Bafunke Johnson & Ors V. Akinola Ma Ja & Ors (1951)

LawGlobal Hub Judgment Report – West African Court of Appeal

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—Propounders of Will must show that prima facie Will in order, thereafter onus shifts to opposers to substantiate allegations made—To establish undue influence ” coercion ” must be proved.

Facts

The executors as plaintiffs asked the Court to declare in solemn form for the will and codicil 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.

Held

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.

Appeal allowed.