ABDUL KARIMU LEMOMU & ORS (APPELLANT)

v.

HADJI NOAH ALLI-BALOGUN & ORS (RESPONDENT)

(1975) All N.L.R. 30

Division: Supreme Court

Date of Judgment: 21st March, 1975

Case Number:

Before: Elias, C.J.N., Fatayi-Williams and Irikefe, JJ.S.C.

APPEAL from the High Court, Lagos.

This was an application for probate of the Will and Testament of deceased who died sometime in 1965. Three defendants entered a caveat, plaintiffs sought that the said Will be established and pronounced good and valid. The learned trial Judge made certain findings of fact as to the state of mind of the deceased at the time she executed the Will, holding that she was not of a sound disposing mind when she made the Will. On appeal to the Supreme Court.

HELD:

(1)     that the only matter on which the parties joined issues was on whether or not deceased was of sound mind at the time she made the Will.

(2)     that in basing his judgment on the particulars as to the State of mind of deceased, given in evidence by the defendants, the trial Judge overlooked the provisions of Order 76 r. 13 (3) English Rules of Supreme Court which are applicable and which provide that unless such particulars on which defendants rely are specifically pleaded, they will not be allowed in evidence.

(3)     that the learned trial Judge erred in admitting the evidence (which was not pleaded, as to deceased's behaviour on selected occasions, and that having admitted it wrongly, he should have ignored the evidence, once the error was pointed out to him by the plaintiffs' Counsel in his final address.

(4)     that a situation allowing plaintiffs, contrary to rules of Court, to be completely taken by surprise and which denied them the opportunity of investigating, explaining or rebutting, if necessary, the serious allegations made by defendants in the particulars given in evidence cannot be regarded as just and fair to the plaintiffs; and

(5)     that had the evidence on which the learned trial Judge relied been ignored as he should have done, there would have been no defence at all to plaintiffs' claim.

APPEAL allowed.

Cases referred to:

Emegekwue v. Okadigbo (1973) 4 S.C. 113

George and ors v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 71 at 77.

National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. & ors (1969) N.M.L.R. 99 at 104.

Idahosa v. Oransaye (1959) 4 F.S.C. 166 at 171.

Bada v. The Chairman L.E.D.B.S.C. 501/65 of 23rd June 1967.

Erinle v. Adelaja S.C. 332/1966 of 6th June 1969.

Chief Sule Jimbo & ors v. Aminu Sanni & ors S.C. 373/67 of 13th march 1970.

Ferdinand George v. The United Bank for Africa Ltd. S.C. 209/1971 of 29th September, 1972.

Ogboda v. Adulugba (1971) 1 All N.L.R. 68 at 72-73.

Statute referred to:

High Court of Lagos Act.

Order & rules referred to:

Order 76 r. 13 (3) English Rules of Supreme Court 1970.

Order 76 r. 9(3) 1973 Rules.

Order 16 r. 23 High Court of Lagos Civil Procedure Rules 1972.

Order 18 r. 12(1) (b) English Rules of the Supreme Court.

APPEAL from the High Court, Lagos.

Suit No. S.C. 114/1974.

Mr P.O. Munis for the Plaintiffs/Appellants.

Mr J.O. Coker for the Defendants/Respondents.

FATAYI-WILLIAMS, J.S.C. (Delivering the judgment of the court):-According to the averments in their joint statement of claim, the first and second plaintiffs (now appellants) are the executors named in the last Will and Testament dated 24th day of January, 1963, of one Shadiya Alli-Balogun (deceased) who died in Lagos on the 28th day of July, 1965. The third plaintiff who is now the third appellant is the principal beneficiary under the said Will. After the death of Shadiya Alli-Balogun, the first and second plaintiffs, through their solicitor Mr Bashirudeen Adewale Agusto (2nd PI/W) applied to the Probate Registrar of the High Court for the grant to them of probate of the said last Will and Testament (hereinafter referred to as the Will) but the three defendants (now respondents) entered a caveat against the said grant. Whereupon the plaintiffs claimed against the defendants in the Lagos High Court that the said Will be established and pronounced good and valid and that the first and second plaintiffs be granted probate of the said Will both as the executors both as the executors named therein and also as the persons properly entitled to administer the estate of the said Shadiya Alli-Balogun (deceased).

In their statement of defence, the defendants averred that all the plaintiffs are complete strangers to and meddlers in the affairs of the family of Alli-Balogun and denied that the first and second plaintiffs were ever appointed executors of the Will of Shadiya Alli-Balogun (hereinafter referred to as deceased). After stating that the deceased never made a Will, they averred further as follows:-

"11. The defendants aver that the purported Will was made under the undue influence of 1st plaintiff and which did not reflect the wishes of the deceased and completely contrary to her past declaration.

12.     The defendant will contend that the testator was of unsound disposing mind at the time the said Will was made for lack of proper testamentary capacity."

At the hearing, Mr Bashirudeen Adewale Agusto (2nd P1/W) the legal practitioner who prepared the Will for the deceased, produced the Will (Ex. B) when testifying for the plaintiffs. His testimony given on 17th May, 1972, reads:-

"I know Madam Shadia Alli-Balogun (deceased). In 1963 at her invitation I went to her house at 54 Smith Street, Lagos and she requested me to prepare her last Will and Testament. She gave me all necessary instructions. They were oral but I committed them to writing. She discussed with me very intelligently she gave me the list of properties owned by her. I cannot remember if there was a third person present at the interview. I think she understood her instructions to me. I went away and prepared the said Will and Testament. A few days later I took the Will and two attesting witnesses and went back to see the lady at her home. The attesting witnesses were Lawyer E. O. George and Prince A. O. Ogunlewe. I read the Will and interpreted it to her in Yoruba, she acknowledged the contents to be according to her instructions and she duly executed the Will in the presence of both attesting witnesses. The Will was executed in duplicate. Exhibit "A" is the original. I got the original deposited in court. The old lady died sometime in 1965."

In answer to a question put to him under cross-examination, Mr Agusto stated that it was not true that the old lady was incapable of understanding what it was all about when she made the Will. To further questions he replied as follows:-

"I do not know that although she was well off she was in the habit of begging and that the 2nd defendant was always ushering her in from the street. I do not know that she was in the habit of saying things unrelated to facts."

Both Mr Emmanuel Oluyinka George (3rd Pl/W), another legal practitioner, and one Adegboyega Oladipo Ogunlewe (4th Pl/W) who is an Estate Agent, corroborated the testimony of Mr Agusto as to the due execution of the Will by the deceased after the contents had been interpreted into the Yoruba language "line by line" for her. They also confirmed that both of them witnessed the execution of the Will by the deceased.

The 2nd defendant (Abike Alli-Balogun) who is also known as Muniratu Faramobi Abike Danmole, described herself as a niece of the deceased and the elder sister of the 3rd defendant. She is one of the witnesses called by the defence. She stated that she had been living with the deceased for about six years at the time of her death. She further testified that the deceased made no Will as it was impossible for her to make a Will without her (Danmole's) knowledge because she was always with her. The witness then described her condition as follows:-

"She was physically all right but she was old and we would not allow her to go about. She did not appreciate what she was doing. I say this because at times some five minutes after feeding her she will call me and say that I have not fed her all day. She would call passers-by from her window seat and ask for money. I would scold her. At times she would call young children from her window seat to come and see her Shadia Alli-Balogun dance. I often had to disperse the children. We had a toilet in the house but we did not allow her to go there. We let her use the chamber pot. Shadia never behaved in those funny ways described until old age began to tell on her."

When this witness was cross-examined about the deceased's trinkets she answered as follows:-

"Shadia in her lifetime was known as Iya Gold. We saw no gold trinkets after her death. She complained about the loss of her trinkets. I do not know that she accused members of the Alli-Balogun family with the theft of her trinkets. I do not know if she hated the family for that."

Another witness who testified for the defendants is one Hadji Amisu Junaid (3rd D/W). He said he lived next door to the deceased and used to see her everyday until she died. He described her physical and mental conditions as follows:-

"Shadia moved to our area either in 1961 or 1962. Even then she was very old. Soon after she moved to our area she called me one morning and gave me a paper to read but before I could read it she took it back asking if I knew it was a letter from Queen Elizabeth her friend. She said Elizabeth was due to call on her that evening. I was surprised. On another occasion I saw her from her window seat begging for alms from passers-by. I reported this to the 2nd defendant. I was surprised as I know she was from a wealthy family. She used to sit herself in the sitting room dancing by herself and the neighbourhood children would gather to enjoy the scene. The 2nd defendant would come and spray water on such children to disperse them. She would cry and curse when being bathed. She was physically all right considering her age but she never went out. She sat and begged from the window nearly every day except the windows in the room were kept shut."

Dr Oladipo Maja (4th D/W), a medical practitioner, in his own evidence confirmed the age shown in the death certificate of the deceased (Ex. D). He thought that the deceased would be about 87 years old at the time of her death. He also said that he had been treating the deceased since 1954 and recalled that some time between 1960 and 1961, she was involved in a motor accident when she injured her leg and that from that time she deteriorated both physically and mentally.

At the close of the case for the defence, Mr Munis who appeared for the plaintiffs, in his address before the court, referred to paragraph 12 of the statement of defence and submitted that since unsoundness of mind was the main defence put forward by the defendants specific instances of it must be pleaded. He also pointed out that as the instances were not pleaded no evidence about them could be given and that if they were given as in the case before the court, such evidence must be expunged from the record.

In a reserved judgment, the learned trial Judge considered the evidence adduced by both parties. He referred in particular to the testimony of the 2nd defendant and also to that of Hadji Amisu Junaid (3rd D/W) with respect to the behaviour of the deceased and then observed as follows:-

"The defendants contest the validity of this Will on the ground that the testatrix was not at the time of making the Will of sound disposing mind. It has been said that to be of a sound disposing mind a testator must not only be able to understand that he is by his Will giving his property to one or more objects of his regard but he must also have capacity to comprehend and to recollect the extent of his property and the nature of the claims of others whom by his Will he is excluding from participation in that property."

After giving detailed consideration to the testimony of the 3rd plaintiff who, as we had stated earlier, is the main beneficiary under the Will and concluding that she was not the object of the testatrix's regard, the learned trial Judge found as follows:-

"I do not think the medical evidence went as far as to say this old lady was insane but I think, and I so find that in January, 1963, she was not of full testamentary power as to give the instructions necessary for the preparation of the Will Ex. "A". She just was not of a sound disposing mind.

I have arrived at my conclusion after the most thorough examination and consideration. I realise that by my finding the integrity of two legal practitioners is put in question but I have come to the conclusion that I really have no alternative open to me in view of the many unsatisfactory aspects of the case. I have said above that I believe the evidence given by the 2nd defendant and the witness Hadji Amisu Junaid and that in preference to that given by the 3rd plaintiff-the main beneficiary of the disputed Will."

Before finally dismissing the plaintiffs' claim, the learned trial Judge considered the submission of the learned Counsel for the plaintiffs as to the inadmissibility of the particulars given in evidence by the 2nd defendant and the 3rd defence witness and on which his finding that the deceased "was not of a sound disposing mind" was predicated, and found as follows:-

"Mr Munis, learned Counsel for the plaintiffs in his final address asked me to expunge from the record all the evidence led in support of paragraph 12 of the statement of defence since in pleading that the testatrix was of unsound disposing mind at the time the said Will was made for lack of proper testamentary capacity, the statement did not go further and specify the nature of the case the defendants intended to rely upon as required by Order 76 rule 13 (3) of the English Rules of Court. I regret I do not feel able to treat this matter in that way. The time to object to evidence is when it is tendered and in a case like this I would think the ends of justice will be defeated if I were to treat the matter in the way canvassed."

The main point taken before us by learned Counsel for the plaintiffs at the hearing of the appeal against that judgment may be succinctly stated as follows. The only matter on which the parties joined issues throughout the trial was on whether the deceased was of sound mind or not at the time she made the Will. The defendants gave no instances on which they based their averment that the deceased was of unsound disposing mind as required by rules of court. Since they have not mentioned these instances in their pleadings, the evidence given about them goes to no issue and should not have been entertained by the court. But having admitted the evidence, the learned trial Judge should have ignored it in his judgment. If this had been done, learned Counsel further contended, there would have been no evidence in support of the defendants' allegation, and the defence would have collapsed.

This would have left the evidence of Mr Agusto, which was amply corroborated by Mr George and Mr Ogunlewe, as to the state of mind of the deceased at the time she executed the Will, virtually unchallenged, and the learned trial Judge would have had no alternative but to pronounce that the Will was valid, His error in admitting this evidence and relying upon it has resulted in erroneously dismissing the plaintiffs' claim.

In reply, learned Counsel for the respondents conceded that the particulars of the allegation of unsound disposing mind were not pleaded. He also conceded that this should have been done and thereupon asked for leave of this Court to amend the statement of defence at this stage and plead the particulars. In support of the application, learned Counsel contended that since the particulars were already in evidence, no injustice would be done to the plaintiffs.

We had no difficulty in refusing this application on the ground that it is too late in the day and also that the plaintiffs would have no opportunity to answer the allegations by rebutting evidence as they could have done had the allegations been ventilated in the statement of defence filed before the actual trial took place.

In basing his judgment on the particulars given in evidence by the defendants, the learned trial Judge, in our view, seemed to have overlooked the provisions of Order 76 rule 13 (3) of the English Rules of the Supreme Court, 1970, which are applicable in the High Court of Lagos State by virtue of the provisions of section 16 of the High Court of Lagos Act (Cap. 80 of the Laws of the Federation). The section provides that the law and practice in probate cases in the High Court of Lagos shall be exercised in conformity with those which are for the time being in force in England. The provisions of Order 76 rule 13(3) (which is the same as Order 76 rule 9 (3) of the 1973 Rules) read-

"13     (3)     Without prejudice to Order 18 rule 7, any party who pleads that at the time when a Will, the subject of the action, was alleged to have been executed, the testator did not know and approve of its contents must specify the nature of the case in which he intends to rely, and no allegation in support of that plea which would be relevant in support of any of the following other pleas, that is to say-

(a)     that the Will was not duly executed,

(b)     that at the time of the execution of the Will the testator was not of sound mind, memory and understanding, and

(c)     that the execution of the Will was obtained by undue influence or fraud, shall be made by that party unless that other plea is also pleaded."

(The italics are ours.)

It must be pointed out that Order 18 referred to above deals with pleadings generally and its provisions in no way affect the mandatory provisions of Order 76 rule 13 (3) that particulars of unsoundness of mind must now be pleaded. Incidentally, provisions similar to the above are now in Order 16 rule 23 of the High Court of Lagos (Civil Procedure) Rules, 1972, and but for the provisions of rule 26 of the same Order 16 which excluded actions commenced before the Rules came into force, that rule would have been applicable to the case in hand. Rule 23 reads-

"23.    In probate actions it shall be stated with regard to every defence which is pleaded what is the substance of the case on which it is intended to rely; and further where it is pleaded that the testator was not of sound mind, memory and understanding, particulars of any specific instances of delusion shall be delivered before the case is set down for trial and, except by leave of the court or a Judge in Chambers, no evidence shall be given of any other instances at the trial."

Moreover, the learned authors of Tristam & Coote's Probate Practice (24th Edition), when considering the general provisions of Order 18 rule 12 (1) (b) of the Rules of the Supreme Court in England with respect to allegations of unsoundness of mind, observed at page 636 of the said book as follows:-

"Where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies must be included in the pleading."

In addition to the provisions of Order 18 rule 12 (1) (b) and of order 76 13 (3) to which we have referred, this Court has repeated it on many occasions that the whole purpose of ordering pleadings before the hearing of a case in the High Court is that parties should know in detail the case which they are going to meet and that they should not be taken by surprise. For this reason, we will do no more in the present case than to refer once again to the decision of this Court in Emegokwue v. Okadigbo (1973) 4 S.C. 113 where some of our earlier decisions on the point were reviewed with approval. The relevant part of the judgment is at pages 117-119 and it reads-

"It is trite law, and we have repeated it on many occasions, that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. The reasons for this rigid rule of pleading and of evidence has been clearly stated by this Court in George and ors. v. Dominion Flour Mills Ltd. [1963] 1 All N.L.R. 71 at page 77 as follows:-

'The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues; but the cardinal point is the avoidance of surprise.

In National Investment & Properties Co., Ltd. v. Thompson Organisation Ltd. & ors. (1969) N.M.L.R. 99 at page 104, we again observed as follows:-

'A plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin-Olugbade suggested, that the other side did not object to the evidence or that the judge did not reject it. It is, of course, the duty of Counsel to object to inadmissable evidence and the duty of the trial Court any way to refuse to admit inadmissable evidence, but if notwithstanding this, evidence is still, through an oversight or otherwise admitted, then it is the duty of the court when it comes to give judgment to treat the inadmissable evidence as if it had never been admitted.'

Other views along the same lines were expressed in Idahosa v. Oronsaye (1959) 4 F.S.C. 166 at page 171; Bada v. The Chairman L.E.D.B., SC. 501/65 of 23rd June, 1967; Erinle v. Adelaja, SC. 332/1966 of 6th June, 1969; and Chief Sule Jimbo & ors. v. Aminu Sanni & ors. SC. 373/67 of 13th March, 1970. Another recent case on the point is Ferdinand George v. The United Bank for Africa Ltd., SC. 209/1971 of 29th September, 1972, reported in (1972) 8/9 SC. 264 at page 275 in which we referred with approval to our decision in Ogboda v. Adulugba [1971] 1 All N.L.R. 68 at pages 72-73, where we emphasised the same point as follows:-

'We have pointed out numbers of times that the evidence in respect of matters not pleaded really goes to no issue at the trial and the court should not have allowed such evidence to be given (see Chief Sule Jimbo & ors. v. Aminu Asani & ors. SC. 373/67 dated the 13th March, 1970). Even when such evidence had been wrongly allowed, the trial Court should disregard it as irrelevant to the issues properly raised by the pleadings.'

From the above, it is quite clear that the learned trial Judge was in error in admitting the evidence as to the behaviour of the deceased on selected occasions. Moreover, having admitted the evidence erroneously, he should have ignored it in his judgment, particularly as his attention has been called to the error by learned Counsel for the plaintiffs in his final address, To dismiss the objection of Counsel on the ground that "the ends of justice will be defeated" is to overlook the more important aspect of the matter which is that both sides are entitled to justice. A situation which allowed the plaintiffs to be completely taken by surprise and which denied them the opportunity of investigating, explaining, or rebutting, if necessary, the serious allegations made by the defendants in the particulars given in evidence, cannot by any stretch of the imagination be regarded as just and fair to the plaintiffs.

Had the evidence on which the learned trial Judge relied been ignored (and that is what he should have done), there would have been no defence whatsoever to the plaintiffs' claim which should have then succeeded in its entirety.

There is one other point which we would like to deal with. As no issue was joined between the parties in the pleadings on the point, we see no basis for the finding of the learned trial Judge that the third plaintiff (who was nowhere near the deceased when the Will was executed) "was not an object (or a proper object) of the testatrix's regard." All the defendants said in their pleadings about the plaintiffs was that they "are complete strangers and meddlers to the affairs of the family of Alli-Balogun." Furthermore, all that was said about the third plaintiff in their statement of defence was that she was the sole beneficiary under the Will. We are of the view, therefore, that, in making heavy weather of the testimony of the 3rd plaintiff as he had done and passing so many adverse comments about the evidence she gave concerning her relationship with the deceased, the learned trial Judge was most unfair to her. In any case, her relationship to the deceased, whether close or remote, is completely irrelevant to the main issue in controversy, that is, the state of mind of the deceased at the time she made the Will.

Having said this much about the judgment, it is our view that the learned trial Judge was in error in dismissing the plaintiffs' claim as he did. The appeal therefore succeeds and it is allowed. The judgment of the learned trial Judge (Adebiyi J.), including the order as to costs, is accordingly set aside. Instead, we order as follows:-

(1)     that the last Will and Testament, dated the 24th day of January, 1963, of Shadiya Alli-Balogun late of 54 Smith Street, Lagos, be and is hereby established and pronounced good and valid;

(2)     that Abdul Karimu Lemomu (1st plaintiff) and Alhaji Shittu Ade Fashola (2nd plaintiff) be granted probate of the said Will as the executors named therein and the persons properly entitled to administer the said