Mrs. Alero Jadesimi V. Mrs. Victoria Okotie-eboh & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N.

By a writ of summons taken out of the High Court of Lagos State holden at Lagos, the appellant, as plaintiff claimed against the respondents, as defendants, as follows as per her Amended Statement of Claim:-

“(a) That the Court shall pronounce for the force and validity of the last will and testament dated the 21st day of August, 1947 of Chief Festus Samuel Okotie-Eboh, formerly known and called Festus Sam Edah) late of Ogorode, Sapele, Bendel State deceased, who died on the 15th day of January, 1966; and

(b) That the Court shall revoke the grant of the said Letters of Administration of the Estate of the said deceased dated the 24th day of June, 1971.”

The facts of the case, which are not in dispute, are briefly thus. The deceased, Chief Festus Samuel Okotie-Eboh was a son to an Itsekiri father and an Urhobo mother. In 1942 he got married to the 1st respondent according to Itsekiri native law and custom. The appellant as well as the 2nd respondent are the children of the marriage. There are of course other offspring of the deceased, of whom the 3rd respondent is one, who were born by women that were not married to the deceased.

In 1947 the deceased made a will at Sapele (Exhibit P1) which was signed by Chief Egboro (P.W. 2) and Mr. Okitikpi (P.W. 3) as witnesses. The will was dated the 21st day of August, 1947 and was deposited at the Probate Registry of the High Court of Lagos State since, as at that date, that was the only Probate Registry existing in Nigeria.

In March, 1961, whilst the customary marriage was subsisting the deceased and the 1st respondent decided to re-marry or rather re-affirmed their marriage by going to a Marriage Registry in Lagos where they got married under the Marriage Act, Cap. 115 of the Laws of the Federation of Nigeria, 1958.

On 15th January, 1966, the deceased, who had been a minister of the Federal Government of Nigeria, was killed during a military coup d’etat which overthrew the Government. Sometime in 1971 the appellant together with the 1st, 2nd and 3rd respondents applied to the High Court of the then Bendel State for the grant of Letters of Administration to enable them administer the proprieties of the deceased in that State. The Letters of Administration were granted. In order that they might be able to administer the estate of the deceased in Lagos State, they got the Letters of Administration issued by the High Court of Bendel State, resealed sometime in 1972 at the High Court of Lagos State. By agreement between them, the appellant and the 1st respondent were to administer the estate in Lagos State while the 2nd and 3rd respondents were to administer the estate in Bendel State. All the children of the deceased, who were known to the appellant, were maintained by the administratrixes and administrator from funds received from the estate of the deceased.

At the time of applying for Letters of Administration the parties to this case were not aware that the deceased had made a will. According to the evidence adduced by the appellant and 1st respondent, sometime in 1974 it was discovered that the deceased made a will in 1947 and that the will was deposited at the Probate Registry of the High Court of Lagos State. Whilst accepting that a will was made in 1947 by the deceased, 2nd respondent called evidence to show that there was another will made by the deceased in 1964 and that both the 1947 and 1964 Wills were discovered in a safe kept in the room of the deceased at Sapele. Mr. Lawrence Okotie-Eboh (D.W. 4) who was a witness called by the 2nd respondent, testified that both the 1947 and 1964 wills were opened and read in 1970 at a family meeting called for that purpose and that the 1st respondent gave the assurance that she would continue to look after all the children of the deceased. That as a result of the assurance the two wills were destroyed by being torn to pieces and thrown away.

However, the learned trial Judge (Agoro, J., as he then was) found that the issues joined by the parties on the pleadings which were for him to decide were as follows:-

(i) Whether the High Court of Lagos State has jurisdiction to entertain the action in this suit.

(ii) Whether the will, Exhibit P1 dated 21st August, 1947 of Late Chief Festus Samuel Okotie-Eboh formerly known as Chief Festus Sam Edah was duly executed as required by law.

(iii) Whether the will, Exhibit P1 dated 21st August 1947 of Late Chief Festus Okotie-Eboh formerly known as Chief Festus Sam Edah could be regarded as revoked by operation of law by reasons of the fact that the previous marriage in 1942 to the first defendant under Native Law and Custom was later on 3rd March, 1961 re-affirmed by another marriage between the same parties under the Marriage Act, Cap. 115, Law of the Federation of Nigeria and Lagos 1958.

(iv) Whether the Customary Laws of Urhobo and/or Itsekiri in the Bendel State of Nigeria could operate to invalidate and render void the will, Exhibit P1 dated 21st August, 1947 of Late Chief Festus Samuel Okotie-Eboh formerly known as Chief Festus Sam Edah.