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UMOESSIEN AKPADIAHA JONAH & ANOR VS JONAH AKPADIAHA & ORS

suit no: CA/C/318/2016

Legalpedia Electronic Citation: (2021) Legalpedia (CA) 01610

Areas Of Law:

Appeal, Customary Law, Law Of Evidence, Practice And Procedure, Statute, Wills Law

Summary Of Facts: The Appellants and 1st Respondent are brothers.

The 2nd Respondent is their cousin. After the death of their father, they were informed that the father left behind a Will.

The Appellants went to the High Court of Akwa Ibom State sitting at Eket and alleged that the Will was concocted because the father had already distributed his property according to native law and custom.

They sought declaratory and injunctive reliefs and an order setting aside the Will. The 3rd Respondent, a Legal Practitioner, stated that the father of the Appellants instructed him to write his last Will and testament, which he did and kept in his custody on the instruction of their father and to read it to the family after his death,

He thereafter 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 Court after considering the evidence adduced by parties, it dismissed the claim of the Appellants, hence an appeal to this court vide an amended Notice of Appeal.

HELD:

Appeal Dismissed

ISSUES FOR DETERMINATION

Ø Whether from the circumstances of this case, the said late Umoessien Akpadiaha made the purported Will, subject matter in this Appeal

Ø Whether the judgment of trial court was not wrong in law and perverse, thus occasioning miscarriage of justice

RATIONES

VALIDITY OF A WILL – LEGAL REQUIREMENTS FOR THE VALIDITY OF A WILL

“A Will is a creation of statute. For it to be valid in law, it must comply strictly with the provisions of the statute. See the decision of this court in Ize-Iyamu v. Alonge (2007)6 NWLR (pt.1024)84. Section 4 of the Wills Law Cap. 143), Laws of Akwa Ibom State provides as follows:

(1) No Will shall be valid unless

(a) It is in writing;

(b) It is signed by the testator or signed in his name by some other person in his presence and by his direction, in such place on the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature to the writing signed as his Will;

(c) The testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time and

(d) The witnesses attest and subscribe the Will in the presence of the testator but no form of attestation or publication shall be necessary.

No signature under this section or under any other provision of this Law shall be operative to give effect to any disposition or direction which is underneath or follows it nor shall it give effect to any disposition or direction inserted after the signature was made.” – PER J. S. ABIRIYI, J.C.A

CUSTODY OF A WILL – IMPORT OF ORDER 56 RULE 4 OF THE HIGH COURT (CIVIL PROCEDURE) RULES 2009 OF AKWA IBOM STATE ON THE CUSTODY OF A WILL

“Order 56 Rule 4 of the High Court (Civil Procedure) Rules 2009 of Akwa Ibom State provides as follows:

“Any person having in his possession or under his control any paper or writing of any deceased person, being or purporting to be testamentary, shall forthwith deliver the original to the Registrar of the court. If any person fails to do so within 30 days after having had knowledge of the death of the decease, he shall be liable to such fine not exceeding N10,000.00 (Ten Thousand Naira) for every 30 days of the default as the Judge having regard to the condition of such person so in default and other circumstances of the case may deem fit to impose.”

– PER J. S. ABIRIYI, J.C.A

EXECUTION OF A WILL – ON WHOM LIES THE BURDEN OF PROOF IN A DISPUTE CHALLENGING THE DUE EXECUTION OF A WILL

“Where there is a dispute as to a Will, those who uphold it must clearly show by evidence that prima facie the Will is in order that is to say that there has been due execution. Once they have satisfied the court, prima facie that there has been due execution of the Will, the burden of proof then is shifted to those who attack the Will. They are thus required to substantiate by evidence the allegation made. The burden of proof is therefore not static. See the decision of this court in Ize-Iyamu v. Alonge (2007)6 NWLR (pt.1029) 84 and Mabogunje v. Adewunmi (2006)11 NWLR (pt. 991)224. PER J. S. ABIRIYI, J.C.A

PROOF OF CUSTOMARY LAW – WAYS OF PROVING CUSTOMARY LAW

“It is the case with all customary law that it has to be proved in the first instance by calling witnesses acquainted with the custom/s until the particular custom/s by frequent proof in the courts have become so notorious that the courts will take judicial notice of them. See Oyewunmi & Anor v. Ogunesan (1992) LPELR – 2880 SC. PER J. S. ABIRIYI, J.C.A

Statutes Referred To: High Court (Civil Procedure) Rules 2009 of Akwa Ibom State

Wills Law Cap. 143), Laws of Akwa Ibom State Book On “Entertainment Law In Nigeria” [Now On Sale]

Written By Michael Dugeri