James Chibueze Unoka & Ors. V. Mrs. Victoria Kanwulia Ofili Agili & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
By a writ of summons issued on the 11th day of September, 2002, from the High court of Justice, Delta State, in the Asaba Judicial Division, the Plaintiffs/Respondents in this appeal claimed from the three Defendants as follows:-
“(a) A DECLARATION THAT THE Plaintiffs are entitled to the grant of a Statutory Right of Occupancy in respect of the piece or parcel of land measuring 100 feet by 100 feet situate and lying at No. 19 Sir Opia Street off the Asaba/Onitsha expressway almost opposite NEPA SUB Station along expressway near Okwe junction, Asaba within the Jurisdiction of this Honourable Court which piece or parcel of land shall be clearly delineated in a survey plan to be filed with the statement of claim.
(b) N500,000.00 (Five Hundred Thousand Naira) being General damages against the Defendants/Respondents for act of trespass committed on the said piece or parcel of land.
(c) An order of perpetual injunction restraining the Defendants, their servants, privies and/or agents from further entering upon any part of the said piece or parcel of land.”
Pleadings were ordered, filed and exchanged by the parties. The Plaintiffs/Respondents (hereinafter to be referred to as the 1st set of Respondents) based their claim to the land in dispute on a devise made to them in the Will of their father, one Chief Thompson Darius Rapu. The 1st set of Respondents are suing through one Ogbueshi H. I. Rapu to which they gave a power of Attorney to represent them in court.
The Applicants/Respondents (hereinafter to be referred to as the 2nd set of Respondents) who are the Executor and Executrix of the Estate of Chief T.D Rapu by a motion on notice dated 16th January, 2003, sought an order of the lower court to be joined in the suit as the 2nd and 3rd Plaintiffs.
The motion prays for the following orders.
“1. An order the joinder of Dr. Anthony Rapu and Mrs. Bridget Itsuelu both of No.6 Rapu Lane, Cable Point, Asaba who are the Executor and Executrix respectively of the will of Chief Thompson Darius Rapu, as the 3rd and 4th Plaintiffs in this suit.
2. An order upon the said joinder of parties to amend the statement of claim to reflect the said joinder and other necessary amendments shown underlined in the proposed amended statement of claim attached to the affidavit in support of this motion as Exhibit “A”.
3. An order to deem the proposed amended Statement of claim attached to the affidavit in support as Exhibit “A1″ as the Joint Amended Statement of Claim of the Plaintiffs as duly filed served necessary fees having been paid”.
The 1st Defendant/Appellant (hereinafter to be simply referred to as the Appellant) filed a counter affidavit to the application for joinder dated 3rd March, 2003.
When the application came up for hearing, counsel for the Appellant raised the issue that the suit is incompetent and urged the court to reject the application for joinder and to strike out the suit. The learned trial Judge in a considered ruling delivered on the 10th May, 2004 overruled the objection taken by the Appellant’s counsel and held that the suit is competent and also granted the application for joinder.
Being dissatisfied with the said Ruling the Appellant now appealed to this Honourable court vide a Notice and Grounds of Appeal dated 17th day of May, 2004 upon four (4) Grounds of Appeal. The Grounds of Appeal are hereby reproduced.
“(1) The learned trial Judge erred in law in holding that the Suit is competent and that he has jurisdiction to entertain same and to grant the application.
(2) The learned trial Judge erred in law in relying on the decision in Udo vs. Williams (1997) 1 N.W.L.R (part 483) 548, Menkiti vs. Agina (1965) N.M.L.R. 127, Ricket vs. B.W.A. Ltd (1960) S.C. N.L.R. 227 and those line of cases in the determination of the application when the said decisions do not apply to this matter.
(3) The learned trial Judge erred in law in granting the application instead of striking out the suit and the application.
(4) The learned trial Judge erred in law in granting the applicants-respondents application thereby purporting to validate an incompetent Suit to the prejudice of the defendant-respondents-appellant.”
In compliance with the Rules of this court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by G.R.I. Egonu (SAN), learned senior counsel formulated three issues for the determination of the appeal. The issues are:-
“(1) Whether the learned trial Judge was right in holding that this suit is competent and that he has jurisdiction to entertain same and grant the application for joinder?
(2) Whether the learned trial Judge was right in relying on the decisions in Udo vs. Williams (1997) 1 NWLR (part 483) 548; Menkiti vs. Agina (1965) N.M.L.R 127; Ricket vs. B.W.A Ltd (1960) SC NLR and those line of cases in the determination of the application when the said decisions do not apply to this matter?
(3) Whether the learned trial Judge was right in granting the Applicants/Respondent’s application instead of striking out the suit and the application and thereby purporting to validate an incompetent suit.”
“In the Respondent’s brief, settled by Nnamdi Ibegbo, (SAN), learned senior counsel formulated an issue for the determination of the appeal. The issue is:-
“Is suit No.A/185/2002 competent so as to enable the trial court join the Executor and Executrix of the estate of Chief R.D. Rapu to the suit as parties?”
When the appeal came before us for hearing on the 21st/11/2006, C.A. Nnyigide Esq holding the brief for G.R.I. Egonu,(SAN), adopted and relied on the Appellant’s brief of argument dated 21st/6/2005 and filed on the 1st/7/2005 and urged us to allow the appeal. He submitted that the cases relied upon by the lower court were orbiter and irrelevant to the matter before the court. He also submitted that the ratio decidendi of those case are against the decision reached by the lower court. He submitted that in the case of Udo vs Williams relied upon by the lower court, there was no issue as to the capacity of the Plaintiff in that case. That the lower court took Menkiti vs. Agina’s case to be a Supreme Court decision and that in Ricket vs. B.W.A Ltd case, the Executor was sued as a defendant. Learned counsel urged us to allow the appeal and set aside the decision of the lower court joining 3rd and 4th Respondents and to strike out the suit as being incompetent.
Learned counsel for the Respondent, M.C. Ilondu (Mrs) adopted and relied on the Respondent’s brief dated and filed on the 6th/9/2005 and urged the court to dismiss the appeal as the suit was properly constituted and the parties joined were properly joined.
In the Appellant’s brief, learned senior counsel argued all the three issues formulated by him together thereby making the entire legal argument more complex. I have no option than to follow same.
It is submitted that Real Estate of a deceased testator vests in the personal representatives of the deceased testator notwithstanding any testamentary disposition thereof and they are deemed in law as his heirs and assigns. He relied on Section 3, Administration of Estates Law Cap 2 vol. 1 Laws of the Bendeal State of Nigeria 1976 and the cases of Chief Micheal O. Okonyia vs. Nnamdi Ikengah & Anor (2001) 2 NWLR (Pt. 697) 336 at 361-362; and Madam Asimowu Odusoga vs. L.L. Rickets (1997) 7 NWLR (Pt. 511) 1 at 14.
It is submitted that it is the Executor and/or Executrix of a deceased testator in whom the legal interest in the estate of the deceased testator is solely vested and who are empowered by law to take such steps necessary for the prosecution of the estate of the deceased. It is also submitted that the 2nd set of Respondents in this suit are the Executor and Executrix of the estate of Chief T. D. Rapu the father of the 1st set of Respondents and that the estates of Chief T. D. Rapu is solely vested in the 2nd set of Respondents in accordance with the provisions of the law. It is therefore submitted that it is only the 2nd set of Respondents that are heirs and assigns of Chief T. D. Rapu and are legally vested with the power to deal with the ‘estate of Chief T. D. Rapu and to take such necessary steps for the protection of the said estate. It is further submitted that the learned trial Judge recognized this position of the law but went on to hold wrongly that the suit filed is competent and that the 1st set of Respondents had a right to sue for the land in dispute.
It is the view of learned senior counsel, that beneficiaries under a Will are not permitted by law to take over their shares in the estate as a matter of course, that it is only when a vesting Assent is made by an Executor and or Executrix to a beneficiary that the estate or interest to which the Assent relates can vest on such beneficiary. It is also submitted that a beneficiary cannot claim his share in the estate of the deceased testator until the executors have given their Assent to the vesting of the property on him. Reliance was placed on Section 40(1) to (4) Administration of Estates Law Cap 2 vol. 1 Laws of the Bendel State of Nigeria 1976, and Obi Okoye, “Essays on Civil Proceedings” vol. 3 pages 82- 83 paragraphs 195.
The learned counsel for the Appellant also submitted that the 1st set of Respondents brought this suit against the Appellant and the Defendants/Respondents claiming inter alia a declaration that they are entitled to the Statutory Right of Occupancy over the land in dispute. They claimed that the land in dispute was devised to them under the Will of Chief T. O. Rapu. It is submitted that no vesting Assent was made by the 2nd set of Respondents in favour of the 1st set of Respondents. It is therefore submitted that the Estate of Chief T.D. Rapu still vests in the 2nd set of Respondents and that the 1st set of Respondents cannot lay claim to the land in dispute since no legal interest in the land in dispute has been transferred to them by means of a vesting assent. The following cases were relied upon; M. R. Ojikutu vs. B. F. Fella 14 WACA 628 at 629; Justina Ogbeyeanu Menkiti vs. Eugene A. Agina & Anor (1965) NMLR 127 at 128 and Badasievba Jitobor vs. Emily Akpavetan & Ors (1966) NMLR 188 at 190.
It is therefore submitted that the 1st set of Respondents as beneficiaries have no legal interest in the land in dispute and are not entitled to institute this action since the said land is still vested in the 2nd set of Respondents. It is submitted that the learned trial Judge was therefore wrong in holding that the 1st set of Respondents can sue to protect their interest in the land in dispute.
It is also submitted that the learned trial Judge wrongly relied on the position that where an Executor or Executrix is sleeping over his or her right, or fails or is reluctant to act, the beneficiaries can sue and such an action will not be incompetent. It is submitted that it is settled law that the court has a duty not to make a case for the parties, placing reliance on the following cases;
(1) Alhaji L.B. Ogunlowo VS. Prince O. A. Ogundare & Ors (1993) 7 NWLR (Pt. 307) 610 at 624.
(2) Punch (Nig) Ltd & Anor Vs. S.E. Eyitene (2001) 17 NWLR (Pt. 741) 228 at 255.
(3) Alhaji Ahmadu Babale VS. Amina Aminu Abdulkadir (1993) 3 NWLR (Pt. 281) 253 at 260.
(4) Iwuorie Iheanacho & Ors vs. M. Chigere & Ors (2004) 17 NWLR (Pt.901) 130 at 150.
Learned senior counsel further submitted that court has a duty to avoid deciding a matter based on speculation citing the following cases; Emmanuel Ezedigwe & Anor vs. Chief Akunne Ndichie (2001) 12 NWLR (Pt. 726) 37 at 67; and Friday Aiguoreghian & Anor vs. The State (2004) 3 NWLR (Pt. 860) 367 at 407.
It is also submitted that the 1st set of Respondents lack the legal capacity to institute the above suit. It is submitted that a person who makes a claim which in actual fact belongs to someone else has no locus standi before the court citing in support the case of Buraimoh Oloriode & Ors. VS. Simeon Oyebi & Ors (1984) 5 SC 1 at 16. It is further submitted for the Appellant that the law is clear that without a vesting assent, the legal interest of the estate of Chief T.O. Rapu lies in the 2nd set of Respondents. That the right to make a claim for the land in dispute lies in the 2nd set of Respondents and not the 1st set of Respondents who have no locus standi to institute this suit and the court has no jurisdiction to entertain the action. Reliance was placed on the following cases;
1. Emmanuel C. Nwankwo vs. Cecilia Nwankwo (1992) 4 NWLR (Pt. 238) 693 at 707;
2. Austin O. Erebor v. Major & Company (Nig.) Ltd & Anor (2001) 5 NLWR (Pt.706) 300 at 308.
It is therefore submitted that having shown that the 1st set of Respondents have no locus standi, the trial court has no jurisdiction to entertain this suit and this suit ought to have been struck out.
It is also submitted that the cases of Aniedi Bassey Udo vs. Nkoyo Bassey Williams (1997) 1 NWLR (Pt. 483) 548 at 560, and Ricket vs. BWA Ltd (supra) referred to by the learned trial Judge had no application in this case, in that the capacity of the Respondent to institute the action was not in issue in the case, and that Rickets’ case dealt with the issue of the liability of an Executor de son tort for an overdraft incurred while running the business of the deceased and it is not an authority that an executor de son tort can sue in protection of the estate. Learned counsel referred to Jowitt’s Dictionary of English Law, Second Edition by John Burke vol. 1 page 747 wherein it was stated as follows:-
“An Executor de son tort cannot bring an action himself in right of the deceased; but actions may be brought against him not only by the rightful executor or administrator but by any creditor or legatee (Peters vs. Leader (1878) 47 L.J.Q.B 573; Att.Gen vs. New York Breweries Co. (1899) AC (62).”
It is therefore submitted that the learned trial Judge was wrong in holding that the 2nd set of Respondents are Executories de son tort and can maintain an action for the protection of the property of the estate. He went on to submit that the case of Augustine Udensi vs. Alice Mogbo (1976) 7 SC 1 at 21 relied upon by the learned trial Judge in support of his opinion that the law allows beneficiaries to sue to protect the estate does not apply to this suit. It is also submitted that the case of Justina Ogbeyano Menkiti vs. Eugene A Aina & Anor (1965) NMLR 127 was wrongly relied upon by the learned trial Judge in support of his opinion that the law allows beneficiaries to sue to protect the estate.
It is therefore contended that this suit is incompetent for lack of legal capacity on the part of the 1st set of Respondents to institute this action, and that the trial court had no jurisdiction to entertain this suit let alone grant an application for joinder. The following cases were also relied upon, Emmanuel C. Nwankwo vs. Cecilai I. Nwankwo (supra) at page 708; and Ndionyenma H. Nwankwo & Anor VS. Mrs Ann C. Ononoeze Madu & Ors (2005) 4 NWLR (Pt. 916) 470 at 482.
It is submitted finally, that it is trite law that you cannot put something on nothing and expect it to stay there, that it will collapse citing in support the case of Macfoy vs. United Africa Co. Ltd (1961) 3 All E.R. 1169 at 1172. We were urged to allow the appeal, set aside the ruling of the trial court together with the order for joinder and to strike out the suit.
Replying, learned senior counsel for the Respondent Nnamdi Ibegbu, Esq, SAN, submitted that a court can only be competent if among other things all the conditions precedent for its having jurisdiction are fulfilled relying on the authority of Shola vs. Ajiboye (1994) 6 NWLR (Pt. 352) 506 at 589.
It is submitted that the case came before the court initiated by due process of law, and upon fulfillment of condition precedent to the exercise of jurisdiction and that there is no feature in the case, which prevents the court from exercising its jurisdiction.
He submitted that the 1st set of Respondents are the children of the testator, Chief T. D. Rapu and that they are beneficiaries to Exhibit’ A’, the Will of Chief T.D. Rapu. It is submitted by the learned senior counsel that although the 1st set of Respondents are not Executors or Executrices a beneficiary who has an interest in the subject matter of the suit whose land is being trespassed upon has a cause of action and can sue to protect his or her interest in the said property although he or she may be described as an executor or executrix de son tort. It is also submitted that as executors or executrix de son tort, they can properly do for the benefit of the estate anything which a legal representative can do. It is thus submitted that the capacity of a Plaintiff to sue for the estate of a deceased person is not lost simply because the Plaintiff is an executor de son tort. It is also submitted that an executor de son tort may be liable for losses incurred by the estate while he or she is managing it and he may not be indemnified for it by the estate, placing reliance on the case of Udo VS. William (1997) 1 NWLR (Pt. 483) 548 at 560.
Learned counsel also referred to the case Menkiti vs. Agina (1965) NMLR 127 and submitted that in that case the Plaintiff claimed in her writ as next of kin of the deceased for possession and injunction restraining the defendants from trespassing. The Supreme Court held that the Plaintiff had the capacity in the circumstances, as she did not give a wrong description of herself. Learned counsel referred to the case of Ricket VS. B.W.A. Ltd (1960) SCNLR 227; SFSC 113 to buttress the right of the 1st set of Respondents to sue as Plaintiffs. It is submitted that in that case, the Appellant was found to be executor de son tort as he admitted during the trial that he intermeddled with the estate of the late F.J. Wilson and on the evidence there is no doubt that he did. He said he acted as agent for the beneficiaries as they ratified that he did. It is submitted that the Supreme Court in the course of its judgments per Hubbard Ag. F. J. observed inter alia, that all lawful acts of an executor de son tort are good and went on to say as follows:-
“An executor de son tort can properly do for the benefit of the estate anything which a legal representative can do (1 Williams, 13 Ed. 34)”
Learned counsel went on to submit that the three decisions he referred to went on to emphasize that capacity is not lost simply because of the fact of being an executor de son tort. It is therefore submitted that the 1st set of Respondents who filed the action through their attorney to defend the land; subject matter of the Will, rightly did what they did, and the trial court is competent to hear and determine the suit.
It is also submitted that the trial court has jurisdiction to hear and determine the suit and that the 2nd set of Respondents who are executor and executrix of the Will in question, who obviously have an interest in the estate of Chief T. D. Rapu in that capacity were properly joined to the suit by the trial court as co-plaintiffs. It is also submitted that the essence of joinder is to join the necessary parties sought to be joined citing Ugorji vs. Onwu (1991) 3 NWLR (Pt.78) 177 at 184. Learned counsel therefore urged the court to hold that the 1st set of Respondents have a cause of action and as such the court has jurisdiction to determine the suit. We were also urged to dismiss the appeal.
The main issue for determination in this appeal appears to me to be whether in the circumstances of this case, the law allows beneficiaries to sue for the share of their estate when no vesting assent has been given to them.
From the facts before the court, the 1st set of Respondents are daughters of one Chief T.D. Rapu (deceased). They are suing through their Attorney, Ogbueshi H. I. Rapu. Late Chief T.D. Rapu left a Will Exhibit A and the Executor and Executrix of the Will are Dr. Anthony Rapu and Mrs. Bridget Itsueli, the 2nd set of Respondents.
The 1st set of Respondents claim inter alia as follows:-
“A declaration that the plaintiffs are entitled to the statutory right of occupancy in respect of the piece or parcel of land measuring 100 feet by 100 feet situate and lying at No. 19 Sir Opia Street off the Asaba/Onitsha express way almost opposite NEPA sub station along express way near Okwe junction over the land verged plan attached to the statement of claim situate at Asaba/Benin Expressway USA/DEDOS/2002.”
It is trite law that the real estate of a deceased testator vests in the personal representatives of the deceased testator notwithstanding any testimentary disposition thereof and are deemed in law as his heirs and assigns. Section 3 of the Administration of Estates Law Cap 2 vol. 1 of the Laws of Bendel State of Nigeria, 1976 as applicable to Delta State provides thereof:-
3.(1) Real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this Law chattels real devolved on the personal representative from time to time of a deceased person.
(2) The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.
(3) The personal representatives shall be the representative of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate.”
It is clear from the above provisions that it is the Executor and or Executrix of a deceased testator, in whom the legal interest in the estate of the deceased testator is solely vested and who are empowered by law to take such steps necessary for the protection of the estate of the deceased. See Micheal O. Okoyia vs. Nnamdi Ikengah & Anor (supra) and Madam Asimowu Odusoga vs. L.L. Rickets (supra).
The position of the law is settled that it is only when a vesting Assent is made by an Executor and or Executrix to a beneficiary that the estate or interest to which the Assent relates can vest on such beneficiary. A beneficiary therefore cannot claim his share in the estate of the deceased testator until the Executors have given their assent to the vesting of the property on him. Section 40 of the Administration of Estates Law (supra) provides in sub sections 1, 2 and 4 as follows:-
40(1) A personal representative may assent to the vesting in any person who (whether by devise, bequest, devolution, appropriation or otherwise) may be entitled thereto, either beneficially or as a trustee or personal representative, of any estate or interest in real estate to which the testator on intestate was entitled or over which he exercised a general power of appointment by his will, and which devolved upon the personal representative.
(2) The assent shall operate to vest in that person the estate or interest to which the assent relates, and, unless a contrary intention appears, the assent shall relate back to the death of the deceased.
(4) An assent to the vesting of a legal estate shall be in writing, signed by the personal representative, and shall name the person in whose favour it is given and shall operate to vest in that person the legal estate to which it relates; and an assent not in writing or not in favour of a named person shall not be effectual to pass a legal estate.”
The contention of the Appellant in the instant appeal is that the 1st set of Respondents brought this suit claiming inter alia a declaration that they are entitled to the Statutory Right of Occupancy over the land in dispute. And they claimed that the land in dispute was devised to them under the Will of Chief T.D. Rapu. That no vesting assent was made by the 2nd set of Respondents in favour of the 1st set of Respondents and none was tendered before the trial court and it is submitted that the estate of Chief T.D. Rapu still vests in the 2nd set of Respondents and the 1st set of Respondents cannot lay claim to the land in dispute as a matter of cause since the legal interest in the land in dispute has not been transferred to them by means of a vesting assent.
The Respondents contended that although not an Executor or Executrix, a beneficiary who has an interest in the subject matter of the suit whose land is being trespassed upon has a cause of action and can sue to protect his or her interest in the said property although he or she may be described as an Executor or executrix de son tort, referring to the cases of Udo vs. Williams (supra), Menkiti vs. Agina (supra) and Ricket vs. BWA Ltd (supra). It is contended that an Executor de son tort can properly do for the benefit of the estate anything which a legal representative can do and that capacity is not lost simply because of the fact of being an Executor de son tort. Let me say here that T did not agree with this submission of learned senior counsel for the Respondent. It is trite law that beneficiaries to a Will are not entitled to sue for any property devised to them when the said property is still vested in the Executor and or Executrix of the Will. See M. R. Ojikutu vs. B. F. Fella (supra); Menkiti vs. Agina (supra) and Badasievba Jitobor vs. Emily Akpovetan & Ors (supra).
In the instant appeal, the 1st set of Respondents did not tender before the trial court any vesting assent made to them by the 2nd set of Respondents so one could outrightly say that the estate of Chief Rapu still vests in the 2nd set of Respondents and 1st set of Respondents cannot lay claim to the land in dispute since the legal interest in the land in dispute has not been transferred to them by means of a vesting assent and the suit instituted by them therefore is incompetent.
In the circumstances therefore, would the finding of the learned trial judge that the 1st set of Respondents are Executrices de son tort and therefore can maintain an action to protect the estate avail the 1st set of Respondents? That is, would the 1st set of Respondents be considered as Executrices de son tort in the circumstances of this case? Or would the cases of Udo vs. William (supra) Menkiti vs. Agina (supra) and Ricket vs. BWA Ltd (supra) stand in to protect the position of the 1st set of Respondents to sue to protect the estate?
These cases are of importance to this appeal and therefore needs special consideration, but the question that arises now is, who is an Executor de son tort?
Blacks Law Dictionary 7th Edition at page 591 defines Executor de son tort as follows:-
“(Law French Executor of his own wrong) A person who, without legal authority, takes on the responsibility to act as an Executor or Administrator of a deceased property, to the detriment of the estate’s beneficiaries or creditors. Executor de son tort or Executor of his own wrong is he that takes upon him the office of an Executor by intrusion, not being so constituted by the testator.”
The Supreme Court in Augustine Udensi vs. Alice Mogbo (1976) 7 SC 1 at 20 had cause to define Executor de son tort as follows:-
“Now a person who has not been lawfully appointed an Executor or Administrator of an estate may by reason of his own intrusion upon the affairs of the estate be treated for some purposes as having assumed the executorship and in law such a person is called an Executor de son tort. The slightest interference with the goods or property of the deceased is sufficient to create such liability and such a person (Executor de son tort) is liable to be sued by the rightful representatives of the estates or by a creditor to the estate or by a beneficiary thereof’.
In Udo vs. William (supra), the Appellant was in possession of the land in dispute when the Respondent sued him in the High court claiming the land on the ground that her late husband bought the land from the Appellant’s father in 1970. The Respondent pleaded the identity of the land and the Appellant admitted that paragraph in his statement of defence. At the trial under cross-examination, the Respondent admitted that her husband made a Will to which her eldest son was appointed the Executor.
She stated that her son who was in the United States gave her authority to sue. The trial Judge found for the Respondent and on appeal to the Court of Appeal the judgment was upheld. It was held that an Executor de son tort can properly do for the benefit of the estate anything which a legal personal representative can do. That capacity of a Plaintiff to sue for the estate of the deceased person is not lost simply because the Plaintiff is an Executor de son tort. However, the capacity of the Plaintiff to sue was not an issue before the trial court.
The facts in Menkiti vs. Agina (supra) are slightly different. In that case which is a decision of the High Court of Eastern Nigeria (Kaine, J,) presided, was that the Plaintiff who was a joint beneficiary with the 2nd defendant brought an action seeking inter alia to set aside the conveyance of the land in dispute by the 2nd defendant to the 1st defendant. Her case was that she was a joint tenant with the second defendant in respect of the land in dispute by virtue of the will of their mother and that they had not partitioned the land when the second defendant sold a portion of it to the 1st defendant. The defence was that the plaintiff and the defendant were tenants in common by the will of their deceased mother, that immediately on their mother’s demise the family met and read the will and then divided the land among the parties and that the land had been voluntarily partitioned before the second defendant sold his own to the 1st defendant. However, it was not shown that the will was proved and that the executors have finished administration of the estate and have distributed the properties of the deceased testatrix and have given their assent to the land now in dispute being vested in the beneficiaries.
It was held inter alia that, until the executors have finished the administration of the estate, and have given their assent to the land now in dispute being vested in the beneficiaries, the beneficiaries are not entitled to sue for the alienation of the land devised to them unless they can show that the personal representatives have been sleeping over their rights for the landed properties are not yet vested in them. It was also held that the plaintiff and the 2nd defendant having constituted themselves into executors de son torts, to grant them any remedy would tantamount to a condonation. The plaintiff was non-suited. The case is not therefore an authority that the law allows beneficiaries to sue to protect the estate.
In Rieket VS. B.W.A Ltd (supra), the Appellant was found to be executor de son tort as he admitted during the trial that he intermeddled with the estate of Late Mr. F. J. Wilson and on the evidence there is no doubt that he did. He said that he acted as agent of the beneficiaries and they rectified that he did. The Supreme Court in the course of its judgment per Hubbard F. J. observed inter alia, that all the lawful act of an executor de son tort are good.
In the instant appeal, there is no evidence placed before the trial court to show that the 2nd set of Respondents were sleeping over their right or failed or were reluctant to act in order to entitle them to sue for the land in dispute. Mentkiti vs. Agina (supra). There is also no evidence before the trial court that the 1st set of Respondents obtained leave of the trial court to prosecute this action; Udo vs. William (supra). In Rieket vs. B.W.A Ltd (supra), the Executor de son tort was not a beneficiary to the estate of the deceased.
It is trite that the decision of a court must be based only upon the facts and materials placed before it by the parties to the dispute. It is not the business of a trial court to make out a case for a party. In the instant appeal, the learned trial Judge was wrong to have held that the 2nd set of Respondents had failed to act or that they were asleep when no materials were placed before the court to that effect.
It is therefore my view that an Executor de son tort is an executor of his own wrong, without a legal authority, an intruder to the detriment of the estates beneficiaries or creditors. He is a third party not being the legal representative of the personal estate of the deceased and not a beneficiary but someone who intermeddled with the estate of the deceased. He is therefore a person with no legal capacity to sue but an action can be maintained against him.
In Jowitts Dictionary of the English Law, Second Edition vol. 1 by John Burke, it was stated that an executor de son tort cannot bring an action himself in right of the deceased, but actions may be brought against him not only by the rightful executor or administrator but by any creditor or legatee.
Based on the foregoing, it is my candid view that the 1st set of Respondents cannot maintain an action for the benefit of the estate which legal representatives can do, and the learned trial Judge was therefore wrong when he held that the 1st set of Respondents are executrices de son tort and can maintain an action for the protection of property of the estate. They cannot bring an action themselves for their alleged devise in the Will of the deceased Chief T.D. Rapu. The 1st set of Respondent therefore lack the legal capacity to institute this suit. A person who makes a claim which in actual fact belongs to someone else has no locus standi before the court. See Buraimoh Oloriode & Ors vs. Simeon Oyebi & Ors (1984) 5 SC 1 at 16.
The position of the law is clear that without a vesting assent the legal interest of the estate of Chief T.D. Rapu lies in the 2nd set of Respondents. The 1st set of Respondents by failing to produce a vesting assent before the trial court, showed that the property was not vested to them. Therefore, the right to make a claim for the land in dispute lies in the 2nd set of Respondents and not the 1st set of Respondents. The learned trial Judge wrongly held that the 1st set of Respondents have locus standi. It is now well settled that where a plaintiff has no locus standi, the court has no jurisdiction to entertain the action and same must be struck out. See Emmanuel C. Nwankwo VS. Cecilia I. Nwankwo (1992) 4 NWLR (Pt. 238) 693 at 707; Austine O. Erebor vs. Major & Company (Nig) Ltd & Anor (2001) 5 NWLR (Pt. 706) 300 at 308.
The issue of jurisdiction has always been regarded as a threshold matter which can be raised at any stage of the proceedings as soon as the cause of the impairement of the court’s jurisdiction surfaces. In the instant case, the learned trial Judge ought to have held that the 1st set of Respondents had no capacity to institute this action and he should have struck out the suit and not grant the application for joinder. See Emmanuel C. Nwankwo VS. Cecilia I. Nwankwo (supra); Ndionyenma H. Nwankwo & Anor v. Mrs Ann C. Ononoeze Madu & Ors (2005) 4 NWLR (Pt. 916) 470 at 482.
It is now trite law that you cannot put something on nothing and expect it to stay there, it will collapse. See Macfoy VS. United Africa Co. Ltd (1961) 3 All E.R. 1169. The order for joinder cannot be made in a suit which is incompetent. The learned trial Judge by granting the application for joinder wrongly sought to validate the said suit by allowing the joinder of the 2nd set of Respondents.
Based on the foregoing, this appeal is meritorious and it is hereby allowed. Consequently the Ruling of the trial court delivered on the 10th/5/2004 is hereby set aside together with the order for joinder. The Suit No.A/185/2002 is hereby struck out. There shall be costs of N5,000.00 in favour of the Appellant against the 1st & 2nd sets of Respondents.
Other Citations: (2007)LCN/2224(CA)
