Walter B. Asuquo Bonnie & Anor V. Mrs Berty Fine Agi & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 17th August, 2010. The parties to this appeal are siblings and children of Late Chief Joseph Asuquo Bonnie of Ekpo Abasi who died on 2nd September, 1996. After his funeral, his will was read making the three Respondents the executrices of his will. The Appellants were aggrieved and took out a writ in the High Court and in their amended statement of claim filed on 29th September, 2006 claimed as follows:

a. A declaration that the Defendants are not competent to solely administer the estate of Late Chief Joseph Asuquo Bonnie Ekpo Abasi, to the exclusion of the Plaintiffs.

b. A declaration that the Will purportedly made ,by the Late Chief Joseph Asuquo Bonnie Ekpo Abasi dated 2nd of January, 1990 was a forgery the same having not been made by Late Chief Joseph Asuquo Bonnie Ekpo Abasi.

c. An order revoking the Letters of Probate No PR/1/97 dated 23rd day of January, 1997 issued to the Defendants by the Chief Registrar (Probate) in respect of the estate of Late Chief Joseph Asuquo Bonnie Ekpo Abasi who died intestate on the 2nd of September, 1996.

d. An order restraining the Defendants from parading themselves or acting as executors of the estate of the Late Chief Joseph Asuquo Bonnie Ekpo Abasi.

e. An order directing that the Latter of Administration in respect of the estate of Chief Joseph Asuquo Bonnie Ekpo Abasi who died intestate on the 2nd of September 1996 is issued jointly to the Plaintiffs, and the Defendants.

f. An order that Defendants account for all moneys received by them on account of the estate of Late chief Joseph Asuquo Bonnie Ekpo Abasi, especially with respect to No 33 (formally No 17) Odukpani Road, and 282(55) Odukpani Road Calabar.

g. An order that the Defendants make restitution of any money or monies of the estate of Late Chief Joseph Bonnie Ekpo Abasi which they might have misappropriated.’

The Respondents as Defendants filed their amended statement of defence on 10th March, 2006. The case proceeded to trial with the two appellants testifying as PW1 and PW2. The respondent called three witnesses with one of them testifying as DW1. At the end of a full trial, the trial Judge delivered his considered judgment dismissing all the claims of the Plaintiffs/Appellants. The appellants were again aggrieved and filed their notice and three grounds of appeal on 14th May, 2010. By leave granted by the court, the Appellants amended their notice to include two additional grounds of appeal on 15th May, 2011.

From the five grounds of appeal, the Appellants articulated two issues for determination as follows :

Issues for Determination

1. Whether the learned trial Judge was right to hold as he did that the disputed Will was signed by late chief Joseph Asuquo Bonnie.
2. Whether the respondents proved that late Chief Joseph Asuquo Bonnie has a sound disposing mind at the time he allegedly made the disputed Will

The Appellant’s brief which was filed on 21st September, 2011 was deemed properly filed and served on 19th April, 2012.

The Respondents filed their joint Respondents brief on 17th September, 2012 but deemed properly filed and served on 11th February, 2013. In it, the respondent’s counsel Chief F. O. Onyebueke, adopted the two issues articulated by the Appellants’ counsel, Essien H. Andrew, Esq.