MRS. FOLUKE MUDASIRU & ORS. v. IBRAHIM ADBULLAHI & ORS. (2011)

MRS. FOLUKE MUDASIRU & ORS. v. IBRAHIM ADBULLAHI & ORS.

(2011)LCN/4361(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of March, 2011

CA/L/58/2010

RATIO

BURDEN OF PROOF: POSITION OF THE LAW ON WHOM THE BURDEN OF PROVING THE VALIDITY OF A WILL LIES UPON

The apex court in Okelola v. Boyle (1998) 2 N.W.L.R. (pt.539) 533 at 547-549 per Ogundare, JSC (as he then was) quoted with approval the decision in Johnson & Anor v. Maja & Ors (1951) 13 WACA 290 at 292 as follows: “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 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. PER JOHN INYANG OKORO, J.C.A.

UNCHALLENGED MATERIAL FACT DURING CROSS-EXAMINATION: ATTITUDE OF THE COURT TOWARDS A MATERIAL FACT THAT IS UNCHALLENGED OR UNCONTRADICTED DURING CROSS-EXAMINATION

It is trite that where evidence on a material fact is unchallenged, unrebutted or uncontradicted under cross-examination, the court will accept the same as a true representation of the fact. See Asafa Foods Factory v Alraine (Nig) Ltd (2002) 12 NWLR (Pt 781) page 353, BUA V DAUDA (2003) 13 NWLR (Pt 838) page 657. PER JOHN INYANG OKORO, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 4 OF WILLS LAW OF LAGOS STATE AS TO WHETHER THE TESTATOR’S SIGNATURE MUST APPEAR AT THE FOOT OR END OF THE WILL BEFORE IT CAN BE VALID

Section 4 of Wills Law of Lagos State is in pari material with Section 9 of the English Administration of Justice Act, 1982 and the Authors of Williams on Wills at page 95 have interpreted the provision to mean ‘that there is no longer any formal requirement that the signature should be at the foot or end of the Will but in so long as it is apparent’ in the face of the Will that the Testator intended by his signature to give effect to the Will. It has been held that a Will is not invalidated simply because the Testator’s signature appears in the Attestation or Testimonium clause. See Re Moores Goods (1901) P.44. PER JOHN INYANG OKORO, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 14 OF THE WILLS LAW OF LAGOS STATE AS TO THE PROCEDURE WHICH AUTHENTICATES ANY CORRECTIONS EFFECTED

The provision in Section 14 of the Wills Law acknowledges this and provides for the procedure which authenticates any corrections effected. The section provides:- “No alteration, interlineations, or alterations made in any Will after the execution thereof shall be valid or have any effect except in so far as the words or effect, of the will before such alteration shall not be apparent, unless such alteration shall be executed in the manner as is herein before required from the execution of the Will. Provided that the Will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the Testator and the subscription of the witness be made in the margin or some other part of the Will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the Will”. Given a literal interpretation of the above section, it clearly excludes any alteration made before the Will was executed. Afterall, courts are to give words used in statutes their ordinary grammatical meaning where they are clear and unambiguous. See Agbareh v. Mimra (2008) 2 N.W.L.R. (pt.1071) 378; Owners of the M.V. “Arabella” v. N.A.I.C. (2008) 11 N.W.L.R. (pt.1097) 182. PER JOHN INYANG OKORO, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

1. MRS. FOLUKE MUDASIRU
2. MR. TOLULOPE MUDASIRU
3. MRS. OPENIFOLU TEJUOSO (NEE MUDASIRU)
4. MR. OLADAPO MUDASIRU
(Suing as Next-of-Kin and beneficiaries respectively of the Estate of Air Commodore Gbolahan Adio Mudasiru (Deceased) and as persons entitled to Administration of the Estate) Appellant(s)

AND

1. IBRAHIM ADBULLAHI
2. MR. LADI COLE
3. DR. OLUFUNMILAYO COKER
4. MRS. OLUSOLA SOWEMIMO
5. MR. A. C. MKPARU
6. THE PROBATE REGISTRAR Respondent(s)

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): Air Commodore Gbolahan Adio Mudasiru was a senior officer of the Nigerian Air Force and served the nation in various capacities within the Nigerian Military and was one time the Military Governor of Lagos State. The 1st Appellant was his wife while the 2nd – 4th Appellants are three of his five children. Air Commodore Mudasiru died in London on 23rd Sept., 2003 while on a visit there.
While the Appellants were making preparations for the burial of their benefactor, the 1st to 5th Respondents, caused to be read at the Probate Registry of the High Court of Lagos State, Lagos on 20th October, 2003 a Will dated 24th June, 2001 which they claimed was made by the Deceased. Thereafter, the 1st – 5th Respondents, claiming to be trustees and executors under the said Will, instituted case No HC 03C03621 against the 1st Appellant herein before a London Court in which they sought to take over the burial arrangements for the Deceased. The said case was dismissed by Llyod, J. upon the ground that, though he accepted them are Trustees, he could not hold them to be executors.
At about the same time the Respondents instituted the case in England, they also applied to the Probate Registry for grant of probate in respect of the said Will dated 24/6/01 to which the 1st Appellant caused a caveat to be entered. Thereafter, the claimants at the High Court of Lagos State challenged the validity of the Will and sought declarative, injunctive and other reliefs. In a Judgment delivered on the 15th day of December, 2009, the court, presided over by Opesanwo, J., dismissed the suit in its entirety. The court also pronounced on the validity of the Will and upheld the 1st – 5th Respondents as the duly appointed Executors of the Estate of the Testator.
The Appellants felt aggrieved with the Judgment of the lower court and filed two Notices of Appeal dated 16-12-09 and 25-02-10 respectively. The Appellants however abandon the Notice of Appeal dated and filed on 16/12/09 and rely on the one dated and filed on 25-02-10, for the purpose of this appeal. Four grounds of appeal are contained in the said Notice of Appeal out of which the Appellants’ learned counsel has distilled three issues for the determination of this appeal.
In the brief settled by Theophilus O. Ochonogor, Esq., of counsel for the Appellants, the three issues are as follows:
“1. Whether the learned trial Judge was right when his Lordship held that the document dated 24-06-01 which was admitted in evidence and marked Exhibit ‘C1′ is the last Will of Late Air Commodore Gbolahan Adio Mudasiru and that same was made in compliance with the Wills Law of Lagos State (Grounds 1 & 2 of Notice of Appeal dated 25/2/10).
2. Having found, “that Exhibit C1 is not explicit enough for me to reach the conclusion that it expressly appointed the Defendants herein as its executor”, whether the learned trial Judge was right to have held that the appointment of the defendants as Executors of the estate of the late Air Commodore Gbolahan Adio Mudasiru can reasonably be implied. (Ground 3 of the Notice of Appeal dated 25/2/10).
3. Having dismissed the Appellants’ case, whether the learned trial Judge was right to have proceeded to make declarations and orders in the absence of a counter-claim. (Ground 4 of the Notice of Appeal dated 25/2/10)”.
The Respondents, through their learned counsel, Osahon Idemudia Esq., in the brief settled by him, has also formulated three issues herein reproduced:-
“1. Whether the 1st – 5th Respondents discharged the burden of proof on them on the validity of the last Will and Testament of the Testator. (Ground Nos. one and two).
2. Whether the 1st – 5th Respondents were impliedly appointed as Executors by the Testator. (Ground No. three).
3. Whether the learned trial Judge was right in having pronounced the 1st – 5th Respondents as the appointed Executors of the Estate of the Testator in the absence of a counter-claim by them. (Ground No. four)”.

The 6th Respondent did not file any brief in this matter and by the Rules of this court, she is not entitled to be heard even as her counsel said they remain neutral in the matter.
Having regard to the facts of this case, I shall determine this appeal based on the issues formulated by the Appellants, afterall, it is their complaint which the appeal is predicated.
In his submission on the first issue, the learned counsel for the Appellants being led by learned senior counsel, Robert Clarke, SAN, states that the failure of the testator to sign the Will in the column ordinarily provided for him to sign has violated the provision of Section 4(1)(b) of the Wills Law Cap W2, Laws of Lagos State and therefore renders the Will invalid. It was his further contention that the reasoning of the learned trial Judge without further evidence from any witness and actually suo motu picking one of the three signatures appearing under the witnesses clause is not only perverse but does not have any basis in law and fact. He opined that those three signatures, are for witnesses and not of the testator.
It was his further submission that the burden of proof lies on the Respondents to show that there was due execution of the Will relying on the cases of Okelola v. Boyle (1998) 2 N.W.L.R. (pt.539) 533; FATB v. Partnership Investment Co. Ltd. (2003) 18 N.W.L.R. (pt.851) 35 at 73 C-D; Barry v. Buthin 12 ER 1089 at 1090 and Johnson v. Maja, 13 WACA 290.
He opined that it is only after the Respondents had discharged the burden of proof, that it shifts to the Appellants. He submitted further that contrary to the finding of the learned trial Judge, the Appellants have shown that the purported Testator’s signature on Exhibit ‘C1′ (the Will) is not that of Air Commodore Gbolahan Mudasiru and that the Respondents failed to rebut this.
On the evidence of CW6, the handwriting analyst, and Exhibit M tendered by him, the learned silk submitted that, the Respondents having failed to rebut the evidence of CW6, the learned trial Judge erred when he held that the document dated 24/6/01 was the last Will of the Testator. He also stated that the court below failed to apply the presumption provided in Section 149(c) of the Evidence Act. He relies on the cases of Nwachukwu v. the State (2002) 17 SC (pt.1) 124 at 133; NAF v. James (2002) 12 SC (pt 1) 1 at 11, Akpan v. State (2001) 5 SC (pt.11) 110 at 114.
Finally, on this issue, learned senior counsel drew the attention of the court to the evidence of the first Appellant when she testified to the effect that the said Will was not only a forgery, but was marred with misnomer, omissions, irregularities and alterations which are very unlike the late Air Commodore Gbolahan Adio Mudasiru and submitted that although the learned trial Judge was unimpressed by such evidence, the DW2 lent credence to that evidence when he testified that “the Will took a while to conclude, just over a year, partly because he had, at the time, a number of recently started business interests, whose fruition he was yet uncertain about and also because he was taking time to carefully consider each bequest he wished to make”. He urged this court to hold that the late Air Commodore was a meticulous person and could not have made alterations and cancellations in the Will. Learned counsel finally urged this court to resolve this issue in favour for the Appellants.

The learned counsel for the Respondents submitted on this issue, firstly, that the findings of the trial court on forgery and on the expert evidence thereon are findings of fact which can only be set aside on appeal on a distinct ground of appeal challenging same, relying on the case of Atoyebi vs. Governor of Oyo State (1994) 5 N.W.L.R. (pt.344) 290 at 305. He posited that Grounds of Appeal Nos. 1 & 2 did not either expressly or impliedly challenge the court’s findings on forgery and on the evidence of PW6. He then urged the court to discountenance the Appellants’ arguments on forgery and on the expert evidence and expunge them from the brief.

It was his contention that when the evidence of PW6 and DW4, both handwriting experts are placed side by side, the credibility of the evidence of PW6 is in doubt, particularly when he reached a conclusion that the signature of the Testator was a simulation when he never did a comparison until two years after.
It was his further submission that the 1st – 5th Respondents have satisfied the prima facie test, which is to show that there has been due execution of the Will placing reliance on the cases of Amu v. Amu (2000) 23 WRN 53 and Johnson v. Maja & Ors (1951) 13 WACA 290 at 292. That the Respondents showed that Mr. Eyo Ekpo and Dele Ogunshite were present when the Testator signed the Will and they both signed in the presence of each other. That none of the testimonies of DW2 & DW3 was impugned under cross examination. He drew the attention of the court to the fact that no question was asked the two eye witnesses as regards the preparation and execution of the Will. This evidence was therefore uncontroverted, he opined and urged the court to hold that the court below was right to rely on same. He cites the cases of Aiyinke v. Lawal (1994) N.W.L.R. (pt.356) 263 and Ezeji vs. Ike (1957) 2 N.W.L.R. (pt.486) 256 in support.
On the non-insertion of the testator’s signature in the attestation clause, learned counsel, relying on Section 4(1) of the Wills Law (Supra) and Williams on Wills 6th Edition Vol. I Butterworths at page 95, submitted that there is no longer any formal requirement that the signature should be at the foot or end of the Will but in so long as it is apparent on the face of the Will that the Testator intended by his signature to give effect to the Will.
On the issue of failure to call the 2nd witness to the Will to testify and misrepresentation of facts by DW3 – Chiagozie Hillary-Nwokonko, learned counsel submitted that it was mentioned by the Appellant enpassing and no argument was made on them. He then urged the court to ignore them and hold that the court below was right in concluding that the Will was proved. What I have endeavoured to do above is to bring out the salient arguments of both counsel for and against the validity of the Will of late Air Commodore Gbolahan Adio Mudasiru as the main question to be answered is whether the court below was right in holding that the said Will complied with the Wills Law of Lagos State (Supra). Put differently, whether there was due execution of the Will. The Appellants have argued in their brief that the burden of proof rested on the Respondents who are the persons propounding the Will before it would shift to them. This is correct as it accords with the position of the law. The apex court in Okelola v. Boyle (1998) 2 N.W.L.R. (pt.539) 533 at 547-549 per Ogundare, JSC (as he then was) quoted with approval the decision in Johnson & Anor v. Maja & Ors (1951) 13 WACA 290 at 292 as follows:
“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 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”.

Clearly, that has been the position and has not changed. In the instant case, I shall examine whether the proponents of the Will were able to convince the court below that the will was duly executed. I shall also see whether there are debilitating factors which could make the Will to fail.

The major issue which the Appellants canvassed before this court on this issue is that the testator did not make the said Will or that if he made it, he did not sign the will and further, that the signature found on the Will is not that of the testator and further still, that it was not signed at the appropriate position. Exhibit C1 is the Certified True Copy of the Will being disputed by the parties. The preface of the said Will states:-
“This is the last Will and Testament of me, Gbolahan Adio Mudasiru of 62 – 64 Campbell street, Lagos. In joyful gratitude to the Almighty Father of all for his great Goodness and Mercy, I hereby REVOKE all other testamentary dispositions made by me and in particular my former last Will and Testament dated the 18th of October, 1994 …”
By way of conclusion, it is stated thus:-
“IN WITNESS whereof, I, the said Gbolahan Adio MUDASIRU have hereunto set my hand this 24th day of June, 2001.
SIGNED by the above named GBOLAHAN ADIO MUDASIRU as his last Will, in the presence of us both being present at the same time who at his request in his presence and in the presence of each other, have hereunto subscribe our names as witnesses”.
As was rightly found by the learned trial Judge, I notice that three signatures appear immediately after the foregoing words of attestation clause. One of the three signatures stands alone above the other two which are signed below it. These other two signatures appear after the personal details; ie., name, occupation and address of the respective persons who are represented as having signed each one of the two. That is the setting of the Will as far as the signature of the Testator is concerned.

In order to fully appreciate the position of the parties in this appeal on the issue, let me bring to the fore the relevant section of the law relating to execution of a Will. This is provided for in Section 4 of the Wills Law, Cap W2 Vol. 7, Laws of Lagos State 2004. lt states:-
“4(1) No Will shall be valid unless –
(a) It is in writing
(b) It is signed by the testator or signed in his name by some other person in his presence and by his direction in such place on the Will so that it is apparent on the face of the Will 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 (2) witnesses present 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”.
There is no modicum of doubt that the said Will is in writing. Now, is there anything to show that one of the three signatures is that of the testator? The 1st – 5th Respondents’ evidence on the issue is well captured by the evidence of Dw2 & DW3. At page 893 of the Record of Appeal, the learned trial Judge made the following findings in his Judgment:
“The testator signed before the witnesses, both said witnesses, were present at the same time and the said witnesses thereafter each signed in the presence of each other and the testator. This fact was put in evidence by two persons – DW2 and DW3. They testified to being present at the same time. None was at all questioned on this aforesaid testimony. It is trite that where evidence on a material fact is unchallenged, unrebutted or uncontradicted under cross-examination, the court will accept the same as a true representation of the fact. See Asafa Foods Factory v Alraine (Nig) Ltd (2002) 12 NWLR (Pt 781) page 353, BUA V DAUDA (2003) 13 NWLR (Pt 838) page 657.”

I have myself perused and examined the record and have no option but to agree with the findings of the Court below that the Appellants failed to impugn the above weighty testimony of the two witnesses of the Respondents. Listen to the testimony of one Mr. Eyo Ekpo who prepared the Will. On pages 180 – 182 of the record, he states inter alia:
“12. I remember that when we arrived at the home of the late Air Commodore Gbolahan Adio Mudasiru, he ushered all three of us into his study, which was on the ground floor of the house. There, he went through the final copies of the Will in my presence and in the presence of my two colleagues, all four of us, sitting around a table in his study. On going through, he made a few minor corrections by his hand, initialed the corrections he made, then proceeded to execute ‘about 4 copies of the Will in the presence of all three of us, with my colleagues signing as his two witnesses before him and each other.”
I am surprised that such a weighty evidence was left to stand intact without any attempt to impugn its veracity, or is it because, the witness had become an Attorney-General of Cross River State at that time? What could the learned trial Judge have done other than to accept it as the truth of the matter? Mr. Chiagozie Hilary – Nwokonko, one of the witnesses to the Respondents stated clearly in paragraph 6 of his witness statement (See page 80 of the record) that: “6. Myself and the said Mr. Dele Ogunshote personally saw the testator executing his Will and there is absolutely no truth whatsoever in the assertion that the signature is not that of the testator.”
There was absolutely nothing to contradict or controvert this evidence and I think the court below was on a firm ground to admit and rely on same. See Magaji v. Nigerian Army (2008) 8 NWLR (Pt 1089) 338, S.C, Isitor v. Fallarode (2008) 1 NWLR (Pt 1069) 602.
The other issue has to do with the argument of the Appellants that failure of the testator to sign in the attestation clause violates Section 4 (i)(b) of the Wills Law (supra). Although the Appellants admitted that three signatures ended the will of the testator, they opined that none is that of the testator. As was rightly submitted by the learned counsel for the Respondents, this is fallacious. If the Appellants did not know which of the signatures is that of the Testator, why did they send a copy of Exhibit ct (the will) to RW6 for analysis of the Testator’s signature? The inference that could be made therefrom is that they knew the testator’s signature out of the three, otherwise they could not have asked pw6 to analyse what they claimed to be unknown to them. What this means is that even the Appellants were able to identify the 1st signature standing alone on top of the other two as that of the Testator.
As regards the contention that failure of the Testator to sign the Will at the right place invalidates the Will, I wish to refer to Section 4(1)(d) of the Wills Law (Supra) wherein the concluding part of the section states:
“… but no form of attestation or publication shall be necessary”.
Section 4 of Wills Law of Lagos State is in pari material with Section 9 of the English Administration of Justice Act, 1982 and the Authors of Williams on Wills at page 95 have interpreted the provision to mean ‘that there is no longer any formal requirement that the signature should be at the foot or end of the Will but in so long as it is apparent’ in the face of the Will that the Testator intended by his signature to give effect to the Will. It has been held that a Will is not invalidated simply because the Testator’s signature appears in the Attestation or Testimonium clause. See Re Moores Goods (1901) P.44. Therefore, the submission of counsel for the Appellants that the Will is unsigned because the attestation clause is blank is not tenable in so for as there is a signature by which the Testator intends to give effect to the writing signed as his Will. I think the Testator’s signature in the Will satisfies this requirement.
Although the Appellants tried to assert that the alteration made in the Will were outside the character of the Testator, Exhibits ‘E2’ – ‘E6’ clearly show that the Testator used to make cancellation and alterations in documents whereupon he would initial the portion altered which is consistent with the method adopted in the disputed Will. The 1st Appellant admitted that there are initials at every alteration made. See page 772 of the Record where she states under cross-examination that:-
“It is correct that everywhere there is an erasure there is a initials or signature purportedly that of my late husband”.
I agree with the observation of the learned trial Judge that where the content of a document does not adequately communicate or represent the intentions of the maker, the maker would expectedly take steps to see that a correction is effected. Provided that such correction does not result in the mutilation of the document, it is acceptable. The provision in Section 14 of the Wills Law acknowledges this and provides for the procedure which authenticates any corrections effected. The section provides:-
“No alteration, interlineations, or alterations made in any Will after the execution thereof shall be valid or have any effect except in so far as the words or effect, of the will before such alteration shall not be apparent, unless such alteration shall be executed in the manner as is herein before required from the execution of the Will.
Provided that the Will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the Testator and the subscription of the witness be made in the margin or some other part of the Will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the Will”.
Given a literal interpretation of the above section, it clearly excludes any alteration made before the Will was executed. Afterall, courts are to give words used in statutes their ordinary grammatical meaning where they are clear and unambiguous. See Agbareh v. Mimra (2008) 2 N.W.L.R. (pt.1071) 378; Owners of the M.V. “Arabella” v. N.A.I.C. (2008) 11 N.W.L.R. (pt.1097) 182.

A casual perusal of the Will in dispute will disclose that all the alterations made in the Will are initialled by the Testator. The first Appellant admitted this at Page 722 of the record which I had earlier reproduced. There is no evidence that the alterations were made “after the execution” of the Will. Rather there is abundant evidence that the alterations were made and initialed before the Will was executed. This is contained in the unchallenged and uncontroverted evidence of DW2 which I had also reproduced earlier in this Judgment. Whether the alteration were made before or after the will was executed in this particular case, the truth is that it (ie., the alterations) complied with section 14 of the Wills Law of Lagos state (supra) Since the Testator initialed all alterations.
Finally, on this issue of alteration of the Will, the court below observed that though it may be true that the Testator was meticulous to a fault, this is a characteristic known to the Appellant. The court as an independent arbiter, is not privy to this character trait. The appellants were under obligation to present credible, agent and convincing evidence in proof of this unique character trait of the testator. For the Appellants to have thought that the court would rely on their ipsi dixit on the issue, were asking for too much. Although the court may indeed rely on the ipsi dixit of a witness, it is only in some circumstances of which this not one I quite agree with this observation. The Appellants did very little in the matter but expected to reap much. Unfortunately, there is nothing the court can do to assist them now.

The other argument canvassed in this issue has to do with the evidence of Pw6 and Dw4. Whereas the Appellant called one Kolawole Edward, a Superintendent of Police and handwriting analyst who gave evidence on the Testator’s signature on the Will and concluded that the signature was simulated. Under cross-examination he admitted that the documents used for the exercise were photocopies though he requested for originals. This is captured on page 784 of the record.
The PW6 used Video spectra comparator (VSC) to come to his conclusion in the matter.
In order to debunk the allegation of simulation made by PW6, the Respondents called one Ndarake Udo Ekong (DW4) who says he is an expert in forensic science and question document examiner. He gave evidence to the effect that simulation is detected by “side by side” comparison of hand writing and not by the use of Video Spectra Comparator used by the PW6. He went on to say it was not advisable to form opinions on photocopied documents because photocopies could already have been manipulated and signature could be placed on the photocopies.
My first observation, is that, apart from the documents used to examine the signature on the Will being photocopies, the findings of the court below are that the signature in Exhibit C1 relating to the Testator was never used. Rather it was another copy of the Will which was not tendered before the court. I shall bring to the fore the relevant part of the Judgment as contained on pages 908-909 of the record:-
“The starting point for me in the instant is with the brief received by CW6 as communicated in Exhibit K.
The first part of the same is stated in simple terms thus: ‘compare the signatures marked x in document x with those marked y in document y’ . it has of course come to fore that document x is a copy of the Will, the subject matter of this suit. The above referred content of Exhibit K confirms to me that there is more than one signature on this document x and these said signatures were specifically marked. I am reinforced in my aforesaid view because the signatures in document y1 – y3 with which there were meant to be compared were equally marked. Documents y1 – y3 are herein Exhibits k1-k3.
Document x was not presented in evidence.

Indeed, I remarked/pointed this out to counsel in the course of the trial but the claimants’ counsel in response said that Exhibit C1 (Will) “was already in evidence”. The truth of the matter is that although Exhibit C1 is a CTC of the disputed Will, it is in the present circumstance not the same document or even similar to the “document x” referred to in Exhibit k. This is because the document therein referred to, marked out/indicated the signatures required to be compared which Exhibit C1 does not include. The significance of this will be clear in a while”.
On page 911, the learned trial Judge reasoned further thus:
“As I stated, document x was not produced in evidence and so it may be reasoned in some quarters that it is difficult to tell what signatures the witness was requested to examine and what was in fact examined”.

I can go on and on to bring to the fore the great analysis done by the learned trial Judge in his bit to see which of the two experts he would believe. It is improper for the Appellants to have hired a hand writing expert and committed to him some documents containing some signatures for analysis behind the back of the Respondents especially as found by the learned trial Judge that the “document x” was never tendered before the court. As was rightly pointed out by the DW4, the witness called by the Respondents, such an exercise would need to be done with the original of the documents. Definitely, not photocopies, especially now that we have gone far in electronic and information technology. One should be wary in using photocopies of documents to authenticate signatures on it as same could be superimposed neatly and manipulated before being photocopied. No wonder the CW6 or PW6 said that he had requested for originals but was only given photocopies.
I seem to agree with the Learned Authors of Sarkar on Evidence, 14th Edition Vol.1 at p.309 wherein it is stated thus:
“It is well settled that handwriting expert’s opinion must always be received with great caution and that it is unsafe to base a Judgment purely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law”.
Also, that:-
“Where there is direct and trustworthy evidence by persons who saw the testator sign, it is not necessary to rely on expert evidence (Kameswara v. Suryaprakasa, A 1962 AP 178). It is wise to be slow in acting on the opinion of the handwriting expert, if there are other materials to prove the signature, the opinion evidence can be sidelined”.

I cannot agree more. There is no doubt in my mind that the court below was right to reject the opinion of the PW6 as his job was fraught with uncertainties. Apart from using photocopied documents, he wrote Exhibit M, the final report two years after he concluded his job. Moreso, in view of the abundance of unchallenged and credible evidence of DW2 & DW3, I am satisfied, that in this case, we do not need the opinion of any expert witness to determine whether or not the Testator signed the Will.
In the final analysis on this issue, I am satisfied to hold that the court below was right to hold that Exhibit C1 was the last Will of late Air Commodore Gbolahan Adio Mudasiru and that the said Will was made in compliance with the Wills Law of Lagos State. Issue one is thus resolved against the Appellants.

The contention of the parties on issue two relates to the status of the 1st – 5th Respondents vis-a-viz the Will of the Testator. Whereas, the Appellants argue that the Respondents were only appointed as Trustees and not Executors of the Will, the Respondents strongly contend that they were appointed both Trustees and Executors or at least Executors by the tenor of the Will. The Appellants argue and rely on Exhibit B, the English High Court case in suit No. HC 03C03621 – Ibrahim Abdullahi & Ors. Vs. Foluke Mudasiru & Ors where Lloyd, J, held that the Respondents herein are not appointed executors in terms of the Will.
Learned counsel for the Appellants submitted further that since the Will clearly states that the Respondents are appointed as Trustees, the word Executors should not be added to them. Also, that if the Testator had wanted to appoint them as executors, he would have said so. He posited that where a statute or instrument mentions specific things, those things not mentioned are not intended to be included. He cited these cases in support. That is to say: N.H. Int’l S.A. v. NICON Hotels Ltd. (2007) 15 N.W.L.R. (pt.1056) 1 at 34 D-H and Inakoju v. Adeleke (2007) 4 N.W.L.R, (pt.1025) 423 at 629 D-E.

Learned counsel urged the court to hold that the learned trial Judge, having held that Exhibit C1 is not explicit enough to reach a conclusion that it expressly appointed the Respondents as executors, it was wrong to uphold them as Executors according to the tenor of the Will.
In his response, as expected, the learned senior counsel for the Respondents submitted that the contention of the Appellants has no basis in law, arguing that where a testator fails to nominate a person to be his executor, any person who upon the terms of the Will has been appointed to perform the essential duties of an executor, is called an executor according to the tenor and is entitled to a grant of probate.
Referring to clauses 10,11,12,13 and 14.1 of the said Will, he submitted that the testator had clearly intended that the persons named under the heading “Trustee/Executors” (ie., the 1st – 5th Respondents) be responsible for the administration of the estate since they were also to be responsible for his funeral.
It was further argued by counsel for the Respondents that even though it may be held that they were not expressly appointed, their job description in the Will has made them Executors according to the tenor of the Will. He urged the court to so hold.
Under the heading ‘TRUSTEES AND EXECUTORS”, the Testator states:-
“I appoint the following to serve as the first TRUSTEES of my Estate after I shall have passed on into the beyond:
1.
2.
3.
4.
5.
Each TRUSTEE shall nominate a successor … ”
There is no mention of the word EXECUTOR and it appears, as was rightly observed by the court below, that no Executor has been expressly appointed under Exhibit C1. Only Trustees are expressly appointed. This is so because the ordinary method of appointing an executor is for the Testator to name in his Will a specific person or persons to be his executors even as the Testator herein named his Trustees. It has to be noted that an Executor(s) is a person appointed by the Testator in the Will to administer the property of the Testator and to carry into effect the provisions of the Will. The way the heading of the section is captioned appears to suggest that the persons named under it are both trustees and executors excepting that the testator specifically appoints them as Trustees without correspondingly naming them as Executors. The learned Authors of Williams on Wills, 8th Edition, part 83 paragraph 203.2 p.1122 have stated that it is usually more convenient if the same persons are appointed both executors and trustees though they necessarily need not be the same persons. As I said earlier, there is nothing expressly stated that this is the case in the instant case.
The Appellants had tendered Exhibit B, a Judgment of the High Court of England which shows that no reasonable construction of the will can lead to a conclusion that the Respondents were also appointed as Executors. The Respondents also tendered Exhibit B1, a ruling of the High court of Lagos state per Adefope-okojie, J. of 19/10/04 which though admitting that the Respondents are not expressly appointed as executors, they are executors according to the tenor of the Will. The court below also held the Respondents to be executors in view of their description and the functions apportioned them in the Will. I think it is trite that where a Testator fails to nominate a person to be his executor, any person who upon the terms of the Will has been appointed to perform the essential duties of an executor, is called as executor according to the tenor of the Will and is entitled to a grant of probate. Also where it can be implied from the Will that a person appointed a trustee is required, for instance to pay the debts of the testator, take charge of his funeral and/or generally, administer the Will, though not expressly appointed an Executor, he can be implied to be so endowed. A reasonable construction of a Will can confirm if indeed any person(s) have been appointed to perform the essential duties of an executor. This will be a clear indication that the duties which a person is asked to perform, in the absence of his being expressly named in the Will as Executor, is the determinant of his status as an executor according to tenor. See Halsbury’s Laws of England 4th Edition vol.17; Dr. Kole Abayomi SAN: Wills Law and Practice (2004) P. 129.
Clauses 10, 11, 12, 13, and 14.1 of Exhibit C1 the Will of the Testator herein, clearly show the intension of the Testator that the person named under “TRUSTEES AND EXECUTORS” ie 1st – 5th Respondents should administer the Will. Indeed, clause 13 states:
“GRAIL FUNERAL
I request that I be given a FUNERAL, to be organized exclusively by my Trustees and conducted in the sense of THE GRAIL MESSAGE after my passing on”.

Quite apart from this, by clause 14.1 of the Will the 1st – 5th Respondents are to take every step legally necessary to effect the wishes of the testator when the object of any bequest were located in an entity in which he owned majority shares.
Based on the above, I do agree with the court below that although the 1st – 5th Respondents were not expressly appointed as executors in the Will, by reason of their job description in the Will, they are executors according to the Tenor of the Will. Although it is desirable that an executor ought to be expressly named in the Will, he can also be identified by the functions ascribed to him by the Will rather than the nomenclature with which he is described in the Will. A person mandated by the Will to perform the job of an Executor, though not so named, is indeed an executor by tenor of the Will. See In the Goods of Peverett (1902) p. 205; In the Goods of Rufus Kiaby (1902) P. 188; In the Goods of Nicholas Way (1901) p.345 at 347.

In the final analysis, I hold that the court below was right when it held that although the Respondents are not directly named in Exhibit C1 as the Executors of the Estate of late Air Commodore Gbolahan Adio Mudasiru, by the very nature of the duties the Will imposes on them, they are Executors according to the Tenor of the Will. This issue, therefore, is resolved against the Appellants.

On the last issue, which is issue No 3, it was the submission of the learned silk for the Appellants that having dismissed the Appellant’s case, the court below was wrong to proceed to make declarations and orders in the absence of a counter claim. That the court does not award to a party what that party has not claimed, relying on the cases of Etajate v. Ologbo (2007) 16 N.W.L.R. (pt.1061) 554 at 588; Yusuf v. Oyetunde (1998) 10 SCNJ 1 at 20; Yaro v. Arewa Construction Ltd. (2007) 17 N.W.L.R. (pt.1063) 333 at 374 – 375 H – A. He urged this court to hold that the orders made by the learned trial Judge at the end of trial are a nullity.
In respect of this, the learned counsel for the Respondents submitted that where the making of an order is to give effect to the Judgment of the court, though not specifically asked for, the court is justified in making the order. He urged the court to hold that the order of the court below is a consequential order and should be allowed to stand. He places reliance on these cases: ie Diamond Bank Ltd. vs Partnership Investment Co. Ltd (2009) 12 SC 159 at 185; Eagle Super Pack Nig. Ltd. v. African Continental Bank (2006) 12 SC 3 at 31. He urged this court to hold that the order made by the trial court flows from its Judgment.
It is now beyond argument that a court is not a Father Christmas and as such does not award a party that which the said party did not ask for. Put differently, a court does not go outside the prayers of the parties to make orders not contemplated by them. See Yaro v. Arewa Const. Ltd. (supra). However, where the order, though not expressly asked for, is necessary, in the circumstance of the case to give effect to the final Judgment of the court, the court will be justified to make such order. Such an order is usually called a consequential order which must flow from the Judgment of the court.

Where a new or fresh order is made by the court which does not have any bearing to the Judgment, this will amount to making an order outside the claims of the parties and such an order will be declared a nullity. See Eagle Super Pack (Nig) Ltd vs. African Continental Bank (supra).
In the instant case, the orders made by the learned trial Judge which have given birth to this issue contain on page 923 of the record and I hereby reproduce same:
“For avoidance of doubt the case of the claimants herein fails and the same is hereby dismissed. I formally pronounce on the validity of the Will and order that same be admitted to probate forthwith. I also pronounce the Defendants as the duly appointed Executors of the Estate of the late Air Commodore Gbolahan Adio Mudasiru.”
There are basically two orders made by the learned trial Judge.
The first is that the Will is valid and the 2nd is that the Respondents are duly appointed as Executors of the Will. Honestly, I do not see what order has been made which does not flow from the Judgment delivered by the court. The main issue ventilated by the Appellants at the court below was that the Will was not valid for various reasons which were addressed by the learned trial Judge and came to the conclusion that the Will was valid and complied with the Wills Law of Lagos State (supra). Therefore an order formally pronouncing on the validly of the Will at the end of trial cannot be said to be an order which was not asked for. It is my view that it is not only a consequential order, but indeed a necessary consequential order.

Again the Appellants had challenged the status of the Respondents vis-a-vis the Will. After a well considered Judgment, the court below held that the Respondents were Executors according to the Tenor of the will. So, making this pronouncement at the close of the Judgment by way of an order is merely for emphasis. Clearly these orders are necessary to give effect to the judgment of the court and there was no need for a counter-claim before such an order could be made. This issue does not avail the Appellants and I resolve it against them.
On the whole, having resolved the three issues against the Appellants, I hold that this appeal lacks merit and is hereby dismissed.
I affirm the Judgment of the court below as ably entered by A. O. Opesanwo, J, on 15th December, 2009. I shall make no order as to costs in view of the circumstances of this case.

ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in draft the judgment of my learned brother Okoro, J.C.A. just delivered. I agree with his reasoning and conclusion that the appeal ought to be dismissed as same is devoid of merit. My learned brother has meticulously considered all the issues raised for determination in this appeal. I would only add few words of mine in agreement. It is incumbent on the propounder of a Will once the Will is being challenged to establish its regularity. But once the court is satisfied prima facie of the regularity of the will, the burden of proof shifts to the party challenging the will. See: Eyo v. Inyang (2001) 8 NWLR (pt 715) 304, Okelola v. Boyle (1998) 2 NWLR (pt 539) 533; Amu v. Amu (2007) 7 NWLR (pt 663) L64, Adebayo v. Adebojo (1973) Alf N.L.R.297 and Johnson & Anor. V. Maja & Ors. 13 WACA 290. In Okelola v. Boyle (supra) court per Ogundare, JSC (as he then was) quoted with approval the decision in Johnson & Anr.13 WACA 290 as “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 there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the ‘court, prima facie, as to these matters, it seems to me that the burden is then cost upon those who attack the will and that they ore required to substantiate by evidence, the allegation they have made as to lock of capacity, undue influence and so forth.”

In the instant case, there was evidence at the lower court which the learned trial judge accepted as to the regularity of the contended will. I agree with the learned trial judge that the failure of the testator to sign the will at the right place would not invalidate the will. The argument of appellants’ counsel that the will is unsigned because the attestation clause is blank is therefore not tenable.
As regards the third issue, the learned senior counsel did state the correct position of the law, that is that a court does not award to a party what that party has not claimed. I have examined the orders made by the learned trial judge which same is reproduced in the lead judgment. In my humble view the learned trial judge made consequential orders which flowed from the judgment of the court.
The orders made were not outside the claims of the parties. I agree with my learned brother that an order formally pronouncing on the validity of a will at the end of trial cannot be said to be an order which was not asked for. The orders are indeed necessary to give effect to the judgment of the court. The trial court rightly in my view concluded that the appellants did not establish their case.
There is a complete want of merit in this appeal. I also dismiss the appeal and make no order as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the benefit of reading before now the lead Judgment just delivered by my Lord J. I. Okoro, J,C.A., and I agree that the appeal be dismissed for want of merit.
I shall, however, add a little of my thought to the issue whether the will “Exhibit C1” as altered was the last Will of Air Gommodore Gbolahan Adio Mudashiru and if valid.
For a Will to be valid, it must be executed in the manner provided in Section 4 (2) of the Wills Law Cap W 2 Vol. 7 Laws of Lagos State 2004.
The Section provides as follows:-
“4(1) No will shall be valid unless –
(a) It is in writing
(b) It is signed by the testator or signed in his name by some other person in his presence and by his direction in such place on the will so that it is apparent on the face of the Will 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 (2) witnesses present 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.”
By the evidence of DW 2 and DW 3 at the trial court, it is obvious that the 1st – 5th Respondents who propounded the will had shown prima facie, that the will was made in compliance with the provisions of the afore quoted S.14(1) of the Wills Law.

This had seemingly satisfied the 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.
Wherein it was held as follows:
“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 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.
There is no doubt that the compos mentis i. e. mental state of the Testator was not questioned at the trial. Neither was his testamentary capacity or any vitiating element in the nature of undue influence raised.

The Appellants, however, complained that the testator did not make the said will and if he did make it, he did not sign and that the signature on the will was not his and that the signature was not at the appropriate position on the will document.
My Lord, has in the lead Judgment exhaustively and admirably addressed all those issues and I subscribe to the views, analysis and conclusions reached thereon, except that I shall for clarity add that the first leg of the challenge to the making of the will at all would appear to relate to the misgivings of the Appellants in relationship to the alterations made in the will.
S.14 of the wills Law of Lagos state requires that every alteration or erasures or interlineations shall not only be signed, initialed or endorsed by the maker i.e. testator thereto, but shall also be endorsed by the witness thereto. The signature and endorsement shall be as near or close as possible to the alteration or opposite the memorandum referring to the alteration and written at the end or other part of the will.

By the canon of interpretation, the words of a statute should be given its ordinary and literal meaning in so far as they are clear and unambiguous. See ATTORNEY GENERAL OF THE FEDERATION VS. THE GUARDIAN NEWSPAPER (1999) 9 N.W.L.R. (PART. 618), page 187 wherein IGU, JSC at page 264, paragraph G – H of the report had this to say – :
“…..And where the words used or the provision of any section 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.”
See: also the unreported decision of this court in CA/L/13/08 – CELESTINE OPARA AND NIGERIA CUSTOMS SERVICE BOARD delivered on 22nd February 2011 wherein I applied the aforesaid principle of interpretation.
Both parties at the trial leading to this appeal were in accord that there were alterations in the Will – Exhibit C1.
CW1 i.e. p W, – Mrs. Mudashiru admitted that there were initials or signature where the alterations, purportedly that of my date husband.”

However, the Snag in this matter, which is the pith and reason for my emphasis is that the alterations so initialed by the testator have not been shown in evidence at the trial to have had a corresponding initialing or signature of a witness thereto and as near as possible or close as possible or any memorandum to the alteration or a memorandum referring to the amendment containing the signatures of the testator and witnesses.

If law must be a real instrument of social engineering as postulated by the Von Savignian School of thought and if the law must serve its purpose of societal control and be an engine of cohesion and harmony and if a will must be the intent of a testator, it will not be out of place for a court of equity and good conscience acting as the custodian of public morals to call for the amendment of the provisions of Section 14 (2) of the Wills Law W 2 Laws of Lagos State 2004 in a manner that the validity of a will shall be dependant on the signing of all alterations by the testator and witnesses as close as possible or near as possible to the alterations or a memorandum relating the alterations signed in like manner, notwithstanding that due execution of the will has ordinarily been made.

This will, in my view, ensure the specific certainly of alterations and specifically – assure their genuiness. With this little thought, I adopt the lead Judgment as mine and also dismiss the appeal in the circumstance and abide by all the consequential orders made therein, including that as to costs.
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): Air Commodore Gbolahan Adio Mudasiru was a senior officer of the Nigerian Air Force and served the nation in various capacities within the Nigerian Military and was one time the Military Governor of Lagos State. The 1st Appellant was his wife while the 2nd – 4th Appellants are three of his five children. Air Commodore Mudasiru died in London on 23rd Sept., 2003 while on a visit there.
While the Appellants were making preparations for the burial of their benefactor, the 1st to 5th Respondents, caused to be read at the Probate Registry of the High Court of Lagos State, Lagos on 20th October, 2003 a Will dated 24th June, 2001 which they claimed was made by the Deceased. Thereafter, the 1st – 5th Respondents, claiming to be trustees and executors under the said Will, instituted case No HC 03C03621 against the 1st Appellant herein before a London Court in which they sought to take over the burial arrangements for the Deceased. The said case was dismissed by Llyod, J. upon the ground that, though he accepted them are Trustees, he could not hold them to be executors.
At about the same time the Respondents instituted the case in England, they also applied to the Probate Registry for grant of probate in respect of the said Will dated 24/6/01 to which the 1st Appellant caused a caveat to be entered. Thereafter, the claimants at the High Court of Lagos State challenged the validity of the Will and sought declarative, injunctive and other reliefs. In a Judgment delivered on the 15th day of December, 2009, the court, presided over by Opesanwo, J., dismissed the suit in its entirety. The court also pronounced on the validity of the Will and upheld the 1st – 5th Respondents as the duly appointed Executors of the Estate of the Testator.
The Appellants felt aggrieved with the Judgment of the lower court and filed two Notices of Appeal dated 16-12-09 and 25-02-10 respectively. The Appellants however abandon the Notice of Appeal dated and filed on 16/12/09 and rely on the one dated and filed on 25-02-10, for the purpose of this appeal. Four grounds of appeal are contained in the said Notice of Appeal out of which the Appellants’ learned counsel has distilled three issues for the determination of this appeal.
In the brief settled by Theophilus O. Ochonogor, Esq., of counsel for the Appellants, the three issues are as follows:
“1. Whether the learned trial Judge was right when his Lordship held that the document dated 24-06-01 which was admitted in evidence and marked Exhibit ‘C1′ is the last Will of Late Air Commodore Gbolahan Adio Mudasiru and that same was made in compliance with the Wills Law of Lagos State (Grounds 1 & 2 of Notice of Appeal dated 25/2/10).
2. Having found, “that Exhibit C1 is not explicit enough for me to reach the conclusion that it expressly appointed the Defendants herein as its executor”, whether the learned trial Judge was right to have held that the appointment of the defendants as Executors of the estate of the late Air Commodore Gbolahan Adio Mudasiru can reasonably be implied. (Ground 3 of the Notice of Appeal dated 25/2/10).
3. Having dismissed the Appellants’ case, whether the learned trial Judge was right to have proceeded to make declarations and orders in the absence of a counter-claim. (Ground 4 of the Notice of Appeal dated 25/2/10)”.
The Respondents, through their learned counsel, Osahon Idemudia Esq., in the brief settled by him, has also formulated three issues herein reproduced:-
“1. Whether the 1st – 5th Respondents discharged the burden of proof on them on the validity of the last Will and Testament of the Testator. (Ground Nos. one and two).
2. Whether the 1st – 5th Respondents were impliedly appointed as Executors by the Testator. (Ground No. three).
3. Whether the learned trial Judge was right in having pronounced the 1st – 5th Respondents as the appointed Executors of the Estate of the Testator in the absence of a counter-claim by them. (Ground No. four)”.