Mrs. Imade Ize-iyamu V. Mr. Omoruyi Alonge & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This appeal emanates from the decision of Lagos State High Court of Justice sitting in Lagos and delivered on 10th day of May, 2002 by Rhodes- Vivour J.
The brief background facts are as follows: 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. As a result she caused an Originating Summons dated 5th of April, 2001 to be filed against the Respondents claiming several reliefs. Respondents raised an objection to the hearing of the originating summons and same was sustained by the trial court after hearing arguments from both parties. Pleadings was then ordered by the court. 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:-
(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).
(ii) A DECLARATION that the pretended WILL of Chief Joshua Charles Ekome Alonge (The Obarisiagbon of Benin (deceased) late of No. 7, Adeniji street, Surulere, Lagos read at the Probate Registry of the High Court of Lagos State on the 12th day of January, 2001 is null and void for non compliance with the applicable WILLS Law.
(iii) A DECLARATION that the said pretended WILL of Chief Joshua Charles Ekome Alonge (The Obiarisiagbon of Benin) (deceased), Late of No. 7 Adeniji street, Surulere, Lagos read at the Probate Registry of the High Court of Lagos State on the 12th day of January, 2001 is null and void as the purported signatures thereon are not his signatures.
(iv) AN ORDER SETTING ASIDE the said 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 valid WILL of Chief Joshua Charles Ekome Alonge (The Obarisiagbon of Benin) (deceased), Late of No.7 Adeniji street, Surulere, Lagos on the ground of lack of validity and or by reason of the fact that the signatures on the Late Chief Joshua Charles Ekome Alonge (The Obarisiagbon of Benin) thereon are not his signatures.
(v) AN ORDER DIRECTING THE 1st, 2nd ,3rd and 5th Defendant to deposit in this court a copy of the WILL and Testament given to them by the late Chief Joshua Charles Ekome Alonge (The Obarisiagbon of Benin) for the purpose of establishing the true wishes of the said Testament.
(vi) AN ORDER OF INJUNCTION restraining the 1st, 2nd and 3rd Defendants from acting as Executors in respect of the estate of the Late Chief Joshua Charles Ekome Alonge (The Obariziagbon of Benin) pending The grant of Probate to the said estate.
(vii) AN ORDER COMPELLING the 1st DEFENDANT To give a true, full, detailed and frank account of all the Assets of the estate of the Late Chief Joshua Charles Ekome Alonge from the date of his death on 21st September, 1998 till date, showing specifically:-
(a) How much was realized and its source.
(b) How much was spent on what, when and whom the money was paid.
(c) How much rent and other money was due to the Estate and how much has been collected and how much is yet to be collected and from whom.
(viii) AN ORDER DIRECTING the Administrator General and Public Trustees of Lagos State to take over, manage and supervise the management of the following properties of the Estate of the Late Chief Joshua Charles Ekome Alonge within the Jurisdiction of this Honourable Court, namely:-
(a) No.7, Adeniji street, Surulere, Lagos
(b) No. 13 Silva street, Olorunshogo, Mushin, Lagos
(c) No. 15, Silva street, Olorunshogo, Mushin Lagos
(d) No. 18,Silva street, Olorunshogo, Mushin Lagos
(e) No. 19,Silva street, Olorunshogo, Mushin Lagos
(f) No. 20, Silva street, Olorunshogo, Mushin Lagos
(g) No. 23, Kirikiri Road, Olodi Apapa, Lagos
(h) No. 40, Yaya Crescent, Ajegunle, Apapa Lagos
(i) No. 42, Yaya Crescent, Ajegunle, Apapa Lagos
(k) Block Lxiv,Plot 10, Ilupeju Scheme, Mushin Ikeja
(k) Block Lxvi, Plot 10, Ilupeju Scheme, Mushin Ikeja
(1) No. 227, Agege Motor Road, Mushin, Lagos
(m) No. 19 Godwin Okigbo street, Surulere, Lagos
(n) No. 2A Nnobi street, Ikate, Surulere, Lagos
(0) No.1, Ilupeju Bye – pass, Ilupeju, Lagos
(p) No. 24, James street, Alagbon close, Ikoyi Lagos
(q) And any other property of the said estate any where within Lagos State.
(ix) AN ORDER ADMITTING TO PROBATE any WILL and codicil (if any) of the said Chief Joshua Charles Ekome Alonge (The Obarisiagbon of Benin) (deceased).
(x) AND for such further or other orders as the Honourable court may deem it fit to make in the circumstances.
The 1st to 3rd Defendants filed a 26 paragraph joint statement of defence and counter-claim dated 9th October, 2001. The 1st – 3rd Defendants counter-claimed as follows:-
(1) The Defendants repeat paragraph 1 – 26 of the statement of claim (sic).
(2) By way of counter-claim, the Defendant says the deceased duly executed his last WILL dated 17/1/94.
(3) In the alternative, if the court finds for any reason that there was no execution the 1st defendant in
accordance with Benin Native Law and Custom inherits all the property of the Testator.
At the hearing of the case, the Plaintiff/Appellant testified in person and called six witnesses. The Defendants/ Respondents called two witnesses. It is worthy to note from the onset that 5th defendant died before the commencement of hearing and he was not substituted. 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. The Notice of Appeal contained 8 (eight) Grounds of Appeal. See pages 195 – 201 of the Record of Appeal. The Appellant sought and obtained leave on 14/2/05 to file his brief of argument out of time and same was deemed filed and served. The 1st – 3rd Respondents brief was also filed on 8/2/06. The appeal was heard on 13/11/06 and both counsel adopted their respective brief of argument.
Appellant distilled two issues from the 8 grounds of appeal filed for determination of the Appeal.
The issues are;-
(1) 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? Grounds 1,4,6 and 8.
(2) 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? Grounds 2,3 and 7.
The 1st – 3rd Respondents on page 2 of their brief raised only, one issue for the determination of this appeal. The issue is whether exhibit ‘B’ represented the Last WILL and Testament of the Testator and was valid as held by the learned trial Judge.
Before i proceed to resolve the issues raised, i find it necessary to first of all comment on the competency of the Notice of Appeal. Although Preliminary objection was not filed on this issue, the court made the observation in the course of hearing the appeal and Appellants’ counsel responded. His contention was that the Notice of Appeal which appeared at page 195 – 201 of the Record was filed within the three months prescribed period. To support his stand on 4/11/06 counsel made available to court two authorities i.e. The Niger Insurance Company Ltd vs. NAL Merchant Bank (1996) 2 NWLR (Pt 430) 370 and Akeredolu vs. Akinremi (1985) 2 NWLR (Pt. 10) 787 particularly at 794 para A. He also relied on section 25 (2) of the Court of Appeal Act.
The periods for the giving of Notice of Appeal is as provided under section 25 (2) of the Court of Appeal Act. Section 25 (2) provides:-
“(2) The periods for the giving of Notice of Appeal or notice of application for leave to appeal are-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.”
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.”
In the instant case the judgment appealed against was delivered on 10/5/02. The Notice of Appeal dated 8/8/02 was filed on 9/8/02. In line with the decision of the Supreme Court in Akeredolu vs. Akinremi supra the calculation of three months will begin on 11/5/02 the date of delivery of judgment being excluded and end at midnight of 10/8/02. Without belabouring the issue I am of the view that the Notice of Appeal was filed within the three months prescribed period and so the Appeal is competent. I so hold, the only issue raised by Respondent can conveniently be taken together with the two issues raised by Appellant since all the issues touches on the validity of Exhibit ‘B’. As such I will rely on the two issues raised by Appellant in the determination of this Appeal. Issue No 1 is tied to grounds 1, 4, 6 and 8 of the grounds of Appeal.
While arguing this issue in his brief, Appellants’ counsel contended that on the state of pleadings, the Appellant made several allegations against Exhibit ‘B’. They range from allegations of invalidity to that of forgery and several deficiencies which ought to cast genuine suspicion as to whether or not the document Exhibit ‘B’ is indeed the WILL of late Chief Joshua Charles Ekome Alonge. The grouse which the Appellant had with Exhibit ‘B’ are stated at page 7 paragraph 4.06 of the brief. Counsel submitted that faced with the state of pleadings the learned trial Judge was expected to approach the resolution of issues with a judicial mind and proper appreciation of the procedure for the resolution of the dispute. Contrary to the incidence of burden of proof in a case of this nature, the trial Judge first considered and resolved the issues raised against Exhibit ‘B’ and merely employed the evidence of the respondents as shields against the allegations of the appellant. Learned counsel submitted that this is erroneous as in any allegation against the validity of a document purporting to be a WILL, the proponents of the alleged WILL are the persons who bear the initial burden of proving the validity of the document they proposed to be a WILL and not the other way round. Learned counsel contended that the trial court ought to have considered the case of the Respondents first and see whether or not they established the validity of the WILL before the antagonist of the document is required to establish his objection. He relied on the case of Amu vs. Amu (2000) 7 NWLR (Pt. 663) 164, 170 – 171, 174 to buttress his submission. Counsel contended that in the instant case it is the defendants/appellants who must start adducing evidence propounding it. It is only when they have discharged the duty imposed on them by law that the onus of proof will shift to the Plaintiffs/Respondents. See Okelola vs. Boyle (1998) 2 NWLR (Pt. 539) 533, 554 – 555; Nelson vs. Akofiranmi (1962) 1 ALL NLR 130; Johnson vs. Maja 13 WACA 290, 291 – 292; Adebajo vs. Adebajo (1973) 1 ALL NWR 361; Eyo vs. Inyang (2001) 8 NWLR (Pt. 715) 304, 330. See also Arowolo vs. Ifabiyi (2002) 4 NWLR (Pt. 757) 358 at 380 para H; Salaudeen vs. Mamman (2000) 14 NWLR (Pt. 686) 63 at 77 para Hand Woluchem vs. Gudi (1981) 5 S.C. 178 at 194 supplied as additional authorities. Counsel further contended that the learned trial Judge did not adopt the better view with regard to the burden of proof. He relied on the case of Ita vs. Dadzie (2000) 4 NWLR (Pt. 652) 168 at 184 and Adebajo vs. Adebajo supra.
It was also the contention of Appellants’ counsel that the learned trial Judge ought to have resolved in favour of the appellants the various defects and non-compliance that are clearly evident on Exhibit ‘B’. Where there are entries and circumstances which creates reasonable suspicion about the authenticity of a WILL, unless the proponents of the WILL otherwise establish it regularly, the court would not pronounce on the validity of such a WILL. He placed reliance on the case of Ezenwere vs. Ezenwere (2003) 3 NWLR (Pt. 807) 234 at 249. Counsel contended that the learned trial Judge made no reference to these suspicions that attended Exhibit ‘B’ and the fact that Exhibit ‘B’ did not contain attestation. He said an attestation is a vital requirement of a WILL for the purpose of its validity. The trial court only made reference to S. 4 (l)(d) of the WILLS LAW of Lagos State. The case of Egharevba vs. Oruonghae (2001) 11 NWLR (Pt.724) 318, 334 was also cited to buttress his submission. Counsel further contended that it has not been proved that exhibit ‘B’ was signed or acknowledged in the presence of two witnesses present at the same time. Only DW3 gave evidence on having witnessed the execution of the WILL. The second witness was not called. He said the learned trial Judge was perverted against the appellant when he believed the existence of this vital witness without seeing him.
Appellants counsel finally contended that due execution of Exhibit ‘B’ was not proved before the court below. The judgment of the lower court was a complete misdirection in this regard. He urged us to resolve issue No. 1 in favour of the appellant.
In response, Respondents’ counsel contended that Exhibit ‘B’ is the WILL of the Testator. For a WILL to be valid it must have complied with SA of the WILLS LAW CAP 194 Laws of Lagos State 1994. He said the grievance of the appellant is that exhibit ‘B’ does not meet with the requirements of the law. Counsel agreed that the grievances of the appellant against exhibit ‘B’ are as stated in paragraph 4.06 (i) – (viii) of the brief. But the issue is whether the evidence of the witnesses regarding these grievances were properly evaluated. Learned counsel referred to pages 185- 188 of the record wherein the learned trial Judge evaluated the evidence adduced by both parties before reaching a decision. Counsel contended that the learned trial Judge followed the steps stated in Mogaji vs. Odofin (1978) 4 SC page 91 at 93 – 94. In doing so the learned trial Judge did not cast the burden of proof on only one of the parties. Counsel contended that Exhibit ‘B’ having met the test enunciated under S. 4(1) of the WILLS LAW and having placed the evaluated evidence on the imaginary scale of justice as decided in Mogaji vs. Odofin supra the learned trial Judge was right in pronouncing Exhibit ‘B’ as valid.
Counsel also referred to the argument of appellants’ counsel that the learned trial Judge was wrong when he directed the appellant to prove invalidity of the WILL (Exhibit ‘B’). he contended that issues were joined between the Appellant and 1st – 3rd Respondents as to the validity of the WILL. He relied on paragraphs 6, 7, 8, 9, 10 and 11 of the statement of claim and 5, 6,7,8,9,10,11,12 and 13 of the statement of defence. He said at the close of pleadings the burden of proving the invalidity of Exhibit ‘B’ shifted to the plaintiff. The law is that 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. See S. 135 (1) and (2) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.
On the submission of Appellant’s counsel that Exhibit ‘B’ was not signed or acknowledged in the presence of two witnesses present at the same time as only DW3 (sic) DW1 gave evidence as having witnessed the execution of the WILL, counsel submitted that it does not lie in the mouth of appellants’ counsel to make such submission. He referred to the evidence of DW1 at page 153 Lines 19 – 27 of the record. See page 67 of the respondents brief. That piece of evidence was not debunked under cross-examination by the Appellant. Evidence that is relevant to issue 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. See Ojo vs. Onibire (1999) 11 NWLR (Pt. 628) 630 at 637 paras D – E. Counsel also referred to the statement of the trial Judge at page 186 lines 2 – 5 of the record.
It was also the contention of Respondents counsel that where a trial court unquestionably evaluates the evidence and justifiably appraises the facts, the appellate court cannot interfere to substitute its own views. What the appellate court ought to do is to find out whether there is evidence on which the trial court could have acted. Once there is sufficient evidence on record which the trial court made its findings, the appellate court cannot interfere. See Agbeje v. Aiibola (2002) 2 NWLR (Pt 750) 127 at 448 paras E-H.
Respondents counsel also in response to submission of appellants’ counsel that the primary onus of proof of validity of the WILL was supposed to be on the Respondent he referred to the statement of claim of the Plaintiff at pages 64 to 76 of the record particularly paragraphs 7, 11 and 15 where the Appellant alleged that the signature of the Testator on exhibit ‘B’ the WILL was forged. He said it is a criminal allegation and by S.138 (1) of the Evidence Act the primary onus was on the appellant to prove this averments beyond reasonable doubt. Counsel contended that it was erroneous as submitted by appellants’ counsel that it was the respondent that ought to remove the suspicions afflicting the document (Exhibit ‘B’) since commission of crime is in issue here. He relied on the case of Ibadan LGPC Ltd vs. Okunade (2005) 3 NWLR (Pt. 911) 45 at 57 paras E – G.
Furthermore, counsel contended that whether the learned trial Judge ought to consider the case of the respondents who propound the WILL before that of appellant is a matter of style of writing judgment and once the judgment contains the major attributes of a good judgment an appellate court will not interfere. See Usiobanfo v. Usiobanfo (2005) 3 NWLR (Pt. 913) 665 at 692 paras D – F. He said what is important is whether the learned trial Judge followed the principle laid down in the case of Mogaji v. Odofin (supra) in the evaluation of the evidence of the parties in respect of the issue. It was also his contention that the approach of the learned trial Judge was in line with the approach taken in Adebajo v. Adebajo supra. Counsel also referred to page 187 line 23 – 29 of the record and contended that the learned trial Judge correctly applied the principle as to where burden of proof lies.
In considering this issue it is appropriate to examine the circumstances which make for a valid will. For a WILL to be valid it must have complied with 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.”
The Appellant in this case is challenging the finding of the learned trial Judge as to the validity of Exhibit ‘B’ the said Last WILL of the Testator Chief Joshua Charles Ekome Alonge, the Obarisiagbon of Benin who died on 21st September, 1998.
The first point to be considered is whether the learned trial Judge placed the initial burden of proof on the appropriate party..
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 profound
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.
It is clear from the above mentioned authorities that the burden of proof is not static, rather it shifts.
In the instant case the Respondents are the proponents of the WILL as such the initial burden of proof lies on them to establish by evidence that prima facie the WILL (Exhibit ‘B’) is valid. The proceedings of the trial court indicates that Appellant who was Plaintiff before the lower court opened her case and thereafter Respondents who were defendants presented their defence. I wish to state that there is nothing wrong with the procedure adopted by the learned trial Judge. What is material is whether the learned trial Judge while evaluating the evidence adduced by both parties placed the initial burden on the appropriate party. This can be determined by assessing the totality of the evidence adduced before the court. As rightly observed by Respondents counsel the procedure adopted is in line with the procedure followed in Adebajo v. Adebajo supra. The procedure adopted can only be faulted if there is evidence that it occasioned a miscarriage of justice. 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.
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. As earlier stated the burden of proof shifts. The appellant who is attacking the validity of the WILL has the secondary onus of proof to substantiate by evidence the allegations of forgery and other irregularities related to the evidence offered by appellant in support of her claim. 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. 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.
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.
It is worthy to note that the assessment and ascription of probative value in the instant case involves both oral and documentary evidence. It is evident that the learned trial Judge did examined the documents in issue before coming to his conclusion. The trial court had the role of assessing the evidence and forming its clear opinion in relation thereto including any expert evidence, which was what the trial Judge precisely did in the instant case.
Appellant alleged and pleaded in paragraph 36 of the statement of claim that copy of the last WILL and Testament of her father was with his lawyer late J.A. Keji & Co. Paragraph 36 provides:-
“The Plaintiff avers that her late father had over the years prepared his WILL and Testament at the Law Firm of J.A. Keji & Co and that a copy of the last WILL and Testament is with said Law Firm of J.A. Keji & Co.” PW4 led evidence and also called PW3 from the Law Firm of Late J.A. Keji & Co. the WILL and codicil were admitted Exhibit ‘K’ and ‘L’. For purposes of emphasis I will reproduce hereunder the evidence of PW4 (Appellant) under cross-examination at page 143 lines 19 – 25 of the record. She said:-
“My lawyer made search in Benin and Lagos Registry for WILL. There were history of my Dad putting WILLS and withdrawing them. In Lagos there was only one WILL. The WILLS filed and withdrawn in Benin registry to the best of my knowledge were prepared by J.A. Keji. Exhibit ‘B’ is also in Benin Registry. It is the only WILL in Benin and Lagos. Exhibit ‘K’ and ‘L’ were withdrawn. They are not in Benin Registry.”
PW6 also could not substantiate the allegation pleaded in paragraph 35 of the statement of claim that 1st Respondent at one time was found attempting to execute a document purporting to be a WILL and Testament of her father during the life time of her father. That he was challenged by one of the deceased children and deceased secretary. PW6 in her testimony failed to identity Exhibit ‘B’ as the WILL she claimed 1st Respondent gave her father to sign when he was on sick bed. By this piece of evidence particularly the evidence of PW4 no other WILL of the Testator is known to exist except Exhibit ‘B’.
The other aspect of Exhibit ‘B’ which appellant complained raised suspicion as to its validity is as pleaded in paragraph 6, 7 and 8 of the statement of claim. Paragraphs 6, 7 and 8 read as follows:-
“6. That apart from the purported signature of my said father on the said Exhibit’ A’, the traditional title of my father, the Obarisiagbon of Benin was wrongly printed as Obarisiagbo (without “n”) on the letter heading wherein his traditional title is wrongly printed moreso when Obarisiagbo is not his cherished traditional title.
- That the Lagos Telephone number of my father on The said Exhibit A stated to be “831894” is wrong and could only have been used by someone besides my Late father, the correct telephone number bearing 831895. It is herewith annexed and marked as Exhibit “A1 and A2” 2 letters written by my father dated 15th October, 1991 and 28th May, 1995 respectively.
- That all the Benin names, EXCEPT those of Omoruyi and Edowaye amongst the children named in Exhibit ‘A’ were wrongly written which is very unlike my Late father.
PW4 and PW6 led evidence in support of these averments. Contrary to the submission of Appellants’ counsel that the learned trial Judge did not say anything, the comment is at page 187 lines 16 – 23 of the record. He said:-
“The Plaintiff in evidence admitted that there was only one existing WILL – Exhibit ‘B’ deposited in Ikeja and Benin Probate Registry. The issue is whether the name of the Testator is properly spelt and not whether “n” or “5” or “4” is missing from the Testators Title and his phone number. As rightly submitted by learned senior counsel A.O. Egbobemien SAN, It is mere misnomer since no one is misled. See NNB Ltd vs. Bazon (1998) 11 NWLR (Pt. 575) 646.”
In other words the finding of the trial Judge supra is to the effect that the irregularities referred to did not affect the validity of the WILL Exhibit ‘B’. 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. The Grounds of Appeal Nos 1, 4, 6 and 8 from which this issue is distilled also fails.
On issue No 2 which is tied to grounds 2, 3 and 7 the main contention of Appellants’ counsel is that the court below wrongly relied on the evidence of DW2 who is a party interested in the case as against PW2 who is an independent government official to pronounce on the validity of Exhibit ‘B’ as the last WILL of the deceased. It was contended by the Appellant that the examination and purported findings of DW2 are inadmissible by virtue of S.91(3) of the Evidence Act. He was employed by the respondents who desired a particular result. It is the success or otherwise of the desired result that will regulate the fees. If his findings are otherwise, he would not be in court at all to testify. He said the procedure by which he came to this conclusion has not been demonstrated to court to show whether or not he has exercised any restraint or met any standard of neutrality in making his findings in respect of Exhibit’ B’. He said Dw2 is a person clearly interested and his testimony was worthless in the proceedings. He relied on the case of
Nwangwa vs. Ubani (1997) 10 NWLR (Pt. 526) 559,572 and Salako v. Williams (1998) 11 NWLR (Pt. 574) 505, 515 to buttress his submission.
On this point Respondents counsel submitted that the evidence of DW2 being an expert evidence is an important exception to Section 91(3) of the Evidence Act. It can be made and accepted during pendency of suit. See Apena vs. Aiyetobi (1989) (Pt.95) 85 at 97 paras F – H.
In resolving this point, it is worthy to note the provisions of S.91(3) of the Evidence Act which provides:-
“(3) Nothing in this section shall render admissible as evidence 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 to tend to establish”.
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.
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. 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.”
In the instant case it is apparent that the learned trial Judge did not abdicate from his responsibility of assessing the evidence. His reasons for rejecting evidence of PW2 reproduced supra confirms this. As earlier stated the evidence of an expert is generally an aspect of the entire evidence to be evaluated by a court. This means the Report of the expert will not be taken in isolation. Its credibility will be assessed along with other available evidence both oral and documentary if any. 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. In the case at hand apart from DW2 confirming that the signature on Exhibit ‘B’ belongs to Testator, DW1 supported the evidence, that the signatures on Exhibit ‘B’ belongs to the Testator. The decision of the Court of Appeal in D.T.B. vs. Awanzigana Enterprises supra to the effect that opinion of handwriting experts as well as that of lay witnesses are admissible depending on the point in issue, is very relevant. In other words a persons handwriting may be proved by the opinions of persons who are acquitted with it. DW1 identified the signatures of the Testator on Exhibit ‘B’ and that of the second witness because he was familiar with the signatures having attested to same. Such piece of evidence can be accepted as credible depending on the point in issue, See Ojo vs. Anibure supra. It is on record that the testimony of DW1 was never discredited under cross-examination. To further strengthen the position of DW2 Appellant admitted in her testimony before the lower court that Exhibit ‘B’ is the last WILL deposited in the Probate Registry in Lagos and Benin and that the WILL Exhibit ‘K’ and ‘L’ which she pleaded in paragraph 35 of the statement of claim have been withdrawn. 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.
The learned trial Judge properly carried out his responsibility of assessing and evaluating evidence of witnesses as well as ascribing probative value to the evidence adduced. There is no basis to interfere with the finding of fact arrived at by the trial court. I am fortified by the decision of the Supreme Court 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.” See also Akande vs. Alagbe (2000) 15 NWLR (Pt. 690) 353 at 383 – 384 paras H- G.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.
For the reasons stated here-in above, the argument of Appellants’ counsel on issue No 2 cannot stand. Issue No 2 is similarly resolved against the Appellant. Grounds 2, 3 and 7 from which the issue is distilled also fails.
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.
Other Citations: (2007)LCN/2225(CA)
