Fatayo Ojule & Ors Vs B. A Fatola Okoya (1972)
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B. A. COKER, J.S.C.
The proceedings herein were begun by originating summons in virtue of which the plaintiffs prayed for:-
“an order that the interest given to Babajide Fatola Okoya and Biodun Okoya by the will dated 25th November, 1939 of Faniyi Ojule deceased in the residuary estate is adeemed and/or satisfied by the subsequent gift inter vivos of a part of the residuary estate given by Faniyi Ojule (deceased) to the said Babajide Fatola Okoya and Biodun Okoya.
When the matter was first mentioned before Taylor C.J. (High Court, Lagos) he ordered the parties to file their pleadings. There were six plaintiffs on the summons, the first five being the children of one Faniyi Ojule who had died on the 14th September, 1943 leaving a will dated the 25th November, 1939. The 6th plaintiff, Rafiu Kassim, is a grandson of Faniyi Ojule, deceased, through his daughter, Folawiyo Ojule, who had survived the father but died soon after him. The defendant, Babajide Fatola Giwa, one Biodun Okoya and one Ishola Okoya, are three grandchildren of Faniyi Ojule (deceased). The deceased will hereafter in this judgment be referred to as the “testator”. The three grandchildren referred to are the children of another daughter of the deceased, by name Aduke Ojule, who had died in 1915 and so had pre-deceased the testator.
As stated before, pleadings were ordered, filed and duly delivered.
Paragraphs 7, 7A, 8, 9 and 10 of the plaintiffs’ statement of claim aver as follows:-
“7. The testator died possessed of 4 real properties.
7 A. The testator specifically devised 3 of his real properties namely 9 Griffith Street, Ebute Metta, Ogba Onireke, Ebute Metta and 3 Erelu Lane, Lagos.
- The only real property not specifically devised by the testator is 34 (formerly 44) Denton Street, Ebute Metta.
- The said real property, 34 (formerly 44) Denton Street, Ebute Metta was devised generally to all the children in equal shares.
- The testator conveyed a portion 25 ft. of the real property 34 (formerly 44) Denton Street, Ebute Metta to the defendant and one Abiodun Okoya on 20th February, 1941 which was registered as No. 47 at page 47 in volume 569 at the Lands Registry at Lagos.”
The statement of claim further avers that since the death of his daughter Aduke Ojule in 1915, the testator “regarded, accepted and treated all her children as his own children” and that by the gift inter vivos of the land at 34 Denton Street, Ebute Metta to the defendant and Biodun Okoya, the residuary devise to them in the will of the testator adeemed. The statement of defence states that the testator always regarded, accepted and treated the children of Aduke Ojule as well as his other grandchildren as his own children but denies that the residuary devise in favour of the defendant was adeemed. The statement of defence also avers that the testator gave the property at 34 Denton Street, Ebute Metta to the grantees therein for the consideration expressed in the instrument of conveyance and that in any case the defendant had been solely responsible for the support and maintenance of the testator for some years before his death.
At the trial and for the plaintiffs Fatayo Ojule (1st plaintiff), Olaitan Ojule (3rd plaintiff) and Fashola Ojule (5th plaintiff) gave evidence. They testified to the averments in the statement of claim and in particular to the fact that Biodun Okoya had since died and that the testator regarded all his grandchildren as his own children, educated them and indeed maintained them. The defendant also gave evidence. He testified that he was indeed educated by his own father and had lived with him until he was transferred to Northern Nigeria to work. He also stated that the deed of gift (put in evidence at the trial as exhibit C) was executed by Faniyi Ojule, his grandfather, whilst he was still stationed in Northern Nigeria.
In a reserved judgment, Taylor, C.J. held that the residuary devise in favour of the grantees, Babajide Fatola Okoya and Biodun Okoya (then deceased) did not adeem by the subsequent gift, inter vivos, to them of part of the same property comprised in the testator’s will, exhibit B. He then dismissed the summons with costs to the defendant.
The plaintiffs have now appealed to this Court against that judgment.They complain generally that the facts and circumstances given in evidence in the case warranted an order to the effect that the residuary clause had adeemed and that the defendant should have been adjudged disentitled to any further share under the will in whatever is left of the property situate at and known as No. 34 Denton Street, Ebute Metta.
In the course of his judgment in the High Court, the learned Chief Justice who tried the case referred to the following passage at page 598 in volume 14 of the 3rd edition of Halsbury’s Laws of England:-
“Satisfaction is the gift of a thing with the intention that it shall be taken either wholly or partly in extinguishment of some prior claim of the donee. Satisfaction may occur:-
(1) when a convenant to settle property is followed by a gift by will or settlement in favour of the person entitled beneficially under the convenant;
(2) when a testamentary disposition is followed during the testator’s lifetime by a gift or settlement in favour of the devisee or legatee; and
(3) when a legacy is given to a creditor.
Ademption is the term which correctly describes, among other: matters, the second category of instances in which the doctrine of satisfaction applies;” and on that direction concluded that ademption was not established. For our part we are in full agreement with this statement of the law and it must follow that for the plaintiffs to succeed they must show that the gift inter vivos, to the defendant after the residuary devise was made by the testator with the intention that it should be taken wholly or partly in, extinguishment of his prior claim by virtue of the will of the testator. The plaintiffs have not shown that the defendant had any claim on the testator, for they failed, as the learned Chief Justice pointed out in his; judgment, to prove that the testator was in loco parentis to the defendant.: whereby he was bound to maintain him or to set him up in life. Surely, the doctrine of ademption was conceived in equity so that of many children or those to whom a testator stood in loco parentis, one should not at the expense of the other or others take a double portion. (See in, re Tussaud’s Estate, Tussaud v. Tussaud (1878) 9 Ch.D. 363). Hence the relationship grounding the obligation to provide a portion must be established and a failure to do this is undoubtedly fatal to the case of the appellants. In ex parte Pye 34 E.R. 271 at p. 274 Lord Eldon stated the law thus:-
“The question is certainly of great consequence, whether this class of cases does, or does not, require evidence, that at the time the legacy, was constituted the legatee not standing in the relation of child to the testator, was regarded by him quasi in that relation; conceiving the purpose of placing himself in loco parentis;”.
(See also In re Shields, Courbould-Ellis v. Dales [1912] I Ch. 591).
The devise which it is now sought to be declared caught by the doctrine of ademption is contained in the will of the testator and it is beyond argument that the testator could have at any time before his death altered that will. Where, however, after a gift inter vivos the testator able and capable of so altering his will does not do so, the onus on an applicant seeking a declaration of ademption is even greater. In the case in hand, the testator stated on the face of the document exhibit C the consideration for which he had made the gift; there was no evidence to show that by virtue of the relationship between him (the testator) and the defendant the former was always bound to provide for the latter; and in any case what was given inter vivos was only a portion and not all the subject-matter of the residuary devise.
We think that in all the circumstances of the case the learned Chief Justice was right to conclude that no case for ademption was made out. The appeal fails and it is dismissed. The appellants will pay to the respondent the costs of this appeal fixed at 34 guineas.
Other Citation: (1972) LCN/1448(SC)
