Godwin Onyekwelu Okafor V. Cecilia Okafor & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment)

The appellant and the 2nd – 9th respondents are all children of late Chief Japheth Obiechina Okafor, a native of Oranto Village, Ukpo, Anambra State who died on the 22nd January, 1999. The 1st defendant was his wife and the mother of the appellant. The appellant is the first son. After the funeral ceremonies of their father, both the appellant and the respondents were invited to the Probate Registry, Awka where a Will and Testament of their father was read to them.

In that will, their father devised his compound where he lived till his death and was buried to his children excluding the appellant. The appellant then instituted suit No A/53/2000 in the High Court of Anambra State, Awka Judicial Division. In paragraph 14 of his amended statement of claim dated 24th April, 2008 and filed on the same day and which was deemed as properly filed on 19th June, 2008 the appellant claimed as follows:

“1. A declaration that the purported last Will and testament of Chief Japheth Obiechina Okafor is invalid and of no effect.

2. A declaration that the plaintiff being the first son of late Chief Japhet Obiechina Okafor of Oranto Village, Ukpo is the person entitled under Ukpo customary law to the custody and possession of the unshared and/or undistributed landed property of the said late Chief Japheth Obiechina Okafor which property the plaintiff holds in trust for other decedent’s children (sic) until the same is shared or distributed in accordance with the said Ukpo native law and custom.
3. A declaration that the plaintiff being the first son of Late Chief Japhet Obiechina Okafor is the person entitled under Ukpo customary law to the inheritance of the compound (land known under Ukpo Igbo parlance as the “Obi”) of the said Late Chief Japheth Obiechina Okafor which said compound/land is lying and situates at Oranto Village, Ukpo town, within jurisdiction.
4. A declaration that the devise of the said compound/land to the 2nd to the 9th Defendants in the document dated 5/8/94 which is purported to be the last will and testament of Chief Japhet Obiechina Okafor for is null, void and of no effect
5. A Declaration that the plaintiff is the person entitle or deemed to be entitled to the statutory right of occupancy in respect of the compound of late Chief Japhet Obiechina Okafor situate and being at Oranto Village, Ukpo town.
6. An order setting aside the devise of the compound land of the late Chief Japheth Obiechia Okafor to the 2nd to the 9th Defendants and consequential directives thereto as contained in the document purported to be the last will and testament of late Chief Japhet Obiechina Okafor.
7. An order setting aside the entire last will and testament of Chief Japhet Obiechina Okafor, including the devise and distribution contained therein.
8. An injunction restraining the Defendants their servants and/or agents, including privies from interfering with the estate or property of the late Chief Japhet Obiechina Okafor, without the authority and consent of the plaintiff.
9. An order directing the Defendants to file a proper account of the estate of Chief Japhet Obiechina Okafor deceased from the date of his death to present and then serve a copy of the accounts on plaintiff.
10. An order on the Defendants to pay over to the plaintiff what is due to them (sic) from the estate for the period they administered the estate
11. An order of injunction restraining the Defendants from disposing or attempting to dispose any assets of the estate of Chief Japhet Obiechina Okafor.
12. An order appointing the plaintiff and 3rd Defendant as the administrators of the estate of Chief Japhet Obiechina Okafor.
13. An injunction restraining the defendants their servants and or agents from submitting the said last will and testament of late Chief Japheth Obiechina Okafor to probate.
14. An injunction restraining the defendants their servants and/or agents from interfering with the plaintiff in the exercise of his rights in relation to the compound land inherited under Ukpo customary law from his father late Chief Japheth Obiechina Okafor.
15. N500, 000.00 being damages for the 2nd to 9th Defendants continuing trespass”. (page 135-137 of the records)

Both parties led evidence and their counsel exchanged written addresses. In a considered judgment delivered on 28th October, 2009, the Court below dismissed the appellant’s claim. Having been dissatisfied with that judgment, the appellant filed a notice of appeal dated 30th October, 2009 and filed on 2nd November, 2009. The seven (7) grounds of appeal without their particulars are as follows:-

GROUND ONE (1) ERROR IN LAW

“The learned trial judge erred in law by admitting Exhibit ‘Q’ (a purported undertaking at the police, (sic) dated August 9 1989), a public document that was not certified by the custodian of the said document and was not tendered by any of the makers, when the said document was totally irrelevant to the issues before the Court and when the document was not even admitted for impeachment purposes, and the learned trial judge failed to expunge the said erroneously admitted Exhibit ‘Q’ during his judgment but instead attached great weight on this legally inadmissible Exhibit ‘Q’ and relied heavily on it in dismissing the plaintiffs case, thereby prejudicing the plaintiff/appellant and occasioning a miscarriage of justice”.

GROUND TWO MISDIRECTION IN LAW:

The leaned trial judge misdirected himself in law and thereby occasioned a miscarriage of justice when, relying on Section 108 of the Evidence Act, he suo motu compared the purported signatures of the plaintiffs father in Exhibit ‘P’ and ‘Q’ with the signature in Exhibit ‘A’ and held as follows: “It is my view that the two signatures are the same. I do not therefore believe the plaintiff that the Exhibit ‘A’ was not signed by his father”.

GROUND THREE (3) ERROR IN LAW

The learned trial judge erred in law when he held that Exhibit ‘A’ the purported Will of the plaintiff’s father, was executed in accordance with the law even though neither the plaintiff nor the propounders of the said will (the Defendants) ever identify the said will as that of the testator nor did any witness ever identify the signatures therein.

GROUND FOUR (4) ERROR IN LAW

The learned trial judge erred in law when he held that the plaintiffs father could by way of a will devise his compound at Oranto Village, Ukpo to persons other than his first son (the plaintiff), when it is clear from the parties’ pleading and evidence that the said compound was built on an undivided common property of the parties’ extended family land which was allotted to the said testator and that the plaintiff was the person entitled to inherit the said compound under Ukpo native law and custom.

GROUND FIVE (5) MISDIRECTION IN LAW