Before Their Lordships
Abubakar Bashir Wali Justice of The Supreme Court of Nigeria
Idris Legbo KutigiJustice of The Supreme Court of Nigeria
Michael Ekundayo Ogundare Justice of The Supreme Court of Nigeria
Emmanuel Obioma Ogwuegbu Justice of The Supreme Court of Nigeria
Sylvester Umaru Onu Justice of The Supreme Court of Nigeria
Between
OKELOLA ………………………………………………… APPELLANT
AND
BOYLE ………………………………………………. RESPONDENT
…………………….A…………………….
Ogundare, JSC (Delivered The Leading Judgment):- By an indenture dated 2 June 1896 and registered as No 43 at page 174 in Vol. 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 Adekunle 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 10 January 1975; he had no issue. Adekunle also died intestate on 9 February 1976; he too was childless.
On 28 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 9 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 24 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 24 February, 1976 purported to be the Last Will and Testament of Gabriel Theophilus Abiodun Otemuyiwa and propounded by the defendant.
