By Innocent Anaba
A Lagos High Court has adjourned for judgement in the suit by widow of late Military Administrator of Lagos state, Air Commodore Gbolahan Mudasiru, Foluke, who is challenging the powers of the executors/trustees of her late husband estates. Late Mudasiru died in a London hospital on September 23, 2003. Four weeks after his death, his Will allegedly dated June 24, 2001 became a subject of litigation, as his widow contested the validity of the Will, allegedly made by the deceasedâ€™s Lagos Military Administrator.
Mrs MudasiruÂ is saying that the administration of the estate and property of her late husband cannot be treated as contained in a Will and testament presented by the trustees, which according to her was doctored. She want the court to determine, among others, whether those allegedly appointed by her deceased husband as executors/trustees of his last Will, were indeed named in the Will and should the court hold that the Will was valid, she want the court to hold that the alleged executors/trustees had no power to administer the estate.
*In the alternative, she wants an order appointing the claimants as the persons entitled to administer the estate with the Will annexed.
In chalenging the Will, she had argued that virtually all the properties purportedly disposed of by the Will were jointly owned by the deceased and her, hence the deceased lacked the capacity to unilaterally dispose of the said properties without her consent and prior knowledge. Defendants in the suit are Ibrahim Abdullahi, Ladi Cole, Dr. Olufunmilayo Coker, Mrs. Olusola Sowemimo, Mr. A.C. Mkparu and the Probate Registrar, Lagos State High Court.
But the defendants, who are the executors/trustees of the WillÂ have fought back, contending that late Air Commodore Mudasiru widow, had failed to establish authors behind the alleged forgery of â€œthe testator and what the persons stood to gain from itâ€.
Meanwhile the court will deliver judgement in the suit on the 30th of this month. The defendants are further contending that apart from establishing that Exhibit â€˜Câ€™ is the last genuine Will of the late Air Commodore Mudasiruâ€, they areÂ also ready to establish that the said Will was executed by the late Mudasiru, as the deceased was â€œfull of testementary capacity as at the time the Will was signed and executed in the presence of renowned legal practitioners, who acted as witnesses contrary to the assertions at paragraph 10 (iii) of statement of claimâ€.
According to them, contrary to the claims by the deceasedâ€™s widow, the signature on the contentious Will, dated June 24, 2001, was the late militaryÂ administratorâ€™s regular signature as contained in other documents in their custody, even as they prayed the court to compel the late Mudasiruâ€™s widow, Foluke to establish that the signature on the Will was not that of her late husband as authenticated by a former Justice Commissioner and Attorney-General of Cross River State, Mr. Eyo Ekpo, who prepared the Will.
The defendants, who are also the executors/trustees of the Will, in their final written address argued, â€œwe submit with respect, that there is a clear and unambiguous desire by the Testator, to hand over the management of his affairs to the 1st to the 5th defendants on his demise.
â€œThere is clear evidence before the court that not only has the Testator not shown any desire that his affairs on his demise be managed by the claimants, particularly the 1st claimant, the averments of the Testator in his pleadings in Suit No. ID/1074/2000, clearly show the degree of mistrust between the Testator and the 1st claimant and the Testatorâ€™s attempt to restrain the 1st claimant from interfering with his proprietary right and interest in one of his properties. This pleadings were filed at about the same time the Will in question wasÂ being disputed.
In the course of trial,Â under cross-examination however, the 3rd claimant admitted being slapped once by the Testator, for daring to question his resolve/actions, when their mother was being assaulted by policemen at their house at the Testatorâ€™s instance. This incident is confirmed by the 1st claimant in Exhibit HI.
The 2nd claimant, under cross-examination, also admitted that his parents had lived apart for upwards of eight years before the demise of their father. He could also not remember the address of the house his father lived before his demise, in addition to admitting that he only visited his father in his house once in the eight years he lived there before his demise, the defendants contended.
The Testator did not disinherit his wife and children, the 1st to the 4th claimants, but clearly he did not want them to manage his affairs on his demise, a point DW2 made in his witness statement. The defendants contended during trial, â€œwe submit with respect that justice will only be served if the 1st to the 5th defendants herein are upheld as executors of the last Will and Testament of the late Air Commodore AdioÂ Mudasiruâ€.
â€œMore over, there is no evidence before this court that the estate has any debts to settle. The bequest contained in the Will is not under any challenge of any sort. Therefore, no useful purpose will be served appointing the claimants as executors as claimed only to hand over the estate to the trustees, who are the ones to manage same afterâ€, they had contended.
â€œDW3 was a witness of fact. He testified on what he saw with regards to the execution of the Will by the Testator and his witnessing of same. His testimony was not discredited nor shown to be improbable under cross-examination. This court must form its opinion on the basis of his demeanor whether or not to believe him as a witness of truth or not; hence this is a court of trialâ€, the defendants argued.
The opinion of the English Court on an interlocutory application is very irrelevant particularly as to assessing a witness, who never appeared before that court, but which witness this court has had the opportunity to see. It is also important to point out, that the claimant has not said who they think could have forged the signature of the Testator or what the person(s) stood to gain from it. The witness is therefore not on trial and the opinion of some other judge is therefore irrelevant in this courtâ€™s assessment of a witness.
â€œOf more importance was the grave error of the English court, in releasing the body of the Testator to the claimant for burial without regards to the clear wishes of the Testator, that his funeral be organised by the 1st to the 5th defendants, in which he had said,Â â€œI request that I be given a funeral, to be organised exclusively by my trustees and conducted in the sense of the Grail Message after my passageâ€.
It is important to point out that this happened, when the Will had not been challenged, as there wasÂ no confusion as to who was directed to organise the burial of the Testator. The word used was â€œTrusteesâ€ not â€œExecutorsâ€ yet the judge in England , chose to closed his eyes and understanding to this very clear request, the defendants argued.
According to them, the English judgeâ€™s decision can only be said to be suspect and cannot be given any regard,Â particularly on issues he himself confessed he was not competent to pronounce on. His opinion is therefore of no consequence and is neither binding nor persuasive.
On the contention of the claimants that the Will is a forgery, the defendants argued that â€œit will be observed in the Will in question, that wherever there was a correction or alteration, the Testator placed his initial at the end of the line, the correction or alteration made.
In the very same way the Testator initiated corrections or alterations made in Exhibits â€˜E2, E3, E4, E5 and E6″ and contrary to the assertion of the 1st claimant, the alterations and initials as the margins of such alterations and corrections are consistent with the nature and character of the Testators as borne out by the Willâ€.
With regards to the allegation that a handwriting expert had opined that the signature on the Will was not that of the Testator, the defendants contended that the handwriting examination by the purported expert was not to their knowledge or input, neither is the authenticity of the document provided to the so called expert verifiable or its veracity ascertainable, insisting that the signature on the Will was that of the Testator.
According to the defendants, â€œthe Will was taken out and read by the officials of the 6th defendant upon the death of the testator and consequent upon the reading of the Will, they duly applied for the grant of Probate and were issued probate forms, which they duly completed and submitted before the intervention of the 1st claimant by way of a caveat.
On argument that the issue of Will had been adjucated by another court, the defendants argued â€œthere is no other litigation where the Will was a subject of litigation. This suit is the suit where the Will of Late Mudasgiru is the subject of litigation before a judgeâ€, addingÂ â€œit is therefore up to this court to now determine whether or not the defendants are the executors of the Willâ€.