Lady Kofo Ademola & Ors v. Probate Registrar (1971)

LawGlobal-Hub Lead Judgment Report

Parties

Lady Kofo Ademola,
Mrs. Lande Ejiwunmi and
Chief Rotimi Williams  Appellant(s)

AND

Probate Registrar  Respondent(s)

COKER, J.S.C 

The appellants had appealed to the High Court of Lagos for probate in common form of the will of Chief Oladipo Moore (deceased). The rules governing the grant of probate by the court prescribe and thus require the payment of some fees which are described in the schedule to the applicable rules of court. In purported compliance with that rule the probate registrar assessed the appellants to pay fees calculated as required by the rules on the personal and real properties left by the deceased. One of the properties of the deceased was a building on land situate at and known as No. 84 Raymond Njoku Street, South West Ikoyi in Lagos, which the deceased had held as a lessee for a term of years which had not expired at the time of his death. The probate registrar took the view that this property in which the deceased had a leasehold interest should be regarded for purposes of assessment as personal property and so liable to duty by assessment. The appellants were dissatisfied with this decision and they filed in the High Court of Lagos a motion under the provisions of order 48 rule 44 of the High Court Rules, Lagos, seeking for orders:

(i) canceling the assessment made by the respondent regarding payment of fees payable for the grant of probate in common form in respect of the will of the above named deceased person;

(ii) Directing that the assessment of such fees shall not include any assessment on the testator’s contractual right to and equitable interest in the property known as No. 84 Raymond Njoku Street, South West Ikoyi, Lagos.

The application was heard by George J. Before him the sole issue canvassed by the appellants was whether fees were payable in respect of the leasehold property of a person who died leaving a will. For the probate registrar, however, it was contended that the grant sought by the appellants covered all the properties which devolve on the personal representatives.

In support of his contention the probate registrar produced as well the new form of probate and this shows clearly that the form envisages a grant covering both the real and personal properties of the deceased. In a reserved judgment in the course of which the learned trial judge reviewed the existing authorities on the point and discussed the implications of the provisions of order 48 rule 11 of the Rules of the High Court of Lagos, he came to the conclusion that he could not grant the prayers of the motion. At the end of his judgment the learned trial judge observed as follows:

“Since this is a probate matter both real and personal properties of the deceased are affected by the grant.

The probate registrar is therefore right in assessing the fees payable in respect of the leasehold property of the deceased. Estate fees are not payable in respect of freehold properties because, an applicant for a grant is not required by our rules of court to supply the probate registrar with any information concerning them.The motion is therefore struck out.”

The appellants were again dissatisfied with this ruling and they have appealed to this court against it. For the appellants the substance of the argument of learned counsel appearing for them is that by the combined effect of order 48 rule 11 and order 8 rule 5 of the High Court Rules the only property upon which fees are payable on the grant of administration is “the property affected by the grant.” Learned counsel for the appellants thereafter submitted that as by virtue of section 16 of the High Court of Lagos Act Cap. 80, (Laws of the Federation) the jurisdiction of the court in probate matters should be exercised in conformity with that of the courts in England, the decision on the “property affected by the grant” must follow what an English court would decide to be such. Learned counsel, further argued that by virtue of the provisions of section 150 of the Supreme Court of Judicature (Consolidation) Act 1925 (England) a grant might be applied for and may be with respect to either the real estate or the personal estate of the deceased or both.

Finally learned counsel submitted that the courts in England will apply the definition of “estate” as contained in section 175 of the Supreme Court of Judicature (Consolidation) Act 1925 and decide that leasehold property is “real estate” and not personal property as the probate registrar had decided in this case.