SOKALE & ANOR v. SOKALE & ORS (2021)

SOKALE & ANOR v. SOKALE & ORS

(2021)LCN/15586(CA)

In The Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, December 06, 2021

CA/L/143/1999

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

1 ATINUKE SOKALE (Sued As Caverix To The Will Of E.A.O. Sokale (Deceased) & For Herself And On Behalf Of Her Children Ibidun Solake And Ayodele Solake) 2 The Probate Registrar, High Court Of Justice, Lagos State APPELANT(S)

And

1 VICTORIA ABOSEDE SOKALE 2 MRS. VICTORIA FREEMAN 3 KEHINDE SOKALE 4 ADETOKUNBO SOKALE (Suing as Beneficiary and Executor Under The Will Of E.A.O. Sokale (Deceased) RESPONDENT(S)

RATIO DECIDENDI

ELEMENTS OF A VALID

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): After the demise of the deceased patriarch of the parties in the suit that birthed this appeal, a Will, dated 4th November, 1982, was reportedly found in the Probate Registry of the High Court of Lagos State, the Will was said to have been made by the deceased. Upon the discovery, the 1st Appellant, for her and on behalf of her surviving Children, lodged a caveat against the said Will. This persisted, even after the warning by the Respondents.

Two suits were subsequently initiated in the High Court Suit No: M/293/87 and Suit No: LD/512/87; while the former was instituted by two of the named executors in the Will, the latter was initiated by the 1st – 4th Appellants in the instant appeal, as beneficiaries and executors of the said Will, this was vide a Writ of Summons dated 24th March, 1987, and reproduced in pages 1-3 of the record of appeal. The suits were however consolidated by the order of Court.

The Respondents, on the face of the said writ of summons, sought for the following reliefs:-

a. A declaration that the Will of Emmanuel Adesina Oguntolu Sokale dated the 4th of November, 1982 and now lying in the custody of the Probate Registrar of the Lagos State, is valid and should accordingly be admitted to probate and be pronounced for in solemn form.
b. An order for the removal of the caveat filed by 1st Defendant against the grant of probate of the said Will.
c. An order compelling and directing the 3rd Defendant to issue the grant of probate in favour of the executors and executrix of the said Will.

In the same vein, by the Originating summons dated 6th May, 1987, filed by two of the named Executors of the Will, the trial Court was prayed for the following reliefs:
a. A Declaration that the last Will and Testament of late Mr. Emmanuel Adesina, Oguntolu Sokale dated 13.11.82 be admitted to probate.
b. AN Order granting probate in favour of Mrs. J. Olusola Akinboye and Mr. Adetokunbo Sokale, the Executrix and Executor named in the Will.
c. AN ORDER dismissing the caveat lodged by Madam Atinuke Sokale, one of the wives of the late Emmanuel A.O Sokale. And
d. And such further order or orders as this Honorable Court may deem fit to make
See: Pages 6-7 of the record.

The case of the Respondents (as the Plaintiffs in the trial Court), could be gleaned from the averments at Paragraphs 11 and 14 of the statement of claim reproduced in Pages 11-13 of the record, wherein it was averred as follows:
11. The Plaintiffs aver that the said Will was validly and legally made by the deceased and was properly executed.
14. That the said Will was properly executed with the solemnities by the deceased with a complete understanding and as a free agent without any undue influence or coercion.
17. The Plaintiffs therefore claim that the Court shall pronounce for the force and validity of the said Will in solemn form of law and that the probate of the Will be granted to the executors/executrix named in the said Will.

The 1st Appellant, who was the 1st Defendant in the suit, filed the statement of defence of the 1st Defendant as reproduced in Pages 14-16 of the record of appeal, therein; the Appellants contended, inter alia, that “the signature on the purported Will of her late husband Emmanuel Adesina Sokale (deceased) is merely similar, but not his true signature”, and that same was not the Will of her late husband, she then surmised that her deceased husband died intestate.

At the end of trial, the learned trial judge, Fernandez J., in his considered judgment, delivered on 7th March, 1997 found thus:
“There was no sufficient evidence placed before me to hold that the signature on Exhibit A1 (the Will) is not that of the testator or was forged on the basis of preponderance of evidence”
The learned trial judge consequently, held that the Plaintiffs are entitled to the declaration sought in LD/512/87”

Miffed by the said decision the Appellants filed the Notice of Appeal on 6th June, 1997 and reproduced in pages 34-36 of the record of appeal.

The Appellant’s Brief was filed on 15th January, 2007 wherein two issues for determination were distilled. Thus:
1. Whether the Will dated 4th of November, 1982 allegedly made by the deceased Emmanuel Adesina Oguntolu Sokale was valid in law.
2. Whether the Will dated 4th of November, 1982, was indeed the last Will of Emmanuel Adesina Oguntolu Sokale, when considered against evidence presented before the trial Court.

It is important to note that when the appeal came up for hearing on 25th October, 2021, the Respondents, despite being served with the hearing notice were neither represented in Court nor was any brief of argument filed on their behalf. This Appeal was therefore heard on the Appellants’ brief alone and will be determined on that brief alone.

On issue one, the Appellants relied on the provision of Section 4 (1) of the Wills Law of Lagos State with respect to the requirements of a valid will. It was argued that the authentic signature of the testator is a mandatory requirement for a valid Will – Ariori v. Elemo (1983) 1 SCNLR 1-3 SC 13 at 16. That for Exhibit A to be a valid Will it must be proved sufficiently that same was signed by the testator. It was argued that the trial Court ruled that the requirement for signature was met based solely on the Respondents’ oral testimony at trial. That the trial Court’s holding was even before it could evaluate the Appellants’ evidence adduced at trial which amounts to breach of fair hearing – Kowa v. Musa (2006) 5 NWLR (Pt. 972) 1 at 39.

It was contended that the finding of the learned trial judge, after his evaluation of the documentary evidence placed before him at trial by the Appellants, with respect to Exhibits B and E, wherein the learned trial judge stated that:
“The signature of the deceased on both Exhibits B and E looks alike, although Exhibits A1, the Will in question, bore a signature which is of a corresponding nature of character to those on the Exhibits B and E”;

Further buttressed the contention that the signature on exhibits was not that of the deceased.

The Appellant reasoned that it amounts to an admission that the specimen of the signature on the said Will was different from those on the said exhibits tendered by the Appellants at trial – Oduche v. Oduche (2006) 5 NWLR (Pt. 972) 102 at 124. That the documentary evidence adduced by the Appellants validated the oral testimony adduced by the Appellants at trial. According to Counsel, the trial Court’s decision was perverse, when he held that an essential element in Section 4 (1) of the Wills Laws of Lagos State has not been infringed by Exhibit A; and that such finding has occasioned miscarriage of justice.

This Court was urged to set aside the said decision of the trial Court for being perverse. Learned Counsel further submitted that the allegation that the signature on the Will was forged, though being criminal in nature, was proved when the Appellants showed that the said signature was not consistent with the known signature of the deceased patriarch.

On issue two, the Appellants argued that the manner in which the Will was said to have been lodged was grossly inconsistent with the acceptable probate practice. That the Court’s attention was drawn to some of the said inconsistencies and the testimonies of witnesses in the trial buttressing the inconsistencies. He urged the Court to hold that there was another Will made in 1984 which was attached to Exhibit D, at trial, different from Exhibit A, the Will in contention. The provision of Section 147 (d) (now 167 (d) of the Evidence Act, 2011) of the Evidence Act was cited to submit that, the document was withheld by the Respondents and that the production of the said document would have been unfavourable to the Respondents if produced in Court. The Appellants urged the Court to allow the appeal.

RESOLUTION OF THE ISSUE IN THE APPEAL
The issue that call for determination in this Appeal is:-
Whether the Will dated 4th of November, 1982 allegedly made by the deceased Emmanuel Sokale, was valid in Law

Section 4(1) of the Wills Law Cap. 141 No. 14 Laws of Lagos State provides that for a Will to be valid it has to fulfill the following conditions:-
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 that the testator intended to give effect by the signature to the writing signed as his Will.
c. The testator makes or acknowledges the signature in the presence of at least two witnesses at the 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.
Among the mandatory statutory provision stated above is the authentic signature of the testator. Being a Mandatory Statutory Provision, it cannot be waived Ariori v. Elemo (1983) 1 (SCNLR) 1 – 3 SC 13 at 16.
For Exhibit A to be the valid Will of Late Emmanuel Adesina Oguntolu Sokale, it must be proved on the preponderance of evidence, that the signature on it is his own.

The Respondents presented two documents admitted as Exhibits B and E respectively. Commenting on these Exhibits, the trial Judge said
“The Signature of the deceased on both Exhibits B and E look alike although Exhibit A 1, the Will in question, bore a signature which is of a corresponding nature of character to those on the Exhibits B & E. (Page 32 of record).

This is an admission by the trial judge that, there is something about the signature on Exhibit A that differentiates it from that of Exhibits B and E. The trial Judge shut his eyes to the obvious when he admitted that the signature on Exhibits B and E look alike and the one on Exhibit ‘A’ only has similar character and yet took the perverse position that an essential element in Section 4 (1) of Cap 141 Laws of Lagos State has not been infringed by Exhibit A -Onu v. Idu (2006) 12 NWLR (Pt. 995) 659 at 686. It was extracted through P.W.1 that the deceased lodged the 1982 Will with the probate Registrar in 1982 (See page 27 of record). The same P.W.1 on the same page 27 under cross-examination admitted that it was the same Will made in 1982 and which was sealed that he (P.W.1) lodged with the Probate Registrar in 1984 after the death of the testator but then the seal had been removed and alterations noticed. The irresistible conclusion here is obvious, more so in the face of the evidence of P.W.2 (Probate Registrar) that they could not trace any Will deposited by the deceased in November 1982; the original Will of 1982 is missing and a new one surfaced with a signature that is not totally in tandem with the testator’s signature on other documents admitted in evidence. The irresistible conclusion is that the signature on Exhibit ‘A’ is not that of the testator and the Will cannot be of any testamentary value. This Appeal is therefore meritorious and is allowed. The Judgment of the lower Court delivered on 7th March, 1997 in Suit No. LD/512/87 by Fernandez J is hereby set aside. No cost awarded. Parties to bear their respective costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in advance, the leading judgment delivered by my learned brother: Abdullahi Mahmud Bayero, JCA I concur fully with the reasoning and conclusion in it. l, too, allow the appeal in the manner decreed in the leading judgment. I abide by the consequential orders decreed in it.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had opportunity to read the copy of the Judgement just delivered by my Learned Brother, ABDULLAHI MAHMUD BAYERO, JCA, in advance before now. I agree with the reasoning and conclusion reached by my brother and adopt same as mine.

I hereby abide the decision and the Order made.

Appearances:

Oluwale Okunila For Appellant(s)

…For Respondent(s)