Chief Eyo Edem Nsefik (Since Dead) & Ors V. Rosemary Muna & Ors (2013)
LAWGLOBAL HUB Lead Judgment Report
MAHMUD MOHAMMED, J.S.C.
The dispute between the parties in this appeal concerns the Administration of the estate of the late Mrs. Teresa Ekpenyong Nsefik (Nee Ekpenyong Eyo) of No. 18, St. Gregory Road, Eko Ekete Close, South West Ikoyi, Lagos, Lagos State who died on 12th March, 1989 leaving behind her Will dated 6th July, 1988. Upon the death of the deceased, the 2nd and 3rd Respondents in this appeal John Effion Asuquo and William Ene-Eyo Asuquo applied for and were granted probate of the Will of the deceased dated 6th July, 1988 after duly satisfying the necessary conditions for the grant. The grant was made under the High Court of Lagos State’s seal and duly signed by the Probate Registrar. There was no caveat entered by any person before the grant of Probate on the Will.
However, the Plaintiffs now Appellants who did not take any steps against the application by the Defendants now Respondents for the grant of probate, brought their action at the trial High Court of Lagos State after the grant of probate by a Writ of Summons dated and filed on 15th November, 1989 and claimed thus –
“The Plaintiffs claim is as the lawful husband and one of the persons entitled in the event of an intestacy to share in the estate of Mrs. Teresa Ekpenyong Nsefik (Nee Ekpenyong Eyo) late of 18, St. Gregory Road, Eko Akete Close, South West Ikoyi Lagos, Lagos State who died on 12th March, 1989 to have probate of a pretended Will of the deceased dated 6th July 1988 granted on 24th October, 1989 revoked and the said Will propounded against and to have a grant of letters of administration of the estate of the said deceased.”
In their amended statement of claim, the Appellants/Plaintiffs claimed the following reliefs namely –
“(a) That the Court shall revoke the said grant of probate and pronounce against the force and validity of the said alleged Will; and
(b) Declaration that the said deceased died intestate.”
The Defendants now Respondents in this appeal on being served with the processes of the trial Court, reacted by filing their statement of Defence and counter-claim dated 26th June, 2000. In the statement of Defence at paragraph 18 thereof, the Defendants averred –
“18. The Defendants will further contend at the hearing of this action that the Plaintiffs claim apart from being ill-motivated, is frivolous, misconceived, speculative and ill-advised and should be dismissed.”
At the conclusion of their four paragraph counter-claim, the Defendants claimed –
“(1) That the court shall pronounce in solemn form for the true last Will of the deceased dated 6th July, 1988 and propounded by the 2nd and 3rd Defendants.
(2) For the alternative that the Court do pronounce in solemn form of law for one of the said prior Wills.”
After the exchange of pleadings, the case eventually went to trial at the High Court of Lagos. However, before the hearing could commence, the learned trial Judge died and the case was transferred to another Judge of the same Court for hearing. On the date the case came up for hearing, an issue arose as to which of the parties were to start calling evidence. The learned Counsel to the Plaintiffs/Appellants who raised the issue, contended that the Defendants/Respondents were the party to start while the learned Counsel to the Defendants/Respondents asserted that the Plaintiffs/Appellants were the party to start. The learned trial Judge after hearing the learned Counsel to the parties on this issue, in the Ruling delivered by him on 26th February, 2001, he came to the conclusion thus –
“In the light of all that I have been saying, it is hereby ordered that the Plaintiffs shall lead evidence in proof of their case on dates to be fixed for trial. The Plaintiffs shall call evidence first.”
The Plaintiffs/Appellants who were dissatisfied with the ruling of the trial Court, appealed against it to the Court of Appeal, Lagos Division and at the instance of the Appellants, proceedings for the hearing of their action at the trial Court were stayed pending the hearing and determination of their appeal. The appeal by the Appellants was eventually heard by the Court of Appeal which in its judgment given on 13th March, 2007, dismissed the appeal and affirmed the stand taken by the trial Court that the Appellants were the party to commence leading evidence at the trial Court. Still not satisfied with the decision of the Court of Appeal, the Appellants are now on a further final appeal against that decision.
The Notice of appeal filed on behalf of the Appellants by their learned Counsel on 27th March, 2007 contains three grounds of appeal from which the learned Counsel distilled two issues for the determination of the appeal as follows in the Appellants brief of argument.
“i. Whether or not the Court of Appeal was right in holding that the burden of proof in the circumstances is first cast on the Appellants; and that it is the Appellants that must first lead evidence.
ii. Whether or not the Court of Appeal had not by its pronouncements prejudged and pre-empted the substantive matter at the High Court.”
In the Respondents’ brief of argument however, the learned Counsel to the Respondents in addition to the preliminary objection raised against ground one of the grounds of appeal filed on behalf of the Appellants and issue two in the Appellants’ brief of argument, the learned Counsel to the Respondents saw only one issue for the determination of the appeal as follows –
“Whether the Court of Appeal was right in affirming the decision of the Lagos High Court that the Appellants were the party to start leading evidence at the trial of these proceedings before the Lagos High Court.”
Starting with the preliminary objection by the Respondents to ground one of the Appellants’ grounds of appeal, the ground being attacked reads –
“Ground 1
The learned Justices of the Court of Appeal erred in law when they held as follows –
“….. The nature of the Appellants’ claim places the burden of proof on the Appellants who failed to discharge same.”
(a) The onus is not on the Appellants who were not the ones propounding the Will in this suit.
(b) There was no issue before the Court about whether or not this burden of proof on any of the parties had been discharged or not.
(c) The only issue before the Court of Appeal is as to who has the burden of proof and not whether the burden has been discharged or not.
(d) The finding of the Court, therefore that the Appellants failed to discharge their burden had already pre-empted the substantive matter which is still pending before the Court (sic) below.”
It is the complaint of the learned Counsel to the Respondents that the above ground of appeal does not arise from the Ratio Decidendi of the Court below. A ground of appeal is expected to represent an Appellants complaint against a decision he is not satisfied with and which he has grouse against and wants an appellate Court to correct. See Ojeme v. Momodu 11 (1983) 1 S.C.N.LR. 188 and Abubakar v. B. O. & A. P. Ltd. (2007) 18 N.W.L.R. (Pt. 1066) 319. Reading the ground of appeal being attacked as a whole, it is quite clear that the ground arose from the decision of the Court of Appeal being appealed against by the Appellants. It is far from being an obiter, because the burden of which of the parties were to start calling evidence to prove their case, was the main issue covered by the judgment of the Court of Appeal which dismissed the Appellants’ appeal. Consequently I hold that the Appellants’ ground one of the grounds of appeal is competent and so also is the Appellants’ issue two in the Appellants’ brief of argument arising from that ground of appeal.
On the determination of the appeal on the merit, it appears to me that the Appellants’ issue one and the Respondents’ sole issue, are virtually the same for the purpose of effectively disposing this appeal, particularly on the part of the Appellants whose learned senior Counsel stressed that the Appellants action pending at the trial Court is probate action quite distinct from other civil actions under the rules of the trial High Court; that the law in probate actions is that where there is a dispute concerning the Will, the party to begin is that party that put forward the Will as the last true Will of the testator. Learned senior Counsel quoted from the lead judgment of the Court of Appeal at page 110 of the record where it was observed –
“It is trite in civil cases that the party who asserts must prove but the rule operates in probate cases in reverse …”
to support this argument, expressing surprise why the court below finally came to a different conclusion on the position of the law in its judgment. Relying on Halsbury’s laws of England 4th Edition Volume 17 page 475 paragraph 903, page 555 paragraph 1065 and the case of Johnson & Anor. v. Maja & Ors. 13 WACA 290 at 292, learned senior Counsel to the Appellants stressed that the Defendants/Respondents having agreed even in their statement of Defence that the last Will of the deceased was propounded by the 2nd and 3rd Respondents, the law in probate matters required that the Defendants/Respondents were the parties to start their case at the trial Court and not the plaintiffs/Appellants as held by the trial Court and affirmed by the Court below. Learned senior Counsel urged this Court to allow the appeal, set aside the decisions of the two Courts below and order the Defendants/Respondents to start their case at the trial Court.
For the Respondents however, it was argued by their learned Counsel that the two Courts below were right in their decisions that it was the Appellants that ought to have started their case by calling evidence first. Citing the case of Awoyoolu v. Aro (2006) 18 W.R.N.1, learned Counsel urged this Court not to disturb the concurrent findings of the two Courts below which were neither perverse nor occasioned any miscarriage of justice. Learned Counsel emphasised that the Respondents having applied and obtained probate of the Will of the deceased at the trial Court without any caveat being entered by the Appellants against the grant, having regard to the situation on the ground, it was the Appellants that should start calling evidence to prove their case and in that respect the two Courts below were right in their decisions which should not be disturbed by this Court. On the reliance placed by the Appellants on Halsbury’s Laws of England and the case of Johnson & Anor. v. Maja & Ors. (supra) on the position of the law, the learned Respondents Counsel pointed out that the matter in the present case being procedural, it was the Lagos State High Court (Civil Procedure) Rules, 1994 that applies where Order 58 Rule 77(2) – (4) provides the effect of failure to enter caveat to stop the grant of probate; that it is by these rules that in probate cases, as soon as probate was granted, the Will is valid by judicial act and the onus of proof shifts to the attackers of the Will. Finally, learned Counsel still relying on several cases some of which are, Balogun v. Agboola (1974) 10 S.C 111; Lokoju v. Olojo (1980) 2 S.C.N.L.R. 12; and Ibodo v. Enarofia (1980) 12 N.S.C.C. 196 and Akinsanya v. U.B.A. (1986) 4 N.W.L.R. (Pt. 35) 273, urged this Court not to disturb the concurrent findings of the two Courts below which were not perverse nor occasioned any miscarriage of justice but to dismiss the appeal.
The law is trite that although in civil cases it is the party who asserts that must prove, the position of the law is the reverse in probate cases as argued by the learned Appellants senior Counsel. Even the Court below recognized this correct position of the law at page 110 of the record of appeal in the judgment of that Court. That is to say where there is a dispute as to a Will especially with respect to the testamentary capacity of the testator, those who propounded the Will must closely show by evidence that prima facie all is in order in respect of the Will. See the cases of Johnson & Anor. v. Maja & Ors. (1951) 13 WACA 290 at 292; Adebajo v. Adebajo (1973) 1 All N.L.R. 361 and Okelola v. Boyle (1998) 2 N.W.L.R. (Pt. 539) 533 at 549 where Ogundare, JSC (of blessed memory) after very closely examining previous decisions on the subject said –
“With the correct view of the law the position then would be as correctly found by the learned trial Judge, that the Defendant as the propounder of Exhibit D1 (the 1976 Will) had the burden of showing prima facie that the deceased not only duly executed the Will but also had testamentary capacity to do so. It is only after discharging that primary duty that the onus would shift to the Plaintiff as the challenger of the will to substantiate, by evidence her allegations against the making of the Will.”
It is important to observe that the prevailing situation in the present case is not the same as in the above cases relied upon by the Appellants where the question of revocation of probate already granted to the propounders of the Will was not in issue. In the present case, although the 2nd and 3rd Respondents were the propounders of the Will of the deceased dated 6th July, 1988, the inaction on the part of the Appellants in challenging the grant of probate on the Will before the grant was made, had brought a new dimension to the case of the Appellants now pending at the trial Court. This is because the Appellants in their action are not only challenging the genuineness and authenticity of the Will which they claimed was not even in existence but are also challenging the grant of probate which they are urging the trial Court in their statement of claim, to set aside and declare that the deceased died intestate. In otherwords, the Plaintiffs/Appellants in their action have to scale the hurdle of invalidating the grant of probate of the will made to the Defendants/Respondents before facing their main claim touching on the validity of the Will itself where the law expects the Defendants/Respondents as propounders of the Will to begin if the grant of probate were not challenged. Therefore, it is my view that as far as the claim for the revocation of grant of probate already made is concerned, the ball is in the Court of the Plaintiffs/Appellants to begin to call evidence at the trial Court as found by the two Courts below. This issue is thus resolved against the Appellants.
The second issue in the Appellant’s brief of argument is whether or not the Court of Appeal had not by its pronouncement prejudged and pre-empted the substantive matter at the High Court. The learned Appellants Counsel quoted from the judgment of the Court of Appeal at pages 113 – 114 of the record of appeal where the Court observed –
“The only issue framed in the Appellants’ brief on behalf of the Appellants which reads as follows –
‘Upon whom, as between the Plaintiffs and the Defendants is the burden of proof thrown by the nature of the material issues between them’, is resolved against them. The nature of Appellants claim places the burden of proof on the Appellants who failed to discharge same.’
and argued that the Court below by holding that the Appellants had failed to discharge the burden of proof said to be placed upon them, that Court had inadvertently prejudged the main issue in the case at the trial Court yet to be heard. Learned Counsel therefore urged this Court to set aside the ruling of the Court below for delving into the main issue of the substantive case in the interlocutory ruling, a practice admonished by this Court in several decisions including Shahu v. Afribank Nigeria Plc. (2002) 17 N.W.L.R. (pt. 795) 230.
The learned Counsel to the Defendants/Respondents’ stand on the second issue for determination however is that the issue as framed is based on an obiter of the Court of Appeal which by law is not appealable. All the same, the learned Counsel contended that the statement made by the Court of Appeal in its judgment being complained of in this issue, did not amount to the Court of Appeal delving into the main claims of the Plaintiffs/Appellants still pending at the trial Court and therefore urged this Court to resolve this issue against the Appellants.
I have earlier in this judgment quoted the part of the judgment of the Court below being attacked by the Appellants in this issue. What the Appellants are quarrelling with is the statement by the Court below that-
“The nature of the Appellants claim places the burden of proof on the Appellants who failed to discharge the same.”
This statement says exactly what the Appellants failed to do at the trial Court when that Court, having regard to the nature of the case of the Appellants then on trial that Court asked the Appellants in its ruling to start their case by calling their witnesses but they refused and decided to appeal against the ruling to the Court of Appeal. That statement does not amount to the Court below delving into the main or substantive issues in the claims of the Appellants at all which were still waiting to be heard at the trial Court. The statement being complained of by the Appellants when closely examined in its con, it is very clear even beyond argument that the Court below did not delve into the main claims of the Appellants which still remain intact waiting to be moved for hearing when the Appellants are ready to call evidence in support of the reliefs claimed by them that the trial court should revoke the grant of probate on the deceased last Will, pronounce against the force and validity of the Will, the existence of which the Appellants are contesting and the declaration that the deceased died intestate. The comments of the Court below therefore had not prejudged nor pre-empted the substantive case of the Appellants which is still pending at the trial Court, to justify the setting aside of the ruling of the Court below as claimed by the Appellants in this second issue which is hereby resolved against the Appellants.
The case of Odutola v. Mabogunje (2013) 7 N.W.L.R. (Pt. 1354) 522, made available to the Court by the learned Counsel to the Appellants after the appeal had been reserved for judgment, is not directly relevant to the present case. This is because the case did not decide the main issue in the present case as to who between the Appellants and the Respondents should begin to call evidence at the hearing of the case at the trial Court. The issues raised in the Appellants brief of argument in that case Odutola v. Mabogunje (supra) seen at pages 542 – 543 of the report and which issues were considered and resolved in the judgment of this Court are –
“1. Whether the learned Justices of the Court of Appeal were right in view of the totality of the evidence adduced before the trial Court on the issue of testamentary capacity in re-evaluating the evidence and arriving at the conclusion that Chief Timothy Adeola Odutola has testamentary capacity at the time he purportedly made exhibits A and A1.
- Whether the learned Justices of the Court of Appeal were right in re-evaluating the evidence adduced by both parties at the trial Court on the issue of signature and arriving at the conclusion that late Chief Timothy Adeola Odutola signed Exhibit A and A1 (Will and Codicil dated 23rd November, 1993 and 14th of March, 1994 Respectively).
- Whether the learned Justices of the Court of Appeal were right in holding that the onus was on the Plaintiffs (Appellants) to prove that the sound disposing mind of the deceased that they acknowledged to have existed up to 8th of April, 1993, no longer existed as at the time the alleged Will and Codicil (exhibits A and A1) were signed.
- Whether the learned Justices of the Court of Appeal were right in holding that by necessary implication from content of paragraph 4(1) of the statement of claim the Plaintiffs (Appellants’) case is that the signature of the deceased at the foot or end of exhibits A and A1 were forged which allegation had to be proved beyond reasonable doubt.”
Although the first set of Respondents, 1st, 2nd and 3rd Respondents and the second set of Respondents, 4th and 5th Respondents in that case both formulated three issues each for the determination of the appeal in their respective Respondents briefs of argument, the issues were virtually the same in contents as those formulated in the Appellants’ brief of argument. In otherwords, all the issues raised by the parties and resolved by this Court in that appeal in Odutola v. Mabogunje (supra), were complaining against the re-evaluation of the evidence adduced by the parties at the trial Court by the Court of Appeal before coming to the conclusion that the Will and the codicil Exhibits A and A1, were properly executed by the deceased. The decision of this Court in Odutola v. Mabogunje (supra) therefore, is not relevant to the present case. The opening remarks made by Rhodes Vivour JSC at the beginning of the lead judgment in that case, is merely a restatement of the law in the case of Adebajo v. Adebajo (1973) 8 N.S.C.C. 204 and can by no means be regarded as part of the ratio decidendi of this Court in that case to warrant our being bound by it in the present case. See Clement v. Iwuanyanwu (1989) 3 N.W.L.R. (Pt. 107) 39 at 53 – 54.
As for the case of Ewete v. Gyang (2003) 6 N.W.L.R. (Pt. 816) 345, also forward by the learned senior counsel to the Appellant as additional authority being a decision of full Court, I am afraid I cannot find a place for it in the present case in the absence of any application or call by any of the parties in the present case to depart from our previous decisions.
It is indeed very unfortunate that this simple probate matter which commenced since November, 1989 after the death of the deceased who died on 12th March, 1989, is still pending unheard at the trial Court after nearly 24 years while the estate left behind by the deceased remained not administered between the beneficiaries. For whatever reason that was responsible for this very sad situation, learned Counsel to the Appellants should largely share the blame. It is indeed very unfortunate.
In the result, this appeal must fail and the same is hereby dismissed. The decision of the trial Court of 26th February, 2001 as affirmed by the Court of Appeal in its judgment on 13th March, 2007 that the Appellants were the parties to start their case by calling evidence first, is hereby further affirmed.
I am not making any order on costs.
SC.170/2007