Albert Martin Lewis And Anor V Abigail Majekodunmi (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

The plaintiffs complain of the decision given by Sowemimo J. on 18 May, 1964 in the Lagos High Court Suit 109/1963, dismissing their claims. These are-

1. A declaration that all that piece or parcel of land marked F in the attached probate copy of the will [is the] family property of Jose Domingo, deceased, the common ancestor of both plaintiffs and defendant.

2. An injunction restraining the defendant from erecting fence or building on family compound marked G mentioned in the said probate copy of the will without the consent of the plaintiffs.

3. An account of all moneys received and rents collected on the said piece or parcel of land marked G in the said probate copy and for an order directing the payment to the plaintiffs of their share on taking of such account.

Jose Domingo made his will on 27 January, 1911; he died on 5 February, and probate of the will in common form was granted on 31 March, 1911. The testator’s daughter Maria sued in July, 1912 to have the probate revoked but discontinued that suit and sued again in October, 1915 the executors Charles Patrick Williams and Alexander Martin Lewis for revocation: Suit 176/1915. The judgment in that suit quotes the pleadings. From the Statement of Claim it will be enough to copy paragraph 1 and paragraph 2:

1. The plaintiff is the only child of Jose Domingo otherwise known as Fadumila late of Tokunboh Street in Lagos who died on the 5th February, 1911.

2. The defendants are the executors of a pretended last will and testament bearing date the 27th day of January, 1911 and purporting to have been duly executed by the said Jose Domingo.

Paragraph 1 of the Defence states that-

The defendants admit paragraphs 1 and 2 of plaintiffs Statement of Claim but say that the last will and testament was not a pretended one. The Defence is signed by A. Alakija, defendants’ solicitor. The judgment then goes on to deal with the allegations that the will was invalid for this reason and the other, and dismissed them as unfounded.

The testator devises sundry pieces of land by reference to the plan attached to his will. He devises a piece to “my daughter Maria Joseph of Okepopo Lagos,” and another piece to “my daughter Lorintina Joseph of Tokunboh Street” (which was his address too).

As to F (which is the subject of the 1st claim in this suit) he gives it to “my nephew Domingo Akindele Joseph now at Sekondi Gold Coast”; and as to G (which is the subject of the 2nd claim and the 3rd) he devises it to “Alexander Martin Lewis his heirs and executors in trust for all my relatives both in Lagos and in the interior who shall desire to build and live in my compound and the same is hereby constituted my family compound”;

and he goes on to declare that Alexander Martin Lewis shall be the head of his family compound.

Alexander Martin Lewis was the child of Lorintina and the father of the plaintiffs in this suit. The defendant Abigail Majekodunmi is the daughter of Maria, who also had other children. In her Defence the defendant alleges that Lorintina (or, as she calls her, Laurentia) was a domestic servant of the testator Jose Domingo and his wife, both of whom adopted her. The learned trial judge refers to this allegation made by the defendant, who supported it by the admission made by the plaintiffs’ father in Suit No. 176/1915 that Maria was the only child of Jose Domingo, the testator; the judge notes that this admission was made in the lifetime of Alexander Martin Lewis and of Maria; he concludes that Alexander’s sons, the plaintiffs, are no blood relations of the defendant and cannot, in face of that admission, say that Lorintina, their grandmother, was a daughter of the testator, although he speaks of her as his daughter in his will. The learned judge goes on to decide that the plaintiffs are strangers for all purposes and cannot make any claim either to the land marked F or to that marked G.