REUBEN ANGBEDO AJAYI & ANOR v. MRS COMFORT BOSEDE
(2014)LCN/7536(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of November, 2014
CA/B/284/2010
RATIO
PRACTICE AND PROCEDURE: WRIT OF SUMMONS; THE EFFECT OF THE FAILURE OF A PARTY TO RAISE AN OBJECTION WHERE HE WAS NOT SERVED WITH AN AMENDED WRIT OF SUMMONS
Thus where as in the instant case, a party who was not served with an Amended Writ of Summons does not raise an objection timeously, that is to say he takes part in the proceeding as if all is well, he would be deemed to have waived his right to set aside the irregularity.
See: National Bank Ltd V Shoyoye (1977) 5 SC 181; N.U.B Ltd V Samba Pet Co. LTD (2006) 12 NWLR (pt. 993) 98; Caribbean Trading & Fidelity Corp V N.N.P.C (1992) 7 NWLR (pt. 252) 161.
More recently, in the case of Adeogun V Fashogbon (2011) All FWLR (pt. 576) 485 at 509, the court held:
“A party having waived his right on following the strict procedure in a matter before a court, cannot later, on appeal, having led the other party to so act relying on his waiver, be heard to decry the procedure as irregular with a view to resiling from it. No court of equity worth its salt would allow a party in the circumstances to renege from his acquiescence. In the instant case, where the Defendants participated in the irregular procedure adopted by the trial court, their complaints therein on appeal was rightly discountenanced”.
The above view was reiterated in the case of Dangana V Gov. Kwara State (2011) All FWLR (pt. 593) 1851 at 1882 that:
“An Appellant who consents to adoption of a wrong procedure by the trial court should not be heard to complain in the appellate court”.
See also Abe V Union Bank of Nigeria Plc (2005) All FWLR (pt. 291) 1727 at 1742; Panalpina World Trans Holden A.G V. C.C. Ltd (2011) All FWLR (pt. 600) 1258 at 1278; Olamada V Mustapha (2011) All FWLR (pt. 559) 1126. per. MOJEED ADEKUNLE OWOADE, J.C.A.
COURT: JURISDICTION; WHEN IS AN ACTION PROPERLY CONSTITUTED SO AS TO VEST JURISDICTION IN THE COURT
It is trite that for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent Plaintiff and a competent Defendant.
See: Ataguba & CO. V Gura Nig. Ltd. (2005) All FWLR (pt. 265) 1219 2 SCNJ 139. per. MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: BURDEN/ONUS OF PROOF; THE ONUS OF PROVING THE VALIDITY OF A WILL
The onus of proving that the WILL is invalid rests on the Defendants. The major reason for coming to the conclusion by the Defendants that the WILL is fake/invalid is that its existence was not disclosed immediately after the death of the deceased. The Defendants are also contending that the deceased was an illiterate and a stammerer and as such could not make a WILL. per. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. REUBEN ANGBEDO AJAYI
2. MRS. VERONICA BOSEDE Appellant(s)
AND
MRS COMFORT BOSEDE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of N.S. Adeyanju J. of the High Court of Justice Ondo State, sitting at Akure delivered on 29th January, 2010. By a Writ of Summons and Statement of Claim dated 27/11/2017, the Respondent as Plaintiff sued the 1st Defendant/1st Appellant claiming the following reliefs.
“15 whereof the Plaintiff claims against the Defendant as follows.
A. Declaration that the Plaintiff and her children are entitled to take immediate possession, use and occupation of the rooms and farms bequeathed to her by her husband in his testament dated 10/9/2004.
B. An order directing and compelling the Defendant to yield up the immediate possession of the rooms and farms bequeathed to the Plaintiff and her children by deceased Stephen Bosede in his last testament dated 10/9/2004.
C. An order directing the Defendant to render account and hand over to the Plaintiff all the proceeds so far realized from the sale of cocoa beans harvested from the farms and rents collected in respect of the rooms bequeathed to the Plaintiff and her children by the deceased Stephen Bosede in his last testament dated 10/9/2004.
On 11/14/2008, Chief J. I. Oguntoyinbo of Counsel to the 1st Defendant/Applicant (now 1st Appellant) brought a motion on notice and prayed the court for:
i. Extension of time within which to file the statement of defence and counter claim.
ii. An extension of time to file the memorandum of appearance in this case.
iii. An order of this Honourable court that Mrs. Veronica Dupe Bosede be joined as the 2nd Defendant and counter claimant in this case.
iv. An order of this Honourable Court that the Memorandum of Appearance and the Statement of Defence and Counter Claim marked Exhibits A & B be deem (sic) as being (sic) properly filed and served.
Consequent upon the granting of the prayers in the motion of the 1st Defendant/Appellant on 12/5/2008, Counsel for the Defendants/Appellants, Chief J.I. Oguntoyinbo filed a joint Memorandum of Appearance for the Defendants/Appellants and also a Statement of Defence and Counter Claim for the 2nd Defendant/Appellant on 19/5/2008. Learned Counsel to the Defendants/Appellants filed separate Statements of Defence and Counter Claim for the 1st and the 2nd Defendant/Appellant respectively on the same 19/5/2008. Each of the separate pleadings of the 1st and 2nd Defendant/Appellant contained the names of the 1st and 2nd Defendant as Defendants in the suit in the court below.
The 1st Defendant endorsed his counter claim with the following reliefs.
“(a) That the will purportedly made by the deceased late Stephen Bosede be set aside as being fake and of no effect whatsoever.
(b) A declaration that late Stephen Dupe Bosede had 2 wives Mrs. Dupe Bosede and Comfort Bosede.
(c) An order of this Honourable Court instructing the head of family and the principal members of the family to divide the properties among the children i.e. into 2 blocks call (sic) IDI IGI.
(d) An order of this Honourable Court banning anybody whatsoever from reading and implementing the WILL”.
The 2nd Defendant separately sought similar reliefs by her counter claim as follows:-
“(1) A declaration by this Honourable Court that the WILL purportedly made by Late Stephen Bosede is fake and of no effect whatsoever on the properties left by him.
(2) A declaration by this Honourable Court that late Stephen Bosede had two wives who begat children for him and that the 2nd Defendant is the first wife of the deceased.
(3) A declaration by this Honourable Court banning anybody whatsoever from implementing the will referred to above.
(4) An order of this Honourable Court to the head and principal members of late Stephen Bosede’s family to divide the properties of the deceased among the two wives according to native law and custom on IDI IGI formular”.
The Respondent as plaintiff testified and called two other witnesses. Each of the Defendants (Appellants) testified and jointly called one witness on their behalf.
The case of the Respondent is that she was the only wife of the deceased Stephen Bosede who bequeathed his properties to her and children vide his last WILL admitted as Exhibit P1. She admitted that her deceased husband had another issue (a girl) through the 2nd Defendant/Appellant.
The Appellants testified that the 2nd Appellant was the 1st wife of the deceased Stephen Bosede for whom she had a girl child and that the deceased did not make any WILL. And, also that PW1 and PW2 were present few days after the death of the deceased when he (1st Appellant) and five (5) others were appointed as caretaker of deceased’s farms. Exhibit D1, another version of the WILL was tendered by the 1st Appellant.
In a considered judgment contained at pages 59 – 76 of the record, the learned trial judge upheld the claims of the Plaintiff/Respondent. He held that the Defendants (Appellants) failed to prove that the WILL, Exhibit P1 is fake and held that Exhibit P1 is valid.
The learned trial judge considered but dismissed the counter-claims of the 1st and 2nd Defendants (Appellants). He dismissed the 1st Defendant’s (1st Appellant) Counter-Claim on the ground first that he does not possess the locus standi to prosecute the counter claim and secondly on the ground that the pleading of the 1st Defendant is at variance with his evidence in court.
The learned trial judge also dismissed the counter claim of the 2nd Defendant (2nd Appellant) on the ground that it was based on the unproved assumption that the WILL of the deceased Stephen Bosede is fake.
Dissatisfied with this judgment, the Appellants first filed a Notice of Appeal in this court on 23/2/2010. However, the Appellants later filed an Amended Notice of Appeal (containing 24 grounds of appeal) dated 28/5/2012 on 1/6/2012.
The relevant briefs of argument in this appeal are:
i. 1st and 2nd Appellants brief of argument dated 4/10/2012 and filed on the same day.
ii. Respondent’s Brief of Argument dated 2/11/2012 and filed on the same day.
iii. Appellant’s Reply Brief of Argument dated 7/11/2012 filed on 22/3/2012 but deemed filed on 8/5/2014.
Learned Counsel for the Appellants nominated four (4) issues for determination as follows:-
1. Whether the trial court rightly assumed jurisdiction in this matter when the writ of summons and statement of claim were not amended to reflect the name of the 2nd Defendant/Appellant who was joined as a party to this case. And when the said originating processes were not served on the 2nd Defendant/Appellant (Grounds 2, 3 and 4 of the Amended Notice of Appeal).
2. Whether the court can grant a declaratory relief in favour of persons not made parties in a case before it. (Grounds 5, 6 and 16 of the Amended Notice of Appeal).
3. whether the trial court was right in placing the burden of proving the validity of Exhibit P2 (the WILL) on the Appellants and if not whether the Respondent adequately discharged the onus of proof (Grounds 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 22, 23 and 25 of the Amended Notice of Appeal).
4. Whether the Defendants/Appellants counter claims ought not to be granted having led uncontroverted evidence in support of same and the Plaintiff/Respondent having not filed any defence thereto. (Grounds 1, 5, 18, 19, 20, 21, 24 and 25 of the Amended Notice of Appeal).
Learned Counsel for the Respondent on the other hand formulated three (3) issues for the determination of the appeal as follows:
i. Whether the lower court had jurisdiction to determine the case.
ii. Whether the learned trial court was right in holding that Exhibit P1 is a valid WILL and that the burden of proving that the WILL is invalid rest on the (Defendants) Appellants.
iii. Whether the learned trial judge was right in dismissing the counter claims of the Appellants.
On issue 1, Learned Counsel for the Appellants submitted that the suit was commenced by way of specially endorsed Writ against the 1st Defendant/Appellant alone. That, upon the order of joinder made by trial court on 12/5/2009, the 2nd Defendant/Appellant became a party. Throughout the proceedings at the lower court, according to Counsel, the Writ of Summons and Statement of Claim were not amended to reflect the name of the 2nd Defendant/Appellant as a party to the suit. That, indeed no such process reflecting the status of the 2nd Appellant as a party was served on the 2nd Defendant/Appellant.
Counsel argued that the provision of the law is clear that “where a Defendant is added or substituted, the Writ of Summons shall be amended accordingly and the Plaintiff shall unless otherwise ordered by the court or a Judge in chambers, file an amended Writ and cause the new Defendant to be served in the same manner as Original Defendants are served”.
He referred to the provision of Order 11 Rule 15 Ondo State High Court (Civil Procedure) Rules 1987.
Counsel further referred to the case of Green V Green (1987) 3 NWLR (pt. 61) 480 and submitted that parties are the persons whose names appear on the record (particularly writ of Summons and Statement of Claim) as Plaintiffs or Defendants. That the name of the 2nd Defendant’s/Appellant’s name having not appeared pursuant to Order 11 Rule 15 of the Rules of court, the lower court lacks jurisdiction to entertain the suit or grant any relief against her in the main claim.
On issue 1, Learned Counsel for the Respondent submitted that it is the claim of the Plaintiff that determines the jurisdiction of the court. That a court is said to be clothed with the competence to adjudicate over a matter if:
a. The court is properly constituted.
b. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.
c. The case comes before the court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction.
He referred on the above to the cases of Attorney General, Federation V Abacha (2011) All FWLR (pt. 566) 445 at 467; Oloruntoba-Oju V Dopamu (2008) All FWLR (pt. 411) 810 at 837.
He submitted that all the above factors were fulfilled in the instant case and the trial court was duly clothed with the competence to adjudicate on the Respondent’s claim.
Learned Counsel submitted that the Appellants questioned the jurisdiction of the trial court for the first time on appeal on the ground that:
i. The Writ of Summons was not amended to reflect the joinder of the 2nd Defendant.
ii. Non-service on the 2nd Defendant.
iii. The children of the Respondent were not joined as parties.
He submitted that the failure to amend the originating process to reflect the joinder of the 2nd Appellant did not rob the lower court of jurisdiction to adjudicate on the Respondent’s claim before it. That non compliance with Order 11 Rule 15 of the Ondo State High Court Rules does not divest the trial court of jurisdiction, Rules of court are meant to aid and not defeat the course of justice.
Counsel argued that by the order of the trial court joining the 2nd Appellant as the 2nd defendant she is already a party to the suit on the face of the record of the Honourable Trial Court.
Counsel submitted that the contention that the 2nd Appellant was not served the originating processes was defeated by the joint Memorandum of Appearance dated 14/5/2009 and filed on 19/5/2008. That in the said Memorandum of Appearance, Chief J.I. Oguntoyinbo of Chief J.I. Oguntoyinbo & Co. 21 New Hospital Road, Akure, entered appearance for “THE 1st AND 2nd DEFENDANTS 1. MR. REUBEN AIGBEDO AJAYI, 2. MRS. VERONICA DUPE BOSEDE (sued as Defendants in this action” in compliance with Order 13 Rule 1 (1) of the High Court Rules of Ondo State.
The 2nd Appellant, said Counsel took a step further by filing her Statement of Defence and Counter Claim.
The question that arose therefore asked Counsel is why would the 2nd Appellant file a Memorandum of Appearance and Statement of Defence/Counter Claim when she was yet to be served with the originating processes. That, indeed in proof that she was served with all processes the 2nd Appellant was present throughout the proceedings at the court below.
Counsel referred to the case of Abe V Union Bank of Nigeria Plc (2005) All FWLR (pt. 291) 1727 at 1742 where the court held that: “There is no greater proof of service than a party served appearing personally in court”.
He further submitted that the Appellants having filed an unconditional Memorandum of Appearance, Defence and Counter Claim and having participated in all the proceedings in the court below cannot on appeal complain about breach of the Rule of the High Court (Civil Procedure) Rules of Ondo State.
He referred again to the case of Abe V Union Bank of Nigeria Plc (Supra) at 1743 and also to Panalpina World Trans Holden AG. V C.C. Ltd (2011) All FWLR (pt. 600) 1258 at 1278; Olomada V Mustapha (2011) All FWLR (pt. 559) 1126.
Counsel submitted that the Appellants having waived their rights to complain at the lower court cannot later on appeal be heard to complain of any irregularity.
He referred to the cases of Adeogun V Fasogbon (2011) All FWLR (pt. 576) 485 at 509; Dangana V Gov. Kwara State (2011) All FWLR (pt. 593) 1851 at 1882.
In his Reply Brief, Learned Counsel to the Appellants submitted that the Respondent’s Counsel mis-stated the position of the law when he submitted that non-amendment of the originating process to reflect the name of a party joined did not rob the trial court of jurisdiction. That the correct position of the law is as stated in the case of Solanke V Somefun (1974) 1 SC 141 where the Supreme Court declared that “Rules of Court are made to be complied with by parties and the courts. The Rules regulate matters in court and help parties to prosecute their cases to achieve fair hearing and quick dispensation of justice”.
On this, Appellant’s Counsel further referred to the cases of Ibado V. Enarofia (1980) 5-7 SC 42; Aina V. Aina (1986) 2 NWLR (pt. 22) 316; MC Invest Ltd & Anor V MC Invest Ltd & CM Ltd (2012) 209 LRCN 1.
He added that the 2nd Appellant whose name did not appear on the Writ of Summons as a party to this case, cannot by mere order of joinder become a party on the face of the judgment paper without the writ been amended.
The related complaint of the Appellants in relation to issue No. 1 is the failure of the Appellants to comply with the provision of Order 11 Rule 15 of the High Court (Civil Procedure) Rules of Ondo State 1987 which the amendment and service of Writ of Summons by the Plaintiff where a Defendant is added or substituted.
For ease of reference Order 11 Rule 15 of the High Court Rules of Ondo State reads thus:
“Where a defendant is added or substituted the Writ of Summons shall be amended accordingly and accordingly the Plaintiff shall unless otherwise ordered by a judge file an amended Writ of Summons and cause the new defendant to be served in the same manner as the original defendant”.
Let me say categorically that in the circumstances of this case, the non-compliance of the plaintiff Respondent to the provision of Order 11 Rule 15 of the High Court Rules of Ondo State is at best an irregularity which has been waived by the Defendants/Appellants and is no way affects the jurisdiction of the trial court.
In the first place, it was the Defendants/Appellants in the instant case that prayed the trial court for the joinder of the 2nd defendant and filed a joint memorandum of appearance for the 1st and 2nd Defendants/Appellants. Not only that, the separate Statements of Defence of the 1st and the 2nd Defendant/Appellant named the Defendants/Appellants in each of the processes as 1st and 2nd Defendants. What is more, the Defendants fully participated in the proceedings, defended the action and prosecuted their counter-claims.
Obviously the Defendants/Appellants have waived the irregularity if any of the failure of the Plaintiff/Respondent to comply with the provision of Order 11 Rule 15 of the High Court Rules of Ondo State either by not amending the Writ of Summons after the court order of 12/5/2008 or by not formally serving the amended Writ of Summons on the Defendants/Appellants.
The concept of waiver is that a person who is under no legal disability and having full knowledge of his rights or interests conferred on him by law, and who intentionally decides to give them (or some of them) up cannot be heard that he has not been permitted the exercise of these rights. Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend a court of law will hold that he has waived his right.
Thus where as in the instant case, a party who was not served with an Amended Writ of Summons does not raise an objection timeously, that is to say he takes part in the proceeding as if all is well, he would be deemed to have waived his right to set aside the irregularity.
See: National Bank Ltd V Shoyoye (1977) 5 SC 181; N.U.B Ltd V Samba Pet Co. LTD (2006) 12 NWLR (pt. 993) 98; Caribbean Trading & Fidelity Corp V N.N.P.C (1992) 7 NWLR (pt. 252) 161.
More recently, in the case of Adeogun V Fashogbon (2011) All FWLR (pt. 576) 485 at 509, the court held:
“A party having waived his right on following the strict procedure in a matter before a court, cannot later, on appeal, having led the other party to so act relying on his waiver, be heard to decry the procedure as irregular with a view to resiling from it. No court of equity worth its salt would allow a party in the circumstances to renege from his acquiescence. In the instant case, where the Defendants participated in the irregular procedure adopted by the trial court, their complaints therein on appeal was rightly discountenanced”.
The above view was reiterated in the case of Dangana V Gov. Kwara State (2011) All FWLR (pt. 593) 1851 at 1882 that:
“An Appellant who consents to adoption of a wrong procedure by the trial court should not be heard to complain in the appellate court”.
See also Abe V Union Bank of Nigeria Plc (2005) All FWLR (pt. 291) 1727 at 1742; Panalpina World Trans Holden A.G V. C.C. Ltd (2011) All FWLR (pt. 600) 1258 at 1278; Olamada V Mustapha (2011) All FWLR (pt. 559) 1126.
In the instant case the Defendants/Appellants took further steps, adopted, condoled and acquiesced to the seemingly wrong procedure adopted by the Respondent at the court below, it is definitely too late in the day to complain on appeal of any irregularity having fully participated in the trial at the court below.
Issue No.1 is resolved against the Appellant.
On issue 2, Learned Counsel for the Appellants submitted that the judgment appealed against is a “Declaration that the Plaintiff and her children for the deceased are entitled to take immediate possession, use and occupation of the rooms and farms bequeathed to them by late Stephen Bosede in his WILL”.
He submitted that since the children of the Respondent, who were said to be alive, were not joined as parties to this suit, the declaratory relief granted in their favour by the lower court was null, void and of no effect. Moreso, he said, when the Plaintiff/Respondent did not file the suit in a representative capacity or as next friend to the said children.
He referred to the case of Amadiume V Ibok (2006) All FWLR (pt. 321) 1247 and argued that where the proper parties are not before the court, then the court lacks jurisdiction to hear the suit.
On Issue 2, Respondent’s Counsel submitted that non-joinder of the children of the Plaintiff Respondent as parties to the suit did not rub off the jurisdiction of the trial court. That both the Appellants and the Respondent possessed the legal capacity to sue and defend the suit. The non-joinder of the Respondent’s children has not rendered the suit and the judgment a nullity because the non-joinder is a procedural irregularity which does not affect the competence of the court. Moreover, said Counsel, the judgment has not occasioned any miscarriage of justice to any of the Appellants. He referred to the case of Agbekoni V Kareem (2008) All FWLR (pt. 406) 1970 at 1985.
He submitted that from the averments in statement of claim and the reliefs sought at the lower court, the Respondent seek not only for herself but also for her children as contained in the WILL Exhibit P1. That evidence of the Respondent and her witnesses clearly show that the Respondent fought the case at the trial court for herself and on behalf of her children, although the action was instituted in her personal capacity.
Counsel submitted that although the Respondent instituted the case in personal capacity but fought throughout the case in a representative capacity, the trial court was right to have entered judgment in her favour and her children as entitled of the contents of Exhibit P1, notwithstanding that an amendment to reflect that capacity was not applied for.
He referred to the case of S.P.D.C (Nig.) Ltd V Edamkue (2009) All FWLR (pt. 489) 407 at 428 and urged that the issue be resolved in favour of the Respondent.
In the instant case, the Appellants could not be heard to complain that the reliefs granted also enured in favour of the children of the Respondent who either were not joined as parties or that the action was not instituted in a representative capacity. Neither could the Appellants say that the trial court was deprived of competence and/or jurisdiction on ground of non-joinder of the children of the Respondent as parties to the suit.
It is trite that for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent Plaintiff and a competent Defendant.
See: Ataguba & CO. V Gura Nig. Ltd. (2005) All FWLR (pt. 265) 1219 2 SCNJ 139.
In the instant case there is no question of the Respondent’s suit being improperly constituted as to deprive the court of jurisdiction to adjudicate because there was indeed at the onset of the suit a competent Plaintiff and a competent Defendant.
In the case of Agbekoni V Kareem (2008) All FWLR (pt. 406) 1970 at 1985, the Court of Appeal held that:
“Where an action is properly constituted, with a Plaintiff possessing the legal capacity to bring the action, a Defendant with a capacity to defend, a claim with a cause of action against the defendants, and the action itself having satisfied all preconditions necessary for instituting the action, the fact that necessary party to the action has not been joined is not fatal to the action and will not render the action a nullity.
In other words, where a necessary party to an action has not been joined, the non-joinder will not render the judgment a nullity. This is so because the failure to join a necessary party is a procedural irregularity, which does not affect the competence or jurisdiction of the court to entertain the matter before it. This is the general rule.
However, the exception is where the irregularity leads to unfairness or injustice to the other party; the judgment may be set aside on appeal”.
Similarly, in the instant case, the learned trial judge was right to have granted reliefs which enured to the benefit of the Respondent and her children even though the action was not instituted in a representative capacity. This is so because, to all intents and purposes the Respondent’s action was fought and defended in a representative capacity.
Indeed, as a matter of law, failure to obtain the leave of court to sue in a representative capacity is not fatal to vitiate the proceedings. The court cannot strike out or dismiss an action just because the Plaintiff did not obtain leave of the court to sue in a representative capacity. See Ogunyombo V. Ookoya (2002) 16 NWLR (pt. 793) 224.
Also in the case of S.P.D.C. Nig. Ltd V Edamkue (2009) All FWLR (pt. 489) 407 at 428 the court held:
“Once the pleadings and evidence establish conclusively a representative capacity and that the case has been fought throughout in that capacity, a trial or appellate court can and will be entitled to enter judgment for or against that party in that capacity; even if an amendment to reflect that capacity had not been applied for or obtained. It will be otherwise if the case is not made out in a representative capacity. There need not be a formal application to this/that effect either in the trial or appellate court”.
In the instant case the Respondent’s suit was properly constituted and though not instituted in a representative capacity was presented and fought in a representative capacity for the Respondent and her children. The complaint of the Appellants of nonjoinder of Respondents children could not have affected the competence of the action and the reliefs in favour of the Respondent and her children were rightly granted.
Issue No. 2 is resolved against the Appellant.
On issue 3, Learned Counsel for the Appellants stated that the burden of proof in a civil matter is on the party who makes the assertion and that this is more so in an action for declaration as sought in this case. He referred to Section 138 of the Evidence Act. Also to the case of Owi V Ighiwi (2005) All FWLR (pt. 248) 1762 at 1788 – 1789.
He submitted that the learned trial judge erroneously placed the burding of proving the validity of Exhibit P1 (the WILL) on the Defendants/Appellants instead of placing it on the Plaintiff/Respondent who sought for declaratory relief based on the WILL.
Counsel argued that the trial judge also arrived at a wrong conclusion by misdirecting himself that the parties agreed that Exhibit P1 is the WILL of the deceased. That, to the contrary, evidence based on pleadings showed that the Appellants never agreed that Exhibit P1 was the WILL of the deceased.
That, there was also the uncontroverted evidence that the Respondent’s, PW1 and PW2 initially agreed immediately after the death of the deceased that there was no WILL. The onus of proving that Exhibit P1 is the WILL of the deceased as claimed by the Plaintiff/Respondent lies on her as the presumption ought to be drawn that the initial assertion of her witnesses that there was no WILL was correct.
He added that the evidence of PW1 and PW2 were contrary as to the due execution and reading of Exhibit P1 (the Will) and that the two witnesses (PW1 and PW2) had earlier claimed that there was no WILL and agreed to the appointment of caretaker to manage the farms of the deceased.
Respondent’s Counsel submitted on issue 3 that the burden of proving the validity or genuiness of a WILL is on the party who propounds it, but however where the burden is discharged, it shifts to the other party to show that the will is not genuine.
He referred on the above to the cases of Oshinowo V Oshinowo (2005) All FWLR (pt. 281) 1698 at 1713; Ize-Iyamu V Alonge (2007) All FWLR (pt. 371) 1570 at 1586.
He added that whether a WILL is genuine or not depends on the evidence adduced before the trial court.
He submitted that in proving the authenticity of the WILL the Respondent in her evidence tendered the Certified True Copy of the probated WILL. Also, that the record of proceedings when the will was read by the probate Registrar of the High Court of Justice Akure was tendered as Exhibit P2. And, that PW1 one of the executors testified to the authenticity of the WILL.
Counsel submitted further that a perusal of Exhibit P1 shows that it is in conformity with section 6 of WILLs Law of Ondo State to the effect that:
a. It is in writing.
b. It is signed by the testator.
c. The testator acknowledged the signature in the presence of at least two witnesses present at the same time.
d. The witnesses attest and subscribe the Will in the presence of the testator.
That having led credible evidence in proof of the above, the burden shifts to the Appellants to disprove the authenticity of the WILL.
Respondent’s Counsel submitted further that the Appellants in this case dispute the authenticity of the WILL because:
(a) 1st Defendant was not carried along, 1st Defendant (now 1st Appellant) testified that:
“I disagreed with the WILL because I was not aware when it was made” (page 46 of the record).
(b) 2nd Appellant disagreed because the name of her daughter is the 4th on the WILL (Exhibit P1) and only 1 room was given to her in the backyard, while three Adeniyans signed the WILL (page 48 of the record).
Counsel submitted that the grouse of the Appellants is not sufficient to disprove the authenticity of the WILL – Exhibit P1.
Learned Counsel for the Respondent correctly stated the position of the law when he said that the initial burden of proving due execution of a WILL rests on the party who propounds the WILL but that the burden of proving that such a WILL is not genuine or not valid shifts to the person that asserts the contrary. In the instant case, the Respondent discharged the burden of proving due execution of the WILL when it produced Exhibit P1 and P2 and at no point in time in the proceedings was it proved that Exhibit P1 was “fake”, invalid or that it was not genuine.
The learned trial judge was right when he held, first at page 72 of the record that:
“On a careful consideration of the evidence, I find the deceased made a WILL, infact, the parties agreed on this, that the existence of the WILL was not disclosed until the year 2007, that Exhibit P1 is the WILL of the deceased and that it was read at the probate Registry as evidenced by Exhibit P2.
The onus of proving that the WILL is invalid rests on the Defendants. The major reason for coming to the conclusion by the Defendants that the WILL is fake/invalid is that its existence was not disclosed immediately after the death of the deceased. The Defendants are also contending that the deceased was an illiterate and a stammerer and as such could not make a WILL.
The failure and/or neglect to disclose the existence of the WILL until 2007 and the facts that the deceased was an illiterate and a stammerer in my view are insufficient, without more, to come to the conclusion that the WILL was fraudulent and not genuine as urged by the learned Counsel for the Defendant.
To contend that Exhibit P1 is a fake document is an allegation of crime which must be proved beyond reasonable doubt:
See Section 138 (1) of the Evidence Act and Akinkugbe V EH (Nig) Ltd (2008) 12 NWLR (pt. 1098) 375 —“.
And continued at page 73 that:
“Exhibits P1 and P2 are public documents and are duly certified as required by sections 95 (a) and 97 (1) (e) and (2) (c) of the Evidence Act. By the provision of Section 114 (1) of the Evidence Act, Exhibits P1 and P2 are presumed to be genuine by the provision of Section 114 of the Evidence Act.
The Defendants have woefully failed to prove that the WILL, Exhibit P1 is fake. I therefore hold that Exhibit P1 is valid”.
In the instant case, the Appellants did not discharge the burden of proving that the WILL Exhibit P1 is not genuine or that it is invalid.
Issue No. 3 is resolved against the Appellants.
On issue 4, Learned Counsel for the Appellants submitted that once a counter-claim is filed and served, the Plaintiff is expected to file his defence in his reply. That, where no defence is filed, the facts averred to in the counter-claim would be regarded as admitted.
He referred to the case of N.H.D.S V Mumuni (1977) 2 SC 57.
He submitted that the Respondent in this case did not file any defence to the counter claim of the 1st and 2nd Defendants/Appellants. That the pleadings and oral evidence on oath of the Defendants/Appellants remained uncontroverted that Late Stephen Bosede had two (2) wives that is the Plaintiff/Respondent (2nd wife) and the 2nd Defendant (2nd Appellant) (1st wife).
He submitted that the pleadings and oral evidence on oath of the Appellants remained uncontroverted that HRM Deji of Akure land shared the proceeds realized from the cocoa farm of late Stephen Bosede between his two (2) wives in accordance with IDI IGI customary law.
Also, that the pleadings and evidence on oath remained uncontroverted that Exhibit P1 (The WILL) has not been implemented.
Counsel submitted further that the trial court’s holding that the 1st Defendant/Appellant lacks locus standi to bring the counter claim ought to be set aside. But, that assuming without conceding that the 1st Defendant/Appellant lacks locus standi to counter claim, the counter claim of the 2nd Defendant/Appellant ought to succeed.
On issue 4, Learned Counsel for the Respondent referred to the case of Esoho V Asuquo (2007) All FWLR (pt. 359) 1355 at 1369 – 1370 and submitted that a counter-claim though a separate action must relate to and flow from the main claim (i.e. Plaintiffs claim).
He submitted that the action of the Respondent in the court below is in respect of the WILL/Estate of Pa. Stephen Bosede, however the counter claim of the 1st Appellant dwells on the WILL of Pa. Jacob Ajayi as specifically pleaded in paragraphs 4 and 7 of the Amended Statement of Defence and Counter Claim of the 1st Defendant/Appellant, which averments were repeated in the counter claim (paragraph ii). That the 1st Appellant’s reliefs are at variance with his pleaded facts on the Will of Pa. Jacob Ajayi. He counter claimed in respect of the WILL of Stephen Bosede.
Moreover, that, there is no iota of evidence that the 1st Appellant stands to benefit from the WILL of either Pa. Stephen Bosede or pa. Jacob Ajayi.
He referred to the case of Olubodun V Lawal (2008) All FWLR (pt. 434) 1468 at 1525.
Finally, Counsel submitted that having found the Plaintiff to be entitled to the reliefs claimed and having held that the WILL of the deceased Stephen Bosede is genuine the lower court was right in dismissing the counter claim of the Appellants.
Learned Counsel for the Appellants could not in all seriousness contend that the two reasons given by the learned trial judge for dismissing the counter-claim of the 1st Appellant are not valid. Truly, the 1st Appellant does not have locus standi to maintain the counter-claim and his pleadings were totally at variance with the reliefs claimed in his counter-claim.
Also, for both Appellants, their respective counter-claims are defeated by the finding of the trial judge that the WILL Exhibit P1 is a genuine document and was duly executed.
This is because, the Appellants counter-claims were dependent on the answer to be given in the main claim to the geniuness or otherwise of Exhibit P1. In any event, the failure of the Respondent to file Replies to the counter-claims of the Appellants could not in the circumstance constitute admission of the facts pleaded in each of the counter-claim.
This is first because, pleadings is not synonymous with evidence and also because a party cannot be held to admit a fact which does not exist in fact or in law as such an admission does not have any evidentiary value.
Averments in pleadings not supported by evidence are bound to be discountenanced. Cameroon Airlines V Otutuizu (2011) 4 NWLR (pt. 1238) 512; Motoh V Motoh (2011) 16 NWLR (pt. 1274) 474. And also an admission of a fact which has no value in fact or in law is no admission.
See Niki Tobi JSC in Odutola V Papersack Nig. Ltd (2006) 18 NWLR (pt. 1012) 470.
Accordingly Issue No. 4 is also resolved against the Appellants.
Having resolved the four (4) issues in this appeal against the Appellants, the appeal lacks merit and it is dismissed.
N30,000.00 costs is awarded in favour of the Respondent against the Appellants.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft before now the Lead Judgment of my Lord Owoade JCA, in respect of this appeal and agree that the appeal lacks merit.
The validity of the will in contest had not been satisfactorily impugned. All the conditions for its making and execution had been proved at the trial. Compliance with S.6 of the Wills law had been proved, and the trial Judge rightly held that the Plaintiffs/Appellants could not succeed. In the same token, the counter claim had no basis.
My Lord, Owoade JCA had clearly addressed all the issues as raised and argued in this appeal, starting with the futile attempt by the 2nd Appellant who was the 2nd Defendant to recoil from the binding effect of the judgment leading to this appeal when she had waived her right to be served an originating process and had filed a joint memorandum of appearance, filed statement of Defence and a counter claim; participated and defended the suit and indeed called witnesses in his counter claim.
There can be no complaint, in the circumstance of appearance which was proof of service or a waiver thereof. What is more, the rules relating to amendment of processes to reflect the names of parties does not affect the jurisdiction of the court that has been shown by the cause of action and in an action properly constituted and shown in the originating process.
The institution of the action in a representative action had been disclosed by the evidence led and the will challenged had not been successfully challenged in its due execution and validity. The Counter Claims had no anchor. See Mudashiru V. Abdullahi & Ors.
Appeal is dismissed. I abide with the Leading Judgment in the conclusion dismissing the appeal and the consequential order of costs as entered by His Lordship, Owoade JCA.
JAMES SHEHU ABIRIYI, J.C.A.: I read before now the draft of the Judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA.
He has ably dealt with all the issues for determination. I have nothing more useful to add.
All four issues having been resolved against the Appellants, the appeal lacks merit and is dismissed by me.
I abide by all other consequential orders including the order as to costs.
Appearances
O.D. Olawale Esq.For Appellant
AND
Temitope Adedipe Esq.For Respondent
