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FELICIA OBIANIKA v. EMEKA CHINAGOLUM OBIANIKA & ANOR

(2017) LPELR-42691(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of July, 2017

CA/E/231/2015


Before Their Lordships

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria


Between

FELICIA OBIANIKA - Appellant(s)

AND

1. EMEKA CHINAGOLUM OBIANIKA
2. CHIJIOKE UWAEZUOKE OBIANIKA - Respondent(s)


Summary

INTRODUCTION:
This appeal border on Wills and Probate.

FACTS:
This is an Appeal against a part of the Judgment of J.C. Iguh. J. of the Anambra State High Court dated 17/02/2014 in Awka in the Awka Judicial Division.

By a Writ of Summons and statement of claim dated and filed on 24/04/2006, the Respondents as Plaintiffs claimed against the Appellant and 7 (seven) others as Defendants jointly and severally as follows.
a) A declaration that the document dated the 16th day of March 1998 purported to be the last Will and Testament of late Chief Dennis Obianika who died on the 7th day of April 2005 is not and cannot be a Will validly made or executed by the said Chief Dennis Obianika and is therefore null and void and of no effect whatsoever.
b) A declaration that the late Chief Dennis Obianika did not make any Will and or testamentary disposition at any time at all before his death on 7th day of April 2005.
c) A declaration that the absence of a valid Will, the late Chief Dennis Obianika died intestate on the 7th day of April 2005.
d) An order setting aside the document dated the 16th day of March 1998 purported to be the Will and testament of late Chief Dennis Obianika.
e) A declaration that the administration of the estate of the late Chief Dennis Obianika is to be governed and distributed in accordance with the Aguluzigbo native law and custom regulating the administration of estate of a deceased person.
f) An order of injunction restraining the 6th and 7th Defendant herein from parading themselves or acting in any capacity whatsoever as executors under the said purported Will dated 16/03/98 or dealing with any of the properties of the Chief Dennis Obianika in any capacity whatsoever.
g) An order of injunction restraining the 8th defendant from admitting the purported Will to probate.

The parties filed written addresses and thereafter the learned trial Judge delivered his Judgment and dismissed the Plaintiffs (Respondents) suit. However in the course of the Judgment and in reaction to the fourth Issue formulated by the Plaintiffs Respondents' Counsel in the Court below to Wit:

"whether Testator can bequeath Divine Hotels Ltd which is an entirely different corporate entity in law as a gift in a Will"
The learned trial Judge opined on page 445 of the Record as follows:
"----- the only thing the testator can transfer or bequeath in a Will is his shares in the company and not the company and its businesses. I also agree completely with the submission of the learned Counsel for the Plaintiffs on the point that since the testator cannot legally bequeath and devise Divine Hotels Ltd as gift in his Will. Therefore, the gift of same in paragraph 3 of Exhibits B and K to the 1st Defendant is invalid and void and I so hold"

The Appellant succeeded in the Court below. In fact, the Plaintiffs Respondents' claims were dismissed. However, the Appellant was somewhat aggrieved by this part of the decision and therefore filed this appeal.


ISSUES:

Appellant nominated the following issues:

"1. Whether the learned trial Judge was right to declare the gift in paragraph 3 of the last Will and testament of the deceased testator tendered as Exhibits B and K to the 1st Defendant now Appellant as invalid and void?
2. Whether there was credible and cogent evidence before the Court showing or establishing that the device referred to in Paragraph 3 of the said Will belonged to Divine Hotels Ltd."

Respondent nominated this lone issue:
"Whether the Grounds of Appeal constitute an Appeal against the decision or ratio decidendi of the Court below."


DECISION/HELD:
The appeal was found meritorious. Consequently, the Appeal was allowed. The portion of the Judgment of the learned trial Judge particularly on page 445 of the record to the effect that
"since the testator cannot legally bequeath and devise Divine Hotels Ltd as a gift in his Will. Therefore, the gift of same in paragraph 3 of Exhibits B and K to the 1st Defendant is invalid and void..."
was set aside.

???It was ordered that the gift of the deceased testator's duplex or one storey building presently used for and by Divine Hotels Limited situate at 1/19 Pond Road, Housing Estate Onitsha is valid and was validly bequeathed and devised to the Appellant - Felicia Obianika.


Read Full Judgment