CASE TITLE: JONAH & ANOR v. AKPADIAHA & ORS (2021) LPELR-55102(CA)
JUDGMENT DATE: 16TH JULY, 2021
PRACTICE AREA: WILLS AND PROBATE.
LEAD JUDGMENT: JAMES SHEHU ABIRIYI, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION
This appeal borders on Wills.
FACTS
This appeal is against the judgment delivered on 18th April 2016 in the High Court of Akwa Ibom State sitting at Eket.
The Appellants as Plaintiffs filed an action in the High Court of Akwa Ibom State against the Respondents as Defendants claiming, among others, for:
(a) A declaration that the Will alleged to have been made by the late Akpadiaha Jonah Umoessien of Etebi Usung Inyang, Eket after the deceased had inter-vivo shared his personal and real property to his children in 2000 according to the tradition and custom of Etebi Usung Inyang, Eket is false and therefore null and void.
(b) A declaration that the said Will cannot convey the title of any of the landed property of late Akpadiaha Jonah Umoessien of Etebi Usung Inyang, Eket outside what the deceased had shared to the Appellants and the 1st Respondent in the year 2000.
The Appellants and 1st Respondent are brothers. The 2nd Respondent is their cousin. After the death of the father of the Appellants and 1st Respondent, they were informed that the father left behind a Will. The Appellants thus instituted an action at the High Court, alleging that the Will was concocted because the father had already distributed his property according to native law and custom. According to the Appellants, the father did not tell them of the existence of a Will. Also, the father did not instruct the 3rd Respondent to prepare a Will.
In defence, the 3rd Respondent, a legal practitioner, stated that the father of the Appellants instructed him to write his last Will and testament. He did. He kept the Will in his custody on the instruction of their father and to read it to the family after his death. He gave the Will to the 4th Respondent to read to the family after the death of the Appellants’ and 1st Respondent’s father as he was not in active legal practice then having been appointed a Commissioner in the Government of Akwa Ibom State. The 4th Respondent said he read the Will to the family and gave a copy to them.
The High Court considered the evidence adduced by the parties and dismissed the claim of the Appellants.
Dissatisfied, the Appellants appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
1. Whether from the circumstances of this case, the said late Umoessien Akpadiaha made the purported Will, the subject matter in this appeal.
2. Whether the judgment of trial Court was not wrong in law and perverse, thus occasioning a miscarriage of justice.
DECISION/HELD
In conclusion, the Court dismissed the appeal and affirmed the decision of the High Court.
RATIOS:
- WILLS AND PROBATE – WILL: The provision of Section 4 of the Wills Law of Akwa Ibom State on conditions for the validity of a Will
- WILLS AND PROBATE – WILL: The provision of Order 56 Rule 4 of the High Court of Akwa Ibom State (Civil Procedure) Rules 2009 on duty of a person in possession of a Will upon the death of the testator and punishment for failure
- WILLS AND PROBATE – WILL: Whether the provision of Order 56 Rule 4 of the High Court of Akwa Ibom State (Civil Procedure) Rules 2009 invalidates a Will
- EVIDENCE – PROOF OF CUSTOM/CUSTOMARY LAW: Ways by which customary law can or may be proved
