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 solicitor Mr Haines who usually acted for her. Subsequently the testatrix became dissatisfied with the conduct of J. Painton and so wrote to Mr Haines.
On the 17th October, 1892, she was ill and wrote to Haines to the effect that she wished to make a new will. Subsequently her illness increased and on the 7th November, 1892 Haines on her instructions prepared a fresh will in which she devised the bulk of her property to the plaintiff, her cousin, whom she appointed sole executor. This was the will propounded by the plaintiff and was duly executed.
On the 9th November, 1892 however Thomas Painton, a son of the defendant J. Painton brought another will to the testatrix in his handwriting by which nearly the whole of the property of the testatrix was devised and bequeathed to J. Painton absolutely. The will purported to have been signed by the testatrix and attested by Thomas Painton and a friend of his, no one else being present at the time. It was thereafter kept in the custody of Thomas Painton. She died on the 23rd November, 1892.
The learned President found in favour of the will of 9th November, 1892 and against the plaintiff. On appeal however Lindley L.J. and the court directed a new trial. At page 156 of the report the learned Lord Justice held that:-
"Now in my opinion, this will of the 9th was executed under such suspicious circumstances that he ought to have said, 'Do the defendants affirmatively establish to my satisfaction that the testatrix knew what she was doing when she executed this will?'
In Barry v. Butlin Parke, B., delivering the opinion of the judicial Committee, said: 'The rules of law according to which cases of this nature are to be decided do not admit of any dispute so far as they are necessary to the determination of the present appeal, and they have been acquiesced in on both sides. These rules are two: The first, that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased."
A little lower down the learned Judge went on to extend that principle in these words:-
"The rule in Barry v. Butlin, Fulton v. Andrew, and Brown v. Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will."
I think that case puts in a nutshell all that need be said, and in relation to which quotations were made from other cases by learned Counsel for the plaintiff, as to the onus of proof. The statement of the law by Parke B. in Barry v. Butlin was accepted by the West African Court of Appeal in the case of B. Johnson & others v. Maja & others 13 W.A.C.A. 290 and of this case as well as that of Christian v. Intsifil 13 W.A.C.A. 347, both of which went up to the Privy Council I shall later on make mention.
Now what is the evidence led, by those who seek to propound the Will, to satisfy "the conscience of the court that the instrument so propounded is the last Will of a free and capable testator"?
I have earlier set out the three categories in which the evidence may be placed. It will be convenient at this stage to deal with the evidence of the two experts called by the defendants i.e. D.W. 10. Dr Theophilus Oladipo Ogunlesi and D.W. 11 Dr Titus Olayemi Dada. I am indeed grateful to both of these expert witnesses for the manner in which they gave their evidence and for making the taking of evidence on such a technical matter comparatively easy.
Chief Williams for the plaintiff in his address has made reference to several authorities in which the evidence and opinion of experts is looked upon with growing suspicion and bias by the courts; and I think it only right to make mention of one or two of such authorities. In Phipson on Evidence the 11th Edition at page 510 the learned author says in paragraph 1286 that:-
"The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of preconceived theories; moreover, support or opposition to given hypotheses can generally be multiplied at will."
Finally in the case of Plimpton v. Spiller 1877 6 ChD 412, Thorn v. Worthing Skating Rink Company is reported at page 415 and Jessel M.R. is reported as saying at page 416 that:-
"Now, in the present instance I have, as usual, the evidence of experts on the one side and on the other, and, as usual, the experts do not agree in their opinion. There is no reason why they should. As I have often explained since I have had the honour of a seat on this Bench, the opinion of an expert may be honestly obtained, and it may be quite different from the opinion of another expert also honestly obtained. But the mode in which expert evidence is obtained is such as not to give the fair result of scientific opinion to the court. A man may go, and does sometimes, to half-a-dozen experts. I have known it in cases of valuation within my own experience at the Bar. He takes their honest opinions, he find three in his favour and three against him; he says to the three in his favour, Will you be kind enough to give evidence? and he pays the three against him their fees and leaves them alone; the other side does the same. It may not be three out of six, it may be three out of fifty."
It is of course true to say that any member of our honourable profession with some experience at the Bar, experience which has led him to require expert witnesses in some case or other will, yea must, endorse these words of the Master of the Rolls. I do however want to make it perfectly clear to those learned gentlemen of the medical profession who gave evidence before me that while I must decide this case before me on the facts as they were rather than on theories or suppositions, I have no doubt whatsoever that they gave their evidence in keeping with the traditions of their profession and in keeping with the oath they took before giving such evidence. I have no doubt that there was no endeavour on their part to mislead the court or to give evidence the truth of which they did not believe in. This case however will have to be determined with little regard for the evidence of the 10th and 11th Defence witnesses.
It therefore remains the evidence of the medical experts who treated the deceased on the one hand, and on the other the evidence of the other witnesses who lived, and or moved, with the deceased long before the material time down to or near the time the deceased met his death. I should at this stage mention that though in an earlier part of this judgment I had stated that the evidence of the medical experts who treated the deceased consisted of Dr Eyo and Dr Laja, I will when the time comes also have to consider the documentary evidence of Dr Sheila Sherlock who treated the deceased while he was in the United Kingdom.
I will now take the evidence of D.W.'s 2, 3, 4, 5, 6, 7 and 8. With the evidence of D.W. 2 and D.W. 3 one need spend little time. The evidence of the latter goes to show that on the 28th June, 1969 when the deceased was proceeding to the United Kingdom he went to his Bankers, Standard Bank, Apapa; behaved normally and conducted the normal business of a person going abroad and wishing to purchase travellers' cheques. This witness was not cross-examined and I accept his evidence in toto as going to show that on the 28th June, 1969 the deceased transacted business as a normal person travelling abroad would do.
Mrs Adunni Adebajo admits that the deceased was ill before he went to the United Kingdom but qualified it by saying that he was not very ill and that as far as she was concerned he looked his old self. The importance of her evidence lies in the portions where she deposed that:-
"I prepare his lunch and supper every day. He (the deceased) comes for lunch and supper at my place every day as from 1965. I came back from U.K. in January 1965. I used to see him every day. He spends the whole of Sunday with me."
and a little later on where she gave evidence of what the deceased did some two days after the making of the Will in dispute. She said that:-
"On the 27th June, 1969, my husband was at my place as usual until about 11 p.m. from 7 p.m. We had some visitors and later on we retired into the bedroom. We had a discussion about the name he was to give the child. He named the child and he sent for the 1st defendant, his brother who lives about 100 yards away from him. The brother came to meet us in the bedroom. My husband told him the name he was to give the child. My husband gave the 1st defendant a piece of paper but later on the deceased said withdraw this money for the naming ceremony."
This witness also gave evidence that she was the deceased's secretary as well and that she sat side by side with him in their office. Further, that between January 1969 and June 1969 the deceased, she said, "usually went to the office every day." She gave other evidence of the activities of the deceased between April 1969 and June 1969. The first defendant did not however give evidence on the matters set out above in relation to events of the 27th June, 1969.
I have been however unable to reconcile some parts of her evidence as to the deceased going to work every day or "usually every day" as she puts it, with a letter tendered by the defendants and purporting to have been written by the deceased, and dated 8th May, 1969. In that letter the deceased wrote to D.W.7. his sister as follows, inter alia:-
"Thank you for your letter dated 4th May, 1969 contents of which were carefully noted. It is a fact that I have been ill for the past six weeks and in fact I have not been to the office since then and I have been taking things easy..."
This letter was marked exhibit "D.4." It is important in its consideration to bear in mind that this letter was not in evidence while the plaintiff gave her evidence and she had deposed that:-
"Since January 1969 my husband was very ill but as from April 1969 he could not go to the office again. He always asked his private secretary to come and work in our dining room. He used to dictate to him in my presence. Sometimes half way through the dictation he would be tired and would go up and relax."
Exhibit "D.4" certainly supports the evidence of the plaintiff that the deceased was unable to go to the office around or as from the end of March to the date of the letter, i.e. 4th May, 1969. He was unable to go because he was ill, but he did his work at home. I find it hard to believe that the deceased at a time when the evidence clearly shows he was ill would write a "lie" about himself. I accept the contents of that letter and in as much as this witness has been discredited on quite a major issue I find it difficult to accept any part of her evidence unless where corroborated by a witness against whom I have found no fault.
The evidence of the next witness Mr E. Adeyemi D.W.5. did not take the case any further. It merely showed that on some unknown date in June 1969 he went to discuss certain Church matters with the deceased at the latter's house and that the deceased behaved normally and in no way different from his previous behaviour.
I will take the evidence of the next witness Mr James Omirin D.W.6. with that of Mr A. Osijo D.W.9 at a later stage of this judgment for they were the only two witnesses to what took place on the 25th June, 1969. I then pass on to the evidence of the deceased's sister Mrs Florence Adenike Odunsi D.W.7. Her evidence though mainly related to events after the making of the Will, with particular reference to when the deceased arrived in England on the 28th June, 1969; his discharge from hospital in England; and his readmission into hospital, however has bearing on events before the making of the Will by virtue of the correspondence that passed between her and the deceased. The long and short of her oral evidence went to show that as from the deceased's arrival in England to 30th June, 1969 when he was admitted into the hospital he had business discussions with a contractor about repairs to his house; discussions with this witness as to all the things he asked her to buy for him as contained in exhibit "D.4", and that on all occasions the deceased went about the house, up and down the stairs unassisted. She went on to say that:-
"The deceased did not look any different on that day and he behaved as he used to do before."
The witness visited the deceased every day while he was in hospital till his discharge on the 19th July, 1969. During the time she visited the deceased she said he spoke sensibly. The witness left London on the morning of the 25th July, 1969 and the deceased died in the evening. During cross-examination she frankly admitted that her memory had failed her as to the part of exhibit "D.4" where the deceased had written that he had not been going to work. I found her however to be a reliable and an impressive witness. Her evidence as to what took place during this period was not in any material way in conflict with that of the plaintiff. I accept her evidence, bearing in mind what I have said about exhibit "D.4." without any other reservation.
The evidence of Mr Walter Oyatagun D.W.8. deals with the activities of the deceased up to and around the 9th May, 1969. While it showed that the deceased attended Council meetings of the Sports Centre Management Committee and played a great part in the raising of funds, it fails to tell us anything about the deceased during the material month of June 1969.
Summarising the evidence in this category of witnesses, and without the evidence of Messrs Osijo and Omirin, we have the evidence of Mr Fadipe as to what the deceased did on the day he travelled to England, i.e. the 28th June, 1969; the evidence of Mrs Adunni Adebajo which I have said requires corroboration; the evidence of Mrs Odunsi mainly as to events of the 28th June, 1969 and finally of Mr Walter Oyatagun as to events up to the 9th May 1969.
What is the evidence of the plaintiff on the other side of the fence? In addition to the portion to which I have already made reference she said further that:-
"Around June 1969 Dr Ekpo Eyo used to visit him every day. He could not go to the office again. Sometimes if he had some very important things to do in the office he would ask me to drive him down. He always used to feel tired and would stay in bed."
I found that in the same way as Mrs Adunni Adebajo endeavoured to minimize some matters relating to the health of the deceased so did Mrs Irene Adebajo endeavour to magnify them. I have accepted the statement in the deceased's letter that from around the end of March to early May he did not go to the office but I do not believe the evidence given by the plaintiff that even in June he could not go to the office. The evidence does not show this, nor does the evidence of Mr Omirin, with which I shall later deal.
The plaintiff would have me believe that, during a party she gave four days before she left with the deceased for the United Kingdom; which party or "Sara" as she called it was attended by about twelve heads of staff of the office and the deceased's brother, the 1st defendant, in her own words:-
"My husband did not talk to any member of the party but someone prayed for the deceased's safety."
What was the need for this apparent untruth? Then again what was the need also for the apparent untruth in her evidence under cross-examination that:-
"My husband was not going to the office to work. He stopped going in March or April to the office. The secretary used to come to the house. My husband did not visit the office before he left for United Kingdom."
The evidence is clear that on the 25th June, 1969 the deceased did go to the office. Then again on the evidence under cross-examination she admitted that:-
"Sometimes he (deceased) goes out on his own and sometimes I would drive him and sometimes the driver would drive him."
How then could she positively swear that he never went to work from April to the time he left for the United Kingdom and how could she swear further that:-
"My husband did not visit the child of the 5th defendant before he went to England."
It would be wrong for me to accept the evidence of the plaintiff any more than that of Mrs Adunni Adebajo except where such evidence is corroborated by the evidence of a reliable witness or unimpeachable documentary evidence. I think a fair summary of the evidence of the plaintiff and those witnesses of the defendants with whom I have already dealt show conclusively that the deceased was ill during the relevant period; that he absented himself from office between the end of March and early May but at the same time he worked in his house with his secretary in attendance; that he attended meetings; worked at the office at other times and appeared normal both in behaviour and conversation. Some of the letters tendered during this period are glowing testimony of his full possession, when they were written, of his mental capacity. I will here make reference to a few. In exhibit "D." written on the 3rd March, 1969, he wrote to one Mr Adewale and copied same to a Mr Badejo in which he requested the former to do certain things for him before returning home. In exhibit "D.1." he wrote to Mr Badejo inter alia that:-
"I have written to the Eastern Electricity and a copy of their letter posted to you. No doubt you must have received same. I have also asked my friend Mr M.S. Adewale to come and collect the parcel from Joseph Gloster Limited and I hope he will do this but if not, you can send it to Mr Oyewole Agunnusi whose telephone number is 01-743-3841 and ask him to send the parcel to me.
Thanks for the enclosed letters from Messrs South British Insurance Company Limited, G.G. Southcott Co. Partnership Limited, Karl Bene and a letter to Mrs Shote. In future, do not open private letters of somebody as Mrs Shote complained bitterly that her letter was opened."
This was written on the 12th March, 1969. A perfectly normal letter though the English may not be grammatically correct or the punctuation wholly in order. In exhibit "D.3" he admits his illness but was able to forward cheques in respect of light and gas for his building in England. In the penultimate paragraph he says that:-
"With regards to Mr Shote, I suggest we leave him to his conscience. I shall write you again when I am fully settled down."
Exhibit "D.4" has been earlier dealt with and exhibits D.5 to exhibit "D.14", the last of which was written two days before the date on the disputed Will, all show normal letters written by the deceased with no hint whatsoever of an affected mind at the time they were written.
That however is not the end of the matter for what is important is the state of health and mental capacity of the deceased when he made the document in dispute. A man may be perfectly able to make a Will on the 5th March, 1971 and yet incapable of so doing on the 4th or 6th March, 1971 depending on the nature of his illness and its severity. I therefore turn to the evidence of the only two witnesses present when the deceased is alleged to have made the Will in dispute.
Mr James Omirin, D.W.6, clerk in the Accounts Department of Nigerian Stationery Stores gave evidence that the deceased came to him in his office at 9 a.m. on the 25th June, 1969, and told him that he would like to see him in the deceased's office by 11 a.m.; that a few minutes to 11 a.m. the deceased came to him again to call the witness and I now quote his evidence as he gave it:-
"On getting to the office I met Lawyer Osijo and Mr Oyebanjo. He brought (i.e. deceased) out a file of papers. He (i.e. deceased) said to myself and Mr Oyebanjo this is my Will, please witness it for me. After the deceased had signed, Mr Oyebanjo signed and I signed last. He then said thank you."
He then gave evidence to show that the Will was duly attested as required by law and added that "Each time the deceased came to call me in my office he came alone unassisted. The deceased behaved normally as usual that day." He was not shaken in cross-examination and when asked about the activities of the deceased during the period April to June 1969 stated that:-
"At that period I used to see him in the office but not very regularly as he used to do."
I have no doubt that his evidence was given with the fullest regard for the oath he took and I accept it in its entirety subject only to my finding or acceptance of the deceased letter as to when he did not go to the office. He appeared impressive and detached from the squabbles that this Will has brought about.
Finally as to the events on the 25th June, we have the evidence of Mr Osijo, D.W.9. He has known the deceased since 1948 and was a friend to him as well as his legal adviser. He gave evidence that the deceased instructed him about the second half of May 1969 to prepare his Will; a draft was prepared and taken to the deceased. It was in long hand and was later returned with instructions to put it down in type. Three copies were asked for and were prepared. On the 23rd June, he received information that the deceased would like to see him urgently. He went that very day and the next portion of his evidence is so vital that I ought to quote his own words. He said:-
"I went and saw him with Dr Eyo. In Dr Eyo's presence the deceased said that the medical expert had told him to organise his things and he was ready to execute all documents. I then took them away and asked if it was his Will he was prepared to execute and he said yes. I said I would be available on the 25th June, 1969 and that he should try and get two attesting witnesses ready. I told him I would be available at 10.30 a.m. in his residence. I was there about that time in the deceased's car. We drove to his office."
Stopping there for the moment to make two comments. Firstly, I shall when I come to take the evidence of the medical experts who treated the deceased have cause to comment on the conflict of evidence between this witness and Dr Ekpo Eyo. Secondly, it might at first sight seem that the evidence of Mr Osijo contradicts that of Mr Omirin as to the deceased being at the office at 9 a.m. when Mr Osijo said at 10.30 a.m. he drove with the deceased from the latter's house to his office. When however we remember the evidence already given as to the proximity of the deceased's house from his office and the evidence of Mr Omirin that the deceased came to call him again a little before 11 a.m., it stands to reason that the deceased left his office for his house between the two calls.
Mr Osijo continued his evidence in these words:-
"In the Management section in the office the deceased brought out the Will. He had one and I had another. He was reading it out and I checked with the copy. At the end he said he was satisfied. At that time there were only two of us. After checking he went out and brought Mr Oyebanjo and also Mr Omirin. Before they came in I told the deceased to tell the witnesses that he was going to execute his Will and he wanted them to witness. He did so and the witnesses executed. He covered part of his Will."
He then went on to give evidence about the date to be put on the Will, a matter with which I have already dealt. The witness then lodged one copy of the Will with Barclays Bank and another with Standard Bank on the instructions of the deceased. He kept the third copy in his possession. He wound up his examination-in-chief with these words inter alia:-
"I know that for some time he (the deceased) had not been well but his actions and his speech were normal. There was nothing abnormal about his behaviour ..."
The witness was ably cross-examined by learned Counsel for the plaintiff but was in no way shaken. It is true that there was some misunderstanding about the use of certain words in examination-in-chief which gave the impression that the witness despatched the draft Will to the deceased through a third party whereas the witness said what happened was he took the draft himself. Learned Counsel for the plaintiff in his address and during cross-examination of this witness made much of the evidence that while the deceased read out a copy of the Will this witness said he checked on another copy, inferring that a "meticulous man" such as the deceased was said to be would not find this necessary. I must confess I see nothing odd in what the witness said the deceased did on that day. Under re-examination he identified the copy tendered in evidence i.e. exhibit "B.B." as one of the two copies read and checked on the 25th June, 1969. As to the events that took place on the 25th; as to the instructions given by the deceased to this witness to prepare the Will; and as to the attestation of the Will I accept the evidence of Mr Osijo in every particular. Mr Osijo, quite apart from the matters related above, also gave evidence generally of the activities of the deceased between March and May, 1969; how he appeared in the Lands Registry in respect of the registration of property; how he attended football matches, etc. had no cause to doubt his veracity on these matters and I also accept this part of his evidence.
Now in opposition to this evidence as to events on the 25th June, 1969 and the behaviour of the deceased on that day, the only evidence given for the plaintiff apart from the medical evidence with which I shall deal later, is that of the plaintiff herself. In her evidence-in-chief quite apart from speaking generally as to the illness of the deceased she said nothing about his mental capacity around or on the day the Will is alleged to have been executed. Apart from the fact that it was executed in deceased's office I would have expected, in support of her writ, some evidence tending to show that around that period the deceased found it difficult to grasp things mentally. On the contrary she gave evidence as I have related that the deceased used to work at home and his secretary took dictation in the deceased's house. I have already commented on some of the letters written by the deceased during the relevant period. Under cross-examination she stated that:-
"My husband was a nice and pleasant man and very intelligent. He looked after me well and I looked after him well. My husband was not mental. Sometimes when he was not well he does not want to talk or do anything."
On the evidence so far dealt with, unless the medical evidence of the experts shows otherwise, there is more than enough, (1) in the words of Lindley L.J. to satisfy "the conscience of the court that the instrument so propounded is the last Will of a free and capable testator", and (2) to remove any suspicion which may have been cast on the Will. It affirmatively shows that the testator knew of and approved of the contents of the Will.
Before proceeding to the final stage I think this is a convenient stage to deal with the two cases of which I made mention a little earlier in this judgment. In the case of Johnson & another v. Maja & others 13 W.A.C.A. 290 the executors asked the court to declare in solemn form the Will and codicil of the testator. The widow challenged the Will on the grounds that it was not properly executed; that the testator was not of sound mind and that he was unduly influenced by his mistress. The trial Court found the allegation proved. On appeal to the West African Court of Appeal the appeal was allowed. In the judgment of the court delivered by Lewey J.A., the learned Justice of Appeal said inter alia at page 294 that:-
"Now, as to the testamentary capacity of the testator. What was the evidence produced by the respondent upon which the Judge found for her in the face of what had been sworn to by the testator's two medical attendants and personal friends, and by Mr Bright Wilson, also a friend and a member of his own profession? .... The only witnesses were the widow, Mrs Johnson, and her daughter, and they spoke chiefly as to the testator's behaviour in the period following his recovery from ill-health in 1943. I cannot find on an examination of that evidence that it assists, in any material sense, to decide the question of the testator's capacity to make a will .... Above all, it fails entirely, in my view, to weaken the evidence adduced by the plaintiffs ...."
One must of course in the consideration of this case bear in mind that whereas in the case before me, the deceased died the month after making the Will, in the above case he did not die for another five years after making the Will and was able to practise his profession during that period. At the same time it must also be remembered that the evidence was that the deceased some two years before making the Will had suffered an "attack of stroke" and one medical expert described him as "suffering from physical and mental exhaustion."
In the case of Christian v. Intsiful the testator's sight was poor and the court of first instance held that owing to the feeble state of his health and his bad eyesight he was not competent at the time of execution of the Will to make a Will. The Appellate Court reversed this decision which was affirmed by the Privy Council. Foster-Sutton, President of the West African Court of Appeal held inter alia that:-
"There was evidence that in November, 1944 the testator was in a feeble state of health and that his eyesight was poor. Both of the witnesses I have already referred to gave evidence that the testator's hand had to be guided when he made his signature of the Will.... In my opinion the better view of the facts in this case is that the testator was fully aware of the contents of exhibit P1 when he executed it on the 20th November, 1944, that he knew what he was doing and wished to make his last will and testament. To hold otherwise would defeat the testator's wishes which he has clearly expressed and wished to be carried out."
The better opinion here, in fact the uncontradicted opinion as to what happened on the 25th, was that the deceased as I have said before was fully aware of the contents of the Will; that he knew what he was doing and wished this to be the last expression of the manner in which his properties were to be distributed after his death.
Has the evidence of Dr Ekpo Eyo and/or Dr Laja in any way affected the clear and precise evidence of Mr Osijo and Mr Omirin? I will take that of Dr Laja first as he gave evidence for those on whom the burden of proof lay. Dr Laja is the Senior Consultant Pathologist attached to the General Hospital, Lagos. The main part of his evidence relates to the examination carried out by Dr Eyo, Dr Esua and himself on the deceased in June, 1969. His evidence on this point is as follows:-
"He (the deceased) was examined in one bedroom on the first floor. The deceased walked upstairs. At the time of examination, Dr Eyo, Dr Esua and I were present with the deceased. We examined Mr Adebajo and we were very unhappy that the liver was not satisfactory and we felt that some other examination should be carried out. He looked a little tired and his abdomen seemed a little big. The only thing that worried us was the condition of his liver. We talked to him and he answered us very well. They were the sort of answers I would expect from any person... It was not my impression that his concentration was very poor and was not maintained. To look tired and lethargic is a matter of degree."
He then went on to deal with the deceased's ailment and on another point on which his evidence conflicts with that of Dr Eyo he said that:-
"Among us, i.e. Dr Esua, Dr Eyo and I, we agreed that it would be best for us to tell a close member of the family to tell Mr Adebajo to put his business and affairs in order before he went (to the United Kingdom)."
He did not however tell the deceased for he said he left it to one of the others to do so as they were closer to him than the witness. This witness is not an expert on liver diseases and he concedes that where a conflict of opinion exists as to clinical matters and on the examination of patients Dr Eyo's opinion would or should override his. One thing however is certain and that is that one does not have to be a medical expert in order to be able to assess whether a man was talking or answering in an intelligent manner. Dr Laja did not say when in June this took place but the evidence of Dr Eyo was that this took place on the 19th June, 1969 some four days before; in the evidence of Mr Osijo if accepted on that point, the deceased had said to him that his medical expert had told him to put his things in order.
Dr Eyo on the other hand said this:-
"While awaiting the report (of the Dental Surgeon) I received an urgent call on the 19th June, 1969 from the deceased inviting me over immediately. I went to the house to see him. He was in a very poor condition. I went in the evening with a colleague of mine."
Under cross-examination he said:-
"Dr Laja went with me to see the deceased on the 19th June, 1969 and that is what I recorded. I cannot remember if he was with me throughout the examination but he was in Mr Adebajo's house .... I cannot remember if Dr Laja was present in the bedroom when I examined the deceased. Since April 1969 I had become apprehensive about the health of the deceased, hence I invited Dr Laja with me and I used to discuss any clinical features formally and impersonally with Dr Laja from time to time after consultations with Mr Adebajo. It was necessary to solicit Dr Laja's assistance because I required very prompt results and reliable results on all tests done on the deceased in the pathological laboratory ..."
A little earlier he had said about the occasion when he went to see the deceased with Dr Laja that:-
"The deceased talked to me about the complaint in the presence of Dr Laja. I understood what he said to an extent ... I feared the deceased was likely to die. I advised the deceased that he might be away for a long time. I did not tell him to put his business in order. The deceased asked me for how long he would be away, and I said he would be away for a long time and after that he might wish to rest after treatment. I do not remember saying a little earlier that I told the deceased to do all he could ..."
There certainly are conflicts between the evidence of Dr Laja and Dr Eyo. Chief Williams has said that the onus is cast on the defendants to resolve the differences by calling Dr Esua who was also present on the 19th June, 1969. If Dr Esua had been called and he had supported one side or the other, the matter would not be resolved by sheer numerical strength of the witnesses. In all cases it is for the court to decide, after seeing the witnesses and hearing them, which one of them is or is not telling the truth. It is, of course, possible and often happens that the party whose evidence is rejected is not giving deliberate false testimony for his memory may have failed him on those occasions. Now Dr Laja said that the deceased "answered very well" the questions put to him and that his answers "were the sort of answers" expected from any person. Dr Eyo on the other hand said "to an extent" he understood what the deceased said. Dr Eyo wrote in exhibit "F.1" about the deceased that "concentration very poor and not sustained. Lethargic, conversation poor ..." but Dr Laja said in evidence "It was not my impression that his concentration was very poor and was not maintained. To look tired and lethargic is a matter of degree." He also added that "I would not say that on these occasions the deceased was hardly able to stand up." Now surely one does not expect the evidence of two medical experts to vary so grossly on a matter or matters within the competence of a layman? Is it feasible that a man who on examination is described as "hardly able to stand" would have been able to go upstairs unassisted and after the examination come down unassisted. If this were the case, would one not have expected someone, who had been the deceased's personal physician some five years before the deceased's death, to have assisted the deceased downstairs after the examination or to have ordered him to rest instead of coming down.
Then again if, as Dr Eyo said "I feared the deceased was likely to die", is it too much to expect that he would have had discussion with Dr Laja as to advising the deceased to put his house in order before going away for the length of time Dr Eyo said he told the deceased he would be away? I am aware and I must take judicial notice of the fact that a doctor is under a duty of non disclosure of the seriousness of the ailment of a patient to that patient, but I find it hard to throw aside as mere fantasy or imagination the evidence of Dr Laja that the three medical experts did discuss this matter and that they decided one of them should so advise the deceased through a close member of his family. Is it also the imagination of Mr Osijo that some four days after the medical experts had examined the deceased that the deceased told him, and in the presence of Dr Eyo, that the "medical expert had told him to organise his things"? I am aware that this portion of the evidence given by Mr Osijo was not previously put to Dr Ekop Eyo but that does not detract much from the sequence of events that (1) this conversation is alleged to have taken place on the 19th June, 1969; (2) that on the 23rd June, 1969 the deceased called his personal legal adviser for the purpose of so putting his things in order and (3) that on the 25th June, 1969 a document purporting to be a Will was duly signed by the deceased.
The evidence is in my view overwhelmingly in favour of the versions of Dr Laja and Mr Osijo. I find that the three medical experts did so discuss this point and come to the conclusion to which Dr Laja said they did. I am not holding in the absence of Dr Esua that it was Dr Ekpo who so advised the deceased. It is not of importance to so hold one way or the other. Why did Dr Eyo seek to withhold this information from the court. I remember an occasion during the cross-examination of Dr Eyo, and I have recorded one of the quotations from his evidence, where Dr Eyo did in fact make a statement to the effect that:-
"I told the deceased to do all he could ..."
Before he could complete the sentence and before it could be recorded another question was put to him by learned Counsel for the defendant thereby leaving this incomplete. When later requested to complete the answer by learned Counsel for the defendant he denied, as I have recorded, that he does not remember ever saying it. There is no doubt he had in fact said so.
At no stage was the question directly put to Dr Eyo in examination or cross-examination whether, in the face of his evidence of his treatment of the deceased and the illness from which the deceased suffered, he was capable of understanding or making a document such as a Will during the relevant period between the 19th June when he was examined and the 25th or 28th June when the document was made, or he proceeded to England respectively. It is Dr Eyo own evidence that:-
"In liver failure there are no clearly defined stages. You have the pre-coma which is anything from being healthy to being comatose and the coma where the patient becomes unconscious."
A little earlier and when giving evidence on exhibit "O1" he said:-"The deceased at that time was going into liver failure."
Stopping there for a moment, exhibit O1 is dated the 23rd June, 1969, and was a cable sent to London on behalf of Dr Eyo by Dr Pickering to acquaint them with the condition of the deceased before admission.
The point to which I am driving is that on the 23rd, according to Dr Eyo the deceased was only just going into liver failure which, again on his evidence, "is anything from being healthy to being comatose" in the precoma stage. Dr Eyo has told us that he is not an expert on liver diseases. In this exhibit i.e. "O1" it is said that "probably diagnosis carcinoma biliary tract", but we have Dr Eyo saying that that was merely put there in order to make the deceased's case of sufficient urgency to warrant immediate admission and that the deceased did not in fact suffer from cancer.
But on the 24th June, 1969 Dr Eyo wrote exhibit "P" to Professor Sherlock who was eventually to be in charge of the deceased and he said inter alia that:-
"A growth in the biliary duct must also be considered ..."
In this exhibit he also said that "I have withheld doing a liver biopsy because I would like him to consult you." A biopsy he informed me in evidence was:-
"....a form of taking a piece of the liver for histological examination by piercing through the skin into the liver."
One could go into quite a great deal of the technical evidence adduced by Dr Eyo on this subject but apart from making unnecessarily unwieldy a judgment which is already of some length, I find it unnecessary in view of the line of action I have taken with respect to the evidence of the medical experts Doctors Ogunlesi and Dada called by the defendants.
It is however important to note that Professor Sheila Sherlock wrote to Dr Eyo two letters of some importance on the 23rd July and the 25th July, 1969. In the former she said inter alia that the deceased:-
"....is now showing mild changes of hepatic pre-coma...."
and in the latter she said:-
"I am very sorry indeed to tell you that Mr Adebajo died this morning. As I told you, he had developed pre-coma and last night, suffered a huge gastrointestinal haemorrhage. Despite Pitressin and the Sengstaken tube, he went into liver failure and died."
Now these exhibits speak of the patient "showing mild changes of hepatic pre-coma" on the 23rd July, 1969 and the patient having gone "into liver failure and died" on the 25th July, 1969. The words "going into liver failure" were the words used by Dr Ekpo Eyo to describe the condition of the deceased as at 23rd June 1969. Dr Ekpo Eyo concedes that:-
"A liver biopsy followed by histological examination of the specimen gives a most conclusive evidence of hepatic cirrhosis."
He never did this examination but Professor Sherlock did such biopsy as is stated in exhibit Q. Further Dr Eyo in his evidence stated that:-
"I also had in mind liver failure, severe acute infective hepatitis, toxic destruction of the liver were also matters I had in mind when exhibit O1 was sent. What I was definite about was that he had a disease involving his liver. A man with a liver disease may live 20 years depending on the type and severity of the disease ... I would be prepared to accept an opinion given on the liver by someone like Professor Sherlock as I am not a liver expert."
I think I am being extremely fair to Dr Ekpo Eyo when I say that on the main issue and during the material time the two quotations above represent the portion of his evidence acceptable to me. I regret to have to say for reasons already given and for others which I will mention, I have not found his evidence reliable and consistent, on the two issues as to:-
(1) events of the 19th June 1969 and
(2) the general, overall condition of the deceased between that date and the 28th June, 1969.
Another reason why I have not found his evidence reliable is because I have found it difficult to understand why exhibit F1 should stop at the 19th June, 1969. The last recording read thus:-
"For investigations and Ba meal ... To arrange a transfer to U.K.?"
Is it too much to expect the results of the investigations and the Barium meal to have been recorded if done and taken, for his own oral evidence was that:-
"Mr Adebajo was up to the 19th June on treatment and my advice was that he should continue the treatment and have a good rest for the night then we would do the battery of investigations the next day before deciding on a change of therapy."
The result of the examination of the medical evidence of Dr Laja and Dr Ekpo Eyo has in no way shown that, the evidence of Mr Osijo as to the mental ability of the deceased to make the Will; the evidence of Mr Osijo that he gave instructions for the making of the Will; or that he read it over and agreed it conveyed his true intent, has the slightest taint of unreality or falsehood. On the contrary, the evidence of Dr Laja which I accept as to what happened on the 19th June bears out the evidence of Mr Osijo which I accept in toto.
It has not been possible in this judgment to make mention of each and every one of the innumerable exhibits tendered in evidence. Those of which I have made mention are those which have to a greater extent assisted me in the decision to which I have come. Many that were tendered were irrelevant but they have all been read and considered before coming to any conclusion which in the main is a question of fact as to the condition of health and mind of the deceased on the 25th June, 1969. Perhaps I should single out exhibits X and X.1 for the following comment. I am aware of the admitted fact that Professor Sheila Sherlock treated the deceased during the last month of the latter's life and that she is an expert in the field of liver diseases. I have in spite of that excluded any consideration for the expression of opinion given by her in exhibit X.1 which arose from a question posed to her in exhibit X by Counsel for the defendant on a matter in issue in this case. I have never leant favourably towards the admission in evidence of expert opinion on matters in issue in a cause which opinion is expressed in written form without the writer being made available for cross-examination.
For the reasons expressed therefore this action must fail and pronouncement made in favour of the Will dated the 21st January, 1969 made and executed on the 25th June, 1969 by the deceased.
I shall hear the parties on costs.
Mr Sofola:-I would suggest that costs be taxed. Many things would have to be looked into. Some costs would have to be paid by plaintiff personally. If Court agrees that this action is one which should not have been brought then the court can make the plaintiff pay the costs personally.
Chief Williams:-I would prefer to leave costs in the court's discretion. The only extraordinary costs we incurred was the deposit of money for the passage of Dr Eyo.
Court:-Costs to be taxed by the Chief Registrar of this Court. In view of the importance of the case and its difficulty I am of the view that this is a fitting case for costs of a leader and two juniors. Costs to be purely the costs of the preparation and conduct of the case.