Ademola Adewunmi Odutola & Ors Vs Prof. Akin Mabogunje & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The appellants/cross respondents as plaintiffs sued the 1st, 2nd and 3rd respondents/cross appellants as defendants before an Abeokute High Court.

The claim as endorsed on the Writ of Summon reads:

The plaintiffs claim as the lawful children and persons entitled in the event of an intestacy to share in the Estate of Chief Timothy Adeola Odutola late, of Onibudo House Odutola Street, Ijebu-Ode who died on the 13th of April, 1995 to have the probate of a pretended WILL and CODICIL thereto of the said deceased dated 23rd of November 1993 and 14th March, 1994 respectively granted on the 27th day of November, 1995 revoked and the said WILL pronounced against and to have a Brant of Letters of Administration of the estate of the deceased.

ALTERNATIVELY:

The plaintiffs as shareholders of Odutala Holdings Ltd claim a declaration that paragraphs 42, 77, 78, 79, 80, 83, 86, 87, 88 of the purported WILL dated 23rd of November, 1993 are null and void being matters not within the testamentary power of Chief Timothy Adeola Odutola deceased.

And in paragraph 9 of the amended statement of claim the plaintiffs claimed:

“That the court shall revoke the said grant of probate and pronounce against the force and validity of the alleged WILL and CODICIL and to have Letters of Administration of the estate of the deceased.

The 1st, 2nd and 3rd respondents/cross-appellants filed a joint statement of defence and counterclaim. Paragraph 12 of their amended statement of defence and counter-claim reads:

“By way of counter-claim the defendants’ say that the deceased made and duly executed his last WILL dated 23rd November, 1993 and therein named the 1st, 2nd, 3rd and 4th defendants as executors and executrix and Codicil dated 14th March, 1994.”

Delano CJ Ogun State (as he then was) presided. In the course of trial there was an interpartes hearing at the instance of the plaintiffs for fees of counsel to be paid out of the estate of the deceased. The application was granted. Trial commenced on the 8th day of December, 1998 with the case of the defendants. It is well settled that in probate action of this kind the onus is on the propounder of the WILL and in this case the defendants. See

Adebajo v. Adebajo 1973 8 NSCC p.204.

The learned trial judge was right to commence proceedings with evidence of the defendants. The defendants called sixteen witnesses while the plaintiff called only one witness. A total of sixty-one documents were admitted as exhibits. At the conclusion of trial the learned Chief Judge allowed the claim and dismissed the counter-claim in his judgment delivered on the 24th day of May, 2000 in these words:

“In the circumstances, the defendants have failed to dislodge the suspicion of the court that the testator, Chief Timothy Adeola Odutola, Ogbeni-Oja of Ijebu – Ode made the WILL and the CODICIL dated November 23, 1993 and March 14, 1994 respectively.