Felix Uwanugo Igboidu V. Morrisson Nduka O. Igboidu & Ors (1998)
LawGlobal-Hub Lead Judgment Report
ROWLAND, J.C.A.
The appellant was the plaintiff while the respondents were the defendants at the High Court of Justice of Delta State holden at Agbor in suit No. AG/65/91.
The plaintiff in the court below claimed against the defendants in his amended statement of claim the following reliefs:-
“(a) To set aside the Will purportedly made by late Christian Ighoidu on the ground or irregularity on the face of the said Will.
(b) To set aside the Will purportedly made on the 1st May, 1980 because it will work injustice to the children when the provisions are implemented.
(c) To set aside the Will so as to re-distribute the assets which are assigned to the non-children purportedly horn by late Christian Igboidu.”
Pleadings were ordered, filed and exchanged. The case then proceeded to trial, After reviewing the evidence adduced by both parties, the learned trial Judge in a reserved judgment said:-
“1. The Will Exhibit ‘A’ is valid and unimpeachable with a small rider that the Well in the family compound goes with the family com- pound. It docs not belong to the 1st defendant exclusively but to all the 12 beneficiaries in Exhibit ‘A’ including the plaintiff. The Will here is admitted to probate.
- The second defendant or his next of kin in law is entitled to his bequeath in Exhibit ‘A’.
- The claim for special damages to the tune of N25.250.00 by the 1st defendant is hereby dismissed so is the claim for general damages to the tune of N24,750.00 because the 1st defendant did not strictly prove it and also because the plaintiff is entitled to the defence of bona fide claim of right in law.
- The merit of the case vindicates the 1st defendant. He is not liable to pay the N100.00 undertaking he signed should his counter-claim fail because the failure here is not on its merit.”
The plaintiff was dissatisfied with the decision of the court below and consequently appealed to this court. The notice of appeal contains three grounds.
They read as follows:-
“(i) The learned trial Judge grossly erred in law when he held erroneously that the Will dated 1st May, 1980 is valid and yet proceeded to modify the Will Exhibit A contrary to the intention of the testator.
Particulars of errors:
“The Will Exhibit A is valid (with slight modifications). The Well in the family compound by law is attached to the land and it goes with the land …
The Will Exhibit A is valid and unimpeachable with a small rider that the Well in the family compound goes with the family compound.
It does not belong to the 1st defendant exclusively but to all the 12 beneficiaries in Exhibit A including the plaintiff.
… it is in my opinion that the inconveniences the gift of the Well entail is patent. It is likely to cause disaffection, conflict and quarrel.
(ii) The learned trial Judge erred in law when he without valid authority admitted the Will Exhibit A to probate quite contrary to the laid down procedures of admission of Exhibit A to probate and thus in gross violation of statutory provisions regarding the admission of Exhibit A to probate.
The Will Exhibit A can only be admitted to probate without modifications to reflect the intention of the testator.
Particulars of errors: The Will here is admitted to probate.’
(iii) The learned trial Judge grossly erred in law when he held the erroneous view that 1st defendant without leave of court represented himself and the other 10 defendants. The Judge’s erroneous view contradicts evidence of 1st defendant i.e. D.W.2.
Particulars of errors:
‘The issue that all the defendants did not show up at the trial goes against the plaintiff, it is evidence that they all agreed with the Will and the testimony of the 1st defendant who represented them all and the counsel. It also shows the centererous nature or position the plaintiff is viewed in the family.’
It is pertinent to mention at this juncture that on 28/7/93 the defendants filed a joint statement of defence. The 1st defendant included a counter-claim of N50,000.00 being special and general damages for trespass into a 12 acre palm plantation devised to him by the testator against the plaintiff. On 1/10/93 as borne by the record, the plaintiff filed a reply to the 1st defendant’s counter-claim. The 1st defendant to protect the res of his counter-claim filed a motion for an order of interlocutory injunction on 7/4/93 to restrain the plaintiff, his servants, agents, privies and blood relations from continuing with the act of trespass on the said palm plantation pending the determination of this suit al the court below.
On 25/6/93 the 1st defendant’s motion was granted as prayed by Akoro, J. permitting the plaintiff to harvest his seasonal crops pending the determination of this suit at the lower court. The 1st defendant was also made to sign an undertaking to pay the plaintiff N100.00 damages should his substantive counter-claim fails. The facts of the case are simple and straightforward. As borne by the record, the testator late Christian Igboidu died on 28/8/90. He made a will on 1/5/80 and appointed one Mr. John Ojeah of Ogbeagidi village who predeceased him and one Peter Ojeah the 1st plaintiff witness (P.W.1) as executors. P.W.1 lives in Lagos, at No. 11 Oroki Street, Coker village, Orile Iganmu. Lagos State. In November 1990 a lawyer Chief G. S. Ebeagwu sent a message to him in Lagos to come to Benin High Court Probate Registry where a Will deposited there by the testator in which he is the surviving executor is to be proved. P.W.1 complied. It was at Benin. when the Will was being read, that he knew for the first time of the existence or a Will deposited at the Probate Registry by the testator and that he is the surviving executor of the Will.
The registrar after reading the will told him his functions. The plaintiff then told P.W.1 not to carry out his duties therein as he would challenge the validity of the Will at the court, so P.W. 1 did nothing and had to return to Lagos.
The plaintiff thereafter challenged the Will on a number of grounds in the court below and as I have said above, the decision of the lower court did not favour him and consequently he appealed to this court.
From the grounds of appeal the plaintiff/appellant raised three issues for determination. They read:
“(i) Whether the learned trial Judge was right when he held that the Will – Exhibit A dated 1st May, 1980 was valid, yet the same learned trial Judge proceeded to modify the Will Exhibit A dated 1st May. 1980 contrary to the intention or the testator.
(ii) Whether the learned trial Judge’s decision was right when contrary to the laid down procedures he admitted Exhibit A to probate,
(iii) Whether the learned trial Judge was right when he held the view that 1st defendant without the leave of court represented himself and the other 10 defendants who never attended court to give evidence and the joint statement of defence filed by 1st defendant was without authority and no leave of court was obtained.”
The defendants/respondents formulated the following five issues for determination.
They read:-
“1. Whether from the plaintiffs evidence in the lower court, this honourable Court of Appeal can say the plaintiff has proved his case and if so, whether irregularity, injustice and fair play are good grounds for setting aside a Will properly executed by a testator and in this case Exhibit ‘A’ made on the 1st day of May, 1980 by the appellant’s late father.
- Whether the slight modification by the learned trial Judge invalidates the Will Exhibit ‘A’ dated 1st May, 1980.
- Whether the evidence of P.W. 2 and P.W.3 in the plaintiffs case were carefully considered by the learned trial Judge.
- Whether the non-appearance of the 2nd to 11th defendants/respondents in a civil case affect the decision of the trial Judge where the defendants/respondents were represented by one counsel and they jointly filed statement of defence; and
- Whether the defence of the defendants/respondents was adequately considered by the trial Judge.”
I regard the five issues formulated in the respondents’ brief from three grounds of appeal not to be within the intendment of the rules or this court. The five issues formulated by the respondents amount to proliferation or issues. It seems to me that the essence of the formulation of issues for determination in an appeal is to narrow the relevant points in issue. Since the issues must arise from the grounds of appeal, they are meant to encompass all the grounds. Thus, a single issue should contain the points raised in one or more grounds of appeal, that is, a number of grounds may raise a single issue and not the reverse, See Leedo Presidential Hotel Ltd. v. Bank of the North Ltd. & Anor. (1993) 1 NWLR (Pt.269) 334. Issues for determination in any appeal must have direct bearing on the grounds of appeal. They are to project succinctly and clearly the substance of the complaint contained in the grounds of appeal requiring resolution, See Aja v. Okoro (1991) 7 NWLR (Pt.203) 260 at 273; A.G. Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Ogbuunyinya v. Okuda (1990) 4 NWLR (Pt.146) 551; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546.
It is absolutely wrong for an appellant or a respondent to formulate more issues than the grounds of appeal. See Madagwa v. State (1988) 5 NWLR (Pt.92) 60: Agberoba v. J.S.E.C. (1991) 4 NWLR (Pt. 188) 664. Thus, in my view, the brief of the respondents is defective in form, but be that as it may. I will still consider it in the interest of justice for the purpose of this appeal. I am also mindful of the fact that a defective and inelegant brief is still a brief that should be considered for what it is worth. See Akpan v. State (1992) 6 NWLR (PI.248) 439;Obiora v. Osele (1989) 1 NWLR (Pt.97) 279 at 300.In the light of the foregoing, I shall treat this appeal in accordance with the issues formulated by the appellant as the said issues tend to project succinctly and clearly the substance of the complaint contained in the grounds of appeal.
On issue No. (i). it was submitted for the appellant that the learned trial Judge was in grave error when he modified Exhibit ‘A’ made by the testator – Christian Igboidu on 1st May, 1980. It was contended that the modification of Exhibit ‘A’ by the learned trial Judge amounted to the alteration of Exhibit ‘A’. It was submitted that section 18 of the Wills Law Cap. 172 of the 1976 Laws of the former Bendel State applicable to Delta State of Nigeria provides for the procedure which a testator should follow when he wishes to alter his will. It was argued that the learned trial Judge by modifying paragraphs 7 of Exhibit ‘A’ has substantially altered Exhibit ‘A’ contrary to the intention of the testator who is the author of it. It was submitted that by the non-compliance with the provision of section 18 of the Wills Law the learned trial Judge did create a miscarriage of justice by not setting aside Exhibit ‘A’. Issue No. (i) in the appellant’s brief is issue No.2 in the respondents’ brief. It was submitted for the respondents that the learned trial Judge properly considered the provision of paragraph 7 of Exhibit ‘A’ where the trial Judge applied the law to the intention of the testator.
It was contended that the Well in the family house should form part of the house devised to all the children of the testator. It was submitted that the first defendant/respondent had no objection allowing the Well to be part of the house in the interest of the family and because he is also one of the owners of the house.
At page 100 lines 22 to 32 of the record, the learned trial Judge had this to say in pan of his judgment:-
“The Will Exhibit ‘A’ is valid (with slight modification). The Well in the family compound by law is attached to the land and it goes with the land. The Well forms part of the family house devised to all the beneficiaries including the plaintiff. It docs not belong to the 1st defendant exclusively. It belongs to all the twelve (12) children of the testator. That is the intention of the testator and I so hold. He wants his children to remain together and united. The family compound is the symbol of unity.”
In view of the above statement of the learned trial Judge, I consider it germane to quote the provisions of section 3(1) of Wills Law Cap. 172 of Laws of the Bendel State of Nigeria, 1976.
“3(1) Subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator.”
Thus, a testator is at liberty to dispose of his properties both real and personal estate the way he likes under section 3 of Wills Law of Bendel State applicable in Delta State of Nigeria.
In the ease of Timothy Adesubokan v. Razaki Yenusa (1971) 1 All NLR 225.
the Supreme Court held that “a testator is perfectly entitled to dispose of his real and personal estate as he likes”.
Thus from the provisions of section 3 of Will Law Cap. 172 of Bendel State of Nigeria which is the same thing as section 3 of Will Act IS37 and the statement of the Supreme Court in Yenusa’s case above, I hold the view that the learned trial Judge is wrong to have modified the Will of the testator in respect of the Well in the family compound. The Will – Exhibit ‘A’ should be allowed to speak in the way it was made and should not be modified to suit an imaginary intention of the testator by the trial court.
The next issue for consideration is issue (ii) in the appellant’s brief.
It was submitted fur the appellant that the learned trial Judge was in error when contrary to the procedure laid down in Order 49 rule 6 of the High Court (Civil Procedure) Rules 1995 of former Bendel State applicable to Delta State of Nigeria he admitted to probable Exhibit ‘A’. It was submitted that the testator appointed P.W.1 as an executor. P.W. 1 was present when Exhibit ‘A’ was read at the Probate Registry in Benin City; P.W. 1 without adducing cogent reasons failed to admit Exhibit ‘A’ to probate. It was further submitted that the learned trial Judge did not take into consideration the evidence of P.W. 5 who testified that since P.W.1 had not performed his duly. Exhibit ‘A’ had not been admitted to probate. It was contended that it is the primary duty or P. W. 1, the executor who survived the testator to apply to admit Exhibit’ A’ to Probate and consequently when the Exhibit ‘A’ had been admitted to Probate, P.W. I would in accordance with his powers put each beneficiary into possession in accordance with the provisions of Exhibit’ A’. It is the contention of the appellant that Exhibit’ A’ is still ambulatory because the proper procedure had not been followed to admit it to Probate.
For the respondents. it was submitted that a Will can only be set aside on grounds of fraud, mental incapacity of the testator or undue influence on the testator.
It is the complaint of the appellant that Exhibit ‘A’ has not been admitted to probate. This is a crucial requirement (see Halsbury’s Laws of England, 3rd Edition Volume 39 Articles 1225) where it is stated that to confer title of property to donee of a Will the following conditions must obtain:-
- The testator must have died.
- The Wills or letter of administration must be admitted to Probate.
It is common ground that the maker of Exhibit ‘A’ – the Will in dispute is dead.
It seems to me that on the reading of Exhibit’ A’ at the Probate Registry in 1991 by the principal Probate Registrar the Will had come into operation. It is no longer ambulatory. P.W.1 could have legitimately carried out his duties as explained to him by the Principal Probate Registrar rather than 1isten to the threat of the plaintiff/appellant that he would challenge the Will and he (P.W.1) thereafter returned to Lagos. The evidence of D. W.1 as borne by the record is that it was P.W. 1 that applied to Probate after he had taken date for the reading of the Will.
From the posture of the appellant as can be gleaned from the record, it is not in doubt that he wants to employ the aid of legal technicalities to obliterate the Will – Exhibit ‘A’. Having said that, I am not in doubt that Exhibit ‘A’ was admitted to Probate despite the evasiveness of the appellant.
The last issue for consideration is issue No. (iii) which is issue No. IV in the respondents’ brief. It was submitted for the appellant that the 1st defendant/respondent and the 3rd-11th defendants/respondents were served with the writ of summons, statement of claim and other processes of court connected with the appellant’s case at the lower court. It was further submitted that the 1st defendant/appellant who is D.W. 2 did not give any evidence which portray that he represented himself and ten other defendants who never attended court to defend the action against them. It is the contention of the appellant that the learned trial Judge’s view that D.W. 2 represented himself and 10 other defendants conflicts with the High Court (Civil Procedure) Rules which provides specifically that a party who wishes to sue or defend in a representative capacity must obtain the leave of court. It was submitted that the joint statement of defence which included 2nd defendant was without his authority and therefore invalid.
For the respondents, it was submitted that the non-appearance of 2nd to 11th defendants/respondents at the lower court was immaterial. It was further submitted that where parties are represented by one counsel and all jointly filed statement of defence, the appearance of all the parties is not mandatory. Reference was made to Order 13 rule 4 High Court (Civil Procedure) Rules, 1988. It was contended that the testator informed the plaintiff/appellant of the existence of 2nd defendant/respondent before his death and the appellant found him at Ubulu-Uku when he went to serve him his writ of summons which the 2nd defendant/respondent refused to accept. It was argued that the non appearance or other defendants/respondents was an indication that they agreed with the provisions of Exhibit ‘A’ and permitted the 1st defendant/respondent to represent them in this suit.
My simple answer to the complaint of the appellant which is the subject of issue (iii) is the case of Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587 at 600, where the Supreme Court held that failure to obtain leave to sue or defend in a representative capacity does not vitiate the validity of the action.
It must he noted that it is manifest from the record that the plaintiff/appellant did not raise issue of non-appearance and or 1st defendant not seeking leave to represent other defendants in the lower court. He cannot do so now without the leave of this court.
For the purpose of completeness, it seems to me that the plaintiff/appellant had failed to prove at the court below as manifested by the record, his allegation of irregularity, injustice and fair play of Exhibit ‘A’. He alleged he was not given a large portion of his late father’s estate than his brothers and as a result, the Will Exhibit ‘A’ should be set aside to enable the family of Ilabor in Ighodo share the Estate in accordance with their customary law. I hold the view that this is no reason to set aside the Will. A Will can only be set aside on grounds of fraud, mental incapacity of the testator or undue influence on the testator. In the absence of any of these factors, a testator is at liberty to dispose of his properties both real and personal Estate the way he likes under section 3 of Wills Act 1837 which is one and the same thing as section 3(1) of the Wills Law Cap. 172 of the Laws of the Bendel State of Nigeria, 1976 applicable in Delta State. See Johnson v. Akinola Maja (1951) 13 WACA 290.In the light of the foregoing, this appeal must fail and I accordingly dismiss it. The judgment of the lower court excluding the order modifying the will in respect of the well in Exhibit ‘A’ is affirmed.
For the avoidance of any doubt. I uphold the will of late Christian O. Igboidu made on the 1st May, 1980 in toto.
Because of the nature of this case. I make no order as to costs.
Other Citations: (1998)LCN/0411(CA)
