Joseph Adeniji Ogunro And 3 Ors V. Christiana Ajke Ogedengbe And Anor (1960)

LawGlobal-Hub Lead Judgement Report

HUBBARD, F.J 

This is an appeal against an order made by the High Court of Lagos upon an originating summons. The summons was issued by (1) Christiana Ajoke Ogedengbe (nee Ogunro) and (2) Benjamin Kayode Ogunro. The respondents were (1) Joseph Adeniji Ogunro, the administrator of the estate of the late J.A.R. Ogunro, (2) Mrs. Comfort Amua Sekyi, (3) Mrs. Florence Ibilola Manuwa, (4) Victor Ajibade Ogunro and (5) Georgina Sanyaolu. The purpose of the originating summons was to obtain an order from the High Court giving “directions as to the persons entitled to the estate of” the late J.A.R. Ogunro and “an order for the distribution of the assets among the persons found entitled.”

On this summons the learned Judge, after reading the affidavits filed and hearing further evidence, made the following order: 1 therefore order that the two applicants be given the property at No. 156 Bamgbose Street absolutely; that the first respondent be given the property at No. 257 Igbosere Road absolutely and that the second, third, fourth, fifth and six respondents be given the property at No. 37/15 Council Road, Sekondi, Ghana, absolutely.”

Prior to making this order Mr. Solanke, for the respondents to the motion, who had contended that the court had no jurisdiction to deal with the property in Ghana, had been given over four weeks to being evidence as to the Ghana law of succession. He failed to do so, and the learned Judge in his order said: “I cannot but proceed to deal with the properties as if there is no difference between the law of succession in Ghana and in Nigeria.” The view taken by the learned Judge is supported by the authority of Dicey on Conflict of laws (6th ed. p.86), where it is stated: “It is of importance to note that, if no evidence is offered of the difference between English and foreign law, the judge is bound to apply English law, however clear it may be that such law is not really the same as the foreign law on the subject.” The onus of proving foreign law lies on the party who asserts that it is different from Nigerian law, in this case the 2nd-6th respondents to the motion, who were represented by Mr. Solanke. It may happen that when an attempt is made to enforce a judgment which treats foreign law as being the same as Nigerian law, the courts of the foreign country will refuse to enforce it, but that is the fault of the party who neglects to prove the foreign law.

The appellants in this appeal (the 2nd6th respondents to the motion, to whom I shall now refer as the appellants) do not appeal against the order of the learned Judge as far as it declared to which properties the beneficiaries of the estate of the late J.A.R. Ogunro are respectively entitled. They do indeed seek to have the whole order set aside, but on one ground only, namely, that “the learned trial Judge In making an order affecting distribution of property situate in Ghana (at Sekondi) acted without jurisdiction.”

The wording of this ground is somewhat vague. In so far as “an order affecting distribution of property situate in Ghana” means an order declaring who is entitled to property in Ghana, it is clear that the learned Judge had jurisdiction to make such an order. The second exception to Dicey’s Rule 20 (!bid. p. 149) reads as follows: “Where the Court has jurisdiction to administer an estate or a trust, and the property includes movables or immovables situate in England and immovables situate abroad, the Court has jurisdiction to determine questions of title to the foreign immovables for the purpose of the administration.” This proposition is supported by a number of authorities. In re Moses (1908) 2 Ch. 235 a summons was taken out by two remainder men under a South African will to determine what steps, if any, the executors ought to take with regard to the getting in, conversion and sale of certain Transvaal leaseholds. It was held that the rule in Howe v. Earl of Dartmouth (1802) 7 Ves.137a, for the conversion of leaseholds into capital did not apply under Roman-Dutch law. The operative part of the judgment is: “The widow is therefore entitled to enjoy the leaseholds in specie during her widowhood.” There is no award of any interest to the widow, but merely a declaration of her right.

In re Duke of Wellington (1947) Ch. 506, a summons was taken out by the trustees of two wills, one English and one Spanish, the trustees being the same under both wills, to determine the destination of movable and immovable property in Spain comprised in the Spanish will. It was held that the bequest under the Spanish will failed and that the Spanish property passed under the English will. The operative part of the judgment reads as follows: “For these reasons, in my judgment, the present duke is entitled to the Spanish movable and immovable property comprised In but ineffectually disposed of by the Spanish will” (at p. 524, per Wynn-Parry, J.). Again, there is no judgment awarding any interest, but a mere declaration of title. The way in which such a declaration might be enforced is illustrated by the following passage from Wynn-Parry J’s, judgment”…….the land registrar in Spain, or, if necessary, the Spanish courts, or reference to them, on being informed of the above circumstances and that administration was complete, would be bound to register or to order registration of the present duke as the absolute owner of the Spanish immovable property” (p. 524).

It follows, therefore, in my view, that the form of the learned Judges’ order-an order that the beneficiaries should be given certain properties-is inappropriate in relation to the Ghana property, and that it should be replaced by a declaration as to the entitlement of the beneficiaries.

There is one other point, not raised on this appeal, which I think should be dealt with. The order, as regards the Nigerian properties, is an order that the beneficiaries be given certain properties, who is to give these properties? And is there not, in the form of the order, an unjustified lumping together of the two remedies sought in the motion, namely, a declaration who is entitled, and a direction that the properties be distributed to those entitled? In my view, the order should be varied so as to make (1) a declaration of the rights of the parties, and (2) a declaration that effect be given to these rights. Mr. Akinrele, who appeared for the respondents in this Court, was under the impression that it would be for the beneficiaries themselves to convey the properties to those entitled. This is clearly erroneous. The legal interest in the Nigerian properties vested in the personal representatives of the deceased from the date of the grant of letters of administration (Land Transfer Act, 1897, s.1) and it is to them that any directions should issue.

In the result 1 would dismiss this appeal, but I would vary the order of the learned Judge to read as follows: “In my view the two applicants are entitled to No. 156 Bamgbose Street as joint tenants absolutely; the first respondent is entitled to No. 257 Igbosere Road absolutely; the second, third, fourth, fifth and sixth respondents are entitled to No. 37/15 Council Road, Sekondi, Ghana, as joint tenants absolutely. I direct that the administrator and administratrix do convey No. 156 Bamgbose Street to the two applicants as a joint tenants absolutely and to the first respondent No. 257 Igbosere Road absolutely.” I would allow the respondents twenty guineas costs of this appeal to be paid out of the estate.

Abott, A.G. CJF

I concur.

TAYLOR, AG. FJ

I concur

Appeal dismissed: Order for Court below varied

Other Citation: (1960) LCN/0858(SC)