Emmanuel U. Ezenwere & Anor. V. Donald Ezenwere & Ors. (2002)

LawGlobal-Hub Lead Judgment Report

M.E. AKPIROROH, J.C.A.

This is an appeal against the decision of the Owerri High Court sitting at Owerri, delivered on 27th July, 1993 in Suit No. HOW/302/87.

The Respondents’ case in the lower court put briefly was that the deceased Anthony Ijeoma Ezenwere, a native of Ndi Okike kindred of Aro Umuonyeche Owerri, was a retired Customary Court Official who married four wives and had eighteen children. During his life time, the deceased acquired real property in various places where he worked as Customary Court Official. On his retirement, he sold the properties and with the proceeds of sale and the assistance of his large family, he built a large Estate at Egbu Owerri which he named Silver Valley Estate.

Sometimes in 1986, when he had completed part of the Estate, he moved into the Estate with his most junior wife, Salome, 2nd defendant and her son, 1st defendant, and left his other wives and children behind at his ancestral house of four rooms, as the Estate had not been completed.

Not quite long, he became very ill, on 10th August, 1987 when he was seventy-five years old and later died. When the deceased had not been buried, the Appellants boasted that the entire Silver Valley Estate belonged to them. This prompted the Respondents to go to the land Registry and the Probate Registry to make inquiry. At the land registry, their inquiry revealed that a purported Power of Attorney made by the deceased in favour of the 1st Appellant dated 10th March, 1987, by which the entire Silver Valley Estate was purported to have been sold to the 1st Appellant for the sum of N10,000.00. At the Probate Registry, their inquiry revealed that the deceased was purported to have made a will dated 10th December, 1986. When it was read on 11th November, 1987 the deceased purported to have devised the Estate to the 1st Appellant to whom the deceased allegedly sold the entire Estate for N10,000.00.

Soon after the burial of the deceased, the Respondents commenced this action in the High Court, Owerri challenging the purported Power of Attorney and the Will on the ground of fraud and undue influence.

The Appellants’ case put briefly was that the deceased had a house at No. 50 Douglas Road, Owerri which was built on family land. Silver Valley Estate was purchased by his father and built it up. When his father died, he was forcibly buried at 50 Douglas Road, Owerri by Egbu Elders contrary to his father’s wish. All his brothers knew the hospital where their father was admitted and died but none of them visited him.

His father donated a Power of Attorney, Exhibit C to him on 10/3/87 and he purchased the Silver Valley Estate from him for the sum of N10,000.00. His father also made a Will, Exhibit D, in which he devised the Silver Valley Estate to him exclusively.

At the end of the trial, and in a reserved judgment, the reliefs claimed by the Respondents were granted.

Dissatisfied with the decision of the Court, the Appellants have appealed to this Court and in accordance with the Rules of Court, learned counsel for the Appellants filed a brief of argument and distilled three issues for determination as follows:

“ISSUES FOR DETERMINATION

(a) Whether the trial Court was right in setting aside the Will, the subject matter of the suit and the Power of Attorney on grounds different from that on which the validity of the documents were challenged which grounds constituted no issue at the trial and on which no evidence whatsoever was led by either of the parties.

(b) Whether it was proper for the learned trial judge to grant a relief not asked for by the parties.

(c) Whether the Power of Attorney executed in favour of the 1st Appellant (Exhibit “C”) is invalid assuming, without conceding, that the Appellants did not prove due execution of the Will.”