GEORGESTONE v. NYA
(2022)LCN/16730(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, April 06, 2022
CA/C/327/2017
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
PRINCESS OKANG FRANCES GEORGESTONE APPELANT(S)
And
MRS. BENEDICTA ANTHONY USANG NYA (FOR AND ON BEHALF OF THE FAMILY, HEIRS AND SUCCESSORS OF THE LATE ANTHONY EDEM USANG NYA) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON A VALID WILL
A Will or Testament is a legal document by which a person, the testator, expresses his wishes as to how his property is to be distributed at death. The most important things to provide for in the Will are who will be your executor, and who will be the beneficiary.
For a Will to be valid the following must be established:-
(a) It must be made voluntarily,
(b) It must be in writing,
(c) It must be signed by the testator,
(d) The signature of the testator must be acknowledged by at least 2 witnesses,
(e) The testator must be of sound mind,
(f) It must name the beneficiary or beneficiaries, and
(g) It must identify the property. PER SHUAIBU, J.C.A.
THE POSITION OF LAW ON THE BURDEN OF PROOF OF THE VALIDITY OF A WILL
The law is settled that a person who desires to make a Will must satisfy the requirement of law for the Will to be valid, else it will be invalid. Furthermore, for a Will or testamentary intention of a deceased person who ought to be protected, to be given effect to, there must be absolute compliance with the requirements of the Will Law.
It was held in plethora of cases that the burden for the proof of validity of a Will, the genuiness or authenticity thereof, lies on the person propounding it. Once this is satisfied, the burden is cast upon those attacking it. See ANYA V. ANYA (2020) 9 NWLR (prt.1729)411 at 421–422, OKEKE V. OKEKE (2019) 17 NWLR (prt.1701) 267 and NWEKE V. NWEKE (2019) 15 NWLR (prt.1694) 123. PER SHUAIBU, J.C.A.
THE POSITION OF LAW WHERE THERE IS A DISPUTE AS TO THE AUTHENTICITY AND GENUINENESS OF A WILL
I have stated elsewhere in this judgment that whenever there is a dispute as to the authenticity and genuiness of a Will the burden of proof lies on the propounder of the Will before it shifts to the party challenging same. Thus, the party who propounds must adduce sufficient evidence to prima facie demonstrate that all is in order with the Will in terms of the twine requirements of due execution that is, the testator was of sound disposing mind and was a free agent. Upon satisfaction of these requirements, the burden will shift to the challengers of the Will to prove the contrary by cogent and credible evidence. See NWEKE V. NWEKE (Supra).
In DAWODU V. ISIKALU (2019)4 NWLR (prt. 1663) 409 at 419, the Supreme Court has held that an overriding condition for the validity of a Will is that it must be completely free from any suspicion or suspicious circumstances whatsoever, and the Court unless the suspicion or suspicious circumstances is removed, will pronounce against it and refuse probate. Also in OKELOLA V. BOYLE (1998) LPELR–2339 (SC), the apex Court was emphatic that where a document is ex facie duly executed the Court may pronounce for it on the maxim omnia pracesumumtur rite esse acta. However, this maxim only applies with force where the document is entirely regular in form and no suspicion attaches to the Will. PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): At the High Court of Cross River State, the appellant, suing through an Attorney took out a writ of summons and statement of claim claiming against the father of the respondent herein for an order restraining the respondent from selling the estate of Ndidem Iso an account of the rents collected by the respondent from the estate a refund of the rents so collected, and an order restraining the respondent from meddling in the estate.
The respondent filed a defence denying the appellant’s claim and counter-claimed for N10 Million against the appellant, and the appellant filed a reply to the counter claim.
After settlement and exchange of pleadings, the matter proceeded to trial and at the conclusion of which the trial Court dismissed the appellant’s claim and struck out the respondent’s counter-claim. At page 561 of the record of appeal, learned trial Judge found inter alia as follows:-
“The distribution in the Will shows that the testator comprehended and appreciated the claim to which he ought to give effect and indeed gave effect to them. The distribution shows and is clear indication that his sense of right was not perverted.
The distribution has not cause me to think that the testator would not have made that kind of distribution of his properties if his mind had been sound. In the instant case, the distribution alone serves to remove any such doubt in my mind and confirms to me that the testator of the Will made the Will with a sound disposing mind, I so find and hold.”
At the hearing of this appeal on 3/3/2022, learned counsel for the appellant, Essien H. Andrew, SAN adopted the amended appellant’s brief of argument filed on 10/9/2021, but deemed properly filed on 17/1/22 together with appellant’s reply brief filed on 15/2/2022. In the said amended brief, four issues are formulated for determination of the appeal as follows:-
1. Whether Exhibit 9 a video tape was properly admitted in evidence without the authentication stipulated in Section 84 of the Evidence Act, 2011.
2. Whether the learned trial Judge was right to hold that the late Anthony Usang Nya was an adopted grandson of late Ndidem Usang Iso, inspite of the pleadings and evidence from both parties that he was not an adopted child.
3. Whether the learned trial Judge was right to hold that the late Ndidem Usang Iso had a sound disposing mind when he made the Will of 13/1/1999, Exhibit D5.
4. Whether the respondent has proved that the Will of 13/1/1999 was made by Ndidem Usang Iso freely and without undue influence or pressure.
Chief Onyebueke F. O. on behalf of the respondent adopted the amended respondent’s brief of argument filed on 11/2/22 in which he adopted all the four issues formulated by the appellant.
In arguing issue one, learned counsel for the appellant submitted that since the video tape, Exhibit D9 is a document by a computer to wit a video recorder, which is used to store and process information in a video format, it falls within the meaning of document produced by computers within the contemplation of Section 84 (1) of the Evidence Act, 2011. And also being a computer generated document, it must be authenticated in accordance with Section 84 (2) of the Evidence Act. In aid, counsel also relied on the authorities in the cases of OBATUGA V. OYEBOKUN (2014) LPELR–22344 (CA), MADUEKWE V. OKOROAFOR (1992) 9 NWLR (prt.263) 69 at 81 and KUBOR V. DICKSON (2013)4 NWLR (prt.1345) 534 at 578 to the effect that a party that seeks to tender in evidence a computer-generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under Section 84 (2) of the Evidence Act, 2011.
Counsel submitted further that the trial Judge erred in law when he admitted the video tape in evidence as Exhibit D9 and also relied on it in the absence of certification which is a mandatory requirement stipulated in Section 84 (2) of the Evidence Act. He referred to IMPACT SOLUTION LTD V. INTERNATIONAL BREWERIES PLC (2018) 16 NWLR (prt.1645) 377 at 398-399.
Learned respondent’s counsel on his part submitted that oral evidence of DW2 sufficed as certification of Exhibit D9 considering the fact that the testator of the Will is no more alive and there is evidence showing that the maker of the document had no any incentive to conceal or misrepresent facts. Counsel also submitted that considering the age of Exhibit D9, the presumption of regularity applies to it. He submitted that the trial Court was right in attributing weight to the said document relying on Section 34 (1) (b) of the Evidence Act.
The provisions of Section 258 of the Evidence Act, 2011 which is the definition Section of the Act defines document to includes –
(a) Books, maps, plans, graphs drawing, photographs and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter,
(b) Any disc, tape, sound track or other device which sounds or other data/not being visual images, are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
(c) Any firm negative, tape or other device in which one or more visual images are embodies so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and
(d) Any device by means of which information is recorded stored or retrieved including computer output. From the above broad definition of document, Exhibit D9 no doubt falls squarely within an electronically generated document. Thus, it requires authentication before same can be admitted in evidence. Indeed, parties are agreeable not only to the fact that the video tape is a document within the meaning of Section 258 of the Evidence Act but also that same is subject to certification in order to ensure its integrity. The only point of divergence is the mode of certification. In DICKSON V. SYLVA (2017) 8 NWLR (prt 1567) 167 at 203, the Supreme Court has held that Section 84 of the Evidence Act, 2011 consecrates two methods of proof, either by oral evidence under Section 84 (1) and by a certificate under Section 84 (2). In either case, the conditions stipulated in Section 84 (2) must be satisfied.
While the appellant argued that the respondent was legally obliged to adduce either parole or documentary evidence on each and every one of the requirements listed in Section 84 (2) of the Evidence Act, the respondent maintained that the evidence of DW2 confirming that Exhibit D9 was made in his presence, suffice as a compliance with Section 84 (2) of the Evidence Act. Section 84 of the Evidence Act stipulates:
“84 (1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and the computer in question.
(2) The conditions referred to in Subsection (1) of this Section are –
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(e) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
The evidence of DW2 been relied on by the learned respondent’s counsel as complying with the requirement of Section 84 (2) of the Evidence Act is located on page 484 of the record which reads as follows:
“Yes, I witnessed the Ndidem making the Will. He called all his traditional Chiefs and made the Will. He recorded the making of the Will on video film and even when he took it to probate, he videoed everything. Yes I was a witness, very much.”
The above does not by any means nearing a compliance with the mandatory requirement of Section 84 (2) of the Evidence Act. Exhibit D9 was clearly inadmissible and the trial judge was therefore wrong to have admitted the video tape without complying with mandatory requirements of the law. I also subscribe to the submission of the learned appellant’s counsel that admissibility of evidence is one thing while the weight to be attached to it is an entirely different thing. The issue of weight can only arise where the evidence is admissible. In the instant case, Exhibit D9 was inadmissible and same was wrongly admitted by the learned trial judge. I therefore resolve issue one against the respondent.
On issue two, learned counsel contends that parties were ad idem that Anthony Usang Nya (erstwhile respondent) was not the adopted child of Mrs. Christiana Nya. While the appellant in paragraphs 1 & 5 of the statement of claim as well in the evidence of pw1, inclusive of Exhibit 7 shows that Mrs. Christiana Nya was not the biological mother of the respondent and that his birth mother was Ruth Enetta Frederick and the respondent in paragraph 1 of her statement of defence averred that the appellant was not the only grandchild of Ndidem Iso and that the respondent, Anthony Usang Nya, and his sister, Imelda Ajuk were the other grand-grand children of Ndidem Iso through his daughter Christiana Nya. Notwithstanding the forgoing, learned trial judge in effect found that Mrs. Christiana Nya was the adopted mother of the respondent which counsel argued was at variance with the pleadings and the evidence adduced by both parties in this case. He submitted that since the alleged adoption of the respondent by Mrs. Christiana Nya was not pleaded by either the appellant or the respondent, the learned trial Judge who raised the issue suo motu, should have invited the parties to address him on that fresh point before making a finding of fact based on it. And that the failure to do so infringed the appellant’s right to fair hearing. He relied on SHASI V SMITH (2009) LPELR–3039 (SC) in urging this Court to set aside ex debito justitiae the finding made suo motu by the learned trial Judge that the respondent, Anthony Usang Nya, was the adopted child of Mrs. Christiana Nya.
It was also the appellant’s contention that under the Adoption Law of 1965 applicable to Cross River State, an infant can only be adopted by an order of a Court of competent jurisdiction. And since the respondent was not the biological child of Anthony Nya, he could only be adopted by Mrs. Christiana Nya pursuant to Section 3 (3) of the said Adoption Law which permits adoption by the spouse. Counsel submitted that there was no such adoption by Mrs. Nya, because if there was, there should have been a Court order to that effect. He submitted further that the fact that Ndidem Iso was persuaded to accept the respondent as his only grandson was a demonstration of the failing mental capacity of Ndidem Iso at the time he made the Will. Likewise, the fact that Ndidem Iso was also persuaded to give most of his estate to the respondent as his only grandson was a further demonstration of the undue influence the respondent exercised over Ndidem Iso at the time he made his disputed Will, concluded learned counsel for the appellant.
In his response, learned counsel to the respondent submitted that adoption was pleaded by the appellant and that it was on record that both Prof Anthony Nya and Mrs. Christiana Nya had the respondent baptized with birth certificate issued on the 18th day of July, 1964, Exhibit 1 and that in the said Exhibit 1, the parents of the respondent were stated to be Prof. Anthony Nya and Mrs. Catherine Akang Usang Nya. He submitted further that the issue of adoption was also implicit in Exhibit 4, the judgment in suit NO HC/7D/90 between Prof. Nya and Mrs. Christiana Akang Nya wherein it was found that there are two adopted adult children of the marriage named Imelda Mary Nya born in 1961 and Anthony Usang Nya born in 1963 and therefore the findings of the lower Court on adoption was borne out from the evidence before it. He referred to AKOMA V. OSENWOKWU (2014) 11 NWLR (prt.1419) 462 at 514 and NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) 11 NWLR (prt.1630) 201 at 219 to the effect that Exhibit 4 is a conclusive proof of the status of the respondent.
The gravamen of the appellant’s complaint on issue two is whether the findings of the lower Court on the respondent’s adoption was in tandam with the pleadings and evidence of the parties wherein the appellant argued that same was raised suo motu and decided without any impute from the respective parties.
Authorities are now legion that parties are bound by the pleadings and evidence of facts not pleaded should be disregarded.
Likewise, Court is not permitted to formulate issues not raised in the pleadings. In EFCC V. CHIDOLUE (2019) 2 NWLR (prt.1657) 442 at 469–470, it was held that a valid decision of a Court must be based on the issues submitted to it by the parties and canvassed before it. Therefore, the Court is limited in its decision making to the issues before it, and any pronouncement outside such issues cannot be justified.
To ascertain whether or not the issue of adoption was raised and canvassed before the lower Court, it is pertinent to examine the parties’ respective pleadings and evidence led. In paragraphs 1, 2, 4, 5 and 6 of the statement of claim on page 3 of the record, appellant averred as follows:-
1. The plaintiff is the only biological granddaughter of His Royal Majesty, late Ndidem Usang Iso, paramount Ruler of the Quas.
2. His Royal Majesty, Ndidem Usang Iso had only one daughter called Mrs. Christiana Akang Nya who was trained as a nurse in London, England. Before she left for England, she had the plaintiff
4. While in England for further studies, the mother of the plaintiff got married to Professor Anthony Essien Nya, now deceased. Upon their return to Nigeria, the defendant was adopted by Prof. Nya as his son as this was not opposed by the plaintiff’s mother, and due entirely to the fact that there was no child of the marriage.
5. Subsequently, the plaintiff’s mother divorced Prof. Nya and then died and was buried in accordance with Qua native law and custom.
6. Professor Anthony Nya also died three years ago in 2001 leaving an estate for the defendant to manage. At the time of Professor Nya’s death, defendant was resident at Akai Efa, MCC Road, Calabar.
The respondent on her part averred in paragraphs 2, 5 and 6 of the statement of defence and counter-claim as follows:
2. The content of paragraph 1 is false as the plaintiff is not the only grandchild of His Royal Majesty Late Ndidem Usang Iso. The other grandchildren are the defendant and her sister Imelda Aduk Nya now Mrs. Imelda Garrick. At trial, plaintiff shall rely on the funeral programme of plaintiff and defendant’s mother Mrs. Christopher Akung Nya prepared by HRH, Ndidem Usang Iso himself in 1993 which photocopy of the deceased Ndidem’s only daughter and her children was shown in the programme. Defendant’s birth certificate issued in London is hereby also pleaded. The certificate shows the mother of defendant as Christiana (Akong) and father, Anthony Essien Nya.
5. The contents of paragraph 4 are false; the defendant was born in England when his parents were residing in London, England as students. The defendant was never adopted in Nigeria or adopted at all by his parents, but was to his parents in England in 1963 while his parents got married in England in 1956. Defendant’s birth certificate is hereby further pleaded.
6. The contents of paragraph 5 is misleading as plaintiff’s mother never divorced Prof. Anthony Nya. They were merely separated. The plaintiff is hereby challenged to produce the divorce document/proceedings of the marriage as it is non-existent. The plaintiff’s mother was married under English law and was buried under Christian doctrine of the Catholic Church as shown in the burial programme prepared by her father HRH Ndidem Usang Iso. The funeral programme is hereby further pleaded. She was never buried therefore in accordance with Qua native law and custom.
In support of their respective pleadings, pw1 on page 277 testified that the respondent is an adopted son of Prof. Nya, who was married to the plaintiff’s mother Madam Christiana Nya and that Exhibit “7” states the real names of father of the respondent.
The respondent on the other hand testified that his biological parents are late Professor Anthony Nya and late Mrs. Christiana Nya and that Exhibit 3 is not his birth certificate but Exhibit D1 issued in London is only his baptismal card and not registration of birth. When cross-examined on page 487 of the record, DW1 states:
“I still maintain that the said Christiana is my biological mother, despite paragraph 6 of the statement of claim exhibit D.”
From the above, the issue of adoption was not only raised in the parties’ respective pleadings but that evidence were as well led in that respect. It is therefore wrong to argue that the issue of adoption was never raised by the parties at the lower Court. It is immaterial whether the adoption was made by Professor Nya or both of them. The point here is that since issue of adoption was joined by the parties, the lower Court was justified in making a finding therefrom.” A Judge has right in our adjectival law to use particular words or phrases, which in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu.” Per TOBI, JSC in ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD & ORS (2006) LPELR-1140 (SC) at pages 25 paras A.”
In the present case, the issue of adoption having been raised by both parties in the litigation at the trial, same was not raised suo motu.
On whether the respondent was an adopted or biological child of Christiana Akon Usang Nya, learned trial Judge has this to say on page 554 of the record:
“We need to look beyond Exhibits 3 & 4 to resolve this matter. Exhibit 3 a certificate of birth of Anthony Essien Nya. The defendant admits that his name is Anthony Essien Nya. On Exhibit 3 defendant stated to be born to Ruth Enetta Fredrick (mother) and A. E. Nya (Father). It follows that Mrs. Christiana Akung Usang Nya (Nee Usang Iso) did not give birth to the defendant herein. In Exhibit 4, at paragraph 2 of page 2, the Court stated thus:
“There are 2 adopted adult children of the marriage named Imelda Akung Nya, born in 1961, and Anthony Usang Nya born in 1963. No order should be made in respect of the children…”
That was a finding of a Court which has not been challenged till now. And from Exhibits 3 and 4, it follows that the defendant was a natural child of Professor Anthony Essien Nya and that he has an adopted child of Mrs. Christiana Akung Usang Nya, for it is obvious from Exhibit 3 that Mrs. Christiana Akung Nya did not give birth to the defendant in this case.”
The appellant’s contention on the above findings is that the learned trial Judge relied solely on Exhibit 4 and that same is not more than a recap of the evidence of professor Nya in a divorce proceedings. And that in Exhibit 4 Mrs. Nya did not admit the respondent as her adopted child. It is a settled position of the law that a subsisting valid decision of a Court is binding and can only be set aside on appeal. See CHUKWU EKE V. OKORONKWO (1999)1 SC 71. Also in AKOMA V. OSENWOKWU (Supra), a judgment of a Court was held to be a conclusive proof of the facts it decided.
Furthermore, an appellant who relied on improper evaluation of evidence to set aside the judgment of a trial Court has the onus to identify or specify the evidence improperly evaluated or not evaluated. He has to convincingly show that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party complaining of the wrong evaluation. See OZUZU V. EMEWU (2019) 13 NLR (prt.1688) 143 at 159. The appellant in this case has not shown that if properly evaluated the conclusion would have been favourable to him.
I therefore resolve this issue against the appellant.
On issue three, the contention according to the appellant is not whether the disputed Will of 13/1/1999, Exhibit D5, was signed by Ndidem Iso but whether Ndidem Iso had the corpus mentis, the testamentary capacity or the sound disposing mind to make the disputed Will. Counsel submitted that testamentary capacity of a testator is a question of fact to be established by credible evidence. And the onus is on the party propounding the Will to prove the testamentary capacity of the testator relying on the authorities in the case of CHIDEBELU & ANOR V. PROBATE REGISTRAR HIGH COURT OF ANAMBRA STATE & ORS (2013) LPELR–21215 (CA) and SULE & ORS V. SULE & ORS (2019) LPELR–47178 (CA).
It was also the appellant’s contention that no evidence was adduced by the respondent who had the primary burden of proof, to establish the mental capacity of Ndidem Iso at the time Exhibit D5 was made. The only evidence on mental health of Ndidem Iso according to the appellant came from pw2, Ndidem Iso’s personal physician which evidence was supported by his certificate of death as well as a medical report, Exhibits 3 and 9 respectively. Counsel therefore submitted that the respondent’s failure to cross-examine pw2 on his expert evidence on the mental health of Ndidem Iso was an admission that Ndidem Iso was not of sound mind in January, 1999 when he made the disputed Will. Thus, the learned trial Judge was in error when he rejected the undisputed and unchallenged expert evidence of pw2 on the mental health of Ndidem Iso.
Counsel submitted further that the evidence of pw2 that Ndidem Iso was not of sound mind after debilitating stroke in January, 1997 was corroborated by the respondent because it stands to reason that if he did not have testamentary capacity in August 1998, he did not also have testamentary capacity five months later to make the disputed Will of 13/1/1999. The onus; counsel argued was on the respondent as propounder of the Will of 13/1/1999, to adduce medical evidence to show that by January, 1999 Ndidem Iso was completely cured of the mental incapacity he was suffering in August 1998. He submitted that the implication of the respondent’s evidence that on the day the disputed Will of 13/1/1999 was signed by Ndidem Iso, he had omitted from his Will Exhibit D5 one of his properties lend credence to his lack of sound mental capacity.
In response to the above, learned respondent’s counsel contended that the respondent who proposed the Will was able to prove (a) that the Will was in writing, (b) that same was signed and (c) that it was attested and subscribed by witnesses.
He referred to the evidence of DW2 to submit that Ndidem Iso who was treated by a native Doctor had fully recovered from the stroke in 1997 and made his Will in 1999. Thus, the ability for Ndidem Iso to discover that his Will was forged in 1998 by the appellant and even took steps at the probate to withdraw same was an indication of his sound testamentary capacity.
On the potency of the evidence of pw2 as regards the mental capacity of Ndidem Iso, counsel argued that since pw2 was a witness for the appellant, the Court should be wary in accepting his report and the Court was free to reject same in favour of overwhelming evidence to the contrary. He referred to ELF NIG. LTD V. SILLO (1994) 6 NWLR (prt.350) 258 at 272. Thus, failure to cross-examine pw2 by the respondent do not amount to admission given the fact that his evidence does not possess the credible character when compared with other available evidence. The fact that the testator has omitted one of his properties in the Will does not indicate incapacity as the only evidence of the testator’s health was that he had stroke in 1997 but recovered when he made the Will in 1999 in the presence of his cabinet chiefs.
A Will or Testament is a legal document by which a person, the testator, expresses his wishes as to how his property is to be distributed at death. The most important things to provide for in the Will are who will be your executor, and who will be the beneficiary.
For a Will to be valid the following must be established:-
(a) It must be made voluntarily,
(b) It must be in writing,
(c) It must be signed by the testator,
(d) The signature of the testator must be acknowledged by at least 2 witnesses,
(e) The testator must be of sound mind,
(f) It must name the beneficiary or beneficiaries, and
(g) It must identify the property.
I have stated earlier that the appellant’s contention on issue three is that the testator Ndidem Iso did not have the mental capacity to understand what he was doing at the time of the Will in dispute. In paragraphs 14 and 15 (a) – (d) of the statement of claim, the appellant was explicit that:-
“14. It is the contention of the plaintiff that her grandfather did intestate as he did not having been in bad health at the material time, know and approve the content of the Will purported to have been made by him.
15. The nature of the plaintiff’s contention and on which she intends to rely on during the trial is as follows:-
(a) That her deceased grandfather had not been in good health at all since 1997 when he had a stroke and subsequently suffered from senile dementia and had constant medical attention locally.
(b) That the condition of the deceased’s health deteriorated progressively and markedly from 1997. Thus, on 5th September, 1998 until his death, the deceased suffered from senile dementia.
(c) That the bodily illness which affected the deceased in the remaining years of his life was such as to impair his mental ability and concentration.
(d) That in view of (c) above the deceased was unable to give detailed and sensible instructions of the nature required for the disposition contained in the purported Will.
The law is settled that a person who desires to make a Will must satisfy the requirement of law for the Will to be valid, else it will be invalid. Furthermore, for a Will or testamentary intention of a deceased person who ought to be protected, to be given effect to, there must be absolute compliance with the requirements of the Will Law.
It was held in plethora of cases that the burden for the proof of validity of a Will, the genuiness or authenticity thereof, lies on the person propounding it. Once this is satisfied, the burden is cast upon those attacking it. See ANYA V. ANYA (2020) 9 NWLR (prt.1729)411 at 421–422, OKEKE V. OKEKE (2019) 17 NWLR (prt.1701) 267 and NWEKE V. NWEKE (2019) 15 NWLR (prt.1694) 123.
It is imperative to note that the respondent who apparently was the propounder of the Will Exhibit D5 was very emphatic that Ndidem Iso was of sound mind when he made the Will. Though, he acknowledged that the testator had a stroke but was treated traditionally and he was well.
Both parties at trial led evidence as regards the testator’s health condition. While the appellant through pw2, the medical doctor and medical report Exhibit 3 alleged that he was incapable of making the Will, Exhibit 5, the respondent through DW2 maintained that the testator at the time he suffered stroke, it affected him physically and mentally, but he was treated by a native doctor. Therefore, he was of sound mental health when he made the Will, Exhibit 5. In his judgment, learned trial Judge preferred the evidence of the respondent to that of the appellant on the premised that it takes a sane and intelligent person to discover that his previous Will was forged and caused a complaint to the police. He found on page 556 of the record as follows:-
“If the Ndidem acted on 14/1/1999 when he wrote the letter Exhibit D3 was responding to and in 2001 wrote intelligent letters to the commissioner of police, could he also have acted intelligently when he signed his Will, Exhibit 2/D5, on 13/1/1999, a day before he wrote the letter, Exhibit D3 was responding to. The defendants who are the propounders of the Will have shown that the Will met all the formal requirements for making the Will. The onus on the propounders of the Will to show that the testator of the Will prepared this Will with a sound mind.
He concluded thus:
“Medical evidence is not quad erad demonstrandum (QED) on the mental state of the testator. Such evidence must be tested by and considered along with other evidence available.”
Learned counsel for the appellant made a heavy weather on the failure of the trial Judge to accept the expert evidence given by pw2 contending that he was bound to accept and act on it especially when the witness was not cross-examined on it. In WESTMINSTER DREDGING (NIG) LTD V. OYIBO (1992)5 NWLR (prt.239) 77 at 97, this Court has held that where the evidence of an expert is not challenged by that of any expert, the trial Court has a duty to accept it and act upon it. Also, in IZE-IYAMU V. ALONGE (2007) ALL FWLR (prt.371) 15070, it was held 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 if it comes from an expert with demonstrable skills. However, that the evidence of an expert is generally an aspect of the entire evidence to be evaluated by the Court, since the trial Court must not abdicate its role to perform its primary duty in relation thereto, including any expert evidence. What this portends is that even if unchallenged, the evidence of an expert must still be carefully scrutinized, to weigh its admissibility and veracity. Indeed the apex Court has held in the case of ATTORNEY-GENERAL OF OYO STATE V. FAIRLAKES HOTEL (NO.2) (1989) 5 NWLR (prt. 121) 255 that even if expert evidence is unchallenged by way of cross-examination or contradictory evidence, it must not be accepted hook, line and sinker, but the Court will only accept it if there is no good reason to reject it. In other words, the Court is at liberty, after duly scrutinizing it, to even reject it entirely.
The duty of the trial Court is to evaluate the evidence before it to arrive at a decision. And in the course of evaluation of evidence, a Court of law is entitled to make deductions from the evidence before the Court, and such deductions may result in conclusions based on proper appraisal of that evidence.
In the instant case, the trial Court made deductions from the evidence of DW2 who testified that after the experience of having his Will forged, when Ndidem wanted to execute his Will; Ndidem Iso called people together to witness his signing his Will. Those people came together and he caused the ceremony to be video recorded. Ndidem Iso went himself to the probate registry to deposit both his Will and the video tape (Exhibit D9)”. The deduction of the trial Court to the effect that the testator had acted intelligently when he signed the Will having been based on the evidence before it, can hardly be interfered with by this Court. Issue three is therefore resolved against the appellant.
In respect of issue four, counsel for the appellant submitted that the burden of proving the free will of the testator was primarily on the respondent and could only shift if the respondent made a prima facie case from the evidence adduced that the testator acted freely. He referred to OKAFOR & ANOR V. OKAFOR & ANOR (2016) LPELR–40457 (CA).
The appellant’s contention is that from the respondent’s pleadings and even the finding of the learned trial Judge it was clear that in all the Wills made by Ndidem Iso, when he was of sound mind and body, he gave due and proper precedence to his biological decedents by making them executors of his estate. But in Exhibit D5, the only will by Ndidem Iso after his mind and body was weakened by stroke and senility; he gave precedence to a person who was not his biological descendant by making him the sole executor of his estate and labeled him wrongly as his grandchild. But inspite of the fact that Exhibit D5 was made at a time when the respondent was exercising undue influence over the testator, the learned trial Judge erroneously found that the respondent did not unduly influence Ndidem Iso when he made his Will. Counsel therefore submitted that such finding by the learned trial Judge is completely at variance with the evidence on record and the contents of Exhibit D5.
Still in argument, counsel submitted that the undue influence asserted on the testator against the appellant in the distribution of his estate was apparent, not only in the skewed distribution as shown in Exhibit D5, but also in the evidence of the respondent who testified that Exhibit D5 was made by Ndidem Iso under the belief that the appellant is a fraudulent person, and that she had forged a Will, a Power of Attorney and a Deed purported to have been made by the testator.
He finally submitted that from the sequence of events, the testator was not acting as a free agent and the very fact that he was made to sign the Will inspite of his objection to the omission of one of his properties from the Will is a clear indication that he was not acting as a free agent. Thus, the Will of 13/1/1999 Exhibit D5 was not made by Ndidem Iso freely, and without undue pressure or influence by his minders, concluded learned counsel for the appellant.
On his part, learned counsel for the respondent contended that the fact that the Will of 13/1/1999 was made by the testator after discovering that the appellant had forged his previous will and upon discovery of same, the testator complained to the probate Registrar in writing and the police is indicative of freedom. Furthermore, the testator having made the last Will in the presence of his cabinet chiefs and proceeded to lodge same at the probate Registry shows that at the time the Will was made the testator had the anumus testandi and hence the Will was freely made.
It was also the contention of the respondent that the issue in this appeal only relates to the validity of Exhibit D5 and therefore the issues pertaining to undue influence and disowning testator’s biological grandchild are not borne out from the evidence before the trial Court. He submitted that there is nothing to show that the respondent had influence on the testator while making the Will, Exhibit D5. And there is equally nothing to show that the testator did not sign the Will freely and that any submission to that effect is speculative.
I have stated elsewhere in this judgment that whenever there is a dispute as to the authenticity and genuiness of a Will the burden of proof lies on the propounder of the Will before it shifts to the party challenging same. Thus, the party who propounds must adduce sufficient evidence to prima facie demonstrate that all is in order with the Will in terms of the twine requirements of due execution that is, the testator was of sound disposing mind and was a free agent. Upon satisfaction of these requirements, the burden will shift to the challengers of the Will to prove the contrary by cogent and credible evidence. See NWEKE V. NWEKE (Supra).
In DAWODU V. ISIKALU (2019)4 NWLR (prt. 1663) 409 at 419, the Supreme Court has held that an overriding condition for the validity of a Will is that it must be completely free from any suspicion or suspicious circumstances whatsoever, and the Court unless the suspicion or suspicious circumstances is removed, will pronounce against it and refuse probate. Also in OKELOLA V. BOYLE (1998) LPELR–2339 (SC), the apex Court was emphatic that where a document is ex facie duly executed the Court may pronounce for it on the maxim omnia pracesumumtur rite esse acta. However, this maxim only applies with force where the document is entirely regular in form and no suspicion attaches to the Will.
The appellant’s complaint against the Will, Exhibit D5 was that same was unduly influenced and hence skewed in favour of the respondent. Undue influence may be regarded as a state of mind of person who has been subdued to any improper persuasion or machination in such a way that he was overpowered and consequently induced to do or forbear all act which he would otherwise do or not dhis free will. Thus, it is a product of the abuse or misuse of the confidence reposed in someone who is o of able to put some pressure on or take unfair advantage of another or who takes an oppressive and unfair advantage of another’s necessities or distress. See BUA V. DAUDA (2003) 13 NWLR (prt. 838) 657.
Counsel for the appellant strenuously argued that the respondent in paragraph 19 of his statement on oath admitted that he was the person who lived with the testator of the Will and solely took care of him throughout when he was suffering from the stroke and therefore had the opportunity to exert undue influence on the testator. He also contends that the trial Court found that exhibit D5 was made at the time when the respondent as exercising undue influence on the testator of the Will.
I have carefully considered both the respondent’s averment in paragraph 19 of his statement on oath vis-a-vis the finding of the trial Court in respect of same on page 560 of the record. In deference to the appellant’s allusion, the respondent did not admit unfair advantage and also the trial Court has not made definitive findings on the respondent’s exerting undue influence on the testator at the time of making the Will, Exhibit D5. What the respondent admitted in the said paragraph 19 of his statement on oath and which the trial Court acknowledged in its findings was his closeness with the testator of the Will at the period of his illness.
In my consideration of issue three above, I have held that the respondent ostensibly showed through DW2 that the testator made the Will, Exhibit D5 freely and in the presence of witnesses before proceeding to deposit it himself at the probate Registry. Also in the judgment, the learned trial Judge has reproduced the entire Will, Exhibit D5 which reveals that apart from the respondent, the testator bequeathed his estate to sisters, nieces, nephews, church as well as made provisions for the burial of his sister. In effect, the Will Exhibit D5 was not skewed in favour of the respondent alone. In the light of the foregoing, I cannot but endorse the finding of the learned trial Judge on page 560 that:
“To my mind the tenor of the dispositions in the Will show that its maker (the testator) accurately expressed his Will in the document. I find and hold therefore that although the defendant had opportunity, the defendant did not unduly influence Ndidem Iso when Ndidem Iso made his Will.”
Issue four is also resolved against the appellant.
In the result, the appeal succeeds in parts. However, having resolved the critical issues Nos. 2, 3, and 4 against the appellant, I hereby dismiss the appeal and affirm the judgment of the lower Court in Suit NO HC/124/2003 delivered on 23/01/2017.
Parties shall bear their respective costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I was opportuned to read in draft, the lead judgment of my brother Shuaibu, JCA and I agree completely with both his reasoning and conclusions. I join him in dismissing the appeal and affirming the judgment to the trial Court.
BALKISU BELLO ALIYU, J.C.A.: I read in advance, the judgment just delivered by my learned brother, M. Shuaibu, JCA. His lordship as efficiently dealt with the issues that arose for determination in this appeal and I agree with him in toto. I have nothing useful to add. I adopt his reasoning and conclusion that this appeal be dismissed. I dismiss it. I affirm the judgment of the trial Court and I abide by the consequential orders made in the leading judgment.
Appearances:
Essien H. Andrew, SAN, with him, Donald Archibong and A. E. Bassey For Appellant(s)
Chief F. O. Onyebueke, with him, D. A. Oku For Respondent(s)