Anya V. Anya & Ors (2020)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

The Appellant as Plaintiff at the trial Court is the 1st son of late Oji Anya who died in Enugu on 16/6/2004 while the original 1st Respondent was the mother of the Appellant with others, who was the surviving wife of the said late Oji Anya but she died during the pendency of the appeal at the lower Court. After the death of late Oji Anya, his family had several meetings to distribute his estate among them since it was believed that he died intestate. After commencing the process of obtaining Letters of Administration from the Probate Registry of the High Court, Umuahia, problem ensued as to the entitlement of the parties to the said estate and whether the female children of the family should receive any portion. This caused the extended family to intervene and resolved that an equitable formula for the distribution be adopted. The original 1st Respondent (now deceased) rejected the resolution and alleged that the deceased left a Will prepared by one Clement H. C. Nwanya, Esq., appointing her and Mr. Nwanya as Executors of the 2 buildings forming part of the estate as Exhibit A. The will was doubted by the Appellant (Plaintiff) which caused him to file the suit against the Respondents at the trial Court as follows:

a. A declaration that the plaintiff’s 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 buildings 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 State.

The Respondents counter-claimed and defended it wherein the trial Court’s judgment favoured the Respondents, same affirmed by the lower Court, hence this appeal. To argue the appeal, the Appellant formulated 3 issues for the determination of the appeal thus:

1. Was the Court of Appeal right to set aside the findings of facts by the High Court against which there was no appeal?
2. From the unchallenged findings of fact by the High Court, was the Court of Appeal right when it found that failure to attach weight to Exhibit T did not affect the conclusion reached by the High Court?
3. Was the Court of Appeal right to suo motu raise and resolve the issue of purported allegation of forgery without affording the parties an opportunity to address on it?

The 3 issues formulated and responded to by the Respondents shall be considered together.

It is the contention of the Appellant that the lower Court set aside the findings of the trial Court which were not appealed against by the Respondents. He submitted that the raising of the issue of forgery as a fresh point by the lower Court without affording the parties the opportunity to address it was perverse, having resolved same against the Appellant that since there was no cross appeal or Respondents’ notice, the lower Court was wrong to set aside the findings of facts by the High Court. He on Exhibit T concluded that it was wrong for the lower Court to hold in one breath that Exhibit T being admissible did not affect the conclusion reached by the High Court. His submission is that Exhibit T by its circumstances and Section 26 of the Evidence Act is inadmissible in evidence. He also cited in support FAWEHINMI V. NBA (NO.2) 1989 2 NWLR (PT.105) AT 622-623.

Furthermore, he submitted that the lower Court having raised the issue of forgery suo motu and did not give the parties the opportunity to address it violated the right to fair hearing of the Appellant. He relied on AMALE V. SOKOTO LG (2012) 5 NWLR (PT. 1292) 202.

The Respondents argued that the lower Court was right to set aside the findings of facts by the trial Court even though there was no appeal against it since the decision was right though the reasons may not be right. He relied on L.T.P.P. LTD V. UBN PLC (2007) 1 WRL 117. They submitted that the Respondents did not appeal by cross appeal or Respondents’ Notice since they were comfortable with the decision reached in their favour.

On Exhibit T, it was contended that being an aborted Terms of Settlement, no value ought to be attached to it since by the independent evidence, the case was in favour of the 1st Respondent. On the issue of forgery raised by the lower Court suo motu, it was argued that it was there before the trial Court where a handwriting expert testified as PW2 and in favour of the 1st Respondent. Thus, the issue of forgery was not raised for the first time on appeal suo motu by the lower Court. The Appellant was given fair hearing on it but failed.

On the dismissal of the case of the Appellant by the lower Court, the question is not whether there was an appeal on it or not, but based on the proof of the counterclaim of the Respondents which the lower Court upheld. Every civil case is determined by balance of probability on the scale of justice. The case herein is between the weight of Exhibit T and the Will. To rehearse the facts again, after the death of late Oji Anya, his family had several meetings to distribute his estate among them since it was believed that he died intestate. After commencing the process of obtaining Letters of Administration from the Probate Registry of the High Court, Umuahia, problem ensued as to the entitlement of the parties to the said estate and whether the female children of the family should receive any portion. This caused the extended family to intervene and resolved that an equitable formula for the distribution be adopted (Exhibit T). The original 1st Respondent (now deceased) rejected the resolution and alleged that the deceased left a Will prepared by one Clement H. C. Nwanya, Esq, appointing her and Mr. Nwanya as Executors of the 2 buildings forming part of the estate as Exhibit A. The lower Court considered that based on the evidence, it was proved that the Will left by the deceased was valid and hence to be honoured as the last testament of the deceased.