SHOULD THE COURT ORDER THE PRODUCTION OF THE ORIGINAL COPY OF A WILL/CODICIL FOR THE PURPOSE OF COMPARISON?

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CASE TITLE: OMENAZU v. OMENAZU & ORS (2019) LPELR-47282(CA)

JUDGMENT DATE: 12^TH APRIL, 2019

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: ITA GEORGE MBABA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Civil Procedure.

FACTS

This appeal is against the judgment of Abia State High Court in Suit No. A/369/2003, delivered on 16th March 2014, by Hon. Justice L. Abai, who dismissed the claims of the Plaintiff and granted the reliefs sought by the 1st to 3rd and 5th Defendants/Counter-Claimants, as well as that of the 4th Defendant/Counter-Claimant.

​At the High Court, the Plaintiff (now Appellant) had sought the following reliefs against the Defendants (now Respondents):

(a) A declaration that the purported Will No. 403 is null and void and a product of conspiracy, forgery and fraud in that the Will was allegedly deposited in the Probate Registry, Umuahia on February 5th, 1991 when Abia State was non-existent. Abia State was, in fact, created on August 27, 1991.

(b) A declaration that the codicil dated January 29th, 1991 and deposited in an imaginary Abia State Probate Registry is also a production of forgery, conspiracy and fraud and is therefore null and void.

(c) A declaration that the late Moses Ihekoromadu Omenazu died intestate and that by Ngwa Native Law and Custom, the Claimant/Appellant as the 1st son of the family is entitled to hold the estate of the deceased on trust for the rest of the family members until the estate is shared according to Ngwa Native Law and Custom.

(d) An Order of the Court directing that the Defendants be charged and tried for conspiracy, collusion, fraud and forging a Will and Codicil.

(e) An Order of the Court directing that the 6th Defendant be charged and tried for offering a bribe to Dominic A. Nwaogbe of Counsel to the Claimant in order to influence or prevent him from doing his legitimate duties as a legal practitioner.

(f) An order of Court directing that the reading of a codicil without a Will sought to be amended by the Codicil is not procedural, null and void.

(g) The Sum of N100,000,000.00 (One Hundred Million Naira) being the proceeds from the estate of late Moses Ihekoromadu Omenazu which the Defendants connived to hold over without the will and consent of the Claimant being the person accredited by Ngwa Native Law and Custom to hold the estate on trust until sharing is effected.”

The 1st to 3rd and 5th Defendants filed a joint Statement of Defence and Counter-Claimed as follows:

(a) A declaration that Moses Ihekoromadu Omenazu made a Will dated 29th day of January 1991 which was read and proved at the probate registry of Abia State High Court of Justice, Umuahia.

(b) A declaration that the Defendants are, by virtue of a letter of administration, granted them executors/Administrators beneficiaries and/or owners of personal property consisting of (1) Motor Vehicle 504 Peugeot SR Reg. No. Abia AE237NGK, (2) residential building at No. 25 Omenazu Avenue, Aba, (3) 2 Plots of Land No. 25 Omenazu Avenue, Aba, (4) Room 6 jointly with a big store with 3 apartments at No. 16 – 18 Faulks Road, Aba, (5) Six Plots of land at Nos. 17 – 20 Omenazu Avenue, Aba, now 25 Omenazu Avenue, Aba, (6) Nos. 16 – 18 Faulks Road, Aba, jointly (two plots) of late Elder Moses Ihekoromadu Omenazu of Osusu Aba North Local Government Area Abia State of Nigeria as bequeathed and contained in the deceased’s Will dated 29th day of January 1991, read and proved.

(c) N1,000,000.00 (One Million Naira) special and general damages for various acts of trespass, interference committed by the Plaintiff with aid of his agents on or about 26th day of June 2003 before and thereafter over the aforesaid testamentary property in possession of the Defendants as Executors and/or Administrators thereof.”

The 4th Defendant, on his part, filed a separate Statement of Defence and also Counter-Claimed, as follows:

(a) A declaration that Moses Ihekorormadu Omenazu died testate.

(b) A declaration that the Will/Codicil dated 29th January 1991 read and proved at Probate Registrar’s Office, Umuahia is the last Will and Testament of Moses Ihekoromadu Omenazu.

(c) The sum of One Hundred and Eighty Thousand Naira (N180,000.00) being rents collected from them and store at 17 Omenazu Avenue and 16/18 Faulks Road, Aba bequeathed to the 4th Defendant under the Will of Moses Ihekoromadu Omenazu.

(d) Refund of rents at the monthly rate of N2000 per room and store at 17 Omenazu Avenue and 16/18 Faulks Road, Aba respectively from April 2006 until the Plaintiff withdraws from his unlawful entry, use and occupation of the room and store at 17 Omenazu Avenue and 16/18 Faulks Road, Aba property of the 4th Defendant.

(e) An Order perpetually restraining the Plaintiff from further trespass into the said room and store at 17 Omenazu Avenue Aba and 16/18 Faulks Road, Aba, the property of the 4th Defendant.

(f) One Million Naira (N1,000,000.00) general damages for the unlawful trespass of the Plaintiff into the room and store at 17 Omenazu Avenue Aba and 16/18 Faulks Road, Aba, the property of the 4th Defendant.”

After hearing the case and considering the evidence adduced and the addresses of Counsel, the trial Court granted the Reliefs sought by the Defendants in the separate Counter-claims, but in respect of damages, allowed the sum of N300,000.00 general damages to the 1st to 3rd and 5th Defendants for trespass and the same amount (N300,000.00) to the 4th Defendant as general damages for trespass. The trial Court also gave the 4th Defendant N1,500.00 per month (instead of N2,000) for the store at 16/18 Faulks Road, Aba, from April 2006, until the Claimant withdraws from the store, property of the 4th Defendant.

Dissatisfied with the judgment of the High Court, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court of Appeal determined the appeal on the following issues:

(1) Whether the trial Court was right when he held that the Will/Codicil subject matter of the proceeding was not forged and fraudulently contrived by the Defendants.

(2) Whether the trial Court was right in granting the Counter-claim of the Defendants/Respondents.

DECISION/HELD

In conclusion, the Court of Appeal dismissed the appeal for lacking in merit.

RATIOS:

• APPEAL- ISSUE(S) FOR DETERMINATION: Whether issue(s) for determination must relate to the grounds of appeal filed
• WILLS AND PROBATE- VALIDITY OF A WILL: On whom lies the burden of proving the validity/due execution of a will
• WILLS AND PROBATE- VALIDITY OF A WILL: Whether the Court can order the production of the original copy of a will/codicil for the purpose of comparison