Mrs. Foluke Mudasiru & Ors. V. Ibrahim Adbullahi & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

Air Commodore Gbolahan Adio Mudasiru was a senior officer of the Nigerian Air Force and served the nation in various capacities within the Nigerian Military and was one time the Military Governor of Lagos State. The 1st Appellant was his wife while the 2nd – 4th Appellants are three of his five children. Air Commodore Mudasiru died in London on 23rd Sept., 2003 while on a visit there.

While the Appellants were making preparations for the burial of their benefactor, the 1st to 5th Respondents, caused to be read at the Probate Registry of the High Court of Lagos State, Lagos on 20th October, 2003 a Will dated 24th June, 2001 which they claimed was made by the Deceased. Thereafter, the 1st – 5th Respondents, claiming to be trustees and executors under the said Will, instituted case No HC 03C03621 against the 1st Appellant herein before a London Court in which they sought to take over the burial arrangements for the Deceased. The said case was dismissed by Llyod, J. upon the ground that, though he accepted them are Trustees, he could not hold them to be executors.

At about the same time the Respondents instituted the case in England, they also applied to the Probate Registry for grant of probate in respect of the said Will dated 24/6/01 to which the 1st Appellant caused a caveat to be entered. Thereafter, the claimants at the High Court of Lagos State challenged the validity of the Will and sought declarative, injunctive and other reliefs. In a Judgment delivered on the 15th day of December, 2009, the court, presided over by Opesanwo, J., dismissed the suit in its entirety. The court also pronounced on the validity of the Will and upheld the 1st – 5th Respondents as the duly appointed Executors of the Estate of the Testator.

The Appellants felt aggrieved with the Judgment of the lower court and filed two Notices of Appeal dated 16-12-09 and 25-02-10 respectively. The Appellants however abandon the Notice of Appeal dated and filed on 16/12/09 and rely on the one dated and filed on 25-02-10, for the purpose of this appeal. Four grounds of appeal are contained in the said Notice of Appeal out of which the Appellants’ learned counsel has distilled three issues for the determination of this appeal.

In the brief settled by Theophilus O. Ochonogor, Esq., of counsel for the Appellants, the three issues are as follows:

“1. Whether the learned trial Judge was right when his Lordship held that the document dated 24-06-01 which was admitted in evidence and marked Exhibit ‘C1′ is the last Will of Late Air Commodore Gbolahan Adio Mudasiru and that same was made in compliance with the Wills Law of Lagos State (Grounds 1 & 2 of Notice of Appeal dated 25/2/10).

2. Having found, “that Exhibit C1 is not explicit enough for me to reach the conclusion that it expressly appointed the Defendants herein as its executor”, whether the learned trial Judge was right to have held that the appointment of the defendants as Executors of the estate of the late Air Commodore Gbolahan Adio Mudasiru can reasonably be implied. (Ground 3 of the Notice of Appeal dated 25/2/10).
3. Having dismissed the Appellants’ case, whether the learned trial Judge was right to have proceeded to make declarations and orders in the absence of a counter-claim. (Ground 4 of the Notice of Appeal dated 25/2/10)”.

The Respondents, through their learned counsel, Osahon Idemudia Esq., in the brief settled by him, has also formulated three issues herein reproduced:-

“1. Whether the 1st – 5th Respondents discharged the burden of proof on them on the validity of the last Will and Testament of the Testator. (Ground Nos. one and two).

2. Whether the 1st – 5th Respondents were impliedly appointed as Executors by the Testator. (Ground No. three).
3. Whether the learned trial Judge was right in having pronounced the 1st – 5th Respondents as the appointed Executors of the Estate of the Testator in the absence of a counter-claim by them. (Ground No. four)”.

The 6th Respondent did not file any brief in this matter and by the Rules of this court, she is not entitled to be heard even as her counsel said they remain neutral in the matter.

Having regard to the facts of this case, I shall determine this appeal based on the issues formulated by the Appellants, afterall, it is their complaint which the appeal is predicated.

In his submission on the first issue, the learned counsel for the Appellants being led by learned senior counsel, Robert Clarke, SAN, states that the failure of the testator to sign the Will in the column ordinarily provided for him to sign has violated the provision of Section 4(1)(b) of the Wills Law Cap W2, Laws of Lagos State and therefore renders the Will invalid. It was his further contention that the reasoning of the learned trial Judge without further evidence from any witness and actually suo motu picking one of the three signatures appearing under the witnesses clause is not only perverse but does not have any basis in law and fact. He opined that those three signatures, are for witnesses and not of the testator.

It was his further submission that the burden of proof lies on the Respondents to show that there was due execution of the Will relying on the cases of Okelola v. Boyle (1998) 2 N.W.L.R. (pt.539) 533; FATB v. Partnership Investment Co. Ltd. (2003) 18 N.W.L.R. (pt.851) 35 at 73 C-D; Barry v. Buthin 12 ER 1089 at 1090 and Johnson v. Maja, 13 WACA 290.

He opined that it is only after the Respondents had discharged the burden of proof, that it shifts to the Appellants. He submitted further that contrary to the finding of the learned trial Judge, the Appellants have shown that the purported Testator’s signature on Exhibit ‘C1′ (the Will) is not that of Air Commodore Gbolahan Mudasiru and that the Respondents failed to rebut this.