Background
The respondent, Mr. Godswill Kasimu Momodu, sued six members of the Momodu family claiming that under Etsako customary law (Agbede community) as the first surviving son of the late Alhaji Dauda Momodu he was entitled to inherit his father’s entire real and personal estate. In the High Court of Edo State, Benin, the judge accepted unchallenged testimony that Mr. Kasimu Momodu was born of a marriage between his mother, Mrs. Victoria Momodu, and the deceased in 1955 and granted declaratory relief, perpetual injunction restraining appellants from dealing with rents or property, and orders for account of rents and delivery of vehicles.
Dissatisfied, the appellants appealed, contending that (1) the respondent was not the deceased’s son, relying on an affidavit of dishonour, a newspaper disclaimer and draft will; (2) the Etsako custom required proof; and (3) exhibit G (the alleged Will) was a customary instrument not subject to the Wills Law.
Issues
- Whether the Court of Appeal was correct to uphold the High Court’s belief in the unchallenged evidence that the respondent was the first son of the deceased.
- Whether failure by appellants to cross-examine on Etsako inheritance custom constituted admission of the custom.
- Whether exhibit G fell short of statutory requirements for a valid will and lacked probative value.
Ratio Decidendi
- A court must accept and act on evidence which is admissible, credible and uncontradicted by the other party (Evidence Act; All Progressives Congress v. Aguma).
- Certified public documents not tendered by their maker (e.g., newspaper publications) have no probative value absent maker’s testimony (Buhari v. INEC).
- Allegations of forgery must be proved beyond reasonable doubt by expert evidence (All Progressives Grand Alliance v. Ameke).
- Failure to cross-examine a witness on a material issue amounts to admission of that fact (Aliyu v. State).
- A customary or drafted will must satisfy the statutory standards of the Wills Law—writing, signature, attesting witnesses—and be free of suspicion (Wills Law Cap.72; Princess Okang France Georgestone v. Wang Nya).
Court Findings
On paternity, the court found that the respondent’s three witnesses—his mother and sister of the deceased—gave consistent, or unshaken, evidence that he was born of a recognized marriage in 1956. The appellants’ counter-documents (affidavit D, diary note F, newspaper exhibit E and disclaimer) were hearsay, uncertified by their makers, and contradicted by each other—thus worthless. Contradictory testimony about the number of signatures and failure to call an expert meant forgery claims failed.
On customary law, the respondent pleaded Etsako custom entitling the first surviving son to full inheritance. Appellants did not cross-examine on that custom, deeming it admitted, nor did they call any native or family head to deny its existence. Consequently, the trial court rightly accepted the custom.
On exhibit G, the draft will, the court observed multiple alterations, lack of attesting witnesses, incomplete bequests and evident draft status as admitted by the 1st appellant. It failed to meet Wills Law requirements, was tainted with suspicion, and could not be accorded probative value.
Conclusion
The Court of Appeal dismissed the appeal, affirmed the High Court judgment of 2019, and ordered each party to bear its own costs. The respondent’s entitlement under Etsako customary law and the validity of his paternity evidence were upheld.
Significance
- Confirms that unchallenged, credible evidence will be accepted to prove paternity and inheritance rights.
- Clarifies that hearsay and certified documents not tendered by their maker lack probative value.
- Emphasizes strict proof for forgery allegations requiring expert handwriting evidence.
- Reaffirms that failure to cross-examine on custom or law equates to admission.
- Illustrates that customary wills must satisfy statutory form and be free from suspicion to be valid.