath is at pages 60- 63 of the Records and who in Paragraphs 4 and 5 averred in that Statement which he adopted in Court and was admitted as Exhibit ?G? (see page 119 lines 15 ? 21 of the Records) testified in chief that he was the patriarch of the Ucheabuaku family in their Village which is the maternal family of the deceased Testator. He claimed to be one of those invited to a meeting by the deceased in his palace in their Town on the 4th day of January, 2007.

In Paragraph 7 of the Statement he claimed that the 4th January meeting was called by the deceased who was blind and the Testator asked whether all the persons he invited were present and all the persons invited and his seven sons answered in the affirmative. See Paragraphs 7 ? 10 of the statement on Oath. Before then he had deposed in Paragraph 6 of the Statement that:
?(6) By virtue of my position of the patriarch of the deceased maternal family his friend and person invited by him, I have the capacity to swear this affidavit?; and subsequently in

Paragraphs 12 and 13 thereof that:
?(12). At that meeting, the deceased said he wanted us to know his final declaration in case of death.
?(13) He told us he had no WILL AT ALL?.

At page 121 of the Records lines 5 ? 10 the witness however stated under cross-examination that:
?I will not be surprised if there is a video clip showing that the deceased made a Will where he so told the children, because 2nd Defendant came to me with a Video asking me to admit that a Will was made and I would be given any building of my choice. Every January when he held his annual meetings with his sons, it was normally videoed?.

On further cross-examination, the witness stated in lines 15 and 16 of the same page 121 of the Records that: ?At (sic) time of his death, he was sound mentally?.
?
In the same vein Chukwuma Umeanabuike whose Statement on oath is contained in pages 57 ? 58 of the Records which Statement was adopted on the 17th day of February, 2010 (see page 124 lines 12 ? 19 of the Records) and same was admitted and marked Exhibit ?J? also denied that Nze Okafor (the

deceased Testator) ever made a Will adding that if he made a Will he would have known as the late Nze always invited him for some meetings one of which was the purported meeting of 4th January, 2007 along with the CW2 and CW3 where the deceased told them that ?he had no WILL AT ALL and never made any? However when questioned about the Testator?s mental capacity he replied at page 125 lines 16 ? 19 that:
?It is not true that Onyima (Testator?) Made a Will. The man told us that he heard rumours that he made a Will and that was why he called us and informed us he made no Will. He was mentally sound and alert until 4/1/2007?.

On further cross?exanimation at the same page 125 of the Records line 24 by Mr. Okafor, the Witness still on the corpus mentis of the Deceased Nze Uche Okafor reiterated that:
?It is not (sic) the made a will on 21/12/2000. Before his , he did not suffer from any mental disability.? See lines 24 ? 25 of page 125 of the Records.
?
As has been rightly submitted by the learned Senior Counsel for the Appellants, and as can be gleaned from the pleadings of the

Appellants, their evidence and the contents of Exhibits ?E? and ?T?, the said Will was executed on the 21st day of February, 2001 but lodged at the probate Registry of the High Court of Abia State, Umuahia on the 14th day of February 2001, by the Solicitor who prepared same and thereafter was custodied by the Probate Registrar who testified to this fact in Paragraphs 4 ? 15, 27, 29 ? 38 of his Statement on Oath which was adopted at page 140 of the Records on the 7th day of June, 2010 as his evidence that the Will was authentic and fulfilled all the legal requirements. At page 141 of the Records the witness continued in his evidence in-chief that: ?From all indications, the Will was deposited with the probate regularly. The reading of the Will was properly convened and carried out?.

From the foregoing pieces of evidence and in particular the admissions of the 1st Respondent and his witnesses it is incontestable and indubitable that as at the 21st day of February, 2000 when the Deceased Nze Uche Okafor made the Will now in dispute he had the requisite mental capacity which is one of the required legal

prerequisite for the validity of a Will.

I therefore agree with the learned Senior Counsel?s submission that the Testator remained in good and sound mental state at the date of execution of the Will until seven years thereafter before his demise.

The authority of Mabogunje V. Adewunmi (2006) 11 NWLR (pt.991) 224, 264 Paras. D ? F is quite instructive on this point where the Respondents as in that case, amongst other reasons similar in almost all respects to this case sought for the revocation of their father Chief Timothy Odutola?s Will on the ground that the Deceased did not know or approve of the contents of the Will and Codicil at the time of the execution of the Will because their father on the 2nd September, 1981 had an apoplectic stroke which rendered him partially paralysed for the rest of his life and that as at the date of the purported codicil, the deceased had lost his memory and was not in a position to appreciate the making of the purported Will.
?
In his Lead Judgment, this Court per Tabai, JCA (as he then was, with whom Udom-Azogu and Agbo, JJCA concurred, posited) rightly in my humble view that:

?………………. if by Exhibit P and other related Exhibits made about 12 years after the stroke the Plaintiff held out the deceased as being of sound testamentary capacity the law presumes that the state of the deceased mental capacity would continue until and unless the contrary is proved. In other words, the onus was on the Plaintiffs to prove that the sound disposing mind of the deceased they acknowledged to have existed up to the 8th of April, 1993; no longer existed at the time of the Will and Codicil some months later. I derive support for this Statement from the opinion of the learned Authors of Williams on Wills, 8th Edition, Chapter 4 at page 39 where they said:
?The law presumes? that a state of things shown to exist continues to exist unless the contrary is proved.?
The mental capacity of the deceased as at 8/4/93 is presumed to continue thereafter unless the presumption is rebutted. There is no concrete evidence in rebuttal?.

Again, going by the above authority, it follows that by the admissions of the 1st Respondent and his witnesses on the mental capacity of the Deceased, their evidence is at

variance with their pleadings on want of mental capacity or sound disposing mind of the Deceased and therefore consistent and supports the contention of the Appellants that the Deceased was not mentally impaired and was at all times material to the execution of the Will as far back as the year 2000 and up till his eventual demise in 2007, of sound mind and therefore capable of executing the Will now in question.

On another score, the basis of the challenge to the validity of the Will on capacity was that the Deceased was physically disabled as a result of complete blindness (see Paragraphs 33 and 34 (i), (ii) and (iii) of the Statement Of Claim and page 108 lines 12 ? 21 of the Records) where the CW1 stated in his evidence ?in-chief that:
?In 2001 my father underwent eye surgery after which he became totally blind. He could neither read nor write. Exhibit ?E? was not made by my father. It is therefore a forgery. The signature on that document is not a true reflection of my father?s signature. The Will did not make any provisions for my father?s burial ? a subject so dear to him. At the date of the Will,

my father was not in good health, and could not have made any Will under that situation. He was not of sound memory and understanding and his health was deteriorating.?

At page 113 still in his evidence ?in-chief in defence of the counter-claim, the witness contradicted himself on the year his father got blind contrary to what he had said earlier at page 108 of the Records thus (see lines 20 ? 22 thereof):
?I adopt my evidence in-chief as response (sic) to my counter-claim. My father by 2000 was ill, and totally blind. He could not write or speak English as he was illiterate?.

Again at the same page 113 under cross-examination he replied in lines 28 ? 31 to page 114 lines 1 and 2 that:-
?My father became sick in 1999 but it became serious in 2000. I can?t remember the month. My father celebrated the recovery from illness in 2000. I cannot remember the month. My father had glaucoma. In 2000 he had diabetes and other related illnesses?.

With these pieces of contradictory evidence on the state of health of the Testator, no Court worth its salt would place any premium on the credibility

of the CW1 (1st Respondent) as his testimonies were in sharp contrast with his pleadings as highlighted earlier on.

The evidence of the CW3 and CW4 in this respect did not help matters as they further contradicted each other. Whereas, at page 123 lines 10 and 11 of the Records, the CW3 stated under cross-examination that:
?I don?t know exactly the time he became blind;? the CW4 at page 125 lines 1 ? 4 there of purported that: ?But I knew that about 2003 to 2004 he was having sight problem. As at 4/1/2007, he was blind. That was the last time I saw him. There was a meeting that date?.

In the light of the above contradictory evidence of the CW1/ 1st Respondent and his witnesses, the claim of the Respondent that his father?s blindness and failing health created a state of incapacity of a sound disposing mind could not have held any water since from the evidence of his witnesses, even with his purported blindness, he still was articulate to have summoned a meeting on the 4th day of January, 2007 where he informed those present that he never made a Will. Be that as it may, the learned Senior Counsel

for the Appellant has rightly posited that the Will from all indications was executed in the year 2000 while the Deceased Testator was not either blind or had recovered from the blindness which he purportedly celebrated.

Again as had rightly been observed earlier in tandem with the learned Senior Counsel?s submission, even upon the assumption that the Testator was blind as at when he made the Will, the blindness did not deprive him of his mental capacity as has been demonstrated by all the parties in the case particularly the 1st Respondent and witness whose answers to cross?examination supported the claim of the counter-claimants/Appellants that the deceased Testator Nze uche Okafor was of sound mental capacity which is a sine qua non for the execution of the Will the contrary which they Respondent did not prove.

I agree therefore with the submission of the learned Senior Counsel for the Appellants that the DW3 who prepared the Will as well as DW5 in whose custody the Will was after due execution supported the evidence of the Appellants that the deceased Nze Uche Okafor had the sound mental capacity when he made the disputed Will.<br< p=””

</br<

On the other essential elements of a valid Will that the propounders ought to prove which is Due Execution of the Will, by the Testator signing or the Will being signed by some other person on his behalf in his presence and his direction, in such a place on the Will so that it is apparent on the face of it that the Testator intended to give effect by the signature to the writing signed as his Will; and further that the Testator makes or acknowledges the signatures in the presence of at least two witnesses present at the same time who should attest and subscribe the Will in the presence of the Testator but no form of attestation or publication shall be necessary; a careful perusal of Exhibit ?E? the photocopy of the certified True Copy of the Will which original was tendered as Exhibit ?T? would reveal that the Testator Chief N. U. Okafor signed same at page 8 in the presence of Chief G. O. Nnabuife (KSM, JP) and Arc. Alban Okwaraoha (KSM) who were both present at the same time and who at the request of the Testator in their presence as witnesses also signed as having subscribed their names thereto.
?
To prove the due execution of

the Will as prescribed by Section 6 of the Wills Law CAP. 37, Laws Abia State of Nigeria, 1991 ? 2000 Vol.11, as earlier reproduced, three persons signed the Will who are the Testator, and his two witnesses. This fact was buttressed by the DW1 (Gilbert Nnabuife) who was called by the Appellants and who testified in-chief in Paragraphs 6 – 11 of his Statement on Oath which he adopted on the 19th day of April, 2010 (see pages 80 ? 81 and 127 of the Records) as follows:
?6. Late Chief Nzedioranma Uche Okafor informed me that he has made a Will about the year 2000 and had invited me to his house on the 21st December, 2000 for me to witness the Will.
?7. On the appointed date, I arrived at the deceased?s residence at No. 94 Asa Road, Aba, Abia State and met Arc. Alban Okwaraoha who was also invited for the same purpose by the deceased.
?8. We were later introduced by the deceased to Barr. (Mrs.) Elizabeth Osoka, the lawyer who prepared the Will. Barrister Osoka read the Will.
?9. The deceased then proceeded to sign his Will before all of us after which Arc. Alban Okwaraoha and myself took turns to sign

the Will as witnesses to the document.
?10. On the day of the signing of the WILL, that is 21st December, 2000, the deceased was hale and hearty mentally alert and sound, appeared in control and in charge and I witnessed or saw nothing suggestive of fraud, undue influence or duress, coercion or force neither did I see anything suspicious about the Will, its making and its execution.
?11. On inquiry later, I was told by the deceased that the WILL had been lodged or deposited with the Probate Registry, Umuahia, Abia State by the Lawyer, on 14th of February, 2001.?

Under cross-examination at pages 127 lines 28 ? 30 he replied that the Testator told him while going to sign the Will that he (witness) would be made an Executor and Trustee of the Will but the Testator did not tell him that he would make either Arc. Alban Okwaraoha or Nze Edozie the Trustees or Executors. He admitted that the Will was read before he signed same.

It is also pertinent to note that Elizabeth Osoka the solicitor who prepared the Will also testified in Paragraphs 13 and 14 of her Statement on oath which she adopted at the trial thus:<br< p=””

</br<

?13. That after he had appended his signature to the document, he told his friends to sign the Will or document before all of us, there and then as his witnesses and this they both did with happiness and joy that he had the confidence in them.
?14. That the two (2) persons who were invited and who indeed witnessed or attested to the Will are
(i) Chief G. O. Nnabuife (KSM), a Building/General Contractor resident in Aba, Abia State.
(ii) Arc. Alban Okwaraoha (KSM), an Architect also resident in Aba, Abia State.?

It would be recalled that the learned Trial Judge in his Judgment at pages 282 lines 17 ? 35/page 16 of the Records/Judgment to page 283/17 lines 1 ? 26 thereof, in dismissing the claim of the Plaintiffs/Respondents had laid to rest any controversy surrounding the validity of Nze Uche Okafor?s Will in which case the Counter-Claim of the Appellants was even unnecessary.

Hear the learned Trial Judge.
?Now to the case before me as put forward by the Claimant. I have set out the Reliefs above. The Claimant?s case is two ?pronged:
(a) That Chief Okafor did not make a

Will.
(b) That the WILL produced as his own is null and void, a forgery and the deceased had no testamentary capacity to make it.
In order to prove his case, apart from himself, claimant called as witnesses 2 brothers the Azuzus, and Umeanabuike. By the response of 2nd Defendant, these people all had issues with Chief Okafor qualifying them as tainted witnesses.
All of them said they were invited to a meeting on 4/1/2007 where the sole purpose was for Chief Okafor to tell them he did not make a WILL and that his estate should devolve in accordance with native law and custom. What baffles me is why Chief Okafor would summon such a meeting only to announce he did not make a WILL. I also find it a little intriguing and unbelievable that after allegedly declaring he made no WILL he would demand the devolution of his property according Unubi Native Law and Customs. That is serious for a traditionalist, he ought to know that it is Unubi Custom that should prevail and not any other. It is not natural for a man to call together his family members and tell them that Customary Law should govern his Estate.?

From the above findings, it is clear

that the Court below like any other Court presided by a reasonable Judge had inferred that the late Nzedioranma Uche Okafor must have made a Will and accordingly some of his children and numerous wives who may have felt short changed by the provisions of the Will, would go to any length to see that the Will was voided. This explains why the learned trial Judge subsequently reasoned (and rightly in my view) at page 283 of the Records (page 17 of the Judgment) interalia:-
?I see some desperation on both sides. One side Claims their father called them together and told them he did not make a Will. The other side says he summoned them to a meeting and told them he made a WILL.?

The learned Trial Judge then dealt the final blow to the case of the Plaintiffs/Respondents when he discredited the evidence of their Witnesses in these uncomplimentary terms:
?I watched CW2, CW3 and CW4 and believe the allegations against them to be true. They have an ulterior motive in the evidence they gave. For instance though CW4 denied the issue of vehicle loan, there was documentary evidence in support of the allegation. I sympathize with CW2 and

CW3 for their efforts to support the Claimant?s curious case despite their advanced ages. I saw their discomfort and surmise they did it for a purpose that is anything but noble. There might have been a meeting on 4/1/2007 as Chief Okafor normally held with his Clan but I do not believe the purpose was just to declare that he did not make any WILL and that His Estate should devolve according to native Law. I do not believe the Witnesses of Claimant on this so-called declaration. It is interesting to note that Chief Okafor died on 30/1/2007, that same month he was alleged to have made the declaration. I see the claim as a desperate one for if Chief Okafor did not make a WILL, he would not need that unsolicited meeting and declaration, but simply live his life and join his ancestors and the Custom Will take its course.?

Finally the learned Trial Judge in conclusion held thus:
?I find against the Claimant and hold that due to the unsatisfactory evidence before me, I hold that Chief Okafor did not make the declaration, that he did not make a WILL, and that his estate should devolve according to Custom. I am unable to grant the Claimants

Reliefs.?I hereby dismiss the Suit?.

With the greatest respect to the learned Trial Judge, having dismissed the Suit of the Claimant, the implications are apart from having found on the hazy and discredited, unbelievable evidence of the Respondent and his Witnesses that Chief Nzedioranma Uche Okafor made a Will (in other words that he believed the Appellants and their witnesses that Chief Nzedioranma Uche Okafor made a WILL in his life time and therefore did not die intestate); the dismissal of the entire Suit of the Claimant/Respondent also translated to the following:-
“(1) That having made a Will, the estate of the deceased should be shared/devolve according to that Will and not according to the purported declarations made on 4th day of January, 2007 as Claimed by the 1st Respondent.
(2) The learned Trial Judge ought to have declared that the document titled: ?Last Will and Testament of Chief Nzedioranma Uche Okafor? dated 21st December, 2000 (Exhibits ?E? and ?T?) is not a forgery and/or that the said Will was authentic as same was duly executed by the deceased Testator who had the testamentary

capacity as at the time he made the WILL.
(3) The said Will ought not be set aside and ought not to have been pronounced against.
(4) The property/estate of Chief Nzedioranma ought not be shared/devolved on his beneficiaries according to the custom and tradition of Nkwukwo Village Unibi in Nnewi South Local Government Area of Anambra State except where such custom is accommodated by the Will but in accordance with the dictates of his Will.
(5) The 2nd Defendant his agents, servants or privies ought not have been restrained from interfering with the property/estate of the deceased Testator as prayed by the Claimant/1st Respondent.
(6) The 3rd Defendant (now 2nd Respondent) ought not be restrained along with his agents, servants or privies from granting Probate/Letters of Administration to the 1st and 2nd Defendants/Appellants relative to the estate of the deceased or to any other person whatsoever or in any other manner, as claimed by the Claimant/Respondent, his suit having been dismissed in its entirety.”

I say this without being oblivious of the fact and position of the law that a Counter-Claim is a cross-action (see, Dabup V. Kolo

(1993) LPELR -905 (S.C.) per Ogundare, JSC at page 38; Ogli Oko Memorial Farms. Ltd. & Anor V. Nigerian Agricultural & Co-Operative Bank Ltd. & Anor (2008) 12 NWLR (Pt.1098) 412 at 428; Jeric Nig. Ltd. V. Union Bank Plc. (2000) 12 SCNJ 184 at 2201; General Oil V. F.S.B. International Bank Plc. (2005) 5 NWLR (Pt.979) at 597, Chief Adison Onya & Ors. V. Chief Godwin & Ors. (2009) LPELR ? 8508 (CA) where this Court per Saulawa relying on Supreme Court authorities like Garba V. Kur (2003) NWLR (Pt. 831) 280; Usman V. Garke (1991) 1 NWLR (Pt. 587) 466; Jeric Nig. Ltd. V. Union Bank of Nigeria plc (Supra) and Kwajaffa V. BON (1999) 1 NWLR (Pt. 587) 423; rightly stated the position of the law that it is trite that a Counter-Claim is, for all intents and purposes a separate, independent and distinct action.
This being the case as settled by a plethora of authorities, the onus lies on the Counter-Claimant who has assumed the position of a plaintiff to prove the Counter-Claim with credible and cogent evidence to satisfy the Court that he is entitled to the Reliefs sought. He also, like the plaintiffs in this case who sought for Dedicatory

Reliefs, shall rely on the strength of his case and not on the weakness of the Plaintiff?s case since the dismissal would not necessarily result in the success of the Counter-Claim. See further Ogunola & Anor V. Saka & Ors. (2011) LPELR ? 8946 (CA) Per Salami JCA at page 11 Paras. D ?E and Ogbonna V. The AG Imo State & Ors. (1992) LPELR 2287 (SC) Per Nnaemeka-Agu, JSC of Blessed Memory at Paras. B ? D and Per Galinje JCA in Susainah (Trawling Vessel) and 2 Ors V. Mr. Segun Abogun (2006) LPELR -7732 (CA) at 37 ? 38 Paras. F ? G ).
In spite of the independent and distinct nature of the Counter-Claim or Cross action from the main Claim of the Respondent as in this case, where however the claims of the respective rival parties are the direct opposite of each other on the same facts and same evidence led in proof of one is the same as the other as in this case, it seems to me that the Trial Court having dismissed the main Suit in its entirety cannot turn somersault and dismiss the Counter-Claim as the learned trial Judge had done in the Lower Court as this would tantamount to sitting on Appeal over and setting

aside his earlier Judgment dismissing the Claim of the Plaintiffs/Respondents and the Reliefs sought which are the direct opposite of the Counter-Claim except the learned Trial Judgment non suited the parties.

This Curious procedure was adopted by the Court below as regards the Appellant?s Counter-Claim at pages 285 ? 286 particularly at page 286 of the Records where the learned trial Judge after properly analyzing and stating the position of the law based on the claim and Counter-Claim of the parties by citing Section 6 of the WILLS Law of Abia State CAP.32, 1999 as earlier reproduced on the validity of the Will and the principles enunciated in Ize-Iyama V. Alonge (2007) 6 NWLR (Pt.1029) at 84 and Egbuziem V. Egbuziem (2004) (2005) 4 NWLR (Pt.916) at 488; on who the onus probandi rests; when the validity of a Will is challenged, the learned Trial Judge went on to hold as follows:-
?I am of the view that the 1st and 2nd Defendants have not proved due execution of the WILL to make it Valid. The onus placed on them has not been discharged. I therefore find as a fact and hold that there is no proper and admissible evidence before me

that Chief Okafor made a WILL.?I cannot therefore pronounce Exhibit ?T? in solemn form. The consequences of this are well know to the effect that Chief Okafor died intestate. I so hold.
The Counter-Claim is dismissed?

It would be recalled that the learned Trial Judge who had earlier held that the deceased Chief Nze Uche Okafor died testate gave the reason for upturning his earlier decision as follows:-
1. ?Exhibit T is the Original Copy of the WILL. The signature of the testator on the document is different from his signature in Exhibit ?E? which incidentally is supposed to be a photo copy of Exhibit ?T?
2. The signature of Chief Okafor on Exhibit N which is a Copy of minutes agreed to have been signed by him by 2nd Defendant is also different from that of Exhibit ?T? and ?E?. It becomes doubtful whether these three signatures were signed by the same person.
3. ?There is also the illiterate Jurat which was inserted as if an afterthought and it was by DW2 ? the Solicitor in different characters from the ones used in the WILL.
It is also

strange that the Solicitor read the WILL to all the Witnesses before they signed while the Solicitor who prepared the WILL did not sign it. DW1 said that DW2 was present during the signing, but he denied it. The Solicitor tendered flight tickets from Lagos to Port Harcourt, but my attention was also drawn to the ticket for 20/12/2000 or 21/12/2000 being the execution of the WILL.
4. ?Even in proving the due attestation, only one eye Witness out of the mandatory two was called. Could it be said that it was proved that Arc. Okwaraoha signed the WILL?
Why was he not called? DW2 in one breath told the Court that he never knew that his father made a WILL until he passed on, only for him to make a somersault and now claim his father told them many times he had made a WILL.
Yet not one out of the people who were told at the many fora about the WILL was called as a witness to confirm same.
5. ?Exhibit ?A? was a letter from a Solicitor, One Mr. Nwachukwu to 2nd Defendant claiming to have prepared a will FOR Chief Okafor which he lodged at the Probate Registry Yet, DW5 ? Probate Registrar was not asked about this

WILL By Defence Counsel. Defence should have been anxious or curious to establish whether Chief Okafor made two WILLS, but surprisingly it did not appear to care.?

The above highlights were said to have cast a hazy cloud on the validity of the Will thus necessitating the dismissal of the Counter-Claim and the reversal of his (learned Trial Judge?s) earlier Judgment dismissing the claim of the 1st Respondent which was the direct opposite of the Counter-Claim. The learned Counsel for the Respondent has argued strenuously in support of the reasons advanced by the learned Trial Judge in dismissing the Claim of Appellants that Nze Uche Okafor made a WILL. For instance at pages 6 para. 4.00 to 18 Paragraph 4. 32, the learned Counsel in the argument of his Issue Number One has gone to the extent of recalling the evidence of the CW1 ? CW3 and CW4 which had been discredited by the Court below to insist that the Court was right in dismissing the Counter-Claim on the basis that the deceased Chief Uche Okafor died intestate and as a traditionalist wanted his estate to devolve in accordance with Unubi Custom. He had cited a number authorities to

submit that the Will tendered as Exhibits ?E? and ?T? were forgeries but with the greatest respect all those authorities cited may have been decided rightly by both the Supreme Court and this Court but they are all in inapplicable to thus case.

I am in complete tandem with the learned Senior Counsel for the Appellants that the Respondent?s Counsel who did not appeal against the dismissal of the entire claim and Reliefs sought by the Respondent cannot come to the Court of Appeal to contend as he has done that the evidence of the C1 ? CW4 were not contradicted on the crucial issue of whether- Chief Uche Okafor died intestate, the invalidity of the Will on grounds of forgery, the Corpus mentis of the Testator and due execution when he neither filed a Cross- Appeal nor Respondent?s Notice. All his arguments therefore go to no Issue as he cannot as rightly contended by the learned Senior Counsel for the Appellant urge this Court to upturn the Judgment of the trial Court dismissing the 1st Respondent?s Appeal without his Notice of Appeal or Respondent?s Notice but on his Respondent?s Brief solely.

Order 9 Rule 3 of the Court of Appeal Rules, 2011 is very clear on this point that:
“3. Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the Appeal to contend that the decision of the Court below should be varied upon grounds not specified in a Notice given under this Rule, to apply for any relief not specified or to support the decision of the Court below upon any grounds not relied upon by that Court or specified in such a Notice.”
See, Ifegwu V. UBN (2011) 16 NWLR (Pt.1274) 555; Lagos City Council V. Ajayi (1970) 1 ALL NLR 291; Eliochin (Nig.) Ltd. V. Mbadiwe (1986) 5 NWLR (Pt.122) 377; Obi V. INEC (2007) 11 NWLR (Pt.1046) 565 and Buhari V. Obasanjo (2003) 17 NWLR (Pt. 850) 587. Speaking specifically on the various reasons given by the Court below in up turning its earlier decision dismissing the entire case of the Respondent/Claimant; On the claim that the signatures of the Testator in Exhibits ?E? and ?T? the Photocopy and Original of the Will are different, nothing can be further from the truth as both signatures are same without any difference whatsoever

as even a blind person can confirm. On a careful perusal of the two documents which as a Court of Appeal I am entitled to, I find no iota of difference in the signatures of the Testator. Therefore this reason is unfounded.

The learned Trial Judge also based his strange decision on the disparity in the signatures of the Testator in Exhibit ?N? (the Minutes of the Emergency Meeting of 15/4/98 and those in Exhibits ?E? and ?T?).

I have also taken a cursory look at the signatures in Exhibits ?N?, ?E? and ?T? and find no disparities or differences in them. All the signatures are the same and I shall also discountenance that reason as there is no doubt that the signatures must have been signed by the same person.
?
Turning to the inscription of the Illiterate Jurat in different characters from the one used in the WILL, and the fact that the Solicitor who wrote and read the Will to all the Witnesses did not sign as the maker of the document, these are not the prerequisites for the invalidation of the Will. There is evidence from the DW5 that as at when the Will was deposited with

the Probate Registry, the requirement of the Legal Practitioner who prepared the WILL endorsing every page of the Will was not in vogue.

The learned Trial Judge also harped on the fact that in proving the Will only one of witness out of the two who attested to it was called. He had posed the question whether it was proved that Arc. Okwaraoha signed the Will when the said witness was not called. The learned Senior Counsel for the Appellant rightly answered that question when he cited Ajao V. Ashiru (1973) 11 S.C. 23 ; to submit that it has been consistently held that a party is at liberty to call only the witnesses it wishes to call and is not bound to call a particular witness or hordes of witnesses in order to establish his case. This position of the law is buttressed by the decision of the Supreme Court in Mogaji V. Odofin (1978) 4 S. C. 91, which case is the locus classicus on evaluation of evidence and has been relied upon in a host of innumerable cases and had long laid it down that although a trial Court is possessed of the power to receive or reject evidence placed on the imaginary scale of Justice after the evaluation process, this decision is

made not so much on the number/quantum of witnesses called, but on probative value and credibility of the evidence submitted at the trial. See, Odejide V. Fagbo (2004) 8 NWLR (Pt.874) 1 per Omage, JCA; Sunday V. The State (2010) LPELR ? 1470 (S.C), Akpan V. The State (1994) LPELR ? 382 (SC) Per Adio JSC at pages 17 ? 18 Paras. G ? B and Per Ogunwumiju, JCA in EjikeJoe Ajala V. Ogbonna Okogbue & Anor (2010) LPELR -4082 (CA) who succinctly re-echoed this principle of law quoting Fatayi-Willianms, JSC in Mogaji V. Odofin (supra) at Page 22 Paras. B ? G, of the Report thus:
?In evaluating evidence, the trial Court and indeed Appellate Court is to be concerned not with the number of Witnesses but with the quality or probative value of the testimonies of the witnesses. See, Ali Pinder Kwajaffa & Ors. V. Bank of the North (2004) 5 SCNJ 121.?

On another Score, the learned Counsel for the Appellant had cited Ize -Iyama V. Alonge (2007) 6 NWLR (pt. 1029) 84; which authority was also relied upon by the learned Trial Judge in the cause of his Judgment on the Counter-Claim and which authority settles the questions

posed by the learned Trial Judge on why Architect Okwaraoha one of the witnesses to the Will was not called and whether the inability to call that Witness ordinarily invalidated the Will.

As I said earlier, a careful perusal of the Will shows that same was signed by the Testator in the presence of two persons present at the same time who attested and subscribed to the Will. This is all that is required by the Wills Law Cap 37, Laws of Abia State of Nigeria; 1991-2000 Vol. II by Section 6 thereof. There is no provision that both Witnesses who attested to the WILL must be called to testify in Court. I agree therefore with the learned Senior Counsel for the Appellant?s submission that DW3 the Solicitor confirmed like the DW1 Gilbert Nnabuife one of the signatories/Witnesses to the Will, that the Will was duly attested to by those witnesses which is the only requirement of the law. Having so fulfilled the requirements of the Law in this respect and as supported by the learned Authors of Halbury?s Laws of England, 4th Edition at page 25, para. 362 that:
?The testator?s signature must be made or acknowledged by him in the presence

of two witness must then either attest and sign the Will or acknowledge his signature in the testator?s presence. The testator?s complete signature must be made or acknowledged when both attesting witnesses are actually, present at the same time and each witness who must attest or sign or acknowledge his signature after the testator?s signature has been acknowledge? Exhibit ?E? meets these requirements of the Law in all ramifications in my candid and firm view.

Prima facie, even as an Appellate Court, it can be inferred that the Will was duly executed as the said Exhibits ?E? and ?T? were signed by three Persons and one of the witnesses (the DW1) and the Solicitor who prepared the Will has testified to that effect. See in the Estate of Randle (1962) 1 ALL NLR 130 where it was held that:
?Where a testamentary instrument is ex facie perfectly regular as regards all the formalities of signature and attestation (as in this case), and no question of incapacity or fraud exists, a presumption of due execution arises which great weight must be given?.
In the instant case also there

is no conflict of the witnesses evidence to the execution of the Will as to the order in which the Testator and the Witnesses signed the instrument and as such no fraud can be inferred. To round up on this aspect of the learned trial Judge?s findings, the Supreme Court in the Randle?s case had explicitly taken the view that:
?Positive affirmative evidence by the attesting Witnesses of the fact of the testator?s signing or acknowledging his signature in their presence is not absolutely essential to the validity of a WILL. The Court may from the circumstance presume due execution by the testator.?

On the reason that not one person out of the people who were told at many fora about the WILL was called, the question had already been answered with the position of the law that the Appellant need not call hordes of witnesses in order to prove his case but the probative value of such witnesses is what is important.
?
The learned trial Judge also grounded one of the reasons for the dismissal of the Counter-Claim of the Appellants on the neglect or inability of the 1st Appellant DW2 to ask the DW5 (the Probate Registrar) about

the WILL one Mr. Nwachukwunta prepared for Chief Okafor and the reason why Barr. Nwachukwunta wrote Exhibit ?A? to 1st Appellant and all the seven wives and sons of the Testator.

With the greatest respect to the learned Trial Judge and indeed the learned Counsel for the 1st Respondent, the Appellant had no business questioning the DW5 about a purported Will written by Nwachukwunta since the 1st Appellant did not tender the said Will but relied on Exhibit ?E? as the Will which was made by his father and the subject matter of the Suit. It was rather the 1st Respondent who should have tendered the said Will and cross-examine the DW5 on it which he failed to do.
?
I reiterate that the learned Trial Judge was in error to have dismissed the Appellant?s Counter-Claim after dismissing all the claims of the 1st Respondent on all the heads. By dismissing the 1st Respondent?s claim in its entirety having discredited the witnesses for the 1st Respondent, the learned Counsel for the 1st Respondent who did not appeal against the holding of the learned trial Judge that the Will was not a forgery and that the Testator was of sound

mental capacity to have made the Will, cannot be heard herein to argue that the Respondent?s witnesses were not discredited or contradicted and citing cases like Mini Lodge Ltd. V. Ngei (2009) 18 NWLR (Pt. 1173) 254, Oduah V. FRN (2012) 11 NWLR (Pt.1310) 76; on the essential ingredients of forgery.

There is no doubt that forgery is an act of fraudulently making of a false document or altering a real document to be used as genuine. The authorities of Garba V. COP (2007) 16 NWLR (Pt.1060) 378, Osondu V. FRN (2000) 12 NWLR (Pt. 682)?, Nigerian Air Force V. Kamal-deen (2007) 7 NWLR (Pt. 1032) 164 , are all on point. Moreover, the Court below on the authorities of Daniel Kalio V. Daniel Kalio (2005) 4 NWLR (Pt.915) 305 and TOMTEC NIG. Ltd. V. FHA (2009) 18 NWLR (Pt.1173) 358 ; where it was variously held by the Supreme Court that for purpose of ascribing probative value to a document made by a person the trial Court is under the Evidence Act entitled to make the necessary comparison between the signature of the person on the document and his signature on another document admitted in Court, was entitled to so do.
?
However, as the learned Senior

Counsel for the Appellant had also submitted in his Reply Brief relying on the same authority of TOMTEC NIG. Ltd. V. F. H. A. (1010) Vol. 179 L. R. C.N.I at 15 Para. Z ; where the Supreme Court held that it is settled law that where a party like the 1st Respondent did not Cross ?Appeal against the dismissal of his Claim that the Will was a forgery all his arguments as canvassed at pages 12 ? 18 on the credibility of the CW1 ? CW4 of their unchallenged evidence, go to no issue, as the Respondents did not even prove the forgery which is a criminal allegation beyond reasonable doubt by calling a handwriting expert which he was Ground to do.

In any case, I had also had the opportunity of perusing the questioned documents and apart from the fact that the learned trial Judge carried out their examination or comparison in the cosy recess of his chambers while writing the Judgment without first reading out his observations thereon to the parties in open Court prior to the Judgment which procedure was deprecated by the Supreme Court in Ndoma ?Egba V. A. C. B. Plc (2005) 14 NWLR, (Pt.944) 79, at 105 ? 107 Paras. A ? B Per

Oguntade JSC who Cited Section 108(1) of the then Evidence?Act Cap.112 LFN, 1990 and relied on Wilcox V. Queen (1961) 2 SCNLR 296, R. V. Smith, 3 Cr. App. R. 87, Rex V. Rickard and R. V. Akpena 13 WACA 173; the Respondents did not call any hand writing Expert to prove that the were forgeries signatures.

I had earlier on held that the signatures Testators in Exhibits ?E? , ?T? and ?N? were/are consistent and even where there are little discrepancies in the strokes of the Testators writing, Courts have been advised to look at the age of the Testator before concluding that a signature in a questioned document is forged. This is because where a Testator was up to 90 years or there about or above, the Court shall take judicial notice of the natural course of events that persons in such age bracket would have their hands shaky while signing their signatures and this would affect the product of what they signed.
Exhibit ?E? and ?T? was signed in the year 2000 while Exhibit ?N? (his signatures as Chairman on the minutes of the emergency meeting) was signed in 1998.
?
There is

therefore the possibility that the signatures of the Testator five years before his demise may not be consistent with each other perfectly as the Testator was said to be over 80 years when he passed on. See, Moses Balonwu V. Nezianya (1959) 3 ENLR 40. Whereas in this case Exhibits ?E? and ?T? were admitted to have reflected the full details of the Testators assets and mode of sharing as well as taken care of all his wives/Kitchens, children and grand children as admitted by the 1st Respondent under cross-examination at page 114 lines 10-21 that:
‘?In 1980 and 1996 my father allocated shares among his children. There is no difference between the sharing in 1980 and 1996 and the allocation of shares contained in the will. It is not true that the 2nd Defendant got 2 portions for everyone got by any other child. I see Exhibit ?E? and it is true that while 2nd Defendant got 2 Million, Others got Million shares. All the (sic) wives ? lives of my father and children are named in Exhibit ?E? Apart from the Maternity of Unubi, all my fathers? property are listed in Exhibit E. All the companies in

which my father had shares were mentioned in Exhibit E. My father was not diagnosed of any mental delusion?; no person other than Nzedioranma Uche Okafor the Testator could have made the contested will and under sound mental capacity.

Again, to buttress the fact that the 1st Respondent?s claim is frivolous if not mischievous, under cross-examination at page 116 lines 7-15 of the Records, his answers were a bundle of equivocations. For instance, he had stated in lines 7- 9 that:
?In Exhibit ?E? (WILL) Anakwe Okafor the last Child was not mentioned. I can?t remember when he was born? he subsequently in the same lines 9 to 16 stated. ?His name is there but he was not given any land. No name of any child or wife was omitted in Exhibit ?E?. Godian Religion benefitted from Exhibit ?E?. The grand children benefited. I have 4 children and the last is 10 years old. These my children benefited from the WILL?.

I agree completely therefore with the Learned Senior Advocate/ Counsel for the Appellant that the Testator being a prudent man and to avoid any rancour from his many wives

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and children went further to provide a Trust Fund to take care of his family which fund is to be managed by the 2nd Appellant an independent and unbiased body and with all these full details, the circumstances of the WILL show without any iota of doubt that the said WILL was executed by the Testator and truly represents his good wishes for his family. The Court below therefore ought to have pronounced the WILL as dully executed and valid. This issue is therefore resolved in favour of the Appellants.

ISSUE NUMBER 2 (TWO) ?WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN DISMISSING THE APPELLANTS? COUNTER CLAIM, WHERE IN THE APPELLANTS CLAIMED THAT THE DECEASED DIED TESTATE, AFTER HAVING DISMISSED THE 1ST RESPONDENTS CASE THAT THE DECEASED DIED INTESTATE

I am of the candid view that with the resolution of Issue Number One (1) in favour of the Appellants, all the arguments of the Learned Counsel for the Appellants and indeed the Learned Counsel for the 1st Respondent and all the points raised there in have been carefully and copiously considered.
?
The only aspects I intend to comment briefly on are the contention of the Learned

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Counsel for the 1st Respondent that the WILL made an unusually unreasonable provisions or bequests when for instance it made financial provisions for the daughters of the deceased in the sum of N1,000.00 (One Thousand Naira) as yearly allowance which according to him is ridiculous particularly coming from Chief Nzedioranma Uche Okafor who is worth N2,000,000.00 (Two Billion Naira) in cash and assets.

In response, the Learned Counsel to the Appellant has rightly referred us to page 281/15 of the Records/Judgment of the Lower Court where the Learned Trial Judge reasoned in lines 1-6 that:
?Also, a WILL is the last instrument or opportunity the law allows a person to decide how to distribute his estate. He is not obliged to provide for any particular person including his children with the exceptions of minors. The amount he chooses in his wisdom to give any person remains his business and not a ground for the will to be challenged?, in submitting that once a person makes a WILL, the bequests he made and the?reasons for making them cannot be challenged by any person once the property or money contain in the bequest is his as was rightly

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stated above by the Learned Trial Judge.

The above stance of the Court below and the Learned Counsel for the Appellants derive ample support from the dictum of Karibi Whyte, JSC in the celebrated case of Idehen V. Idehen (1991) LPELR-1416 (SC) at pages 51 Paras D-G, 55 Paras A-C and 62 para F-G, wherein he enunciated the principles guiding the making and construction of a WILL and its purpose thus:
“The provisions of a WILL have to be construed strictly and in accordance with the intention of the Testator. It must be conceded that the Chief if not the only aim of making WILLS is to allow owners of property or rights to indicate how their affairs on their death could be arranged. This involves the persons to whom their property could be given or those to succeed them otherwise. See Adebiyi V. Sogbesan 16 NLR 26. For instance, the institution of family ownership which could be created on intestacy, the nature and quantum of the interest which could go to a beneficiary can be altered by testamentary disposition.”

I therefore agree that the argument of the Learned Counsel for the 1st Respondent in this respect is non-sequitur as he did

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not cross-appeal against the decision of the Trial Judge as quoted above and therefore he cannot question the said decision or the validity of the WILL on that basis.
As said earlier, I had touched all aspects of the Learned Counsel for the parties? arguments on Issue Number 2 except that aspect where the Learned Counsel for the Appellants contended that the Learned Trial Judge took into account irrelevancies and went outside the issue canvassed by the parties and erroneously embarked on an unsolicited voyage of discovery, raking up imagined legal defences in the bid to discredit the WILL, jeopardize the Appellant?s counter-claim and wrongly arrived at the conclusion that the Testator died intestate.

The authorities of Udengwu V. Uzuegbu (2003) 13 NWLR (pt.836) 136 and West African Breweries Ltd V. Savannah Ventures Ltd. (2002) 10 NWLR (pt. 775) 401; were cited in alleging that the Court below suo motu embarked on fact finding investigations on issues not contentested by the parties which erroneously led to speculation of facts that ought to be proved in evidence and shutting his eyes to the obvious proved facts which led to perverse

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findings.

These incidents have been mentioned to include the question of illiterate jurat in different characters in the WILL, the non-signing of the WILL by the Solicitor who prepared it, the non-calling of the persons who were told in many fora about the WILL as witnesses to confirm same; the neglect to ask the DW5 of Exhibit ?A? which was purportedly made by one Barrister Nwachukwu and posted to the 1st Appellant in order to determine whether the Testator made two WILLS.

He has cited Durinimiya V. COP (1961) NRNLR 70; Queen V. Wilcox (1961) 1 SCNLR 296, (1961) ALL NLR 633; Dennis Ivienagbor V. Henry Osato Bazuaye (1999) 6 SCNJ 235 at 243 and Onibudo V. Akibu (1952) 7 SC 60 ; to submit that the Court below did cloistered justice when it embarked on inquiry into the case outside the open Court the community result which erroneously led the Trial Judge to the conclusion that those highlights cast a hazy cloud on the validity and genuineness of the WILL which conclusion occasioned the Appellants a miscarriage of justice.

The Learned Counsel for the 1st Respondent has argued per contra citing Adebayo V. Adusei (2004) 18 NWLR (pt.

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799) 413. Earlier on the Learned Counsel had cited Omozeghian V. Adjarho (2006) NWLR (pt. 969) 33, at 40 ; on the prerogative of the Trial Court to believe or disbelieve witnesses based on the probative value of their evidence, Tomtech Nig. Ltd V. FHA (supra) Usiman V. Abubakar (2001) 12 NWLR (pt. 728) 685 at 694, Oyebanji Ltd V. UBA Plc (2001) 6 NWLR (pt. 708) 80; Okomowo V. Audu (1985) 1 NWLR (pt. 3) 530; on the power of a trial Court to draw inferences and the flexibility of the rule demanding the weight of evidence on the imaginary scale to submit that there was ample evidence upon which the Court below came to the conclusion leading to the dismissal of the Counter-Claim.

I think I have sufficiently dealt with the highlighted aspects of the Judgment which the Learned Trial Judge held, cast a hazy doubt on the validity and genuiness of the WILL in question. In Durinimiya V. COP (1961) N.N.L.R 70 cited by the Learned Senior Counsel for the Appellants, it was held inter alia that:
?A trial is not investigation, and investigation is not the function of a Court. A trial is the public demonstration and testing before the Court of the cases of the

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contending parties. The demonstration is by assertion and evidence and the testing is by cross-examination and argument. The function of a Court is to decide between the parties on the basis of what has been demonstrated and tested. What was demonstrated in Court failed to support the prosecution’s case and the Magistrate should have dismissed the case.
It was not part of his duty to do cloistered justice by making an inquiry into the case outside the Court not even by the examination of documents which were in evidence, when the documents had not been examined in Court and the Magistrate’s examination disclosed things that had not been brought out and exposed to test in Court, or were not things that at least must have been noticed in Court.”
The above cited case was relied upon by Oguntade JSC, in Ndoma-Egba V. A.C.B Plc (supra) at 106-107 in holding that the findings made by the trial Court upon a comparison of the Plaintiff?s signatures on Exhibits 1 and Exhibit 2, 3 and 4 must therefore be discountenanced.

Here in this case I had already held that it is not unusual for the Courts in a clear case to form their opinion

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as to handwriting by comparing a genuine specimen with a disputed one, Adenle Vs. Olude (supra) refers, but the opinion and observation made in respect of the disparities in the writings ought to have been known to the parties in open Court so as to attract their reactions before making his final findings which he failed to do in this case. See, Ndoma-Egba V. ACB Plc (supra); Obuobipi V. Obuforibo (2010) ALL FWLR (pt.546) 543 at 566 Paragraphs F-G per Galadima, JCA (as he then was).
Not having read the findings on the comparison of the handwritings on the WILL and Exhibits ”N” in open Court to parties so as to elicit their reactions, the Court below erred in law and his findings cannot stand most especially after having dismissed the entire Reliefs of the 1st Respondent which included the claim that the WILL was a forgery.

On the other reasons given by the Learned Trial Judge to have dismissed the Counter-Claim of the Appellant, there is no doubt that in Omogeghian V. Adjarho (2006) NWLR (pt.969) 33 at 40; it was held that it is the prerogative of the Trial Judge to believe or disbelieve witnesses and that the Court usually accepts

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evidence which is effectively un-contradicted by any other evidence as the kind of evidence which the Court will usually accept and act upon.
Thus as was decided in a plethora of cases including Mini Lodge Ltd & Anor. V. Chief Oluka Olaka Ngei and Anor (2009) LPELR-1877 (SC) ; ably cited and relied upon by the Learned Counsel for the Respondent, it is now trite that it is within the exclusive prerogative of the trial Court to evaluate the totality of the evidence adduced by witnesses in a case and ascribe probative value to them after placing same on the imaginary scale of justice and finding out in whose favour the balance of justice tilts before making the necessary findings and applying the law to the findings and then come to the logical conclusion as to whom Judgment would be given against or in favour.
This is because ordinarily, the Trial Judge is seised with the singular opportunity of hearing and watching the demeanour of those witnesses an advantage which a Court of Appeal lacks and once the Trial Judge has dispassionately exercised its powers, the Appellate Court will not normally interfere with such findings of facts, See per Tabai,

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JSC at page 20 Paras A-D of the Report.
However where a finding of fact is perverse in the sense that such finding runs counter to the evidence; the Court of Trial took into consideration matters which it ought not have taken into account; the Court shut its eyes to the obvious and where the decision has occasioned a miscarriage of justice, then an Appellate Court will intervene and set aside such perverse findings of fact and substitute its views for those of the Trial Court. See, Ude V. Chumbo (1968) 12 NWLR (pt.527) 168. Enang V. Adu (1981) 11-12 SC 17. Bunge V. Gov. Rivers State (2006) 12 NWLR (pt.995) 573 (per Adekeye, JSC at 44-45 Paras F-E of Mini Lodge V. Chief O.O. Ngei (supra;) and Obineche & Ors V. Akusobi & Ors (2010) LPELR-2178 (SC) at 36-37 per Ogbuagu, JSC; who held that in such circumstance, the Appellate Court is as good as the Court of trial to re-evaluate the evidence.

In the present case, and as we had decided earlier the Learned Trial Court who had discredited the witnesses for the 1st Respondent in its entirety curiously turned somersault to dismiss the claim of the Counter-Claimant/ Appellants which were predicated on

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the same sets of facts and evidence apart from founding the reasons in so doing on irrelevant factors and false premises thereby occasioning the Appellants grave miscarriage of Justice.

Accordingly, not withstanding all the avalanche of authorities unleashed on us by the Learned Senior Counsel for the Respondent to warrant the reversal of the dismissal of the Respondents? claim and all the Reliefs sought, I agree with the Learned Senior Counsel for the Appellants that by this somersault, the Court had inadvertently granted the 1st Respondent the same Reliefs which he sought and which was amongst others that the Testator Nze Uche Okafor died intestate.
Little wonder then that the 1st Respondent did not appeal the dismissal of his entire claim.
?
The Learned Counsel for the Appellant was also right to have submitted that having held that the 1st Respondent?s witnesses were unreliable and dismissed the claim of the 1st Respondent in its entirety, the overwhelming evidence adduced by the Appellants ought to have swung the pendulum of the Judgment in their (Appellants?) favour if not for the wrong evaluation and the taking into

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consideration irrelevant issues in dismissing the Counter-Claim of the Appellant.

Accordingly, Issue Number 2 of the Appellant and indeed all the Issues formulated by the learned Counsel for the parties are hereby resolved in favour of the Appellants.

The Appellants? Appeal is therefore meritorious and is accordingly allowed. I hereby set aside the Judgment of the Honourable Justice Onuoha A. K. Ogwe of the Abia State High Court sitting at the Umuahia Judicial Division delivered on the 21st day of February, 2011 whereof he dismissed the Appellants? Counter-Claim. Judgment is hereby entered in favour of the Counter-Claimants/Appellants as per their Reliefs in the Lower Court.

I make no order as Costs.

ITA GEORGE MBABA, J.C.A.: I had the privilege to share conference over and to read the lead judgment just delivered by my learned brother, IGNATIUS I. AGUBE JCA and I agree, completely, with this reasoning and conclusions.

By the Wills Act 1837, Section 9 thereof:
?”Every Will other than Privileged Will (Wills of Certain Soldiers, Sailors and Airmen) must be in writing and signed at the foot or

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end by the person making it (Testator) or by someone in his presence an by his direction, and the signature must be made or acknowledge by two or more witnesses, who must be present at the same time and must attest and subscribe the Will in the presence of the testator.”
The above English Law of general application has been made part of the laws of Abia State, as per the Wills Law, Cap 37, Laws of Abia State of Nigeria, 1991 – 2000 (Now Cap 175 Vol. 7 Laws of Abia State of Nigeria 2005). Section 6 (1) and (2) thereof: make more elaborate provisions, thus:-
“(a) It is in writing
(b) It is signed by the testator or signed in his named by some other person in his presence and by his direction in such place on the will so that it is apparent on the face of the will that the Testator intended to give effect by the signature to the writing signed as Will.
(c) The Testator makes or acknowledges the signature in the presence of at least two witnesses at the same time.
(d) The witnesses attest and subscribe the will in the presence of the Testator, but no form of attestation or publication shall be necessary.?
(2) No

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signature under this section or under any other provision of this law shall be operative to give effect to any disposition or direction insisted after the signature shall have been made.”

Of Course, by law, once the requirement of due execution of a Will (that is, that the testator signed the Will under correct state of mind, in the presence of two or more witnesses, who, together witnessed the said signing and they too attested and subscribed the Will) is satisfied, the validity of the Will is established, and the person contesting the Will is saddled with the burden of rebutting that presumption. In a recent case of Joseph Akujobi vs. Dr. Nelson Ehirim & Ors: CA/OW/269) 2011, delivered on 13/11/15, this Court held:
“The law is that, where there is a dispute concerning the due execution of a Will or the testamentary capacity of the testator, the burden is on those who propound the Will to prove its validity or due execution, and where they have discharged that burden, satisfactorily, it becomes incumbent on those attacking it, to adduce cogent and credible evidence to substantiate their allegation of improper execution. See Chidebelu

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& Anor vs. Probate Registrar, High Court of Anambra State and Ors. (2013) LPELR 21215 (CA): Johnson vs. Maja (1951) 13 WACA 290; Adebayo vs. Adebayo (2000) 4 NWLR (Pt.652) 168.”
It was further held in that case of Akujobi v. Ehirim (supra) that:
“The evidence of DW1 and DW2, who both together witnessed the signing of the will, at the very time the testator signed it and also attested to the same, in the presence of the testator and of each other was credible… Endorsement of a Will, in my view, can only confirm a will, and it is not meant to validate it, just as failure to confirm does not invalidate it. Therefore, an already valid Will (or document) cannot be invalidated or diminished/destroyed by error or defect on the face of it, traceable to the official(s) meant to endorse the document, as long as the endorsement was not meant to validate the document.” (Pages 27 ? 28 thereof).

The Respondent, in this case at hand, had pleaded and alleged that this father never made a Will and had denied making one. He also alleged that the making or writing of Will was not known to the custom/tradition of their people. Moreover,

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he said the father went through eye surgery in 2001 and became totally blind; that he could not, therefore, have written a Will or read a Will, already written. Thus, the document dated 21/12/2000, purporting to be the last Will of his father, Chief Nzedioranma Okafor, was a forgery. He said that the signature on the document (Will) was not a true reflection of that of his father, that his father was not in good health, sound memory and understanding, to make the Will!

He however failed to establish those claims and same were dismissed. Interestingly, the Respondent never appealed against any of the findings of the trail Court, therein. The Respondent was not therefore able to fault the due execution of the Will.

As already stated by my learned brother, Agube JCA, in the lead judgment, the fact that the solicitor who wrote and read the Will to all the witnesses did not sign as the maker of the document was inconsequential as that is not a prerequisite for the validation of a Will.

With this and the more elaborate reasons in the lead judgment, I too allow the appeal and abide by the consequential orders in the lead judgment.

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FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the leading judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I am in total agreement with the well written judgment of my Lord, such that I have nothing more to add.

I am in agreement that the Appeal has merit and it is accordingly allowed.

There are no orders as to cost.

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Appearances

Okey Onuigbo, Esq. with him, Goodnews Nnadozie (Miss)For Appellant

AND

I. C. Inegbu, Esq. with him, F. C. Ohajuru, Esq.For Respondent