JOHNSON v. MAJA 1 LRLR Vol 1 (WACA Reprint)

1 LRLR Vol 1 (WACA Reprint)

Alternative Citation
13 WACA 290
(Re Randle)

It has to do with the Will of the late Alfred Latunde Johnson, who died on the 7th April, 1950. The Will was dated the 27th November, 1943, and a codicil to it was executed on the 27th July, 1945.
The executors applied for a grant of probate; but the testator’s widow lodged a caveat against the grant.
The executors as plaintiff sued the testator’s widow as defendant and asked the court to declare in solemn form for the Will and codicil, while the widow, as defendant, challenged the Will upon three (3) grounds namely –
1.     That it had not been executed as required by law;
2.     That the testator was not of sound mind, memory and understanding at the time of the execution; and
3.     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 the 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.
On appeal, argument was addressed to the West African Court of Appeal 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.
Lewey J. A. 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.”

On issue No. 1 above – “that it had not been executed as required by law”,
The court stated that what is there to be said as to proof of the execution of a Will? An examination of the Will shows that it appears to bear the signature of the testator, which it has the usual attestation clause in the form required by law, and that it was witness by Bright Wilson, and A. S. O. Coker.

On issue No. 2 – “that the testator was not of sound mind, memory and understanding at the time of the execution”,
The court stated that it has to do with the testamentary capacity of the testator. Mr. Bright Wilson [a witness], 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.
On issue No. 3 – “that the execution was obtained by the undue influence of a woman named Agnes Jokotade who was the mistress of the testator”,
The court stated that it is not disputed that when the doctors, in the early part of the 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.
Some evidence was also given as to the aggressive and over confident attitude of Agnes Jokotade about this time, and the testator’s bank pass-book was produced showing a number of payments at various dates to Agnes Jokotade, the amounts of which were certainly considerably larger during the period in question.
The court stated however that the defendant/respondent has failed 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 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 can be found to connect Agnes Jokotade directly with it. And there is no 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.

The court held that 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.
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.
The court further held 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.
The appeal was allowed and the judgment of the lower court was set aside.

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