Foluke Mudasiru & Ors. v. Ibrahim Adbullahi & Ors. (2011) – CA

➥ CASE SUMMARY OF:
Foluke Mudasiru & Ors. v. Ibrahim Adbullahi & Ors. (2011) – CA

by “PipAr” B.C. Chima

➥ COURT:
Court of Appeal – CA/L/58/2010

➥ JUDGEMENT DELIVERED ON:
Friday, the 4th day of March, 2011

➥ AREA(S) OF LAW
Will.
Propounding of a Will.

➥ NOTABLE DICTA
⦿ WHERE DISPUTE AS TO A WILL, BURDEN OF PROOF LIES ON THOSE WHO ARE SEEKING TO PROPOUND IT
The Appellants have argued in their brief that the burden of proof rested on the Respondents who are the persons propounding the Will before it would shift to them. This is correct as it accords with the position of the law.  The apex court in Okelola v. Boyle (1998) 2 N.W.L.R. (pt.539) 533 at 547-549 per Ogundare, JSC (as he then was) quoted with approval the decision in Johnson & Anor v. Maja & Ors (1951) 13 WACA 290 at 292 as follows: “Where there is a dispute as to a Will, those who propound it must clearly show by evidence that prima facie, all is in order: that is to say, that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, it seems to me that the burden is then cast upon those who attack the Will, and that they are required to substantiate by evidence the allegation they have made as to lack of capacity, undue influence and so forth”. — J.I. Okoro, JCA.

⦿ ANYWHERE THE SIGNATURE APPEARS IN A WILL, IS VALID; POSITION OF SIGNATURE IS IMMATERIAL
As regards the contention that failure of the Testator to sign the Will at the right place invalidates the Will, I wish to refer to Section 4(1)(d) of the Wills Law (Supra) wherein the concluding part of the section states: “… but no form of attestation or publication shall be necessary”. Section 4 of Wills Law of Lagos State is in pari material with Section 9 of the English Administration of Justice Act, 1982 and the Authors of Williams on Wills at page 95 have interpreted the provision to mean ‘that there is no longer any formal requirement that the signature should be at the foot or end of the Will but in so long as it is apparent’ in the face of the Will that the Testator intended by his signature to give effect to the Will. It has been held that a Will is not invalidated simply because the Testator’s signature appears in the Attestation or Testimonium clause. See Re Moores Goods (1901) P.44. Therefore, the submission of counsel for the Appellants that the Will is unsigned because the attestation clause is blank is not tenable in so for as there is a signature by which the Testator intends to give effect to the writing signed as his Will. I think the Testator’s signature in the Will satisfies this requirement. — J.I. Okoro, JCA.

⦿ ALTERATION BEFORE OR AFTER WILL IS IMMATERIAL AS FAR WILLS LAW IS COMPLIED WITH
Whether the alteration were made before or after the will was executed in this particular case, the truth is that it (ie., the alterations) complied with section 14 of the Wills Law of Lagos state (supra) Since the Testator initialed all alterations. — J.I. Okoro, JCA.

⦿ WHO IS AN EXECUTOR?
It has to be noted that an Executor(s) is a person appointed by the Testator in the Will to administer the property of the Testator and to carry into effect the provisions of the Will. — J.I. Okoro, JCA.

⦿ AN EXECUTOR NEED NOT BE EXPRESSLY APPOINTED; FUNCTION BY TENOR OF WILL DETERMINES
I think it is trite that where a Testator fails to nominate a person to be his executor, any person who upon the terms of the Will has been appointed to perform the essential duties of an executor, is called as executor according to the tenor of the Will and is entitled to a grant of probate. Also where it can be implied from the Will that a person appointed a trustee is required, for instance to pay the debts of the testator, take charge of his funeral and/or generally, administer the Will, though not expressly appointed an Executor, he can be implied to be so endowed. A reasonable construction of a Will can confirm if indeed any person(s) have been appointed to perform the essential duties of an executor. This will be a clear indication that the duties which a person is asked to perform, in the absence of his being expressly named in the Will as Executor, is the determinant of his status as an executor according to tenor. See Halsbury’s Laws of England 4th Edition vol.17; Dr. Kole Abayomi SAN: Wills Law and Practice (2004) P. 129. — J.I. Okoro, JCA.

⦿ CONSEQUENTIAL ORDER FLOWS FROM THE JUDGEMENT OF THE COURT, AND NEED NOT BE ASKED FOR
It is now beyond argument that a court is not a Father Christmas and as such does not award a party that which the said party did not ask for.  Put differently, a court does not go outside the prayers of the parties to make orders not contemplated by them. See Yaro v. Arewa Const. Ltd. (supra). However, where the order, though not expressly asked for, is necessary, in the circumstance of the case to give effect to the final Judgment of the court, the court will be justified to make such order. Such an order is usually called a consequential order which must flow from the Judgment of the court. — J.I. Okoro, JCA.

⦿ WHERE WILL IS CHALLENGED, PROPOUNDER IS SHOW REGULARITY
It is incumbent on the propounder of a Will once the Will is being challenged to establish its regularity. But once the court is satisfied prima facie of the regularity of the will, the burden of proof shifts to the party challenging the will. See: Eyo v. Inyang (2001) 8 NWLR (pt 715) 304, Okelola v. Boyle (1998) 2 NWLR (pt 539) 533; Amu v. Amu (2007) 7 NWLR (pt 663) L64, Adebayo v. Adebojo (1973) Alf N.L.R.297 and Johnson & Anor. V. Maja & Ors. 13 WACA 290. — A.G. Mshelia, JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
John Inyang Okoro, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Robert Clarke, SAN.

⦿ FOR THE RESPONDENT
A. Ajagbe Esq.
A. O. Adewale Esq.

➥ CASE HISTORY
Air Commodore Gbolahan Adio Mudasiru was a senior officer of the Nigerian Air Force and served the nation in various capacities within the Nigerian Military and was one time the Military Governor of Lagos State.

While the Appellants were making preparations for the burial of their benefactor, the 1st to 5th Respondents, caused to be read at the Probate Registry of the High Court of Lagos State, Lagos on 20th October, 2003 a Will dated 24th June, 2001 which they claimed was made by the Deceased. Thereafter, the 1st – 5th Respondents, claiming to be trustees and executors under the said Will, instituted case No HC 03C03621 against the 1st Appellant herein before a London Court in which they sought to take over the burial arrangements for the Deceased. The said case was dismissed by Llyod, J. upon the ground that, though he accepted them are Trustees, he could not hold them to be executors. At about the same time the Respondents instituted the case in England, they also applied to the Probate Registry for grant of probate in respect of the said Will dated 24/6/01 to which the 1st Appellant caused a caveat to be entered. Thereafter, the claimants at the High Court of Lagos State challenged the validity of the Will and sought declarative, injunctive and other reliefs. In a Judgment delivered on the 15th day of December, 2009, the court, presided over by Opesanwo, J., dismissed the suit in its entirety. The court also pronounced on the validity of the Will and upheld the 1st – 5th Respondents as the duly appointed Executors of the Estate of the Testator. The court also pronounced on the validity of the Will and upheld the 1st – 5th Respondents as the duly appointed Executors of the Estate of the Testator.

Appellants dissatisfied has filed an appeal before this Court.

➥ ISSUE(S) & RESOLUTION

I. Whether there was due execution of the Will?

RULING: IN RESPONDENT’S FAVOUR.
A. “There is no modicum of doubt that the said Will is in writing. Now, is there anything to show that one of the three signatures is that of the testator? The 1st – 5th Respondents’ evidence on the issue is well captured by the evidence of Dw2 & DW3. At page 893 of the Record of Appeal, the learned trial Judge made the following findings in his Judgment: “The testator signed before the witnesses, both said witnesses, were present at the same time and the said witnesses thereafter each signed in the presence of each other and the testator. This fact was put in evidence by two persons – DW2 and DW3. They testified to being present at the same time. None was at all questioned on this aforesaid testimony.  It is trite that where evidence on a material fact is unchallenged, unrebutted or uncontradicted under cross-examination, the court will accept the same as a true representation of the fact. See Asafa Foods Factory v Alraine (Nig) Ltd (2002) 12 NWLR (Pt 781) page 353, BUA V DAUDA (2003) 13 NWLR (Pt 838) page 657.”

B. “I have myself perused and examined the record and have no option but to agree with the findings of the Court below that the Appellants failed to impugn the above weighty testimony of the two witnesses of the Respondents. Listen to the testimony of one Mr. Eyo Ekpo who prepared the Will. On pages 180 – 182 of the record, he states inter alia: “12. I remember that when we arrived at the home of the late Air Commodore Gbolahan Adio Mudasiru, he ushered all three of us into his study, which was on the ground floor of the house. There, he went through the final copies of the Will in my presence and in the presence of my two colleagues, all four of us, sitting around a table in his study. On going through, he made a few minor corrections by his hand, initialed the corrections he made, then proceeded to execute ‘about 4 copies of the Will in the presence of all three of us, with my colleagues signing as his two witnesses before him and each other.” I am surprised that such a weighty evidence was left to stand intact without any attempt to impugn its veracity, or is it because, the witness had become an Attorney-General of Cross River State at that time? What could the learned trial Judge have done other than to accept it as the truth of the matter? Mr. Chiagozie Hilary – Nwokonko, one of the witnesses to the Respondents stated clearly in paragraph 6 of his witness statement (See page 80 of the record) that: “6. Myself and the said Mr. Dele Ogunshote personally saw the testator executing his Will and there is absolutely no truth whatsoever in the assertion that the signature is not that of the testator.” There was absolutely nothing to contradict or controvert this evidence and I think the court below was on a firm ground to admit and rely on same. See Magaji v. Nigerian Army (2008) 8 NWLR (Pt 1089) 338, S.C, Isitor v. Fallarode (2008) 1 NWLR (Pt 1069) 602.”

C. “The other issue has to do with the argument of the Appellants that failure of the testator to sign in the attestation clause violates Section 4 (i)(b) of the Wills Law (supra). Although the Appellants admitted that three signatures ended the will of the testator, they opined that none is that of the testator. As was rightly submitted by the learned counsel for the Respondents, this is fallacious. If the Appellants did not know which of the signatures is that of the Testator, why did they send a copy of Exhibit ct (the will) to RW6 for analysis of the Testator’s signature? The inference that could be made therefrom is that they knew the testator’s signature out of the three, otherwise they could not have asked pw6 to analyse what they claimed to be unknown to them. What this means is that even the Appellants were able to identify the 1st signature standing alone on top of the other two as that of the Testator.”

D. “It is improper for the Appellants to have hired a hand writing expert and committed to him some documents containing some signatures for analysis behind the back of the Respondents especially as found by the learned trial Judge that the “document x” was never tendered before the court. As was rightly pointed out by the DW4, the witness called by the Respondents, such an exercise would need to be done with the original of the documents. Definitely, not photocopies, especially now that we have gone far in electronic and information technology. One should be wary in using photocopies of documents to authenticate signatures on it as same could be superimposed neatly and manipulated before being photocopied. No wonder the CW6 or PW6 said that he had requested for originals but was only given photocopies. I seem to agree with the Learned Authors of Sarkar on Evidence, 14th Edition Vol.1 at p.309 wherein it is stated thus: “It is well settled that handwriting expert’s opinion must always be received with great caution and that it is unsafe to base a Judgment purely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law”. Also, that:- “Where there is direct and trustworthy evidence by persons who saw the testator sign, it is not necessary to rely on expert evidence (Kameswara v.  Suryaprakasa, A 1962 AP 178). It is wise to be slow in acting on the opinion of the handwriting expert, if there are other materials to prove the signature, the opinion evidence can be sidelined”.”
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II. Having found, “that Exhibit C1 is not explicit enough for me to reach the conclusion that it expressly appointed the Defendants herein as its executor”, whether the learned trial Judge was right to have held that the appointment of the defendants as Executors of the estate of the late Air Commodore Gbolahan Adio Mudasiru can reasonably be implied?

RULING: IN RESPONDENT’S FAVOUR.
A. “Clauses 10, 11, 12, 13, and 14.1 of Exhibit C1 the Will of the Testator herein, clearly show the intension of the Testator that the person named under “TRUSTEES AND EXECUTORS” ie 1st – 5th Respondents should administer the Will.
Indeed, clause 13 states: “GRAIL FUNERAL I request that I be given a FUNERAL, to be organized exclusively by my Trustees and conducted in the sense of THE GRAIL MESSAGE after my passing on”.
Quite apart from this, by clause 14.1 of the Will the 1st – 5th Respondents are to take every step legally necessary to effect the wishes of the testator when the object of any bequest were located in an entity in which he owned majority shares. Based on the above, I do agree with the court below that although the 1st – 5th Respondents were not expressly appointed as executors in the Will, by reason of their job description in the Will, they are executors according to the Tenor of the Will.  Although it is desirable that an executor ought to be expressly named in the Will, he can also be identified by the functions ascribed to him by the Will rather than the nomenclature with which he is described in the Will. A person mandated by the Will to perform the job of an Executor, though not so named, is indeed an executor by tenor of the Will. See In the Goods of Peverett (1902) p. 205; In the Goods of Rufus Kiaby (1902) P. 188; In the Goods of Nicholas Way (1901) p.345 at 347.”
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III. Having dismissed the Appellants’ case, whether the learned trial Judge was right to have proceeded to make declarations and orders in the absence of a counter-claim?

RULING: IN RESPONDENT’S FAVOUR.
A. “There are basically two orders made by the learned trial Judge. The first is that the Will is valid and the 2nd is that the Respondents are duly appointed as Executors of the Will. Honestly, I do not see what order has been made which does not flow from the Judgment delivered by the court. The main issue ventilated by the Appellants at the court below was that the Will was not valid for various reasons which were addressed by the learned trial Judge and came to the conclusion that the Will was valid and complied with the Wills Law of Lagos State (supra). Therefore an order formally pronouncing on the validly of the Will at the end of trial cannot be said to be an order which was not asked for. It is my view that it is not only a consequential order, but indeed a necessary consequential order. Again the Appellants had challenged the status of the Respondents vis-a-vis the Will. After a well considered Judgment, the court below held that the Respondents were Executors according to the Tenor of the will. So, making this pronouncement at the close of the Judgment by way of an order is merely for emphasis. Clearly these orders are necessary to give effect to the judgment of the court and there was no need for a counter-claim before such an order could be made. This issue does not avail the Appellants and I resolve it against them.”
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✓ DECISION:
“On the whole, having resolved the three issues against the Appellants, I hold that this appeal lacks merit and is hereby dismissed. I affirm the Judgment of the court below as ably entered by A. O. Opesanwo, J, on 15th December, 2009. I shall make no order as to costs in view of the circumstances of this case.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Wills Law, Cap W2 Vol. 7, Laws of Lagos State 2004 [Section 4]

➥ REFERENCED (CASE)
⦿ WHERE PROVISIONS ARE UNAMBIGUOUS, MUST BE GIVEN ORDINARY MEANING
ATTORNEY GENERAL OF THE FEDERATION VS. THE GUARDIAN NEWSPAPER (1999) 9 N.W.L.R. (PART. 618), page 187 wherein IGU, JSC at page 264, paragraph G – H of the report had this to say – : “…And where the words used or the provision of any section the law are clear and unambiguous, they must be given their ordinary meaning unless, of course, this would lead to absurdity or be in conflict with other provisions of the law.”

➥ REFERENCED (OTHERS)
⦿ EXPERT OPINION SHOULD BE CORROBORATED
Sarkar on Evidence, 14th Edition Vol.1 at p.309 wherein it is stated thus: “It is well settled that handwriting expert’s opinion must always be received with great caution and that it is unsafe to base a Judgment purely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law”.