TOAFIC SULE & ORS v. ZAINAB P. SULE & ORS
(2019)LCN/12824(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of March, 2019
CA/B/454/2018
RATIO
COURT AND PROCEDURE: THAT THE COURT SHOULD STAY IN NEUTRAL IN DELIVERING A JUDGEMENT
“…a Court should avoid deciding an issue that calls for a resolution in the substantive case. In other words, the Court should not make any comment, observation or pronouncement, in its ruling on an interlocutory matter, which may appear to prejudge the main issue in the substantive proceedings. See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535; Odutola Holdings Limited v. Mr. Kunle Ladejobi (2006) 12 NWLR (Pt. 994) 321.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
INTERPRETATION: MEANING OF PROBATE
“‘Probate is ‘the judicial procedure by which a testamentary document is established to be valid Will’. In other words, it is the proving of a Will to the satisfaction of the Court. Therefore, unless it is set aside, the probate of a Will is conclusive upon the parties to the proceedings and other persons who had notice of them on all questions of testamentary capacity, the absence of fraud or undue influence, and due execution of the Will. However, it should be noted that, probate does not preclude inquiry into the validity of the Will?s provisions or on their proper construction or legal effect. See Black?s Law Dictionary, Ninth Edition pages 1321 – 1322.’ (Underlining supplied for the sake of emphasis)” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. TOAFIC SULE
2. DR. TAJUDEEN SULE
3. MAIMUNA SULE
4. MUHAMMED SULE
5. ABDULAZEEZ SULE
6. ABUBAKAR SULE Appellant(s)
AND
1. ZAINAB P. SULE
2. SIDI USMAN
3. SHETIMA YUSUF Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.(Delivering the Leading Judgment):
The appellants are the claimants in Suit No. HAU/11/2017 which they instituted in the High Court of Edo State, Auchi Judicial Divison, holden at Auchi. In their amended statement of claim, the appellants are claiming against the respondent as follows:
1. An Order setting aside the purported WILL and/or Probate on grounds that it was made in breach of Auchi Custom and tradition and the Muslim law on inheritance.
2. A Declaration that the purported testator cannot by a WILL overrule the Custom and tradition Auchi and/or the Muslim law of inheritance to disinherit the 1st claimant as His first son and give house No. 76 Warrake Road Auchi that belong to him under the custom of the 1st defendant.
3. A Declaration that the claimants are the one entitled to apply for and be granted letters administration in respect of their late father’s estate.
4. An Order directing the 1st defendant to render account of all the monies received as rent from House No. 76 Warrake Road Auchi from January, 2016 till sooner judgment.
5. An Order of perpetual injunction restraining the defendant from intermeddling with the estate of Chief Y.A. Sule.
6. An Order directing the 1st defendant to return the licensed double barrel gun belonging to the purported testator in her possession and to the 1st claimant.
7. AND Order directing that all the property comprising the Estate of Late Chief Y.A. Sule should be shared amongst the children according to Auchi Native law and custom or Muslim law of inheritance.
The respondents, as defendants in the lower Court, filed a joint statement of defence in which they averred, amongst other things, that ‘the defendants shall contend that the claimants’ claims and reliefs’ are frivolous, unmeritorious and vague and shall urge upon this Honourable Court to dismiss same with crushing costs’.
On the 6th day of February, 2018 the appellants opened their case by fielding one Sule Sumaina Abu, who testified as Claimant?s Witness 1 (CW1) and was cross-examined by the learned counsel for the respondents. On 02/03/2018, however, learned counsel for the appellants filed a motion on notice praying for:
(1) An Order of this Honourable Court setting aside the proceedings of the 6th day of February 2018 in this suit wherein SULE SUMAILA testified as CW1.
(2) An Order of this Honourable Court compelling the defendants to open their defence and or case being the propounders of the ‘WILL’ purportedly made by ALHAJI CHIEF A.Y. SULE (deceased).
The appellants’ said motion on notice was opposed by the respondents. After hearing arguments of learned counsel, the trial Court delivered a reserved ruling on the 3rd day of July, 2018 whereby the motion on notice was dismissed. Being dissatisfied with the decision of the trial Court, the appellants filed two notices of appeal ? the first was filed on 12/07/2018 and the second on 13/07/2018.
The notice of appeal filed on 12/07/2018 was abandoned by the appellants and the said notice of appeal is hereby struck out.
In their brief, filed on 17/09/2018, the appellants distilled two issues for determination:
1. Whether the respondents are not the propounders of the Will and as such, are not obligated by law to open their case first? (distilled from ground three).
2. Whether the lower Court did not in fact pronounce upon the substantive Suit in its Ruling (distilled from ground one and two).?
On behalf of the respondents the following two issues were formulated for determination in their brief filed on 17/10/2018:
1. Whether the appellants being the challenger/attackers of the validity and due execution of the “WILL” after same had been proved at the probate and even read at the 40th day Fidau Prayers Ceremony, have been called their 1st witness (Mr. Sumaimu Sule – CW1, are not obligated in law to conclude their case before the respondents can be called upon to open theirs.
2. Whether the interlocutory ruling and or decision of the lower Court dismissing the appellants application without more amounts to a pronouncement on the substantive suit.?
The appellants’ notice of appeal filed on 13/07/2018 spans pages 105 to 107 of the record and it contains the following three grounds:
GROUNDS OF APPEAL
1. The trial Court erred in law when it determined the substantive suit at the interlocutory stage.
PARTICULARS OF ERRORS
(i) The will have not been admitted to probate.
(ii) The will has not been proved in accordance with the Administration of Estate law.
2. The trial Court erred in law when it held as follows:
in other words, there are two situation;
(1) an application is submitted by the executors to the probate registry for grant of probate.
(2) A will has been admitted to probate and had been read.
The latter scenario is the position of the defendants/respondents and interestingly, it was not disputed by the claimant/applicants’
PARTICULARS OF ERRORS
(i) The will have not been admitted to probate.
(ii) The will has not been proved in accordance with the Administration of Estate Law
(iii) Under the law of pleadings, a claimant cannot dispute a claim, only the defendant can dispute a claim.
3. The trial Court erred in law when it held as follows:
I hold in the circumstance that since the will in question has been proved and read, the claimants who are challenging its validity and due execution have the burden to prove their assertion by first calling witnesses.?
PARTICULARS OF ERRORS
(i) The burden of proof of the genuineness and authenticity of a will lies on the party propounding it.
(ii) The respondents are the propounders of the will.
(iii) The will have not been proved nor admitted to probate.
As can been seen from the issues identified by the learned counsel for the appellants, no issue was raised from ground 1 and that ground of appeal is deemed abandoned and, accordingly, it is struck out. The law is settled that any ground of appeal from which no issue is distilled is deemed abandoned and it is liable to be struck out. See Dieli v. Iwuno (1996) 4 NWLR (Pt.445) 622; Akinsipe v. Adetoroye (1999) 9 NWLR (Pt.617) 162; Ogun v. Asemah (2002) 4 NWLR (Pt. 756) 208 and Isikilu Olanipekun v. The State (2016) 13 NWLR (Pt. 1528) 100.
The issues framed by the learned counsel for the appellants are clear, concise and precise. I adopt the issues as formulated by the appellant to determine the appeal.
ISSUE NO. 1
Whether the respondents are not the propounders of the Will and as such, are not obligated by law to open their case first.
Learned counsel for the appellant referred the Court to the cases of Nsefik v. Muna (2014) 2 NWLR (Pt. 1390) 151; Okelola v. Boyle (1998) 2 NWLR (Pt. 539) 533; Adebayo v. Adebayo (1973) 1 All NLR 361 and Iyamu v. Alonge (2017) All FWLR (Pt. 371) 1570 and submitted that:
‘It is a hallowed principle of law that those who propound a Will must show by evidence that prima facie all is in order in respect of the will. It is only after the propounders have discharged this duty that the onus or burden will then shift to the claimants challenging the Will, to substantiate by evidence, the allegation of invalidity of the said Will.’
He referred to paragraphs 16, 17, 19, 20, 21, 27 and 28 of the respondents’ joint statement of defence which, according to him, ‘are a lucid indication and pointer to the facts that they are the propounders of the Will’.
Relying on the cases of Mudashiru v. Abdullahi (2011) 7 NWLR (Pt. 1247) 591; Eyo v. Inyang (2001) 8 NWLR (Pt. 715) 304 and Johnson v. Maja (1951) 13 WACA 290, learned counsel argued that ‘the party who propounded a Will 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’ and, thereafter, the burden would shift to those who detract the Will to substantiate the allegation that the testator lacked capacity or was under undue influence.
In response, learned counsel for the respondents referred to Nsefik v. Muna (2014) All FWLR (Pt. 718) 845 at 866-867 per Ariwoola, JSC and submitted as follows:
‘It is only when the validity and due execution of the ‘WILL’ and the testamentary capacity of the testator is challenged at the time the WILL is deposited in the probate and before it is proved and read, the propounders of same, will have the burden of first calling witnesses and not otherwise.’
In plain English Language, ‘Will’ means ‘a statement of what somebody wants to happen to his or her property after he or she dies, or a legal document containing this statement’ – Encarta World English Dictionary, page 2130.
At law, ‘Will’ means
The legal expression of an individual?s wishes about the deposition of his or her property after death; especially a document by which a person directs his or her estate to be distributed upon death.
See Black’s Law Dictionary, Deluxe Ninth Edition, page 1735. To ‘propound a will’, therefore, means ‘to put forward a will as authentic’.
A ‘propounder’ means ‘An executor or administrator who offers a will or other testamentary document for admission to probate’. See Black’s Law Dictionary, Deluxe Ninth Edition, page 1339. It has been held by the Supreme Court that the propounder of a Will is an executor or administrator who offers the Will or other testamentary document for admission to probate. See Chief Eyo Edem Nsefik & 4 Ors. v. Rosemay Muna & 4 Ors. (2014) 2 NWLR (Pt. 1390) 151 at 193, per Kekere-Ekun, JSC.
The learned authors of Black’s Law Dictionary, Deluxe Ninth Edition, page 1321 explain the meaning of ‘probate’ as follows:
‘The judicial procedure by which a testamentary document is established to be a valid will, the proving of a will to the satisfaction of the Court.’. See also Chief Eyo Edem Nsefik & Ors. v. Rosemary Muna & Ors. (supra) at 181, per Ariwoola, JSC.
In this case, the appellants averred in their amended statement of claim, inter alia, that:
(i) they are the surviving children of one Chief Y. A. Sule of Auchi who died on the 10th day of December, 2015 in the United States of America, where he was flown to for treatment and was buried according to Auchi custom and Islamic rites of burial? – paragraphs1 and 6;
(ii) the 1st respondent was a concubine to late Chief Y.A. Sule, while the 2nd and 3rd respondents ‘are the Executors and Trustees of the purported will(sic) Chief Y.A. Sule. paragraphs 4 and 5;
(iii) before their father was flown to the United States of America on the 13th day of November, 2015, he was flown to Lagos on the 2nd day of November, he ‘was very sick and was not(sic) total control of his mind and was subject to manipulation and undue influence by the 1st defendant who was the only person living with him?; and supplied the particulars of the alleged undue influence’ paragraph 13;
(iv) the testator was transferred from Auchi to Lagos for medical treatment on the 2nd of November, 2015 and subsequently flown to America for further medical treatment on the 13th November, 2015 and the purported WILL was said to have been executed by the testator on the 3rd of November, 2015 at Auchi when he was in Lagos preparing to be flown out of the country. The claimants shall rely in his Medical Report from the Lagos State University Teaching Hospital dated November, 2015;
(v) the purported will is irregular and a forgery – paragraphs 20 to 24;
(vi) the purported WILL that was made in breach of the Auchi Custom and Tradition of inheritance and Muslim law of inheritance and was never admitted to probate.
In their joint statement of defence, the respondents denied the averments in the appellants’ statement of claim and stated that the will was validly made by the deceased and that, the will was registered at the probate Registry before same was publicly read out. paragraph 27 (b) of the respondents’ joint statement of defence.
In the case of Chief Eyo Edem Nsefik & Ors. v. Rosemary Muna & Ors. (supra) at 193 – 194 per Kekere-Ekun, JSC, the Supreme Court stated the procedure for granting probate as follows:
There are two procedures for the grant of probate of a Will. Probate may be granted either in common form or in solemn form. An application for the grant of probate in common form is usually made ex-parte. The procedure is carried out by the Registrar of the High Court upon an application by the executor(s). It involves establishing that it was in fact the testator (the maker of the Will) who died; that the Will was properly signed and attested and that the executors have been appointed. The procedure is usually employed where it is not anticipated that there would be any challenged to the grant. Once those requirements have been fulfilled and there is no caveat entered against the grant, as in the instant case, the propounders of the Will would have made out a prima facie case of entitlement to the grant. On the other hand, where the Will is being contested, it would involve a trial at the High Court. The executors must apply in solemn form which means a statement of claim is filed under the standard procedure for civil proceedings in the High Court.
The party who is contesting the Will would be named as a defendant. He would then have the opportunity of filing a statement of defence and/or a counter claim if he so desires. In a situation where the executors are applying for the grant of probate in solemn form it is not in doubt that they are propounding the Will and must begin by leading evidence to show, prima facie, that the testator had the necessary testamentary capacity to make the will and that there was due execution. See Halsbury?s Laws of England (4th Edition) Vol. 17 page 475 paragraph 903. Thereafter, the onus would shift to the challenger to disprove the assertion.
The appellants did not compile and transmit the original writ of summons and the original statement of claim they filed in the trial Court. The respondents also failed to compile and transmit these processes as additional record of appeal. Since these processes are not before the Court, I cannot speculate on the date the appellants filed them. The law is that Courts have a duty not to indulge in guesswork or speculation in their adjudication of causes or matters. See Ikenta Best (Nig.) Ltd. v. Attorney-General, Rivers State (2008) 8 NWLR (Pt. 1084) 612 and Olabisi Olakunle v. The State (2018) 6 NWLR (Pt. 1614) 91.
In this case, the appellants filed their amended writ of summons and their amended statement of claim on the 8th day of September, 2017. There is nothing to show that as that day, that is the 8th day of September, 2017, there was any pendency of an application for probate and the trial Court was right the alleged “will has passed the stage being ‘propounded’.”
For the sake of brevity, I hereby resolve this issue against the appellants.
ISSUE NO. 2
Whether the lower Court did not in fact pronounce upon the substantive Suit in its Ruling.
Learned counsel referred to several cases, including Oba James Adeleke v. Naful Adewale Lawal (2014) 3 NWLR (Pt. 1393) 1 and FSB International Bank Nig. Ltd. v. Imano Nig. Ltd. (2000) 11 NWLR (Pt. 679) 620 and argued that a Court is not entitled to make any comments, pronouncements or observation in its ruling on an interlocutory matter which might prejudge or pre-empt the main issue in the substantive case. He argued that the trial Court has pronounced that, the purported Will had been proven and admitted to probate? and had decided the substantive suit at an interlocutory stage.
In his response, learned counsel for the respondents submitted that the decision or ruling of the trial Court ‘does not amount to a pronouncement on the substantive suit’.
I agree with the argument that, at the stage of hearing an interlocutory matter, a Court should avoid deciding an issue that calls for a resolution in the substantive case. In other words, the Court should not make any comment, observation or pronouncement, in its ruling on an interlocutory matter, which may appear to prejudge the main issue in the substantive proceedings. See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535; Odutola Holdings Limited v. Mr. Kunle Ladejobi (2006) 12 NWLR (Pt. 994) 321.
The trial Court, in its ruling, stated the law on the cases cited before it that, there are two situations;
(1) an application is submitted by the executors to the probate registry for grant of probate.
(2) A will has been admitted to probate and had been read. The latter scenario is the position of the defendants/respondents and interestingly, it was not disputed by the claimants/applicants.
The defendants/respondents had interpreted the decision in Nsefik vs. Muna (supra) to be that it was only where the executors had lodged an application with the probate Registry for grant of probate and there was a challenge that the executors, in this case, the defendants could be regarded as the propounders of the will and not when probate had been granted and the will read (as in the present case)
That exactly is what the Supreme Court had said in the case where their Lordships succinctly defined propounding of a will, that is, when an application is lodged by the executors with the Probate Register.
It is at this stage that the executors, being the propounders have the burden to adduce evidence of due execution of the will and testamentary capacity of the testator.
But in the present case, the pleadings are that the will has been proved and even read.
(Emphasis supplied by me)
The law, on the effect of probate of a will has long been stated as follows:
Unless set aside the probate of a will is conclusive upon the parties to the proceedings (and others who had notice of them) or all question of testamentary capacity, the absence of fraud for undue influence and the execution of the will. But probate does not preclude inquiry into the validity of the will is provisions or their proper construction or legal effect?. Black’s Law Dictionary, Deluxe Ninth Edition, pages 1321 to 1322.
From the above explanation by the learned authors of the authoritative law dictionary, the probate of a will is not absolute, sacrosanct, inviolable or inviolate. The probate of a will can be set aside. The conclusiveness of the probate of a will is limited to ‘the parties to the probate proceedings” and ‘others who had notice of’ such proceedings.
Orders 53 and 54 of the High Court of Edo State deal with ‘Probate and Administration’ and ‘Probate (Non-Contentious) Procedure’, respectively and the Chief Registrar of the High Court of the State is, by those Orders designated as the Probate Registrar. These two orders have not foreclosed suits, such as the appellants? action in the trial Court.
The Supreme Court made the point very clear in Chief Eyo Edem Nsefik & Ors. v. Rosemary Muna & Ors. (supra) at 181, per Ariwoola, JSC as follows:
‘Probate is ‘the judicial procedure by which a testamentary document is established to be valid Will’. In other words, it is the proving of a Will to the satisfaction of the Court. Therefore, unless it is set aside, the probate of a Will is conclusive upon the parties to the proceedings and other persons who had notice of them on all questions of testamentary capacity, the absence of fraud or undue influence, and due execution of the Will. However, it should be noted that, probate does not preclude inquiry into the validity of the Will’s provisions or on their proper construction or legal effect. See Black?s Law Dictionary, Ninth Edition pages 1321 ? 1322.? (Underlining supplied for the sake of emphasis)
I think that by holding that, in the present case, the pleadings are that the Will has been proved and even read? is prejudicial to the just determination of the issues in the substantive case, which issues may include:
(i) Whether the appellants were parties to or had notice of the probate proceedings.
(ii) Whether the Will in dispute was regularly or validly made by the alleged testator, or
(iii) Whether the Will was vitiated by forgery, fraud or undue influence.
The issue of authenticity, regularity or validity of the Will in dispute can only be properly resolved by the trial Court upon the close of evidence by the parties and evaluation of same by the Court.
Without further ado, I resolve this issue in favour of the appellant and against the respondents.
CONCLUSION
Having resolved Issue 2 in favour of the appellants, I find merit in this appeal which succeeds to the extent that, irrespective of the initial burden of proof, the issue of validity or otherwise of the Will in dispute remains a live issue to be determined at the conclusion of hearing by the trial Court. Therefore, the decision in the ruling of the trial Court to the effect that the Will in dispute between the parties ?has been proved? is hereby set aside.
Consequently, the appellants’ Suit No. HAU/11/2017 is remitted to the High Court of Edo State to be heard de novo on the merits by any Judge of that Court, to whom the case will be reassigned by the Honourable Chief Judge of Edo State, other than Hon. Justice S. A. Omonua.
There is no order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the opportunity of a prior perusal of the judgment just delivered by my learned brother M.A.A. ADUMEIN, JCA.
I agree with his Lordship?s reasoning and conclusion that the appeal succeeds and should be allowed.
I also adopt the consequential orders made in the lead judgment as mine.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, JCA;
I am in full agreement with the reasoning and Conclusion therein. I have nothing more to add.
I also resolve issue two in favour of the appellants.
I abide by the consequential orders in the lead judgment.
Appearances:
O. B. Uade, Esq.For Appellant(s)
Ibrahim Mohammed, Esq.For Respondent(s)
