Chief Eyo Edem Nsefik & Ors. V. Roesmary Muna & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A.
This is an interlocutory appeal against the decision of Rhodes-Vivour, J. (as he then was) delivered on 26th day of February, 2001 dismissing the plaintiffs application praying for the defendants to lead evidence but ordered that it was the plaintiff and not the defendants who should first open his case.
The plaintiff was unhappy with the decision and feeling aggrieved appealed to this court on three grounds of appeal. In compliance with the provisions of Order 6 of the Court of Appeal Rules, 2002, briefs of argument were duly exchanged and were settled at the appellants, respondents’ and appellants’ reply briefs.
At the hearing of appeal, learned counsel for plaintiffs (hereinafter referred to as appellants) adopted and placed reliance on the appellants’ and appellants reply briefs. On the other hand, learned counsel for defendants (hereinafter referred to as respondents) equally adopted and relied on the respondents’ brief of argument.
For a better understanding and appreciation of the case a succinct narration of the facts will be pertinent.
The writ of summons issued out by the plaintiff was endorsed as follows:
“The plaintiffs, claim is as the lawful husband and one of the persons entitled in the event of an intestacy to share in the estate of Mrs. Teresa Ekpenyong Nsefik (Nee Ekpenyong Eyo) late of 18, St. Gregory Road, Eko Akete close, South West Ikoyi, Lagos, Lagos State who died on 12th March 1989 to have probate of a pretended will of the deceased dated 6th July 1988 granted on 24th October 1989 revoked and the said will pronounced against and to have a grant of letters of administration of the estate of the said deceased.”(underlining mine).
The plaintiffs, prayed as per their amended statement of claim as follows:
“(a) That the Court shall revoke the said grant of probate and pronounce against the force and validity of the said will.
(b) Declaration that the said deceased died intestate.”
The defendants, who are incidentally respondents in this appeal, filed their statement of defence along with a counter claim wherein they counter-claimed as follows:
“And the defendants’ claim:-
(1) That the court shall pronounce in solemn form for the true last will of the deceased dated 6th July, 1988 and propounded by the 2nd and 3rd defendants.
(2) For the alternative, that the court do pronounce in solemn form of law for one of the said prior wills.”
The learned trial judge after taking argument as to the party on whom the burden of proof laid, in a reserved and well considered ruling found, inter alias as follows:
“In the instance case the plaintiff challenged the will that has already been admitted to probate. That is to say the will has been proved to be valid.
Surely the burden is on the plaintiff to prove that a will already admitted to probate is not valid.
The proper party to begin is the party on whom the onus lies at the close of pleadings and in this case it is the plaintiff… ”
On the defendants’ counter-claim learned trial judge concluded thus:-
“The defendants have a counter-claim wherein they claim –
“1. That the court shall pronounce in solemn form for the true last will of the deceased dated 6/7/88 and propounded by the 2nd and 3rd defendants.
- For the alternative, that the court does pronounce in solemn form of law for one of the said prior wills.”
The Plaintiffs filed a defence to the counter claim. It is trite law that a counter-claim is a procedure in law which allows the defendant to maintain an action against the plaintiff provided the counter-claim is directly related to the principal claim but not when the counter-claim is outside of and independent of the subject matter. See N.P.A. v. G.G.F.C. (1974) 12 SC 81. The burden of proof in the counter-claim rests on the defendants.
Sections 135 and 136 Evidence Act is clear.”
The defendants did not cross appeal against the order made in respect of their own counter-claim. They apparently accepted that the burden of proof of their counter-claim lies squarely on them. The decision that the burden of proving the counter-claim rests squarely on the defendants, therefore, subsists.
Learned counsel for appellants, in the appellants’ brief, read order 33 rules 11 and 12 of the Lagos State High Court (Civil Procedure Rules) 1994 and contended that learned trial judge accepted the rules as being relevant and applicable to the determination of the case. Learned Counsel for appellants further contended that while His Lordship held that the burden is thrown on the appellants, he submitted that the learned trial judge could not be right in the circumstances of this case. Learned Counsel for appellants, Akesode, then juxtaposed the case of both parties before citing the cases of Babafunke Johnson v. Akinola Maja 13 WACA 290,291; Adebajo v. Adebajo (1973) 1 All NLR 297,312; Smee and others v. Smee and The Corp. of Brighton (1879) P.D. 84 at 91; Hewitt v. Hewitt 1948 P.D. 150, 156 and Banks Vs. Goodfellow (1870) L.R. 5 Q.B. 549.
It is manifest from the pleadings that the appellants are challenging the validity of the will on the account that it was not properly executed, that at the time of execution the testator did not know and approve of its contents, in that she was not of sound physical condition, mind, memory and understanding. On the other hand, it is evident from respondents’ plea that the will propounded by the second and third respondents was validly and legally made by the testator and wills duly executed in accordance with the Wills Act, 1937 and that contrary to the plaintiffs’ pleadings the testator, at the time of giving instruction to her solicitor and at the time of executing the said will, was of sound mind, memory and understanding and approved the contents of the will.
The objection or objections of appellants are questioning due execution, soundness of mind or lack of capacity to make the will by the testator. While the respondents contend that the will was properly and duly executed.
It is settled law that the burden of proof rests with the party who asserts the positive and not on one who affirms the negative. The maxim “he who asserts must prove” operates thus:
“A man cannot be expected to prove a negative assertion.
The Latin saying sums up the matter as follows:-
Eiineumbit probatio qui licit non qui negat; cum per naturam factum negants probitio nulla sit.
Meaning: “the proof lies upon him who affirms, not upon him who denies since, by the nature of things he who denies a fact cannot produce any proof.”
See sections 135 and 136 of the Evidence Act, Cap 112 of the Laws of the Federation of Nigeria, 1990 which provide as follows:
“134(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
In a civil proceeding, it is settled law that the burden of proof lies squarely on the plaintiff. See Abiodun & Others v. Adehin (1962)1 All NLR 550. In Tewogbade & Co. v. Arasi Akande & Co (1968) NMLR 404 it was held that the onus of proof is not static it shifts from side to side.
The burden of proof lies, in a civil case, on the party who would fail, assuming no evidence had been adduced on either side. Moreover, in respect of particular facts, the burden rests on the person against whom judgment would be delivered if no evidence were produced in respect of those facts. See also Are v. Adisa (1967) NMLR 304 and Osawaru v. Ezeiruka (1978) 6-7 SC 145.
Order 33 rules 11 and 12 of the High Court of Lagos State (Civil Procedure) Rules is consistent with the Principle formulated under the Evidence Act, Cap 112. Order 33 rules 11 and 12 provide as follows:
“11. The order of proceeding at the trial of a cause where pleadings have been filed shall be as prescribed in the following rules.
- The parties on whom the burden of proof is thrown by the nature of the material issues or questions between the parties, according as the court may determine shall begin. He shall state his case.”
It is trite in civil cases that the party who asserts must prove but the rule operates in probate cases in reverse, therefore, the person propounding the will have in addition to the onus of proving due execution as well as testamentary capacity. The onus always lies on the propounder of a will to satisfy the court that the document is the last will of a free and capable testator. This refers only to the first stage, for the burden of proof never remain static but shifts. Where the will is disputed, those who apply to the registrar of probate for grant of probate have initial evidential burden to establish prima facie that there has been due execution and that the testator has the mental capacity and was a free agent. Once the propounders of the will have prima facie satisfied the court as to the question of due execution and that the testator, being free and capable, the burden of leading evidence is cast on the people assailing the instrument. It devolves on them to show by admissible and credible evidence the onslaught they have directed at the will in the nature of want of capacity, undue execution and undue influence on the testator.
The learned trial judge neither misconstrued the issue nor misdirected himself, contrary to the postulation of the learned counsel for appellants. It was application of this well settled principle of law that informed the decision of the learned trial judge to place on the respondents the burden to begin or open their case against the appellants in respect of their counter claim. This is founded on the principle that a counter-claim is a procedure in law which enables the defendant to maintain an action against the plaintiff provided the counter-claim directly flows from the principal claim but not when the counter-claim is independent or unrelated to the plaintiffs claim. In such circumstance, the defendant’s counter-claim is regarded as a cross action in which the defendant is the plaintiff and the plaintiff is the defendant thereto. See N.P.A. Vs. G.G.F.C. (1974) 12 SC 81, U.B.A v. Sambam Petroleum Ltd (2002) 16 NWLR (Pt 793) 361 Emaphil Ltd vs. Odili (1987) 4 NWLR (pt 67) 915 and Bullen and Leake and Jacobs on Precedent of Pleadings 12th Edition page 102.
Not only the respondents herein are defendants to the plaintiffs claim. They are also propounding the will set out in their counter-claim. In such circumstance, the burden of proof rests on party propounding the will. The will is being propounded when application is lodged with registrar of probate for the grant of probate, that is to say when the executors apply for a grant of probate of a will. It is during the pendency of the application for grant of probate at the probate registry of the court, when there is a dispute as to the will that those who propound it must manifestly establish by evidence prima facie that there has been due execution and that the testator had the necessary capacity and was a free and capable testator. This is the only time the defendants have the burden of proof and duty of commencing the trial.
The same principle no longer avail the appellants’ claim in view of the different consideration introduced into the matter by the respondents that the will had been admitted to probate. On the respondents’ contention that probate was granted, the respondents herein as the defendants in the court below were not propounding the will in respect of which probate had been granted. The appellants who were therefore in court to seek the revocation of the will which had been admitted to probate must establish their case. In the instant case, on the 24th October, 1989, the acting probate registrar of the Lagos High Court having sent out notices and read the will to the parties in this appeal, three months thereafter granted the administration of the real and personal estate of Mrs. Teresa Ekpenyong Nsefik to John Effion Asuquo and William Ene-Eyo Asuquo without a caveat having been entered in form 3, pursuance of Order 58 rule 77(2)-(4) of the High Court of Lagos (Civil Procedure) Rules, 1994; rule 4 thereof reads as follows:
“(4) Except as otherwise provided by this rule, a caveat shall remain in force for three months from the date on which it is entered and shall then cease to have effect without prejudice to the entry of further caveat or caveats.”
As soon as probate was granted the will is valid by the judicial act and the onus of proof shifts to the attackers of the will. In Johnson & Anor v. Maja & Ors 13 WACA 290, 292 the erstwhile West African Court of Appeal per Lewey J.A recited with approval the dictum of the Lord Chancellor in Beyse v Rossborough 10 ER in 1211 where he observed as follows: –
“One point, however, is beyond dispute, and that is that where once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under influence is on the party who alleges it.”
The cases of Johnson & Anor vs Maja & others (supra) and Adebajo vs. Adebajo (supra) are inapplicable to the circumstances or this case. In either cases, the respective wills were propounded and before probate was granted in each case caveat was entered. Probate not having been granted the defendants therein were called upon to begin the trial by calling their witness or witnesses. The case of Hewitt vs. Hewitt (supra) also cited in the appellants’ brief is not helpful. It is indeed irrelevant. It is a case of restitution of conjugal rights under the Matrimonial Causes Act. The will in Bank Vs. Goodfollow (1861-73) All E.R. 47, 55 is a matter in which probate had not been granted. The will was challenged not on ground of incapacity but on account of lack of knowledge and approval of the contestant of the will. Sir Alexander Cockburn, C.J., held inter alias as follows-
“For these reasons the power of disposing of property in anticipation of death has ever been regarded as one of the most valuable of the rights incidental to property ….. The law in every country has therefore, conceded to the owner of property the right of disposing by will…”
The only issue framed in the appellants’ brief on behalf of appellants which reads as follows:
“Upon whom, as between the plaintiffs and the defendants is the burden of proof thrown by the nature of the material issues between them” is resolved against them. The nature of appellants claim places the burden of proof on the appellants who failed to discharge same. The appeal therefore fails and is dismissed. The decision of the learned trial judge is affirmed. There is order as to costs which I assess at N10,000.00 in favour of the respondents.
Other Citations: (2007)LCN/2274(CA)
