MISS TUTTU DAWODU V. MRS. JOKOTADE ISIKALU & ORS. (2011)

MISS TUTTU DAWODU V. MRS. JOKOTADE ISIKALU & ORS.

(2011)LCN/4878(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 7th day of September, 2011

CA/L/125/2008

RATIO

WILL: WHETHER A VALIDLY EXECUTED WILL CAN NOT BE MODIFIED BY ANYONE OR EVEN THE COURT

It should be noted however, that a testator has the liberty to dispose of his property the way he likes and no one can modify the Will, subject of course to the Laws governing Will. In IGBOIDU VS, IGBOIDU (1999) 1 NWLR Part 585 Page 27, the Court of Appeal held that the testator’s wishes must prevail. A Will should be allowed to speak the way it was made and must not be modified by anyone or Court to suit the imaginary intention of the testator. See the Law of Succession, Wills and Probate in Nigeria by T.O.G. Animashaun and A.B. Oyeneyin MIJ Professional Publishers Limited 2002,Page 29. By the applicable Wills Law of Lagos State, Section 1 thereof provides thus:- “It shall be lawful for every person to bequeath or dispose by. his Will executed in accordance with the provisions of this law, all property by which he is entitled to either in law or equity, or at the time of his death.”This means that a person must satisfy the requirement of the Law for the Will to be valid, else it will be invalid. PER M.A. DANJUMA J.C.A

BURDEN OF PROOF: ON WHOM LIES THE BURDEN OF PROVING THE VALIDITY, THE GENUINENESS OR AUTHENTICITY OF A DOCUMENT

WILL: REQUIREMENTS OF THE LAW FOR A WILL TO BE VALID

…for a Will to be valid, section 4 (1) (b) of the wills Law of Lagos State postulates that “the Will must be signed by the testator or signed in his name by some other person in his presence and by his postulates that “the will must be signed by the testator or signed in his name by some other person in this 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 his signature to the writing, signed as his Will. PER M.A. DANJUMA J.C.A

VALIDITY OF WILL: ON WHOM RESTS THE BURDEN OF PROVING THE VALIDITY OF A WILL

This had seemingly satisfied the evidential burden placed on them to prove the validity of the Will, as the burden to prove the validity of a Will is on the person that claims it is valid and seeks to rely on it. See JOHNSON & ANOR. VS. MAJA & ORS. (1953) 13 WACA 290 at 292,Where there is a dispute as to a Will, those who propound it must clearly show by evidence that prima facie all is in order. PER M.A. DANJUMA J.C.A

RULE OF INTERPRETATION: POSITION OF THE LAW WHERE THE WORDS USED OR THE PROVISION OF ANY SECTION OF THE LAW ARE CLEAR AND UNAMBIGUOUS

The provisions of the Wills Law as in all laws where they are clear and unambiguous, must be given their ordinary and literal meaning. See ATTORNEY-GENERAL OF THE FEDERATION VS. THE GUARDIAN NEWSPAPER (1999) 9 NWLR (Part 618) Page 187,In the case aforesaid IGU JSC at page 264, paragraph G – H had this to say:- “…And where the words used or the provision of any section of the law are clear and unambiguous, they must be given their ordinary meaning unless, of course, this would lead to absurdity or be in conflict with other provisions of the law.” PER M.A. DANJUMA J.C.A

Before Their Lordships

CLARA BATA OGUNBIYIJustice of The Court of Appeal of Nigeria

HELEN MUKHTARJustice of The Court of Appeal of Nigeria

M.A. DANJUMAJustice of The Court of Appeal of Nigeria

Between

MISS TUTTU DAWODUAppellant(s)

AND

MRS. JOKOTADE ISIKALU & ORS.Respondent(s)

M.A. DANJUMA J.C.A, (Delivering the Leading Judgment): This is an appeal against the Judgment of the Lagos State High Court delivered on 4th May 2006. The Record of Appeal thereof which was entered on 7th June 2010 contains the said Notice of Appeal filed on 7th June, 2006 and is found specifically at page 158 of the said record. The said record was entered out of time pursuant to the order of this Court for extension of time within which to transmit the said record, and upon a motion of 23rd March, 2010 moved and granted on 7th June 2010.
The Notice of Appeal was amended following a Motion filed on 25th of September 2008, which was granted on 10th June 2010. The Amended Notice of Appeal has 8 grounds.
The said Amended Notice of Appeal was accordingly filed on 11th June 2010.
The Appellant’s Brief of Argument was filed on 11th June 2010 and within time. Upon the said Appellant’s brief being filed and served, the Respondent on her part filed the Respondents’ Brief of Argument on 23rd June 2010. It is dated 21st June 2010. Be it noted that, upon a Motion on Notice filed on 29th July 2010, which was granted on the 8th of March 2011, the Appellant was granted an extension of time to file and serve the Appellant’s Reply Brief of Argument, the said Reply Brief of Argument filed on 27th July, 2010 was deemed properly filed on 8th March 2011 upon an Order to that effect on the said date.
The Brief facts of the case at the trial are as follows:-
The Suit leading to this appeal as can be gleaned from the Record of Appeal and the introductory facts as narrated by the Respondents in their Brief of Argument shows a case with a chequerred history of about 13 years in respect of the ownership of the property situate at No. 19, Igbosere Road, Lagos which originally belonged to the grand parent to the parties to this suit.
The Claimants and the Defendant’s mother originally jointly executed a deed of sub-lease for development of the subject matter of the suit, the father of the Claimants having predeceased the Defendant’s mother.
The Developer moved on to the site and commenced the development by demotion of some part of the existing dilapidated structure to give way for the new development.
The Defendant’s mother who was resident at the subject matter died suddenly. The Defendant chased out the developer’s workmen and claimed that at the death of her mother, the property belonged solely to her as the sole heir. Defendant/Appellant has since remained in sole occupation; collected rents on portion of the property let out and truncated development of the property.
The Defendant’s mother, in her Will, tendered in evidence at the trial, acknowledged the rights and interest of the Respondents in the said property, but Appellant denied the making of such a will and therefore the existence of any benefit thereon and in respect of that said property.
It is upon these facts that the Claimant now Respondent approached the High Court of Lagos State for some reliefs.
At the trial, the plaintiffs now Respondents had claimed per paragraphs 21, 22 and 23 of their Statement of Claim dated 10th day of November 2003 for the following reliefs:
1. A Declaration that the property No. 79 Igbosere Road, Lagos is family property vested in the Plaintiffs and the Defendant jointly.
2. A Declaration that the sublease dated the 31st of December 1992 is valid and subsisting.
3. An Order of specific performance of the sublease and general damages in the form of N250,000.00 from the Defendant.
The Defendant filed a 15 paragraphed Statement of Defence and counter-claim dated 28th November 2003, to which the Plaintiff filed a 7 Paragraphed Reply to Defence and Counter-claim dated 13th of January 2004 (See pages 61 – 64 of the Record of Appeal).
The hearing of the case which opened on 6th day of April 2004 culminated in the decision appealed against and by which the trial court entered Judgment as follows:-
1. It is hereby declared that the property at No. 19 Igbosere Road, Lagos is a family property vested in the Claimants and Defendants jointly.
2. The Claimant’s claim for a declaration that the sublease dated 31st December, 1992 is valid and subsisting is hereby refused.
3. The Claimant’s claim for specific performance of the unregistered sublease is hereby refused.
4. The Defendant is to render account of all monies (sic) received from the property since 1993.
5. The Claimant’s claim for general damages in the form of N250,000.00 from the Defendant is hereby granted.
6. The Defendant’s counter-claim is hereby dismissed.
7. Costs in the sum of N10,000.00 is hereby awarded in favour of the claimants. It is upon the aforesaid Judgment and orders as made that this appeal was lodged.Dissatisfied, the Defendant has now appealed as indicated earlier in this judgment.
For their prolixity, I shall not reproduce the Original Grounds of Appeal nor the Amended Grounds thereof. I shall however refer to them in the Course of the discourse or consideration of the issues for determination as raised and argued by the respective parties through their counsel.
At the hearing of the appeal, the Appellant formulated the following issues for determination, to wit:
1. Whether the learned trial judge was not in error when he pronounced the Will to be invalid. This issue is tied to the Additional or Amended Grounds No. 1 and 2 of the Notice of Appeal.
2. If the answer to Issue No. 1 is in the affirmative, whether the learned trial judge was not in error when she held that the property is family property which the Claimants can inherit a part thereof. This is distilled from the Original Ground 3 and the 2nd additional Ground of Appeal.
3. Whether the learned judge was not in error in entertaining the claim for specific performance and granting general damages and an order for account. This is tied to Original Ground 2 and the Additional Ground 4.
Similarly and in response, the Respondent has formulated 2 issues for determination to wit:-
1. Whether the Will of Madam Adeline Otolorin Kasumu was valid in law in the absence of due execution by the Testator?
3 Issues
2. Whether the property in dispute, which belonged to the grand-mother of the parties, is family property in the absence of any bequest to the mother of the Appellant solely in any Will?
3. Whether the judgment in favour of the Respondents for account and general damages are sustainable?
The Issues are similar and I, therefore, adopt the Appellant’s issues and shall so treat the appeal thereupon.
As stated earlier, the Appellant by her counsel Chief Adegunle Esq. adopted the Appellant’s Brief of Argument and the Reply Brief. He cited as an additional authority, the case of RAIMI VS. AJAPIJ (1980) 5 – 7 SC 96 at Page 118 and urged that the appeal be allowed.
Makinde Esq., learned counsel for the Respondent on his part had argued in the summation of Issue No. L that the Will, though lodged was not executed and therefore was invalid.
On their 2nd Issue, Makinde Esq submitted that the challenge to the non-payment of the appropriate fee for the claims in general damages made had no basis. It was his contention that the fees was appropriately paid within the requirement of the Lagos state High Court Law and specifically the Lagos State Legal Notice No. 6, 1991 and Lagos State Legal Notice No. 6 of 2001. Schedule A, item 1(A) thereof whereunder counsel submitted that for a claim of between N250,000.00 to N500,000.00 a fee of N1,000.00 was payable. He submitted that the Respondent had made the requisite payment thereunder the said claim.
It was also contended that since the quantum was not in challenge, it should be sustained as it cannot be set aside upon the ground raised, which related to the alleged non or inappropriate payment of fees.
In detail, the learned counsel for the appellant referring to pages 109 and 114 of the Record of Proceedings which contains the evidence of the Plaintiff (i.e Claimant) and Respondent at the trial submitted that the Defendant had corroborated the testimony of the Plaintiff that a Will was made by their grand-mother. That the Respondent was only not sure whether the Will was lodged or not. Appellant’s counsel therefore submitted that it was paradoxical; that a conclusion could be reached that there was not valid Will made. Referring to the evidence led at the trial in respect of the contention relating to the making of a Will, learned counsel referred to the evidence of the claimant at pages 109 and 114 of the Record and submitted that there was proof of the making of a Will by the grand parent of the parties, by which the Defendant’s father was disinherited, thus entitling the Claimant to the reliefs sought at the trial.
At page 109 of the record, the Claimant testified as follows:-
“Yes my grand-mother is late. She died in 1954 or 1955. Yes, she was ground (sic mother) of my late dad and the Defendant’s mother Mrs. Bruce. My grand-mother made a Will. She made a Will at the time of Mrs. Adeline Kasumu’s death”. At page 111, Claimant continued – “Yes my late grand-mother made a Will. I am not aware whether it was lodged.”
Under cross-examination, claimant stated at Page 114 of the Record thus-
“Yes his name was Claudius Adetokunbo Kasumu. Yes my parent’s grand-mother is Adeline Otolorin Kasumu. Yes she owned the property 19B Igbosere Road, I should think she made a Will. I don’t know about the Will saying my father should be given the sum of ?5. I don’t know about whether she forbade my father from coming to her corpse or having anything to do with the Estate. If the Will is altered, I will not be surprised.
The claimant says she had seen something like the copy of the Will shown to her by counsel and had no objection to its tender in evidence.
It was admitted as Exhibit TD1. It was argued that the property No. 19 Igbosere Road, Lagos was not specifically mentioned in the Will; and that it therefore formed part of the residual estate. Counsel referred to paragraph 11 of the will wherein it is provided that:
“I hereby devise, give and bequeath unto my daughter Rosaline Adeola Kasumu any other property both real and personal not disposed of by this Will or of which I may die possessed of.”
It was submitted that although the sole witness for the plaintiff i.e. claimant testified at page 114 of the Record that his father was not distanced from the estate been claimed by the Defendant, the Defendant had by the pleadings at paragraphs 4 and 5 shown that there was a Will made and that by the said will the Plaintiff’s father had been disinherited by his mother and banned from having anything to do with the said property or testator’s corpse. That the property devolved on the Defendant’s mother and devolved on her generation and was not a family property of both the Plaintiffs and Defendants.
Based on the state of pleadings and evidence captured aforesaid, the Appellant’s learned counsel submitted that the non cross-examination of the Defendant in this respect at the trial showed that there was a Will by which the Claimant’s father had been disinherited and that the Will was valid.
It was also submitted that the fact of the tender and admission of the Will, showed that it was lodged moreso, that it was a Certified True Copy thereof that was tendered.
Learned counsel submitted that the deposit of a Will in a Registry from whence it was produced and tendered was a significant fact in favour of due execution of the Will. That it constituted a prima facie evidence that was in order. That there was uncontradicted evidence that the Claimant’s father was a rent paying tenant in the said property. That the making of a Will was further proved by the evidence of the Claimant themselves to the effect that their grand-mother made a Will and their confirmation that their father was mentioned.
It was submitted further and relying on the authority of the case of AGIDIGBI VS. AGIDIGBI (1992) 2 NWLR (Pt. 221) 98 at 118 paragraph E – G that since the Will was produced from the probate registry and was certified, it was a significant fact and moreso, that there was a prima facie evidence in support of the Will being propounded that the onus shifted to those who attack the Will and that they are required to substantiate by evidence the allegation they have made against the existence and validity of the Will. See JOHNSON & ANOR VS. MAJA & OTHERS (1951) 13 WACA 290,
Counsel referring to the Reply to the Statement of Defence as contained at page 64 of the Record of Proceedings submits that the averments or pleadings have been left barren without proof by way of supporting evidence. That since there was a certified copy of the Will in evidence, and in the absence of any challenge to the certification and also in the absence of proof of their pleading of the application for search and/or outcome of the alleged search at the probate registry, the presumption was that such application was not made and or that the outcome was unfavourable to the pleader should be made, pursuant to Section 149(1)(d) of the Evidence Act.
The cases of ADENLE VS OLUDE (2002) 18 NWLR (Pt.799) 413 and MABOGUNJE VS. ADEWUMI (2006) 11 NWIR (Pt, 991) 224 at 251 paragraph G – H.
Upon the aforesaid submissions, this Court has been urged to resolve Issue No. 1 in favour of the Appellant and to hold that the trial Judge was in error in holding that the Will was invalid.
Arguing on their 1st Issue which in essence is the same as the Appellant’s Issue No. 1, learned counsel for the Respondents referred to Statement of Defence and Counter-claim dated 28th November 2003 at pages 61 – 63 of the Record to the Reply to the Statement of Defence and counter-claim at page 64.
That Appellant in paragraphs 4 and 5 of the Defence and counter-claim had alluded to the fact that a Will was made by Madam Adeline Otolorin Kasumu wherein the father of the Respondent was disinherited and pointed out that the Respondent had raised the issue of lack of due execution of the purported Will and challenged the authenticity of the certification of the Will as a Certified True Copy for purpose of true lodgement in Court. Paragraphs 1 and 2 of the Reply to defence and counter-claim referred and the evidence at pages 111, 114, 117 and, 118 of the Record. It was contended that due execution of the Will had not been proved and therefore was rightly set aside. Learned counsel relying on Section 4(1) (b) of the Wills Law of Lagos State Cap I94, submitted that Exhibit TD1 as admitted at page 114 of the Record was never signed by the testator or any attesting witness hence the failure to satisfy the requirement of due validity. That this omission rendered the Will invalid.
The case of OKELOI-A VS, BOYLE (1998) 1 SCNJ 63 was referred. Counsel on this issue, concluded on the score that it was erroneous to have conceived the issue of lodgment of the purported Will at the Probate Registry perse as conferring validity on the Will.
This issue argued aforesaid is the pivotal of the appeal and indeed the threshold of the case at the trial court.
It is for this reason that I shall endeavour to consider at great length the arguments on the validity or otherwise of the Will (Exhibit TD1).
Before then, I should state that since parties are apparently ad idem regarding the fact that a Will, was made but the nagging question is as relating to its validity, it would be considered that the relevant work of this Court in this respect is to consider the evidence led in respect of the Will and the Exhibit TD1 and then proceed to place or scrutinize it against the provisions of the Wills Law of Lagos State in order to arrive at a just decision as to its legal validity or otherwise.
It should be noted however, that a testator has the liberty to dispose of his property the way he likes and no one can modify the Will, subject of course to the Laws governing Will. In IGBOIDU VS, IGBOIDU (1999) 1 NWLR Part 585 Page 27, the Court of Appeal held that the testator’s wishes must prevail.
A Will should be allowed to speak the way it was made and must not be modified by anyone or Court to suit the imaginary intention of the testator. See the Law of Succession, Wills and Probate in Nigeria by T.O.G. Animashaun and A.B. Oyeneyin MIJ Professional Publishers Limited 2002,Page 29.
By the applicable Wills Law of Lagos State, Section 1 thereof provides thus:-
“It shall be lawful for every person to bequeath or dispose by. his Will executed in accordance with the provisions of this law, all property by which he is entitled to either in law or equity, or at the time of his death.”This means that a person must satisfy the requirement of the Law for the Will to be valid, else it will be invalid.

The burden, however for the proof of validity of the document, the genuineness or authenticity lies on the person propounding it and once this is satisfied, the burden is cast upon those attacking it. See ITA VS. DADZIE (2000) 4 NWLR Pt. 622 Page 168.
The Appellant has made a claim in respect of their entitlement appertaining, the property covered by Exhibit TD1
Respondent denied the entitlement and asserted that there was no such entitlement, as there was a will which had bequeathed the said property to her mother solely and with her mother’s death she was a sole beneficiary.
Appellant denied the validity thereof, Respondent said it was valid. Exhibit TD1 is in writing as required by Section 4(1) of the Wills Law of Lagos State 2003.
It should be noted that a will that does not comply with the provisions of the Wills Act or Law is invalid but may still be valid under Customary Law. See E.T. NWOGUGU – Family Law in Nigeria. Heinemann Educational Books (Nigeria) Plc. Revised Edition at pages 397 and 398,
Furthermore, for a Will to be valid, section 4 (1) (b) of the wills Law of Lagos State postulates that “the Will must be signed by the testator or signed in his name by some other person in his presence and by his postulates that “the will must be signed by the testator or signed in his name by some other person in this 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 his signature to the writing, signed as his Will.
Exhibit TD1 was challenged as the authenticated valid and last Will of Mrs. Adeline Otolorin Kasumu. It was objected to at the trial per the evidence of DW1, one Coldet Adetuttu Dawodu at page 117 of the Record of Appeal, wherein she stated that the tendered Will shown to her was not a copy of the Will. That the Will of her grand-mother Adelinc Otolorin Omoyele Kasumu could be recognized by her. That she had a copy and could recognized, a copy of the Will, but not the Exhibit shown to her. That what was shown her was handwritten, whereas the authentic Will was typewritten. That it was not the authenticated copy.
Counsel for the Defendant asked for time to authenticate the Will. See page 177, line 14 of the Record.
If the Will be as testified to, it is obvious that the Claimant had propounded the Will and seemingly appears to show that the Will was valid. If that is so, the burden cast on them would have been technically satisfied. This piece of evidence of the DW1 at the trial remained unchallenged, as argued by the learned counsel for the Respondents.
The first Claimant’s witness at the trial court denied any knowledge of the Will- Exhibit TD1 which gave her father 5 pounds and that she would be surprised and that her grand-mother did disinherit her father from the Estate.
I have perused the evidence led at the trial and the submission of counsel on appeal and I agree entirely with the trial court when it reasoned at page 148 of the record of trial that the presumption of regularity applies to the making of a Will so long as it is prima facie regular on its face and made by a testator that suffers no mental disability.
That is to say, that the compos mentis must be intact, as appertaining the testator or testatrix.
By the evidence of the Defendant, it appears that the Appellant who propounded the Will had shown prima facie that the Will was made in compliance with the provisions of the afore referred Section 4(1) of the Wills Law of Lagos State.
As I stated in my concurring judgment in the case of Mrs. Folukc Mudasiru and 3 others CA/L/58/10 delivered on 4/3/11 and reported in… ” This had seemingly satisfied the evidential burden placed on them to prove the validity of the Will, as the burden to prove the validity of a Will is on the person that claims it is valid and seeks to rely on it. See JOHNSON & ANOR. VS. MAJA & ORS. (1953) 13 WACA 290 at 292,Where there is a dispute as to a Will, those who propound it must clearly show by evidence that prima facie all is in order. That is to say that the testator had the necessary mental capacity and was a free agent.
Once they have satisfied the Court, prima facie it seems to me that the burden is then cast or shifts or oscillates as the swigging pendulum upon those who attack the Will and that they are required to substantiate by evidence the allegation they have made as to lack of capacity, undue influence and so forth.”
Unlike the Mudasiru case supra, wherein the compos mentis i.e.the mental state of the Testator was not questioned at all, nor the testamentary capacity of the Testator or any other vitiating element raised, learned counsel for the Appellant in a passing reference in his brief of argument made an issue of the compos mentis of the testatrix and a veiled issue as to undue influence when he observed that Mrs. Akinkugbe was a solicitor to the Defendant’s mother (now Appellant) i.e. testatrix, which client was a neurologically defective person.
There was no evidence led in respect of this assertion as it was not in issue, neither was it an issue arising from the decision appealed against.
I shall therefore not dwell further on those fears expressed.
However, this issue appertaining the validity or otherwise of the Will in my view is a straight issue that can be resolved by o perusal of the said Will Document (i.e Exhibit TD1) that is challenged.
A perusal of the said exhibit ex facie shows that there is no second attesting witness to the said Will as required by law.
A careful look or perusal of the said exhibit appears to show that it is a handwritten document made “all through” by one or same person as the uniformity and sameness of the writing is obvious such that the lone signatory Helena smith (the lone witness) may have either inscribed the writing indicated as that of a second witness or the purported testatrix (herself) did the entirety of the writing. It could also be by an unknown or unstated person.
While the court is by no means constituting itself into a handwriting expert, the analysis is intended to bring out the fact that there is only one attesting witness to the Will (which is itself suspect).
The admission during cross examination of the fact of the existence of a Will by the Respondent (then Claimant) at the trial is by no means, an admission of its validity however.
The Claimant at pages 109 and 114 of the Record, during cross-examination infact doubted the validity of the purported Will and stated that. ..”if the Will is altered, I would not be surprised…”
It is obvious to me that from the tenor of the testimony of the Claimant at the trial, it cannot be conclusively unequivocal that she admitted the existence of the Will tendered and as being valid.
In this respect, I do not think the non cross examination of the Defendant by the Respondent was of any moment or even if the grandmother of the Defendant and the father of the Claimant (i.e Plaintiff) hated themselves and were always quarrelling and the testatrix’s grand-mother intended to disinherit the Claimant’s father, the testamentary intention which ought to be respected, can only be given effect to where there is absolute compliance with the requirement of the Wills Law.
The provisions of the Wills Law as in all laws where they are clear and unambiguous, must be given their ordinary and literal meaning. See ATTORNEY-GENERAL OF THE FEDERATION VS. THE GUARDIAN NEWSPAPER (1999) 9 NWLR (Part 618) Page 187,
In the case aforesaid IGU JSC at page 264, paragraph G – H had this to say:-
“‘……And where the words used or the provision of any section of the law are clear and unambiguous, they must be given their ordinary meaning unless, of course, this would lead to absurdity or be in conflict with other provisions of the law.”
I am not unmindful of the fact that a Will must be the intent of the testator and should be so construed, but where it falters on the part of legal regularity, it must not be enforced and must indeed be declared invalid’ It should be pointed out that the reason of improper execution of the Will as raised based on absence of attestation clause (see page 149 of the record containing part of the Judgment) is obviously not a good reason for the invalidation of the said will as reasoned by the learned trial Judge.
There is sufficiency of attestation clause but a defect exists in the number of witnesses that executed the attestation.
The subscribing witnesses fell short of the mandatory minimum of 2 (two) required by section 4(1) of the wills Laws Cap 194 Laws of Lagos State 2003.
The learned trial Judge however went close to the above view when she made a finding of fact that there was the testimony of the Respondent i.e Defendant at the trial that the Will was neither signed by the testator nor executed by attesting witnesses. (See page 149 of the record – first 3 lines thereof).
This unchallenged findings of facts stands. It is for the aforesaid reasoning that I accept the argument of the Respondent’s learned counsel and rely on section 4(1)(b) of the wills Law of Lagos State and OKELOLA V. BOYLE (1998) 1 SCNJ 63, in coming to the conclusion that the said Will is invalid for want of due execution’
The Will was, from the evidence led, not duly lodged nor produced or proved as a duly executed and attested Will. It enjoys no legal validity or efficacy as sought. The reply address of the Appellant did not make it better either.
Issue No. 1 is answered in the negative and in favour of the Respondent herein for the reasons set out above’
Issue No. 2 as to whether the trial judge was not in error in holding that the subject matter was family property in which the Respondents can inherit a part thereof.
On this issue, learned counsel for the Appellant submitted that the subject property No. 19, Igbosere Road, Lagos was a residuary estate which fell to the Appellant’s mother as her inheritance from the bequeath or devise to her late mother, Mrs. Adeline Otolorin Kasumu. Counsel reproduced paragraph 11 of the said will Exhibit TD1 wherein the devise of “any other property both real and personal not disposed of by this will or of which I may die possessed of” was made to Rosaline Adeola Kasumu by Adeline Otolorin Kasumu. Referring to Black’s Law Dictionary wherein “residue” is defined as – “the surplus of a testator’s estate remaining after all the debts and particular legacies have been discharged.” Anchoring upon this definition, it was submitted that since the house, i.e. property in contest was not specifically bequeathed and was in possession of the only daughter of the testatrix, who had been bequeathed “any other property both real and personal not disposed of by this Will or which I may die possessed of; the mother of the defendant had the absolute ownership of the property devised and it did not pass on intestacy. That the property was the heritage of the defendant from her mother who inherited the residuary estate under the defendant’s grand-mother’s Will.
The Respondent in her address submitted that the onus was on the party claiming family property as personal property or land to prove that she as a claimant is entitled to the property against all other family members.
It is the contention of the Respondents that the said property had become family property upon the invalidity of the will Exhibit TD1; that the Will was invalid and therefore the grand-mother of the parties was in law, a deceased in intestacy.
It is trite that upon the invalidity of the purported Will (Exhibit TD1) of the grand-mother of the parties herein, the subject property in contest fell as property in intestacy. In the same manner as the Appellant had conceded that her mother made no Will and therefore died intestate’ with her alleged property in dispute passing solely to her on intestacy, I find and hold that upon the invalidity of Exhibit TD1, the residuary devise of No. 19 Igbosere Road, Lagos fell as an inheritance in intestacy.
The learned trial Judge, while referring to C.O. Olawoye in his book, “Title to Land in Nigeria”, at page 23 thereof held that the parties in this appeal, being grand children of the late Madam Adeline Otolorin Kasumu were both entitled to the property in the absence of a valid Will.I agree. The invalidity of Exhibit TD1 – the Will and the death of the progenitor (owner of property) and the parents of the parties herein, without more vests the property as inheritance of the Claimants, none of whose parents had been proved to have been given the said property by a nuncupative gifts or purchase before the purported testatrix’s demise.
It is therefore no surprise that the Appellant did not deem it wiser to make any further heavy weather out of this issue in her Appellant’s Reply Brief of Argument.
Indeed, Exhibit 112 provides at the recital of the sublease agreement that Adeline O. Kasumu died intestate (see paragraph 2 of the recital). I have perused the evidence of the parties at the trial as contained in the Record of Appeal and have no hesitation in agreeing with the trial court that the nexus between the parties as testified to makes it compelling and in the face of the failed or invalid Will and the evidence coupled with Exhibit J12 showing joint interest and communality and mutual protection of interests that the parties considered the subject property as family property. I so endorse that stand.
On the 3rd issue as to whether the trial judge was not in error in entertaining the relief for (1) Specific performance (2) Damages and (3) Account.
The Appellant had argued that a statement of claim having been filed, even upon the order of court in respect of an originating summons, there was the legal imperative to pay the filling fees or1 all the heads of claim even though the summons had been earlier paid for. That the payment of the summons fee of only N100.00 was not appropriate. That the claims made in the statement of claim were not made in the originating summons and that the court had no jurisdiction to adjudicate thereon therefore.
That the payment of the requisite fee was a condition precedent to the Court having or exercising jurisdiction. That the compliance with a condition precedent was the sine qua non for the validity or authenticity of any act or legal process taken.
NNPC VS. TIJANI (2006) 17 NWLR (Pt.1007) 29 at 45 Paragraph C – D; GOVERNOR OF EBONYI STATE VS. ISUAMA (2004) 6 NWLR (Pt.870) 511 referred.
Reference was also made to the cases of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; CHIME VS. CHIME (1995) 6 NWLR (Pt. 404) 734.
On the submission that a defect in the competence of a Court is fatal and the proceedings are nullities in that respect, referring to OKOLO VS. UBN LTD. (2004) 3 NWLR (Pt. 859) 87, it was submitted that the non-payment of filing fees as a condition precedent to the assumption of jurisdiction by the Court rendered the non-payment of such fees mandatory and the Court without jurisdiction where appropriate filling fees was not paid.
It was further submitted that where the non payment of filing fees was only in respect of some heads of claim, those claims were rendered outside the Court’s jurisdiction.
ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (Pt.424) 252; ABIA STATE TRANSPORT CORPORATION VS. QUORUM CONSORTIUM LTD. (2004) 1 NWLR (Pt.855) 601 at 629 – 630 referred.
On the totality of the argument on this issue, the Court was urged to allow the appeal for the non payment of summon fees.
In reply, the Respondent submitted that the Appellant had rightly submitted that the suit was commenced in 1993 under the relevant High Court Civil Procedure Rules of Lagos State then in force. That Appellant had conceded to the payment of the requisite filing fees then. That the ordering of pleadings in 2003 did not warrant the further payment of filing fees in respect of the claims when such statement of claim was filed. That the Respondent had complied with Appendix J Regulation 3 of the 1973 Rules and had no obligation under the then existing 1994 High Court of Lagos State Civil Procedure Rules then in force, when pleadings were ordered; that the heads of claim sought to be impugned on the ground of non payment of fees thereon were valid; justifiable and sustainable as there was no further payment of statutory fees required under the 1994 High Court of Lagos state civil Procedure Rules.
That the appeal lacks merit and should be dismissed with costs. I had perused the arguments of both learned counsel on this issue, and think that the suit having been properly filed at the 1st instant, the conversion of same into a case tried upon pleadings ordered by the Court did not render the reliefs challenged invalid merely because they were not separately paid for under the Rules in force at the time of the order.
Filing fees, as appropriate, having been paid, the validity of the claims had been subsumed in the originating summons claim and the jurisdiction of the Court was accordingly so activated under same and pursuant to the said 1st payment. It is in this respect that the Appellant in her Reply Brief of Argument had submitted that the non payment for the specific heads of claim complained of under the 1994 Rules, rendered the awards in respect of those claims wrongful. He contended that under the 1994 High court civil procedure Rules, the fees chargeable were contained in the Lagos state Legal Notice No. 6 of 1991, High Court of Lagos State, increase of Fees Rules 1991, CAP 60, Laws of Lagos State, 1994.
That provisions are made for the fees chargeable; and the initialing of a process by the Registrar was not conclusive proof that the payment had been made. That initialing a process was only proof of submission for: filling and cannot be a substitute for payment; submitted that a process not duly paid for did not exist in law. See OGU OKO MEMORIAL FARMS LTD. & ANOR. VS. M.A. & CB LTD. & ANOR. (2008) 4 SC 95 at 108.
The Court was urged to discountenance the Respondent’s submission.
I have raptly perused the arguments of the respective counsel on this issue relating to payment and of the statutory fees. I have also perused the Record of Appeal and observe that the originating summons by which this suit was commenced took off in 1993. It was filed on 9th December 1993 and not only initialed but sums of money are indicated thereon. It is contained at page 1 of the Record of Appeal, as rightly pointed out by counsel.
The suit was therefore commenced prior the 1994 High Court Civil procedure Rules which had the 2001 Legal Notice – fixing appropriate fees, as its applicable statutory fees payable thereunder.
That being the case, therefore, I agree with the Respondent’s counsel when he submitted that there was no schedule of fees under the 1993 Rules to be paid by the Respondents to validate their claims.
I am content to state that the endorsement or initialing on the said Statement of Claim was prima facie evidence or proof that all necessary preconditions for the validity of such process had been complied with.
It is trite that when an Act is shown or appears to have been regularly done, the presumption is that all conditions for its regularity have been complied with. This statutory presumption finds support in the acclaimed Latin Maxim-Omnia rite esse presumptur rite acta, i.e. there is a presumption of regularity in respect of official deeds or actions.
It is for the above additional reason that I hold that Issue 3 should be resolved against the Appellant and in favour of the Respondents.
The learned trial Judge was not in error in entertaining reliefs (1) (2) and (3) in the Statement of Claim filed in 2003, subsequent the originating summons of 1993 and pursuant to the order of court.
Exhibit TD1 is handwritten and not typed as testified to in defenee by DW1 unchallenged.
Although Exhibit TD1 appears to have been executed by the testatrix, Adeline Otolorin Kasumu, who is expressed as having signed the said Exhibit as her “last Will Testament” and her name appears thereon beside the letter “sgd” – which I take judicial Notice of as representing the word ‘signed’; and although 2 (two) witnesses are expressed on the said Exhibit TD1 as the witnesses who appended their names and signatures immediately thereafter execution as the attesting witnesses who were both present at the same time and who witnessed the testatrix’s will’ it must be observed that one Helena smith of 60 Bamgbose Street, Lagos signed as the 1st witness. An unnamed person with the insignia of 3 Nos. of question marks and of 1 Biney Road, Surulere, signed as a purported 2nd witness.
It is, therefore, prima facie obvious on the face of the said Exhibit TD1 (the purported Will) that no.2 witnesses attested to the said Will. It is not witnessed by at least 2 persons.
In this wise, the submission of the learned counsel to the Respondents that the Appellant’s counsel’s purported application for search of the Probate Registry and the non tender of such application and the result thereof, was proof or raised the presumption under section 14(1)(d) Evidence Act that no such valid Will existed or was lodged, appears credible.
The mere production of Exhibit TD1 and its tender and admissibility, notwithstanding any objection as done by the Plaintiff/Appellant does not ipso facto validate a Will that fell foul of the essential requirements for validity under the Wills Law of Lagos State, Section 4 thereof.
Although the compos mentis of the Testatrix was trot questioned at the trial, nor was it raised in the appeal being determined, there was however a subtle reference to that fact by the Appellant’s counsel. That passing remark did not constitute proof of incapacity.
The Will does not suffer the incident of invalidity upon this ground, however.
All said and done, and having resolved, against the Appellant and in favour of the Respondents all the 3 Issues which have been raised by the parties in a simile form, I hasten to hold that, the appeal herein, appears only to be an ingenious exercise and lacks merit. It is dismissed and the judgment of NICOL CLAY, Judge delivered in Suit No. M/748/1993 between MISS TUTTU DAWODU VS. MRS. JOKOTADE ISIKALU & ORS is accordingly affirmed, with no order as to costs as the parties are members of same family with only a subtle misapprehension as to the purported Will of their common benefactor – as relating to No. 19 Igbosere Road, Lagos in respect of which all sides are enjoying benefits. Appeal dismissed.

HUSSEIN MUKHTAR, J.C.A: I have seen before now, the judgment of my learned brother Danjuma JCA just delivered with which I entirely agree. I adopt the reasons therein as mine and dismiss the appeal for lacking in merit and affirm the judgment of the court below delivered on the 4th May 2006. I also adopt all other consequential orders made in the lead judgment.

CLARA BATA OGUNBIYI, J.C.A: I have read in draft the lead judgment just delivered by my brother M.A. Danjuma (JCA). I agree that the appeal herein is lacking in merit and I also dismiss same in like terms per the reasonings of my brother inclusive of the order made as to costs.

Appearances

Chief Bisi Adegunle,
I.A. Abina (Miss)For Appellant

AND

A.M. Makinde,
I. Igbonie,
C.N. Obasa;
E.A. Udeolisa and
I.J. OputaFor Respondent