UWEM ISAIAH UDO v. ETUKUDO FRIDAY DAN & ANOR
(2018)LCN/11065(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of March, 2018
CA/C/304/2013
RATIO
CLAIMANT MUST PROVE STRENGTH OF CASE
It is a trite doctrine, that the claimant must prove his case on the basis of the strength of his case and not on the weakness of the defence. And that the burden of proof would only shift to the defendant after the plaintiff would have discharged the burden cast thereupon. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A
ISSUES ARE BASED ON PLEADINGS
Indeed, its a trite law, that issues are tried and determined on the basis of the pleadings of the respective parties. As such, where evidence adduced at trial is at variance with pleadings of a party, such unpleaded facts must be disallowed and/or expunged by the trial Court. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
UWEM ISAIAH UDO – Appellant(s)
AND
- ETUKUDO FRIDAY DAN
- PROBATE REGISTRAR, HIGH
COURT OF AKWA IBOM STATE – Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment)
The present appeal emanated from the High Court of Akwa Ibom State, holden at Eket Judicial Division. The judgment appealed against was delivered on February 20, 2013 by Ebienyie, J; in suit No. HEK/84/2003.
BACKGROUND FACTS
The circumstances surrounding the appeal are gleanable from the records of appeal. The suit was filed by the Appellant in the Court below vide a writ of summons on August 18, 2003. By the statement of claim thereof, filed on 20/11/03, the Appellant sought against the Respondents the following reliefs:
(a) A declaration of the Honourable Court that the purported gifts of the Plaintiffs lands to the 1st Defendant by late Madam Mary Udo Essiet of Nnung Udo Ewa family is a nullity.
(b) An Order of Court setting aside the said Will No. 405 dated 5th June, 2000 deposited at the 2nd Defendant’s office.
(c) An Order of the Honourable Court directing the 1st Defendant to vacate the plaintiffs lands situates at Nduo Eduo village, Okon, Eket enumerated in Will No. 405.
The 1st Respondent [1st Defendant] filed a statement of defence on 27/5/04, thereby denying the claim in totality thereof. The suit proceeded to trial. The Appellant testified as PW1 and tendered various documents admitted as Exhibits 1 6, respectively. Contrariwise, the defence having vehemently denied the claim, called three witnesses who testified as DW1, DW2 and DW3.
At the end of the trial, the Court below delivered the vexed judgment to the conclusive effect:
From the totality of the evidence from both sides before me, I hold that the plaintiff has failed to prove his case on the preponderance of evidence. His case therefore fails and it is accordingly dismissed. I assess the cost of this suit at N10,000.00 in favour of the 1st defendant.
Upon entering the appeal, the Appellant and Respondents proceeded to file their respective briefs of argument. The Appellants brief was initially filed on 09/5/16, but deemed properly filed and served on 06/12/16. It spans a total of 9 pages. At page 3 of the said brief, three issues have been raised:
3.01 WHETHER A PERSON WHO CAN ALIENATE A LAND
TO A THIRD PARTY INTER VIVOS CAN DO SO THROUGH A WILL
3.02 WHETHER THE PLAINTIFF IS ENTITLED TO A DECLARATION OF TITLE TO MBOHO UYO LAND
3.03 WHETHER IN THE CIRCUMSTANCES OF THIS CASE, THE LEARNED TRIAL JUDGE WAS NOT SUPPOSED TO HAVE STRUCK OUT THE WITNESS STATEMENT ON OATH OF THE DW1 FOR CONTAINING OVERWHELMINGLY FACTS NOT PLEADED IN THE PLEADING BUT GIVEN AS EVIDENCE IN THE WITNESS STATEMENT ON OATH AT THE TRIAL
The first issue is canvassed at pages 3 4 of the brief, to the effect that it is on record that the plaintiffs father, Uko Isaiah Udo, did not inherit Mbok Uyo land. That the lands inherited by plaintiffs father were Ekpene Ukana, Ikot Ibiok, Esa Esa Ube Akpa Idem Ekpene Ukim and Ikot Udo Essiet.
It was submitted that a member of the DW1s family challenged the title of plaintiffs father over Mboho Uyo Land and judgment was given by the trial District Court in favour of the plaintiffs father. That the proceedings and judgment were admitted as Exhibit 5, and no appeal was filed against that said judgment [Exhibit 5].
Further submitted, that Madam Mary Udo Essiet has no right to dispose the said Mbok Uyo lands; Nemo dat quod non habet: See OLUKOYA VS ASHIRU [2006] ALL FWLR [Pt. 322] 1497.
It was argued, that the plaintiffs family lands have not been partitioned and are collectively owned. Therefore, the absence of evidence partitioning robs Madam Mary Uyo Eshiet to alienate by will the land called Mboho Uyo to a third party. See ABEJE VS ALADE [2011] ALL FWLR [Pt. 593] 1969; SOWUNMI VS AYINDE [2011] ALL FWLR [Pt. 589] 1113.
The second issue is argued at pages 4 to 6 of the brief, to the effect that the judgment in Exhibit 5 was not appealed against. That the plaintiff traced the root of his title to his grandfather, Udo Essiet, alias Udo Inyang Ette of Nduo Eduo who deforested the various lands, and on his death the land devolves unto his son Uko Isaiah Udo [Plaintiff s father], and thereafter to the plaintiff on the death thereof.
It was contended that the plaintiff has proven better title to Mboho Uyo land against both the 1st Defendant and DW1. Thus, the plaintiff has discharged his burden of proof on balance of probability. See SECTION 134, EVIDENCE ACT; AMICO CONSTRUCTION COM. LTD. VS ACTEL INTERNATIONAL LTD. [2015] 17 NWLR [Pt. 1487].
Lastly, the third issue is canvassed at pages 7 8 of the said brief, to the effect that extraneous facts which though were not pleaded were surreptitiously brought in by having these pleaded facts warped on to confuse the Court.
Conclusively, the Court is urged to resolve all the three issues submitted in favour of the Appellant, uphold the appeal and set aside the decision of the Court below.
The 1st Respondents brief, filed on 06/01/2017, spans a total of 8 pages. At page 4 of the said brief, four issues have been couched:
3.01 WHETHER THE APPELLANTS ALLEGED UNSUBSTANTIATED EVIDENCE WHICH IS OF VARIANCE WITH THE PLEADINGS IN THE ABSENCE OF THE APPELLANT PROVING A BETTER TITLE TO THE LAND IN DISPUTE THAN THE 1ST RESPONDENT WHO IS IN ACTUAL POSSESSION WITH POSSESSORY TITLE OF THE LAND CAN LEAD TO THE SETTING ASIDE OF THE JUDGMENT OF THE COURT BELOW.
3.02 WHETHER IT IS NOT DISCRIMINATORY, PRIMITIVE, REPUGNANT TO NATURAL JUSTICE, EQUITY AND GOOD CONSCIENCE AND OFFENSIVE TO THE INTENTS AND LETTERS OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS AMENDED TO DEPRIVE SOMEONE THE RIGHT TO DISPOSE OF HER PROPERTY AS SHE WISHES ON THE GROUNDS THAT SHE IS A WOMAN
The 2nd Respondent’s brief, deemed properly filed on 11/01/18, spans a total of 11 pages. At page 4 of the brief in question, two issues have been raised:
3.0 WHETHER THE ISSUES FORMULATED BY THE APPELLANT ARE INCOMPETENT HAVING NOT BEEN DISTILLED FROM ANY GROUND OF APPEAL: DISTILLED FROM THE NOTICE OF PRELIMINARY OBJECTION.
3.02 WHETHER THE LEARNED TRIAL COURT WAS RIGHT IN UPHOLDING THE VALIDITY OF THE WILL OF MADAM MARY UDO ESHIET: DISTILLED FROM GROUND 1 OF THE AMENDED NOTICE OF APPEAL.
The first issue is postulated upon at pages 4 – 5 of the brief, to the effect that no issue has been distilled from a specific ground of appeal. Submitted, that it is mandatory for Appellant to specify the ground of appeal from which an issue is distilled otherwise the issue is rendered incompetent. See ADELEKE VS LAWAL [2014] 3 NWLR [Pt. 1393] 1 @ 9; 14 15 G-B; AKINDIPE VS STATE [2012] 6 7 MJSC [Pt. 111] 1; ALIMS (NIG) LTD. VS UBA PLC [2013] 6 NWLR [Pt. 1351] 613 @ 619 629 C -D.
The Court is urged to strike out the three grounds of appeal, and dismiss the appeal.
The second issue is canvassed at pages 6 9 of the brief, to the effect that the burden of proof is on the plaintiff who alleged that the signature on the will [Exhibit 2] was not that of late Madam Mary Udo Eshiet. The burden will only shift to the 1st defendant after the plaintiff would have discharged that burden cast upon him. See OKELOLA VS BOYLE [1998] 2 NWLR [Pt. 539] 547 549; AKALONU VS OMOKARO [2003] FWLR [Pt. 175] 496.
It is submitted, that Exhibit 2, was made by the late Madam Mary Udo Eshiet in the presence of two witnesses. That, Exhibit 2 was read at her request in English Language and interpreted into Ibibio language to her and she seemed perfectly to have understood same. See Section 4 of the WILLS LAW CAP. 143 VOL. 6 LAWS OF AKWA IBOM STATE, 2000; MUDASIRU VS ABDULLAHI [unreported] APPEAL NO. CA/C/58/2010.
It was contended, that the evidence of DW1 was that none of the parcels of land bequeathed in the will to the 1st Defendant ever formed part of Udo Eshiets Estate.
That evidence of DW1 was never challenged under cross-examination. See ASAFA FOODS FACTORY VS ALRAINE (NIG.) LTD. [2002] 12 NWLR [Pt. 781] 353; BUA VS DAUDA [2003] 13 NWLR [Pt. 838] 657.
Conclusively, the Court is urged to dismiss the appeal and affirm the judgment and orders of the Court below.
The first issue is canvassed at pages 4 6 of the brief, to the effect that the law is that possession of land by a person is a good title against the whole world except the true owner. See AKIBU VS AZEEZ [2003] 107 LRCN 925; BIARIKO VS UGWUIZO [2001] 86 LRCN, 1353, et al.
It was submitted, that the Appellant having failed to prove a better title that the 1st Respondent who is in possession cannot be entitled to the Mbok Uyo Land exclusive of other lands bequeathed to the 1st Respondent.
It is contended, that the allegation that the statement on oath of DW1 is at variance with the statement of defence, has not been substantiated. The Court is urged to so hold.
The second issue is canvassed at pages 6 7 of the brief, to the effect that the Appellant has not proven a better title on the disputed land. The Court is urged to so hold.
Conclusively, the Court is urged upon to affirm the judgment of the Court below and dismiss this appeal for being frivolous, vexatious and speculative with costs.
Having accorded an ample regard upon the submissions of the learned counsel contained in the respective briefs of argument thereof vis–vis the records of appeal, I am inclined to adopt the three issues raised by the Appellant for the determination of the appeal anon. However, before proceeding to determine the appeal on the merits, I have deemed it expedient to deal with the preliminary objection of the 2nd Respondent.
2ND RESPONDENT’S PRELIMINARY OBJECTION
On 06/10/2017, the 2nd Respondent filed a notice of preliminary objection which is predicated upon a total of eight grounds. In the main, the grounds of the objection are to the effect that the Appellants issues are incompetent having not been shown to be distilled from any of grounds of amended notice of appeal.
Instructively, the Appellants amended notice of appeal was deemed properly filed and served on 12/11/2016. It is predicated upon four grounds:
ORIGINAL GROUND ONE
The learned trial Judge erred in law when he dismissed the claim of the plaintiff against the weight of evidence.
ADDITIONAL GROUND TWO
The learned trial Judge erred in law when he held that the will was valid and signed by the testator
ADDITIONAL GROUND THREE
ERROR IN LAW
The Learned trial Judge erred in law when he held that the testator had the testamentary capacity to alienate the land by will to another.
ADDITIONAL GROUND FOUR
ERROR IN LAW
The Learned trial Judge erred in law when he considered and accord [sic] probative value to evidence which were not pleaded in the statement of defence by the defendant.
By the said amended notice of appeal, the Appellant has urged the Court for:
(1) AN ORDER setting aside the order of the trial Court dismissing the plaintiff claim.
(2) AN ORDER entering judgment in favour of the plaintiff/appellant on the evidence adduced before the trial Court.
Most instructively, the preliminary objection of the 2nd Respondent has once again raised the question of the fundamental principles and practice of brief writing. It is trite that a brief denotes a succinct statement of a partys argument in the appeal. See Order 19 Rule 2 of the Court of Appeal Rules, 2016:
- The Appellant shall within forty-five days of the receipt of the Record of Appeal from the Court below, file in the Court a written brief, being a succinct statement of his argument in the appeal.
A brief, properly so called, is a condensed statement of the propositions of law and/or facts, which a party or the counsel thereof intends to establish upon the hearing of the appeal. Essentially, a good brief must, for intent and purposes, imbibe the attributes of simplicity, clearness, brevity, and order[lines]. See MACKAY: INTRODUCTION TO AN ESSAY ON THE ART OF LEGAL COMPOSITION, 2 L.Q. REV. 326 @ 338; HON. JUSTICE F. NNAEMEKA-AGU: MANUAL OF BRIEF WRITING IN THE COURT OF APPEAL AND SUPREME COURT, 1986 @ 8; AGBALLAH VS CHIME [2008] LPELR-CA/E/EPT/15/2008; ANPP VS REC, AKWA IBOM STATE [2008] 8 NWLR [Pt. 1090] 453 @ 502 paragraphs B G.
In the instant case, having critically, albeit dispassionately, considered the Appellants brief vis–vis the record of appeal, I am satisfied that the three issues raised by the Appellant are related [relevant] to the grounds of appeal. Without any much ado, I am of the considered view that the 2nd Respondents preliminary objection is unmeritorious, and it is hereby discountenanced.
DETERMINATION OF THE APPEAL ON THE MERITS
Having discountenanced the 2nd Respondents preliminary objection, I have deemed it apt to adopt the Appellants three issues for determination.
ISSUE NO. 1
The first issue raises the question of whether the Court below was right when it held that the testator had the testamentary capacity to alienate the land in dispute by will to another person. Apparently, the first issue is predicated upon the third additional ground of the notice of appeal.
The crux of the appeal is regarding the testamentary will No. 405 dated 05/06/2000 executed by Madam Mary Udo Eshiet in favour of the 1st Respondent, the Appellant, and others. See pages 27 30 of the Record of Appeal:
THIS IS THE LAST WILL AND TESTAMENT OF ME MADAM MARY UDO ESSIET OF NUNG UDO EWA FAMILY OF NDUO EDUO VILLAGE IN OKON CLAN OF EKET LOCAL GOVERNMENT AREA OF AKWA IBOM STATE OF NIGERIA
- I HEREBY REVOKE ALL FORMER WILLS and Testamentary dispositions made by me.
- I APPOINT BARRISTER IME P. AKPAN of Atabong Village, Eket and CHIEF NDARAKE EYEN EKWO of Nduo Eduo Village, Okon, Eket to be the executors and trustees of this my will and I declare that the expression My Trustees shall where the con so admits include BARRISTER IME P. AKPAN and CHIEF NDARAKE EYEN EKWO.
- The late Friday Dan of Ikot Udo Obok in Ikot Ekpene Udo in Nsit Ubium Local Government Area of Akwa Ibom State of Nigeria willingly and voluntarily gave his son Etukudoh Friday Dan to live with me since 1971 as I have no child of my own. Since then, Etukudoh Friday had stayed, lived with and served me without any problems. I therefore decided to adopt the said Etukudoh Friday Dan as my son.
- I THEREFORE MAKE THE FOLLOWING BEQUESTS:
(a) After my death, Etukudoh Friday Dan and his descendants or successors-in-title shall inherit my present house at Nduo Eduo Village and the surrounding lands according to the existing boundaries. The land which my present house is situated was bequeathed to me, her only child, by my late mother.
(b) The following underlisted properties shall also be inherited by ETUKUDOH FRIDAY DAN after my death. There are:-
(i) Three (3) Parcels (or portions) of my land in EKPENE ETIM farm-land area.
(ii) One portion of my land in the area known as ESA UBE near Mr. Jones Robson Umoh and Mr. Stphen E. Idiong.
(iii) Two portions of farmland in the area known as MBOHO UYO FARMLAND AREA bounded by lands owned by late Chief Tom Ekpo and late Moffat Sampson Eno.
(iv) One portion of land at NTOK ABANG behind Pastor Akpan Harry Akpans house.
(v) One portion of land near Ette Timothy Enos house bounded by A.C. Road.
(vi) One portion of land in EKPENE UKANA which is included in the area acquired by the Akwa Ibom State Government for Housing Estate for which compensation has not been paid yet for economic trees…
The gravamen of the Appellants first issue is that the will was executed by the late Madam Mary Udo Eshiet who was an illiterate and could neither sign nor write her name, but usually thumb impressed her documents. Exhibit 4- Nung Udo Eshiet Records Book- was tendered in proof of Appellants claim that the testatrix could neither read nor write. Contrariwise, the defence led evidence vide witness depositions, to the effect that Mary Udo Eshiet acquired some formal education through Adult Education Programme leading to her being awarded a literacy certificate at Merit Level in 1988.
It is a trite doctrine, that the claimant must prove his case on the basis of the strength of his case and not on the weakness of the defence. And that the burden of proof would only shift to the defendant after the plaintiff would have discharged the burden cast thereupon. See OKELOLA VS. BOYLE [1998] 2 NWLR [Pt. 539] @ 547- 549; AKALONU VS OMOKARO [2003] FWLR [Pt. 175] 496.
Ironically, however, the Appellant could not present any other finger impression allegedly belonging to the testatrix. The Court below found regarding whether or not the will was properly executed:
There is no modicum of doubt that the said will is in writing.
There is the signature of the testatrix where she signed before the witnesses, both witnesses were present at the same time and each thereafter signed in the presence of each other and the testatrix. The will of the testatrix Madam Mary Udo Essiet was properly attested and executed. See the case of MUDASIRU VS ABDULLAHI [unreported] suit No. CA/L/58/2010.
Another point to consider is the point made by the plaintiff that the testatrix could not have signed her signature as she was an illiterate.
The plaintiff never led evidence to prove that the thumb impressions are those of the testatrix.
In the present circumstances, I would want to hold that the Court below was right in its findings that the Appellant failed to lead evidence to prove that the will in question was not properly attested and executed by the testatrix.
Thus, the first issue ought to be, and it is hereby resolved against the Appellant.
ISSUE NO. 2
The second issue raised the question of whether or not the Appellant was entitled to a declaration of title to Mboho Uyo Land. The second issue is apparently related to the original ground one of the notice of appeal.
The Appellants case is to the effect that hes proven a better title to Mboho Uyo land against both the 1st Respondent [1st Defendant] and DW1. The Appellant relies on Exhibit 5 and maintains that he has discharged his burden of proof on the balance of probability. He cited and relied on AMICO CONSTRUCTION COMPANY LTD. VS ACTEC INTERNATIONAL LTD. [2015] 17 NWLR [Pt. 1487] 1487 et al.
Ironically, however, as aptly postulated by the 1st Respondent, merely relying on Exhibit in proof of title and nothing more, does not satisfy the conditions precedent laid down by law. The law is trite, that possession of land by a person is a good title against the whole world, except the true owner thereof. See AKIBU VS AZEEZ [2003] 107 LRCN 125.
In the instant case, the PW1 testified that his father during his life time bought the land called Mbak Uyo. The PW1 testified further:
On the death of my father, Nyong Ekwo sued me to the District Court in respect of this land in dispute. On conclusion of the trial in the District Court, the Court entered judgment in my favour in respect of Mbak Uyo.
I have a copy of the judgment. It is with my lawyer. I can recognize it if I see the copy of the judgment. This is the judgment.
The court below thereby ruled:
COURT:
Certified True Copy of the judgment in suit No. 60/81 of the District Court of Okon tendered without objection and admitted as Exhibit 5.
See page 174 of the Record.
It is trite law, that in civil cases, the standard of proof is predicated upon the balance of probabilities or preponderance of evidence. Thus, a plaintiff in such a case has the onerous burden of proving his claim upon relevant and credible evidence. That is an evidence that is conclusive and probable in accord with the surrounding circumstances of the case. See SECTION 134 OF THE EVIDENCE ACT, 2011; DIBIAMAKA VS OSAKWE [1989] 3 NWLR [Pt. 107] 101 @ 113; MOGAJI VS ODOFIN [1978] 4 SC 91; ONWUKA VS. EDIALA [1989] 1 NWLR [Pt.96] 182; EKPO VS. ITA [1932] 11 NLR 68; JIAZA VS BAMGBOSE [1999] LPELR- 1611 [SC]; [1999] 7 NWLR [Pt. 610] 182; [1999] 6 SC [Pt. 1] 58.
The Respondent averred in paragraphs 6 and 9 of the Amended Statement of Defence to the effect that:
As earlier stated, the 1st Defendant still maintains that the Mbok Uyo Land bought from Chief Nyong Ekwo is not the one included in the will No. 405.
Curiously, as weighty as the alleged issue of purchase of Mboho Uyo or Mbok Uyo Land was, the Appellant did not deem it expedient to cross examine any of the three defence witnesses [DW1, DW2 and DW3] thereon. See pages 187 196 of the Record. Not surprisingly, therefore, the Court below found, aptly in my view, at page 213 lines 5 9 of the Record:
From the plaintiffs claims as shown on the amended statement of claim, this suit is all about the testamentary will No. 405 made by the testatrix, one Madam Mary Udo Essiet. The plaintiff is challenging the will on the ground that it was not executed by late Madam Mary Udo Essiet who was an illiterate and could not sign and write her name but usually thumb impressed her documents.
In my considered view, the above finding is cogent and duly supported by the pleadings and evidence on record. Thus, in the circumstances, I am of the paramount view that the second issue ought to be, and it is hereby resolved against the Appellant.
ISSUE NO. 3
The third and last issue raises the question of whether or not in the circumstances of this case, the Court below was not supposed to have struck out the DW1s statement on oath for containing unpleaded facts. The third issue is apparently related to ground 4 of the notice of appeal.
The main grouse of the Appellant on the issue is that extraneous facts not pleaded were surreptitiously brought in to confuse the Court. At page 8 paragraph 6.05 of the Appellants brief, its been postulated:
The witness statement on oath of PW1 as contained in paragraphs 70 77 was deliberately contrived to be the way it was filed so as to put the trial Court in a maze and to make the Court fall into the error of relying on unpleaded facts to Court.
Curiously enough, the Appellant has not alluded to a specific unpleaded fact upon which the Court below relied to find for the Respondents in the vexed judgment.
Indeed, its a trite law, that issues are tried and determined on the basis of the pleadings of the respective parties. As such, where evidence adduced at trial is at variance with pleadings of a party, such unpleaded facts must be disallowed and/or expunged by the trial Court. See OKAGBUE VS ROMAINE [1982] 5 SC 133 @ 155; AKPAPUNA VS NZEKA [1983] 7 SC 1 @ 24.
It is my considered view, that in the absence of any viable allusion to a specific unpleaded fact allegedly relied upon by the Court below in the findings thereof, the third issue ought to be, and its equally hereby resolved against the Appellant.
Hence, having effectively resolved each of the three issues canvassed for determination against the Appellant, the instant appeal resultantly fails and its hereby dismissed by me.
Consequently, the judgment of the Akwa Ibom State High Court, delivered on February 20, 2013 by the Hon. Justice Ekerete A. Ebienyie in suit No. HEK/84/2003, is hereby affirmed.
Parties shall bear their respective costs of litigation.
STEPHEN JONAH ADAH, J.C.A.: I was availed the privilege of reading in draft the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JCA.
The facts of this case have been carefully laid out in the lead judgment which I adopt.
The law is settled that the claim of a Claimant is always ascertained from the pleadings. In ascertaining the exact claim of a plaintiff in a suit, the claim depends on the averments in his pleadings. In our adversarial system of the administration of justice it is the entire pleadings of the parties that are looked into to determine the plaintiffs case, the reliefs claimed vis–vis the jurisdiction of the Court and the defence. One generally must have a recourse to the writ of summons and the claim as endorsed in the statement of claim. See ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR. VS. EKWENEM (2009) LPELR-482 (SC).
In the instant case, the Appellant in his statement of claim claimed inter alia an order of Court setting aside Will No. 405 dated 5th June, 2000 deposited at the 2nd Defendants office. He was challenging the authenticity of the Will but did not put forward satisfactory evidence to support his claim. The Will he wanted set aside was not restricted to the land being claimed by the Appellant. There were other bequests that were indexed in the Will which the Appellant has no business with.
It follows that the Appellant must establish on the balance of probabilities that he was entitled to the reliefs being claimed in this matter.
I am very comfortable with the record before us showing that the Lower Court was excellently right to hold that the Appellant had failed to prove his case on the preponderance of evidence and accordingly dismissed the claim. It is trite that the trial Court is the master of the facts having undertaken the duty of watching the witnesses and assessing them and the evidence given in the Court. The law is settled that if the findings of the Lower Court are not perverse It is not the duty of an appellate Court to substitute its own views of the facts to those of the trial Court, or to reject them. Once there is sufficient evidence on record from which the trial Court made its findings of fact, the appellate Court cannot interfere See FASIKUN II & ORS. VS. OLURONKE II & ORS. (1999) LPELR-1248 (SC); ONU & ORS. VS. IDU & ORS. (2006) 12 NWLR (PT. 995) 657; AMADI VS. F.R.N. (2008)18 NWLR (PT. 1119) 259.
One of the arguments in the instant case is that the Appellants family lands were not partitioned and that Madam Mary Udo Essiet could not alienate the land called Mboho Uyo to a third party. It is strange to run this kind of argument as what is a family land must be established by evidence before it can be so addressed and the incidents flowing therefrom could be harvested. In the case of USIOBAIFO VS. USIOBAIFO (2000) 14 WRN 70, it was held that the most common circumstance creating family property is death intestate of a landowner who is governed by customary law. Such land devolves to his heirs in perpetuity as family land.
It could also be created by conveyance inter vivios, Will and gift or allotment. For land to qualify as family land, the party who so claims must not only identity the origin of the property but also its status. See GAJI & ORS. VS. PAYE (2003) LPELR-1300 (SC); and OLOWOSAGO & ORS. VS. ADEBANJO & ORS. (1988) LPELR-2601 (SC).
The Appellant who is making allegation that the land claimed is a family land that had not been partitioned must put forward evidence to show that the land was truly a family land. This cannot be seen in the case of the Appellant before the trial Court.
Furthermore, the Appellant challenged the authenticity of the Will bequeathing the said land to the 1st Respondent.
The learned trial judge in his judgment carefully examined the requirement of the law on validity of Will. The relevant law is Section 4 of the Wills Law Cap. 143 Vol. 6 Laws of Akwa Ibom State. This provides:
4(1) No Will shall be valid unless –
(a) it is in writing;
(b) It is signed by the testator or signed in his name by some other person in his presence and by his direction in such place on the Will so that it is apparent on the fact of the Will that the testator intended to give effect by the signature to the writing signed as his Will;
(c) The testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time; and
(d) The witnesses attest and subscribe the Will in the presence of the testator but no form of attestation or pubilcation shall be necessary.”
Once these specifications are in place, a valid Will is established to be in existence.
The learned trial judge then concluded his findings on the Will and the land in issue at pages 215 to 216 of the Record as follows: There is no modicum of doubt that the said Will is in writing. There is the signature of the testatrix where she signed before the witnesses, both witnesses were present at the same time and the said witnesses thereafter each signed in the presence of each other and the testatrix. The Will of the testatrix Madam Mary Udo Essiet was properly attested and executed. See the case of MUDASIRU VS. ABDULLAHI (unreported) Suit No. It is my humble view that the plots or parcels of land contained in Exhibit 2 devised to the 1 Defendant and others including the Plaintiff are the personal property of late Madam Mary Udo Essiet.
These findings of the Lower Court are all in line with the evidence before the Court. There is no how these findings can be punctured. I am therefore of the firm view that the Lower Court was absolutely right in his conclusion that the Appellant did not prove his case as required and dismissed the claim of the Appellant. It is for these few lines and the comprehensive reasons given in the lead judgment of my learned brother which I adopt as mine that I also hold that this appeal is lacking in merit and it is hereby dismissed.
I abide by the consequential orders as made in the lead judgment delivered by my learned brother. I also order that the parties shall bear their respective costs.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother I.M.M. SAULAWA, JCA.
I equally find no merit in the appeal and I accordingly concur with the reasoning and conclusion of my learned brother dismissing this appeal.
I adopt the consequential orders in the lead judgment as mine.
Appearances
LIVINUS UDOFIA, ESQ.For Appellant
AND
BASSEY AKPAETTIM, ESQ.
AGNESS MANFRED EDEM, ESQ. – for 2nd RESPONDENTFor Respondent
