IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON FRIDAY, THE 3RD DAY OF DECEMBER, 2021
BEFORE THEIR LORDSHIPS:
ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
ADEBUKUNOLA A.I. BANJOKO JUSTICE, COURT OF APPEAL
APPEAL NO. CA/L/564/2017
BETWEEN:
1. MRS. PHILIPA ADEBOLA ADEWUNMI
2. MR. ADEWOLE OLUDARE OLUFUNMILAYO
ADEWUNMI
3. MISS ADEKEMI OLUFUNMILAYO ADEWUNMI APPELLANTS
4. MR. ADEBODUN OLUDARE ADEWUNMI
5. ADETOMILOLA OLUTOPE ADEWUNMI
AND
1. ADEDOYIN OKUNADE
2. MR. ADETOLA OLADIPO ADEWUNI
3. MISS ADEDIMEJI OPEOLUWA IYANIWURA
ADEWUNMI
4. MRS. CAROLINE ADEJUMOKE ADEWUNMI
5. BUSAYO OKERAYI
6. MR. ADEYINKA OLUTADE ADEWUNMI
7. PRINCE ADEDEJI ALADEGBEMI RESPONDENTS
8.MR. FREDERICK OLABODE OGUNLANA
9. MISS JOLADE OLUTOYOSI ADEWUNMI
10. MR. ADEMOLA OLATUNDE ADEWUNMI
11. MISS ADEFUNMILAYO OLUWADAMILOLA
IYADUNI ADEWUNMI
12. MRS. RHODA OMOLADE ADEWUNMI
13. THE PROBATE REGISTRAR, HIGH COURT
OF LAGOS STATE
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This appeal is against the judgment of the High Court of Lagos State delivered by L.A.F. Oluyemi, J. on 20th February, 2017 at pages 1757 – 1791 of the Record of Appeal. Before that court, the 1st – 7th Respondents, as Claimants, instituted an action against the five Appellants and the 8th – 13th Respondents as Defendants in July, 2010, wherein they claimed by their Further Amended Statement of Claim at pages 1389 – 1392 of the Record dated 14/07/ 2016 but regularized on 22/09/216, for the following orders:
The 1st – 4th Defendants, now 8th – 11th Respondents by their Statement of Defence at pages 520 – 522 of the Record also propounded the said last Will of Chief Adebodun Oludare Adewunmi dated 20th October, 2015 and asserted that a copy of the said Will was given to the 1st Defendant/8th Respondent by the Testator immediately after the original was lodged in court. The 5th Defendant/12th Respondent did not file any process at the lower court. The 6th – 10th Defendants, now Appellants, vide their 2nd Amended Statement of Defence at pages 1003 – 1027 of the Record, contested the Will of 20th October, 2015 and asserted that same was forged as it contains errors, inconsistencies and omissions. The Appellants also asserted that there was a Will made by the deceased Testator in April, 2006, as his last Will.
The facts and circumstances that gave rise to the dispute leading to this appeal can be summarized thus: Chief Adebodun Oludare Adewunmi died on 06/12/2006 at No. 35, Weymouth, United Kingdom, leaving behind three wives, namely: the 1st Appellant and 4th & 12th Respondents. The 2nd – 5th Appellants and the 2nd, 3rd, 6th, 10th, 11th Respondents and the original 1st Respondent, who is now deceased and substituted with his son, are all children of the late Chief Adebodun Oludare Adewunmi. The 7th, 8th and 9th Respondents are his cousin, friend and niece respectively, while the original 5th Respondent is his sister but has now been substituted, having passed away. The 8th, 9th, 10th and 11th Respondents are the Executors/Executrix of the Will of 20th October, 2015. While the 1st – 10th Respondents propounded the Will dated 20th October, 2015, the Appellants are against the solemn pronouncement in favour of the said Will which was read during a family meeting at the residence of the deceased at No. 17, Oranyan Street on 02/01/2007. The Appellants also did not counter claim in favour of the Will of April, 2006 which they asserted.
At the conclusion of trial, the lower court found in favour of the Will of 20th October, 2015 and also ordered the 7th, 8th and 9th Defendants, now 2nd, 3rd and 4th Appellants, to render accounts, within 30 days, of all rents and monies collected by them on behalf of the Estate of late Chief Adebodun Oludare Adewunmi to the Executors and Executrix under the Will of 20th October, 2015.
The Appellants were peeved by the decision and they responded by filing on 07/03/2017, a Notice of Appeal predicated on six grounds, pages 1797 – 1800 of the Record of Appeal. Additional grounds 7 – 10 was also filed on 05/06/2017.
Briefs of Argument were filed and exchanged by the parties. The Appellants’ Amended Brief of Argument and the Appellants’ Amended Reply Briefs to the 1st – 7th and 8th – 11th Respondents’ Briefs, all settled by Victor Obaro, Esq., were filed on 04/02/2021. The 1st – 7th Respondents’ Amended Brief of Argument signed by Dare Akande, Esq., was filed on 04/03/2021 while the Brief of Argument of the 8th – 11th Respondents prepared by Ayo Senbanjo (Miss), was filed on 08/02/2021. The 12th and 13 Respondents did not file Brief of Argument. At the hearing of the appeal on 13/10/2021, Victor Obaro, Esq., adopted the Appellants’ Amended Brief and the Appellants’ Amended Reply Briefs to the Amended Briefs of the two set of Respondents and urged the court to allow the appeal. Dare Akande, Esq., and Ayo Senbanjo, Esq., respectively adopted the 1st – 7th and 8th – 11th Respondents’ Amended Briefs. Both of them urged the court to dismiss the appeal. Three issues were distilled for determination in the Appellants’ Brief as quoted here below:
After aligning themselves with and adopting the issues for determination as formulated and argued by the 8th – 11th Respondents, the 1st – 7th Respondents formulated the following three issues for determination:
1. Whether the learned trial Judge was not right in holding that the Appellants did not establish the existence of a 2006 Will (Distilled from Ground 1 of the Notice of Appeal and Ground 7 of the Additional Grounds of Appeal.
2. Whether considering the state of pleadings and the evidence led by the parties the learned trial Judge was not right in admitting to probate the 20th October 2005 Will of Late Chief Adebodun Oludare Adewunmi (Distilled from grounds 2 and 5 of the Notice of Appeal and grounds 8, 9 of the Additional Grounds of Appeal.
3. Whether the Judgment is a nullity merely because same was delivered outside ninety days from the date of adoption of written addresses without proof that the Appellants had by reason thereof suffered a miscarriage of justice. (Distilled from grounds 4 of the Notice of Appeal).
On the part of the 8th – 11th Respondents, three issues were also distilled for the determination of the appeal.
i Whether the trial court was right in holding that there was no 2006 Will made by the deceased. (Distilled from ground 1 of the Notice of Appeal and ground 7 of the Additional Grounds of Appeal.
iii. Whether the judgment is a nullity not having been delivered within three months from the date of final Address as provided under section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria. (Distilled from ground 4 of the Notice of Appeal).
Upon a calm reading of all the issues formulated in this appeal, I find that all the three issues formulated by all the parties are the same in substance, purport and intent, the only difference being that each party coined their issues to support their respective cases. The difference therefore is only in semantics. I shall, in the circumstance, adopt the three issues formulated by the Appellants in the resolution of this appeal. Before going into the issues, however, let me observe that the Appellants have not distilled any issue from grounds 3, 4 and 6 of the Notice of Appeal and additional ground 10. The legal implication is that the said grounds are abandoned. It is now firmly settled that where no issue is formulated or argument proffered in support of a ground of appeal, the said ground is deemed abandoned and liable to be struck out. It makes no difference whether or not an application to strike out the said ground is made. Accordingly, grounds 3, 4, and 6 of the Notice of appeal and additional ground 10, having been abandoned, are hereby struck out. See Usman Maigari vs. The State (2013) LPELR-20897(SC); Ekunola vs. Central Bank of Nigeria (2013) LPELR-20391(SC); Snig Nig. Ltd vs. Wema Bank (2016) LPELR-40576(CA); Charles Duru vs. FRN (2020) LPELR-50099 (CA). I shall now return to the issues in the appeal.
ARGUMENTS
Issue 1
Learned counsel for the Appellant faulted the finding of the lower court that it will be sheer speculation for anybody to conclude with certainty that the envelopes referred to in the evidence of DW4 and DW5 contained the deceased’s Will of 2006. He argued that the envelopes were sealed in the office of the 8th Respondent and a copy given to the 8th Respondent’s Secretary for delivery to him. Learned counsel accused the 8th Respondent, a friend of the deceased, of suppressing the Will of 2006 and also being in illicit love affair with Mrs. Caroline Adewunmi, the 4th Respondent. It is submitted for the Appellant that in view of the evidence of DW4, Fatai Ajibola Daniel, a Legal Practitioner, that at the last quarter of 2006, the deceased went to his office and requested for envelopes and red wax which he obliged him, as well as the evidence of DW5, Ropo Olugbemi, the deceased’ driver, that he was sure the deceased made a Will in 2006 because when they went to sister Carol’s house the deceased asked him to stay in the car and look after his Will, it will be wrong for the lower court to hold that the content of the envelop is doubtful. The court is urged to discountenance the evidence of DW3, the Personal Secretary to the 8th Respondent, who testified that the deceased went to the 8th Respondent’s office and in his absence, gave her envelope for her Boss, the 8th Respondent, in 2005 as her evidence is unreliable, citing the case of NLNG Co. Ltd vs. Hart (2013) LPELR-2117 (CA). Learned counsel urged the court to invoke the presumption of withholding evidence under section 167 of the Evidence Act against the 8th Respondent for suppressing the 2006 Will that was given to him by the deceased. In line with the evidence of DW4 that the deceased requested for envelopes and red wax from his office in 2006, Appellants’ counsel urged the court to take judicial notice of a notorious fact that that Wills are the usual documents sealed with red wax and the court is urged to draw the inference that the envelop contained a Will. On this submission, reliance was placed on Ogbunyiya vs. Okudo (1990) NWLR (Pt.146) 551; Iden vs. The State (1994) 8 NWLR (Pt.365). Learned counsel contended that by holding that the contents of the envelopes is speculative, the trial Judge has allowed the propounders of the Will of 2005 and those who suppressed the Will of 2006 to benefit from their own wrongful act, which the law forbids, A.G. Rivers State vs. Ude (2006) 6-7 SC 131.
On his part, learned counsel for the 1st – 7th Respondents made copious references to the judgment of the lower court and submitted under issue 1 that that it is unfathomable how the learned trial Judge’s agreement with the Appellants’ star witnesses on the red wax seal and matches proves the case of the Appellants that there was a 2006 Will. He submitted that DW5, the driver of the deceased and DW4, Mr. Dalley, the lawyer, neither signed the alleged Will of 2006 as witnesses nor did they witnessed the deceased signing it. Similarly, these witnesses did not see the deceased sealing the envelopes, which the claimed contained a Will, in their presence. Learned counsel referred to the evidence of DW4 when he said that one of the envelopes contained title transfer forms and that the deceased said he was going to write each of his children and argued that it is possible that the envelopes could have contained title documents. He also submitted with reference to the evidence of DW4 under cross examination at page 1782 of the Record, that wax is not only used for Wills but could also be used to seal envelopes containing title documents for security purposes. This court is urged to uphold the lower court’s evaluation of the evidence of DW5 and the non-ascription of probative value to it. Learned counsel stated that the decision of the trial court is borne out by sections131 and 133 of the Evidence Act, 2011, to the effect that where a party wishes to succeed in his claim by relying on certain facts, the burden of proving the actual existence of those facts rests on him. He maintained, on the authority of Oyovbiare vs Omamurhonu (2001) FWLR (Pt.68) 1129, that the Appellants have failed to prove the existence of 2006 Will and/or the suppression of same. On the arguments of the Appellants on presumption of withholding evidence, Mr. Akande submitted that the receipt of envelope from the deceased is not part of the Respondents’ case but that of the Appellants and that if the Appellants had wanted the production of the envelop during the trial, they would have served a notice to produce the envelope in accordance with section 91 of the Evidence Act.
Like the 1st – 7th Respondents’ counsel, learned counsel for the 8th – 11th Respondents also quoted copiously from the judgment of the lower court in his arguments under issue 1. He submitted with respect to the evaluation of evidence of DW4 by the lower court that the envelopes could have contained any other document and that the wax and seal are equally used on other documents for security purposes and therefore it will amount to speculation to conclude that the envelopes contained a 2006 Will as DW4 himself said the envelopes were not sealed in his presence and he has no idea of when the deceased prepared his Will. It is contended for the 8th – 11th Respondents that no evidence was led by the Appellants as to when and where the purported 2006 Will was made or who witnessed its execution, nor was there evidence that the said Will was lodged at the Probate Registry by the deceased himself as was his usual practice based on established evidence before the lower court of lodgment of his previous Wills (Exhibit D33 – 2002 Will, Exhibit D1 – 2003 Will, Exhibit D2 – March, 2005 Will and Exhibit D3 – October, 2005 Will). The court is urged to hold that the evidence of DW5 is hearsay, relying on Ojo vs. Dr. Gharoro (2006) 10 NWLR (Pt.987) 173, and that the allegation of the existence of the 2006 Will is baseless and unfounded as same has not been proved by the Appellants. We are urged to resolve this issue in favour of the 8th – 11th Respondents.
By way of reply, learned counsel for the Appellants submitted that the question of who witnessed the Will of 2006 does not arise as that is not the case of the Appellants, their case being that of suppression of the said Will by the 8th Respondent.
Issue 2
Learned counsel for the Appellants submitted that the particulars of forgeries, errors and irregularities in the 20th October Will pleaded by the Appellants in the 2nd Amended Statement of Defence were not specifically denied or traversed by the propounders of the said Will in their pleadings, rather, what they did was a general traverse. Akintola vs. Solano (1986) 4 SC 141, cited. He listed some of the particulars at pages 8 - 9 of the Appellants’ Amended Brief. It is submitted that based on the pleadings, the trial Judge ought to have entered judgment in favour of the Appellants because the law is that where a fact is not denied, the burden of proof is minimal. Shell Petroleum vs. Edamkwe (2009) LPELR-3048 (SC), cited. The Appellants attacked the finding of the trial court on their allegation of mental illness of the 3rd Defendant, when it said that there was no evidence to show that at the time of his appointment as Executor or at present, Ademola was/is still suffering from any mental illness, as according to them, they pleaded at paragraph 57 (e) that “He still suffers occasional mental relapses” and also gave evidence to that effect at paragraph (e), page 977 of the Record. The reason given by the trial Judge for the omission of one of the properties, i.e., that the deceased gave the tax clearance of CW2 (the 4th Respondent) to DW4 for the purpose of transferring ownership of the property to her, was also challenged by the Appellants as same is a misconception of the evidence of DW4. Learned counsel referred to the part of the evidence of DW4 where he stated that the deceased asked him to hold on to the title documents and stay action on conveying the property to CW2. Learned counsel submitted that the only reasonable inference to be drawn on the omission of that property is that CW2 had an inkling that the property was purchased in her name and so omitted it in the Will she forged. Learned counsel also linked CW2 to the forgery of the Will because of her access to the Probate Registry, being a former staff of Lagos High Court. The court is urged to hold that the omitted property belongs to the deceased and that its omission from the Will makes the Will suspicious. The inclusion of Seun, whose paternity is in dispute, as a son and beneficiary in the Will is another reason why the Appellants opposed the admission of the Will to probate. Placing reliance on the case of Okelola vs. Boyle (1998) 2 NWLR (Pt.539) 533, Appellants’ counsel urged the court to hold that the October, 2005 Will is irregular and therefore not admissible to probate.
On this issue, learned counsel for the 1st – 7th Respondents contended that although the Appellants filed a Statement of Defence with particulars of the alleged forgery, they however did not file a counter claim which would have necessitated a reply since the law presumes that without a counter claim a reply is not necessary as the parties have joined issues on the Statement of Defence. On this proposition of the law was cited the case of Akeredolu vs. Akinremi (1989) 3 NWLR (Pt.108) 164. In any case, counsel submitted that there is a reply to the Statement of Defence. It is argued that whether there is a reply or not, the onus of proving forgery, which is a criminal offence is on the Appellants and by section 135 of the Evidence Act the standard of proof is beyond reasonable doubt. Learned counsel contended that the Appellants failed to prove that at the time the Will was made the 8th Respondent was not at Ajele, neither did they prove the address of the three other Executors at the time the Will was made. Counsel submitted that if in truth some of the Respondents forged the Will, they could not have written wrong addresses for themselves. He argued further:
“Moreover, the address provided by the 3rd, 2nd and 4th Appellants on their various statement on Oath on pages 111-112, 113-121, 595-596, 597-607, 614-630, 967-98, 1148-1153 and 1154-1164 of the Records which is No.17 Oranyan Street, Apapa is different from the addresses given by them when they came to court to give evidence. Whereas the 3rd Appellant gave her address as No. 10 Pistol Road Apapa GRA, the 4th Appellant gave his own address as Admiralty Road, Lekki Phase 1 and the 2nd Appellant gave his own address as 33A Park Lane Apapa G.R.A. See Pages 1561, 1621 and 1690 of the Records.
There is also no proof that the address of the property devised in Clause 20 of the Will is No. 3 and not No.1 when the will was made or that the deceased had no property at South West GRA Residential Area Amuwo Odofin when the will was made. On the correct address of a registered company or the fact that two companies mentioned in the will were wound up before 2005, the Appellants did not produce any documentary evidence from the Corporate Affairs Commission to prove the assertion. There is also no proof, documentary or otherwise that the deceased’s First Bank Plc account at Obun Eko branch was closed before the will was made. The Appellants, though notified the trial court that they would subpoena a witness from First Bank Plc, but they never did. The evidence on the omission of the property at No. 7 Christopher Way, Surulere, the inclusion of the name of an alleged son and the medical history of one of the executors were extensively reviewed by the trial court and findings were made on them.”
With reference to property No. 7 Surulere which was not included in the Will of October, 2005, learned counsel submitted that the learned trial Judge was correct in the summation of evidence of DW4. It is submitted that the burden of proving that the October, 2005 Will was genuine has been discharged by the Respondents whereas the Appellants who faults the genuineness of the same Will could not substantiate their allegations with credible evidence. Okelola vs. Boyle (supra) cited and relied on.
For the 8th – 11th Respondents, learned counsel submitted on their behalf that the effect of general traverse is to cast upon the Plaintiff the burden of proving the allegations denied. C.C.B. (Nig) Ltd vs. Odogwu (1990) 3 NWLR (Pt.140) 646, cited and relied on. On the allegation of forgery of the Will against Deji Aladagbemi and the 4th and 8th Respondents, it is the submission of counsel that the said allegation has not been proved beyond reasonable doubt before the lower court. Reference was made to section 135 of the Evidence Act and the case of IPBC Nig. Ltd vs. IPBC UK Ltd (2014) LPELR. With reference to the alleged mental illness of the 10th Respondent, the 8th – 11th Respondents submitted that there was no evidence from the Appellants to show that as at the time the 10th Respondent was appointed an Executor, or even now, he was still suffering from mental illness and therefore of unsound mind. On the non-inclusion of No. 7 Christopher Way, Surulere, this court is referred to the evidence of DW4 at pages 1544 – 1545 of the Record and the finding of the lower court at page 1772 of the Record that before his death, the deceased has instructed DW4 to transfer the property to the 4th Respondent, and that is the reason he did not devise it in his Will. On the inclusion of Seun, a son of the deceased whose paternity was in dispute, learned counsel submitted that as held by the learned trial Judge, that issue cannot make the Will susceptible to allegation of forgery. Counsel argued that based on the evidence of Justice B.O. Ogunade (CW1) on the existence and validity of the October, 2005 Will, that the deceased indeed wrote a Will in October, 2005 and that CW1 witnessed the said Will in the presence of the other witness, Mr. G.O.K. Isiaka, and that CW1 was aware of the times the deceased lodged each Will he made at the Probate Registry. The court is urged to uphold the judgment of the lower court that the last Will and Testament of the deceased dated 20th October, 2005 is valid and should be admitted to probate while the allegations of the Appellants should be dismissed for being baseless and unfounded.
By way of their Amended Reply, the Appellants drew the court’s attention to the evidence of ASP Surajo Mohammed and ASP Raphael Onwazuligbo on the investigation the Police conducted on the allegation of forgery of the Will of October, 2005 in which ASP Surajo testified as DW9 that the forensic analysis revealed that there is evidence of forgery and manipulations in the case. The court is urged to set aside the decision of the lower court and dismiss the claim.
Issue 3
Appellants, through their counsel, argued under this issue that the judgment in this case on appeal delivered by the lower court well over three months after the adoption of final addresses has occasioned a miscarriage of justice. Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 referred to. It is conceded that it is not enough for an Appellant to argue that judgment was delivered after 90 days. He must convince the court that the trial judge lost memory of the case and that this has occasioned a miscarriage of justice, Cotecna Int. Ltd vs. Churchgate Nig. Ltd & Anor (2010) 18 NWLR (Pt.1225) 346. Learned counsel argued that the long time it took the lower court to deliver judgment after the adoption of final addresses has made the court to forget to address some facts and misplaced others, such as the wrong address of DW1stated in the October, 2005 Will, the wrong address of one of the properties devised in the Will, inclusion of companies that have been wound up and inclusion of a bank account that has been closed. He submitted that the court did not consider the effect of the statement credited to the deceased that ‘I have lived it up.; a list of people will be surprised’ and also misplaced the last instruction of the deceased to DW4 on No. 7 Christopher Street. Learned counsel contended that these matters were not considered as a result of loss of memory which made the Appellants to suffer injustice. On this ground the court is urged to set aside the judgment of the lower court.
While agreeing with the submission of the Appellants on the provision of section 294 (1) of the Constitution, learned counsel for the 1st – 7th Respondents submitted that subsection (5) of section 294 has taken the sting off the harsh provisions of section 294 (1) by providing that unless miscarriage of justice is shown, judgment delivered outside the constitutional period of 90 days after the adoption of final address shall not be declared a nullity. Learned counsel submitted that there is no convincing proof that the Appellants have suffered miscarriage of justice as a result of the delivery of judgment after 90 days. He argued that the assertions of the Appellants were not proved by them and the court should not be expected to consider unproved assertions. Learned counsel submitted that the lapse of time did not affect the Judge’s recollection of the facts of the case and the testimonies of witnesses, placing reliance on Abdullahi vs. Hedima (2011) 2 NWLR (Pt.1230) 42. On the alleged deceased statement; “I have lived it up; a list of people will be surprised”, which the Appellants said has not been considered by the lower court, counsel queried, ‘of what relevance is the statement to the consideration of the genuineness of October 20, 2005 Will or the purported suppression of a phantom 2006 Will?’ it is further argued that contrary to the submission of the Appellants, the lower court has properly evaluated the evidence of DW4 with respect to property No. 7 Christopher Way, Surulere. Finally, counsel urged the court, relying on Okonkwo vs. Okonkwo (2010) 14 NWLR (Pt.1213) 228, to be wary of interfering with the findings of the trial court which was arrived at after proper evaluation of the evidence before it.
On his part, learned counsel for the 8th – 11th Respondents submitted that for a judgment delivered outside 90 days of final addresses to be set aside, the party complaining must satisfy the court that he suffered a miscarriage of justice by reason of the late delivery of the judgment. Walter vs. Skyll (Nig.) Ltd (2001) 3 NWLR (Pt.701) 438 @ 474, cited and relied upon. Counsel submitted that the Appellants have failed to show that they suffered miscarriage of justice by the delay in delivering the judgment. It is the further submission of counsel that the Appellants have not placed any material before this court in prove of their assertions that some matters were not considered by the lower court or were misplaced. He argued that the fact that issues were not resolved in favour of the Appellants cannot amount to miscarriage of justice. The 8th – 11th Respondents submitted that the Appellants did not prove their case under the civil standard by preponderance of evidence neither did they prove beyond reasonable doubt the allegations of fraud and forgery with the facts listed in the Appellants Brief as particulars of the criminal allegations. It is submitted that the facts listed in the Appellants’ Brief are not material or relevant to the determination of the validity of the Will of October, 20th, 2005. Learned counsel stated that unless this court finds the decision of the trial court to be perverse, which it is not, the court is obliged to accord it the greatest weight and due respect. Some of the authorities cited by learned counsel are; Saraki vs. S.G.B. (1995) 1 NWLR (Pt.371) 325; Akingboye vs. Salisu (1999) 7 NWLR (Pt.611) 434; Anibi vs. Shotimehin (1993) 3 NWLR (Pt.282) 461 @ 479.
RESOLUTION OF ISSUES
Issue 1
Even though the Appellants did not file a counter claim, they averred in their pleadings that the deceased made a Will in April, 2006 and that a copy each of the said Will was lodged with the 8th Respondent and late Archbishop Adetiloye, who are alleged to have suppressed the said 2006 Will. The Respondents denied that there was any Will in 2006. They maintained that the last Will of the deceased is that of 20th October, 2005, which they propounded. Under our law, when a party wishes the court to believe any fact, then the duty of proving that fact rests squarely on that party. The burden of proof in civil cases is on the Claimant who asserts the positive. To be entitled to judgment, the Claimant has the onus of adducing credible evidence to prove his case. Section 131 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Section 132 of the same Act provides further that the burden of proof in a suit in any proceeding lies on that person who will fail if no evidence at all were given on either side. See Okoye vs. Nwankwo (2014) LPELR-23172 (SC); Daudu vs. Federal Republic of Nigeria (2018) LPELR-43637 (SC); Aremu vs. Adetoro (2007) LPELR-546 (SC); Sakati vs. Bako & Anor (2015) LPELR-24739 (SC). The burden or onus of proof is used to describe the duty which lies on a party to establish a fact which he alleges. The Appellants who asserted the existence of a Will of no fixed date, must shoulder the burden of proving that the said Will existed and was suppressed by the 8th Respondent and late Archbishop Adetiloye.
Before the lower court, DW3, DW4, DW5 and DW6 testified about envelopes, red wax and seal. None of them testified that he saw any Will made by the deceased in 2006. None of them witnessed the execution of the Will by the Testator. None of them witnessed the sealing of the Will. None of them told the court the place and time of execution of the Will and the names of persons who witnessed same in the presence of the Testator. There is also no evidence on record that the deceased deposited the 2006 Will with the Probate Registry of the High Court of Lagos State, as he has done in previous occasions with his previous Wills of 2002, 2003, March, 2005 and October, 2005, respectively marked as Exhibits D33, D1, D2 and D3 by the lower court. The law requires that a Testator executes the Will in the presence of two witnesses, who shall also attest to the Will in the presence of the Testator. Therefore, to assert that a Will was made by the deceased in 2006, the Appellants have brought upon themselves the obligation of proving the existence of the Will. All the evidence adduced by them at the lower court is nothing but a bundle of speculation devoid of factual basis. They failed to lead evidence in prove of date, time and place of execution of the Will and the names of persons who witnessed the execution of the Will. In the purported caveat entered by the 7th and 9th Defendants, now 2nd and 4th Appellants, they promised to locate and produce the Will of 2006 but up to the conclusion of trial at the lower court, the Appellants have not produced the said Will. There is no shred of evidence from the Appellants proving the existence of a 2006 Will. The law is trite that a party who fails to discharge the burden placed on him with respect to prove of affirmative of what he asserts, will lose on the assertion. See Okoye vs. Nwankwo (supra).
With respect to the allegation against the 8th Respondent and late Archbishop Adetiloye for suppressing the 2006 Will, none of the Witnesses on record said he saw when a 2006 Will was given to the 8th Respondent and late Archbishop Adetiloye. Even DW3, the Personal Secretary of 8th Respondent, merely said she was given an envelope by the deceased in 2005 to give the 8th Respondent. She did not testify that the envelope was a Will. As for the late Archbishop Adetiloye, the allegation against him in the pleadings was dropped by DW6 when she testified in court. The lower court has dutifully reviewed all the testimonies of the witnesses before it and came to the right conclusion that the existence of the 2006 Will has not been proved. The court also jettisoned the evidence of DW3 for being full of contradictions and therefore unreliable. The lower court’s exhaustive analysis of the evidence adduced and its findings at pages 1780 – 1783 of the Record of Appeal is commendable. I cannot but agree with and endorse the finding of the lower court. The decision of the lower court on the existence or otherwise of a 2006 Will is sound in law and cannot be faulted. I accordingly resolve issue 1 against the Appellants.
Issue 2
Section 4 (1) of the Wills Law of Lagos state states the conditions for the validity of a Will as follows:
“No Will shall be valid unless-
The law is settled that where there is a dispute as to a Will, those who propound it must show by evidence that, prima facie, all is in order; that is to say, that there has been due execution, and that the Testator had the necessary mental capacity, and was a free agent. Once the propounders of the Will are able to satisfy the court as to these matters, the burden then shifts to those who attack the Will to substantiate by evidence the allegations they have made against the Will. See Okelola vs. Boyle (supra); Ita vs. Dadzie (2000) 4 NWLR (Pt.652)168; Dawodu vs. Isikalu & Ors (2019) LPELR-46435 (SC). The Appellants’ challenge to the validity of the Will of Chief Adebodun Oludare Adewunmi of 20th October, 2005, is not on the ground that it is not in writing, or it is not executed by him in the presence of witnesses or that it is not subscribed by witnesses in his presence, rather the Appellants have challenged the admission of the October, 2005 Will to probate on the grounds that it was entirely forged, and that it contains errors and irregularities. Having so alleged, the duty of proving the allegations squarely rest on them. I am in agreement with the two set of Respondents that the standard of proof of forgery alleged by the Appellants, being a criminal allegation, is beyond reasonable doubt. Section 135 (1) of the Evidence Act is very clear on this. At paragraph 4.1 of the Appellants’ Brief of Argument, learned counsel itemized the particulars of forgeries, errors, irregularities in the Will of 20th October 2005 to include:
ii. The address of the property devised in Clause 20 of the will is No 3 and not No.1
iii. That the deceased had no property as South West GRA Residential Area, Amuwo Odofin and could not have devised same in the will.
v. That two of the companies mentioned in the will were wound up prior to 2005, when the will was purportedly written and to the knowledge of the Testator who was a seasoned commercial lawyer.
vi. That prior to 2005 when the will was purportedly written, which fact was completely missed in the will, the deceased’s First Bank Plc, account at Obun Eko branch, 126 Nnamdi Azikwe Street, Lagos had been closed and a new one which was the only operational account, opened at Ajegunle branch which fact was completely missed in the will.
vii. Omission of the property situate at No. 7 Christopher way, Surulere.
viii. Inclusion of the name of an alleged son, whose paternity was disputed by the deceased, and who the deceased had consistently refused to accept as his child, why another who he accepted as one of his children, a fact that he ensured was judicially acknowledge was not included.
ix. One of the Executors (10th Respondent) has a history of mental illness.
It was argued that the Respondents did not specifically traverse the particulars as pleaded in paragraph 57 of the Appellants’ extant pleadings. The correct statement of the law is as canvassed in the Brief of the 1st – 7th Respondents that a Reply by a Plaintiff/Claimant is not necessary if the purpose is to deny the allegations made in the Defendant’s pleading. In Akeredolu vs. Akinremi (1989) LPELR-328 (SC), the Supreme Court, per Kawu JSC restated the law thus:
“The rule of practice is that where no counter claim is filed, a reply is generally unnecessary if its sole object is to deny allegations contained in the Statement of Defence.”
See also Unity Bank Plc vs. Bouari (2008) LPELR-3411 (SC); Igbozor vs. Effiong & Ors (2016) LPELR-40100 (CA). It is also settled that if no reply is filed, all material facts alleged in the Statement of Defence, are put in issue. On this point, I am also at one with the submission of learned counsel to the 8th – 11th Respondents. That is the reason why filing a reply to merely join issues is not permissible. On the basis of this judicial pronouncement from the apex court, I hold that the argument of learned counsel for the Appellants that judgment ought to have been entered for the Appellants by the lower court for want of specific traverse of their allegations, amounts to turning the law on its head. I discountenance the said argument.
In deciding whether the allegation of forgery of the October, 2005 Will was established by the Appellants, who were the 6th – 10th Defendants before her, the learned trial Judge firstly, listed eighteen particulars of the alleged forgery in her judgment at pages 1763 – 1764 of the Record before proceeding to make detailed analysis of the evidence on each of the particulars and her findings thereon at pages 1764 – 1779 of the Record. The lower court rightly identified the evidence of Adekemi Oluwafunmilayo Adewunmi, the 3rd Appellant, who testified as DW6, as crucial to the Appellants’ allegation of forgery. It was she who named the 4th Respondent, original 5th Respondent and 7th & 8th Respondents as the persons she suspected to have forged the Will of October, 2005. How each of these persons contributed to the forgery, that is to say, who forged what among the four suspected persons, is not in evidence before the lower court. When shown exhibits D2 and D3, the Wills of March and October, 2005, DW6 said the signature is not that of her Father even though it looks like it. She however admitted that the signature of Justice Ogunade, who testified as CW1 that he witnessed the Wills, is on the two Wills, but added that the document Justice Ogunade witnessed had been adulterated. While challenging the genuineness of all the 4 Wills made by her father, DW6 admitted taken benefit of one of the devises in her father’s earlier Will and also admitted taking steps to register the interest of her blood siblings as bequeathed to them in the earlier Will. The lower court’s decision that DW6 cannot in law be allowed to approbate and reprobate, i.e., take benefit under a Will and turn round to challenge it, is grounded in law and I accordingly endorse it. A party cannot in law and in equity be allowed to take benefit under a document and then run round to challenge the legality of the same document. She cannot eat her cake and have it back again. See Ajuwon & Ors vs. Governor of Oyo State & Ors (2021) LPELR-55339 (SC); Nasko & Anor vs. Bello & Ors (2020) LPELR-52530.
The same DW6, after testifying that her father had three wives, turn round to say that the family of her late father is composed of her mother and her siblings of the same parents, i.e., the Appellants in this appeal. As far as DW6 is concerned, the two other wives of Chief Adebodun Oludare Adewunmi and their children are not members of her father’s family. On this evidence, I also endorsed the reasoning of the learned trial Judge when she said at page 1766 of the Record:
“By implication, all the remaining children and their mothers are not the deceased’s family and therefore cannot be entrusted with their late father’s interest; thus, the appointment of any of them as Executor or Executrix was suspect. For DW6 to have limited ‘family’ of her deceased father to be her mother and her siblings of full blood alone is very parochial and self-serving.”
On the appointment of Miss Jolade Olutoyosi Adewunmi, the 9th Respondent, as an Executrix in all the four Wills made by the deceased in 2002, 2003 and 2005 which the Appellants challenged on the ground that she was not the deceased daughter and also that she lived in the United States of America, the lower court found that there was nothing wrong with that appointment as the deceased was consistent in referring to her as his niece and not his daughter even though she answers Adewunmi as her surname. Let me point out that the deceased has the inalienable right and power to decide who should be the Executors of his Will, and if he finds his niece more reliable and trustworthy than some of his blood children nothing stops him from making her a Co-Executrix of his Estate, and such a choice cannot be a ground to challenge the Will on allegation of forgery. In her testimony, DW6 also faulted the appointment of Miss Adefunmilayo Oluwadamilola Iyadunni Adewunmi, the 11th Respondent, as a Co-Executrix of the Will in question in place of her sister of the same mother, Miss Adedimeji Opeoluwa Iyaniwura, a Chartered Accountant, as she was known to be a wayward child. From the Record, the said Miss Adedimeji Opeoluwa Iyaniwura being touted by DW6 as an upright person who should have been appointed as an Executrix is not complaining of her replacement in the Will by her sister of the same mother. In fact, she was one of the propounders of the Will of October, 2005 before the lower court and the 3rd Respondent in this court. DW6 should not cry more than the bereaved. I think what DW6 and the other Appellants are trying to do is to substitute the free will of the deceased Testator as expressed in his Last Will with their own thoughts as regards what is right. They want to supplant his brain and thought processes with their own. The law does not permit them to do so. This is how the learned trial Judge sums it up:
“It is not the law that appointment of an executor/executrix is based on perfect performance; it is a matter of discretion and judgment of the testator which in the absence of any compelling reason cannot be queried or altered.”
No such compelling reason has been adduced by the Appellants in the Record. The lower court also found that the high level and deep-rooted animosity between DW6, the 3rd Appellant and the 4th Respondent (the 3rd wife of the deceased Testator) is evident in the evidence of DW6 and that such animosity cannot, without more, prejudice the appointment of the 12th Respondent as a co -Executrix of the deceased Estate. The appointment of Ademola Olatunde Adewunmi, the 10th Respondent, was also viewed with suspicion by the Appellants on the ground that he was mentally ill and had to be expelled from school in England and in Nigeria on account of that. A medical report from Federal Neuro-Psychiatric Hospital, Yaba, dated 14/10/2009, issued at the instance of Ademola’s mother, showing that he became a patient of the Hospital on 21st January, 1997 and was discharged 4 weeks later after his condition improved, was tendered as exhibit D23 before the lower court. He was last seen in the Hospital on 28th April, 1998. It goes without saying that just as a person of unsound mind cannot make a testamentary disposition, a person suffering from mental illness can equally not be validly appointed as an Executor under a Will. The Will in question was made in October, 2005, more than seven years after Ademola was last seen in the Hospital. The Appellants pleaded and testified through DW6 that Ademola ‘still suffers occasional mental relapses.’ Other than exhibit D23 which states that Ademola was last seen in the Hospital on 28th April, 1998, no other medical report stating that ‘He still suffers occasional mental relapses’ has been produced before the lower court. Proof of mental illness is a serious technical/medical matter that cannot be established by the mere ipse dixit of DW6, who from the evidence on Record is not even a Medical Personnel not to talk of being a Medical Doctor or a Consultant Neuro-Psychiatrist. She is not in a position to offer an acceptable and reliable medical opinion on the health/mental status of the 10th Respondent. What is more, there is no medical report concerning the health condition of the 10th Respondent either immediately before or immediately after the execution of the Will to show that he lacks the mental capacity to act as Co-Executor. That allegation has not been made out by the Appellants.
The Appellants made a heavy weather on the arrangement of the names of the deceased’s wives and children in the Will of 20th October, 2005, which according to them is uncharacteristic of the deceased in listing his wives and children. Again, documentary evidence of the characteristic manner in which the deceased arranges the names of his wives and children has not been tendered in evidence in proof of the averment in the pleading and assertion of DW6 in her testimony. The learned trial Judge went the extra mile of examining the three previous Wills of the deceased, exhibits D33, D1 and D2 to see if there is an established way the deceased arranges the names of his wives and children. She found none, rather what she found was that in the previous Wills of 2002, 2003 and March, 2005, the deceased followed the same pattern of listing his wives and children as he did in the Will of 20th October, 2005. That allegation, as found by the learned trial Judge, is unfounded and unsupported by evidence.
The inclusion of Seun Adewunmi among the beneficiaries under the Will is another reason advanced by the Appellants to show that the Will was forged. Seun’s name was not included under the children of the deceased, he is just named as a beneficiary under the Will. If the paternity of Seun Adewunmi was in dispute and the deceased decided to make a bequest to him, not as his son, but just a beneficiary, how can that bequest be relied upon to invalidate the Will on account of fraud or forgery when the said Seun Adewunmi was not listed as one of those who allegedly forged the Will? Besides, Seun is not made a party to the proceeding to enable him respond to the correspondences between him and the deceased which were tendered in evidence by the Appellants. In any case, no law prevents a Testator, in the exercise of his freedom of choice, to bequeath his property to anybody he wishes, whether related by blood or not. I fail to see how the bequest to Seun Adewunmi can constitute an irregularity, fraud or constitute one of the particulars of forgery.
DW6 also alleged in her evidence that the forgers of the Will of October, 2005 reduced the number of the deceased children from 14 to 13 by omitting the name of Oluwakemi Lawanson Adewunmi from the said Will. Again, I reproduce here below what the learned trial Judge said on this allegation: (Quote at page 1769 of the Record).
“In his evidence in Chief, DW1, a long time friend of the deceased which friendship dated back to 1946, relationship of which DW6 admitted to, testified that the reduction of the number of children from 14 to 13 in the will of 2005 was as a result of an incident between the deceased and one of his children, Kemi Adejoke Lawanson who after the will of March 2005 informed the deceased in the presence of her mother that the deceased was not her biological father. That it was this incident that necessitated the October will wherein the number of children became reduced from 14 to 13. This testimony was confirmed by the testimony of DW1 under cross examination was not challenged by the 6th - 10th defendants’ counsel in the course of cross examination, CW1 also wrote in his statement to the Police (exhibits D36) what the deceased told him that necessitated the deceased need to make another will in October, 2005. That reason was not different from the evidence given by DW1. CW1 Justice Ogunade was also not taken up on his statement to the police on this issue. It is therefore not correct as asserted by the defendants that the alleged forgers were the ones responsible for the reduction in the number of children in exhibit D3. But assuming without conceding that allegation was true, 6th - 10th defendants did not claim to be representing Adekemi Lawanson whose name was removed and who is an adult, secondly 5th defendant, Rhoda Omolade Adewunmi who begot Adekemi Lawanson and was the rightful person to ‘fight’ for her daughter’s interest did not defend this action as she neither entered appearance nor filed any defence. That evidence of the defendants on this issue therefore lacks evidential value.”
The above evaluation of the evidence is exhaustive, and the decision arrived at by the learned trial Judge above is unassailable and is hereby endorsed by me.
The omission of two properties from the Will of October, 2005, situate at No 7, Christopher Way, off Fujah Street, Surulere, Lagos and No. 25 Fagbenro Square, Surulere, Lagos, is one of the reasons advanced by the Appellants and the evidence in-chief of DW6 to buttress their allegation that the Will was forged. However, testifying under cross examination, DW6 admitted that she does not have the title documents of No. 25 Fagbenro Square. Upon being confronted with the title documents, she admitted that the property is in the name of her aunt, Nihinlola Agbeke Adewunmi, the 5th Claimant and the original 5th Respondent. The said property has been established through exhibits D31 and D32 not to belong to the deceased Testator. That allegation therefore fails.
With regards to No. 7 Christopher Way, occupied by Mrs. Caroline Adejumoke Adewunmi, the 3rd wife of late Chief Adewunmi, DW4, Fatai Ajibola Daniel, also referred to as Mr. Dalley by DW6, informed the lower court that he acted as Solicitor for the late Chief Adewunmi for the purpose of purchase of that property in 2005 through to March, 2006, when the documentation was completed. He testified that Chief Adewunmi wanted to purchase the property to house Mrs. Caroline Adewunmi, the 4th Claimant/4th Respondent. He was also instructed by Chief Adewunmi to transfer the property to Mrs. Caroline Adewunmi, whose tax clearance was given to DW4 for that purpose. According to DW4, Chief Adewunmi later asked him to transfer the property in his name first for the record. Upon being questioned by the lower court, DW4 responded at page 1545 of the Record, thus:
“… At the initial stage when we purchased the property we had started actually process (sic) into the name of Carolyn Adewunmi, then Chief called and said no, that I should stop. And I should process the purchase in his own name, that the reason for that was that he met one elderly Court of Appeal Justice in a flight that for the record buy the property in your name that she will not say that she bought the property herself. That was why we effected the transfer into his name. So, we have actually started effecting the transfer to Carolyn Adewunmi and then Chief said stop, do the transfer in my name for the record.”
With this evidence as buttressed by exhibits D10 to D19, which are the title documents for that property, and in the absence of proof of execution of a Deed of Transfer and/or Gift by Chief Adewunmi in favour of Mrs. Caroline Adejumoke Adewunmi, the property situate at No. 7 Christopher Way, off Fujah Street, Surulere, Lagos, legally remains the property of Chief Adebodun Oludare Adewunmi. I find that the deceased’s initial intention to transfer the property to Mrs. Caroline Adewunmi has not crystallised up to the time of his death on 6th December, 2006. That the deceased did not devise the property to anybody in his Will, without more, is not enough reason to say that the Will was forged, in the absence of clear evidence of forgery. The fact that the Will of 20th October, 2005 did not contain the said property, which was purchased to house the 4th Respondent as per the evidence of DW4, cannot be a reason for this court to agree with the contention of the Appellants that the said Will was forged. After all, there is no law that mandates or compels a Testator to list and devise all his properties when making a Will.
The Appellants also tendered Police Interim Report on a case of Conspiracy, Forgery and Fraud on the Estate of late Chief Adebodun O. Adewunmi which was the outcome of investigation conducted on a petition written to them by Barrister A.O. Adewunmi (Jr) on 29th November, 2009. The report, which is exhibit D34, stated that the Will of 20th October, 2005 ‘has been discovered to be incomplete and appears to be unduly influenced.’ The report also stated that the rendition of the date in the copy of the Will read at Probate differs from the one circulated to members of the family by the 8th Respondent. For the Police to say that the Will is incomplete and appears to be unduly influenced, shows that the Police are on a mission of their own, as that was neither the complaint before them nor the case of the Appellant before this court. The Appellants have not alleged that the Testator was unduly influenced by anybody. There is also no evidence on the printed Record that any of the persons allegedly suspected of forging the Will was either standing trial for the offence of forgery or convicted for the said offence. That Police Interim Report, which has not been finalized till date, proves nothing, and it was rightly discountenanced by the lower court.
Learned counsel for the Appellants contended that prior to the making of the Will of October, 2005, the deceased’s account with First Bank, Obun Eko branch, Lagos had been closed and a new one opened at Ajegunle branch, but these facts are completely missing in the Will. No evidence of this contention was led by the Appellants, as nobody was called from First Bank to testify before the lower court, with the aid of Bank documents as to when the accounts were closed and opened respectively. This allegation has also not been made out.
The Appellants herein made weighty allegations of forgery and fraud in relation to the Will of 20th October, 2005 against some named beneficiaries and the chief Executor of the Will. Even though this is a civil proceeding, the law requires the Appellants to prove the allegations of forgery and fraud beyond reasonable doubt. See section 135 (1) of the Evidence Act and the cases of APC & Anor vs. Obaseki & Ors (2021) LPELR-55004 (SC); Mohammed vs. A-G Federation (2020) LPELR-52526 (SC). The totality of the evidence adduced by the Appellants at the trial fell short of the requirement of the law and that is the reason the trial court discountenanced the Appellants’ objection and admitted the Will to probate. I see no legal basis why I should disturb the finding of the lower court that the allegation of forgery of Exhibit D3 (the Will of 20th October, 2005) has not been proved beyond reasonable doubt. In the circumstance, I resolve issue 2 against the Appellants.
Issue 3
The constitutional provisions governing the delivery of judgment after final address is in section 294 (1) and it says:
“Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
It is beyond dispute that the provision of section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) stipulated a period of 90 days within which all superior courts of record created under the Constitution shall deliver their judgment in writing and failure to comply with this mandatory provision will automatically invalidate such a judgment delivered outside the prescribed period and render it null and void. Conscious of the difficulty that this provision will create, the drafters of the Constitution introduced subsection (5) to cushion the effect and mellow down the harshness of the strict provisions of subsection (1). The said subsection (5) provides:
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
It is clear from the provisions of section 294 (5) that failure by a court to deliver judgment within 90 days from the conclusion of evidence and adoption of final addresses does not ipso facto renders such judgment automatically null and void. Such a decision shall only be set aside or treated as a nullity if the appellate court is satisfied that the Appellant has suffered a miscarriage of justice by reason of the late delivery of the judgment. In the instant case on appeal, parties adopted their final written addresses on 22/09/2016 and the court adjourned the matter for judgment on 09/12/2016. On 21/12/2016, the parties re-adopted their final addresses again and judgment was delivered on 20/02/2017. There must be a genuine reason for reopening a case after the adoption of final addresses for counsel to address the court on grey areas of an issue raised suo motu by the court. But, a court cannot reopen a case after final addresses for the sole purpose of extending the time within which to deliver judgment outside the period allowed by the Constitution. That practice has been deprecated over time. There is no rule, substantive or procedural, that permits re-adoption of final addresses. In the present case, the court merely asked learned counsel for the parties to re-adopt their respective final addresses without raising any new issue upon which counsel were to address the court. Ultimately, the judgment was delivered five months after the adoption of final addresses. The question now is whether the two months delay in the delivery of judgment has occasioned miscarriage of justice. I have stated supra that the onus of showing that miscarriage of justice has been occasioned is on the Appellants. In attempting to discharge the onus, learned counsel for the Appellants listed, in his Brief of Argument, some issues which he said were either not considered by the lower court or where misapplied. I have carefully looked at the areas highlighted by learned counsel vis-à-vis the judgment of the lower court at pages 1757 – 1791 of the Record and find as follows:
I note that the facts listed by the Appellants in their Brief of Argument as either not been considered or misapplied by the lower court are facts the Appellants listed in paragraph 57 of their defence as constituting the particulars of forgery. I have in my consideration of issue 2 dealt with those matters as testified to by DW6 and found that the allegations of fraud and forgery have not been proved. The learned trial Judge has, in my view, painstakingly gone through the numerous issues and allegations raised by the Appellants against the admission of the 20th October, 2005 Will to probate and found the allegations not proved. In her judgment, the learned trial Judge exhibited a full grasp and mastery of the facts of the case that all the material issues raised therein were fully attended to and appropriately addressed. The allegation of miscarriage of justice by the Appellants have not been proved, consequently, this court cannot set aside the judgment of the lower court on account of delivery of judgment outside the 90 days allowed by the Constitution. Issue 3 is resolved against the Appellants.
In the final analysis, this appeal lacks merit and is hereby dismissed. Judgment of the High Court of Lagos State in Suit No. LD/1374/2010 delivered by Hon. Justice L.A.F. Oluyemi, as varied in this judgment with respect to property No. 7 Christopher Way Surulere, Lagos, is accordingly affirmed. Parties to bear their costs of the appeal.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Victor Obaro for the Appellants
Dare Akande for the 1st -7th Respondents
Ayo Senbanjo for the 8th -11th Respondents
