Morayo Odunewu V. Risikat Martins & Ors (2010)

LawGlobal-Hub Lead Judgment Report

BODE RHODES-VIVOUR, J.C.A.

The appellant as plaintiff sued the respondents on an amended Writ of summons and amended Statement of Claim:-
(a) That the court shall pronounce for the force and validity of the said will in Solemn form of Law (i.e. the last Will and Testament of Alhaji Abdul Fatai Adio odunewu who died on 30th October, 1990.)
(b) Removal of the caveat by the first defendants.
(c) An order compelling the Probate Registrar, High Court.
Lagos State to issue a grant of Probate for the administration of the Estate of the late Alhaji Abdul Adio Odunewu to the plaintiff.

The 1st to 5th respondents filed a statement of defence. The 6th respondent did not file a statement of defence and did not take part in the trial.
Seven witnesses testified for the plaintiff and the plaintiff was one of them, while the 2nd respondent and two others testified for the defence. Ten documents were admitted as Exhibits.
The facts are refreshingly clear.
Alhaji Abudul Fatai Adio Odunewu had two wives. The plaintiff was one of them. The 1st to the 4th respondents are the children of the other wife. It is alleged but not in issue in this case that Alhaji Odunewu denied paternity of the 5th respondent.

On the 30th day of October, 1990 Alhaji Abdul Fatai Adio Odunewu died. The plaintiff claimed to be the Sole Trustee and Executrix named in her late husbands Will.
The 1st to 5th respondents averred that the Will is a forgery as the signature on it is not the signature of the deceased. Silva J. (as he then was) agreed with the respondents, and in a well considered judgment delivered on the 25th of February, 1998 observed in the penultimate paragraph as follows:-
“In the result, I find it difficult to hold that the Will (Exhibit 3 and 5) said to have been made on 23rd June, 1990 is a valid Will of late Fatai Adio Odunewu. It is my finding therefore that the said Will is not a valid Will signed or executed by late Fatai Adio Odunewu in the presence of witnesses.”
His Lordship then concluded:-
“This court therefore hereby refuses to pronounce for the force and validity of the Will in Solemn form. The court also refuses to remove the caveat and will not compel the Probate Registrar of this court to issue a grant of Probate to the Plaintiff.
Consequently, the entire suit fails and it is hereby dismissed.”

The plaintiff was dissatisfied with the judgment and filed an appeal. In accordance with order 17 rules 2 and 4 of the Court of Appeal Rules 2007 briefs were duly filed. An amended appellants brief was filed and served on the 12th of Jun, 2007 while the respondents brief was deemed filed and served on 5th of June, 2007. A reply brief was deemed duly filed and served on the 19th of October, 2009.
In the amended appellants brief a sole issue was formulated for determination of this appeal. It reads:-
Whether the learned trial Judge was right in holding that, “The Will” had not been proved to be that of Fatai Odunewu Consequent upon which he declined to pronounce it valid.
Learned counsel for the respondents (1st – 5th) also formulated a sole issue for determination. It reads:-
Whether the learned trial Judge who observed the witnesses Face to face, heard their testimony and observed their demeanour on the stand, properly evaluated the evidence before him and rightly dismissed the appellant’s claims.
I have examined both issues formulated by counsel and I do not think that they properly address the real issue for determination in this appeal.

This court is absolutely free to adopt or even formulate issues that would determine the real grievance in an appeal.
See Ikegwuoha V Ohawuchi 1996 3 N.W.L.R. Pt. 435 p. 146. Aduku V. Adejoh 1994 5 N.W.L.R. Pt. 346 p. 582.

To my mind the central issue is:-
Whether or not the last Will and Testament of Alhaji Abdul Fatai Adio Odunewu is a valid Will so as to order the removal of the caveat.
I believe that in addressing this issue both issues formulated by counsel would be answered. At the hearing of the appeal on the 19th of October, 2009 learned counsel for the appellant in amplification of his brief after adopting the appellants brief and the reply brief observed that the court can go outside the evidence of a witness contending that once attesting witness gives evidence it is conclusive of the matter. He urged us to hold that the respondent was unable to discharge the burden of proof beyond reasonable doubt.
On the other side of the fence learned counsel for the respondent adopted the respondents brief and urged us to dismiss the appeal because there is credible evidence to support finding of fact by the trial court.
He observed that Section 138 (i) of Evidence Act does not apply since no one was accused of forgery.
Findings of fact and ascription of probative value are what the trial court should do.

An appellate court will interfere where the findings are perverse or there are special circumstances justifying interference.
See Akula v. Yongo 2002 5 N.W.L.R. Pt. 759 p. 135; Zakham Const. (Nig.) Ltd. v. Nneji (2002) 5 N.W.L.R. Pt 759 p. 55; Akinboni v. Akinboni 2002 5 N.W.L.R. Pt. 761 p. 564; Layinke v. Makinde (2002) 10 N.W.L.R. Pt. 775 p. 358.

A distinction must be made between finding on fact based on credibility of witnesses and findings based on evaluation of evidence.
In the latter case the Appeal Court is in a similar position as the trial court to evaluate the evidence as the court of trial.
With this in mind I will now go forward to evaluate the evidence.  But first submissions of counsel.
Learned counsel for the appellant observed that once the testator executed the Will as a free agent and in the presence of witnesses who attested to the will then the obligation is discharged. Relying on Idehen V Idehen 1991 6 N.W.L.R. Pt. 198 p. 418. Okelola V Boyle (1998) 2 N.W.L.R. Pt. 539 p. 549. Estate of Randle (1962) 1 A.L.L. N.L.R. P. 132.
He submitted that this was done and so the appeal should be allowed. Learned counsel for the 1st – 5th respondents observed that the onus was on the appellant to satisfy the court that the Will was executed by the deceased. Reliance was placed on.
Tyrell V Fainton 1894 p. 151.
Contending that the appellant failed to discharge that burden.
He submitted that there was no prima facie evidence before the lower court that the late Alhaji Abdul Fatai Adio Odunewu made, signed or executed the Will dated the 23rd of June, 1990. Referring to Mabogunje V Adewunmi (2006) 11 N.W.L.R. Pt. 991 p. 224, he observed that the cases relied on by learned counsel for the appellant are distinguishable from the present case.
He urged this court to dismiss the appeal.
Section 4 of the Wills Law Cap. W2 Vol. 7 Laws of Lagos State of Nigeria 2003 states the requirement for the execution of a Will. It reads:-
“4 (i) 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 on the Will so that it is apparent on the face of the Will that the 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 same time;
(d) The witnesses attest and subscribe the Will in the presence of the testator but no form of attestation or publication shall be necessary.
2. No signature under this Section or under any other provision of this law shall be operative to give effect to any disposition or direction which is underneath or follows it nor shall it give effect to any disposition or direction inserted after the signature shall be made.”
After reviewing the testimony of all the witnesses the learned trial Judge found that the Will is not a valid will signed or executed by late Fatai Adio Odunewu in the presence of witnesses.

The handwriting analyst (DW 3) opinion is that the Questioned signature on the said purported will is spurious and mere simulated forgery of the authentic standard signatures of the deceased.
DW3 came to this conclusion after comparing the signature on the Will with the standard signature of the deceased.

It is the duty of the trial court to evaluate the evidence of the handwriting expert on the genuineness of the alleged signature on the Will. In doing so the learned trial Judge must keep the following facts in view.
1. Expert opinion on the genuineness of a signature should be received with caution especially if there are witnesses who come to court to say they saw the deceased sign the Will.
2. Hardly anyone signs in the same way all the time.
3. Tests conducted by handwriting experts, comparing handwritings and signature are merely tentative in character, and
4. Opinion evidence of an expert is weak evidence this is so because it is the evidence of a person who calls himself an expert.
Now the bottom line is that the court must form its own opinion by also examining the documents in question and look for other positive evidence that would make the handwriting analysts evidence reliable or unreliable. Expert evidence only assists the court in this task.

On the handwriting analyst opinion the learned trial Judge said:-
I accept the evidence of the handwriting analyst (DW 3) which was not seriously challenged that the signature of the testator in the Will, Exhibit 5 is not that of late Fatai Adio Odunewu … I agree with the handwriting analysts opinion in addition to my own examination of the standard and questioned signatures that the signature on the Will, Exhibit 5 is not that of late Fatai Adio Odunewu…
His Lordship continued:-
In the result, I find it difficult to hold that the Will said to have been made on 23rd June, 1990 is a valid Will of late Fatai Adio Odunewu. It is my finding therefore that the Said will is not a valid will signed or executed by late Fatai Adio Odunewu.
The learned trial Judge also examined relevant documents and came to the same conclusion as the handwriting analysts that the signature on the will is not the signature of the deceased.
On other positive evidence.
PW 6 is a Legal Practitioner. He prepared the Will for Alhaji Fatai Adio Odunewu (deceased). His Lordship had this to say on him.

It seems to me that in order to give the Will authenticity that it does not have, PW 6 rushed a Will which he said was handed to him by the deceased in June, 1990 to the Probate Registry in November, 1990 after hearing of the death of the deceased on the radio.
His Lordship continued:-

I wonder why he had to do that since validity of a Will does not depend on whether or not it was lodged at the Probate Registry for safe keeping. If On the Probate Registry His Lordship said:-
“Furthermore, the Probate Registry was unable to produce it in court at the right time. The explanation for this is halfhearted and unconvincing. There is no record of lodgment of the Will in the Registry and there is no receipt to show its lodgment.”
His Lordship then said:-
“I reject the evidence of Pw 4, Pw 5, Pw 6 and Pw 7 that the Will was made and signed by the deceased.”
Further on the signature of the deceased on the Will His Lordship said:-
“The only witness who said he saw the deceased sign the Will is Pw 7. He did not say who put the thumb impression under the deceaseds’ signature on the Will.
His Lordship observed that and I quote:-
“If he saw the deceased sign the Will he would equally have seen him putting his thumb impression thereon. He was silent about this. Furthermore the witness could not remember the date and the month in 1990 when he attested the Will. He could not remember if the second witness signed or thumb print the Will…”
Concluding the learned trial Judge was of the view that the testator did not sign the Will in the presence of Pw 7. I hold the same view with the learned trial Judge. Relying on Estate of Randle (deceased) (1962) 1 A.L.L. N.L.R. p. 132 learned counsel for the appellant observed that despite the irregularity in the signature of the witnesses attesting to the Will and that of the testator the court still admitted the will to probate. I must observe that a signature is a persons name, mark or initial that he uses in signing a document/letter. It is a distinctive pattern by which it can be said who signed a document.

An irregular signature is one in which the features are not regular, symmetrical.
A forged signature is not an irregular signature but a signature of someone else. There is thus a vast difference between a signature which is irregular and a signature which is forged. A signature which is irregular is the signature of the person who is said to have signed it, but a forged signature is not the signature of the person who is said to have signed it. The Randle case supra and the cases relied on by learned counsel for the appellant are irrelevant in the circumstances.
A forged signature is as bad as an unsigned document. The latter being worthless and void. See Section 91 (4) of the Evidence Act. A.G. Abia State V Agharanya (1999) 6 N.W.L.R. Pt. 607 p. 362.

A caveat is a warning to suspend action. i.e. let a person beware. In paragraph (VII) of the caveat. The respondents challenged the authenticity of the signature of the deceased on the Will. They were correct to file the caveat.
After a thorough review of the judgment of the trial court I am firmly of the view that the learned trial Judge thoroughly evaluated evidence in this case and I am satisfied with His Lordships findings on fact based on the credibility of witnesses. In the absence of the authentic signature of deceased on the Will the said Will is not valid; the requirement of Section 4(b) of the Wills Law has not been satisfied.

Finally, the learned trial Judge has justified accepting the handwriting analyst report by relying on other positive evidence reviewed in this judgment and found to be correct.

This appeal fails and it is hereby dismissed with costs of N30,000 to the respondents.

Other Citations: (2010)LCN/3533(CA)