In the Court of Appeal,
Lagos Judicial Division,
Holden at Lagos,
On Friday, March 4, 2011,
Before their Lordships:
Adzira Gana Mshelia, Justice, Court of Appeal;
John Inyang Okoro, Justice, Court of Appeal;
Mohammed Ambi-Usi Danjuma, Justice, Court Of Appeal;
CA/L/58/2010
Between
Mrs. Foluke Mudasiru,
Mr. Tolulope Mudasiru,
Mrs. Openifolu Tejuoso
(Nee Mudasiru),
Mr. Oladipo Mudasiru (appellants)
(Suing as next-of-kin and beneficiaries respectively of the Estate of Air Commodore Gbolahan Adio Mudasiru (deceased) and as persons entitled to administration of the estate)
and
Ibrahim Abdullahi,
Mr. Ladi Cole,
Dr. Olufunmilayo Coker,
Mrs. Olusola Sowemimo,
Mr. A.C. Mkparu,
The Probate Registrar (respondents).
Judgment (Delivered By John Iynang Okoro, JCA).
It is trite that where evidence on a material fact is unchallenged, unrebutted or uncontradicted under cross-examination, the court will accept the same as a true representation of the fact. See Asafa Foods Factory v. Alraine (Nig.) Ltd. (2002) 12 N.W.L.R. (pt. 781) page 353, BUA v. DAUDA (2003) 13 N.W.L.R. (pt. 838) page 657.?
I HAVE myself perused and examined the record and have no option but to agree with the findings of the court below that the appellants failed to impugn the above weighty testimony of the two witnesses of the respondents. Listen to the testimony of one Mr. Eyo Ekpo, who prepared the Will. On pages 180-182 of the record, he states inter alia:
?12. I remember that when we arrived at the home of the late Air Commodore Gbolahan Adio Mudasiru, he ushered all three of us into his study, which was on the ground floor of the house. There, he went through the final copies of the Will in my presence and in the presence of my two colleagues, all four of us, sitting around a table in his study. On going through, he made a few minor corrections by his hand, initialled the corrections he made, then proceeded to execute about four copies of the Will in the presence of all three of us, with my colleagues signing as his two witnesses before him and each other?.
I am surprised that such a weighty evidence was left to stand intact without any attempt to impugn its veracity, or is it because, the witness had become an Attorney General of Cross River State at that time? What could the learned trial judge have done other than to accept it as the truth of the matter? Mr. Chiagozie Hilary-Nwokonkwo, one of the witnesses to the respondents, stated clearly in paragraph 6 of his witness statement (See page 80 of the record) that: ?Myself and the said Mr. Dele Ogunshote personally saw the testator executing his Will and there is absolutely no truth whatsoever in the assertion that the signature is not that of the testator?.
There was absolutely nothing to contradict or controvert this evidence and I think the court below was on a firm ground to admit and rely on same. See Magaji v. Nigerian Army (2008) 8 NWLR (pt. 1089) 338, S.C. Isitor v. Fallarode (2008) 1 NWLR (pt. 1069) 602.
The other issue has to do with the argument of the appellants that failure of the testator to sign in the attestation clause violates Section 4 (i)(b) of the Wills Law (supra). Although the appellants admitted that three signatures ended the Will of the testator, they opined that none is that of the testator. As was rightly submitted by the learned counsel for the respondents, this is fallacious. If the appellants did not know which of the signatures is that of the testator, why did they send a copy of Exhibit CI (the Will) to RW6 for analysis of the Testator?s signature? The inference that could be made therefrom is that they knew the testator?s signature out of the three, otherwise, they could not have asked PW6 to analyse what they claimed to be unknown to them. What this means is that even the appellants were able to identify the 1st signature standing alone on top of the other two as that of the testator.
As regards the contention that failure of the Testator to sign the Will at the right place invalidates the Will, I wish to refer to Section 4(1)(d) of the Wills Law (Supra) wherein the concluding part of the section states:
?? but no form of attestation or publication shall be necessary?.
Section 4 of Wills Law of Lagos State is in pari material with Section 9 of the English Administration of Justice Act, 1982 and the Authors of Williams on Wills at page 95 have interpreted the provision to mean that there is no longer any formal requirement that the signature should be at the foot or end of the Will but in so long as it is apparent in the face of the Will that the Testator intended by his signature to give effect to the Will. It has been held that a Will is not invalidated simply because the Testator?s signature appears in the P. 44. Therefore, the submission of counsel for the appellants that the Will is unsigned because the attestation clause is blank is not tenable in so for as there is a signature by which the Testator intends to give effect to the writing signed as his Will. I think the Testator?s signature in the Will satisfies this requirement.
Although the appellants tried to assert that the alteration made in the Will were outside the character of the Testator, Exhibits ?E2? -?E6? clearly show that the Testator used to make cancellation and alterations in the documents whereupon he would initial the portion altered which is consistent with the method adopted in the disputed Will. The 1st appellant admitted that there are initials at every alteration made. See page 772 of the Record where she states under cross-examination that: ?It is correct that everywhere there is an erasure there is an initial or signature purportedly that of my late husband?.
I agree with the observation of the learned trial judge that where the content of a document does not adequately communicate or represent the intentions of the maker, the maker would expectedly take steps to see that a correction is effected. Provided that such correction does not result in the mutilation of the document, it is acceptable. The provision in Section 14 of the Wills Law acknowledges this and provides for the procedure, which authenticates any corrections effected.
The section provides: ?No alteration, interlineations, or alterations made in any Will after the execution thereof shall be valid or have any effect except in so far as the words or effect, of the Will before such alteration shall not be apparent, unless such alteration shall be executed in the manner as is herein before required from the execution of the Will.
Provided that the Will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the Testator and the subscription of the witness be made in the margin or some other part of the Will opposite or near to such alteration or at he foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the Will?.
Given a literal interpretation of the above section, it clearly excludes any alteration made before the Will was executed. Afterall, courts are to give words used in statutes their ordinary grammatical meaning where they are clear and unambiguous. See Agbareh v. Mimra (2008) 2 N.W.L.R. (pt. 1071) 378; Owners of the M.V. ?Arabella? v. N.A.I.C. (2008) 11 N.W.L.R. (pt. 1097) 182.
A casual perusal of the Will in dispute will disclose that all the alterations made in the Will are initialled by the Testator. The first appellant admitted this at Page 722 of the record which I had earlier reproduced. There is no evidence that the alterations were made ?after the execution? of the Will. Rather, there is abundant evidence that the alterations were made and initialled before the Will was executed. This is contained in the unchallenged and uncontroverted evidence of DW2, which I had also reproduced earlier in this judgment. Whether the alteration were made before or after the Will was executed in this particular case, the truth is that it (i.e., the alterations) complied with Section 14 of the Wills Law of Lagos State (supra) since the Testator initialled all alterations.
Finally, on this issue of alteration of the Will, the court below observed that though it may be true that the Testator was meticulous to a fault, this is a characteristic known to the appellants. The court as an independent arbiter is not privy to this character trait. The appellants were under obligation to present credible, cogent and convincing evidence in proof of this unique character trait of the testator. For the appellants to have thought that the court would rely on their ipsi dixit on the issue, were asking for too much. Although the court may indeed rely on the ipsi dixit of a witness, it is only in some circumstances of which this is not one. I quite agree with this observation. The appellants did very little in the matter but expected to reap much. Unfortunately, there is nothing the court can do to assist them now.
The other argument canvassed in this issue has to do with the evidenced of PW6 and DW4. Whereas, the appellants called one Kolawole Edward, a Superintendent of Police and handwriting analyst who gave evidence on the Testator?s signature on the Will and concluded that the signature was simulated. Under cross-examination, he admitted that the documents used for the exercise were photocopies though he requested for originals. This is captured on page 784 of the record.
The PW6 used Video Spectra Comparator (VSC) to come to his conclusion in the matter.
In order to debunk the allegation of simulation made by PW6, the respondents called one Ndarake Udo Ekong (DW4) who says he is an expert in forensic science and question document examiner. He gave evidence to the effect that simulation is detected by ?side by side? comparison of hand-writing and not by the use of video spectra comparator used by the PW6. He went on to say it was not advisable to form opinions on photocopied documents because photocopies could already have been manipulated and signature could be placed on the photocopies.
My first observation, is that, apart from the documents used to examine the signature on the Will being photocopies, the findings of the court below are that the signature in Exhibit CI relating to the Testator was never used. Rather, it was another copy of the Will, which was not tendered before the court. I shall bring to the fore the relevant part of the judgment as containe3d on pages 908-909 of the record: ?The starting point for me in the instant is with the brief received by CW6 as communicated in Exhibit K. The first part of the same is stated in simple terms thus: ?compare the signatures marked X in document X with those marked Y in document Y?.
It has, of course, come to fore that document X is a copy of the Will, the subject matter of this suit. The above referred content of Exhibit K confirms to me that there is more than one signature on this document X and these said signatures were specifically marked. I am reinforced in my aforesaid view because the signatures in document Y1 ?Y3d with which there were meant to be compared were equally marked. Documents Y1 ? Y3 are herein Exhibits K1 ? K3. Document x was not presented in evidence. Indeed, I remarked/pointed this out to counsel in the course of the trial but the claimants? counsel in response said that Exhibit C1 (Will) ?was already in evidence?. The truth of the matter is that although Exhibit C1 is a CTC of the disputed Will, it is in the present circumstance not the same document or even similar to the ?document x? referred to in Exhibit K. This is because the document therein referred to, marked out/indicated the signatures required to be compared which Exhibit C1 does not include. The significance of this will be clear in a while?.
On page 911, the learned trial judge reasoned further thus:
?As I stated, document x was not produced in evidence and so it may be reasoned in some quarters that it is difficult to tell what signatures the witness was requested to examine and what was in fact examined.?
I can go on and on to bring to the fore the great analysis done by the learned trial judge in his bit to see which of the two experts he would believe. It is improper for the Appellants to have hired a hand writing expert and committed to him some documents containing some signatures for analysis behind the back of the Respondents especially as found by the learned trial Judge that the ?document x? was never tendered before the court. As was rightly pointed out by the DW4, the witness called by the Respondents, such an exercise would need to be done with the original of the documents. Definitely not photocopies, especially now that we have gone far in electronic and information technology. One should be wary in using photocopies of documents to authenticate signatures on it was same could be superimposed neatly and manipulated before being photocopied. No wonder the CW6 or PW6 said that he had requested for originals but was only given photocopies.
I seem to agree with the Learned Authors of Sarkar on Evidence, 14th Edition Vol. 1 at p.309 wherein it is stated thus:
?It is well settled that handwriting expert?s opinion must always be received with great caution and that it is unsafe to base a judgment purely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law?.
Also, that:-
?Where there is direct and trustworthy evidence by persons who saw the testator sign, it is not necessary to rely on expert evidence (Kamesware v. Susdryaprekasa, A 1962 AP 178). It is wise to be slow in acting on the opinion of the handwriting expert, if there are other materials to prove the signature, the opinion evidence can be sidelined?.
I cannot agree more. There is no doubt in my mind that the court below was right to reject the opinion of the PW6 as his job was fraught with uncertainties. Apart from using photocopies documents, he wrote Exhibit M, the final report two years after he concluded his job. Moreso, in view of the abundance of unchallenged and credible evidence of DW2 & DW3, I am satisfied, that in this case, we do not need the opinion of any expert witness to determine whether or not the Testator signed the Will.
In the final analysis on this issue, I am satisfied to hold that the court below was right to hold that Exhibit C1 was the last Will of late Air Commodore Gbolahan Adio Musasiru and that the said Will was made in compliance with the Wills Law of Lagos State. Issue one is thus resolved against the Appellants.
The contention of the parties on issue two relates to the status of the 1st ? 5th Respondents vis-a-viz the Will of the Testator. Whereas, the Appellants argue that the Respondents were only appointed as Trustees and not Executors of the Will, the Respondents strongly contend that they were appointed both Trustees and Executors or at least Executors by the tenor of the Will. The Appellants argue and rely on Exhibit B, the English High Court case in suit No. HC 03C03621 ? Ibrahim Abdullahi & Ors. Vs. Foluke Mudasiru & Ors where Lloyd, J. held that the Respondents herein are not appointed executors in terms of the Will.
Learned counsel for the Appellants submitted further that since the Will clearly states that the Respondents are appointed as Trustees, the word Executor54s should not be added to them. Also, that if the Testator had wanted to appoint them as executors, he would have said so.
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He posited that where a statute or instrument mentions specific things, those things not mentioned are not intended to be included. He cited these cases in support. That is to say: N. H. Int?l S. A. v. NICON Hotels Ltd (2007) 15 N. W. L. R. (pt. 1056) 1 at 34 D-H and Inakoju V. Adeleke (2007) 4 N. W. L. R. (pt. 1025) 423 at 629 D-E.
Learned counsel urged the court to hold that the learned trial Judge, halving held that Exhibit C1 is not explicit enough to reach a conclusion that it expressly appointed the Respondents as executors, it was wrong to upheld them as Executors according to the tenor of the Will.
In his response, as expected, the learned senior counsel for the Respondents submitted that the contention of the Appellants has no basis in law, arguing that where a testator fails to nominate a person to be his executor, any person who upon the terms of the Will has been appointed to perform the essential duties of an executor, is called an executor according to the tenor and is entitled to a grant or probate.
Referring to clauses 10, 11, 12, 13 and 14.1 of the said Will, he submitted that the testator had clearly intended that the persons named under the heading ?Trustee/Executors? (ie., the 1st ? 5th Respondents) be responsible for the administration of the estate since they were also to be responsible for his funeral.
It was further argued by counsel for the Respondents that even though it may be held that they were not expressly appointed, their job description in the Will has made them Executors according to the tenor of the Will. He urged the court to so hold.
Under the heading ?TRUSTE4ES AND EXECUTORS?, the Testator states:-
?I appoint the following to serve as the first TRUSTEES of my Estate after I shall have passed on into the beyond:
1.
2.
3.
4.
5.
Each TRUSTEE shall nominate a successor??
There is no mention of the word EXECUTOR and it appears, as was rightly observed by the court below, that no Executor has been expressly appointed under Exhibit C1. Only Trustees are expressly appointed. This is so because the ordinary method of appointing an executor is for the Testator to name in his Will a specific person or persons to be his executors even as the Testator herein name his Trustees. It has to be noted that an Executor(s) is a person appointed by the Testator in the Will to administer the property of the Testator and to carry into effect the provisions of the Will. The way the heading of the section of captioned appears to suggest that the persons named under it are both trustees and executors excepting that the testator specifically appoints them as Trustees without correspondingly naming them as Executors. The learned Authors of Williams on Wills, 8th Edition, part B3 paragraph 203.2 p.1122 have stated that it is usually more convenient if the same persons are appointed both executors and trustees though they necessarily need not be the same persons. As I said earlier, there is nothing expressly stated that this is the case in the instant case.
The Appellants had tendered Exhibit B, a Judgment of the High Court of England which shows that no reasonable construction of the Will can lead to a conclusion that the Respondents were also appointed as Executors. The Respondents also tendered Exhibit B1, a ruling of the High Court of Lagos per Adefope-Okojie, J. of 19/10/04 which though admitting that the Respondents are not expressly appointed as executors, they are executors according to the tenor of the Will. The court below also held the Respondents to be executors in view of their description and the functions apportioned them in the Will. I think it is trite that where a Testator fails to nominate a person to be his executor, any person who upon the terms of the
Will has been appointed to perform the essential duties of an executor, is call as executor according to the tenor of the Will and is entitled to a grant of probate. Also where it can be implied from the Will that a person appointed a trustee is required, for instance to pay the debts of the testator, take charge of his funeral and/or generally, administer the Will, though not expressly appointed an Executor, he can be implied to be so endowed. A reasonable construction of a Will can confirm if indeed any person(S) HAVE BEEN APPOINTED TO PERFORM the essential duties of an executor. This will be a clear indication that the duties which a person is asked to perform, in the absence of his being expressly named in the Will as Executor, is the determinant of his status as an executor according to tenor. See Halsbury?s Laws of England 4th Edition vol. 17; Dr. Kole Abayomi SAN: Wills Law and Practice (2004) P. 129.
Clauses 10, 11, 12, 13, and 14.1 of Exhibit C1 the Will of the Testator herein, clearly show the intension of the Testator that the person named under ?TRUSTEES AND EXECUTORS? ie 1st ? 5th Respondents should administer the Will. Indeed, clause 13 states:
?GRAIL FUNERAL
I request that I be given a FUNERAL, to be organized exclusively by my Trustees and conducted in the sense of THE GRAIL MESSAGE after my passing on?.
Quite apart from this, by clauses 14.1 of the Will the 1st ? 5th Respondents are to take every step legally necessary to effect the wishes of the testator when the object of any bequest were located in an entity in which he owned majority shares.
Based on the above, I do agree with the court below that although the 1st ? 5th Respondents were not expressly appointed as executors in the Will, by reason of their job description in the Will, they are executors according to the Tenor of the Will. Although it is desirable that an executor ought to be expressly named in the Will, he can also be identified by the functions ascribed to him by the Will rather than the nomenclature with which he is described in the Will. A person mandated by the Will to perform the job of an Executor, though not so named, is indeed an executor by tenor of the Will. See in the Goods of Peverett (1902) p. 205; in the Goods of Rufus Kiaby (1902) p.188; In the Goods of Nicholas Way (1901) p. 345 at 347. In the final analysis, I hold that the court below was right when it held that although the Respondents are not directly named in Exhibit C1 as the Executors of the Estate of late Air Commodore Gbolahan Adio Mudasiru, by the very nature of the duties the Will imposes on them, they are Executors according to the Tenor of the Will. This issue, therefore, is resolved against the Appellants.
On the last issue, which is issue No. 3, it was the submission of the learned silk for the Appellants that having dismissed the Appellant?s case, the court below was wrong to procee3d to make declarations and orders in the absence of a counter claim. That the court does not award to a party wehat t6hat party has not claimed, relying on the cases of Etajate v. Ologbo (2007)s 16 N.W.L. R. (pt.1061) 554 at 588; Yusuf v. Oyetunde (1998) 10 SCNJ 1 at 20; Yaro v. Arewa Construction Ltd (20070 17 N.W.L.R. (PT. 1063) 333 AT 374 ? 375 H ?A. He urged this court to hold that the orders made by the learned trial judge at the end of trial are a nullity.
In respect of this, the learned counsel for the Respondents submitted that where the making of an order is to give effect to the judgment of the court, though not specifically asked for, the court is justified in making the order. He urged the court to hold that the order of the court below is a consequential order and should be allowed to stand. He places reliance on these cases: ie Diamond Bank Ltd. Vs Partnership Investment Co. Ltd (2009) 12 SC 159 at 185; Eagle Super Pact Nig. Ltd. V. African Continental Bank (2006) 12 SC 3 at 31. He urged this court to hold that the order made by the trial court flows from its judgment.
It is now beyond argument that a court is not a Father Christmas and as such does not award a party that which the said party did not ask for. Put differently, a court does not go out side the prayers of the parties to make orders not contemplated by them. See Yaro v. Arewa Const. Ltd. (supra). However, where the order, though not expressed asked for, it necessary, in the circum stance of the case to give effect to the final judgment of the court, the court will be justified to make such order. Such an order is usually called a consequential order which must flow from the judgment of the court. Where a new or fresh order is made by the court which does not have any bearing to the judgment, this will amount to making an order outside the claims of the parties and such an order will be declared a jollity. See Eagle Super Pact (Nig.) Ltd. Vs. African Continental Bank (supra).
In the instant case, the orders made by the learned trial judge which have given birth to this issue contain on page 923 of the record and I hereby reproduce same:
?For avoidance of doubt the cause of the claimants herein fails and the same is hereby dismissed. I formally pronounce on the validity of the Will and order that same be admitte4d to probate forthwith. I also pronounce the Defendants as the duly appointed Executors of the Estate of the late Air Commodore Gbolahan Adio Mudasiru.?
There are basically two orders made by the learned trial judge. The first is that the Will is valid and the 2nd is that the Respondents are duly appointed as Executors of the Will. Honestly, I do not seek what order has been made which does not flow from the judgement delivered by the court. The main issue ventilated by the Appellants at the court below was that the Will was not valied for various reasons which were addressed by the learned trail judge and came to the conclusion that the Will was valid and complied with a the Wills Law of Lagos State (supra). Therefore an order formally pronouncing on the validly of the Will at the end of trial cannot be said to be an order which was not asked for. It is my view that it is not only a consequential order, but indeed a necessary consequential order.
Again the Appellants had challenged the status of the Respondents vis-�-vis the Will. After a well considered judgment, the court below held that the Respondents were Executors according to the Tenor of the Will. So, making this pronouncement at the close of the judgment by way of an order is merely for emphasis. Clearly these orders are necessary to give effect to the judgment of the court and there was no need for a counter-claim before such an order could be made. This issue does not avail the Appellants and I resolve it against them.
On the whole, having resolved the three issue4s against the Appellants, I hold that this appeal lacks merit and is hereby dismissed. I affirm the judgment of the court below as ably entered by A. O. Opesanwo, J. on 15th December 2009. I shall make no order as to costs in view of the circumstances of this case.
APPEARANCES:
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Robert Clarke SAN with A. A. Odunsi Esq., A. T. Omaomi Esq.,
P. C. Kemgwu Esq., B. J. Awe Esq. and O. T. Sodipo Esq. for the
Appellants.
A. Ajagbe Esq. with B. Afolabi Esq, for the 1st -5th Respondents.
A. O. Adewale Esq. for the 6th Respondent.
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