ODUTOLA & ORS. v. MABOGUNJE & ORS (2013)

In The Supreme Court of Nigeria

On Friday, the 25th day of January, 2013

SC.47/2007

Before Their Lordships

MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Supreme Court of Nigeria

BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria

STANLEY SHENKO ALAGOA Justice of The Supreme Court of Nigeria


Between

1. MR.ADEMOLA ADEWUNMI ODUTOLA
2. MADAM OLAYIDE ODUTOLA
3. CHIEF (MRS) ADEBISIOLA OKUPE
4. CHIEF (MRS) FOLORUNSO ADEUJA
5. DR. ABISOYE ODUTOLA
6. MR. ADEBOYE ODUTOLA
7. MR. OLUFEMI ODUTOLA
8. MR. ADEREMI ODUTOLA
9. MR. ADEGBOLA ODUTOLA
10. OLADELE ODUTOLA
11. MISS ADETUTU ODUTOLA
12. MISS ADERONKE ODUTOLA
APPELLANTS/CROSS-RESPONDENTS –Appellants

AND

1. PROFESSOR AKIN MABOGUNJE
2. CHIEF AMUSA BEYIOKE ADEBOWALE (DECEASED)
3. PROF. (MRS.) OYINADE ODUTOLA-OLURIN
RESPONDESNTS/CROSS-APPELLANTS

4. MISS. ADEJUMOKE ODUTOLA
5. CHIEF BABATUNDE BENSON
RESPONDENTS/CROSS-RESPONDENTS- Respondents

…………………….A…………………….

BODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): The appellants/cross respondents as plaintiffs sued the 1st, 2nd and 3rd respondents/cross appellants as defendants before an Abeokute High Court.The claim as endorsed on the Writ of Summon reads:
The plaintiffs claim as the lawful children and persons entitled in the event of an intestacy to share in the Estate of Chief Timothy Adeola Odutola late, of Onibudo House Odutola Street, Ijebu-Ode who died on the 13th of April, 1995 to have the probate of a pretended WILL and CODICIL thereto of the said deceased dated 23rd of November 1993 and 14th March, 1994 respectively granted on the 27th day of November, 1995 revoked and the said WILL pronounced against and to have a grant of Letters of Administration of the estate of the deceased.ALTERNATIVELY:
The plaintiffs as shareholders of Odutala Holdings Ltd claim a declaration that paragraphs 42, 77, 78, 79, 80, 83, 86, 87, 88 of the purported WILL dated 23rd of November, 1993 are null and void being matters not within the testamentary power of Chief Timothy Adeola Odutola deceased.

And in paragraph 9 of the amended statement of claim the plaintiffs claimed:
“That the court shall revoke the said grant of probate and pronounce against the force and validity of the alleged WILL and CODICIL and to have Letters of Administration of the estate of the deceased.

The 1st, 2nd and 3rd respondents/cross-appellants filed a joint statement of defence and counterclaim. Paragraph 12 of their amended statement of defence and counter-claim reads:
“By way of counter-claim the defendants’ say that the deceased made and duly executed his last WILL dated 23rd November, 1993 and therein named the 1st, 2nd, 3rd and 4th defendants as executors and executrix and Codicil dated 14th March, 1994.”

Delano CJ Ogun State (as he then was) presided. In the course of trial there was an interpartes hearing at the instance of the plaintiffs for fees of counsel to be paid out of the estate of the deceased. The application was granted. Trial commenced on the 8th day of December, 1998 with the case of the defendants. It is well settled that in probate action of this kind the onus is on the propounder of the WILL and in this case the defendants. See
Adebajo v. Adebajo 1973 8 NSCC p.204.
The learned trial judge was right to commence proceedings with evidence of the defendants. The defendants called sixteen witnesses while the plaintiff called only one witness. A total of sixty-one documents were admitted as exhibits. At the conclusion of trial the learned Chief Judge allowed the claim and dismissed the counter-claim in his judgment delivered on the 24th day of May, 2000 in these words:
“In the circumstances, the defendants have failed to dislodge the suspicion of the court that the testator, Chief Timothy Adeola Odutola, Ogbeni-Oja of Ijebu – Ode made the WILL and the CODICIL dated November 23, 1993 and March 14, 1994 respectively.
In the circumstance, the Probate of the WILL dated November 23, 1993 and the CODICIL dated March, 14 1994 and granted on November 27, 1993 is hereby revoked and therefore pronounce against the force and validity of the said WILL and CODICIL. Consequently, Letters of Administration of the estate of the deceased, Chief Timothy Adeola Odutola is hereby granted.”
The defendants lodged an appeal. The judgment of the trial court was upset on appeal. The Court of Appeal had this to say:
“…I hold that the deceased duly executed the WILL and CODICIL, he had the necessary mental capacity so to do the WILL and CODICIL were validly made and same were properly admitted to probate. The judgment of the lower court by which the WILL and CODICIL were revoked is hereby set aside. In its place I enter judgment dismissing the plaintiffs’ claim and allowing the counter-claim by pronouncing in solemn form in favour of the WILL and CODICIL dated 23rd November, 1993 and 14th March, 1994 respectively. I assess the costs of this appeal at N10,000 in favour of the appellants against the respondents.
This appeal is against that judgment. In accordance with Rules of this court briefs were filed and exchanged. Learned counsel for the appellants’ Mr. R. Seriki filed an amended appellants brief on the 2nd of June 2011, a reply brief on the 31st of January 2011 and the 1st to 12th cross-respondents amended brief on the 4th of May 2012.
Learned counsel for the 1st, 2nd and 3rd respondents Mr. B. A. Aiku, SAN filed a 1st, 2nd and 3rd respondents brief on the 17th of February 2010, a cross appellants amended brief on the 3rd of January, 2012 a reply to cross respondents brief filed on the 3rd of January 2012, and a Notice of Preliminary objection filed on the 24th of January 2012.
Learned counsel for the 4th and 5th respondents Mr. O. Fabunmi filed a 4th and 5th respondents brief deemed duly filed on the 30th of May 2012, and a 4th and 5th cross-respondents brief on the 8th of June, 2012.
Learned counsel for the 1st, 2nd and 3rd respondents did not incorporate argument in favour of his preliminary objection in his brief, neither did he move it when this appeal was heard on the 29th of October 2012, and learned counsel for the 4th and 5th respondents did not file a response. In the circumstances the preliminary objection is deemed abandoned and it is accordingly dismissed.
I now turn to consider the main appeal

Learned counsel for the appellants’ formulated four issues for determination. They 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 late Chief Timothy Adeola Odutola had testamentary capacity at the time he purportedly made

…………………….B…………………….

Exhibits A and A1.
2. 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).
3. 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 acknowledge 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.
4. Whether the learned justices of the Court of Appeal were right in holding that by necessary implication from the 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 forced which allegation had to be proved beyond reasonable doubt.

Learned counsel for the 1st, 2nd and 3rd respondents formulated three issues. They are:
1. Whether the learned justices of the Court of Appeal were not right in re-evaluating the totality of the evidence adduced before the trial court and arriving at the conclusion that the trial judge was in error when he found that the testator did not execute Exhibits A and A1 and that if he did, he did not have the requisite testamentary capacity to do so.
2. Whether the learned justices of the Court of Appeal were not right in holding that the appellants had failed to discharge the onus of proving that the sound disposing mind of the deceased testator which they acknowledged to have existed up to 8th of April, 1993 no longer existed as at the time of the making of Exhibits A and A1 in November, 1993 and March, 1994.
3. Whether the learned justices of the Court of Appeal were not right in holding that the contention of the appellants that the testator did not execute the WILL and CODICIL, Exhibits A and A1 amounted to an allegation of forgery, which had to be proved beyond reasonable doubt.

Learned counsel for the 4th and 5th respondents also formulated three issues. They are:
1. Whether the Court of Appeal was right in re-evaluating the evidence adduced at the trial court and holding that the deceased had testamentary capacity to make exhibits A and A1.
2. Whether the learned justices of the Court of Appeal were right in holding that the (plaintiffs) appellants failed to discharge the onus of proving that the sound disposing mind of the deceased which they acknowledge to have existed up to 18th of April, 1993 no longer existed as at the time of making, exhibit A and A1.
3. Whether the Court of Appeal was right to have held that the contention of the appellants that the deceased during his life time did not execute the WILL and CODICIL, exhibits A and A1 amounted to an allegation of forgery which had to be proved beyond reasonable doubt.

Resolving the appeal would entail examining the re-evaluation of evidence undertaken by the Court of Appeal to see if the learned chief judge’s evaluation of evidence was flawed. A comprehensive evaluation of evidence ought to address questions such as whether the deceased made the WILL and CODICIL. Whether the testamentary capacity of the deceased was considered and whether the burden and standard of proof was attained. After a diligent examination of the issues presented by learned counsel for the parties I am satisfied that the appellants Issues 1 and 2 are adequate to determine the appeal.

ISSUE 1
Whether the learned justice 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 late Chief Timothy Adeola Odutola had testamentary capacity at the time he purportedly made Exhibit A and A1.

ISSUE 2
Whether the learned justice 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 Exhibits A and A1. (WILL and CODICIL dated 23rd November 1993 and 14th of March, 1994 respectively).

Learned counsel for the appellants’ observed that the trial court made an extensive review of all the oral and documentary evidence before making its findings, contending that the trial courts findings was on credibility of the witnesses and where it rejected the evidence of a witness it stated its reasons for doing so. Learned counsel submitted that the findings of fact made by the trial court on the testamentary capacity were based on proper evaluation of the evidence before the court. Reliance was placed on Okelola. v. Boyle 1998 2 NWLR pt.539 p.533
Board of Customs v. Barau 1982 13 NSCC p.358
Asanya v. The State 1991 3 NWLR pt.180 p.422

On the testamentary capacity of the late Chief Timothy Adeola Odutola learned counsel observed that the learned Chief Judge undertook a careful, and thorough analysis of the evidence of DW4, DW10, DW13 and Exhibit M and concluded that the medical evidence of the said witnesses lacked credibility and so the deceased lacked testamentary capacity. He observed that the learned trial judge did a thorough evaluation of the evidence adduced by the defendants witnesses and the plaintiff witness before arriving at the conclusion that the late Chief Timothy Adeola Odutola lacked testamentary capacity to make the WILL and CODICIL dated 23/11/93 and 14/3/94 respectively. Furthermore, he observed that exhibit J-J3, N-N1, O-O3 and P cannot constitute proof of the alleged sound mental capacity of the deceased in November, 1993 and April, 1994 when the WLL and CODICIL were allegedly made. On the signature of the deceased on exhibits A and A1 learned

…………………….C…………………….

counsel observed that since the issue of the deceased signature was on the basis of the credibility of the defence witnesses the Court of Appeal was not entitled to interfere with the decision of the trial court. Finally he submitted that the failure of the defendants to call a handwriting expert as a witness to give evidence on the purported signature of the deceased ought to have been resolved in favour of the appellants by the Court of Appeal.
Finally he submitted that the onus of proving that a testator has testamentary capacity lies on the propounder of the WILL contending that it is only when the propounder of the WILL has adduced prima facie evidence to establish this fact that the onus shifts on the challenger of the WILL to prove allegations against the WILL. Reference was made to Okelola v. Boyle 1998 2 NWLR pt.539 p.548.
Concluding he submitted that the respondents failed to prove that the deceased had testamentary capacity and so the appellants had no obligation to prove the contrary. He urged the Honourable Court to allow the appeal.
On the issue of the signature of the deceased on exhibits A and A1 learned counsel for the 1st, 2nd and 3rd respondents observed that the Court of Appeal examined exhibits E, E1, F – F3, J-J3, N-N1, V-V9 and W, documents that all bore the undisputed authentic signature of the testator and compared them with the disputed signature on exhibits A and A1 contending that if the trial judge had done so he would have come to the conclusion that the testator signed exhibits A and A1.
On the testamentary capacity of the late Chief Timothy Adeola Odutola learned counsel observed that the learned Chief Judge had embarked on a selective consideration of evidence led, particularly exhibit M. He observed that the learned trial judge failed to consider exhibit M, the evidence of DW16, exhibits J-J3, O, O1, O2 and P, and medical evidence given by DW 4, DW10 and DW13 observing that there was no medical expert called by the appellants to contradict the respondents medical evidence yet the learned trial judge declined to ascribe probative value to their evidence, preferring instead to rely on the sole witness of the plaintiffs/appellants. He submitted that the learned trial Chief Judge ought to have married the oral evidence of the defence witnesses to the medical record of the deceased. He urged this court to affirm the findings of the Court of Appeal that though the testator was sick, he remained mentally alert.
On the onus of proof learned counsel observed that since the Court of Appeal rightly found that available evidence established that the testator had testamentary capacity, the onus of proving lack of testamentary capacity shifted to the appellants and the onus was not discharged. Finally he observed that the Court of Appeal was correct in re-evaluating the evidence and coming to the finding that the trial court failed in its duty of evaluating the legal evidence on record.
Learned counsel for the 4th and 5th respondents observed that the Court of Appeal erred in law to re-evaluate the evidence that was before the trial court, contending that the learned trial judge followed the proper procedure in evaluating evidence before arriving at his decision.
On the issue of the testators signature on exhibits A and A1 learned counsel submitted that the learned trial Chief Judge was right to observe that a handwriting expect would have been conclusive on that issue. Relying on Kwajaffa & ors. v. Bank of North 2004 MJSC p.106.
He observed that the learned trial Chief Judge in his appraisal of the evidence considered the evidence and weighed all evidence on all imaginary scale and came to the right decision. He urged this court to set aside the judgment of the Court of Appeal and restore the judgment of the trial court.
Both issues shall be taken together. Chief Timothy Adeola Odutola died on the 13th day of April, 1995. On the 2nd day of September, 1981 at the age of 79 years he had an apoplectic stroke. On the 23rd day of November 1993 he made a WILL and a CODICIL on the 14th day at March 1994. The Court of Appeal re-evaluated evidence to find out if the trial court was correct in its findings that the late Chief Timothy Adeola Odutola, the testator as a result of ill health, his mental alertness was affected and so did not have testamentary capacity to make the WILL and CODICIL dated 23rd day of November 1993 and 14th day of March, 1994 respectively.
In proof of their case the prepounders of the WILL i.e. those who assert that the WILL is genuine called sixteen witnesses and tendered several exhibits to wit: exhibits A, A1 E, E1, F, F1, F2, F3, G, H, H45, J, J1, J2, J3, K-K4, L-L8, N and N1 while the plaintiffs/ appellant called only one witness and did not tender any exhibit. It is now the duty of this court to see if evaluation by the learned Chief Judge was flawed, and if the Court of Appeal was right to evaluate evidence and whether their subsequent findings were correct.
It is long settled that it is the duty of the trial court to receive all relevant and admissible evidence. That is perception. The next duty is to weigh the evidence received from both sides and decide where the scale tilts on qualitative and compelling evidence. That is evaluation. A finding of fact involves both perception and evaluation. It is not the duty of the appeal court to evaluate evidence. This is the primary responsibility of the trial court. But where the trial court fails to evaluate evidence properly the appeal court is duty bound to re-evaluate evidence and make correct findings of its own. Where evaluation of evidence entails issues of credibility of witnesses the appeal court should be reluctant to differ from a trial judge’s findings of fact based on credibility of witnesses. This is so because the trial judge had the opportunity which an appeal court never had of hearing and watching the demeanour of witnesses as they testify. The trial court is obviously best suited to assess a witness credibility. But where the findings are based on drawing inferences and making findings from admitted and established facts and documentary evidence, an appeal court is in as good a position to evaluate the evidence as the trial court. See
Eya & 2 ors v. Olapade & anor 2011 5 SC pt.11 p.37
CPC v. INEC & 41 ors 2011 12 SC p.vp.80
Eyo v. Onuoha 2011 2-3 SC pt.1 p.220
Ayuya & 4 ors v. Yonrin & 3 ors 2011 4 SC pt.11 p.1.
On the signature at the testator on exhibits A and A1 the Court at Appeal said:
“I have therefore carefully carried out the necessary examination and comparison and I cannot fancy any distinguishing

…………………….D…………………….

feature whatsoever in the undisputed signature of late Chief Timothy Adeola Odutola in exhibits E, F-F3 and J-J3 and that in the disputed exhibits A-A1. The only reasonable conclusion therefore is that the undisputed signature and the disputed one are by one and the same person, late Chief Timothy Adeola Odutola.

An expert on handwriting may give his opinion on a disputed signature or writing but the final decision on the issue is made by the judge. In this case the learned justices of the Court of Appeal quite rightly in my view compared the signature at the testator on exhibits E, E1, F-F3, J-J3 with the disputed signature of the testator on exhibits A-A1 and found that the undisputed signature and the disputed one are by one and the same person, late Chief Timothy Adeola Odutola. After personally examining the documents, there is no doubt in my mind that the Court of Appeal is correct. Also the plaintiff/appellants were unable with their sole witness to show findings to the contrary.
On the testamentary capacity of the testator at the time of making the WILL and CODICIL. In evaluating evidence the Court of Appeal examined the evidence of DW4, DW10 and DW13, medical doctors who treated the testator at one time or the other after he had a stroke. Documentary evidence to wit: exhibits J-J3, M, O, O1, O2, P. The exercise was to determine whether the testator’s health was impaired around the period 23/11/93 and 14/3/94 when he made the WILL and CODICIL respectively. That is to say whether the testator had testamentary capacity. The issue is whether oral and documentary evidence were dispassionately considered. The Court of Appeal observed that DW4 a Medical Doctor visited the deceased at his homes to take care of him twice a week from January 1994 to about a week of his death on 13/4/95 and each time she visited him she took his vital signs. The relevant portion of her evidence on the issue of the deceased mental capacity runs thus:
“During the period, the vital signs were normal. I normally had discussion with him any time I visited him. I was always satisfied with the answers he gave me as a rational being. During this period the state of his health was O.K. His memory was “intact”. He was able to appreciate recent events around him. He understood the questions I asked him.”

DW4’s also said:
“The right arm and the right leg were affected by the stroke. The stroke was partial paralysis.

DW10 Prof Ayodele Olajide Falase treated the deceased from 1981 to 1990 when he handed over to Dr. Ogunniyi. Part of his evidence-in-Chief reads:
“He was in the hospital for three months I attended to him throughout the three months. The stroke did not completely paralyse the arm and the right leg….The stroke did not damage his thinking faculty. He was able to read…”
He continued:
“I was out of the country after 1990. I returned to the country in December 1994…when I asked my colleague about his health, he said “status quo” meaning that medically his condition remained as it was when I left the country.”

DW13 a Medical Doctor and specialist in neurology treated the deceased from June of 1990 to January, 1995 and made entries in exhibits M. His evidence reads:
“I found that he was weak in his right arm and leg compared with the left. This was due to lessen in his left side of his brain. Lessen means injury. The injury was around THALAMUS. That was a result of the stroke…And his answer to question were appropriate relevant to the circumstances of his health, he was coherent. He gave relevant medical information.
DW13 gave further evidence on the effect of the stroke on the brain and thinking faculty of the deceased. Extracts from his evidence runs as follows:
“…the frontal lobe and temporal lobe control the mind. The temporal lobe was not injured. He was reading diaries with his glasses. Only the left THALAMUS that was affected by the injury. There was no impairment of his brain function sufficient to disturb his activities….His ability to think and discuss was normal….. His mental alertness was normal.”
DW5, 7 and 16 also testified favourably to the mental capacity of the testator.
On the side of the plaintiffs/appellants their sole witness, Mrs Folorunso Adeola Adeuja said:
“He had a stroke in 1981, by May 1993 and April, 1994 the condition had deteriorated. He could not do anything of his own, he had to be fed by one of the two young women….He had to be provided with electric chair…”

The Court of Appeal then considered entries in exhibit M and other relevant documents. The entries in exhibit M on the condition of the testator as at 17th March 1994 (three days after the execution of the CODICIL, exhibit A1) was as follows:
“Reviewed
Doing well. Complained of Stiffness on the right side. Could not walk but did well on physio including co-ordination and digital functions, looks drowsing though very lucid.
The conclusion of the Court of Appeal on the above was that although the testator could not walk, he was generally doing well and very lucid. The Court of Appeal examined several relevant exhibits to wit: Exhibits J-J3, M, O, O1, O2 and P and observed as follows:
It is to be noted that PW1 (the only) witness for the plaintiff/appellants) made no attempt to meet the specific allegation about the financial benefit she sought and obtained from the deceased in her evidence in chief and when she was confronted in cross-examination her response was demonstrably evasive. And yet she was the only witness of truth in the assessment of the learned trial chief judge.
The Court of Appeal continued:

…………………….E…………………….

“He was with respect so generously fascinated by the case of the plaintiffs that every piece of evidence from her earned his credibility whilst evidence from or in favour of the defence no matter how credible it appeared, either earned no probative value or deserved no attention at all. This attitude of his, understandably, prompted the appellants allegation of bias against him.
The Court at Appeal further observed that the learned trial chief judge failed to consider exhibits J-J3 and P, very important on the testators testamentary capacity, so also were exhibit O, O1. These documents show the mental alertness of the testator. Concluding the Court of Appeal observed that the case of the plaintiffs pleaded in paragraph 5(i), (ix) and (x) of the amended statement of claim is that as a result of the stroke he suffered on 2/9/81 the deceased had lost memory and was not and could not have been in a position to appreciate the making of the WILL and CODICIL. The court continued:
It follows that exhibits O, O1 and P by which the plaintiffs acknowledged or impliedly admitted the deceased’s mental capacity is at variance with their case and consistent with the case of the defence. Moreover if by exhibit P and other related exhibits made about 12 years after the stroke the plaintiff held out the deceased as being of sound testamentary capacity…”

To my mind and as quite as quite rightly pointed out by the Court of Appeal the law presumes that the state of the deceased mental capacity would continue until and unless the contrary is proved, and the onus is clearly on the plaintiff to prove that the sound disposing mind of the deceased, the plaintiffs acknowledged to have existed up to 8/4/93 no longer existed at the time the WILL and CODICIL were made some months later. This is premised on the position of the law, that the law presumes that a state of things shown to exist continues to exist unless the contrary is proved.

When documentary evidence supports oral evidence, oral evidence becomes more credible See. Kindley v. M.G. Gongola State 1988 2 NWLR pt.77 p.473.
The reasoning being that documentary evidence serves as a hanger from which to assess oral testimony. See further Omoregbe v. Lawani 1980 3 – 4 SC p.117.
There can be no doubt after examining oral testimony and documentary evidence on the issue of the testators testamentary capacity or sound mind it is clear that the testator had physical challenges as a result of the stroke but his mind was at no time impaired. The oral testimony of the medical doctors, the 4th, 5th, 13th and 16th defence witnesses, the testimony of PW1, the entries in exhibit M, portions favourable to the defence but were disregarded and exhibits J-J3, N-N1, O-O3 and P completely ignored by the trial court established to my satisfaction that although Chief Timonthy Adeola Odutola had a stroke in 1981 which affected the right side of his body he was always mentally alert and so of sound disposing mind at the time he made the WILL and CODICIL. His physical ailment did not in any manner compromise his mental faculties.
Finally my lords, DW15 is Dr Adesola Ogunniyi a specialist neurologist. He also treated the deceased during the period in question. His evidence alluded to in this judgment is that though Chief T. A. Odutola had a stroke his mind/mental capacity was not impaired. This evidence can only be dislodged by another neurologist and not the sole witness of the appellant who is not learned in that field. Evidence of DW13 is very compelling and conclusive since it was supported by documentary evidence. The evidence of a neurologist (DW13) remains unchallenged. In the absence of contrary evidence it becomes very safe to conclude that Chief T. A. Odutola’s mental capacity was not impaired by the stroke he suffered.
The onus of proof shifted to the plaintiff/appellants as the evidence led was supported by WILLLIAMS ON WILL 8th Edition Chapter 4 at page 39 which states:
“That the law presumes that a state of things shown to exist continues to exist unless the contrary is prove.”
My lords since it has been established that the testator had testamentary capacity the onus of proving lack of testamentary capacity shifted to the appellants and the onus was never discharged by them. Section 149 (b) of the Evidence Act as to presumption of continuance is instructive.
The Court of Appeal was right to evaluate evidence moreso since the trial court failed to evaluate vital documentary evidence. In the final analysis it becomes abundantly clear after evaluation of evidence especially documents that the trial court disregarded that the testator had a sound mind notwithstanding the devastating effect of the stroke he had in 1981. Accordingly the judgment of the Court of Appeal is affirmed and the appeal dismissed. No order on costs.

CROSS APPEAL
Learned counsel for the 1st, 2nd and 3rd respondents/cross-appellants formulated two issues for determination in the cross-appellants amended brief. It reads:
1. Whether the Court of Appeal was right when it failed to consider and pronounce on issues Nos 10 and 12 formulated by defendants/appellants. From grounds 22, 23, 25, 26 and 28 of the further amended notice of appeal and when in reformulating issues the court completely ignored the said five grounds of appeal

2. Whether the Court of Appeal was right in holding that the 3rd issue for consideration formulated by the court became merely academic and did not deserve any consideration and thereby refrained from making pronouncement on it.

Learned counsel for the 1st to 12th appellants/cross respondents also formulated two issues for determination. They are:
1. Whether the learned justices of the Court of Appeal were obliged to pronounce on the issues for determination

…………………….F…………………….

formulated by the cross-appellants counsel when the Court of Appeal in its judgment had formulated its own issues for determination and pronounced on same.
2. Whether the learned justices of the Court of Appeal were right in holding that the third issue for determination formulated by their lordships became merely academic and did not deserve any deliberation in the appeal.

Learned counsel for the 4th and 5th cross-respondents adopted the two issues formulated for determination by the 1st to 12th appellants’ cross-respondents.
The issues in this appeal have to do with the formulation of issues for determination by the learned justices of the Court of Appeal and the order to pay legal fees out of the Estate to counsel who appeared in the case.
Accordingly the 1st, 2nd and 3rd respondent/cross-appellants issues shall be considered in this cross-appeal.

ISSUE 1
Whether the Court of Appeal was right when it failed to consider and pronounce on issues nos. 10 and 12 formulated by defendants/appellants from grounds 22, 23, 25, 26 and 28 for the further amended notice of appeal and when in reformulating issues the court completely ignored the said five grounds of appeal.
Learned counsel for the 1st, 2nd and 3rd respondents cross appellants observed that in reformulating issues for determination the Court of Appeal completely ignored grounds 22, 23, 25, 26 and 28 of the grounds of appeal and failed to make any pronouncement on issues nos. 10, 11 and 12. Relying on
Brawal Shipping Ltd v. Onwudike 1990 11 NWLR pt. 678 p.387.
He observed that the Supreme Court demands that lower courts pronounce on all issues properly placed before them. Concluding he urged this court to exercise its powers under section 22 of the Supreme Court Act and consider the issues which the Court of Appeal refused to consider and make pronouncements on them.
Learned counsel for the 1st to 12th appellants/cross-respondents observed that the Court of Appeal was right in refusing to consider issues for determination formulated by the cross-appellants from grounds 22, 23, 25, 26 and 28 of the grounds appeal contending that the said grounds are invalid as they do not relate or arise from the judgment of the trial court, further contending that no valid issue for determination could have been formulated by the justices of the Court of Appeal from the aforesaid grounds of appeal. Reference was made to
Okpala v. Okafor 1991 7 NWLR pt.204 p.510
Sha v. Kwan 2000 8 NWLR pt.670 p.710

Learned counsel for the 4th and 5th cross-respondents observed that an appeal court should consider all the issues put forward for determination by the parties, but that does not preclude an appeal court where possible, to compress and merge the issues together for the neater, effective and easier determination of the case before it. Reliance was placed on
Ogbunayinya v. Okudo (No.2) (1990) 4 NWLR pt.146 p.551
Bankole v. Pelu 1991 8 NWLR pt.221 p.523

He urged this court to dismiss the cross-appeal.
By the judgment of the trial court the Will dated 23/11/1993 and the CODICIL dated 14/3/1994 granted on 27/11/1993 were revoked and Letters of Administration of the Estate of the deceased, Chief Timothy Adeola Odutola was granted.
The duty of the Court of Appeal was to find out if that judgment was flawed, and that exercise entailed re-evaluation of evidence to see it the learned trial Chief Judge’s findings were correct.
In the Court of Appeal, the cross-appellants were the appellants. They formulated 12 issues for determination from their grounds of appeal while the cross-respondents formulated four issues for determination. After examining the numerous grounds of appeal and the issues formulated from them the learned justices of appeal were quite rightly of the view that only three issues are relevant to resolve the appeal. They were:
1. Whether the trial court was right in holding (as he did) that the deceased died intestate.
2. Whether having regard to the nature of the claim, the counter-claim, the pleadings and evidence before the court, the trial court was right in granting the claim and dismissing the counter-claim.
3. Whether the trial court was right making an order for the payment of counsel fees from the estate of the deceased at the interlocutory stage of the proceedings.

The well laid down position of the law is that an appeal court is free to adopt or formulate issues suo motu, provided such issues arise from valid grounds of appeal and adequately address the real grievance in the appeal. The entire exercise in reformulating issues by an appeal court is done in the interest of justice. See
Akpa v. State 1995 6 NWLR pt.248 p.439
Adedeji v. NBN 2001 35 WRN p.147
Aduku v. Adejoh 1994 5 NWLR pt.346 p.582.
After examining the grounds of appeal in the appellants’ Notice of Appeal in the Court of Appeal and the issues distilled from them, I am satisfied that the three issues on which the Court of Appeal subsequently resolved the appeal were more than adequate. All other issues are peripheral or no longer live. The Court of Appeal was correct to resolve the appeal on the three issues it formulated.

ISSUE 2
Whether the Court of Appeal was right in holding that the 3rd issue for consideration formulated by the court became merely academic and did not deserve any consideration and thereby refrained from making pronouncement on it.

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The 3rd issue formulated by the Court of Appeal reads:
“Whether the trial court was right making an order for the payment of counsel fees from the estate of the deceased at the interlocutory stage of proceedings.

This is what the Court of Appeal had to say:
“….As respect the 3rd issue of whether the trial court was right to order the payment of counsel fees out of the estate of the deceased it will be recalled that in the course of this appeal/proceedings counsel for the parties informed the court that all the counsel in the case had been paid some money from the estate of the deceased by virtue of the interlocutory order of the court. Also on the 21st of February, 2005 with the consent of all counsel for the parties including Chief Aiku, SAN this court granted an application for the payment of N5,000,000.00 out of the estate of the deceased to counsel for each set of the parties. Consequently the 3rd issue also becomes merely academic and it does not therefore deserve any deliberations in this appeal.
Learned counsel for the 1st, 2nd and 3rd respondents cross appellant, urged this court to allow the appeal because no payments were made to counsel under the interlocutory order of the High Court made on 26th February, 1998.
Learned counsel for the 1st to 12th appellants cross-respondents observed that by virtue of Summons dated 12th of January, 2005 the Court of Appeal ordered fees of counsel to be paid from the estate of the deceased, further observing that all counsel have been paid. He urged the court to dismiss the cross-appeal.
Learned counsel for the 4th and 5th respondents observed that it is no longer in dispute in this appeal that all counsel were paid their professional fees out of the estate of the testator. He urged this court to dismiss the cross appeal.
On the 26th of February 1998 after an interpartes hearing the learned trial judge ordered as follows:
i. Counsel are entitled to their fees for the application proceedings in the appointment of the administrator pendente lite from the estate of the deceased Chief Timothy Adeola Odutola.
ii. Counsel are also entitled to fifty percent, 50% of their fees now from the same estate.
iii. The payment of the balance of fifty percent fees of counsel will be determined at the end of judgment.

Learned counsel for the 1st, 2nd and 3rd respondents cross appellants observed that no payments were made to counsel under the interlocutory order made by the High Court on 26th of February 1998. After hearing counsel on a summons dated the 12th of January, 2005 on the issue of payment of counsel legal fees from the estate of the deceased, the Court of Appeal ordered that each counsel be paid N5 Million. (see order of the Court of Appeal made on 21/2/2005 on page 26 of the supplementary Record of Appeal).
It is long settled that in probate matters such as this it is accepted practice for legal fees of counsel to be paid out of the estate of the deceased usually after counsel are heard. I am satisfied that all counsel were paid some money from the estate by virtue at the interlocutory order made by the High Court on 26th of February 1998. Also on the 21st of February 2005 the Court of Appeal, after a hearing ordered the payment of N5 Million naira from the estate as legal fees to each of the counsel who appeared in this case. The order remains inviolate in the absence of an appeal. That in effect means all the three counsel have received N5m and more. Consequently the issue of legal fees becomes academic. It is no longer a live issue, and courts should at all times restrict hearings to consideration of live issues only. See
Oyeneye v. Odugbesan 1972 4 SC p.244
Bakare v. A.C.B. Ltd 1986 3 NWLR pt.26 p.47
Bhojwani v. Bhojwani 1996 6 NWLR pt.457 p.663
Obi Odu v. Duke (No2) 2005 10 NWLR pt.932 p.120

This issue of the payment of legal fees from the estate of the deceased is an academic issue. It has been long settled.
The Cross-appeal is hereby dismissed.

MAHMUD MOHAMMED, J.S.C.:In this appeal which arose from the judgment of the Chief Judge of Ogun State, the Plaintiffs 1 – 12 are children and persons entitled in the invent of intestacy to share in the estate of Chief Timothy Adeola Odutola late who died on 13th April, 1995 and left in the Probate Registry, a Will and Codicil said to have been executed on 23rd November, 1993 and 11th March, 1994 by the deceased. The probate of the Will and Codicil was granted to the named executors of the will 1st – 3rd Defendants on 27th November, 1995. The Plaintiffs challenged the grant on the grounds that the Will and Codicil were not executed by the deceased testator who lacked the requisite testamentary capacity to do so on the dates they were executed. The 1st – 3rd Defendants/Respondents as Executors of the Will counter-claimed for order of the trial Court to pronounce in solemn form of law for the deceased Will. The Plaintiffs/Applicants also filed a motion at the trial Court for an order that fees of their Counsel be paid out of the estate of the deceased and the Court granted the application. The Ruling on the motion is now the subject of cross-appeal in this Court.
At the trial, on the state of pleadings, the evidential burden was placed on the Defendants who opened their case and called 16 witnesses and tendered several documents. However the Plaintiffs called only one witness and did not tender any document.
On 24th May, 2000, the learned trial chief Judge entered judgment for the Plaintiffs and granted their reliefs by revoking the grant of probate to the Defendants as executors of the Will and Codicil and ordered Letters of Administration to be issued to the Plaintiffs to administer the estate of the deceased. The counter-claim of the Defendants was dismissed.
The 1st, 2nd and 4th Defendants appealed to the Court of Appeal Ibadan against the judgment. The Court of Appeal in its

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judgment of 15th December, 2005 allowed the Appeal, set aside the judgment of trial Court and entered judgment dismissing the Plaintiffs’ action. The Court of Appeal also allowed the 1st, 2nd and 4th Defendant’s who were 1st, 2nd and 3rd Appellants’ counter-claim thereby pronouncing in solemn form in favour of the Will and Codicil of 23rd November, 1993 and 14th March, 1994 respectively.
The Plaintiffs who lost at the Court of Appeal Ibadan are now on appeal to this court. The 1st, 2nd and 3rd Respondents also cross-appealed against part of the judgment of Court of Appeal dealing with payment of counsel fees from the estate of the deceased.
The evidence on record is mostly documentary and even in the oral evidence of witnesses who testified in the course of the hearing, nobody said he saw the deceased signing the Will or the Codicil. Therefore the issue of credibility of witnesses on the only vital issue of signature may not even arise. So also is the evidence of the mental capacity and state of the mind of deceased cannot be assessed on credibility. It is for this reason that I am also of the view that the Court of Appeal was right to have re-evaluate the evidence as it did. The law is trite that the trial Court is best suited to evaluate and assess a witness credibility. However where the findings from such evidence are based on drawing inferences and making findings from admitted and established facts, particularly on documentary evidence, an appellate Court is in as good a position to evaluate the evidence as the trial Court. See Registered Trustees of the Apostolic Faith Mission v. James (1987) 3 N.W.L.R. (Pt. 61) 556 and Nnorodim v. Ezeani (2001) 5 N.W.L.R. (Pt. 706) 203 at 210.
It is for the above and more comprehensive reasons in the leading judgment of my learned brother Rhodes-Vivour, JSC which I was privileged to have read in draft before today and with which I entirely agree that I find myself dismissing the appeal and cross-appeal with no order on costs.

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.: I have had the opportunity of reading in draft the leading judgment read by my learned brother Rhodes-Vivour JSC. I agree that the appeal has no merit at all and that it should be dismissed. I accordingly hereby dismiss the appeal and affirmed the judgment of the lower court. His lordship leaves no stone unturn. I have nothing more to add. The cross-appeal also lacks merit same is dismiss. No order as to costs.

NWALI SYLVESTER NGWUTA, J.S.C.: My Lord, Rhodes-Vivour, JSC, CFR obliged me with a preview of his lead judgment. I entirely agree with the reasoning and conclusion therein.
At the trial court the defendants (now Respondents) as the propounders of the Will, opened their case first and fielded a total of 16 witnesses and tendered over 20 Exhibits. The witnesses included three medical doctors who testified as DW4, DW10 and DW13. Each attended to the testator on his side bed. Each testified to the mental capacity of the testator at the time of making the Will and Codicil.
The appellants, as plaintiffs in the trial court, called only one witness and tendered no exhibit.
It is trite that the success or failure of a case is not a function of the number of witnesses called by either side. It depends on the quality and cogency and relevancy of the evidence led.
Be that as it may, it does appear to me that the trial court did not weight the evidence of the parties on the imaginary scale of justice. Burden of proof is not static and it is my view that the Respondents discharged the burden on them as propounders of the Will on the totality of the evidence led by them especially Exhibits E, E1, F-F3, J-J3 which were said to be genuine signatures of the testator compared with Exhibits A-A1 and found to have been made by the same person.
At the conclusion of the case for the Respondents, the onus of proof shifted to the appellants. Did they discharge the onus? The answer is in the negative. The sum total of the evidence of the sole witness for the plaintiff is the obfuscation that “he could do nothing on his own and had to be fed by one of the two young women.”
Civil matters are decided on the preponderance of evidence. See Mogaji v. Odofin (1978) 4 SC 91; Adekunle v. Aremu (1998) 1 NWLR (Pt.533) p.208-210.
The vague assertion by the DW1 that the testator could do nothing on his own is not, by any stretch of the imagination, a challenge to the evidence led by the Respondents with particular reference to the mental capacity of the testator and his signature on Exhibits A-A1.
With profound respect to the trial Judge, an impartial and detached arbiter would have preferred and acted on unchallenged evidence led in proof of due execution of the will and codicil. See Nriri v. Erhurhobara (1991) 2 NWLR (Pt.173) 252 at 262; Leadway Assurance Co. Ltd. v. Zeco (Nig) Ltd (2004) 6 MJSC 179 at 188-189.
The ipse dixit of the DW1 that the testator was fed by one of two young women should not have been taken at face value. There should have been direct evidence of the two women who took turns in feeding the testator. The evidence of who fed the testator was withheld by the appellant which implies that no such evidence existed and if it did, it would have been fatal to the appellant’s case. See S.1.49(d) of the Evidence Act. See also Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1; Aremu v. Adetoro (2007) 16 NWLR (pt.1060) 244) 65.
A will can only be set aside on any of the following grounds: fraud, mental incapacity of the testator or undue influence. See Johnson v. Akinola Maja (1951) 13 WACA 290; Adesubakan v. Yunusa (1971) 1 All NLR 725. It can hardly be said that in proper evaluation of the evidence before the trial court any of the above vitiating factors was established by the Appellants.
On the totality of the evidence the will and codicil were ex facie duly executed and the trial Court should have pronounced for it on the principle of amnia praesumuntur rite esse acto since the Will
and Codicil are regular in form without suspicion attached to it. See Ezenwere v. Ezenwere (2003) 3 NWLR (pt.807) 238 at 248 – 249; Okelola v. Boyle (1988) 5 NWLR (pt.539) 533.
For the above and the more comprehensive and exhaustive reasoning in the lead judgment, I also dismiss the appeal as

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well as the cross-appeal. I affirm the judgment of the lower court setting aside the judgment of the trial Court.

STANLEY SHENKO ALAGOA, J.S.C.: The primary duty of a Judge called upon to adjudicate on a matter between contending parties is to always strive to maintain balance. Like the referee on a football pitch he should be ready to share and apportion blame and show the red and green cards firmly and equally as the need arises. He goes into the field without any clear favourites in mind so that at the end of the game he can say with a clear conscience, “I did what I was called upon to do without fear or favour. I am convinced that I did my best.” That indeed in a nutshell is the whole essence in the art or science of judging. Unfortunately that was not what Delano CJ (as he then was) did with the greatest respect. I am in complete agreement with the lower court in its finding that “He (the learned trial Chief Judge) was with respect so generously fascinated by the case of the plaintiffs (appellants in this appeal) that every piece of evidence from their sole witness earned his credibility whilst evidence from or in favour of the defence (respondents in this appeal) no matter how credible it appeared, either earned no probative value or deserved no attention at all…..” This is a case in which at the trial court the defendants who in proof of their claim that the WILL is genuine called sixteen witnesses and tendered many exhibits notably exhibits A, A1, E, E1, F, F1, F2, F3, G, H – H45, J, J1, J2, J3, K – K4, L – L8, N and N1 while the plaintiffs (now appellants) called only ONE witness and tendered NO exhibit.
Let me quickly say here that it has been decided in many cases that it is not the number of witnesses a party calls that determines the outcome of a case in his favour but the quality of the evidence. There is however no gainsaying that when in substantiation of its claim a party not only calls several witnesses but produces in court documents to back up its claim, such evidence should not be lightly regarded. The lower court compared exhibits E, E1, F – F3, J – J3 said to be genuine signatures of the testator with the disputed exhibits A – A1 and found that they were made by one and the same person. In trying to ascertain the testamentary capacity of the testator at the time of making the WILL, the evidence of DW 4, DW 10 and DW 13 who were medical doctors that treated the testator after he had had a stroke as well as other pieces of evidence covered by exhibits J – J3, M, O, O1, O2, P were considered by the Court of Appeal.
Of the testator’s health DW 4 who visited him twice a week at home said that during his discussions with him the testator’s answers to his questions were rational and his memory intact. DW 10 another medical doctor and Professor of medicine who also attended to him said the stroke the testator suffered from did not damage his thinking faculty and that he was even able to read. DW13 another medical doctor said his answers to questions were coherent and that his mental alertness was normal.
Apart from these pieces of evidence from medical doctors, DW5, DW7 and DW16 also testified to the mental fitness of the testator. In comparison with these favourable testimonies to the testator’s fitness and mental capacity, this is what the only witness for the present Appellants Mrs Adeola Adeuja said, “He could do nothing on his own and had to be fed by one of the two young women.” And yet that was the kind of evidence the learned trial Judge believed and relied on. Was the principle of evaluating evidence adhered to? There is a plethora of case law on the subject matter of what a trial court should take into consideration in evaluating evidence. See MOGAJI V. ODOFIN (1978) 4 SC 91 at 94 where this court said as follows:-
“In short before a Judge before whom evidence is adduced by parties in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on an imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side of the scale and weigh them together. He will then see which is heavier not by the number of witnesses called by each party but by the quality of the probative value of the testimony of those witnesses.”
The learned trial Judge Delano CJ (as he then was) chose not to avail himself of this hallowed legal principle and the Court below was in my estimation right to have evaluated the entire evidence and to come to the conclusion it did. Thus in JIMOH GARUBA V. ISIAKA YAHAYA (2007) 3 NWLR (PART 1021) 390, this Court per Ogbuagu JSC, held thus:
“It is also trite that where a trial court has failed in its duty to properly consider the evidence before it which led it to draw wrong conclusions front the evidence it accepted, the appeal court will be perfectly justified in re-evaluating and reconsidering the whole evidence in order to arrive at a just decision.”
See also HIGHERADE MARITIME SERVICES LTD v. FIRST BANK OF NIGERIA LTD (1991) 1 NWLR (PART 167) 290; ONWUKA V. OMOGUI (1992) 3 NWLR (PART 230) 393; EBBA V. OGODO (1984) 1 SCNJ 372; OKUOTA V. ISHOLA (1982) 7 SC 314 at 349.
I could go on and on but my learned brother Bode Rhodes-Vivour, JSC, who wrote the lead judgment has said it all. I was privileged to read the lead judgment before now and I agree with him entirely. I too dismiss the appeal and affirm the judgment of the lower court. I adopt his conclusions on the Cross Appeal and order on costs.

Appearances

R. Seriki for the Appellants/Cross-Respondents. For Appellant

AND

Chief B. A. Aiku, SAN for the 1st, 2nd and 3rd Respondents/Cross-Appellants. With him
Dr. B. A. M. Ajibade
O. O. Olowokare
B. Gabari (Mrs.)
F. Owolana (Mrs.)

O. Fabunmi for the 4th and 5th Respondents
J. Agun with him. For Respondent.

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