Irene A. Adebajo v. Luke Adepeju Adebajo & Ors. (1973)

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TASLIM OLAWALE ELIAS, C.J.N.

This is an appeal against the judgment of Taylor, C.J., in Suit No. LD/22170 delivered in the Lagos High Court on 12th November, 1971 in which he dismissed the action of the plaintiff and pronounced in favour of the will of Israel A. O. Adebajo (deceased) dated 21st January, 1969 and made and executed on 25th June, 1969 by the said deceased. On 13th January 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 an intestacy and to have as such a grant of letters of administration of the estate of the said intestate.

2. This writ is issued against you as the executors named in a pretended will of the said deceased dated the 21st day of January, 1969 against which the plaintiff asks the court to pronounce in this action.
3. 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 12th March, 1970 the statement of defence was also filed. On 10th April, 1970 and on the plaintiff’s application the court granted an order joining the 4th to the 8th defendant. 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 21st January, 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;