Peter Chidebelu & Anor V. Probate Registrar High Court Of Anambra State & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Anambra State, sitting at Awka delivered on 30th March, 2006 in respect of Suit No. A/276/2001 which the appellants as plaintiffs instituted through the Writ of Summons filed on 17/10/2001 and the Statement of Claim subsequently filed on 9/1/2002.

The appellants are children of one Jeremiah Okonkwo Chidebelu through his wife, Mercillina Chidebelu who had pre-deceased the said Jeremiah Okonkwo Chidebelu that himself died on 23/6192. Madam Mercillina Chidebelu begat other children for the late Jeremiah Okonkwo Chidebelu apart from the two appellants, the eldest of which was one Michael that also died in 1995. The late Jeremiah Okonkwo Chidebelu allegedly deposited his will at the probate Registry of the Old Anambra State High Court, Enugu on 13/4/84. The appellants disowned the said Will and made efforts to prevent same from being read and/or admitted to probate.

The Will was however read on 9/11/99 at Awka in the present High Court of Anambra State and admitted to probate on 6/3/2001, whereupon the appellants commenced their Suit for the reliefs averred in paragraph 10 of their Statement of Claim as follows:-

1. A declaration that the PROBATE WITH WILL issued by the 1st Defendant to the 2nd-4th Defendants is null and void.
2. A declaration that the purported WILL AND LAST TESTAMENT of Jeremiah Okonkwo Chidebelu dated 13th April 1984 is null and void as it was not properly executed by the deceased testator who was an illiterate.
3. A perpetual injunction restraining the 2nd-4th Defendants from intermeddling with the estate of the late Jeremiah Okonkwo Chidebelu.

The 2nd-4th defendants (now respondents) who were named as executors of the Will filed their Statement of Defence on 16/4/2002 but was subsequently amended by the Amended Statement of Defence of 2nd-6th Defendants filed on 3/1/2004 following the joinder of the 5th and 6th defendants (now respondents) by order of court. The 5th respondent became the wife of the deceased Jeremiah Okonkwo Chidebelu after the death of Mercillina while the 6th respondent, Beatrice Chidebelu was the wife of late Michael, the eldest child of Mercillina.

At the trial of the suit, the appellants called two witnesses in support of the claim who testified as PW1 and PW2 while the respondents called six witnesses as DW1-DW6, and on 30th March, 2006 Awka Division of the High Court of Anambra State per E.U. Uzodike J. found in favour of the respondents and awarded costs of N10,000 against the appellants.

Being dissatisfied with the judgment of that court (now called the trial court), the appellants filed their Notice of Appeal on 27/4/2006 with five grounds of appeal, and in pursuance of the appeal, the Appellants’ Brief of Argument prepared by VEN. Anene Nzelu Esq. of Counsel was filed on 27/6/2008. The following two issues were formulated for determination.

“1. The Purported Will dated 13th April 1984 was not properly executed by the deceased testator who was an illiterate and as such was not the Will of late Jeremiah Okonkwo Chidebelu who was an illiterate.

2. Whether the trial Judge Uzodike J as the Probate Registrar (E.U. Uzodike Esq. Mrs) who issued the Probate with Will on March 6, 2001 has the jurisdiction to entertain the Suit ab initio?

Does this not amount to one being a Judge in one’s own cause thus offending the Appellant Right to fair Hearing as enshrined in 1999 Constitution”.

The 2nd-6th Respondents’ Brief of Argument was prepared by C.S. Okpala Esq. of Counsel and was filed on 16/7/2008. The following issues were raised therein;

1. Whether sufficient evidence was led by the 2nd-6th respondents to show that the deceased/testator made a WILL which was duly executed according to law.
2. Whether the learned trial judge adequately considered and evaluated all the evidence placed before the court to justify the refusal of the appellants/plaintiffs’ claim and the dismissal of the suit.
3. Whether the learned trial judge (Hon. Justice E.U. Uzodike) is disqualified to try the case having as the Probate Registrar unsealed, read and admitted the Will to probate on 6th March, 2001.

On their first issue, the appellants’, learned Counsel submitted with reliance on Sections 132 (1) and 103 (1) and (2) of Evidence Act that documentary evidence speaks for itself and no oral evidence can be used to contradict, alter, add to or vary a document. It was contended that the evidence of the defence witnesses (oral and documentary) had the effect of contradicting the document admitted as exhibit C and thus their evidence should be expunged.

The learned Counsel contended that Exhibit C had stated that the testator was an illiterate who could not read or write the English Language in which it was written, and for the definition of an illiterate, the case of U.B.A. PLC V. MUSTAPHA (2004) 1 NWLR (PT. 855) 443 was cited.

The learned Counsel cited Order 30 Rules 20, 21, 22, 23, 24 on how to deal with a Will or probate and how to establish due execution thereof, and contended that those Rules should be read in conjunction with Section 103 (1) of Evidence Act that excludes proving due execution of Wills and other testamentary documents by the methods provided in the Evidence Act for proving due execution of other documents.

It was contended also that two letters admitted as exhibits L and M were written to the 1st respondent as warning or caveat, but the warning was ignored by the 1st respondent who failed to rebut the documents or to make any finding before granting probate. The 1st respondent thus failed to comply with Order 30 Rule 24 of Anambra State High Court Rules, 1988. It was also argued that the Probate Registrar did not testify at the hearing of the suit, and as such must be deemed to have accepted all the averments of the appellants as well as their evidence.