IN THE MATTER OF THE ESTATE OF ISRAEL ADEBAJO OGUNYEADE ADEBAJO (DECEASED) IRENE ALAKE ADEBAJO (PLAINTIFF)
1. LUKE ADEPEJU ADEBAJO
2. OBAFEMI AYANTUGA
3. ADELO ADEBAJO
4. OLABISI ADEBAJO (for herself and on behalf of her children:-ADEKUNLE ADEBAJO, ADEYANJU ADEBAJO AND ADENRELE ADEBAJO)
5. ADUNNI ADEBAJO (for herself and on behalf of her children:- ADETILEWA ADEBAJO, ADEKEMI ADEBAJO, ADEKEYE ADEBAJO AND ADEFEMI ADEBAJO
6. ALFRED ADEBAJO
7. ADEYEMI BADEJO
8. CHRISTOPHER ADELAJA (DEFENDANTS)
(1971) All N.L.R. 599
Division: High Court of Lagos
Date of Judgment: 12th November, 1971
Case Number: SUIT NO. L.D./22/70
Before: Taylor, C.J.
(1) If there be no date to a Will, or if there be an imperfect date only, one of the attesting witnesses or some other person present at the time of execution must supply evidence of the date of execution. If evidence of execution on a definite date cannot be obtained, evidence as to the execution between two definite dates should be given by both witnesses. If neither of the attesting witnesses nor any other person can depose to execution between two definite dates, evidence must be given showing that search was made and no Will of presumably later date had been found. If the date given in the Will is not the true date of execution, evidence of the correct date should be given by an attesting witness or some other person present at the execution.
(2) On the evidence in this case, there was no doubt that the will was in fact made not on the 21st January, 1969 but on the 25th June, 1969 and executed on that day. The fact that the date of the execution differed from the date of the Will was of no consequence.
(3) The burden of proving due execution, whether by presumption or by positive evidence, rests on the person setting up the Will.
(4) Although those propounding the Will must satisfy the court that the testator was of sound disposing mind, yet if the will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce for it, presuming that the testator was mentally competent. Slight evidence of mental incapacity will not disturb this presumption.
(5) It has, therefore, been said that the burden of proving unsoundness of mind lies on those who allege it. But when the whole evidence is before the court, the decision must be against the validity of the will, unless it is affirmatively established that the deceased was of sound mind when he executed it.
(6) A party who puts forward a document as being the true last will of the deceased must establish that the testator knew and approved of its contents at the time when he executed it.
(7) On the evidence before the court, there was more than enough to satisfy the conscience of the court that the instrument so propounded was the last will of a free and capable testator and to remove any suspicion which might have been cast on the will. The evidence affirmatively showed that the testator knew of and approved of the contents of the will.
(8) Consequently, the action must fail and pronouncement made in favour of the will dated 21st January, 1969 made and executed on the 25th June, 1969 by the deceased.
Cases referred to:
Tyrrell v. Painton & anor. (1894) P. 151.
Barry v. Butlin 2. MOO. P.C. 480.
B. Johnson & ors v. Maja & ors. 13 W.A.C.A. 270.
Christian v. Intsifil 13 W.A.C.A. 347.
Plimpton v. Spiller (1877) 6 Ch.D. 412.
Thorn v. Worthing Skating Rink Comp. (1877) 6 Ch.D. 415.
SUIT NO. L.D./22/70.
Chief Williams, (with him Araoye) for the Plaintiff.
Sofola, (with him Adefala, Adeniji and Edozie (Mrs) for the Defendants.
Taylor, C.J.:-As the original writ stood on the 13th January, 1970, the date of filing, the plaintiff sued the first three defendants on a writ which reads thus:-
1. "The plaintiff is the widow and one of the persons entitled to share in the estate of Israel Adebayo Ogunyeade Adebajo (deceased) who died on the 25th July, 1969, in the event of an intestacy and to have as such a grant of letters of administration of the estate of the said intestate.
2. This writ is issued against you as the executors named in a pretended will of the said deceased dated 21st January, 1969 against which the plaintiff asks the court to pronounce in this action.
3. The plaintiff accordingly claims a declaration that Israel Adebayo Ogunyeade Adebajo died intestate."
A statement of claim was filed on the 25th February, 1970 and the statement of defence on the 12th March, 1970. There were interlocutory applications filed and appeals against the Orders of the High Court which have had the effect of making the file or record of this case bulky and have prevented an early hearing of the substantive suit. Subsequent to the filing of the defence, and on the 3rd April, 1970, an application was brought for an Order joining the 4th to the 8th defendants. I ought to comment at this stage that whereas the plaintiff, in an earlier application of the 25th February, 1970, attached as exhibit "A" to the affidavit a copy of marriage certificate solemnising a marriage between her and the deceased which is said to have taken place on the 29th January, 1949 in the Marriage Registry, Lagos, the 4th defendant in her affidavit of the 3rd April, 1970, swore in paragraph 1 that:-
(1) ... I am the first wife of late Israel Adebayo Ogunyeade Adebajo who died on or about the 25th July, 1969 in London.
Similarly the 5th defendant in an affidavit of the same day swore in paragraph 1 of her affidavit that:-
(1) ... I am the third and last wife of late Israel Adebayo Ogunyeade Adebajo who died on or about the 25th July, 1969 in London.
I make mention of these matters for two reasons. In the first place, on the issues which have been settled at the hearing of this action, the question of whether the plaintiff or any or both of the 4th and 5th defendants is or are wives, in the only sense in which I understand the meaning of that word, is not an issue falling to be decided. In the second place if and when such issue does fall to be decided, for the inference at the hearing was that this would be so, then I do hope that those who seek to raise that issue, and who also stand to benefit from the estate of the deceased, and who in proceedings before me have professed their love for the deceased will think twice before stirring a hornet's nest. Let sleeping dogs lie has always been a sound motto, for if in fact the 4th defendant was in the meaning I understand the word, the legal wife, by the Marriage Act or by Native Law and Custom, it makes no difference, the marriage according to the Marriage Act will be well taken care of by the provisions of the Criminal Code and a slur cast on someone who on the evidence before me was indeed a great benefactor. I think enough has been said to the wise.
The 6th defendant and the 7th defendant are the brother and sister respectively of the full blood of the deceased and the 8th defendant is a cousin, and a beneficiary of the Will against which pronouncement is sought.
On the 14th April, 1970 an amended statement of claim was filed and an amended statement of defence on the 20th April, 1970. Finally however and on the 25th January, 1971, the delay again being brought about by further preliminary applications, a second amended statement of claim was filed and on the 29th January, 1971 a second amended statement of defence was filed in reply thereto. I then fixed hearing for the 27th, 29th and 30th April, 1971. Hearing could not proceed on those days due to the fact that I was during that period on sick leave, and on my resumption I fixed hearing for the 16th, 17th and 21st September, 1971. Hearing in fact began on the 16th, it could not proceed for part of the 16th and for the whole of the 17th because the plaintiff's medical expert was not in Nigeria. Hearing continued on the 21st, 23rd, 24th, 28th, 30th September, 5th October and concluded on the 7th October, 1971.
When hearing commenced on the 16th September 1971 both learned Counsel agreed to settle issues and Chief Williams for the plaintiff is recorded as saying that:-
"The main issue is validity of the Will and out of this will arise matters arising in paragraphs 4, 5 and 6 of the amended statement of claim."
Mr K. Sofola leading Counsel for the defendants is also recorded as saying that:-
"I want to be included the 'interest' issue raised in paragraph 1 of the 2nd amended statement of claim."
It was finally agreed and settled and recorded as follows:-
"It is agreed that the issue as to whether the plaintiff was or was not married to the deceased is not in issue in this action and that the issues are those set out by Chief Williams above."
I shall have reference during the course of this judgment to refer to the pleadings and with particular reference to paragraphs 4, 5 and 6 of the statement of claim and the relevant parts of the defence dealing with those issues.
During the hearing there were two witnesses called by and for the plaintiff and eleven for the defence. On the plaintiff's side the evidence consisted of the plaintiff with whom the deceased lived and who gave evidence from the lay-woman's point of view as to his health, his activities, appearance and such like. The second plaintiff's witness was a Dr Ekpo Edet Eyo a medical specialist qualified in 1955.
On the other side of the fence the evidence is of a threefold nature. We have the evidence of lay persons such as D.W. 3 Mr Daniel Adeleke Ojo, a bank official, with whose bank the deceased was a customer; D.W. 4 Mrs Adunni Adebajo, a member of this honourable profession, who claims to be a wife of the deceased; who worked as secretary for the deceased and who alleges that the deceased daily had lunch and dinner in her house as from 1965; D.W. 5. Mr Edward Adeyemi a member of the same Church Society as the deceased; D.W. 6 Mr James Omirin an employee in one of the businesses of the deceased and one of the attesting witnesses to the Will against which the plaintiff propounds. D.W. 7 Mrs Florence Adenike Odunsi, a sister of the deceased and with whom the latter stayed for some time during his visit to England in June 1969; D.W. 8 Mr Walter Oyatogun, a physical education officer and member of the Management Committee of the Sports Centre set up by the Lagos State Government of which Committee the deceased was a member and Chairman of three sub-committees. I shall for the purposes of classification also put the evidence of D.W. 9 Mr Adeyanju Osijo, a member of our honourable profession in this class though his evidence will receive special treatment for he prepared the disputed Will. I have left out the evidence of D.W. 2 Mr David Olaniyan Fadipe whose evidence is really of little value and merely tendered exhibit "Y" the deceased's departure card.
The second class of evidence led by the defence can be put in the category of expert witnesses consisting of medical experts who never treated the deceased during the material time or indeed at all but who came to give their expert opinion on the findings and other matters of the medical experts who in fact treated the deceased with particular reference to Dr Ekpo Edet Eyo. These witnesses are D.W. 10 Dr Theophilus Oladipo Ogunlesi of the University of Ibadan and D.W. 11 Dr Titus Olayemi Dada of the College of Medicine Lagos University.
Finally, and in the third category is D.W. 11 Dr Aderonmi Oladipo Laja the Senior Consultant Pathologist to the General Hospital Lagos, who knew the deceased from 1965 and to whom the blood and specimen urine of the deceased were sent from time to time between 1965 and 1969 by Dr Ekpo Edet Eyo for pathological tests. The importance of his evidence however relates to the fact that he was called by Dr Ekpo Edet Eyo to go with him to the deceased in the latter's house in June 1969.
There are two observations I would like to make before I proceed to deal with the evidence and the law. The first is that whenever I make mention of any of the parties to this case as the wife of the deceased, I am merely saving myself from referring to the party in their full name and I am not deciding the issue as to whether in law that person is the wife. In the second place wherever reference is made to the "Will" of the deceased, before any final finding one way or the other it is to save a continuous use or repetition of the word "purported" or "pretended" in a judgment with so many matters to deal with.
I think the first matter to be settled in point of sequence is the date on which the Will was made for until this is decided one way or the other a consideration of the evidence dealing with the condition in health and mind of the testator at the time he made the Will is of little use.
The Will is exhibit "BB" the original, and exhibit "A" the copy. The Will is prefaced by the words:-
"This is the last Will and Testament of me Israel Adebayo Ogunyeade Adebajo of No. 20, North Avenue, Apapa on the Mainland of Lagos which I make this 21st day of January 1969...
Clause 9 reads:-
"In Witness Whereof I the said Israel Adebayo Ogunyeade Adebajo have hereunto set my hand the day and year first above written."
The Deed is "backed" with these words:-
"The last Will and Testament of Israel Adebayo Ogunyeade Adebajo signed on the 21st day of January 1969.
Prepared by me, Signed A. Osijo, Solicitor to the Testator, 74, Yakuba Gowon Street, Lagos."
One fact is clearly established or rather accepted in evidence by both sides and that is that on the 21st January, 1969 the street which was then known as Broad Street had not been renamed Yakubu Gowon street as is contained in Clause 3 as well as the address given by the learned solicitor above. Mr Osijo in his evidence stated that:-
"After the witnesses had attested they left. I wanted to put the date of execution which was the 25th but the deceased instructed me to put the 21st January, 1969. When he said this we had an argument. He said the Will was his birthday present and I should put the 21st January. He was in love with that day. He said everything important that he did fell on that day."
He said words to the same effect in cross-examination. It is clear from the evidence of this witness as it is indeed from the evidence of Mr James Ibidapo Omirin that the attesting witnesses did not know the date inserted on the Will and could not have been of any assistance on the point under consideration.
Exhibit "B" is the passport of the deceased and it shows in the section dealing with his date of birth that he was born on the 21st January, 1920, but according to the plaintiff even this date was not the real date of his birth for she deposed as follows under cross-examination:-
"My husband chose the day on his passport as his birthday. He was not actually born on that day. The date shown on the plaque attached to the Church pulpit is 21st January. I have not seen the plaque before. The pulpit was not donated on the 21st January."
I have taken into consideration the evidence of Mrs Adunni Adebajo whose evidence on this issue as to the birthday of the deceased is contrary to that of the plaintiff for she states that:-
"My husband was born on 21st January 1920."
It is rather unfortunate sometimes that witnesses will swear positively to matters of which obviously they know nothing. On the evidence as a whole, i.e. on the evidence of Mrs Irene Adebajo and Mr Osijo there is no doubt at all that the day 21st January had some particular fascination for the deceased. I accept the evidence of Mr Osijo that the Will was in fact made not on the 21st January, 1969 but on the 25th June, 1969 and executed on that day.
Having so found I must consider whether this has any effect on the Will? Although argument was adduced by Mr Sofola to show that this has no legal effect on the validity of the Will, Chief Williams for the defendants did not address me on the issue. It is however pertinent to refer to paragraph 5(vii) of the 2nd Amended Statement of Claim which would seem to confirm the view that the Will was not in fact executed on the 21st January, 1969 as stated by Mr Osijo for the defendants. That paragraph states thus:-
"The date shown as the date of the alleged Will was put there in order to set up a false representation that the deceased executed the Will at a date when the state of his health had not deteriorated to what it was around the time when it was in fact executed."
On the facts found by me and on my acceptance of the reasons given by Mr Osijo and in short corroborated by the plaintiff as to the particular regard of the deceased for the 21st January I must and do hold that this allegation in the claim is unsubstantiated.
The learned authors of Tristram and Coote's Probate practice 21st Edition say at page 49 that:-
"If there be no date to a Will, or if there be an imperfect date only, one of the attesting witnesses or some other person present at the time of execution must supply evidence of the date of execution. If evidence of execution on a definite date cannot be obtained, evidence as to execution between two definite dates should be given by both witnesses. If neither of the attesting witnesses nor any other person can depose to execution between two definite dates, evidence must be given showing that search has been made and no Will of presumably later date has been found... If the date given in the Will is not the true date of execution, evidence of the correct date should be given by an attesting witness or some other person present at the execution..."
It is then settled that if I accept the evidence of Mr Osijo as to the date of the execution, the fact that it differs from the date of the Will is of no consequence. I repeat that I do accept without reservation the evidence that this Will was executed on the 25th June, 1969 for in addition to the evidence already quoted as deposed to Mr Osijo he went further to say that:-
"The date I inserted on the Will was done on 25th June 1969."
The next point with which I have to deal is also a legal one and relates to the onus of proof and on whom that onus is cast. In the amended Statement of Claim the plaintiff avers that:-
"4. At the time when the alleged Will was executed the testator did not know and approve of its contents.
5. The nature of the case on which the plaintiffs intend to rely is as follows:-
(i) That the deceased has not been in very good health and has from time to time had professional medical consultations locally since January, 1965.
(ii) That the deceased went to the United Kingdom on at least two occasions between 1965 and 1968 and consulted with other medical practitioners and specialists.
(iii) That the condition of the deceased's health progressively deteriorated especially from April, 1969 and in June 1969, he was advised to proceed to the United Kingdom for more highly specialised attention.
(iv) That the bodily illness which affected the deceased in the last few months of his illness was such as to impair his mental ability and concentration.
(v) In view of (iv) above, he could have been unable to give detailed and sensible instructions of the nature required for the dispositions contained in the alleged Will or to understand and approve its contents.
(vi) Whoever procured the signature of the deceased must have or ought to have been fully aware of the facts pleaded in sub-paragraphs (i), (ii), (iii), (iv) and (v) or at least of the facts pleaded in sub-paragraphs (iv) and (v) hereof.
6. The deceased at the time when the said alleged Will purports to have been executed was not of sound mind, memory and understanding.
(i) At the time the deceased executed the said alleged Will he was suffering from:-
(a) Hepatic failure;
(b) Gastro-Intestinal Bleeding;
(c) Cirrhosis of liver; and
(d) Diabetes Mallitus.
(ii) The plaintiffs repeat paragraphs (i)-(vii) of the particulars in paragraph 5 of this Statement of Claim."
I have in setting out these paragraphs of the statement of claim omitted paragraph 5(vii) for as I have said a little earlier I am perfectly satisfied with the evidence given in respect of the reason for inserting the date 21st January, 1969 on the Will and this disposes of this allegation in the statement of claim. The defendant's main assertions in relation to these averments of the plaintiff are contained in paragraphs 14, 15, and 17 of the statement of defence which state that:-
14. That the deceased personally gave instructions to A. Osijo, Esquire, Barrister-at-Law, to whom he gave detailed and sensible instructions about the dispositions contained in the said Will.
15. That the deceased at the time of giving instructions to the said A. Osijo, Esquire, and at the time of executing the said Will was of sound mind, memory and understanding and knew and approved the contents of the said Will and acknowledged his approval thereto.
17. That the said Will was executed with due solemnities by the deceased with a complete understanding and as a free agent without any undue influence or coercion as alleged or at all.
Paragraph 19 is also of some importance and though at a later stage I shall deal with the evidence relating to the health of the deceased I can even at this early stage in the judgment say that this particular paragraph is on the evidence adduced generally false in the part that states:-
19. "That the deceased's health generally was good..."
Whether the other allegations that:-
"...at no time did any bodily illness affect or impair his mental ability and/or concentration as alleged or at all."
is a matter with which I shall later deal and which in short is the crux of this case. I state now quite categorically that the evidence on all sides clearly showed that the deceased's health could not at the material time have been truly described as "generally good."
Now as to the onus of proof. The text books are quite explicit on this and the learned authors of Vol. 16 of the 3rd Edition of Halsbury's Laws of England state it in these words on page 205 paragraph 363:-
"The burden of proving due execution, whether by presumption or by positive evidence, rests on the person setting up the Will."
In Williams and Mortimer Executors Administrators and Probate at page 145 it is said that:-
"Although those propounding the Will must satisfy the court that the testator was of sound disposing mind, yet if the Will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce for it, presuming that the testator was mentally competent. Slight evidence of mental incapacity will not disturb the presumption.
It has, therefore, been said that the burden of proving unsoundness of mind lies on those who allege it. But when the whole evidence is before the court, the decision must be against the validity of the Will, unless it is affirmatively established that the deceased was of sound mind when he executed it."
Finally from the same authority as to "knowledge and approval" the author says at page 147 that:-
"A party who puts forward a document as being the true last Will of the deceased must establish that the testator knew and approved of its contents at the time when he executed it."
My attention was drawn to several authorities during the address of learned Counsel in the case which express in different words the statements of the law to which I have just alluded. As I gather from the evidence led by the plaintiff in support of the Statement of Claim it is the plaintiff's case that the illness from which the deceased died and/or from which he was suffering had reached such a stage that, at the time he made the Will i.e. on the 25th June, 1969, his mental capacity, his ability to understand the contents of the Will and to give instructions for its preparation were so affected by the illness that it could not be said to be his Will; that it could not be said that he knew and approved of its contents.
No dispute has arisen, and if in fact one did, I must say that as to the signature on the Will being that of the deceased the evidence of Mr A. Osijo is sufficient testimony quite apart from other factors. Further no argument has been put forward nor any evidence led to show that the terms of the Will are incoherent, or strange or unnatural or that the Will was not duly executed. All these matters have been satisfactorily established. But in view of the overwhelming evidence as to the illness of the deceased and the possible effect which such illness might or could have on anyone, depending on the stage of deterioration of the patient's health, the onus is placed strongly on those who wish to put forward the Will as the true last Will to establish the matters already stated above.
In the case of Tyrrell v. Painton & another 1984 P. 151 to which reference was made by Chief Williams for the plaintiff the facts were very much different to the present. As can be gathered from the report at pages 152 to 153 the testatrix Rebecca Bye a widow with no issue made wills in 1880 and 1884 in favour of the defendant J. Painton with whom she was on friendly terms. These wills were prepared by a sol