–
BAFUNKE JOHNSON AND ANOTHER
V.
AKINOLA MAJA AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
23RD DAY OF NOVEMBER, 1951
LEX (1951) – XIII WACA 290-296
OTHER CITATION(S)
2PLR/1951/27 (WACA)
(1951) XIII WACA PP. 290-296
–
BEFORE THEIR LORDSHIPS:
VERITY, C. J., NIGERIA,
LEWEY, J. A.,
JIBOWU, J.
–
BETWEEN:
1. BAFUNKE JOHNSON
2. OLUSEGUN JOHNSON BY HIS NEXT FRIEND AGNES JOKOTADE – Applicants-Appellants
AND
1. AKINOLA MAJA
2. OLUMIDE ONIBUWE JOHNSON
3. THE MANAGER, NATIONAL BANK OF NIGERIA, LIMITED – Plaintiffs-Respondents
AND
HARIET JOHNSON – Defendant-Respondent
–
ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV.APP.3470
–
REPRESENTATION
F. R. A. Williams with Kayonde for Appellants
G. B. A. Coker for Respondents
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Will challenged on ground that it was not properly executed, testator not of sound mind, and undue influence – Onus of proof where one party propounds a Will and the other party challenges it – Duty of propounders of Will to show that prima facie Will in order – When onus shifts to opposers to substantiate allegations made
ESTATE ADMINISTRATION AND PLANNING:- Challenge of will on ground of undue influence – Whether “coercion” must be proved
–
CASE SUMMARY
The executors as plaintiffs asked the Court to declare in solemn form for the will and council of the testator. The widow, as defendant, challenged the will on the grounds that it was not properly executed, testator not of sound mind, and undue influence by a woman named Agnes Jokotade, the testator’s mistress.
The trial Court found that each of the allegations had been proved, pronounced against the will and declared that so far as the will was concerned the testator died intestate. The executors did not appeal, but the Court granted leave to appeal to the appellants who had been absent at the time of the action and had not been parties thereto.
The judgment was criticised by the appellant’s Counsel on his observations as to onus of proof. Appellant’s Counsel argued that the burden of proof lay on those who attacked the will, while the defendant-respondent contended that the onus was on those who propounded the will.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. The onus of proof shifts. In the first stage, where there is a dispute as to a will, those who propound it must clearly show by evidence that prima facie all is in order: Thereafter, the burden is cast upon those who attack the will and they are required to substantiate by evidence the allegations they have made. The decision must ultimately depend upon a consideration (having regard to the shifting burden of proof), of the value of all the evidence given by both sides.
2. The plaintiffs sufficiently discharged the burden of establishing a prima facie case and the defendant-respondent failed to prove affirmatively the charges made. The Court set aside the judgment of the trial Court and substituted therefore a judgment pronouncing in solemn form for the testator’s will and the codicil thereto.
Cases referred to:
(1) Barry v. Butlin 12 E.R. 1090.
(2) Baker v. Batt, 12 E.R. 1026.
(3) Craig v. Lamoureux (1920), A.C. at 356.
(4) Boyse v. Rossborough, 10 E.R. 1211.
(5) Wingrove v. Wingrove (1885), 11 P.O. 81.
–
–
MAIN JUDGMENT
The following judgment was delivered:
LEWEY, J. A.
This appeal is concerned with the will of the late Alfred Latunde Johnson, who died on the 7th April, 1950. The will is dated the 27th November, 1943, and a council to it was executed on the 27th July, 1945.
When the executors applied for a grant of probate, the testator’s widow lodged a caveat against the grant. In the subsequent action the executors, as plaintiffs, asked the Court to declare in solemn form for the will and codicil, while the widow, as defendant, challenged the will upon three grounds—
(a) that it had not been executed as required by law;
(b) that the testator was not of sound mind, memory and understanding at the time of the execution;
(c) that the execution was obtained by the undue influence of a woman named Agnes Jokotade who was the mistress of the testator.
At the trial, the Judge found that each of these allegations had been proved, and he pronounced against the will and declared that, so far as the will was concerned, the testator had died intestate.
The executors did not appeal against that judgment; but on the 27th April, 1951, this Court granted leave to appeal to the present appellants who had been absent from Nigeria at the time of the action and had not been parties thereto, but who are persons who would benefit substantially under the terms of the will. These appellants have filed grounds of appeal in which they complain of the findings of the learned Judge upon each of the three heads on which he declared against the will.
On the hearing of this appeal, argument was addressed to this Court by both Counsel upon the question as to where the onus lies in cases of this kind where one party propounds a will, and the other party challenges not only its execution, but also the mental capacity and free will of the testator. I wish to deal at once with this point, since it is of importance in relation to each of the three grounds of challenge in this case to which I have referred, and because it was inevitably given prominence on this appeal, by reason of a passage in the judgment, where the learned Judge observed as follows:-
“A testator has every right to change his mind at any time before his death provided it is conclusively proved to the satisfaction of the Court that at the time of his executing the will he was a free agent and under no influence and that the will was properly executed.”
These observations as to the burden of proof were the subject of one of the grounds of appeal, and were strongly criticised by Mr. Williams on behalf of the appellants, who are seeking, of course, to have the will upheld. It was the appellants’ contention that the burden of proof lay on those who attacked the will and its execution, while Mr. Coker, for the defendant-respondent, argued that the onus was on those who propounded the will. There was thus a sharp divergence between Counsel each of who cited a number of authorities in support of his contention. It would seem, at first sight, that those authorities are contradictory; but, on a closer examination of them, I doubt whether that can be said to be so. Mr. Coker placed great reliance on the judgment in Barry v. Butlin (1), and particularly on an observation in that case by Parke, B., to the effect that the onus probandi lies in every case upon the party propounding a will, who must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. In placing reliance on that principle, Mr. Coker was, I think, on sure ground, for it is one that cannot be challenged. But he went on to endeavour – in support of his contention as to the burden of proof – to apply to the present appeal, certain other passages in Barry v. Butlin relating to the vigilance and jealousy with which a Court must examine the evidence in support of the instrument, where there are circumstances which ought to excite the suspicion of the Court, and laying down the rule that the Court should not pronounce in favour of the will unless the suspicion is removed, and unless it is judicially satisfied that the paper propounded does express the true will of the deceased. Here, however, it seems to me that Mr Coker was carrying his argument too far, for the circumstances in Barry v. Butlin, as in Baker v. Batt (2), which was also referred to, were very different from those in the present case, and the extended rule on which Mr. Coker relies, refers, on the question of onus, to cases where the will has been prepared by, or by the direction of, a person who himself benefits under the will. That this is so is, I think, made quite clear in other passages in Barry v. Butlin and in the case of Craig v. Lamoureux (3), where the application of the rule is discussed.
The rule enunciated by Parke, B., that in every case the onus lies on the propounders of a will to satisfy the Court that the instrument is “the last will of a free and capable testator”, must, however, be taken, I think, to refer only to the first stage, so to speak, of the onus; for the onus does not necessarily remain fixed; it shifts. Where there is a dispute as to a will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say, that there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the Court, prima facie, as to these matters, it seems to me that the burden is then cast upon those who attack the will, and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth. That, it is clear to me, must be their responsibility and nothing can relieve them of it; it is not only a rule of common sense but a rule of law, as appears from numerous authorities. Upon this point, the Lord Chancellor in Boyse v. Rossborough (4) expressed himself as follows:-
“One point, however, is beyond dispute, and that is that where once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it.”
The principle is referred to in almost identical terms by Lord Haldane at page 356 of Craig v. Lamoureux, and is to be found in various other cases. It comes to this, therefore, that the general rule applies in these cases, as in other cases, that the decision must ultimately depend upon a consideration (having regard, of course, to what has. been said as to the shifting burden of proof) of the value of all the evidence given by both sides.
It becomes necessary, therefore, first to examine the evidence adduced by the plaintiffs at the trial, and to consider whether it was such as to establish the prima facie case required of them, having regard to the allegations made by the respondent; namely, that the will was not properly executed, that the testator was lacking in testamentary capacity, and that he had been subjected to the undue influence of his mistress, Agnes Jokotade.
What is there to be said as to proof of the execution of the will? An examination of the will shows that it appears to bear the signature of the testator, that it has the usual attestation clause in the form required by law, and that it was witnessed by Bright Wilson and A. S. O. Coker. The appellants called Mr Bright Wilson at the trial, and he described how the testator brought the will to him to witness its execution, and how he – Mr. Wilson – called in Mr. A. S. C Coker, a tenant of his, as the other witness. Mr. Bright Wilson gave evidence to the effect that the will was executed by the testator in the presence of Mr Coker and himself, all three being present at the same time, and this does not seem to have been seriously challenged in cross-examination, except that a question appears to have been addressed to Mr Wilson suggesting that he and the testator had signed in the absence of Mr Coker. This Mr Wilson denied.
The next point for consideration is the testamentary capacity of the testator. Mr Bright Wilson, in his evidence, not only said that it was the testator who brought the will to him for its execution to be witnessed, but stated that the testator was normal at the time, and that he was in active practice as a barrister and solicitor. Two medical men were called, Dr Omololu and Dr Maja, both of whom had regularly attended the testator, and had also been personal friends of his for years. Each described the cerebral affections from which the testator at one time suffered, but each testified that his mental condition was normal in 1943 when he signed his will, and indeed two years later in 1945, the year when he executed a codicil to it. There seems to be no dispute that it was the testator himself who prepared this lengthy will with its numerous and somewhat complex provisions, and that he himself initialled each page of it.
The evidence shows, furthermore, that he continued in the active practice of his profession for some years after the date of the will, and that he lived for over six years afterwards.
The remaining matter for determination is, whether the testator was a free agent, in the sense that his will can be said to have been the free expression of his own wishes. There is little that the plaintiffs could really be expected to produce in the way of prima facie evidence on this aspect of the case other than that to which I have already referred as having been adduced in relation to the first two allegations, though some of that evidence must inevitably have a bearing upon the question whether the testator was a free agent. I refer, of course, to those witnesses of apparently unassailable respectability who were called to speak as to the testator’s mental condition at the time when the will was executed, as to the circumstances in which it was executed, and as to the persons who were then present. It is further to be noted that there appears to have been no suggestion from any quarter that the woman Jokotade was present at the execution, or that she even accompanied the testator to Mr Bright Wilson’s house.
Upon all these matters, therefore, I have no hesitation in coming to the conclusion that the plaintiffs sufficiently discharged the burden of establishing a prima facie case. As I have said, in my view of the law and the authorities, the onus then shifted, and it was for the defendant-respondent to prove affirmatively, by evidence, the charges detailed in the statement of defence. If that is the correct view, it was for her to satisfy the Judge. Can she be said to have done so?
First, as to due execution of the will: the defendant-respondent’s Counsel, as I have already indicated, cross-examined Mr Bright Wilson only as to the presence of Mr Coker when the will was executed. That seems to have been the only serious challenge on the point of due execution. The learned Judge, however, despite the evidence of Mr Bright Wilson and the rather inadequate challenge directed to it by the respondent, came to the conclusion that the will had not been executed according to law, and declared the will void. He may possibly have been influenced, to some extent, by the view he himself formed as to the ink used for the respective signature of Mr Wilson and Mr Coker – for he said as to this it does not require much effort observe that both testator and Mr Bright Wilson used the same ink, whereas the second witness used quite a different ink, which creates an impression that he did not sign at one and the same time as the testator and Bright Wilson “.
The Judge added this:
“it may be that he used a fountain pen with a different ink, but by saying so I am only guessing which I am not allowed to do”.
If the ink. in fact, presented a different appearance, that, of course, might be a reasonable explanation. In any event, it would be quite unsafe, it seems to me, to place any reliance upon the results of a casual and non-expert examination of this handwriting as to which, indeed, opinions might vary considerably; I myself, for example, have scrutinised these signatures, and I am bound to say that I should have found it difficult to find that they were not all three written with the same ink. The only other reason given by the Judge is that he was not prepared to accept the evidence of Mr Bright Wilson as to the circumstances of the execution of-the will, because of his – I quote the exact words – “indifferent demeanour in the witness-box “.
This Court is always slow to question the opinion of a trial Judge as to the credibility of a witness whom the Judge has had the advantage of seeing and hearing. But it is usual for such opinions to be founded either on some adequate reason which is referred to in the judgment, or on the manifest untruthfulness of the witness. In the present case the Judge appears to have rejected the witness’s testimony solely because of his detached attitude while giving evidence. I must confess that it seem to me that, in the partisan atmosphere of the law Courts, detachment in a witness is a quality as desirable as it is rare. Be that as it may, the learned Judge erred, in my view, in declining on that ground, to accept the evidence of a witness who was a person of standing and a professional man, and in finding, as a result, that the respondent had succeeded in her attack on the execution of the will because Mr Bright Wilson alone had been called on this aspect of the matter.
Now, as to the testamentary capacity of the testator, What was the evidence produced by the respondent upon which the Judge found for her in the face of what had been sworn to by the testator’s two medical attendants and personal friends, and by Mr Bright Wilson, also a friend and a member of his own profession? It is not easy to answer that question, since the evidence adduced by the respondent may really be said to be of value rather upon the question of undue influence than upon the mental capacity of the testator in relation to the making of his will. The only witnesses were the widow, Mrs Johnson, and her daughter, and they spoke chiefly as to the testator’s behaviour in the period following his recovery from ill-health in 1943. I cannot find on an examination of that evidence that it assists, in any material sense, to decide the question of the testator’s capacity to make a will, since it is concerned rather with his behaviour to his wife at this time-behaviour which certainly indicated a breach between husband and wife, and possibly, a transfer of the husband’s affections to his mistress, but which does not seem to me to throw any serious doubt on his sanity. Above all, it fails entirely, in my view, to weaken the evidence adduced by the plaintiffs: that evidence showed that the testator clearly was able to make a will, that he at that time, and for some years after the date of its execution, carried on his profession, and that-whatever his physical weaknesses–his mental condition was normal, not only in 1943 when he made the will, but two years later when he executed the codicil in 1945.
It is apparent to me, from the judgment, and it is perhaps hardly surprising that the learned Judge found some difficulty in disentangling that part of the evidence which was designed to establish undue influence from that which was directed to the testator’s lack of testamentary capacity; for his only references to his reasons for finding that there was no such capacity, are related to portions of the medical evidence which were to the effect that one of the results of the testator’s illnesses might be to make him more likely to be easily influenced by others. It seems to me that here again, the appellants are entitled to succeed on that part of their grounds of appeal which complains that there was no evidence to support the finding of the trial Judge as to the testator’s mental condition in 1943, namely, the finding that “he was not in a fit and proper condition to execute a lawful will”.
Finally, there remains for consideration the allegations that the testator made his will under the undue influence of the woman Jokotade. Those allegations were founded apparently on the testator’s attitude and behaviour towards his wife after his illness in 1943, together with those medical opinions, to which I have already referred, which dealt with the possibility that the testator’s mind could probably be more easily influenced as a result of his physical condition. It was also sought to establish the fact of Agnes Jokotade’s influence over him by tracing the history of events over the period of his convalescence in 1943. For it is not disputed that when the doctors, in the early part of that year, ordered him to rest, the testator retired to a farm in the country where for some weeks he was away from his wife and was visited by Agnes Jokotade that his conduct to his wife, when he returned to his home after this, was that of a man who was estranged from her, that he refused to speak to his wife or to have his food prepared by her, but, instead, had his meals sent in by Jokotade. Some evidence was also given as to the aggressive and over-confident attitude of Jokotade about this time, and the testator’s bank pass-book was produced showing a number of payments at various dates to Jokotade, the amounts of which were certainly considerably larger during the period in question. It was, of course, the crux of the respondent’s case that the will was made late in the year 1943 at the close of the period to which all this evidence relates, and that its provisions were in marked contrast – as regards the wife – to those in an earlier will of 1939.
Such was the evidence upon which the learned Judge found that the will of 1943 had been obtained by the undue influence of Agnes Jokotade. The question for this Court is whether some of that evidence was sufficient to justify such a finding, having regard to the law as to undue influence. For myself, I have no hesitation in saying that it is not sufficient, and that the respondent did not therefore succeed in establishing the allegations she had made.
The defendant/respondent has, therefore, failed, in my view, to discharge the onus laid upon her. For it must be remembered that something far stronger than reprehensible, or even unnatural, conduct in a husband or father is required in these cases. The immoral conduct of the testator, his preference for his mistress, his neglect of his wife and his failure to make adequate testamentary provision for her are far from being sufficient to show that the execution of his will was obtained by Agnes Jokotade’s undue influence. There is, indeed, nothing that I can find to connect Jokotade directly with it. As I have already observed, it is not suggested that she was anywhere at hand on the day when the will was executed, or that she was concerned in its preparation; and while her children benefit to a considerable extent, she herself gets a life estate in a house and nothing more – just, in fact, what she was to get under the 1939 will. The gravamen of the accusation against her is that this will of 1943 is in marked contrast to the testator’s former will of 1939, especially in that the wife is practically excluded. But that is all quite consonant with the mentality of a man who has had children by a favourite mistress, and who – possibly because of that mistress – has quarrelled with his wife and has turned against her. It does not, however, amount to undue influence, as I understand the law; nor would it necessarily do so – as appellants’ Counsel has submitted – even if Jokotade had been shown to have persuaded the testator to make a will on these lines. For in the words of Sir James Hannen, P., in Wingrove v. Wingrove (5), “to be undue influence in the eye of the law, there must be – to sum it up in a word – coercion … because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence”.
These observations are in line with those of the Lord Chancellor in the judgment in Boyse v. Rossborough (4), where the following passage occurs at page 1211 —
“I am prepared to say that influence in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or by fraud.”
I have been unable to find, in this case, any evidence that Agnes Jokotade even “persuaded” the testator to make his 1943 will, much less that it was by her fraud or her coercion that it was executed – even taking account of the varied forms which coercion may take. And definite evidence there must be; for in the words again of the judgment in Boyse v. Rossborougk (4) (at page 1212), “in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis”.
I will conclude the matter with a reference to a further passage in Wingrove v. Wingrove (5) where the learned President said –
“there remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power that the will, such as it is, has been produced “.
It seems to me, that the application of these tests, clearly shows that the defendant/respondent cannot be said to have substantiated the charge of undue influence, and that the learned Judge was wrong in finding against the will on that ground also.
It follows from what I have said that, in my view, the appellants are entitled to succeed in this appeal, and upon all the grounds tiled by them. While the plaintiffs to the action discharged the onus cast upon them, the defendant- respondent did not; and the learned Judge was wrong, in my opinion, in finding upon the evidence adduced before him by both parties, that the will could not stand.
I have so far made no detailed reference to the council of 1945. There was very little evidence about it, and the learned Judge at the trial made no express finding in relation to it. Such evidence as there was pointed to the codicil having been duly executed according to law, and I do not think this was challenged. Mr Williams was prepared to argue that the codicil was clearly a republication of the will, and that, in consequence, any defects in the will could be cured by the execution of the codicil; a proposition in support of which he cited a number of authorities. Mr Coker, on the other hand, referred to another line of decided cases to support his contention that republication by reason of a codicil must be preceded by a revocation of the will. Since, however, it is my view that the will stands and is effective, no useful purpose can be served by an examination of the law as to republication by a codicil, and for that reason I do not propose to deal with that aspect of the matter.
I would allow this appeal, and set aside the judgment of the Court below, substituting therefor a judgment pronouncing in solemn form for the testator’s will of the 27th November, 1943 and his codicil dated the 27th July, 1945. The costs of all parties on this appeal, and in the Court below, to be borne by the Estate.
–
VERITY, C.J.
I concur.
–
JIBOWU, J.
I concur.
–
Appeal allowed.
–