Engr. Chinedum O. Anya V. Barr. Onwuchekwa O. Anya & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA G. MSHELIA, J.C.A. (Delivering the Leading Judgment)

The Plaintiff is the 1st son of Chief Oji Uke Anya (Deceased). The 1st defendant is the wife of the deceased and mother of the plaintiff. While the 2nd – 6th defendants are his siblings. When the deceased died there was quarrel over his estate i.e. properties.

A will was produced purportedly written by the deceased. The plaintiff doubted this and so filed an action in the High Court of Enugu State, Enugu Judicial Division on 31st October, 2005 claiming against the defendants jointly and severally as per the amended statement of claim as follows:-

(a) A declaration that the plaintiffs father late Chief Oji Uke Anya who died on the 16th day of June 2004 at Enugu, Enugu State died intestate.

(b) A declaration that the document dated the 26th day of October 1998 purportedly deposited at the probate registry Enugu purporting to be the will and last testament of Chief Oji Uke Anya is void and of no effect whatsoever.

(c) A declaration that the estate of Chief Oji Uke Anya is to be distributed in accordance with the land and custom of inheritance of Igbere people of Abia State of Nigeria.

(d) A perpetual injunction restraining the defendants from acting or purporting to act as Executors of the said purported will and last testament of Chief Oji Uke Anya or in any way or manner tempering with or dealing in the assets of the estate of late Chief Oji Uke Anya wherever found or situate.

(e) An order directing the defendant to render an account unto the plaintiff of all monies collected by them as rent from 2 building in the estate of late chief Oji Uke Anya respectively situate at No. 35 Zik Avenue and No. 25 Ibiam Street all in Uwani Enugu, Enugu State.

The 3rd Defendant filed his counter claim for the following:-

(a) A declaration that late chief Oji Uke Anya’s Will dated 26th day of October 1998 and deposited at the probate Registry, Enugu and which was at the behest of the plaintiff read to the beneficiaries of the estate present including the plaintiff is valid and subsisting.

(b) An order granting probate in respect of the said Will.

(c) An order restraining the plaintiff(s) from interfering with the administration of the estate of late chief Oji Uke Anya as provided in the said Will.

After pleadings had been exchanged between the parties, the case was heard by A.R. Ozoemena J. who delivered his judgment on 22nd day of June, 2009, in which he dismissed the plaintiff’s claim and entered judgment in favour of the 2nd defendant as per the counter-claim. The learned trial judge had this to say:-

“I therefore, dismiss the case of the plaintiff(s) and hold that the defendants as proponents of the will of Chief Oji Uke Anya have discharged the onus and burden of proof laid upon them by law. In its place I declare that the late chief Oji Uke Anya’s Will dated 26th day of October 1998 deposited at the probate Registry Enugu and which was, at the behest of the plaintiff read to the beneficiaries of the estate present including the plaintiff is valid and subsisting.