ATTOE & ANOR v. ATTOE & ORS
(2021)LCN/15159(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, May 05, 2021
CA/C/71/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
1. BASSEY OYUBE ATTOE 2. INYANG ATTOE APPELANT(S)
And
1. DAVID ATTOE 2. MR. VICTOR ESHIET OKON 3. BARRISTER ESHIET USENEKONG 4. THE PROBATE REGISTRAR, HIGH COURT CALABAR RESPONDENT(S)
RATIO
DEFINITION OF A “WILL”
A will is a document by which a person directs his or her estate to be distributed upon death. The word “Will” has two distinct meanings. The first and the strict meaning is metaphysical: and denotes the sum of what the testator wishes, or wills to happen on his death. The second and more common meaning is physical and denotes the document or documents in which that intention is expressed. The issue in contention here is whether the document Exhibit A is a Will or a codicil. A codicil is defined in Black’s Law Dictionary, Eight Edition page 275 to mean a supplementary or addition to a will not necessarily disposing of the entire estate but modifying, explaining or otherwise qualifying the will in some way. PER SHUAIBU, J.C.A.
WHETHER OR NOT THE MEANING AND SCOPE OF A CONTENT OF A DOCUMENT IS TO BE DETERMINED BY THE HEADING OR TITLE
Generally, the meaning and scope of the content of a document is not to be determined by the heading or title unless where same is ambiguous. In any event, the title or heading of a document cannot control the plain words or give different effect to clear words where there can be no doubt as to their ordinary meaning. SeeU.T.C. NIG. LTD. V. PAMOTEI (1989) 3 SC (prt 1) 79 at 122. PER SHUAIBU, J.C.A.
THE APPROACH OF THE COURT IN INTERPRETING A DOCUMENT
In interpreting a document, same is not be interpreted in pockets or isolation, but as one composite whole. Another principle of interpretation or construction of a document is what is referred to as beneficial interpretation wherein the Courts when faced with a choice between a wide meaning which carries out what appears to have been the object of the maker more fully and a narrow meaning which carries it out less fully or not at all, to choose the former. In NAFIU RABIU V. STATE (1980) 8 – 11 SC UDOMA, JSC at pages 148 – 149 said:-
“In my view; this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that narrow interpretation will best carry out the objects and purpose of the Constitution… I do not conceive it to be the duty of this Court to construe any of the provisions of the Constitution as to defect the obvious ends of the Constitution was designed to serve where another Construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.” PER SHUAIBU, J.C.A.
THE PRINCIPLE OF FAIR HEARING
Fair hearing and its features have received judicial pronouncements in plethora of cases. In essence, fair hearing means giving equal opportunity to the parties to be heard in the litigation before the Court. See MOHAMMED V. KANO N. A. (1968) ALL NLR 411 at 413. A breach of the right of fair hearing renders the proceedings in which it was committed as well as all subsequent proceedings and any resultant decision therein a nullity. See EKPENETU V. OFEGOBI (2012) 15 NWLR (prt. 1323) 276 and AMADI V. INEC (2013)4 NWLR (prt 1345) 595. PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State, sitting in Calabar delivered on the 3rd day of October, 2017 by Hon. Justice Eyo Ita dismissing the claimant’s claim at pages 424 – 425 of the record of appeal as follows:-
“For the above reasons, I see no reason why the codicil (now will) herein should be set aside.
Having thus answered the questions posed, the claims of the claimant’s fail in their entirety and are hereby dismissed.
I pray the claimants work hard and amass property for their children to struggle over when they too die as they are doing here, as otherwise it will be a big shame on them.
I make no order as to costs so as to foster their family relationship but 5th claimants owe the 1st defendant their senior brother an apology.”
The facts giving rise to this appeal briefly is that by an originating summons filed on 30/6/2014, the claimants approached the trial Court for the determination of the following questions:-
1. Whether the codicil of late Elder Onun Ntufam Oyube William Attoe stands on its
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own or same is dependent on an existing will.
2. Whether a Court of law can enforce the codicil containing an illegality by virtue of the contents of paragraphs 3 (c) of the said codicil which reads: That Dr. David Attoe is my first son by my late blood sister, Mrs. Bassey Attoe Thompson Ekpenyong (Nee Attoe).
3. Whether the said codicil can be enforced as it not dependent on existing will or an amendment of a valid will.
Consequent to the above, the claimants claimed jointly and severally from the defendants thus:-
1. A declaration that codicil of late Elder Onun Ntufam Ayube William Attoe dated 27th day of April, 2011 and the 26th day of March, 2012 is null, void and of no effect whatsoever.
2. A declaration that a codicil cannot stand on its own and the codicil of late Elder Onun Ntufam Oyube William Attoe not being an amendment of a particular will or dependent on a particular will also is not enforceable.
3. A declaration that the said codicil can also not be enforceable because paragraph 3 (c) of the said codicil is criminal offence which violates Marriage Act and Criminal Code of Cross River State.
4. A declaration
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that in the absence of a valid will, the late Elder Onun Ntufam Oyube William Attoe died intestate.
5. Perpetual injunction restraining the defendants from dealing in any manner with the estate of late Elder Onun Ntufam Oyube William Attoe dated 27th day of April, 2011 and 26th day of March, 2012.
Appellants were dissatisfied with the decision of the trial Court and therefore appealed to this Court through a notice of appeal filed on 11/12/2017. The said notice of appeal at pages 427 – 430 of the record of appeal contains six grounds of appeal.
Pursuant to the Rules of this Court, the parties, through their respective counsel filed and exchanged their written briefs of argument.
The four issues submitted on behalf of the appellants for the determination of this appeal are set out as follows:-
1. Whether the learned trial Judge was right to hold that Exhibit A attached to the originating summons was not a codicil but a will contrary to the description of the testator.
2. Whether Exhibit A is enforceable having regard to clause C3 of the same which shows that the testator had the 1st respondent from his blood sister which
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shows that the 1st respondent is a product of illegality.
3. Whether the processes filed out of time and without leave of Court is competent before the Court.
4. Whether the disclosure of the capacity of a party in his affidavit which is a process to initiate the action is not enough to show the capacity of the party.
On the part of the 1st and 2nd respondents, three issues were submitted for determination of the appeal thus:-
1. Whether the position taken by the trial Court confirming Exhibit A, the Will (codicil) of late Elder Onun Ntufam Oyube William Attoe as his last Will can be impeached.
2. Whether benefits taken of a will is limited to the biological siblings of a testator or whether a testator who acknowledged a son born out of wedlock during his lifetime can benefit from the bounty of his estate if yes, whether the paternity of such a son can affect the testator’s testamentary depositions to benefit such a son.
3. Whether the question of fair hearing is an issue a party can use or apply to his whims and caprices.
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Both the 3rd and 4th respondents adopts the four issues submitted by the appellants. I have considered the various formulations alongside the record of appeal and the four issues submitted by the appellants are apt and I shall determine the appeal on the bases of the four issues submitted by the appellants.
With regards to issue one, the appellants’ contention is that the testator has specifically referred Exhibit A as a codicil to his last will and the parties also having conceded Exhibit A as a codicil it was therefore wrong for the trial Court to make out different case outside the one before it. Counsel submits that the case before the trial Court was not whether Exhibit A was a will or a codicil and for the trial Court to make such declaration, parties must be invited to address it on that. He referred toISAAC V. IMASUEN (2016) 7 NWLR (prt 1511) 250 at 264 to the effect that decision of a law Court provides not only on the basis of pleaded facts but also on the basis of facts establish by evidence in that behalf.
On issue two, the appellants’ contention relates to clause C in page 9 of Exhibit A, which reads:-
“That Dr. David Oyube Attoe, my first son by my late blood sister Mrs. Bassey Attoe Thompson Ekpneyong (Nee Attoe) and born into William Attoe’s family shall remain Head of my entire family after my death.”
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Learned appellants’ counsel submits that the 1st respondent by the above is a product of illegality and therefore not entitled to benefit from the testators will as the clause can never be interpreted to mean an adoption because if the testator intended the word adoption, he could have done so after the will he executed earlier in October 25th, 1999.
In further argument, counsel referred to the 1st respondent’s counter affidavit wherein he stated that the testator had acknowledged him from birth and in his life time as his first son by his late blood sister which is immoral as only a natural father can acknowledge a child. He referred to OLAIYA V. OLAIYA (2002) 8 NWLR (prt 782) 652 at 670 – 671.
The appellants’ contention as regards to issue three is that the failure of the learned trial Judge to consider their objection on the validity of the 3rd respondent’s processes being part of the address of the appellant’s counsel address amounts to denial of right of fair hearing. Counsel submitted that a party
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cannot be said to have been given his right of fair hearing when his arguments have been shot from consideration. He referred to TUNBI V. OPAWOLE (2000)2 NWLR (prt 644) 275, NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (prt. 212) 652 at 670 as well as Order 17 Rule 21 (2) of High Court Civil Procedure Rules of Cross River State.
On issue four, the appellants contended that affidavit in support of originating summon, is a Court process which initiate the present action and as such, the lower Court was in error to have held that the failure of the appellants to show the capacity on which they took the action vitiate the case. Counsel referred to paragraph 1 of the supporting affidavit wherein the 1st appellant states thus:-
1. That I am the son of late Elder Onun Ntufam Oyube William Attoe and I make this oath with the consent of the 2nd claimant who is also the daughter of late Elder Onun Ntufam Oyube William Attoe.
The above, according to the counsel satisfied the requirement of Order 46 Rule 94 of the extant rules of Court.
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The 1st and 2nd respondents’ contention relating of their first issue is that the codicil mentioned on the introductory paragraph of Exhibit A was used only once while the remaining document describes itself as a will and thus the trial Court was right in confirming the validity of the will.
On their second issue, they contended that the benefit of will is not limited to the biological children of a testator as he can make a will to whomever the testator wishes, persons or institutions. Counsel submits that the duty of Courts are to ensure that the wishes of the deceased who is no longer capable of protecting his right or defending his estate which he acquired during his lifetime. In aid, counsel referred toMOTOH V. MOTOH (2011)16 NWLR (prt. 1274) 474.
Still in argument, counsel submitted that the essence of a will is to freely give a testator the leverage to determine how his properties will be shared when he is no more, thereby circumventing the customary law of inheritance. He submits that there is no law that prohibit a product of incest even if the 1st respondent is one from benefiting from a will citing Section 42 (2) of the 1999 Constitution and the cases of BAMGBOSE V. DANIEL (1954) 14 WACA 20 and ADEYEMI V. BAMIDELE (1968) SCNLR 52.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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On the allegation of denial of fair hearing as canvassed on issue three, the contention of the 1st and 2nd respondents is that the appellants did not suffer any injustice by the omission of the trial Court to consider their oral application having failed to obtain the required leave to do so, and thereby waived their right of reply. Counsel submits that failure on the part of the appellants to file reply to the 3rd respondent’s reply amounts to an admission and facts admitted need no further proof.
The contention of the 3rd respondent in respect of issue one is that ascribing meaning to words including a will being a question of law is within the domain of a Judge and thus whether Exhibit A was a will or codicil is not dependent on the description given to it by the testator but the trial Judge was bound to give the instrument its true legal effect notwithstanding the name given to it by the testator. Counsel submits that a document although described as a codicil, may by its true nature be a will. Thus, if a document is an independent instrument, it is a will and the appellants having admitted that Exhibit A is independent of other documents, Exhibit A, though called a codicil, it is both de facto and de jure a will.
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On issue two, counsel referred to Section 1 of the Wills Law to contend that same did not make it illegal or void a will on the ground that a beneficiary thereto is a product of incest. He referred to the ADESUBOKAN V. YUNUSA (1971) 7 NSCC 236 at 241 to the effect that the grounds on which a will is void or unenforceable does not include the ground that a beneficiary of a will is a product of incest.
He submits further that the complaint of the appellants is limited only to the depositions made in favour of the 1st respondent as such the entire will cannot be invalidated or rendered unenforceable merely because the 1st respondent is not entitled to benefit from the will. Assuming but not conceding the disentitlement of the 1st respondent in such circumstance, the disposition made to the 1st respondent would then fall under the residuary estate of the testator under Section 18 of the Will Act.
The 3rd respondent’s contention as regards issue three is that where the appellants alleges that the 3rd respondent filed his written Address out of time, the burden is on
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the appellants to show when the originating summons was served on 3rd respondent and they must also establish 3rd respondent’s default by reference to proof of service. In the absence of the legal or factual basis as regards the time when the 3rd respondent was served with the originating summons, there was therefore no basis of challenging the 3rd respondent’s written address in opposition to the originating summons. Assuming the 3rd respondent’s written address was incompetent, the rules of Court requires that the appellants shall state so in their written rejoinder on points of law. Counsel submits that appellants did not respond to 3rd respondent’s written address including the preliminary objection upon which the trial Court struck out their suit as incompetent. He referred to Order 33 Rule 4 of the extant Rules of Court which prescribes a maximum of 30 minutes for each party to orally emphasize and clarify the written address already filed.
On issue four, learned counsel for the 3rd respondent contended that by virtue of Order 9 Rule 3 and Order 46 Rule 94 of the Cross River State High Court Civil Procedure Rules, the
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originating process on probate actions shall state the capacity in which the action is brought and that the appellants did not in their paragraph 1 of the affidavit in support of the originating summons state their capacity in which they brought their action. He submits that the argument of the appellants that they sued as beneficiaries is nowhere supported by the reliefs they seek in their originating summons. The arguments now canvassed by the appellants under this issue were therefore not available to the trial Court when it upheld the 3rd respondent’s preliminary objection and struck out the appellants’ suit as incompetent.
On his part, learned counsel for the 4th respondent submitted on issue one that the intention of the testator in executing Exhibit A is to accord the codicil, the status of his last will and testament as the … codicil to the last will was merely used in the title and introductory part of Exhibit A. He contended that Exhibit A expressly disposed of all the testator’s estate and also revoked the previous will made by the testator which fact was clearly admitted by the appellants in both the affidavit
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in support of the originating summons as well as the written address in support of same.
As to the enforceability of Exhibit A inspite of the wordings of clause 3 (c) (1) which described the 1st respondent as the blood son of the testator from the testator’s blood sister, the contention of the 4th respondent is that the offence of incest raised against the testator was not established by the appellants. Counsel submits that a careful examination of clause 3 (c) (1) and 3 (c) (iii) of Exhibit A reveals that the 1st respondent is a member of the Williams Attoe’s family, the testator’s family and that he is an adopted son of the testator and an integral member of the family, who play a responsible role in the family.
He submits further that a testator has the right to choose his beneficiaries in accordance with Section 43 of the Constitution and thus the learned trial Judge was justified in holding that Exhibit A is enforceable inspite of the allegation of incest or illegality raised by the appellants against the 1st respondent.
On the competency of the 3rd respondent’s processes, it was contended that the appellants’
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oral application was incompetent as all applications before the trial Court were supposed to be formal to avoid springing surprises at the opponents – relying on Order 7 and 17 of the High Court of Cross River State Civil Procedure Rules. Counsel submits that the appellants were not denied fair hearing as the learned trial Judge considered the totality of facts before him and the applicable laws.
Finally, on issue four, learned counsel referred to Order 46 Rule 94 of the extant High Court Rules to submit that it is mandatory for the appellants to specifically state the capacity in which they were suing as the Court will not be expected to search for the capacity in which the claimant is suing in the affidavit accompanying the originating summons. Thus, the failure of the appellants to comply with the rules of Court is fatal and vitiated the appellants’ suit.
RESOLUTION OF ISSUES
At stated earlier that issue one deals with the description given to Exhibit A by the trial Judge and thus the appellant’s main contention is that it was not within the prerogative of the trial Judge to name Exhibit A as a will when the testator himself
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described it as a codicil. A will is a document by which a person directs his or her estate to be distributed upon death. The word “Will” has two distinct meanings. The first and the strict meaning is metaphysical: and denotes the sum of what the testator wishes, or wills to happen on his death. The second and more common meaning is physical and denotes the document or documents in which that intention is expressed. The issue in contention here is whether the document Exhibit A is a Will or a codicil. A codicil is defined in Black’s Law Dictionary, Eight Edition page 275 to mean a supplementary or addition to a will not necessarily disposing of the entire estate but modifying, explaining or otherwise qualifying the will in some way.
There is no gainsaying the fact that the title of Exhibit A “codicil to the last will “ and the long title also reads as follows:-
“This is a codicil to the last will of me Elder Onun Ntufam Oyube William Attoe of Ikot Ana Umon North – Biase Local Government Area of Cross River State of Nigeria, residing at No.110 Marian Road Calabar, dated 27th April, 2011.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Generally, the meaning and scope of the content of a document is not to be determined by the heading or title unless where same is ambiguous. In any event, the title or heading of a document cannot control the plain words or give different effect to clear words where there can be no doubt as to their ordinary meaning. SeeU.T.C. NIG. LTD. V. PAMOTEI (1989) 3 SC (prt 1) 79 at 122.
Perhaps it needs to be stated that the object of long title is to give an insights into a statute or document as the case may be and same provide an aid to the Court to decipher its intended spirit and scope. Contrawise, a short title obviates the necessity of always referring to a document or statute under its full and descriptive title. In general, a title broadly and comprehensively identifies the subject addressed in a document. In the present case, the title of Exhibit A comprehensively identifies the will of late Elder Onun Ntufam Oyube William Attoe. To decipher whether Exhibit A is a will or codicil is to ascertain what is being communicated by the testator in the said document. In other words, does the testator in Exhibit A modifying, explaining or otherwise qualifying
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the will in some way. If the answer to the above is in the affirmative, then Exhibit A is a codicil but if it is in the negative, it is certainly a will. Exhibit A, though described as a codicil but it was used to revoke the previous wills of the testator and thus not modifying and or supplementing any will. In the absence of any previous will surviving of the testator other than the testamentary document titled “codicil” Exhibit A, the learned trial Judge was therefore right in holding that Exhibit A though titled codicil is actually the last will of the testator, late Elder Onun Ntufam Oyube William Attoe. Issue one is resolved against appellants.
Issue two questions the validity as well as the enforceability of the testamentary disposition citing clause 3 of Exhibit A to the effect that the 1st respondent is a product of illegality. The relevant clause c (1) in page 9 of Exhibit A is reproduced hereunder as follows:-
“That Dr. David Oyube, my first son by my late blood sister Mrs. Bassey Attoe Thompson Ekpenyong (Nee Attoe) and born into William Attoe’s family shall remain Head of my entire family after my death.”
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In interpreting a document, same is not be interpreted in pockets or isolation, but as one composite whole. Another principle of interpretation or construction of a document is what is referred to as beneficial interpretation wherein the Courts when faced with a choice between a wide meaning which carries out what appears to have been the object of the maker more fully and a narrow meaning which carries it out less fully or not at all, to choose the former. In NAFIU RABIU V. STATE (1980) 8 – 11 SC UDOMA, JSC at pages 148 – 149 said:-
“In my view; this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that narrow interpretation will best carry out the objects and purpose of the Constitution… I do not conceive it to be the duty of this Court to construe any of the provisions of the Constitution as to defect the obvious ends of the Constitution was designed to serve where another Construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and
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protect such ends.”
Relating all this to the matter at hand which is the interpretation of clause C of Exhibit A, one cannot arrive at its proper meaning and much less the true intendment of the testator by construing it narrowly and in isolation from the whole document. The true meaning is more likely to be arrived at by looking at clause C (i) together with clause C (iii) of the said Exhibit A which states
“That Dr. David Ayube Attoe shall have the sole responsibility of taking care of the health/welfare of my wife, Mrs. E. O. Attoe as a blood son would.”
The above clearly shows that the 1st respondent is an adopted son of the testator and thus an integral part of the family duly entitled to benefit from the estate apart from playing a responsible role in the family.
Aside from the beneficial construction of clause C of Exhibit A which invariably validates and make same enforceable, the provisions of Section 42 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that no citizen of Nigeria shall be subjected to any discrimination or deprivation merely by reason of the circumstances of
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his birth. Similarly, by virtue of Section 43 of the said Constitution, every citizen shall subject to provision of the Constitution have the right to acquire and own immovable property anywhere in Nigeria. That being the position, the 1st respondent cannot under whatever guise be deprived the benefit of the testator’s estate as doing so will be an affront to the above Constitutional provisions. I therefore resolved issue two against the appellants.
The bone of contention in respect of issue three is that the failure of the trial Court to consider the address of the appellants in reaction to the 3rd respondents processes amounts to a denial of fair hearing.
Fair hearing and its features have received judicial pronouncements in plethora of cases. In essence, fair hearing means giving equal opportunity to the parties to be heard in the litigation before the Court. See MOHAMMED V. KANO N. A. (1968) ALL NLR 411 at 413. A breach of the right of fair hearing renders the proceedings in which it was committed as well as all subsequent proceedings and any resultant decision therein a nullity. See EKPENETU V. OFEGOBI (2012) 15 NWLR (prt. 1323) 276 and
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AMADI V. INEC (2013)4 NWLR (prt 1345) 595.
However, an allegation of denial of fair hearing is dependent on the facts and circumstances of each case. Thus, the question as to whether the right of fair hearing was breached or not is to be determined on the facts and circumstances placed before the Court.
In the instant case, the 3rd respondent’s process in reaction to the appellants’ originating summons were filed only 20/7/2017, a period of nearly three years and the appellants objected to same on the ground that there was no extension of time sought and granted by the trial Court.
The provisions of Order 17 Rule 36 of the extant rules of Court is to the effect that a defendant to an originating summons shall file a counter affidavit together with all the exhibits he intends to rely upon and a written address within 14 days after service of the originating summons. Likewise, Order 12 Rules (1) and (13) thereof prescribes who is to serve an originating process, method of recording such service and how to establish that service was effected on a defendant. The appellants in the present case did not show when service of the originating
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summons was effected on the 3rd defendant/respondent and in essence there was no proof of service but that the appellants merely made an oral application to strike out the 3rd respondent’s processes for been incompetent.
It is to be borne in mind that proof of service of originating process or any process of Court for that matter is not by word of counsel but by exhibiting before the Court of the affidavit of service sworn to by the bailiff that effected service as prima facie evidence of service of the process or by the Court expressing in the record that it had seen affidavit of service which would constitute proof of service of the process on the person to be served. See SOCIETE GENERALE BANK (NIG.) LTD. V. ADEWUNMI (2003) 4SC (prt.1) 93 at 100.
The appellants in the instant case, has failed to provide any evidence of service of the originating summons on the 3rd respondent and could not challenge the competence of his process. And from the facts and circumstances of this case, his right to fair hearing has not been breached by the trial Court. This issue is resolved against the appellants.
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The plank of the appellants’ complaint on issue four is that having reflected their capacity in the affidavit in support of the originating summon, they have complied with the provisions of Order 46 Rule 94 of the High Court of Cross River State Civil Procedure Rules. The said Rules provide thus:-
“In probate actions, the originating process shall state whether the claimant claims as a creditor, Executor, Administrator, beneficiary, next of kin or in any other capacity.”
The appellants in paragraph 1 of the affidavit in support of the originating summons deposed as follows:-
“1. That I am the son of late Onun Ntufam Oyube William Attoe and I make this oath with the consent of the 2nd claimant who is also the daughter to late Elder Onun Ntufam Oyube William Attoe.”
The key issue here is the deponent of the said affidavit a creditor, Executor, Administrator, beneficiary, or next of kin? The capacity of the appellants is a mere imaginative guess. Even as children of the testator, that does not automatically make them beneficiaries of the will. This is so because, a beneficiary would seek to support the will but the appellants in the present case alleged that the
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will is void and thus seek to abrogate it. It is settled that the Court can make an inference or analytical deductions from certain established facts and situation before it but the Court must never speculate. Speculation is a mere imaginative guess which even when it appears plausible should not be allowed by Court to fill any gaps in the evidence before it. See OLALOMI INDUSTRIES LTD V. NIDB LTD (2009) LPELR – 2564 (SC).
Mindful of its duty and taking into account the mandatory requirements of stating the capacity the claimant is suing in probate actions, the learned trial Judge rightly held in my view that the appellants have failed to comply with the applicable rules of Court. I also resolved this issue against the appellants.
In the final result, this appeal fails and it is hereby dismissed. There will be costs which I assessed at N200,000 against the appellants and in favour of the 1st, 2nd and 3rd respondents.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother MUHAMMED L. SHUAIBU, JCA.
My learned brother has carefully dealt with the four issues submitted for the determination of the appeal.
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I agree with the reasoning and conclusion reached in the judgment.
I also agree that the appeal lacks merit and ought to be dismissed.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother, M. L. Shuaibu, JCA.
I agree that there is no merit in the appeal.
For the reasons set out in detail in the judgment, I too dismiss the appeal.
I abide by the orders in the judgment including the order as to costs.
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Appearances:
Olusegun For Appellant(s)
I. Anyanwu – for 1st & 2nd Respondents
Dafe Diegbe – for 3rd Respondent
Ikoi E. Ikona, Dir. Civil Appeals CRS – for 4th Respondent For Respondent(s)



