➥ CASE SUMMARY OF:
Morayo Odunewu V. Risikat Martins & Ors (2010)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Will;
Signature.
➥ CASE FACT/HISTORY
The appellant as plaintiff sued the respondents on an amended Writ of summons and amended Statement of Claim:-
(a) That the court shall pronounce for the force and validity of the said will in Solemn form of Law (i.e. the last Will and Testament of Alhaji Abdul Fatai Adio odunewu who died on 30th October, 1990.)
(b) Removal of the caveat by the first defendants.
(c) An order compelling the Probate Registrar, High Court.
Lagos State to issue a grant of Probate for the administration of the Estate of the late Alhaji Abdul Adio Odunewu to the plaintiff.
The 1st to 5th respondents filed a statement of defence. The 6th respondent did not file a statement of defence and did not take part in the trial.
Seven witnesses testified for the plaintiff and the plaintiff was one of them, while the 2nd respondent and two others testified for the defence. Ten documents were admitted as Exhibits.
The facts are refreshingly clear.
On the 30th day of October, 1990 Alhaji Abdul Fatai Adio Odunewu died. The plaintiff claimed to be the Sole Trustee and Executrix named in her late husbands Will.
The 1st to 5th respondents averred that the Will is a forgery as the signature on it is not the signature of the deceased. Silva J. (as he then was) agreed with the respondents, and in a well considered judgment delivered on the 25th of February, 1998 observed in the penultimate paragraph as follows:-
“In the result, I find it difficult to hold that the Will (Exhibit 3 and 5) said to have been made on 23rd June, 1990 is a valid Will of late Fatai Adio Odunewu. It is my finding therefore that the said Will is not a valid Will signed or executed by late Fatai Adio Odunewu in the presence of witnesses.”
The plaintiff was dissatisfied with the judgment and filed an appeal.
➥ ISSUE(S)
I. Whether or not the last Will and Testament of Alhaji Abdul Fatai Adio Odunewu is a valid Will so as to order the removal of the caveat?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE WILL IS NOT VALID
‘A caveat is a warning to suspend action. i.e. let a person beware. In paragraph (VII) of the caveat. The respondents challenged the authenticity of the signature of the deceased on the Will. They were correct to file the caveat.
After a thorough review of the judgment of the trial court I am firmly of the view that the learned trial Judge thoroughly evaluated evidence in this case and I am satisfied with His Lordships findings on fact based on the credibility of witnesses. In the absence of the authentic signature of deceased on the Will the said Will is not valid; the requirement of Section 4(b) of the Wills Law has not been satisfied.
Finally, the learned trial Judge has justified accepting the handwriting analyst report by relying on other positive evidence reviewed in this judgment and found to be correct.’]
.
.
.
✓ DECISION:
‘This appeal fails and it is hereby dismissed with costs of N30,000 to the respondents.’
➥ FURTHER DICTA:
⦿ THE COURT IS FREE TO FORMULATE ISSUES THAT WOULD DETERMINE THE APPEAL
See also Chief Victor Edema Vowa V. First Bank of Nigeria Plc (2016) LLJR-CA. This court is absolutely free to adopt or even formulate issues that would determine the real grievance in an appeal.
See Ikegwuoha V Ohawuchi 1996 3 N.W.L.R. Pt. 435 p. 146. Aduku V. Adejoh 1994 5 N.W.L.R. Pt. 346 p. 582. — B. Rhodes-Vivour, J.C.A.
⦿ FINDING OF FACT BASED ON WITNESSES VERSUS BASED ON EVALUATION OF EVIDENCE
A distinction must be made between finding on fact based on credibility of witnesses and findings based on evaluation of evidence.
In the latter case the Appeal Court is in a similar position as the trial court to evaluate the evidence as the court of trial. With this in mind I will now go forward to evaluate the evidence. But first submissions of counsel. — B. Rhodes-Vivour, J.C.A.
⦿ EVALUATING GENUINENESS OF SIGNATURE IN A WILL THROUGH EXPERT EVIDENCE
It is the duty of the trial court to evaluate the evidence of the handwriting expert on the genuineness of the alleged signature on the Will. In doing so the learned trial Judge must keep the following facts in view.
- Expert opinion on the genuineness of a signature should be received with caution especially if there are witnesses who come to court to say they saw the deceased sign the Will.
- Hardly anyone signs in the same way all the time.
- Tests conducted by handwriting experts, comparing handwritings and signature are merely tentative in character, and
- Opinion evidence of an expert is weak evidence this is so because it is the evidence of a person who calls himself an expert. — B. Rhodes-Vivour, J.C.A.
⦿ WHAT IS A SIGNATURE
I must observe that a signature is a persons name, mark or initial that he uses in signing a document/letter. It is a distinctive pattern by which it can be said who signed a document. — B. Rhodes-Vivour, J.C.A.
⦿ FORGED SIGNATURE VERSUS IRREGULAR SIGNATURE
An irregular signature is one in which the features are not regular, symmetrical. A forged signature is not an irregular signature but a signature of someone else. There is thus a vast difference between a signature which is irregular and a signature which is forged. A signature which is irregular is the signature of the person who is said to have signed it, but a forged signature is not the signature of the person who is said to have signed it. The Randle case supra and the cases relied on by learned counsel for the appellant are irrelevant in the circumstances.
A forged signature is as bad as an unsigned document. The latter being worthless and void. See Section 91 (4) of the Evidence Act. A.G. Abia State V Agharanya (1999) 6 N.W.L.R. Pt. 607 p. 362. — B. Rhodes-Vivour, J.C.A.
➥ LEAD JUDGEMENT DELIVERED BY:
Bode Rhodes-Vivour, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 4 of the Wills Law Cap. W2 Vol. 7 Laws of Lagos State of Nigeria 2003 states the requirement for the execution of a Will. It reads:-
“4 (i) No Will shall be valid unless:-
(a) it is in writing,
(b) it is signed by the testator or signed in his name by some other person in his presence and by his direction, in such place on the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature to the writing signed as his Will;
(c) The testator makes or acknowledge the signature in the presence of at least two witnesses present at same time;
(d) The witnesses attest and subscribe the Will in the presence of the testator but no form of attestation or publication shall be necessary. 2. No signature under this Section or under any other provision of this law shall be operative to give effect to any disposition or direction which is underneath or follows it nor shall it give effect to any disposition or direction inserted after the signature shall be made.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
