Abdul-Karimu Lemomu & Ors. V. Alhaji Noah Alli-Balogun (1975)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

According to the averments in their joint statement of claim, the first and second plaintiffs (now appellants) are the executors named in the last Will and Testament dated 24th day of January, 1963, of one Shadiya Alli-Balogun (deceased) who died in Lagos on the 28th day of July, 1965. The third plaintiff who is now the third appellant is the principal beneficiary under the said Will.

After the death of Shadiya Alli-Balogun, the first and second plaintiffs, through their solicitor Mr Bashirudeen Adewale Agusto (2nd P.W.) applied to the Probate Registrar of the High Court for the grant to them of probate of the said last Will and Testament (hereinafter referred to as the Will) but the three defendants (now respondents) entered a caveat against the said grant. Whereupon the plaintiffs claimed against the defendants in the Lagos High Court that the said Will be established and pronounced good and valid and that the first and second plaintiffs be granted probate of the said Will both as the executors both as the executors named therein and also as the persons properly entitled to administer the estate of the said Shadiya Alli-Balogun (deceased).

In their statement of defence, the defendants averred that all the plaintiffs are complete strangers to and meddlers in the affairs of the family of Alli-Balogun and denied that the first and second plaintiffs were ever appointed executors of the Will of Shadiya Alli-Balogun (hereinafter referred to as deceased). After stating that the deceased never made a Will, they averred further as follows:

“11. The defendants aver that the purported Will was made under the undue influence of 1st plaintiff and which did not reflect the wishes of the deceased and completely contrary to her past declaration.

12. The defendant will contend that the testator was of unsound disposing mind at the time the said Will was made for lack of proper testamentary capacity. ”
At the hearing, Mr Bashirudeen Adewale Agusto (2nd P.W.) the legal practitioner who prepared the Will for the deceased, produced the Will (Ex. B) when testifying for the plaintiffs. His testimony given on 17th May, 1972, reads:

“I know Madam Shadia Alli-Balogun (deceased). In 1963 at her invitation I went to her house at 54 Smith Street, Lagos and she requested me to prepare her last Will and Testament. She gave me all necessary instructions. They were oral but I committed them to writing. She discussed with me very intelligently, She gave me the list of properties owned by her. I cannot remember if there was a third person present at the interview. I think she understood her instructions to me. I went away and prepared the said Will and Testament. A few days later I took the Will and two attesting witnesses and went back to see the lady at her home. The attesting witnesses were Lawyer E. O. George and Prince A. O. Ogunlewe. I read the Will and interpreted it to her in Yoruba, she acknowledged the contents to be according to her instructions and she duly executed the Will in the presence of both attesting witnesses. The Will was executed in duplicate. Exhibit “A” is the original. I got the original deposited in court. The old lady died sometime in 1965.”

In answer to a question put to him under cross-examination, Mr Agusto stated that it was not true that the old lady was incapable of understanding what it was all about when she made the Will. To further questions he replied as follows:
“I do not know that although she was well off she was in the habit of begging and that the 2nd defendant was always ushering her in from the street. I do not know that she was in the habit of saying things unrelated to facts.”

Both Mr Emmanuel Oluyinka George (3rd P.W.), another legal practitioner, and one Adegboyega Oladipo Ogunlewe (4th P.W.) who is an Estate Agent, corroborated the testimony of Mr Agusto as to the due execution of the Will by the deceased after the contents had been interpreted into the Yoruba language “line by line” for her. They also confirmed that both of them witnessed the execution of the Will by the deceased.
The 2nd defendant (Abike Alli-Balogun) who is also known as Muniratu Faramobi Abike Danmole, described herself as a niece of the deceased and the elder sister of the 3rd defendant. She is one of the witnesses called by the defence. She stated that she had been living with the deceased for about six years at the time of her death. She further testified that the deceased made no Will as it was impossible for her to make a Will without her (Danmole’s) knowledge because she was always with her. The witness then described her condition as follows:

“She was physically all right but she was old and we would not allow her to go about. She did not appreciate what she was doing. I say this because at times some five minutes after feeding her she will call me and say that I have not fed her all day. She would call passers-by from her window seat and ask for money. I would scold her. At times she would call young children from her window seat to come and see her Shadia Alli-Balogun dance. I often had to disperse the children. We had a toilet in the house but we did not allow her to go there. We let her use the chamber pot. Shadia never behaved in those funny ways described until old age began to tell on her” .

When this witness was cross-examined about the deceased’s trinkets she answered as follows:

“Shadia in her lifetime was known as Iya Gold. We saw no gold trinkets after her death. She complained about the loss of her trinkets. I do not know that she accused members of the Alli-Balogun family with the theft of her trinkets. I do not know if she hated the family for that.”

Another witness who testified for the defendants is one Hadji Amisu Junaid (3rd D/W). He said he lived next door to the deceased and used to see her everyday until she died. He described her physical and mental conditions as follows:

“Shadia moved to our area either in 1961 or 1962. Even then she was very old. Soon after she moved to our area she called me one morning and gave me a paper to read but before I could read it she took it back asking if I knew it was a letter from Queen Elizabeth her friend. She said Elizabeth was due to call on her that evening. I was surprised. On another occasion I saw her from her window seat begging  for alms from passers-by. I reported this to the 2nd defendant. I was surprised as I know she was from a wealthy family She used to sit herself in the sitting room dancing by herself and the neighbourhood children would gather to enjoy the scene. The 2nd defendant would come and spray water on such children to disperse them. She would cry and curse when being bathed. She was physically all right considering her age but she never went out. She sat and begged from the window nearly every day except the windows in the room were kept shut.”