Justice Chima Nweze of the Supreme Court

In the Supreme Court of Nigeria
Holden at Abuja
On Friday the 16th Day of December, 2016

Before Their Lordships

Olabode Rhodes-Vivour
Mary Peter Odili Clara
Bata Ogunbiyi Chima
Centus Nweze Amiru Sanusi
Justices, Supreme Court SC.86/2007

Between

1. Regina U. Amadi (Mrs)
2. Robert O. Emerenini
3. Obiora Amadi
4. The Probate Registrar, High Court Owerri……………… Appellants

And

1. Sophia Amadi (Mrs)
2. Augustine U. Amadi
3. Kenneth U. Amadi
……Respondents Lead Judgement delivered by Chima Centus Nweze, JSC

“Whenever there is a dispute as to a Will, the initial burden of proving the twin requirements of due execution and the subsistence of the testator’s mental capacity, must always be borne by those who propound it and not those who are contesting its validity”

Facts
The Respondents, the first wife and sons of a certain Augustine U. Amadi (deceased), instituted an action against the Appellants at the High Court of Imo State seeking amongst other reliefs, a declaration that the purported Will of the deceased which the fourth Appellant proposed to unseal and read at the Probate Registry, Owerri was not his last Will and Testament. The Appellants were the second wife of the deceased, the Executors of the said Will and the Probate Registrar of the High Court, Owerri. At the trial court, the Respondents contended that the Appellants were the Propounders of the Will; therefore, they bore the burden of proving the validity of the Will, and of opening their case first. The Appellants, on the other hand, argued that it was the Respondents who were challenging the validity of the Will, that had the burden of proving its invalidity. The trial court however, called the Respondents to open their case. At the conclusion of trial, the court delivered judgment in favour of the Appellants, holding that the Respondents failed to prove their case. Dissatisfied, the Respondents ap- pealed to the Court of Appeal. The Court of Appeal allowed the appeal and upturned the decision of the trial court. The Appellants, consequently, appealed to the Supreme Court.

Issues for Determination
At the Supreme Court, the Appellants formulated two issues for the determination of the Court, to wit: i. Whether, in view of the state of the law, the pleadings, facts and circumstances of this case, the Court of Appeal was right in concluding that the Appellants had the first onus of proof and they failed to discharge same. ii. Whether the Court of Appeal rightly set aside the judgement of the trial court, which held that the Respondents failed to prove their case and that the Will was valid. The Respondent also formulated two issues for the determination of the court, as follows: i. Whether the Court of Appeal was right that the Appellants being the Propounders of the last Will of late Chief Augustine Umunnakwe Amadi, had the primary onus of proof, and they failed to discharge the said onus. ii. Whether the Court of Appeal was right when it set aside the judgement of the trial court on the ground that the Appellants failed to prove that the Will was the valid Will of late Chief Augustine Umunnakwe Amadi. In determining the appeal, the Supreme Court adopted the issues formulated by the Respondents.

Arguments
On the first issue, the Appellants argued that probate matters, like any other civil matter, are provable in line with the rules and guidelines stipulated in the Evidence Act. They contended that the burden of proving a fact lies on the party against whom judgement will be given, if no evidence is given in respect of that fact. The Appellant relied on the case of REVERE WARDA VERE-WARDALE v JOHNSON (1949) 2 All E.R. 250, 251 amongst other cases, in arguing that there was a presumption of validity in favour of the Will, as provided for in Order 49 Rule 20 of the High Court of Imo State (Civil Procedure) Rules, 1988. By the provisions of this Rule of Court, the duty of the Court is to exam- ine the Will, to see whether it appears to have been duly executed, and whether the attestation clause states that the Will has been executed in accordance with the law. They maintained that once the Will, on its face, seems to have complied with the law as to form, it is valid without further assurance, until the contrary is proved. Counsel to the Appellants argued that, the Appellants had no burden of proving that which had already been presumed in their favour, and it is a misconception that a Propounder of a Will has the first burden of proving its validity.

The Respondents, on the other hand, argued that in civil cases, the burden of proving the existence or non-existence of a fact, lies on the party against whom judgement would be given, if no evidence were produced on either side, regard being had to any presumption that may arise in the pleadings. With particular reference to Wills, the Respondents espoused that the onus lies, in every case, on the party propounding the Will. Such a party must satisfy the Court that the instrument is the last Will of a free and capable testator. When the primary onus is discharged, then the secondary onus of prov- ing the allegation of fraud, lack of proper execution or forgery, then shifts to the party challenging the Will. Counsel for the Respondents cited the case of OKELOLA v BOYLE (1998) 2 NWLR (Pt. 539) 533, 549 amongst other cases in support of his argument. The Respondents stated that from the state of the pleadings, the Appellants were the Propounders of the Will, and the burden of proving the validity of the Will rested on them.

On the second issue, the Appellants argued that the Will, on its face, showed an intimate, detailed knowledge of the testator’s dependants and property. It evidenced the testator’s equity and fairness, which could not have emanated from a deluded mind. Counsel for the Appellants, also observed that the attestation clause in the Will spoke for itself that the provisions of section 9 of the Wills Act, was complied with. Even though the Respondents contended at the lower courts that the deceased did not hold himself out to be Augustine Umunnakwe Duruaku Amadi as stated in the Will, the fact that one of the Appel- lants’ witness at the trial court who had known the deceased over a long period of time referred to him variously as Augustine Umunnakwe Amadi and Augustine Umunnakwe Duruaku Amadi ought to establish that the two names referred to the same person.

On the other hand, the Respondents argued that there was no due execution of the Will as stipulated by the law. First, the 2nd Respondent, as witness before the lower court gave unchallenged evidence that the signature on the Will was not the deceased’s signature. Second, the witnesses to the supposed execution by the deceased neither identified the signature on the Will as that of the deceased, nor testified to the fact that the deceased appended his signature in their presence, at the trial court. They merely identified their own signatures. He reiterated, that where evidence given by a party is not chal- lenged under cross-examination by the other party who had the opportunity to do so, the court seized of the matter, has a duty to act on it.

Court’s Rationale and Judgement
On the first issue, the Supreme Court held that, the burden of proof on pleadings rests on any party, whether plaintiff or defendant, who substantially as- serts the affirmative of an issue. The Court also relied on the authority of OKELOLA v BOYLE (supra) to hold that whenever there is a dispute as to a Will, the initial burden of proving the twin require- ments of due execution and the subsistence of the testator’s mental capacity, must always be borne by those who propound it, and not those who are contesting its validity. The court stated that the Respondents made negative assertions at the trial, to the effect that the late A.U. Amadi left no Will or in the alternative, that there was no valid Will of A.U. Amadi. The Appellants on the other hand pleaded the opposite, that the purported Will was the valid Will of A.U. Amadi and that it had complied with the conditions for its validity. In upholding the decision of the Court of Appeal, the Supreme Court held that the Appellants had the initial burden of proving that the purported Will was duly executed, and that the deceased had the necessary mental capacity, before the burden of proving that the Will was not duly executed, or that the deceased lacked the mental capacity, would then shift to the Respondents. On the second issue, the Supreme Court held that as a testamentary document, there was need for proof of due execution and validity of the Will.

The Appellants needed to have proved by evidence, that the purported Will of the deceased was read to the deceased, before he appended his signature. They also needed to prove the state of mental and physical health of the deceased. The Appellants’ witnesses who attested to the Will, failed to give evidence at trial that the signature on the purported Will was that of the deceased which was signed in their presence.

Similarly, they failed to testify that they signed in each other’s presence. Further, the Appel- lants failed to prove the identity of the deceased, as the supposed testator in that the name A.U.D. Amadi as stated on the Will is the same as A.U. Amadi. In upholding the decision of the Court of Appeal, the Supreme Court concluded that with these pieces of evidence lacking from the Appellants, the conclu- sion of the trial court upholding the validity of the purported Will, was perverse.

Appeal Dismissed.

Representation: Chidi R. Nworka for the Appellants Ben Osaka for the Respondents.
Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))

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