JUSTICE ADEMOLA ADETOKUNBO CHAMBERS

IN THE HIGH COURT OF LAGOS STATE

IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA

SUIT NO: HC/L/137/22

IN THE MATTER OF THE CONSTRUCTION OF THE WILL OF LATE

CHIEF EDIDIONG AKPABIO

IN THE MATTER OF ENFORCEMENT OF THE RIGHT OF ELISHA AS THE

MOST SENIOR CHILD TO INHERIT FROM CHIEF AKPABIO’S
PROPERTY

IN THE MATTER OF ENFORCEMENT OF THE FUNDAMENTAL RIGHT

TO FREEDOM FROM DISCRIMINATION GUARANTEED IN SECTION 42
OF THE CONSTITUTION OF UAR, 1999 (AS AMENDED)

BETWEEN:

MR ELISHA ……………………………………………….. CLAIMANT

AND

1. EDIMA AKPABIO
2. ANTAI AKPABIO
3. UMOH AKPABIO ……………………………………….. DEFENDANT

ORIGINATING SUMMONS
BROUGHT PUSUANT TO ORDER 5, RULE 4 AND 5 OF THE HIGH COURT
OF LAGOS (CIVIL PROCEDURE) RULES 2019 AND UNDER THE
INHERENT JURISDICTION OF THIS HONOURABLE COURT
Let ANTAI, UMOH AND EDIMA AKPABIO within thirty days after the service of
this summons on it inclusive of the day of such service cause appearance to be entered
for it to this summons issued on the application of Elisha for the determination of the
following questions:

Whether Elisha can be considered a child of Chief Akpabio

Whether Elisha is entitled to inherit from Chief Akpabio’s property as the most senior
child

AND THE CLAIMANT hereby seeks the following reliefs:

1. AN ORDER of this honourable court that the claimant be accorded his position
as a child of Chief Akpabio

2. A DECLARATION that the applicant is the most senior child of Chief

Akpabio.

3. A DECLARATION that the claimant be given his due property as stated in the
will of Chief Akpabio

Dated this 13th day of February 2022

THIS SUMMONS was taken out by Justice Adetokunbo Ademola Chambers, legal
practitioners to the Applicant whose address for service is Ughelli, Delta State. The
defendant may appear hereunto by entering appearance personally or by a legal
practitioner either by filing the appropriate processes as in Order 7 in response at the
Registry of the Court where the summons was issued or by sending them to that office
by any of the methods allowed by these Rules.

Note: If the defendant does not respond within time at the place above mentioned, such
orders will be made and proceedings will be taken as the judge may think just and
expedient.
 …………….
Justice Adetokunbo Ademola Chambers
Claimant’s Counsel

FOR SERVICE ON:

1. Edima Akpabio
2. Antai Akpabio
3. Umoh Akpabio

IN THE HIGH COURT OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA

SUIT NO :HC/L/137/22

IN THE MATTER OF CONSTRUCTION OF THE WILL OF CHIEF

EDDIDIONG AKAPBIO AND THE RESOLUTION OF ALL ISSUES

IN THE MATTER OF ENFORCEMENT OF THE RIGHT OF ELISHA AS THE

MOST SENIOR CHILD TO INHERIT FROM CHIEF AKPABIO’S
PROPERTY

IN THE MATTER OF ENFORCEMENT OF THE FUNDAMENTAL RIGHT

TO FREEDOM FROM DISCRIMINATION GUARANTEED IN SECTION 42
OF THE CONSTITUTION OF UAR, 1999 (AS AMENDED)

BETWEEN
MR ELISHA ............................................................ CLAIMANT
AND
1. EDIMA AKPABIO
2. ANTAI AKPABIO

3. UMOH AKPABIO ..................................................DEFENDANTS

AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS DATED 13TH

FEBRUARY 2022

I, Elisha, Male, Christian, UARrian, of No. 12 Earl Residency, Ozumba Mbadiwe Way,
Victoria Island, Lagos do hereby make oath and depose as follows:

1. That I am the Claimant in this suit by virtue of which I am conversant with the
facts deposed herein.

2. That by the reason of my UARian Citizenship I am conversant with the laws on

adoption in UAR.

3. That the I am a child of Late Chief Akpabio and as a result entited to inheritance
under the will of Chief Akpabio

4. That the chief regarded me as his child during is lifetime and I have therefore
by implication been adopted by the chief

5. That national Courts and regional courts in Africa and beyond are taking the
bold step in protecting the right of adopted children to inherit from their putative
parents.

6. That unless the reliefs sought in this action are granted my right to inheritance
would be denied and that of many other UARians will also be denied this right.

7. That I swear to this affidavit in good faith believing same to be true according
to the Oaths Law of Lagos state

............................

DEPONENT

SWORN TO at the High Court Lagos Registry, Lagos

This 13th Day of February 2022

 BEFORE ME

COMMISIONER FOR OATHS

THE FRIENDS OF KIP LAWSAN NATIONAL MOOT AND MOCK

SOCIETY

13TH FEBRUARY 2022

IN THE HIGH COURT OF LAGOS

IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA

IN THE MATTER BETWEEN

MR ELISHA ………. ……….…………………... CLAIMANT

AND

1. EDIMA AKPABIO
2. ANTAI AKPABIO
3. UMOH AKPABIO ……………………………………… DEFENDANT
TABLE OF CONTENTS

STATEMENT OF FACTS……………………. 1

ISSUES FOR DETERMINATION…………………………. 1

MERITS OF ARGUMENT………………………. 2

CONCLUSION……………………… 4

PRAYER…………………… 4

TABLE OF CASES……………………. 5

STATUTES…………………… 5

CLAIMANT’S BRIEF OF ARGUMENT

STATEMENT OF FACTS
1. The claimant began the case with a writ of summons the case put forward by the
claimant as entitling him to the reliefs sought that the claimant has right to own a parcel
of property as written in the will of his father by adoption Chief Akpabio.
2. That the claimant after losing his parents his father who was a gardener to Chief
Akpabio and his mother to child birth was adopted by the same Chief Akpabio at age
four who had no biological child at the time making the claimant the first child to be
raised by Chief Akpabio known as Big Daddy to many.
3. Chief Akpabio the father of the claimant as seen in the undisputed facts of the case
was known to be “a devoted Christian with a broad pocket, broad shoulders and a heart
larger than life….”. catering for many with no known restrictions as it is shown in the
undisputed facts of the case that his house in the Banana Island of Lagos UAR that it
housed both relatives and employees.
4. Chief Akpabio wasn’t blessed with his own biological children until 7 years into his
marriage after which he was blessed with 3 children of his own Edima, Antai and Umoh.
5. Chief Akpabio openly claimed the claimant as his first son just as he fathered his
sister Edima and properly fathered him as seen in the undisputed facts of the case.
6. The claimant grew to be loved by all and was stated in the facts of the case that he
was “a very lovable young man; humane, humble and wise”.
7. The claimant was also always around “Big Daddy” as well as his two other sons.
8. The will shared his shares between his wife and his four children in equal proportions,
and his remaining four estates to his children in order of seniority.

ISSUES FOR DETERMINATION

1. Whether or not Elisha can be considered a child of Chief Akpabio
2. Whether or not Elisha is entitled to inherit from Chief Akpabio’s property as the most
senior child

MERITS OF ARGUMENT

Issue 1
Whether or not Elisha can be considered a child of Chief Akpabio
It is the claimant’s argument that Elisha is indeed the child of Chief Akpabio.
Upon the death of Elisha’s parents, Chief Akpabio catered for young Elisha until
maturity. In the past will and testament of Chief Akpabio, he made mention of four
children, when from the undisputed facts of the case Chief Akpabio had only three
biological children named Edima, Antai and Umoh.
It is a cardinal principle of construction of wills that to the extent that it is legally
possible, effect should be given to every disposition contained in the will unless the law
prevents effect being given to it.
We invite the court to examine the case of Bajrang Factory Ltd v University of
Calcutta, wherein the Court held thus: “With a view to ascertain the intention of the
maker of the will, not only the terms thereof are required to be taken into consideration
but all circumstances attending thereto. The will as a whole must, thus, be considered
for the said purpose and not merely the particular part thereof. As the will if read in its
entirety, can be given effect to, it is imperative nothing should be read therein to
invalidate same.”
In the case of Marley v Rawlings and anor, the court stated that a will should be
interpreted in the same way a contract is interpreted. Lord Neuberger further stated the
ways by which a contract can be interpreted. He stated that: “When interpreting a
contract, the court is concerned to find the intention of the party or parties, and it does
this by identifying the meaning of the relevant words, (a) in the light of (i) the natural
and ordinary meaning of those words, (ii) the overall purpose of the document,(iii) any
other provisions of the document, (iv) the facts known or assumed by the parties at the
time the document was executed, and common sense, but (b) ignoring subjective
evidence of any party’s intentions”
Following the rules in the aforementioned case, we implore the courts to look into the
natural and ordinary meaning of the words as contained in the will and ignore the
subjective evidence of the defendant. The will clearly makes reference to four children,
thus the argument of the defendant that the claimant is not the child of the testator
cannot hold.
Courts of various levels have held that speculations as to testator intention is
inadmissible and the only question is what states in his will. This principle was made
express in the case of Igboidu v. Igboidu where Achike JCA observed that “The law is
clear that in the absence of any ambiguity, the testators will must prevail”.
The testator in clause one of the will stated thus: “I give all my shares in my
companies namely: Kadok Company Limited, Morail Ventures, and Edden Company
Limited to my wife and 4 CHILDREN to be taken in equal proportions.”
Furthermore, Clause four states: “I give my vacant parcel of land measuring about 60
feet situate beside PAMOL, Odukpani, Cross River State to my 4 CHILDREN to be
shared in equal proportions
Clause five which provides that “I give my remaining four estates namely: the
Earl Residency, Ozumba Mbadiwe way, Victoria Island, Lagos; Good heart Residency
Henshaw Town, Calabar Neighbourhood Residency, GRA, Port Harcourt and The
Lodge Residency, Central Area, Abuja to my children to be taken in order of seniority”
should be interpreted by this honourable court from the positions of clause No. 1 and
No. 4 of the testators will.
The meaning of a word or phase in one clause can be gathered from another clause. We
invite the court to examine the case of Wickham v. Hargarth in which Joyce J stated
thus “….it is settled that the intention of the testator, which can be collected with
reasonably certainty from the entire will…… must have effect given to it”.
In the case of Levis v. Majekodunmi, where the testator had only one daughter but in
her will she referred to a lady who was her house help as “my daughter Lorintina
Joseph”, using her first name as the lady’s surname. In this action the only daughter
sought to (impart) the will so as to disinherit Lorintina. The supreme court held that in
the absence of any evidence to prove that the testator did not intend for Lorintina Joseph
to be called her daughter the will, Lorintina was the testator’s daughter, adopted by
implication.
We want to draw my Lord’s attention to the case of Akinwande v Dogbo, where the
adoption status of the plaintiff was in question because he was not formally adopted.
The counsel for the plaintiff argued that the child should be regarded as a child adopted
under customary law. Upholding this submission, the learned judge remarked that
children of relatives in need of care and protection taken in are regarded as adopted
children and made to enjoy the privileges of parenthood without discrimination.
It is hereby our humble submission that Elisha who was raised and trained by
Chief Akpabio was intended to be regarded as Chief Akpabio’s son even after his death,
thus the reason why Chief Akpabio stated in his last will and testament that his property
should be shared among his four children instead of three which are his biological
children.

Issue 2
Whether or not Elisha is entitled to inherit from Chief Akpabio’s property as the
most senior child
It is our contention that the claimant is entitled to inherit from Chief Akpabio’s
properties as his child and also entitled as the eldest child to choose from the properties
first.
Elisha being an adopted child is entitled to inherit his putative father’s estate as
the rest of the biological children.
The Black’s Law dictionary defines adoption as the process which creates a
parent-child relationship between the adopted child and the adoptive parents with all
the rights, privileges and responsibilities attached to that relationship.
 The claimant therefore argues that the right to inherit form part of the adoption
rights and privileges and therefore he is entitled to inherit from his father’s estate. The
Child Rights Act 2003 confers on the adopted child, a right to inherit the property of
the adopter. Section 141(3) of the Child Right Act 2003 provides: “For the purpose of
the devolution of the property on the intestacy of the adopter, an adopted child shall be
treated as a child born to the adopted”. Section 42(2) of the 1999 CFRN provides: “No
citizen in Nigeria shall be subjected to any disability or deprivation merely by reason
of the circumstances of his birth”. In terms of inheritance, this means that any reference
to children in adoptive parents will or wills includes adopted children. No one can
deprive them of such inheritance simply because they were not birthed by their adoptive
parents. In the case of Igbozuruike & ors v Onuadir, the Court of Appeal held that the
circumstances of the birth of an individual are no grounds to discriminate against him
in sharing or succeeding of a grandmother or mother.

In Aduba v Aduba, the issue was whether an adopted child can be deprived of
inheriting and sharing of the estate of the deceased adopter. The Respondent was
adopted by the parents of the appellants when the appellant was only five years old.
After the death of the parents, the Appellants came up with the idea that the Respondent
was not a member of the family. They excluded the respondent un the share of the estate
of their father, hence an action was instituted by the respondent at the High Court to
challenge the Appellants. The High court resolved that the Respondent was an adopted
child of the deceased parents, that the CFRN 1999 thereof applied to protect against
discrimination and so he was entitled to share in the landed property and the estate as
the adopted son. Dissatisfied, the Appellant appealed to the Court of Appeal. The Court
of Appeal found no merit in the appeal and dismissed same.

In the case of Onyiah v Onyiah, it was held that all court of law and equity are
keepers of the conscience of the society and will prevent any person or authority from
acting against the dictates of conscience. In this case, the appellants had relied on their
custom to say that only biological sons of a family can inherit the father’s landed
property. The court held that such old and oppressive laws have been reviewed by case
law pursuant to section 42 of the 1999 constitution. Section 1(1) of the 1999
constitution states: “This Constitution is supreme and its provisions shall have binding
force on all authorities and persons throughout the Federal Republic of UAR” This puts
the Constitution above any other law, customary law inclusive. The claimant is
therefore entitled to inherit the house in Calabar as the eldest son. The undisputed Facts
of the case states that the house in Calabar should be inherited by the first biological
son. By virtue of Section 143(1) of the child Rights Act, the adopted child shares the
same status as the biological child

The defendants have therefore acted against the dictates of conscience by contending
that they are the only children of Chief Akpabio and excluding the claimant as a son of
Chief Akpabio.

Not only is he a son but also the eldest son. He is therefore entitled, in line with
the provisions of the Chief Akpabio’s will to take first before Edima, Antai and Umoh .
From the undisputed facts of the case, it was stated that Elisha is age 28, Edima 24,
Antai 23 and Umoh20. It is plain to see that from each of the parties’ birth certificate,
Elisha is older. The statement of the will is that the children are to share according to
seniority.
It is hereby the claimant’s submission that Elisha is indeed Chief Akpabio’s most
senior son and is entitled to take the property which he so desires first before the other
children of Chief Edidiong Akpabio.

CONCLUSION
My lord we hereby urge your lordship to rule in the claimant’s favour. The
claimant raised two issues in this suit; first of which is whether or not the claimant can
be considered a child of Chief Akpabio, we answered in the affirmative and contended
that since Chief Akpabio openly claimed him and adopted the claimant informally as
stated in the undisputed facts of the case. Therefore, he can and should be considered
the child of his father. The second been as to whether or not the claimant can be called
the most senior child and we argued that from the undisputed facts of the case it is seen
that the claimant is the oldest child of Chief Akpabio.
PRAYER
We hereby pray this honourable court to grant the following reliefs
1. An order of this honourable court that the claimant be accorded his position as a child
of Chief Akpabio.
2. An order that the claimant be recognized as the most senior child of Chief Akpabio.
3. A declaration that the claimant be given his due property as stated in the will of Chief
Akpabio.

TABLE OF CASES
⚫ ALBERT MARTIN LEWIS AND ANOR V ABIGAIL MAJEKODUNMI (1966)
LCN/1313(SC)
⚫ FELIX UWANUGO IGBOIDU v. MORRISSON NDUKA O. IGBOIDU & ORS
(1998) LCN/0411(CA)
⚫ WICKHAM V. HAYGARTH, [1913] 2 Ch. 9; (1913), 108 L.T. 756
⚫ CHUKWUMA IGBOZURUIKE & ANOR v. ISAAC ONUADOR (2015)
LCN/7982(CA)-
⚫ ANTHONY ADUBA & ORS v. TITUS ADUBA (2018) LPELR-45756(CA)
⚫ ONYIA V ONIAH (1989) 2 SCNJ 120 at 134
⚫ RE MARTIN (1936) WACA, 91, 92
⚫ AKINWANDE V DOGBO (1974) 8 Nig. L.J.134
⚫ MAWLEY V RAWLINGS (2014) UKSC 2
⚫ BAJRANG V UNIVERSITY OF CALCUTTA Appeal (civil) 3374 of 2006

STATUTES
⚫ CHILD RIGHT ACT 2003
⚫ THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

DATED THIS 12TH Day of FEBURARY 2022

____________________
 Justice Adetokunbo Ademola Chambers
(CLAIMANT’S SOLICITORS)

FOR SERVICE ON:

1. Edima Akpabio
2. Antai Akpabio
3. Umoh Akpabio
(THE DEFENDANTS)
C/o their Solicitors