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.


Appeal Dismissed

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



“This Appeal shall therefore be determined based on the issues nominated by the Appellants due to failure of the Respondents to file a brief of argument. Although this appears to put the Appellant at a position of advantage, but in reality it does not. The judgment of the Court below is still in favour of the Respondents and for this reason the Appellants still have to show that the judgment of the Court below was wrong. See the case of Cameroon Airlines vs. Mr. Mike E. Otutuizu (2011) LPELR-827 (SC). PER F. O. OHO, J.C.A


“Another critique of the decision of the Court below is that the 4th Respondent is that the 4th Respondent was a party to the suit and under the law was expected to either defend himself or admit the claims of the adversary and in which case the doctrine of a “person interested” under Section 83(1) of the Evidence Act, becomes otiose and when considered in the light of the fact that the said Exhibits Pll and P12 were admissions made by a person who is a party to the case.

Apart from all of these, the expunged contents of the Exhibits Pll and P12 were indeed Admissions under Sections 20, 21(1), 22 and 23 of the Evidence, 2011 formerly Sections 19, 20(1), 21 and 23. See the cases of Ajide Vs Kelani (1985) 3 NWLR (PT. 12) 248 at 260 – 261; Eyifomi vs. Ismail (1987)2 NWLR (PT. 57) 459.

Apart from all of these it is also clear that the contents of Exhibits Pll and P12 do not come within the contemplation of the provisions of Section 91 of the Evidence Act, 2004 (now Section 83 of the Evidence Act, 2011 as these are not statements forming part of any records or were they direct oral evidence made by either the Appellants or the 4th Respondent, in so far as the Appellants and the 4th Respondent cannot by any stretch of imagination be said to be persons interested within the meaning and intendment of Section 91 of the Evidence Act.

Of course the Court below erred in classifying the 4th Respondent, who is a party to the action as an interested party and under the guise of such a wrong in striking out Exhibits Pll and P12, whereas the said 4th Respondent could have properly been classified as a Party who has made an admission against his interest. The Court below simply shirked its responsibility in calling a spade a spade in the circumstances of this case as an admission against interest is usually tagged the best evidence in favour of his adversary. See the case of Ali vs. UBA PLC. (2014) LPELR-22635 (CA), where this Court per OSEJI, JCA (as he then was) had this to say on the subject:

“It is trite law that an admission by a party against his interest is best evidence in favour of his adversary in the suit. See Onyenge vs. Ebere (2004) 13 NWLR (PT. 899) 20; Kamalu vs. Umunna (1997) 5 NWLR (PT. 505) and Ajide vs. Kelani (1985) 3 NWLR (PT. 12) 248. However, for an admission against interest to be valid in favour of the adverse party. It must not only vindicate or reflect the material evidence before the court, but also vindicate and reflect the legal position. See Odutola vs. Papersack (Nig) Ltd. (2006) 11-12 SC 60.”

– PER F. O. OHO, J.C.A


“This Court is therefore in agreement with the Appellants that these findings made by the Court below are all a product of the Court’s conjecture, as these were never even any part of the case of the Respondents. It is bad enough for the Court to have based its decision on such a sensitive dispute between the parties on conjecture let alone administering a double barreled and separate or discriminatory standard of proof between the parties on the issue of the proof of the paternity of Alhaji Momoh Rabiu Imonikhe Braimoh. Indeed, the Court’s imposition of a DNA test results on the Appellants, which said test was not demanded from the Respondents, before believing their story is therefore a perverse decision, which ought not to be allowed to stand as it failed and did not place the contending parties on the imaginary scale of justice in other to determine which side had proved the fact on a preponderance of evidence. See case of Atolagbe vs. Shorun (1985) LPELR-592 (SC) where the apex Court per OPUTA, JSC (OBM) had this to say on what amounts to a perverse decision of Court:

“Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious.”

– PER F. O. OHO, J.C.A


“The settled position of the law is that to question the authority of party who has sued in a representative capacity, it is open to the party objecting, at the earliest opportunity and at an early stage of the proceedings to move the Court to strike out the name of the community, group of persons and family as Plaintiffs. The other option is for the Defendant to challenge by a counter affidavit filed at the time of the hearing of the application for leave to sue in a representative capacity. See the cases of Walter Wiri & Ors vs. Godwin Wuche & Ors (1980) 1 – 2 SC 1; SPDC (Nig.) Ltd vs. Tigbara Edamuke & Ors (2009) 6 – 7 SC 74 and Anabaronye & Ors vs. Nwakaihe (1997) 1 SCNJ 161. A situation whereby the Respondents have decided to raise their objections to the Appellants’ representative status in their written final address is clearly an irregular procedure. Here was even a situation in which the Court below had acknowledged that the Appellants obtained the requisite leave to sue in a representative capacity, but went out of its way to make erroneous findings on the issue. See the case of Durbar Hotel PLC vs. Ityough & Ors (2010) LPELR – 4064 (CA), where this Court per ORJI ABADUA, JCA had this to say of the subject:

“Further it is interesting to know that it was the Appellant who was challenging the Respondents capacity to sue in a representative capacity. In Shell Petroleum Development Company Nigeria Ltd Vs Edamkue, (2009) 14 N.W.L.R Part 1160 page 1 at 27-28 paragraph E, the Supreme Court per Ogbuagu J.S.C., held that the Appellant had no locus standi to object to the said representation not being a member of those families or communities. It was further held that once the Plaintiff/Plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity, it is prima facie, though not conclusive evidence of authority by his/their groups, family or community to sue in that capacity. It is settled that it is only a member of that group, family or community who can dispute, intervene or challenge the proper representation or the capacity in which the Plaintiff/Plaintiffs sue. His lordship further held that it will be futile for a defendant who is not one of those the Plaintiff/Plaintiffs purport to represent to challenge the Plaintiffs1 said authority for or because if the Plaintiffs win, the losing party cannot share in the victory, and if the Plaintiffs’ case be dismissed, such dismissal can never affect the Defendant adversely. It is crystal clear in this appeal that the Appellant who was the Defendant at the trial Court was not a member of the Respondents1 group. The Appellant was their employers and could not have shared in the Respondents1 victory. This is because if there is a common interest and a common grievance, a representative suit would be in order if in addition the relief sought is in it’s nature beneficial to all whom the Plaintiff proposes to represent. As was expressed in S.D.P.C.N Vs Edamkue, (supra), once the Appellant in the instant appeal was not one of those the Respondents1 sued on their behalf or purport to represent, and was not a member of the Respondents’ group, it cannot disputes or challenge the capacity in which the Respondent’s sued.”

– PER F. O. OHO, J.C.A


“In the first place, this Court does not subscribe to the idea that mere personal hostility of a presiding judge could translate into a proof of bias or likelihood of bias, let alone sufficient to vitiate any power or order of Court properly exercised. See the case of Maclean vs. Workers Union (1929) 1 CH 602, 625. In the case of Babarinde & Ors vs. The State (2013) LPELR- 21896 the apex Court per KEKERE-EKUN, JSC had this to say on the subject:

In a case where the learned trial Judge is accused of bias either during the course of proceedings or after the delivery of judgment, the Court considering the issue would be guided by the decision in cases such as The Secretary Iwo Central LG v. Adio (2000) 8 NWLR (Pt. 667) 115 where Ogundare, JSC at 133 F – G cited with approval the view of Lord Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1969) 1 QB 577 @ 599, as follows: “There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not enquire whether he did in fact favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: “The judge was biased.”

Against the backdrop of the foregoing, perhaps, the question to address here at this point is: whether it can be said that because of the scathing remarks, negative, adverse and other unwarranted verbicidal remarks directed at the person of the 1st Appellant in particular and the other Appellants in general, it is sufficient to establish bias or likelihood of bias against the person of the presiding justice of the Court below? The answer to this question can only be rendered in the affirmative.

It is important to note that such remarks not borne out of the pleadings of the parties are hardly necessary, even if required at all. The test is that there must be “circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other”. In short any reasonable person watching the proceedings must have had no choice that to believe that there some bias on the part of the Judge to have made remarks against the person of the 1st Appellant, which bear no affinity whatsoever, with the disputes of the parties. Justice can hardly be said to have been done when it is not firmly rooted in confidence.” – PER F. O. OHO, J.C.A


“The settled position of the law is that an Appellate Court is clothed with the requisite vires to review cost awarded by a lower Court only where the Appellant who was the loser in the lower Court or trial Court succeeds in his appeal. See the case of Leo Okoye vs. NCFC (1991) 7 SCNJ (PT. 11) PG 365. Other than that an Appeal against the award of a cost may not be a walk-over.

Since the award of costs is at the discretion of the Court, like every other discretion, the Court is expected to act judicially and judiciously in such exercise of discretion, therefore costs should not be arbitrarily awarded or upon the whims and caprices of the Judge. It is for this reason, that the exercise of the discretion must not be influenced by questions of benevolence or sympathy. See Haco Ltd vs. S. M. Daps Brown (1973) 1 ALL NLR 423 at 427 – 428 SC. In the case of Wurno vs. UAC Ltd (1956) 1 FSC 33 at 34, the apex Court held that generally costs follow events and that a successful party is entitled to costs of the litigation but that, an aggrieved party, presumable aggrieved by the order of a Court of law as it relates to costs, he does not appeal as of right as he must first seek and obtain the leave of Court before an Appeal can be lodged against an order relating to costs.

This Court, having carefully searched through the Court’s file, is unable to find evidence of leave obtained and granted to enable the Appellant filed an Appeal against the award of cost of N50, 000.00 by the Court below. For this reason, the Appeal against the award of cost is discountenanced. – PER F. O. OHO, J.C.A

Statutes Referred To:
Evidence Act, 2011

Limitation Law of the defunct Bendel State as applicable to Edo State

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