Patrick Okwuchukwu Ajakwe V. Ifeanyi Ajakwe & Ors (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A. 

The appellant was the plaintiff at the High Court of Justice of Anambra State, holden at Awka. He had vide a Writ of Summons, issued on 8th October, 2007, and with a Statement of Claim, contemporaneously filed on the same 8th October, 2007; prayed at paragraph 16 thereof, for the following reliefs:
?a. A DECLARATION that Mr. Patrick Nnonyelu Okafor Ajakwe (deceased) was a man subject to the native law and custom of the people of Awka, Anambra State.
b. A DECLARATION that the document purporting to be the last Will and testament of late Mr. Patrick Nnonyelu Okafor Ajakwe is not the last Will and testament of late Mr. Patrick Nnonyelu Okafor Ajakwe who died intestate.
c. A DECLARATION that Mr. Patrick Okwuchukwu Ajakwe being the first son of the late Mr. Patrick Nnonyelu Okafor Ajakwe on the death of his father succeeded his father as the head of the family and inherited his father?s ?Obi? being the piece or parcel of land known as No. 69 Zik Avenue Awka, formerly No. 79 Enugu Road, Awka, Anambra State (the ?property?) to the exclusion of all other

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persons, including and especially the 1st and 2nd Defendants, in accordance with the native and custom of the people of Awka, Anambra State.
d. A DECLARATION that under native law and custom of the people of Awka, a man?s ?Obi? is not subject to alienation, partition or disposition by Will or otherwise.
e. A DECLARATION that Mr. Patrick Okwuchukwu Ajakwe being the first son of late Mr. Patrick Nnonyelu Okafor Ajakwe on the death of his father is entitled to the possession or custody and control of all other property real and personal of the said Mr. Patrick Nnonyelu Okafor Ajakwe (deceased) in accordance with the native law and custom of the Awka people of Anambra State, pending the sharing of same amongst the son, of Mr. Patrick Patrick Nnonyelu Okafor Ajakwe (deceased).
f. A DECLARATION that the 3rd to 5th Defendants are strangers to Mr. Patrick Nnonyelu Okafor Ajakwe?s estate and have no interest thereto and that all acts done by them in relation to the estate is null and void having acted without authority and amount to trespass.
g. AN ORDER of Court directing the Defendants to deliver immediate possession of the

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property (including all the rooms and the keys thereat) to the plaintiff.
h. ACCOUNT of all monies collected by the Defendants from the property and immediate payment of same to the plaintiff.
i. A PERPETUAL INJUNCTION restraining the Defendants by themselves, servants, agent, privies or otherwise howsoever from trespassing on the property or otherwise interfering with the plaintiff?s rights in the property.
j. N5m (Five Million Naira) jointly and severally against the 3rd to 5th Defendants for trespass to the property and for acts prejudicial to the interest of the plaintiff in the property.?
?
The respondents, resisted the claim and filed their statement of defence. The suit then proceeded to trial. Some documentary exhibits were admitted into evidence by consent of counsel while the appellant tendered into evidence some other documentary exhibits. The appellant testified for himself and called one other witness who testified for him. The respondents, on their part, fielded four witnesses, who testified for them. Thereafter, learned counsel for the parties filed and exchanged written addresses which were later adopted by them,

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as their submissions on the claim.

The learned trial judge, Hon. Justice C. A. Emembolu, on 27th November, 2012, in his judgment found for the respondents and dismissed the claim. This appeal, is against that judgment. There are seven grounds of appeal.

?The appellant, in order to prosecute the appeal, filed the appellant?s brief of argument dated 26th May, 2015 on 27th May, 2015. It was settled by Tochukwu Maduka, Esq., who identified four issues therein, for the determination of the appeal thus:
1. Whether the learned trial judge was right, in the entire circumstances of this case, in upholding Exhibit ?A? as the last Will and Testament of the Appellant?s father, the late Mr. Patrick Nnonyelu Ajakwe? (Grounds 1, 2, 3, 4 and 7).
2. Whether the learned trial judge was not in error in holding that the Court is bound by the date in Exhibit ?A? and act on same as the date of its execution because Exhibit ?A? was admitted by consent by both parties? (Ground 5).
3. Whether the learned trial judge was not in grave error which occasioned a miscarriage of justice when she failed to make a finding

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as to the year of death of the late Patrick Nnonyelu Ajakwe, the alleged Testator of the Will in dispute, notwithstanding that same was a fundamental issue before the trial Court? (1st Ground 6 at page 322 of the Record).
4. Whether the learned trial judge was not in error when she held that having found Exhibit ?A? to be valid, other claims of the Appellant automatically fail? (2nd Ground 6 at page 323 of the Record).

The Respondents? brief of argument settled by Uba Anene, Esq., dated 4th November, 2015 and filed on 10th November, 2015 was deemed as properly filed and served on 20th April, 2016. He nominated a sole issue for the resolution of the appeal, thus:
Whether in the circumstances of the case the decision of the learned trial judge dismissing the case of the appellant is in consonance with the law and evidence led at the trial.
?
Having perused the pleadings of the parties vis-a-vis the evidence led by them; the judgment of the Court below, the grounds of appeal against the said judgment and the issues identified by the respective counsel in their briefs of argument, I am satisfied that the sole issue nominated by

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