A.S.G. Nelson And Anor. V. Loretta Akofiranmi (1962) LLJR-SC

A.S.G. Nelson And Anor. V. Loretta Akofiranmi (1962)

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ADEMOLA, C.J.F

This is an appeal against the judgment of Bellamy, J. declaring invalid a Will dated 17th June, 1955, made by Bishop Lionel Aderonmu Randle who died at Mushin in Lagos on the 16th January, 1957.

The plaintiffs were appointed executor and executrix under the said Will. They applied for a grant to them of the Probate of the Will. The 1st plaintiff was a cousin of the deceased whilst the 2nd plaintiff was the deceased’s wife by native law and custom.

The defendant was the testator’s daughter by his wife married under the Marriage Ordinance, but she died about 36 years ago. The daughter entered a caveat prohibiting the grant of probate to the plaintiffs and contended that the Will was not genuine in that it was not signed by the testator who, she said, was ill, very old and feeble.

Despite the contention of the defendant about the genuineness of the Will and in spite of her denial of her own signature on the Will-a point which is to be lamented-the learned Judge found that the Will was not a forgery and that it was prepared on the instructions given by the testator and signed by him by his thumb mark (his right arm and right leg were paralyzed), and also signed by the witnesses named therein, and by the defendant herself, who was also present at the execution. It was, however, on the execution of the Will that the learned Judge found the Will invalid. This is what he said:-

“It is clear to my mind that before a document can be admitted to probate it has to be a testamentary document, complying with the requirements of the Wills Acts, 1837 and 1852. To my judgment, the document of the 17th June, 1955, Exhibit “A”, is not entitled to probate because the testator signed it with his mark after the witnesses had signed their names, contrary to the provisions of section 9 of the Wills Act.”

It appears evidence was contradictory about the execution of the Will. There was evidence by one witness for the appellants that the testator signed the Will before the witnesses had attested it; whilst a 2nd witness for the appellants gave evidence that the testator executed the Will after the witnesses to the Will had subscribed their signatures. The learned trial Judge, it appears, believed the evidence of the witness who stated that the execution by the testator took place after the two witnesses had attested their signatures. From this judgment, the appellants have now appealed.

Counsel for the appellants submitted before us that the learned trial Judge had allowed a wrong standard of proof in arriving at his conclusion. He made it clear he was not quarrelling with the law as applied by the learned trial Judge, but he submitted that great weight should have been placed on due execution; as everything that need be done had been done and the Will appeared to be in proper form, the learned Judge, Counsel urged should have found in favour of the Will.

Section 9 of the Wills Act (1 Vict. c. 26) which deals with execution of Wills, enacts as follows:–

“IX.And be it further enacted, that no Will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned: (that is to say), it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and shall subscribe the Will in the presence of the testator, but no form of attestation shall be necessary.”

The ordinary and precise interpretation of this section of the Wills Act in so far as it affects this case is that the Will must be signed by the testator before the witnesses, at least two, who must be together at the time and in the presence of each other, subscribe to the testator’s signature.

Now, what are the bare facts in this case? The testator, who was an old man of about 84 at the time of making his Will, had received a very good education and was very energetic in his days; he was a bishop in the African Church. He felt, and rightly too, that at his age the time had come when he must put his house in order. In the first place he had only one daughter (married) by a lawful wife who died over 35 years ago. Since the death of that wife he had taken unto himself a wife (2nd plaintiff), apparently married to him by Native law and Custom and who had been with him for 28 years at the time of the making of the Will. There can be no doubt that the daughter was not a frequent visitor to the house and apparently not on very good terms with the step-mother. The testator himself, as indicated in his Will, felt deeply grateful for the care, help and comfort he had received in the hands of the woman who was then advanced in age and had no issue. He therefore summoned one of his trusted parishioners, a Mr. Cole, to his bedside, where he was lying paralyzed in his right hand and his right leg but otherwise fully conscious. To Mr. Cole he dictated his Will, to whom he gave a piece of paper and urged him to take down his Will which he was later to type out and bring to him on a certain date fixed by him, namely 17th June, 1955. On the appointed day, the testator had summoned his daughter and other relatives to his bedside. On Mr. Cole’s arrival with the typewritten copy of the Will, the testator called his relatives including the daughter by his bedside, and conducted the ceremony with great solemnity by making Cole read out the Will aloud, after which he bade him translate it into Yoruba language for the benefit of all present. Present were his daughter (the defendant), Mrs. Bernice Adebisi Okuyiga, Mr. Reffel and, of course, Mr. Cole who had prepared the Will and read it.

After the signature and the attestation, the testator asked Mr. Cole to destroy the draft and to keep the typed copy with him. After sometime everybody dispersed. Eighteen months later, indeed on the 16th January, 1957, the testator died. The purport of the Will was to devise to his daughter (defendant) one house and landed property at 58 Clifford Street, Ebute-Metta, for life and the remainder to her children; also two farmlands to her absolutely. To his wife the 2nd plaintiff, he devised his house and landed property at 6 Jacob Street, Mushin; landed property at Ogbo Village, Onitiri, near Yaba district; also all monies standing to his name at the Bank of West Africa, Lagos.

To the Church (African Methodist Church), he rendered due account with balance to be paid over. He also directed that some properties in which he had life interest be surrendered to another Church, as well as documents he had in his custody for other beneficiaries. I refer to these in detail to show how anxious the testator was that everything should be done with care and precision.

Now, as I stated earlier, the question which has arisen is not the capacity of the testator to make a Will nor the question of fraud. These had been happily settled by the learned trial Judge. The question to be determined was whether the testator signed the Will before or after the two attesting witnesses, namely Mrs. Okuyiga and Mr. Reffel. The latter was not available to give evidence but Mrs. Okuyiga gave evidence to the effect that the testator signed the Will first, then asked his daughter (defendant) to sign, showed her where to sign: after this, he asked her (Mrs Okuyiga) and Mr. Reffel to sign, showing each where to sign. Against this evidence, Mr. Cole (who read out the Will and later signed it as the writer, interpreter and witness to the testator’s thumb impression), gave evidence to the effect that it was after the three witnesses had attested that the deceased put his thumb impression. I will refer to the evidence of this witness in order to show that it was not safe for the learned trial Judge to have relied very accurately on his recollection of the event. This is what he said:–

“When I finished reading it the Bishop said that the three people should sign it. The Bishop fingerprinted it. The daughter was the first to sign. Then Mrs. Bisi Okuyiga signed, then Mr. Reffel fingerprinted it, because Reffel cannot sign. Then the Bishop himself fingerprinted it.”

Then he said:–

“If I remember rightly, Mrs. Akofiranmi signed first, then Mrs. Okuyiga, and then Mr. Reffel put his thumb impression. They were all present in the room at the signing……………….”

Later in his evidence he said:–

“At the time the testator put his thumb impression and the attesting witnesses signed, page 4 of Exhibit A was blank except for the typing at the top ……………………”

For the execution of the Will, the Court had to rely only on the evidence of these two witnesses, namely Mrs. Okuyiga and Mr. Cole. In his judgment, the learned Judge on this issue said as follows:–

“Having heard the differing stories of these two witnesses, and having to choose between them, I say without hesitation that I prefer the version of Mr. Akintola Cole. I do not for a moment doubt that both witnesses intended to tell the truth, but Mr. Akintola Cole impressed me at once as being dependable and trustworthy. I thought it necessary to question him rather closely on matters connected with the drawing of the Will, and I was much impressed by his frank answers.”

I

Other Citation: (1962) LCN/0972(SC)