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

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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.

For the respondent, learned counsel conceded that by virtue of order 48 rule 1 of the High Court Rules only the personal estate of a deceased person “is property affected by the grant” but he contended that leasehold property is personal property in that it has never been considered as real property.

The matter to be decided in our view falls within rather narrow dimensions. We do not think it open to doubt that the provisions of section 16 of the High Court of Lagos Act, Cap. 80 ascribe to the High Court of Lagos the jurisdiction vested in the High Court in England for that section states as follows:

“The jurisdiction of the High Court in probate, divorce, and matrimonial causes and proceedings may, subject to the provisions of this ordinance and in particular of section 27, and to rules of court, be exercised by the court in conformity with the law and practice for the time being in force in England.”

The implication of this section is obvious and the effect of the provision is that subject to section 27 of the Act (which deals with the application of customary law) and the rules of court (to which we will shortly refer); the High Court of Lagos in such matters is expected to do what English court would do in similar circumstances. No question of customary law or its application arises here and we need not consider section 27 of the High Court of Lagos Act. But the rules of court are important and relevant in this connection. Order 48 rule 11 states that every applicant for a grant of probate or letters of administration shall file in court a true declaration of all the personal property of the deceased and the value thereof and order 8 rule 5 of the same rules authorises the use of the table of fees prescribed in part 1 of the second schedule to those rules. Now if one looks at part 1 of the second schedule and in particular at item 28 therein one finds that fees are prescribed therein on the basis of “the value of the property affected by the grant or order.” In the same vein the proviso to order 48 rule 11 prescribes the payment of fees on the basis of “the value of the property in respect of which the grant is made.”

We do not think that the parties are disagreed on these matters. We think it right to state that both sides agreed that the fees prescribed by our rules are only in respect of properties affected by the grant and/or the property in respect of which the grant is made. We do not accept the argument on behalf of the probate registrar to the effect that this being a matter of probate, the grant applied for ought to cover both the real and personal properties of the deceased; since, firstly it seems to have been based upon the new forms now in use in the registry (which forms have been introduced without any alteration to the old rules) and secondly it overlooks the clear provisions of section 155(1) of the Supreme Court of Judicature (Consolidation) Act 1925 as follows:

“Probate or administration in respect of the real estate of a deceased person, or any part thereof, may be granted either separately or together with probate or administration of his personal estate, and may also be granted in respect of real estate only where there is no personal estate, or in respect of a trust estate only, and a grant of administration to real estate may be limited in any way the court thinks proper:

Provided that where the estate of the deceased is known to be insolvent, the grant of representation to the estate shall not be severed except as regards a trust estate.”

It is needless to point out that section 16 of the High Court of Lagos Act applies at least the provisions of part VII of that act which part deals with the jurisdiction and practice of the High Court in England to the Lagos High Court with respect to grants of administration. Now section 175 of the same act defines some of the terms and expressions in regular use in probate matters and as far as is relevant for the case in hand that section provides as follows:

“Estate” means real and personal estate, and the expression “real estate” includes:

(a) Chattels real and land in possession, remainder or reversion and every interest in or over land to which the deceased person was entitled at the time of his death; and

(b) real estate held on trust or by way of mortgage, whether by demise or sub-demise or of security, but not money to arise under a trust for sale of land, nor money secured or charged on land:

Learned counsel who appeared for the probate registrar before us contended forcefully that leaseholds have always been regarded as personalities and referred us to some authorities in whom we find leaseholds described as chattels real or personal property. We do not, however, agree with these contentions. First of all we observe the difference, perhaps almost always overlooked, between what is generally described as “personal property” as an antithesis of real property on the one hand and what for purposes of grant of administration is characterised as “personal estate” as opposed to “real estate” on the other hand. Similarly we should as well be reminded that the general classification known to the English common law is not exhausted by real property and personal property, since another category known as “chattels real” does exist alongside these two. Our attention was drawn to some cases decided in the High Court of Lagos including Mrs. Leila Absi v. Probate Registrar (suit no. M/69/70 of 10th June, 1970) and Mrs. J. L. Macauley & Anor. v. Probate Registrar (suit no. M/219/67 of 12th February, 1968). These decisions have gone the same way as we propose to decide in the present appeal. Since the date of the judgment in the latter case, i.e. Macauley v. Probate Registrar the appeal on it to this court had been dismissed although on other grounds. We are unable to tell whether any appeal is pending or anticipated in the other case of Absi v. Probate Registrar.

Unless the points to which we have referred in this judgment are borne in mind in dealing with the classification required for purposes of a grant of administration, we are likely to be carried away by undue adherence to a prior principle of classification and our understanding of the subject matter can be adversely circumscribed. The position clearly in the circumstance is that either a limited grant or a full grant may be applied for and granted, and that the limited grant may be in respect only of the real estate or of the personal estate of the deceased person. It is therefore wrong where the grant applied for and being made is limited to the personal estate of the deceased to charge fees on leasehold property which by virtue of the applicable statutory provisions must be regarded as part of the “real estate” of the deceased person.

We must therefore allow this appeal and set aside the assessment already made by the probate registrar and the judgment of the learned trial judge in the Lagos High Court suit no. M/84/70. We direct that the application of the appellants for a grant is re-considered in assessing the fees payable as to whether it is limited to either the real estate or to the personal estate only of the deceased and on the basis that the leasehold property of the deceased shall be regarded as part of his real estate.

We propose to make no order as to costs. Appeal allowed. Assessment made by probate registrar and High Court set aside. Assessment to be reconsidered on the basis that leasehold property of the deceased shall be regarded as part of real estate.

SC.16/1971