Miss Tutu Dawodu V. Mrs. Jokotade Isikalu & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, C.J.N.

This is an appeal against the judgment of the Court of Appeal Holden at Lagos in appeal No. CA/L/125/2008 delivered on the 7th day of September, 2011 which affirmed the decision of the High Court of Lagos State in suit No. ID/748/1993 delivered on 4th May, 2006.

The facts of the case, in a nutshell, are as follows: –

The respondents, as plaintiffs instituted the suit claiming that the subject property in dispute is family property originally belonging to their grandmother, one Madam Adeline O. Kasumu who died in 1955. In other words, both parties are the grand children of the said original owner.

On the other hand appellant, who was the defendant before the Court claimed sole or exclusive ownership of the subject property by virtue of the provisions of a Will purportedly made by their original grandmother in which she allegedly disinherited the father of the plaintiffs, now, respondents before this Court.

The reliefs claimed in the writ of summons are as follows:

“1. Whether the plaintiff’s father Mr. Adetokunbo

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Kasumu (deceased)) son of Madam Adeline O. Kasumu has any right which can devolve on his children. If the answer to the question above is in the affirmative,

i. A declaration that the plaintiff’s children of Mr. Adetokunbo Kasumu are joint owners of the property No. 19 lgbosere Road, Lagos registered in the name of Madam Adeline O. Kasumu as L02429 with the defendant.

ii. A declaration that the sublease dated 31st December, 1992 is valid and binding on all signatories to the agreement and any person or persons claiming through them.

2. Whether the defendant can claim (exclusion) of the plaintiffs the property of Madam Adeline O. Kasumu deceased situate at No. 19 lgbosere Road, Lagos and registered as L02429 Lagos.
3. Whether the plaintiffs who acting with the defendant’s deceased mother Mrs. Rosaline Adeola Bruce executed a valid sublease dated 31st December, 1992 for purpose of development of the property earlier mentioned.
4. Whether the defendant has power to avoid the agreement contracted by plaintiffs and her deceased mother with a third party.”

On the other hand, the defendants claimed, by way of counter claim, the following reliefs:

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“(i) A Declaration that plaintiffs have no rights, claims or ownership in the property situate and being at No. 19 Igbosere Road, Lagos.

(ii) A Declaration that the father of the plaintiffs ADETOKUNBOH (Deceased) having been disinherited by his mother from benefiting under his mother’s estate (MADAM ROSALINE ADELINE KASUMU) the plaintiffs are perpetually prohibited from enjoying any benefit therefrom.

(iii) The sum of (N2,500,000.00) TWO MILLION, FIVE HUNDRED THOUSAND NAIRA as damages for trespass and willful and malicious damage.

(iv) AN ORDER OF PERPETUAL INJUNCTION restraining the plaintiffs, their agents, servants, and privies from going to the res-in-dispute 19, Igbosere Road, Lagos for any business whatsoever, disturbing the defendant or threaten her with arrest by Law-Enforcement Agencies or doing anything on the said property that may be injurious or detrimental to the legal or equitable interest of the Defendant.”

The trial Court declared the said Will invalid resulting in the appeal to the lower Court which appeal was dismissed leading to the instant further appeal to this Court.

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The issues for determination, as formulated by learned counsel for appellant in the appellant brief settled by CHIEF BISI ADEGUNLE and filed on 27/11/20 13 are as follows: –

1. Both parties having agreed that Madam Adeline Kasumu made a Will, whether the appellant sufficiently propounded the Will, and that the Will is in the circumstances valid…
2. Whether the failure of the respondents to pay summons fees in respect of the reliefs for account, specific performance and for general damages endorsed on their Statement of Claim which were not claimed in the Originating Summons renders the process incompetent in so far as those reliefs are concerned or not…”

On the other hand, A.M. MAKINDE ESQ, of counsel for respondents formulated the following four issues in the respondents brief filed on 20/12/2013, as follows:-

“i. Whether the certified True Copy of the Will of Madam Adeline O. Kasumu admitted as Exhibit TD1 fulfilled the conditions set out for validity of a Will under Section 4 Wills Law of Lagos State, Cap W2 Laws of Lagos State of Nigeria

ii. On whom lies the burden of proving the validity of the will of Madam Adeline O. Kasumu upon which the

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appellant based her claim of sole ownership by virtue of her claim that respondents’ father had been disinherited under the Will.

iii. Whether the Court below failed to appreciate the fact that appellant was propounder of the will to have resulted in miscarriage of justice against the appellant

iv. Whether the respondent paid the appropriate filing fees as provided in the High Court of Lagos (increase of fees) Rules 13th December, 1991. Cited by the appellant.”

Both parties agree that Madam Adeline O. Kasunmu made a Will and same was tendered and admitted without objection as Exhibit TD1. Appellant’s contention is whether the Court of Appeal was not in error in faulting the Will on the basis that there are no two attesting witnesses.

Bisi Adegunle Esq, of counsel for appellant urged this Court to hold that the trial Court and the Court of Appeal were in error in holding that the Will was invalid.

The learned Counsel for appellant submitted, on the said Will that

(a) It was tendered through the respondent herein without objection.

(b) Both claimant and defence were united in their evidence that Madam Adeline O. Kasunmu made a Will

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(c) Exhibit TD1 was a certified true copy. It was handwritten, the sameness of the writing is of no significance in the circumstances.

(d) Allegations contained in the reply to the Statement of Defense was never proved.

In the circumstances, he urged this Court to resolve issue 1 in favour of the appellant

A.M. Makinde, Esq, learned Counsel for the respondents on his part argued in respect of issue No. 1 that the Will, though lodged, was not executed in accordance with the law and therefore invalid. He referred this Court to Section 4 Wills Law of Lagos State Cap W2 Laws of Lagos State of Nigeria which provides as follows:

“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 a place on the will so that it is apparent on the face of the Will that the testator intended to give effect by the signature of 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 the

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Will in the presence of the testator but no form of attestation or publication shall be necessary.”

The learned Counsel submitted that the above quoted provisions must be fulfilled/satisfied before a Will can become valid. He further submitted that the Court below properly evaluated the evidence placed before the trial Court as contained in the record of appeal before it concurred with the decision of the trial Court which declared Exhibit TD1 invalid. He finally submitted that the Court of Appeal rightly upheld the trial Court’s decision on this issue and further relied on the case of Okelola vs Boyle (1998) 1 SCNI 63 cited by the appellant

Upon the review of the submission of learned Counsel together with the proceeding at the trial Court, statutory provisions and decided cases cited in arguments, it is very clear that issue No. 1 is the pivot of the appeal and indeed the threshold of the case at the trial Court. It is for this reason that I consider, at great length, the argument on the validity or otherwise of the Will exhibit TD1.

By the provisions of Section 1 of the Wills Law of Lagos State:

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“It shall be lawful for every person to bequeath or dispose by his will executed in accordance with the provisions of this law, all property by which he is entitled to either in law or equity, or at the time of his death.”

This means that a person who desires to make a Will must satisfy the requirements of law for the Will to be valid, else it will be invalid.

The burden, however, for the proof of validity of a document (will), the genuiness or authenticity thereof lies on the person propounding it and once this is satisfied, the burden is cast upon those attacking it: see ITA v. DADZIE (2000) 4 NWLR pt. 652 page 168.

In the instant case, the respondents have made a claim in respect of their entitlements pertaining to the property on the ground that it is family property – the subject matter covered by exhibit TD1.

Appellant denied the entitlement and asserted that there was no such entitlement, as there was a Will which had bequeathed the said property to her mother solely and with her mother’s death, she was now a sole beneficiary. It is therefore a case of communal (family) ownership against personal/individual ownership of property.

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Respondents therefore denied the validity of the Will, exhibit TD1, while appellant said it was valid.

It is trite law that for a will or testamentary intention of a deceased person which ought to be respected, to be given effect to, there must be absolute compliance with the requirements of the Wills law. The provisions of the Wills Law, as in all laws, where they are clear and unambiguous, must be given their ordinary and literal meaning: SeeAttorney General of the Federation v. The Guardian Newspaper (1999) 1 NWLR (part 618) at 187 in the case aforesaid, IGUH, JSC at page 264 had this to say:

“And where the words used or the provisions of any section of 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.”

Now, exhibit TD1 under consideration fell short of the mandatory minimum of two (2) required subscribing witnesses as required by Section 4 (1) of the Wills Law Cap 194 Laws of Lagos State 2003. This short fall of subscribing witnesses was also confirmed by the testimony of the defendant, now appellant herein, at the trial that the Will was

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neither signed by the testator nor executed by the attesting witnesses (see page 149 of the record – first 3 lines thereof).

Based on the above reasons, I agree completely with the argument of the learned Counsel for respondents and rely on Section 4 (1) (b) of the Wills Law of Lagos State and Okelola vs Boyle Supra in coming to the conclusion that the said Will is invalid for want of due execution. Issue No. 1 is therefore answered in the negative and in favour of the respondents.

On the issue 2, which is:

“Whether the failure of the respondents to pay summons fees in respect of the reliefs for account, specific performance and for general damages endorsed in the Statement of Claim which were not claimed in the Originating Summons with which the matter was originally commenced renders the process incompetent so far as the reliefs are concerned.”

Learned counsel for appellant had argued that a Statement of Claim having been filed upon the order of Court in respect of Originating Summons, there is a legal imperative to pay the filing fee on all the heads of claim even though the summons had been earlier paid for; that the payment of the

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summons fee of N100.00 was not appropriate/adequate.

The learned Counsel for appellant further argued that the action filed in 1993 should have been assessed pursuant to the 1991 Rules. He relied on the case of Okolo vs. UBN Ltd (2004) 3 NWLR (pt. 859) 97 and urged the Court to resolve the issue in appellant’s favour.

In reply, A.M. Makinde Esq of Counsel for the respondents submitted that under the High Court of Lagos State (Increase of Fees) Rules of 13th December, 1991 cited and relied upon by the appellant, the respondents paid appropriate fees, referring the Court to item 5 of the Rules which provides that the sum of N5.00 is payable for filing of Statement of Claim while under Item 4 the sum of N20.00 each is payable for specific performance, account, and general damages respectively and that respondents paid a total sum of N60.00 under the High Court of Lagos State (Increase of Fees) Rules.

Counsel further submitted that from the endorsement on the respondents Statement of Claim at page 60 of the record the payment made was N100,00 which is more than the total sum of N60.00 payable for the 3 Heads of claim complained of by the appellant.

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Learned counsel further submitted that the facts of this case is clear and distinguishable from the facts in the case of Okolo V. UBN Ltd. Supra where he refered this Court to the maxim OMNIA RITE ESSE PRESUMPTOR RITA ACTA, i.e. there is presumption of regularity in respect of official deeds or actions; that appellant has not identified what amounts were payable by the respondents which were not paid under the rules. He finally urged this Court to resolve these issues against the appellant.

I have perused the arguments of the respective counsel on this issue relating to payment of the statutory fees. I have also perused the record of appeal and observed that the Statement of Claim was filed on 9th December, 1993 and the payment of sums of money and its endorsement are indicated thereon.

That being the case, I agree with the learned respondents’ counsel submissions that appropriate filing fees were paid for the processes. Granted without conceding that the amount paid was lower than what was required, the appropriate order is for the respondents to make up the balance of the filing fees – which unfortunately learned counsel for appellant has failed to state.

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In the circumstance, it is my considered view that issue 2 lacks merit and should and is hereby resolved against appellant.

In conclusion, having resolved all the issues against appellant and in favour of the respondents, I hold that the appeal lacks merit. It is accordingly dismissed and the Judgment of the trial Court and that of Court of Appeal are accordingly affirmed with N500,000 costs against the appellant in favour of the respondents.

Appeal dismissed.

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SC.142/2012