Madam Olufunso Okelola V. Miss Adebisi Boyle (1998)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C

By an indenture dated 2nd June 1986 and registered as No.43 at page 174 in Volume 29 of Register of Deeds kept at the Lagos Land Registry, one Theophilus Otemuyiwa became owner of the land and property situate and known as 163 Igbosere Road Lagos. The said Theophilus Otemuyiwa died intestate some years ago leaving behind three children surviving him, that is Adeniyi Otemuyiwa, Gabriel Theophilus Abiodun Otemuyiwa and Adekunlc Otemuyiwa. The three sons, on the death of their father, inherited the said property which became their family property under Yoruba customary law.

Adeniyi died intestate in Lagos on 10th January 1975; he had no issue. Adekunle also died intestate on 9th February 1976; he too was childless.

On 28th December, 1972 during the lifetime of the three brothers, Abiodun (hereinafter is referred to as the testator) had made a Will devising his share in the property at 163 Igbosere Road Lagos to Madam Olufunso Okelola (appellant in these proceedings). On 9th October, 1975 Abiodun suffered a stroke and was admitted into hospital; he was paralysed and he subsequently died in June 1977. He too, like his brothers before him, died childless. After the death of Abiodun, the probate registrar invited Olufunso Okelola to the reading of a Will purportedly made by the testator on 24th February 1976 in which he gave all his property to one A. Idowu George. Olufunso Okelola (hereinafter is referred to as the plaintiff) promptly filed a caveat to the grant of probate and commenced the proceedings leading to this appeal against Miss Adebisi Boyle an executrix named in the said will. She claimed:

“(1) That the court will pronounce against the Will dated 24th day of February, 1976 purported to be the Last Will and Testament of Gabriel Theophilus Abiodun Otemuyiwa and propounded by the defendant.

or in the alternative

(2) That the devise of the property at 163 19bosere Road Lagos to Mr. A Idowu George in the said Will dated 24th day of February, 1976 is void.

(3) That the court will decree probate in Solemn form of Law and Will of Gabriel Theophilus Otemuyiwa (deceased) dated the 28th day of December, 1972.”

Pleadings were filed and exchanged. The defendant, Miss Boyle, raised a counterclaim in her statement of defence, paragraph 43 of which reads:

“43. The defendant repeats paragraphs 1-42 of her statement of defence and Counter-claim against the plaintiff as follows:

1. A declaration that the will made by the Testator on 28th December, 1972, when his two brothers were alive, is null and void.
2. A declaration that the Will made by the Testator on 24th February, 1976 is valid.
3. Judgment or Order that probate should be granted to the defendant as the only available legal personal representative in respect of the Will of the Testator dated 24th February, 1976.
4. A perpetual injunction to restrain the plaintiff from committing any trespass or further act of trespass on the Hereditament.
5. N400.00 being damages for trespass committed on the Hereditament by the plaintiff.
6. Further judgment or order dismissing the plaintiff’s action with substantial costs.
7. Any further order or further orders as this Honourable court may consider necessary to make in favour of the defendant in the interest of justice.”

Evidence was led at the trial by both sides. At the conclusion of trial, and after addresse by learned counsel for the parties, the learned trial Judge (Oladipo Williams, J.) in a well considered judgment, found

1. In respect of the 1972 will (Exhibit PI) of the testator –

“There was no argument about the fact that the property at 163 Igbosere Road, Lagos devolved on the Testator and his brother Adekunle finally at the making of the Will Ex. PI. There was no evidence that the property was ever partitioned between the children of the original owner Theaphilus Otemuyiwa (deceased). Thus it was clear on the evidence that the Testator and his brother Adekunle who were Yorubas held undivided shares in the property purported to have been devised in the Will Ex. Pl to the plaintiff. It is trite law that a devise purporting to bequeath an undivided share in property which share was derived by descent under Yoruba Customary Law is void. See E.J. Johnson and ors v. Macaulay & anor (1961) 1 All NLR (pt. iv) 743 at 746. Ogunmefun v. Ogunmefun 10 NLR 82. Thus in accordance with these decisions, it is my considered view that the Testator had nothing to devise at the time that he made the Will Ex. P1 and that Will so far as it purported to bequeath an undivided share in the property at 163 Igbosere Road, Lagos is void.”

2. In respect of the 1976 Will (Exhibit D1) –

(a) “It must be mentioned at this stage that Adekunle the only surviving brother of the Testator had died intestate and without issue on 9th February, 1976 thus leaving the Testator at the date of the Will as the only living child of the late Theophilus Otemuiya the original owner of the property at 163 Igbosere Road, Lagos.”

(b) that the deceased was an illiterate person