GEORGE & ANOR V. GEORGE & ORS

• Pages: 110-115

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NIGERIAN SUPREME COURT CASES

[1964] N.S.C.C.

GEORGE & ANOR V. GEORGE & ORS

1.

FARID GEORGE

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APPELLANTS

2.

FERDINAND GEORGE

V

GEORGE GEORGE & 7 OTHERS

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RESPONDENTS

SUIT NO. FSC 264/1963

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

TAYLOR,

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J.S.C.

BAIRAMIAN,

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J.S.C.

9th April, 1964

Civil Actions - Appeals in Civil Cases - Attitude of Court of Appeal on trial

court's appraisal of witnesses

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Practice and Procedure - Pleadings - Amendment - Enabling parties to present

their respective cases

Wills - Only one witness attesting in testator's presence - Testator's domicile an

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arguable question - Movables and immovables - Wills Act, 1837 s.9.

ISSUES:

1.

What is the attitude of an appellate court to a trial court's appraisal of the

credibility of witnesses and will an appellate court deviate from this appraisal?

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2.

Whether a will attested to by only one witness will be admitted to probate.

3.

Whether a testator's domicile will affect the distribution of his movable property.

FACTS:

The parties were the children of Ferris George, originally from Lebanon, but

who resided in Nigeria for many years and finally died in Nigeria within an hour of

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making his Will. The plaintiffs sued for probate, which was refused on the ground

that the will was attested to by only one witness. The evidence was that the de-

ceased's doctor signed the will as an attesting witness.

The dispute was whether George George's wife signed as an attesting witness

before the testator was taken to hospital or afterwards in his absence. The trial

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Judge thought the doctor's evidence evasive on the dispute but believed the wife's

evidence that she did not sign her name as an attesting witness, but wrote it down

after the testator had died in hospital. It was undisputed that in regard to immov-

ables in Nigeria the will had to satisfy s.9 of the Wills Act, 1837; but if the deceased's

domicile was France (where he had also resided during his lifetime) or Lebanon,

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it would, in regard to movables, be governed by the law of his domicile.

HELD:

1. The learned trial Judge had the opportunity of seeing and hearing this witness

and it is not for an appellate court to minimise the advantage he thus enjoyed

in determining whether or not the witness was telling the truth.

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2 (a) Nevertheless we are of the view that the trial Judge reached a wrong deci-

sion about the credibility of the doctor as a witness by overlooking the fact

that the doctor was more concerned with the health of the deceased than

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