18TH APRIL, 1973

 SUIT NO. SC 8/1972

3PLR/1973/4  (SC)



(1973) 4 S.C. 37


BEFORE THEIR LORDSHIPS                                 









  5. OLABISI ADEBAJO (For herself and on behalf of her children Adekunle Adebajo, Adeyanju Adebajo and Adenrele Adebajo)

(For herself and on behalf of her children Adetilewa Adebajo, Adekeye Adebajo and Adefemi Adebajo)




Wills – Validity of Will in issue – Issue to be tried settled by parties before trial – Onus of proof – Proponents to establish that testator knew and approved contents of the Will.


Civil Action – Practice and Procedure whether counter-claim is necessary to entitle defence to an order pronouncing in favour of the Will.




Chief F.R.A. Williams (A. Araoye with him) for the Appellant.

  1. Sofola (A. O. Adefula with him) for the Respondents.


ELIAS, C.J.N. (Delivering the Judgment of the Court): This is an appeal against the judgment of Taylor, C.J., in Suit No. LD/22/70 delivered in the Lagos High Court on November 12, 1971 in which he dismissed the action of the plaintiff and pronounced in favour of the will of Israel A.O. Adebajo (deceased) dated January 21, 1969 and made and executed on June 25, 1969 by the said deceased. On January 13, 1970, the plaintiff issued a writ against the first three defendants in these terms:


“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 day of July, 1969 in the event of intestacy and to have as such a grant of letters of administration of the estate of the said intestate.


  1. This writ is issued against you as the executors named in a pretended will of the said deceased dated 21st day of January, 1969 against which the plaintiff asks the court to pronounce in this action.


  1. The plaintiff accordingly claims a declaration that Israel Adebayo Ogunyeade Adebajo died intestate.”


On February 25, 1970 a Statement of Claim was filed while on March 12, 1970 the Statement of Defence was also filed. On April 10, 1970 and on the plaintiff’s application the court granted an order joining the 4th to the 8th defendants. The 6th and the 7th defendants are the deceased’s brother and sister respectively of the full blood while the 8th defendant is a cousin and a beneficiary under the will. It was agreed by both sides at the commencement of the hearing that the question whether or not the plaintiff was married to the deceased was not in issue in the present suit.


Because of the importance of the issue and of the nature of the order made in the judgment, we think it convenient to set out here the portion of the judgment appealed from dealing with the settlement of the issue agreed to be tried between the parties:


“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. Kehinde 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 F.R.A. Williams above.”


The plaintiff called only one witness apart from herself, and the defendants, eleven. She gave evidence as to the health, appearance and general activities of the deceased, and her only witness was Dr. Ekpo Edet Eyo, a medical specialist who treated and looked after the deceased almost until his death. Among the eleven defence witnesses were the 6th defendant who claimed to be the deceased’s third and last wife, Dr. A.O. Laja (a medical pathologist who had from time to time carried out blood and urine tests on the deceased at the request of Dr. Eyo), one Mr. James Omirin who was one of the deceased’s employees and who was one of the attesting witnesses, and a Mr. Adeyanju Osijo, the solicitor who prepared the disputed will.


The trial lasted several days. The first question was to decide the date of the will. The plaintiff complained that, although the will was expressed to have been made on January 21, 1969, it could not have been so made because on that day, Yakubu Gowon Street which was referred to in the will had not yet been so renamed from the Broad Street as it was known up to and beyond that date. On the evidence of both the plaintiff and of Mr. Osijo, the learned Chief Justice said as follows:


“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 day of January, 1969, but on the 25th June, 1969 and executed on that day.”


He thereupon held:


“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 day of 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 question considered by the learned Chief Justice was that of the onus of proof. In this connection we note that paragraphs 4, 5 and 6 of the Amended Statement of Claim read as follows:


“4.     At the time when the alleged Will was executed the testator did not know and approve of its contents.


  1. The nature of the case on which the plaintiff intends 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 specialized 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.


(vii)   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.


  1. 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 Mellitus.


(ii)     The plaintiffs repeat paragraphs (i) – (vii) of the particulars in paragraph 5 of this Statement of Claim.”


To these averments the defendants’ replies are stated in paragraphs 14, 15 and 17 of their Statement of Defence as follows:


  1. 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.


  1. 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, and


  1. 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.”


The learned Chief Justice then considered a number of authorities, including passages from Halsbury’s Laws of England, 3rd Edn., p. 205, para. 363, and Williams and Mortimer’s “Executors, Administrators and Probate,” at pp. 145 and 147, and held that the onus is on the party who puts forward a document as being the true last Will of the deceased to establish that the testator knew and approved of its contents at the time when he executed it. He said that he understood the plaintiffs case to be that the deceased was at the time of making the will on June 25, 1969 so ill that he lacked the mental capacity to understand the contents of the will and to give instructions for its preparation – in short, that it could not be said that the deceased knew and approved the Will. The learned Chief Justice made this finding on the case for the defence:


“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.”


In view, however, of the “overwhelming” evidence as to the illness of the deceased and its possible effect on his capacity to make the alleged Will, the learned Chief Justice put the onus on the defendants to establish by affirmative evidence that the deceased knew and approved the contents of the will, and so to satisfy “the conscience of the Court that the instrument so propounded is the last will of a free and capable testator” in the words of Parke, B. in Barry v. Butlin (2 Moo. P.C. 480). After considering a number of decided cases such as Tyrell v. Painton & anor (1894) p.151, Johnson AND OTHERS v. Maja AND OTHERS . 13 W.A.C.A. 290, and Christian v. Intsiful 13 W.A.C.A. 347, the learned Chief Justice examined closely the evidence of each of the seven defendants who testified before him as well as the evidence of their witnesses and carefully contrasted it with the evidence adduced by the plaintiff, and summarised his findings thus:


“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.”


What really mattered, however, was the state of health and mental capacity of the deceased when he made the will. The learned Chief Justice then examined the detailed evidence of Mr. Osijo, the solicitor who made the Will and who described how it was executed on June 25, 1969, and also gave evidence of Mr. James Omirin, an attesting witness who gave a graphic account of the procedure of and the actual execution of the Will on that day. As against this evidence of the due attestation of the Will and of Mr. Osijo about the general activities of the deceased between March and May, 1969, including the deceased’s visit to the Lands Registry in respect of the registration of property and his attendance at football matches, the plaintiff, apart from speaking generally as to the illness of the deceased and apart from the medical evidence of Dr. Eyo, “said nothing about his mental capacity around or on the day the Will is alleged to have been executed.” The learned Chief Justice further observed:


“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’.,,


The medical evidence of Dr. Eyo, the plaintiff’s only witness, was that he went with Dr. Esua and Dr. Laja on June 19, 1969 to see the deceased who “Was in a very poor condition,” that ‘the deceased talked to me about the complaint in the presence of Dr. Laja,’ and that “I understood what he said to an extent.” Dr. Laja, on the other hand, testified inter alia, as follows:


“He (the deceased) was examined in the 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.”


The learned Chief Justice carefully evaluated the conflicting evidence of both doctors and decided to disregard the oral evidence of the two Nigerian medical experts (Dr. T.O. Ogunlesi, 10th defence witness, and Dr. T.O. Dada, 11th defence witness) and the letter of the U.K.-based English medical expert (Dr. Sheila Sherlock) to Dr. Eyo favourable though these pieces of evidence were to the defence. He found Dr. Eyo a most unsatisfactory witness whose evidence he disbelieved. His findings he summarised as follows:


“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.”


The learned Chief Justice accordingly dismissed the plaintiff’s action and pronounced in favour of the Will dated the 21st January, 1969 and made and executed on the 25th June, 1969 by the deceased.


The present appeal has been brought against that judgment on the following grounds:


  1. Judgment is against the weight of evidence.


  1. The learned Chief Justice erred in failing to accept as reliable the evidence of Dr. Eyo and also in preferring the evidence of Dr. Laja to that of Dr. Eyo when:


(a)     the evidence of Dr. Eyo was materially corroborated by notes which he prepared at all material times as well as by the documentary evidence, especially those relating to medical records and data concerning the deceased;


(b)     the evidence of Dr. Laja was based purely on his recollection of events which took place some two years before he testified;


(c)     there was evidence before the learned Chief Justice showing that the recollection of Dr. Laja could not have been entirely reliable;


(d)     all or almost all the materials relied upon by the learned Chief Justice to discredit the evidence of Dr. Eyo were not put to Dr. Eyo in the course of his testimony.


  1. The learned Chief Justice misdirected himself on the evidence in holding that the plaintiff did not prove facts showing the state of health of the deceased on the 25th of June, 1969 (the date on which the Will was made) when:


(a)     the onus of proof was on the defence;


(b)     the alleged date on which the will was made was not pleaded;


(c)     the alleged date was not brought into the evidence until sometime after the commencement of the case for the defence, and on the face of the material then available to the plaintiff the Will was made on the 21st of January, 1969.


  1. The learned Chief Justice in accepting the evidence of Mr. Osijo failed to direct his mind properly to the evidential value of the endorsement on the Will as to the date when it was made.


  1. The learned Chief Justice erred on the facts in failing to accept the evidence of the first plaintiff in regard to the way In which the deceased carried on his work at home between March or April, 1969 till June, 1969 when the attempts made by the defendants to discredit her testimony were wholly unsuccessful. 6. The learned Chief Justice erred on the facts in accepting the evidence that the deceased went to the office on 25th June, 1969 when:


(a)     the evidence of Mr. Osijo and Mr. Omirin contradicted each other as to time;


(b)     the witnesses were not asked to suggest any explanation, and the learned Chief Justice had to make a conjecture as to the probable explanation for such contradiction; and


(c)     each of the witnesses who spoke about the deceased going to the office on the 25th June, ought not to have been believed.


  1. The learned Chief Justice misdirected himself in law and on the facts in regarding the contents of Professor Sheila Sherlock’s letters as evidence of the truth of what they stated and also in relying on such letters to discredit the testimony of Dr. Eyo.


  1. The learned Chief Justice erred in law in making either a pronouncement in favour of the Will when there was no counter- claim before him to that effect.”


Chief Williams, learned counsel for the appellant, sought and was granted leave to argue the first seven grounds together and the eighth last. He submitted that the genesis of the appellant’s suspicion began when the first three defendants who are appointed executors under the Will applied for probate and the appellant’s solicitor examined the Will in the Probate Registry and, upon certain findings, decided to file a caveat. When it seemed that nothing had been done by the defendants, the appellant brought an action to challenge the Will on the ground that the testator did not know and approve the contents of the Will. It was learned counsel’s submission that, in a probate action, “want of knowledge and approval” is not the same as “Want of sound disposing mind” and that the learned Chief Justice would appear to have confused the two in his judgment. He referred to Order 76, r.13(3)of the United Kingdom Rules of 1970 which requires that a party challenging the validity of the Will should in a plea of want of knowledge and approval place on record a plea relating to want of a sound disposing mind so that he might not afterwards be precluded from giving evidence touching the latter point. Learned counsel explained that that was the only reason that, in the amended Statement of Claim, the plaintiff/appellant had pleaded in paragraphs 5 and 6 as to mental capacity in addition to paragraph 4 as to want of knowledge and approval; it was not the intention of the appellant to aver or even prove that the deceased was mental when he made the alleged Will. In support of his submission that the onus is on the proponents of the Will to satisfy the conscience of the Court once the challenger made an allegation that there were in existence suspicious circumstances surrounding the preparation and execution of the Will, learned counsel cited Tyrell v. Painton (1894) p. 151 as showing that, although one of the most usual of suspicious circumstances arises where the drawer of a Will took a substantial benefit thereunder, the question of the date on which the Will was expressed to be made and the reference to Yakubu Gowon Street instead of to Broad Street in the body of the Will must, Chief Williams submitted, be regarded as raising a suspicious circumstance which the learned Chief Justice determined in isolation by holding that a merely wrong date does not invalidate a Will whereas he should have considered the question of date in the context of the Will as a whole. We think that, even assuming that the learned Chief Justice did not make a specific comment on Mr. Osijo’s indorsement of the date January 21, 1969 on the back of the Will as the learned counsel complained, Chief Williams’s admission before us that he did not put the point to Mr. Osijo in the witness box is sufficient to dispose of this point.


With regard to the state of health of the deceased between April and June, 1969, learned counsel argued extensively in an attempt to show that the appellant had led evidence in the court below to show that the deceased was so ill that he could not have known and approved the contents of the Will. He contended that the evidence accepted by the learned Chief Justice was insufficient to “clear the conscience of the court as to the alleged suspicious circumstances,” and that the principles governing the right approach to the question as laid down In Wintle v. Nye (1959) 1 All E.R. 552, at pp. 557, 558 and 561, had not been followed. We think that this sub-mission is untenable not only because Wintle v. Nye is not on all fours with the present case in that it deals with a case in which the drawer of a will was a beneficiary thereunder, but also because we are of the view that the learned Chief Justice had subjected all the alleged suspicious circumstances to “the most jealous scrutiny of the evidence” before him.


The next submission of learned counsel for the appellant is that the defendants had failed to plead in their Statement of Defence that the Will was made on June 25, 1969, and that the learned Chief Justice was wrong to have criticised the plaintiff in his judgment for failure to give evidence as to the deceased’s mental capacity on or around the date the Will was executed. Chief Williams contended that to expect the appellant to have done that would amount to asking her to have “prepared for the unknown”. He submitted that, since the question of date is a vital one in a probate action such as this, the court should order a retrial; if it were an ordinary action, he would have asked that the judgment be set aside on the ground of an improper ad-mission of evidence by the learned Chief Justice. He also submitted that the learned Chief Justice was wrong to have preferred the evidence of Dr. Laja to that of Dr. Eyo, and that he should have treated Dr. Laja’s evidence with a more critical mind than he did.


The final submission, under ground 8 by the learned counsel for the appellant was that, before the learned Chief Justice could make the order pronouncing in favour of the Will, there should have been a counter-claim by the defendants. He cited Order 76, r.12 of the 1970 United Kingdom Rules, and also referred us to Atkin’s Forms, at p.264, Form 117 and Tristram and Coote’s “Probate Practice,” 23rd Edn., at pp. 704-5 as showing the form of defence to an action challenging the validity of a Will.


Mr. Sofola, learned counsel for the defendants, pointed out inter alia that the ap-pellant had in the court below exhibited the Will in question to her application to the court ever before pleadings were ordered, and that the appellant’s counsel’s com-plaint was not well-founded when he argued that the plaintiff had not been told about it so that Dr. Eyo could have given evidence as to whether the deceased could have made a valid Will on June 25, 1969. A copy of the Will (marked Ex. A) was attached to the appellant’s motion of March 23,1970; this was long before pleadings were ordered. Mr. Sofola also submitted that, throughout the cross-examination of Mr. Osijo, he was not asked about his endorsement on the back of the Will as to the date, and that it is no longer open to appellant’s counsel to raise this matter on appeal since he should have made out his case in the lower court: Oroke v. Ede (1964) N.N.L.R. 118, at p.119. Learned counsel for the defence drew attention to the fact that, before the hearing commenced, both sides had agreed as to the issue to be tried, and that, indeed, it was Chief Williams who formulated the issue. After hearing the parties and their witnesses, the learned Chief Justice pronounced in favour of the validity of the Will, the only issue he was asked to determine. Mr. Sofola argued that Chief Williams’s reference to Order 76, r. 12 is not apt, because a counter-claim can be brought only if a claim is to be tried apart from the validity of the Will. Indeed, learned counsel argued, the Rule in question is only permissive and not mandatory; he also contended that there is a difference between a counter-claim generally and a counter-claim in probate action, and that it is only if the plaintiff is suing in an “interest action,” e.g., an action for grant of letters of administration, that the defendant is required to bring a counter-claim; he cited Halsbury, Vol. 34, 3rd Edn. p.395, pares. 670 and 671; William & Mortimer on “Executors, Administrators and Probate,” 1970 Edn. pp. 411-12, 999-1000; Tristram and Coote’s on Probate Practice, 23rd Edn. p. 1302, Form 246 and p.1308, Form 260. He further pointed out that in Tyrell v. Painton (1894) p.151, at p.152 which Chief Williams had cited, there was indeed a counter-claim, but that there were two Wills involved, so that there were two distinct causes of action. We think it sufficient to say on this point that, having regard to Chief Williams’s own agreement to and formulation of the issue to be tried, namely, the validity of the Will, the learned Chief Justice was right to have pronounced as he did in favour of the Will without requiring a counterclaim to have been pleaded in the Statement of Defence.


Another submission of Mr. Sofola, with which we find ourselves in agreement, is in respect of Chief Williams’s statement made in the course of his address in the court below, to the effect that if the learned Chief Justice should accept Mr. Osijo’s evidence in toto, that would be the end of the case. Mr. Sofola argued that since the learned Chief Justice In fact did so find, Chief Williams should have abided by the judgment appealed from. Learned counsel then went on to contend that the reason why the appellant brought this action was that, by attaching the marriage certificate, she wanted the court to hold that the deceased died intestate so that she and her children could inherit the lion’s share of the estate, to the disadvantage of the other wives and their children. In regard to Chief Williams’s submission that the defence did not plead the actual date of the execution of the Will, Mr. Sofola contended that the plaintiff was well aware from her paragraph 5(vii) of the Amended Statement of Claim that the issue of date was going to be raised by the defence, and that, in any case, it was not open to the appellant to raise this kind of complaint for the first time on this appeal; the plaintiff should have asked the defence in the court below for further and better particulars H she had thought she needed these. We think that there is force in this argument.


Mr. Sofola finally submitted that the learned Chief Justice had been scrupulously fair in his evaluation of the evidence of the parties and their witnesses before him and had come to a just and proper decision thereon when he pronounced in favour of the validity of the Will. He contended that Dr. Eyo’s evidence was a series of prevarications, that he hedged about whether the deceased could make a Will at the time it was executed; and only admitted under cross-examination that “the deceased could only up to a point prepare a document,” that in his letter of June 24, 1969 written to Dr. Sheila Sherlock, Dr. Eyo did not refer to the condition of the deceased which he recorded five days earlier in Ex. F, when he had called upon the deceased. Dr. Laja, on the other hand, was rightly found to be a witness of truth.


We think it expedient at this stage to refer briefly to some salient features of the Will sought to be impugned by the appellant. We note that the deceased was survived by three out of his four wives, and also by a total of 14 children: 4 by the 4th defendant, 4 by the 5th defendant, 1 (one) by a marriage already dissolved in the deceased’s life-time, and 5 by the plaintiff. Under the Will, the deceased left twenty per cent of the shares in his company (The Nigerian Office Stationery Supplies Store incorporating the Nigerian Paper Converters Company); a similar percentage was also left to the 5th defendant (the 3rd wife), a house at No. 114 Yakubu Gowon Street was left to the first 4 children of the 1st wife, a house at 16 Rotimi Street, Surulere, was given to the plaintiff’s children, a house at No. 14 Rotimi Street, Surulere, was given to the plaintiff, and properties at Nos. 13, 15 and 17 Rotimi Street, Surulere, were left to the plaintiffs children and those of the third wife. The Will also provides that the plaintiff should remain in the main house at North Avenue, Apapa, for a period of twelve months, after which another house of the maximum value of £7,000 should be purchased for her use. Also left to the plaintiff were all personal effects (other than heavy items) at No. 20 North Avenue, Apapa. Also, land at Epe is to be developed for the use and occupation of all the children. The testator’s residue is to be divided among all the children of the three wives. It is significant that, although the deceased bequeathed No. 1 Kofo Abayomi Street, Apapa, to the 3rd wife for life, the house is to revert to the estate If she re-marries. There is no similar condition attached to the plaintiff’s gift of 14 Rotimi Street, Surulere, nor is there any provision for buying the 3rd wife an alternative house if she ceases to live at No. 1 Kofo Abayomi Street, Apapa. We have only set out here so much of the contents of the Will to show how the deceased had sought to provide for his wives and children as he deemed fit. We think that, considering the circumstances of the making of this Will as well as its detailed provisions for all his relations in addition to members of his own immediate family, the Will was that of a fair-minded man solicitous of their welfare and anxious about their future happiness: See Powell v. Steathem Manor Nursing Home (1935) A.C. 243, at p.255. Walter Loeb v. Solomon Nasser (1937) 3 W.A.C.A. 227, at p. 228 and Kojo II v. Bonsie and anor. (1953) 14 W.A.C.A. 242, at p. 243.


We also think that just as the contents of the Will reveal a clear and coherent mind, so do the cogent pieces of evidence of Mr. Osijo and Mr. Omirin show the due execution of the Will on June 25, 1969. The learned Chief Justice took great care to define quite clearly where the onus of proof lies in a probate action of this kind and apply the well-known principles to the present case. He laid the onus squarely on the proponents of the Will and examined their evidence and of their witnesses with jealous scrutiny in order to ensure that all allegations about suspicious circumstances are considered in an attempt to clear the conscience of the court. It was only after satisfying himself that the defence has discharged this onus that the learned Chief Justice turned to examine the challenger’s evidence which he found insufficient to sustain the claim that the deceased did not at the time of making the Will know and approve its contents.


We think it is important to note that Mr. Osijo took no benefit under the Will, thus distinguishing this case from almost all the cases cited to us by learned counsel for the appellant in which the element of direct or indirect benefit to the drawer of the Will was a strong factor inducing and justifying suspicion. While we concede that there might be other circumstances of suspicion apart from the derivation of benefit by the drawer of a Will, such other circumstances would seem to be rare and, indeed, none was brought to our notice nor was any direct authority upon it cited to us. Similarly, we think that while the learned Chief Justice was rightly critical of the evidence for the defence, he was generous to the plaintiff, as for example when he disregarded the evidence of Dr. Ogunlesi (D.W. 10) and Dr. Dada (D.W.11) which clearly supported Dr. Laja’s evidence in favour of the defence. We are equally satisfied that the learned Chief Justice resolved the conflict between the evidence of the 5th defendant (the 3rd wife) and exhibit D4 (the letter written by the deceased about his inability to go to the office for some six weeks) in favour of the appellant when in fact there was ample evidence that the 5th defendant was speaking the truth especially in the light of the plaintiff’s own testimony that she was driving the deceased to the office during the relevant period.


On the whole, we agree with the learned Chief Justice that “no argument has been put forward on 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.” As we have said earlier, there is no need in the circumstances of this particular case for the defence to have pleaded a counter-claim in order to be entitled to an order pronouncing in favour of the Will. The learned counsel for the plaintiff/appellant had agreed in limine to settle the issue to be tried, and had in fact framed the wording of the agreement, as one relating only to the question of validity of the Will. In the circumstances, therefore, we see no reason to vary the order which the learned Chief Justice did make, namely, an order pronouncing in favour of the Will dated January 21, 1969 and made and executed on June 25, 1969. The appeal is accordingly dismissed with costs to the respondents assessed at N270.


Appeal dismissed.



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