Imade Ize-iyamu v. Mr. Omoruyi Alonge & Ors. (2007) – CA

➥ CASE SUMMARY OF:
Mrs. Imade Ize-iyamu v. Mr. Omoruyi Alonge & Ors. (2007) – CA

by “PipAr” B.C. Chima

➥ COURT:
Court of Appeal – CA/L/184/03

➥ JUDGEMENT DELIVERED ON:
Friday, the 9th day of February, 2007

➥ AREA(S) OF LAW
Propounding of a Will;
Onus of proof where Will is challenged.

➥ NOTABLE DICTA
⦿ FOR PURPOSE OF COMPUTATION OF TIME, FIRST DAY IS USUALLY EXCLUDED
In the instant case the period required for the filing of the appeal is three months. As to how the period of three months could be computed the Supreme Court in Akeredolu vs. Akinremi supra made a clear pronouncement on this issue. The position is that where a statutory period runs from a named date to another or the statute prescribes some of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of the Law maker as gathered from the statute generally the first day of the period will be excluded from the reckoning, and consequently the last day will be included. In Akeredolu vs. Akinremi supra the apex court at page 794 para A had this to say:- “It would follow that in computing the period for the filing of the appeal in this matter the date – 10th April, 1985 – on which the Court of Appeal delivered its judgment must be excluded. The calculation thus begins on 11th April, 1985 and three months from hence must end at midnight of 10th July, 1985.” — A.G. Mshelia, JCA.

⦿ BURDEN OF PROOF TO ESTABLISH GENUINENESS OF WILL IS ON THE PROPOUNDER
It is settled, that the burden of proof of the genuiness and authenticity of a WILL lies on the party propounding it. Where there is a dispute as to a WILL, as in this case, the person who propounds it must clearly show by evidence that prima facie everything is in order that is to say that there has been due execution and that the testator had the necessary mental capacity and was a free agent. Having done that the burden is then cast upon the party who attacked the WILL to substantiate by evidence the allegation he made. This principle of law was very clearly enunciated in the case of Bafunke Johnson & ors vs. Akinola Maja & ors 13 WACA 290,291 – 292 cited supra by Appellants’ counsel where the court held as follows:- “The onus of proof shifts. In the first stage 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. Thereafter the burden is cast upon those who attacked the WILL and they are required to substantiate by evidence the allegations they have made. The decision must ultimately depend upon a consideration (having regard to the shifting burden of proof), of the value of all the evidence adduced by both parties.” See also Adebajo vs. Adebajo supra, Okelola v. Boyle supra and Egharevba vs. Oruonghae (2001) 11 NWLR (Pt. 724) 318, and Amu v. Amu (2000) 7 NWLR (Pt. 663) 170 -171, 174. — A.G. Mshelia, JCA.

⦿ JUDGEMENT WRITING IS MATTER OF STYLE
It is of importance to note that writing of judgment is a matter of style by any particular Judge but the most important thing is the result that is arriving at the correct decision and thereby doing justice to both parties to the case. See Eyo vs. Iyang (2002) 8 NWLR (Pt. 715) 304. — A.G. Mshelia, JCA.

⦿ STATEMENT MADE BY A PERSON INTERESTED AT A TIME – EXPERT STATEMENT
In other words by virtue of section 91(3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish is inadmissible. See Salako vs. Williams (1998) 11 NWLR (Pt. 974) 565. However, as rightly submitted by Respondents’ counsel, expert evidence is treated as an exception to Section 91(3) of the Evidence Act. In Apena vs. Aiyetobe supra it was held that a surveyor or any expert in his field of knowledge who makes a statement in any form in respect of a matter in court at any stage of the proceedings is generally regarded as a person who has no temptation to depart from the truth as he sees it from his professional expertise.  The  submission of Appellants counsel on this issue is not tenable as there is no evidence to support his conclusion that DW2 as handwriting analyst made the report to favour the Respondents because they paid him. There must be a real likelihood of bias before a person making a statement can be said to be a “person interested” within the meaning of section 91(3) of the Evidence Act. In the instant case there is no evidence on record. — A.G. Mshelia, JCA.

⦿ OPINIONS OF HANDWRITING EXPERTS ARE ADMISSIBLE TO DECIPHER WORDS
While considering the provisions of S.107(1) Evidence Act the Court of Appeal in D.T.B. vs. Awanzigana Enterprises supra also had this to say:- “Moreover the opinions of handwriting experts are admissible to deciper words beneath obliterations erasures, or alterations, although it is for the court to determine what the words are. Experts may also give their opinions as to whether handwriting is natural or imitated, and whether it shows points of comparison but it is for the court to determine whether a particular piece of writing is to be assigned to a particular person, and documents may be submitted to the court assigned to a particular person, and documents may be submitted to the court for comparisons to be made. The weight to be attached to any expert evidence depends upon the skill of the expert.” — A.G. Mshelia, JCA.

⦿ ISSUES RAISED ON PROBATE PROCEEDING NOT TOUCHING ON PROBATE SHOULD – BURDEN
With the plaintiff having introduced new issues over and above the initial challenge on the will Exhibit B, her claim was no longer within the ambit of the general rule as laid down in the case of Adebajo v Adebajo supra, wherein the onus of proof in a probate action lies on the proponents of the will. The general rule principle enunciated herein is in my humble view subject however to a situational circumstance as it is with the case at hand which serves as an exception thereof. — C.B. Ogunbiyi, JCA.

⦿ IF A WILL IS CHALLENGED, IT IS THE PROPOUNDER TO PROVE 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 N.W.L.R. (pt. 715) 304, Okelola vs Boyle (1998) 2 N.W.L.R. (pt. 539) 533. Amu vs. Amu (2007) 7 N.W.L.R. (pt. 663) 164. — R.C. Agbo, JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Adzira Gana Mshelia, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Olu Daramola.

⦿ FOR THE RESPONDENT
A.D. Eghobamien.

➥ CASE HISTORY
One Chief Joshua Charles Ekome Alonge, the Obarisiagbon of Benin died on the 21st day of September, 1998  leaving behind a Will. On 12th day of January 2001, the last will was read at the Probate Registry of the High Court of Justice Lagos State. The Appellant being one of the nine children of the deceased was present at the reading of the WILL. Appellant challenged the validity of the WILL on the ground that it was fraught with fundamental irregularities.

Appellant who was the Plaintiff before the lower court then filed a 40 paragraph Statement of Claim dated 25th September, 2001 claiming against the Defendants now Respondents jointly and severally as follows, inter alia:- (i) A DECLARATION that the document read at the Probate Registry of the High Court of Lagos State on the 12th day of January, 2001 purporting to be a true and or valid WILL of Chief Joshua Charles Ekome Alonge (The Obarisaiagbon of Benin deceased), Late of No 7 Adeniji street, Surulere, Lagos is not a true and or valid WILL of the said Chief Joshua Charles Ekome Alonge (The Obarisiagbon of Benin).

The parties addressed the court at the conclusion of hearing and the learned trial Judge subsequently delivered a judgment dated 10th of May 2002 dismissing the Plaintiff/ Appellants’ claim and sustaining the counter-claim. The learned trial Judge at page 194 of the record concluded as follows:- “The Testator did not die intestate. He died testate. He made a WILL and that WILL is Exhibit B. Exhibit K and L are not his Last WILL and codicil for the reasons earlier alluded to. All claims sought by the Plaintiff fails and they are hereby dismissed. counter-claim succeeds, Alternative prayer fails. This is premised on the fact that when the main claim succeeds the court no longer considers the alternative claim.”

Aggrieved by this decision, Appellant then filed his Notice and Grounds of Appeal dated 8/8/02 and filed on 9/8/02.

➥ ISSUE(S) & RESOLUTION

I. Whether having regard to the avalanche of discrepancies with the preparation and execution of Exhibit ‘B’ the learned trial judge was not in grave error to have upheld Exhibit ‘B’ as the LAST WILL and TESTAMENT of Late Chief Joshua Charles Ekome Alonge, the Obarisingbon of Benin?

RULING: IN RESPONDENT’S FAVOUR.
A. “What is material at this stage is to determine whether the learned trial Judge based on the evidence adduced placed on the Respondents the proponents of the WILL the initial burden of proof to show by evidence that prima facie WILL (Exhibit ‘B’) is in order. In the course of evaluation of evidence the learned trial Judge in my humble view applied the correct principle relating to burden of proof. The learned trial Judge on page 187 of the record made a definite finding that prima facie Exhibit ‘B’ is valid. The finding appears on page 187 lines 24 – 29 of the record wherein the trial Judge stated as follows:- “Once a WILL has the name of the Testator, properly witnessed by two witnesses, signed by the Testator and dated the presumption of regularity would be ascribed to the document moreso as the WILL was deposited in the Probate Registry and the Plaintiff admits Exhibit ‘B’ is the only WILL in Benin and Lagos.” The evidence on record supports this finding. DW1 testified that he witnessed the execution of Exhibit ‘B’ by the Testator who signed in his presence and one other person. From his testimony it was the Testator that invited him to his house. Issues were joined on the allegation that the signature on Exhibit ‘B’ was not that of the Testator. DW2 a handwriting analyst was called and through his report he confirmed that the signature on Exhibit ‘B’ belonged to the Testator. It is worthy to note the testimony of DW1 both in Chief and under cross-examination. He said on Oath as follows:- “I know Chief T.C. Alonge. I remember 17/1/94. Myself, Segun Ogunbode went to the residence of Late Chief J.C. Alonge, there we attested to a document which he said was his last WILL. All of us signed the document together. This is my signature, Segun Ogunbode and the Testators’ signature on Exhibit ‘B’. Under cross-examination DW1 said:- Exhibit ‘B’ was signed in the presence of Chief J.C.E. Alonge and Segun Ogunbode. Chief Alonge signed in my presence, that is his signature”. The available evidence shows that prima facie Exhibit ‘B’ was duly executed in accordance with S.4(1) of the WILLS Law of Lagos State. 1st- 3rd Respondents had discharged the initial burden of proof placed on them.”

B. “By the state of pleadings issue of forgery was raised in paragraphs 7, 11, 12, 13 and 16 of the statement of claim which appeared on page 65 of the record. Appellant alleged that the signature on Exhibit ‘B’ is not her fathers’ signature though she did not state the name of the person who committed the forgery. Having introduced forgery it means Appellant has put the commission of crime directly in issue. By virtue of S.138 (1) of the Evidence Act Cap 112 Laws of Federation of Nigeria 1990, Appellant have to prove the allegation beyond reasonable doubt and not on the balance of probabilities as in civil cases.”

C. “The grouse which appellant had with Exhibit ‘B’ was pleaded and as listed in paragraph 4.06 of the appellants brief included the following among others:- (i) That signature of the alleged testator is not the Signature of the deceased. (ii) That the letter headed paper in which Exhibit ‘B’ was printed is not that of the deceased as significantly different from the usual letter headed papers of the deceased. (iii) That the title of the deceased “Abarisiagbon of Benin was wrongly spelt on Exhibit ‘B’ which error the deceased would not tolerate having regard to the extent to which the deceased cherished and abhored the title. (iv) That the telephone number printed on Exhibit ‘B’ is not that of the deceased. (v) That the Benin names of all the children of the deceased were wrongly spelt on Exhibit ‘B’ except the name of the 1st Respondent who happens to be the only person favoured in Exhibit ‘B’ (vi) That the purported witnesses to the execution of Exhibit ‘B’ did not in fact witness the execution of the document and the document further lack any attestation clause to connect the witnesses with the execution. (vii) That the facts alleged in Exhibit ‘B’ do not represent the true position of the relationship of the deceased with his children. Exhibit ‘B’ which was deposited in the probate Registry was tendered in evidence through PW1 the Principal Registrar. To substantiate the allegation of forgery Appellant called PW2 a Police sergeant attached to Forensic Science laboratory ‘D’ Department Force CID Annex Alagbon clause Ikoyi, Lagos as witness. As a handwriting analyst his testimony was that he examined the signature on photocopy of Exhibit ‘B’ the WILL under consideration which was admitted as Exhibit ‘G’. He made a comparative table admitted as Exhibit’ J’. His result was that the signatory of undoubted E1, E2 and ‘F’ did not sign the questioned signature on Exhibit ‘G’. Under cross-examination he said he did not go to Probate Registry to sight the original of Exhibit ‘B’. He further stated that he heard about photo tricks on certified true copies but he has never seen photo tricks. He has not seen when signatures are superimposed on documents, but he has heard of it. PW2 gave his expert opinion. PW4 and PW6 only made general statement that the signature on the disputed WILL did not belong to their father. The learned trial Judge after weighing the evidence of PW2 as against that of DW2 the expert witness called by 1st – 3rd Respondents had this to say:- “In his testimony PW2 said, and I quote him.”I have not seen where signatures are superimposed on documents but I have heard.” This testimony raised a grave doubt as to the correctness of report of a Handwriting analyst who examined a photocopy when the original document was available. A handwriting analyst must examine signatures on original documents before their reports can be of any probative value. A look at Exhibit ‘G’ the photocopy of Exhibit ‘B’ shows that the signatures on pages 1, 2 and 3 are not clear, page 4 on Exhibit ‘G’ is different from page 4 on Exhibit ‘B’. In the circumstances I am satisfied that Exhibit ‘B’ was signed by Chief J.C.E. Alonge.” In other words the report of PW2 was rejected because it has no probative value.”

D. “One other irregularity which appellant contended raised suspicion as to the validity of Exhibit ‘B’ is that Exhibit ‘B’ lack attestation clause to connect the witnesses with the execution.  Attestation clause in a WILL is the clause where the witnesses to the WILL certify that the WILL has been executed before them and state the manner of the execution of the same. See Egharevba vs. Oruonghaen (2001) 11 NWLR (Pt. 724) 318 at 334 paras H – A. The learned trial Judge made a finding that the WILL was attested to in the presence of witnesses. The testimony of DW1 at page 153 lines 19-27 of the record reproduced earlier in this judgment supported the finding. The learned trial Judge also relied on S.4(1) (d) of the WILLS Law of Lagos State which is self explanatory. It states:- “(1) (d) the witnesses attest and subscribe the WILL in the presence of the Testator but no Form of attestation or publication is necessary.” Going by the evidence of DW1 which was not discredited in the course of cross-examination it was the Testator that invited him to his house to witness the execution of the WILL (Exhibit B). Two of them signed as witnesses to his signature. The signature on Exhibit ‘B’ was not proved to be a forgery. It confirms that the Testator freely made Exhibit ‘B’ and he was entitled as of right to prepare his WILL in the manner that was suitable to him. The trial Judge rightly accepted the evidence of DW1 as credible. This is in line with the decision in the case of Ojo vs. Anibure (1998) 11 NWLR (Pt. 628) 630 relied upon by 1st – 3rd respondents counsel.”

“In Ojo vs. Anibure supra it was held that evidence that is relevant to issues before the court and that are not debunked or discredited in the course of cross-examination remain good and credible evidence which ought to be admitted and used by the court.I have deliberately considered the material evidence adduced by both parties in depth so that one would be in a better position to determine whether the learned trial Judge did a proper evaluation of the evidence placed before him. Which ever angle one approaches this case despite the procedure adopted it would be difficult to fault the finding of the learned trial Judge that Exhibit ‘B’ is the last WILL of the Testator having regard to the totality of the evidence adduced. All the irregularities which appellant alleged created suspicion as to the genuiness of Exhibit ‘B’ could not be substantiated. Appellant after burden of proof shifted on her failed to discharge same by proving affirmatively that the irregularities complained of affected the validity of Exhibit ‘B’. The submission of Appellant’s counsel on issue No 1 cannot hold water. It is therefore resolved against the appellant.”
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II. Whether or not the learned trial judge was not in error in preferring the evidence of DW2 to that of PW2 as he did and whether the evidence of DW2 could have the effect of validating the invalidities Manifested in Exhibit ‘B’ in this case?

RULING: IN RESPONDENT’S FAVOUR.
A. “The other aspect which needs to be considered is appellants’ contention that the trial Judge wrongly preferred the evidence of DW2 as against PW2. For purposes of emphasis it is necessary to note the reasons given by the learned trial Judge at page 183 lines 25 – page 184 lines 1 – 14 of the record. He said:- “But I shall now state my reason for preferring the report of DW2 and rejecting that of PW2. DW2 examined an original document while PW2 examined a photocopy. In his testimony PW2 said, and I quote him. “I have not seen where signatures are superimposed on documents but I have heard.” This testimony raises a grave doubt as to the correctness of report of a Handwriting analyst who examined a photocopy, when the original document was available. A Handwriting analyst must examine signatures on original documents before their reports can be of any probative value. A look at Exhibit G, the photocopy of Exhibit ‘B’ shows that the signatures on pages 1, 2, and 3 are not clear, page 4 on Exhibit ‘G’ is different from page 4 on Exhibit ‘B’. I must further observe that Exhibit ‘G’ has on its page 4 a faded stamp of certification that is barely legible. The title of the officer who certified the document is not stated Exhibit ‘G’ falls short of the provisions of S.111 (1) of the Evidence Act. It being a public document, since it is a legal document filed and deposited in court. See Section 123(1) of the Evidence Act. Finally PW2 stated on Oath that his report was counter signed by Mr. E. Kolawole, a document examiner, Mr. E. Kolawole was never called to give evidence. His signature is not identified. S.149 ( d) Evidence Act operates. In the circumstances I am satisfied that Exhibit ‘B’ was signed by Chief J.A. Alonge. I am satisfied with the report of DW2. I reject the Report prepared by PW2″. The learned trial Judge had the advantage of examining the documents in question and did made comparison. The assessment made by the learned trail Judge is in line with the decision of the Court of Appeal in U.T.B vs. Awanzigana Enterprises (1994) 6 NWLR (Pt. 348) 56. It was observed that a court is entitled to accept the evidence of an expert if it is credible particularly if it is not controverted or challenged and comes from an expert with demonstrable skill. It was further stated that the evidence of an expert is generally an aspect of the entire evidence to be evaluated by the court. The trial court must not abdicate its role to perform its primary duty in relation thereto including any expert evidence.”

B. “It is worthy to note that the report Exhibit ‘H’ prepared by PW2 the handwriting analyst called by Appellant was based on the photocopy of Exhibit ‘B’. As rightly observed by the learned trial Judge the signatures on Exhibit ‘G’ the photocopy of Exhibit ‘B’ are not legible particularly the one appearing on page 3. The original copy was available but PW2 chose not to use it. The document examiner who counter-signed the report Exhibit ‘H’ was not called as a witness and no other person was called to confirm his signature. The foundation of the report is shaky. There is no other piece of evidence which could support the evidence ofPW2. From all that have been said the quality of evidence adduced both oral and documentary entitles the learned trial Judge to accept the evidence of DW2 in preference to that of PW2. The argument of Appellants’ counsel that the evidence of DW2 is inadmissible cannot be sustained having regard to the circumstances of the case. The finding of the learned trial Judge that Exhibit ‘B’ was signed by Chief J.A. Alonge cannot be faulted.”

“On the whole I agree with Respondents counsel that the decision of the learned trial Judge is not perverse. The finding of the learned trial Judge that the WILL Exhibit ‘B’ was duly executed in accordance with the provisions of section 4 of the WILLS Law of Lagos State is supported by credible admissible evidence. As earlier stated the procedure adopted by the learned trial Judge did not occasion any miscarriage of justice as appellant has failed to justify her claim. Appellant failed to discharge the secondary onus of proving satisfactorily the allegations of irregularities which according to her rendered the WILL invalid. Exhibit ‘B’ cannot be viewed with suspicion because Appellant admitted that it was the only existing WILL deposited in Lagos and Benin Probate Registry, moreso as the disputed signature being the only fundamental irregularity complained of was not proved to be a forgery. In the circumstances I have no cause based on the evidence on record to disturb the findings of fact and the conclusion arrived at by the learned trial Judge in upholding Exhibit ‘B’ executed on 19/1/94 as valid and being the last existing WILL of the Testator, Chief Joshua Charles Ekome Alonge duly executed in accordance with S.4 (1) of the WILLS Law of Lagos State.”
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✓ DECISION:
“Consequently, on the totality of this appeal, I hold that same lacks merit. The Appeal is hereby dismissed. Accordingly the judgment of Rhodes-vivour J. of the High Court of Justice sitting in Lagos delivered on 10th day of May, 2003 in suit No. M/259/2001 is affirmed. N10,000= costs assessed in favour of Respondents.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Section 4 of the WILLS, Law Cap 194, Laws of Lagos State 1994 which states inter alia as follows:- “4(1) No WILL shall be valid unless:- (a) it is in writing (b) it is signed by the testator or signed in his name by some other person in his presence and by his direction in such place of the WILL so that it is apparent on the face of the WILL that Testator intended to give effect by the signature to the writing signed as his WILL. (c) the Testator makes or acknowledge the signature in the presence of at least two witnesses present at the same time. (d) the witnesses attest and subscribe of the WILL in the presence of the Testator but no form of attestation or publication shall be necessary.”

➥ REFERENCED (CASE)
⦿ PROPONENTS OF WILL HAS TO CLEAR THE COURT’S MIND OF SUSPICIOUS CIRCUMSTANCES FIRST
Adebajo v Adebajo (1973) All NLR 297 their Lordships of the apex court per Elias CJN took great care to define quite clearly where the Onus of proof lies in a probate action. At page 312 his Lordship held and laid the onus: “Squarely on the proponents of the will and examined their evidence and their witnesses with jealous scrutiny in order to ensure that all allegations about suspicious circumstances are considered in an attempt to clear the conscience of the court. It was only after satisfying himself that the defence has discharged this onus that the learned Chief Justice returned to examine the challenger’s evidence which he found insufficient to sustain the claim that the deceased did not at the time of making the will know and approve its contents.”

⦿ ONCE PROPOUNDER OF WILL PROVES REGULARITY, ONUS MOVES TO CHALLENGER
In Adam vs. Ikhano (1988) 4 NWLR (Pt. 89) 478 it was held that where there is a dispute as to the validity of a WILL, the primary onus of proof is on the party who propounds it to show clearly that prima facie it is duly executed. Once the primary onus is discharged, the secondary onus of proof of the allegation that the WILL is not properly executed or that it is tainted with fraud or forgery shifts unto the party challenging its proper execution to substantiate his allegations. See also Omorhirhi vs. Enatevwere (1988) 1 NWLR (Pt. 73) 476 and Okoli vs. 1st Bank (1986) 5 NWLR (Pt. 46) 1052.

⦿ DEMEANOR PLAYS LITTLE ROLE WHERE DOCUMENTARY EVIDENCE HAS BEEN ADMITTED
The Supreme Court in Ohijinle vs. Adeagbo (1988) 2 NWLR (Pt. 75) 238 held that where documentary evidence have been admitted in evidence, demeanour plays an insignificant if any role. The documents tendered in the case should be used as a hanger with which to assess oral testimony.

⦿ UNLESS DECISION IS PERVERSE, FINDING OF TRIAL COURT IS UPHELD
In Ebba vs. Ogodo (1984) 4 SC 372. The apex court had this to say:- “Unless the Court of Appeal finds that the decision is perverse, the Court of Appeal, whose opportunity is confined to printed record, is obliged to, and must accord to the finding of fact, by the trial court, the greatest weight and due respect.”

⦿ WHERE DISPUTE AS TO WILL, ONUS IS ON PROPOUNDER OF WILL
Amu v Amu (2007) 7 NWLR (Pt.663) 164. At page 164, 170-171, and 174 of the report Aderemi J.C.A (as he then was) said as follows:- “Where there is a dispute as to a will, those who propounded it must clearly show by evidence that, prima facie, all is in order, that is to say that there has been due execution and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, as to these matters, 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. That it is clear to me, must be their responsibility and nothing can relieve them of it; it is not only a rule of common sense but a rule of law, as appears from numerous authorities.”

➥ REFERENCED (OTHERS)