PETER CHIDEBELU & ANOR V. PROBATE REGISTRAR HIGH COURT OF ANAMBRA STATE & ORS (2013)

PETER CHIDEBELU & ANOR V. PROBATE REGISTRAR HIGH COURT OF ANAMBRA STATE & ORS

(2013)LCN/5983(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of February, 2013

CA/E/381/2006

RATIO

WILLS: WHERE THERE IS A DISPUTE CONCERNING DUE EXECUTION OF A WILL OR TESTAMENTARY CAPACITY OF A TESTATOR, THE BURDEN IS ON THOSE WHO PROPOUND THE WILL TO PROVE THE VALIDITY OR DUE EXECUTION

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 satisfactorily discharged this burden, it becomes incumbent on those attacking the Will to adduce cogent and credible evidence to substantiate their allegation of improper execution thereof. The validity or otherwise of a Will is a matter of the evidence available before the court. See JOHNSON V. MAJA (1951) 13 WACA 290: ADEBAJO V. ADEBAJO (1973) 1 ALL NLR 361; ITA V. DADZIE (2000) 4 NWLR (PT. 652) 168.PER ISAIAH OLUFEMI AKEJU, J.C.A.

HE WHO ASSERTS MUST PROVE

The law is indeed trite that he who asserts must prove that which he asserts and the proof of civil matters is on balance of probabilities. See Section 131 Evidence Act 2011 and the decisions in IMANA V. ROBINSON (1979) 3-4 SC 1; ELIAS V. OMO BARE (1982) 5 SC 25.PER ISAIAH OLUFEMI AKEJU, J.C.A.

RELIEF: DECLARATORY RELIEF IS NOT GRANTED ON THE WEAKNESS OF THE DEFENCE OR EVEN UPON ADMISSION

ILLITERACY: IN DETERMINING WHETHER A PERSON IS AN ILLITERATE IS A QUESTION OF FACTS

It has however been held that whether a person is illiterate or not is a question of fact to be settled upon the evidence before the trial court or from inferences drawn from the facts before the court. See ANAEZE V. ANYASO (1993) 5 NWLR (PT.291) 1.PER ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL: A PARTY TO AN APPEAL WHO WANTS TO RAISE A FRESH ISSUE MUST SEEK AND OBTAIN LEAVE

The law is settled that a party to an appeal who desires to raise a fresh point as an issue therein must seek and obtain the leave of court. See ATTORNEY GENERAL OYO STATE V. FAIR LAKES HOTEL LTD. (1988) 5 NWLR (PT. 92) 1; UKPONG V. COMMISSIONER FINANCE & ECONOMIC DEVELOPMENT, AKWA IBOM STATE (2007) ALL FWLR (PT. 350) 1246PER ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL: THE APPELLATE JURISDICTION OF THE COURT OF APPEAL IS STATUTORY IN NATURE
The appellate jurisdiction of this court is statutory, and by virtue of the provisions of Sections 240 and 241 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Court of Appeal is conferred with jurisdiction over appeals from decisions of the various courts listed therein and not over matters not decided by those courts. It therefore becomes a futile exercise for the Court of Appeal to embark on hearing an issue not decided by the trial court as it will lack jurisdiction over such an issue without the leave of court. See AKPAN V. BOB (2010) 17 NWLR (PT.1223) 421.PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES:

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. PETER CHIDEBELU
2. PAUL CHIDEBELU – Appellant(s)

AND

1. PROBATE REGISTRAR HIGH COURT OFANAMBRA STATE
2. CHRISTOPHER CHIDEBELU
3. SYLVESTER IBEGBU
4. BEN ONYESOH
5. BRIDGET CHIDEBELU
6. BEATRICE CHIDEBELU – Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State, sitting at Awka delivered on 30th March, 2006 in respect of Suit No. A/276/2001 which the appellants as plaintiffs instituted through the Writ of Summons filed on 17/10/2001 and the Statement of Claim subsequently filed on 9/1/2002.
The appellants are children of one Jeremiah Okonkwo Chidebelu through his wife, Mercillina Chidebelu who had pre-deceased the said Jeremiah Okonkwo Chidebelu that himself died on 23/6192. Madam Mercillina Chidebelu begat other children for the late Jeremiah Okonkwo Chidebelu apart from the two appellants, the eldest of which was one Michael that also died in 1995. The late Jeremiah Okonkwo Chidebelu allegedly deposited his will at the probate Registry of the Old Anambra State High Court, Enugu on 13/4/84. The appellants disowned the said Will and made efforts to prevent same from being read and/or admitted to probate.
The Will was however read on 9/11/99 at Awka in the present High Court of Anambra State and admitted to probate on 6/3/2001, whereupon the appellants commenced their Suit for the reliefs averred in paragraph 10 of their Statement of Claim as follows:-
1. A declaration that the PROBATE WITH WILL issued by the 1st Defendant to the 2nd-4th Defendants is null and void.
2. A declaration that the purported WILL AND LAST TESTAMENT of Jeremiah Okonkwo Chidebelu dated 13th April 1984 is null and void as it was not properly executed by the deceased testator who was an illiterate.
3. A perpetual injunction restraining the 2nd-4th Defendants from intermeddling with the estate of the late Jeremiah Okonkwo Chidebelu.
The 2nd-4th defendants (now respondents) who were named as executors of the Will filed their Statement of Defence on 16/4/2002 but was subsequently amended by the Amended Statement of Defence of 2nd-6th Defendants filed on 3/1/2004 following the joinder of the 5th and 6th defendants (now respondents) by order of court. The 5th respondent became the wife of the deceased Jeremiah Okonkwo Chidebelu after the death of Mercillina while the 6th respondent, Beatrice Chidebelu was the wife of late Michael, the eldest child of Mercillina.
At the trial of the suit, the appellants called two witnesses in support of the claim who testified as PW1 and PW2 while the respondents called six witnesses as DW1-DW6, and on 30th March, 2006 Awka Division of the High Court of Anambra State per E.U. Uzodike J. found in favour of the respondents and awarded costs of N10,000 against the appellants.
Being dissatisfied with the judgment of that court (now called the trial court), the appellants filed their Notice of Appeal on 27/4/2006 with five grounds of appeal, and in pursuance of the appeal, the Appellants’ Brief of Argument prepared by VEN. Anene Nzelu Esq. of Counsel was filed on 27/6/2008. The following two issues were formulated for determination.
“1. The Purported Will dated 13th April 1984 was not properly executed by the deceased testator who was an illiterate and as such was not the Will of late Jeremiah Okonkwo Chidebelu who was an illiterate.
2. Whether the trial Judge Uzodike J as the Probate Registrar (E.U. Uzodike Esq. Mrs) who issued the Probate with Will on March 6, 2001 has the jurisdiction to entertain the Suit ab initio?
Does this not amount to one being a Judge in one’s own cause thus offending the Appellant Right to fair Hearing as enshrined in 1999 Constitution”.
The 2nd-6th Respondents’ Brief of Argument was prepared by C.S. Okpala Esq. of Counsel and was filed on 16/7/2008. The following issues were raised therein;
1. Whether sufficient evidence was led by the 2nd-6th respondents to show that the deceased/testator made a WILL which was duly executed according to law.
2. Whether the learned trial judge adequately considered and evaluated all the evidence placed before the court to justify the refusal of the appellants/plaintiffs’ claim and the dismissal of the suit.
3. Whether the learned trial judge (Hon. Justice E.U. Uzodike) is disqualified to try the case having as the Probate Registrar unsealed, read and admitted the Will to probate on 6th March, 2001.
On their first issue, the appellants’, learned Counsel submitted with reliance on Sections 132 (1) and 103 (1) and (2) of Evidence Act that documentary evidence speaks for itself and no oral evidence can be used to contradict, alter, add to or vary a document. It was contended that the evidence of the defence witnesses (oral and documentary) had the effect of contradicting the document admitted as exhibit C and thus their evidence should be expunged.
The learned Counsel contended that Exhibit C had stated that the testator was an illiterate who could not read or write the English Language in which it was written, and for the definition of an illiterate, the case of U.B.A. PLC V. MUSTAPHA (2004) 1 NWLR (PT. 855) 443 was cited.
The learned Counsel cited Order 30 Rules 20, 21, 22, 23, 24 on how to deal with a Will or probate and how to establish due execution thereof, and contended that those Rules should be read in conjunction with Section 103 (1) of Evidence Act that excludes proving due execution of Wills and other testamentary documents by the methods provided in the Evidence Act for proving due execution of other documents.
It was contended also that two letters admitted as exhibits L and M were written to the 1st respondent as warning or caveat, but the warning was ignored by the 1st respondent who failed to rebut the documents or to make any finding before granting probate. The 1st respondent thus failed to comply with Order 30 Rule 24 of Anambra State High Court Rules, 1988. It was also argued that the Probate Registrar did not testify at the hearing of the suit, and as such must be deemed to have accepted all the averments of the appellants as well as their evidence.
The learned Counsel argued that the DW1 and the two witnesses to the Will who died before the trial of the action lied against the document itself which states that they witnessed the deceased Testator affixing his Right Thumb Impression, and not his Left Thumb or writing any form of signature. It was further contended that the evidence of the DW4 who was an interested party being the principal beneficiary of the Will including benefiting from the compound of the deceased (his abu or obi) against Igbo tradition and custom is not truthful. The testimony of the DW4 and DW6 should not be believed.
On the burden of proof in a case of this nature, the case of ADESANYA V. OLATUNJI 1970 1 ANLR 551 was cited by learned Counsel who submitted that the burden was on the 2nd-6th respondents who propounded the Will but they failed to discharge the onus that the late testator who was an illiterate actually executed the Will.
It was contended that the respondents failed to produce as a witness the person that prepared the document as required by Order 30 Rule 24 of the High Court Rules since the testator was an illiterate while the DW2, DW3, and DW5 said they did not know about the existence of the Will.
On the second issue it was argued that the learned trial judge was the Probate Registrar who ignored the warnings of the appellants as contained in exhibits L and M and admitted the Will now being contested into probate and has now come to sit in judgment over her previous actions as a Probate Registrar in breach of the appellants’ fundamental right i.e. the principle of nemo judex in causa sua. The case of LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE V. FAWEHINMI 1985 7 SC 178, 1985 2 NWLR (PT.7) 300 was cited in support. It was submitted that the action of the learned judge offends against Section 36 (1) of the 1999 Constitution.
We were urged to allow the appeal and set aside the judgment of the trial court.
The learned Counsel for the 2nd-6th respondents (now simply called the respondents) argued the first and second issues formulated in their brief together but argued the third issue separately.
It was contended that the issue before us is whether the late Jeremiah Okonkwo Chidebelu (hereinafter called the deceased) signed the Will which is exhibit C in this case though he was an illiterate. The cases of U.B.A.V. MUSTAPHA (2004) 1 NWLR (PT. 855) 443 and NGIGE V. OBI (2006) 18 WRN 33 were cited on the definition of an illiterate.
According to learned Counsel, the evidence of the appellants who testified as PW1 and PW2 was simply that the deceased was not literate, did not know how to read and write and could not have signed exhibit C. It was argued that the evidence of the DW1 who said the deceased came to his office with a Will exhibit C and two witnesses, and he received the Will, read it over to the deceased testator and interpreted it in Igbo language, who seemed to clearly understand the content, signed the Will and his two witnesses also signed is the best direct oral evidence under Section 77 of Evidence Act and it alone is sufficient to prove that the testator signed the will.
It was further contended that the respondent’s position is that the deceased though an illiterate could make a mark on documents as his signature and they tendered through the DW2 and DW3 exhibits O and Q to confirm that the letters “J.O.C.” appearing on the two documents as also in exhibit C are written by the same deceased person. The learned Counsel also placed reliance on UBA V. MUSTAPHA (2004) 1 NWLR (pt. 855) 443 and ABEKE V. STATE (2007) 38 WRN 1. It was contended on the authority of LEADWAY ASSURANCE CO. LTD. V. ZECO (NIG) LTD. (2000) 9 NWLR (PT. 673) 480 that evidence must be led in support of allegations in the pleadings and in this instant case, the appellants who pleaded that the deceased was an illiterate failed to lead evidence that he never signed or made a mark on documents and also did not produce any document on which the deceased made a thumbprint to establish their assertion. The appellants are thereby caught by Section 149 (d) of the Evidence act.
The learned Counsel referred to the evidence of the DW6 that he wrote letters for the deceased which he (deceased) signed and DW5 who identified the signature of his own father on the Will (exhibit C) and contended that having seen and heard the witnesses, the learned trial judge evaluated all the evidence and preferred that of the respondents.
On the provision of Order 30 Rule 24 of the High Court Rules of Anambra State 1988 (applicable) the learned Counsel submitted that what is operative therein is “Unless the Court is first satisfied” and the court in the instant case was first satisfied before granting probate. It was submitted that exhibit C satisfied the requirements of Order 30 Rule 24 and was rightly granted probate. It was submitted also that what is to be believed by court is credible evidence which must have proceeded from credible witnesses, and this was produced by the respondents through the DW1, DW2, DW3, DW5 and DW6. The case of AGBI V. OGBEH (2005) 25 WRN 38 was cited.
It was contended that the learned trial judge properly evaluated all the evidence before the court, ascribed probative value and weight thereto before preferring the evidence of the respondents. It was submitted that having done all these, there is nothing more to be added, citing OGBA V. ASADE (2004) 43 WRN 123 and OYADIJI V. OLANIYI (2004) 49 WRN 133. It was also submitted that an appellate court would not ordinarily interfere with the findings and decisions of the trial court except where that trial court has failed to make proper use of the opportunity of seeing and hearing the witnesses and has drawn wrong conclusions or made findings that are perverse. The cases of OSHOTOBA V. OLUJITAN SCNJ 159: OMOBINBOLA V. MILITARY, GOVERNOR ONDO STATE (1998) 12 SCNJ 192; A.T.M PLC V. B.V.T. LTD (2007) 1 NWLR (PT.1015) 259; OKUNZUA V. AMOGU (1992) 6 NWLR (PT.248) 416; MOHAMMED V. STATE (2007) 37 WRN 17, and ANYAKORA V. OBIAKOR (2005) ALL FWLR (PT.268) 1662 were cited in support of this submission. On what amounts to a perverse decision the cases of OGBA V. ASADE (2004) 43 WRN 123 and UDENGWU V. UZUEGBU (2003) 7 SCNJ 145 were cited. It was submitted that in the construction of an instrument, the various parts or clauses thereof must be interpreted together so that the natural meaning thereof may be attained, citing FIRST BANK OF NIG. PLC V. EXCEL PLASTIC INDUSTRY LTD. (2003) 13 NWLR (PT. 837) 412.
On the third issue, which is issue no. 2 in the appellants’ brief, the learned Counsel contended that the appellants have raised this issue after they filed their suit on 17/10/2001 and had actively participated in the trial thereof up to judgment; citing the case of AGHA V. IGP (1997) 10 NWLR (PT.524) 317. The appellants failed to raise this issue throughout trial and only did so in a post judgment motion for stay of execution and upon which the trial court gave a ruling. It was submitted that having failed to object timeosly at the trial, the appellants are deemed to have waived their rights, citing OKULEYE v. ADESANYA (2007) 32 WRN 31.
On whether the trial court disregarded the principle of nemo judex in causa sua or was biased, it was submitted that an allegation of bias or likelihood thereof is not considered on the subjective opinion of the person so alleging, it is rather measured by the objective view of a person who has observed the proceedings and the following cases were cited in support; LAWAL v. OLORUNTOBA OJO (2004) 48 WRN 88; PDP v. K.S.I.E.C. (2006) 1 WRN 80; ODUDU V. ATOYEBI (1987) 2 NWLR (PT. 58) 660; ODUNSI V. ODUNSI (192) 3-4 SC128; BUHARI V. OBASANJO (2005)2 NWLR (PT.910) 255; AGUOMBA V. UWAIS (2006) 49 WRN 84; DENDE V. NDAKWOJI (1992) 1 NWLR (PT. 216) 221; and LAWAL V. EXECUTIVE GOVERNOR KWARA STATE (2006) 5 WRN 132.
It was contended that the learned trial judge was neither disqualified nor biased, but remained impartial while this issue now raised after the judgment is lacking in any good faith. It was submitted on the authority of GLOBAL TRANSPORT V. FREE ENTERP (2001) 2 SCNJ 22 that it was not right for appellants’ Counsel to have personalized the trial court by referring to the trial judge as “she” or “her.”
On the appellants’ request for an order of retrial on the basis of lack of jurisdiction by the learned trial judge it was contended that the appellate court will make an order of retrial only on very rare occasions and urged this court to refrain from making such an order in the instant case, citing OYOVBAIRE V. OMAMURHOMU (1999) 7 SCNJ 60; ODETAYO V. BAMIDELE (2007) 35 WRN 1; F.B.N. PLC V. M.M.C.D.C. LTD (2005) 36 WRN 96, and E.E.N.C.N. V. ATTORNEY GENERAL KADUNA STATE (1987) 2 NWLR (PT.57 381.
The learned Counsel urged this court to dismiss this appeal.
At the hearing of the appeal, the learned Counsel for the parties adopted their respective brief of argument and urged that the prayers sought therein be granted.
The appellants have distilled two issues for determination in this appeal, the first of which is that the Will dated 13/4/84 and admitted as exhibit C at the trial was not properly executed by the deceased who was an illiterate and so was not the Will of the deceased. The respondents on the other hand have contended that the Will i.e. exhibit C was endorsed by the deceased and it was his Will.
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 satisfactorily discharged this burden, it becomes incumbent on those attacking the Will to adduce cogent and credible evidence to substantiate their allegation of improper execution thereof. The validity or otherwise of a Will is a matter of the evidence available before the court. See JOHNSON V. MAJA (1951) 13 WACA 290: ADEBAJO V. ADEBAJO (1973) 1 ALL NLR 361; ITA V. DADZIE (2000) 4 NWLR (PT. 652) 168.At the trial of the instant case, the respondents as the proponents of the Will called six witnesses who testified as DW1-DW6, the summary of which is that the deceased actually endorsed exhibit C by writing the words “J.O.C.” as his signature. The DW1, an Assistant Chief Registrar Grade 1 in charge of Administration in Enugu State Judiciary was a Higher Registrar in the Probate registry in April 1984 with the duty to process Letters of Administration and register Wills. He remembered that the deceased came to deposit his last Will in 1984; he came with two men as his witnesses; but when he found that the deceased was semi-illiterate, he read the Will over and interpreted the content to the deceased and when he had understood it the deceased signed in the presence of his two witnesses while the DW1 also signed the Will before it was sealed.
The DW2, Lazarus Obiefuna, and the DW3, Peter Obiadi tendered exhibits O and Q respectively which are agreements relating to land transactions entered into by the deceased on which he also put “J.O.C” as his signature. The DW4 identified the deceased’s signature on exhibit C while the DW5, Chief Eze Chukwurah, a holder of a degree in Accountancy from Enugu State University and a pensioner identified the signature of his late father, Kirian Chukwurah a former teacher and Grade I Engine Driver, on exhibit C. The DW6 one of the named executors of the Will identified exhibit C as the Will of the deceased and confirmed the signature thereon as that of the deceased.
The material evidence of the appellants who contest the Will as given by the PW1 and PW2 is that the deceased could not have made a Will because he was an illiterate person, and particularly the PW1, Paul Chidebelu, the 2nd plaintiff said at page 92 of the record;
“From Exhibit C my father was an illiterate and could not sign any signature. This document has a signature and no thumbprints. That Will could not have been made by my father”.
The PW2, Peter Chidebelu, the 1st plaintiff also a son of the deceased said at page 94 that;
“My father was not literate. He did not know how to read or write. He could not sign anything”.
After reviewing and assessing the evidence of the parties, and in finding for the respondents the learned judge stated at page 154 of the record;
“In deciding what to believe the court has to base its findings on the preponderance of credible evidence and the probabilities of the case. DW1 the Higher Registrar is a credible witness”.
I cannot fault the above position of the learned trial judge. The law is indeed trite that he who asserts must prove that which he asserts and the proof of civil matters is on balance of probabilities. See Section 131 Evidence Act 2011 and the decisions in IMANA V. ROBINSON (1979) 3-4 SC 1; ELIAS V. OMO BARE (1982) 5 SC 25.

It is also the law that a declaratory relief which the appellants have sought is not granted on the weakness of the defence or even upon admission, but upon the strength of the evidence of the claimant from which the court must be satisfied that of the claimant’s entitlement to the declaration. See KODILINYE V. ODU (1935) 2 WACA 336; BELLO V. EWEKA (1981) 1 SC 101; NDAYAKO V. DANTORO (2004) 13 NWLR (PT. 889) 187; ODOFIN V. AYOOLA (1984) 11 SC 72.It is the contention of the appellants that the deceased could not have signed exhibit C because he was an illiterate who could not read or write. It has however been held that whether a person is illiterate or not is a question of fact to be settled upon the evidence before the trial court or from inferences drawn from the facts before the court. See ANAEZE V. ANYASO (1993) 5 NWLR (PT.291) 1.
The appellants have contended that the Will was admitted to probate in disregard of the provisions of Order 30 Rules 20-24 of Anambra State of Nigeria High Court Rules, 1988. I should however state that the evidence of the DW1 has confirmed that there was compliance with those Rules and the court was satisfied of its regularity before admitting the Will to probate.
In the light of the oral and documentary evidence by the respondents especially exhibits O and Q that contain similar signature of the deceased to that exhibit C, I am of the view that the appellants should not have restricted themselves to only their oral evidence but to have gone further to show from documents executed by the deceased that he was by virtue of his illiteracy precluded from writing the three letters “JOC” as his signature.
I agree with the findings and conclusion of the learned trial judge, and I find no merit in this issue which I accordingly resolve against the appellants.
The second issue by the appellants was also argued by the respondents as their third issue. The contention of the appellants thereon is that the learned trial judge lacked the competence or qualification to try the case on the principle of nemo judex in causa sua since the trial judge was the Probate Registrar of the High Court of Anambra State at the time the Will was admitted to probate. This issue is said to have been distilled from ground five in the Notice of Appeal.
The respondents have contended inter alia that the appellants who commenced this action on 17/10/2001 and actively prosecuted same up to judgment on 20/3/2006 did not raise this point until after the judgment of the court, thereby denying the learned trial judge the opportunity of giving an answer to it. The record of appeal eloquently confirms that this point was never an issue throughout the trial of the case and consequently there was no consideration thereof in the judgment.
This issue of competence of the learned trial judge therefore constitutes a novel or fresh point in this appeal having not been raised, canvassed and determined by the trial court. The law is settled that a party to an appeal who desires to raise a fresh point as an issue therein must seek and obtain the leave of court. See ATTORNEY GENERAL OYO STATE V. FAIR LAKES HOTEL LTD. (1988) 5 NWLR (PT. 92) 1; UKPONG V. COMMISSIONER FINANCE & ECONOMIC DEVELOPMENT, AKWA IBOM STATE (2007) ALL FWLR (PT. 350) 1246.

The appellate jurisdiction of this court is statutory, and by virtue of the provisions of Sections 240 and 241 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Court of Appeal is conferred with jurisdiction over appeals from decisions of the various courts listed therein and not over matters not decided by those courts. It therefore becomes a futile exercise for the Court of Appeal to embark on hearing an issue not decided by the trial court as it will lack jurisdiction over such an issue without the leave of court. See AKPAN V. BOB (2010) 17 NWLR (PT.1223) 421.I am convinced that it was in realization of this hallowed principle of requirement of leave that the appellants in their motion on notice filed on 20/3/2008 for extension of time to file the Appellants’ Brief included a prayer for “An order for leave to raise, use and argue the point of law contained in Ground Five of the Notice of Appeal which was not raised during the trial”; which prayer was refused by this court in its ruling of 24/6/2008 and the implication of which is that no leave was obtained by the appellants to raise and argue the new point.
The consequence of the foregoing is that the fifth ground in the appellants’ Notice of Appeal has no foundation in the judgment appealed against and is therefore not a competent ground of appeal while this second issue generated from that incompetent ground of appeal is itself incompetent and unarguable. See THOR LTD V. FCMB LTD (2002) 4 NWLR (PT.757) 427; AMADI V. ORISAKWE (1997) 7 NWLR (PT. 511) 161; OKONYIA V. IKENGAH (2001) 2 NWLR (PT. 697) 336.
This second issue is accordingly discountenanced.
The net result of the foregoing is that this appeal is devoid of any merit and it is accordingly dismissed.
I award costs of N30,000.00 in favour of the respondents.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the priviledge of reading in draft the delivered by my learned brother ISAIAH OLUFEMI AKEJU JCA. I agree with the reasoning and conclusion and I also dismiss the appeal as lacking in merit.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the draft of the Judgment delivered by my learned brother ISAIAH OLUFEMI AKEJU JCA. I am in complete agreement with the reasoning and conclusions therein.
Let me also express further concurring opinion on the argument that it is unlikely that an illiterate can sign a document and on the issue of expost fact allegation like hood of bias against a Judge. It is clear from the evidence that the late Jeremiah Okonkwo Chidebelu, though an illiterate, signed the will by writing “J.O.C” and there is also uncontradicted evidence that this is his usual manner of executing documents. Therefore the contention of the appellants that the deceased did not sign the will (exhibit C) because he was an illiterate is not valid. Just like a literate person can choose to thumb impress a document instead of signing it, an illiterate person can choose to sign a document instead of affixing his or her thumb impression on it. Whether a person signed or thumb impressed a document or not is a question of fact that must be resolved on the evidence before the Court. It is not a matter that can simply be presumed or assumed from the mere fact that such a person is literate or illiterate. This Court sitting at Ibadan in ADEYEMO VS. ADEYEMO & ORS (2010) LPELR 3621 held 9 per Kekere Ekun JCA following the Supreme Court decision in OTITOJU VS. GOVERNOR ONDO STATE (1994) 4 NWLR (pt 340) 518 at 529 that there is nothing in law that prevents a literate person from fixing his thumb impression to a document and the fact that one is able to write or sign one’s name on a document does not mean that one is literate.
The contention that the Learned Trial Judge should not have tried the case because he was the then probate Registrar who unsealed, read, admitted he will (the subject of the suit) to probate, is coming after the judgment.
Through out the trial no such objection was raised. It was only raised during the hearing of the post judgment application for stay of execution of judgment pending appeal and now in this appeal.
It is a well established legal principle that an objection to a panel or judge presiding over a case is taken before hearing commences and not after Judgment had been delivered. If it becomes compelling to take such objection, then it is required that the party objecting demonstrate the area of the decision that is beclouded by bias.
In any case, it is trite that an objection to a Judge trying a case is not made merely because he was previously acquainted with the matter unless it can be shown that the alleged acquaintance has seriously impinged on a matter in controversy or is likely to disable his impartiality and independence.For these and the more detailed reasons contained in the erudite judgment delivered by my Learned brother AKEJU JCA, I also dismiss this appeal and abide by the consequential orders including the award of costs.

Appearances

Ven Anene Nzelu (with C.A. Eze For Appellant

AND

C.S. Okpala for 2nd-6^th For Respondent