Mosunmola Iyabola Fadayomi Vs Oludolapo Omoniyi Sadipe (1986)
LawGlobal-Hub Lead Judgment Report
COKER, J.S.C
This appeal was dismissed on the 27th day of February, 1986 and, as indicated, I now give my reasons.
The Appellant, is the 3rd plaintiff in this probate action. The action was instituted in the High Court of Lagos State for the Probate of the Will of Chief Michael Modupe Sadipe, who died on the 17th July, 1979, leaving Will dated the 20th January, 1979. In the said Will, the four plaintiffs and two others, who have since renounced probate, were appointed Executors and Executrixes of the Will.
The defendant is one of the widows and mother of four of the beneficiaries and surviving issues of the deceased. The question whether or not they are minors does not arise. None of the parties dispute the validity of the Will and indeed the four Plaintiffs have jointly applied for probate of the Will.
The defendant, however, filed a caveat against the issue of probate, not because she claimed to be a beneficiary or a person entitled on intestacy of the Estate. She claimed no interest whatsoever in the Will nor is any other Will of the deceased propounded. As could be seen from the statement of defence, her children claimed as beneficiaries under the Will. She however, called for a dismissal of the suit because according to her defence no cause of action was disclosed against her even though she filed a caveat. One therefore wonders why she refused to remove the caveat after being warned.
However, the present appellant as one of the executrixes appointed by the testator has along with the other plaintiffs jointly applied for probate, but subsequently applied to the trial court that her name should be struck out as she did not instruct counsel who filed the action. In her affidavit in support of the application she deposed:
(2) “That I was not involved in any decision to institute this action and I never gave instructions to the Counsel representing the other Plaintiffs to institute the present action.
(3) That the Chambers of Chief Gani Fawehinmi & Co. have always represented my interests in the Estate of the late Michael Modupe Sadipe to which the present action relates. .
(5) That I am an executrix to my later father’s Will.
(6) That it will be in the interest of justice to strike out my name referred to as the 3rd appellant in this suit.”
She did not repudiate her instructions to apply for probate jointly with the other three plaintiffs for the grant. The learned trial judge refused the application. He held inter alia:
“From paragraphs 2 and 3 of the affidavit in support, it would appear that the reasons for this application are that she did not instruct learned Counsel for the Plaintiffs and that her Counsels (sic) are those in the Chambers of Gani Fawehinmi other than these, I cannot find any other reasons either in the affidavit or on the motion paper itself for her application to be struck out of the action as one of the Plaintiffs . . .
“There is nothing, as stated earlier, in the application before me to show the grounds on which she would like her name struck out as one of the Plaintiffs; there is no serious allegation before me, against the other Plaintiffs either; yet both Counsel for the Defendant and her own Counsel implored me to grant the prayers in the ‘interest of… Justice . . .
“The grant of an application of this nature is in the discretion of the Court and the court can only exercise this discretion if there are sufficient reasons to justify its grant.”
“I find no justifiable reasons for acceding to the request of the applicant. I am also of the opinion that her presence is necessary to enable me adjudicate effectively and completely settle all questions raised by the pleading of those involved in the matter.”
Dissatisfied with the Ruling, the appellant appealed to the court of appeal, which appeal was dismissed on 10th July 1984. Still not satisfied with the decision of that Court, the appellant has finally appealed to this court on two grounds, which read:
“(1) The Learned Justice of the Court of Appeal erred in law in dimissing the Appeal and affirming the Ruling of the Honourable Mr. Justice Y.A.O. Jinadu delivered on Thursday, the 19th day of January, 1984.
PARTICULARS OF ERROR
(1) A right of action being a constitutional right can only be exercised by the Appellant and no one can force her to exercise same.
(2) No one can be compelled to be a Plaintiff in any action.”
“(2) The learned Justices of the Court of Appeal erred in law in dismissing the Appeal and not striking out the Appellant’s name in the substantive suit.
PARTICULARS OF ERROR
(1) Whether in probate or in non probate matters, no one can be made a Plaintiff against his or her consent.
(2) By the application of Order 13 Rule 18 of the High Court of Lagos State (Civil Procedure) rules, the Justices of the Court of Appeal ought to have struck out the name of the Appellant as Plaintiff pursuant to Order 15 Rules 6 and 8 of the English Rules.
(3) The Appellant did not instruct Plaintiffs’ Counsel to act for her and to file on her behalf the pending suit in the lower Court and as such cannot be compelled to take part in the proceedings thereof.”
In his brief of argument, Chief Gani Fawehinmi posed the issues involved under three heads, namely:
(1) “Whether an Executor or Executrix who has not renounced probate can be made a party to every Probate Action concerning the Estate in respect of which he/she is Executor/Executrix against his/ her wish.
(2) If so whether he/she must necessarily be a plaintiff in such a probate action along with other executors/executrixes.
(3) Whether the right of action of an executor and provided for by the constitution is subject to his right in the Will.”
He submits that by virtue of section 16 of the Lagos State High Court Law, the Practice and Procedure of the English Court should apply in probate action in the absence of any specific rules made in that regard by the Chief Judge of the State. And Order 13 Rule of the High Court Rules 1972, provides that in all probate actions, the Rules as to parties shall be followed. He then referred to Order 1 Rule 2, High Court of Lagos Rules which defined: “Probate Actions include actions and other matters relating to grant or recall of Probate or Letters of Administration other than Common Form Business.” He further submits that the action relates to the grant of Probate and there is contention as to the rights thereto, therefore the English Rules must apply. Reference was also made to Order 76 r. 3 of the Supreme Court Rules in England.
And finally he submits the following:
(1) “That whether in a probate or a non-probate matter, no person can be made a plaintiff against his own wish. Whether a person is a plaintiff to an action can only be determined after a close perusal of the pleadings and a totality of the evidence before the court.
(2) If a person does not intend to sue or has not authorised any person to sue on his behalf and the defendant to such action does not have any claim against him, then he cannot be a party (and a portion) a Plaintiff to such an action. If he is made a party his name should be struck out.”
The case of Matthews Oates v. Mooney (1905) 2 Ch. 460 was cited by Counsel. The summons in the case was taken out by two of three defendants asking that all the proceedings in the action may be stayed as between one out of three co-plaintiffs and the applicants or that the name of the said plaintiff may be struck out of the record upon the ground that she has compromised the matters in dispute in the action and has revoked the authority of her solicitors to prosecute the action. The Solicitors for the plaintiffs who were retained by her jointly with her co-plaintiffs, were still on record and counsel appeared on their instructions and opposed the application on behalf of all the co-plaintiffs. Swinfen Eady J., held the application was unprecedented and failed.
As a general rule, the submission of learned counsel is correct, but the facts and circumstances of this case are exceptional. A person may not be joined as a plaintiff without his consent. There must be no conflict between plaintiffs, they must not sever or take inconsistent steps, nor can one co-plaintiff make an application in the action independently of the other. Co-plaintiffs must act and appear at the trial by the same counsel and if separately employed by the co-plaintiffs must act together. But once a person has joined in an action as co-plaintiffs he has no absolute right to withdraw from the action and have his name struck out if he is a necessary party to the action. In a proper case he may apply to have his name struck out as a plaintiff and added as a defendant, subject to the defendant being safe guarded as to costs.
However, the court has a wide discretion depending on the peculiar facts and circumstances of the case and the overall interest of justice. The present proceeding is a probate action. A probate action is defined in Order 76 r. 1(2), R.S.C.” as an action for the grant of probate of Will . . . of a deceased person, or for the revocation of such a grant, or for a decree pronouncing for or against the validity of an alleged will, not being an action that is non-contentious or common from business.” The validity of the Will for which probate is being sought is undisputed. All the plaintiffs, including the appellant, have a common interest and have applied for it. It can in the circumstances of the case reasonably be inferred that it was a joint application for the grant. The present action is part of the general instruction given by all the four executors and executrixes for obtaining the grant. It is unnecessary for the appellant to separately instruct the plaintiffs’ counsel. The action is a follow up of the application for the grant.
Tinuola Abimbola Badamosi, one of the executives, in verification of the writ, deposed that she and the other plaintiffs, including the appellant, have applied for probate of the Will. The appellant has not denied this fact. So, the appellant and the other plaintiffs are desirous of obtaining probate of the Will. So also is the defendant whose issues claim under the Will and not otherwise. The defendant who filed a caveat never disputed the validity of the Will…This action is concerned principally and solely with the grant of probate. All the parties, plaintiffs and the caveator, have common and not conflicting interests in the grant. The defendant in this case was not opposed to the Will but only to the grant to the other three plaintiffs. She is opposed to them because she dislikes them alleging they will not serve the interests of her four children who are beneficiaries under the Will.
In the circumstances it was competent for the trial judge in the exercise of his discretion to grant or refuse to make the order striking out the name of the appellant, who jointly applied for probate along with the others. By jointly applying for a grant of probate, the necessary implication is that she was a consenting plaintiff in the probate action against the defendant, a caveator, who opposed the grant. This is not a case where a person has been joined as a plaintiff without her consent. It is, in my view, a case where a co-plaintiff is seeking to withdraw from the case and to have her name struck out of the action. So long as she has not renounced her Application for a grant, the trial judge did not in advisedly exercise his discretion and this court as an appeal court will therefore not interfere. Swinfen Eady J., p .463 in re Matthews Oates v. Mooney (1905) 2 Ch. 460 cited by Mr. Akinyemi said:
“It has been pointed out in several cases that it is not a matter of course to allow a co-plaintiff to withdraw and have his name struck out at any time. The general rule is that where co-plaintiffs disagree, the name of one is struck out as plaintiffs and added as defendant.” But it is stated in Daniels Chancery Practice, 7th ed. Vol. 1 p. 224, that” An order to strike out a name of a co-plaintiff will not be made as a matter of course even on terms of giving security for costs.”
The instant suit is a probate action for pronouncing the Will and the appellant and the other co-plaintiffs/respondents have common interest against the defendant who opposed the grant. Having jointly applied for a grant along with the other co-plaintiffs, she cannot as of right seek to withdraw from the action so long as she is still desirous of obtaining the grant. The learned trial judge was right in refusing her application and equally, the court below was right in dismissing her appeal.
I therefore dismiss the appeal and further affirm the decision of Jinadu J.
KAYODE ESO, J.S.C.:- I have had the advantage of a preview of the Reasons given in this case by my learned brother Coker, J.S.C. I agree and adopt them for dismissing the appeal on 27th February, 1986.
UWAIS, J.S.C.:- I have read in advance the reasons for judgment read by my learned brother Coker, J.S.C. I entirely agree with the reasons and I adopt them as mine. It was for the same reasons that I agreed on 27th February, 1986 that the appeal should be dismissed.
Other Citation: (1986) LCN/2282(SC)
