Mrs. Adebimpe Balogun & ANOR V. Agbara Estates Limited (2007)
LawGlobal-Hub Lead Judgment Report
Augie, J.C.A.
The Appellants were the proposed Administrators for the Estate of late Mr. Francis Olarewaju Balogun, who died intestate in Lagos on the 18th of October 1995, and who was a Sub-lessee of the Respondent in respect of property at No, 2 Kainji Close, Agbara Estate, which was registered as No. 55 at Page 55 in Volume 420 at the Ogun State Lands Registry, Abeokuta. The Respondent issued a “Notice of Re-Entry and Forfeiture of Subleases” in the Guardian Newspaper of Monday the 27th of August 2001, and the 4th paragraph reads-
We hereby give notice that we have this day re-entered the leased land and taken possession thereof pursuant to Clause 4 of the respective subleases. The terms granted in the respective subleases have thereby been forfeited”. (Underlining mine)
Although their application for Letters of Administration was being processed at the Probate Registry in Lagos, the Appellants took out a Writ of Summons dated 5th September 2001 at the Otta High Court of Ogun State wherein they claimed – a Declaration that the said Notice of Re-entry and Forfeiture issued by the Respondent in the Guardian Newspaper is illegal, unlawful, null and void and of no effect”; a Declaration that the purported forfeiture of the sublease” and the purported re-entry” on the said property is unlawful, illegal, null and void”; and an order of perpetual injunction restraining the Respondent, it’s servants, etc., from re-entering, acquiring, trespassing, selling whether by public auction or in any other manner the said property.
They also filed the following processes on the same 5th of September 2001 –
(1) Motion Ex-Parte praying for – leave to sue in a representative capacity; an order of interim Injunction against the Respondent, etc.; and leave to serve their Motion on Notice along with the Writ of Summons;
(2) Motion on Notice for an Order of Interlocutory Injunction; and
(3) An Affidavit of Urgency and Summons for Hearing during Vacation.
The Application for urgent hearing of the Ex-Parte Motion and Motion on Notice during the Court’s Vacation was heard by Lokulo-Sodipe, J., of the High Court, Otta and in refusing it on the 11th of September 2001, he held –
“I do not see any averment in the affidavit in support that has established the need for urgent hearing of this matter. Accordingly, the orders sought in the summons before tile Court are refused. The two Motions pending in this case are fixed for 19/10/2001.”
On the 12th of November 2001, the Respondent filed a Notice of Preliminary Objection praying for an order dismissing the suit on the following Grounds-
The property subject-matter of the suit is part of the Estate of Late Francis Olanrenwaju Balogun who died intestate and Plaintiffs did not obtained (sic) any Letters of Administration on the estate before Instituting this suit; pending the grants of such administration, the said Estate (including institution of proceedings) is by law vested in the Chief Judge; and the case is not properly constituted and the Court has no jurisdiction to entertain it”.
When the matter finally came up for hearing before Ogundepo, J., on the 13th of June 2002, the Appellants’ counsel urged him to hear their Motion first as it seeks to regularize the position of the Plaintiff”. The Respondent’s counsel however submitted that its Notice of Objection challenges the Court’s jurisdiction and for now the only jurisdiction the Court has is to enquire whether it has jurisdiction”. Ogundepo, J., agreed and held as follows –
“The Notice of Preliminary Objection is challenging the Court’s jurisdiction. The Law is indeed quite settled that in a situation such as this the Court should take that application first and enquire whether or not it possesses jurisdiction. I shall therefore proceed to hear the Notice of Preliminary Objection first’: (Italics mine)
After hearing arguments, he delivered Ruling that same day wherein he held-
“- – Plaintiff herein simply have no locus stand to Institute the action as no Letters of Administration has been obtained by them as yet. That being the case this action is simply not competent. It is premature.
The failure to obtain letters of administration before commencing this action makes same to be incurably bad – – Since this suit is incompetent; the Court lacks jurisdiction to entertain same. The defect – – Is a fundamental one which goes to the Court’s jurisdiction which cannot be cured as Counsel to the Plaintiff has urged on the Court to do. In the circumstances – – this suit is hereby dismissed-
Dissatisfied, the Appellants appealed to this Court with a Notice of Appeal dated 24th June 2002, which was later amended with the leave of this Court.
The Amended Notice of Appeal contains two Grounds of Appeal, and in the Appellants’ brief of argument prepared by J. K. Balogun, Esq., it was submitted that the sole Issue that calls for determination in this appeal is-
“Whether the learned trial Judge was right to conclude that in the absence of grant of letters of administration, the Appellants had no locus stand to Institute the action”.
The Respondent however submitted in its own brief prepared by Kunle O. Carew, Esq., that the Issues for determination in the appeal is as follows-
- Whether the lower Court had jurisdiction to decide a prior application before it when there was another application challenging the Court’s jurisdiction; and
- Whether Appellants were competent in law to institute the action, and if not, what is the effect of such incompetence?
I will adopt the Respondent’s Issues In dealing with this appeal, particularly as the Appellants responded to the arguments therein in their own Reply Brief.
Now, the Appellants argued that where there are multiple Applications before a Court, the Application that will keep the suit alive should be heard and determined first before the application that seeks to terminate it, thus, their Motion for leave to sue in a representative capacity should have been taken and determined before the preliminary objection, citing Nalsa &. Team Associates V. NNPC (1991) 8 NWLR (Pt. 212) 652. The Respondent however argued that Nalsa’s Case (supra) does not support the Appellant’s case because It deals with priority of opposing applications where one of the parties adopted a merely irregular procedure, but in this case that the defect went to the foundation of the case, which thereby affected the jurisdiction of the lower Court; that where there is an application challenging the Court’s jurisdiction, all other pending application must be suspended because the only jurisdiction the Court has is to enquire whether or not it has jurisdiction to entertain the case, citing Shomolu local Government v. Agbede (1996) 4 NWLR (Pt. 441) 174, Otukpo V. John (2000) 8 NWLR (Pt.669) 507; and that the lower Court could no less since jurisdiction is a fundamental issue that must be resolved before anything else, citing Owners M/V Baco liner 3 V. Adeniji (1993) 2 NWLR (Pt. 274) 195, Oloriode V. Oyebi (1984) 1 SCNLR 390 & Adesanya V. President of Nigeria (1981) 2 NCLR 358.
It was also argued that the Appellants did not endorse their representative capacity on their Writ of Summons as required by Order 5 rule 11 (a) of the Ogun State High Court Rules, and that they failed to comply with Order 11 rule 8 of the said Rules, which enjoined them to seek the leave of Court first before instituting such an action, therefore their action was not initiated in the manner required by the law, and the lower Courts had no jurisdiction to entertain the suit, citing Madukolu V. Nkemdilim (1962) 1 All NLR 581.
The Appellants countered in their Reply Brief that the said Application was filed along with their Writ of Summons, and should have been heard first as the grant of same would have had the effect of curing any such irregularity, which is the relevance of the decision in Nalsa’s case (supra). Furthermore, that the failure to state the capacity on the Writ is not fatal given that upon such failure, the proper order the Court should make is to amend the Writ in order to do substantial justice between the parties, citing Vulcan Gases Ltd. V. Okunlola (1993) 2 NWLR (Pt. 274) 139 & Chief Gbogbolulu of Vakpo V. Chief Hodo of Anfoega Akukome (1941) 7 WACA 165.
Now, Order 5 rule 11 (1) of the High Court (Civil Procedure) Rules provides-
“Before a Writ is issued it shall be endorsed-
(a) Where the Plaintiff sues in a representative capacity, with a statement of the capacity in which he sues; and (Italics mine)
(b) Where a Defendant is sued in a representative capacity, with a statement of the capacity in which he is sued.
Order 11 rule 8 of the same High Court Rules also provides as follows-
“Where more persons than one have the same interest in one suit, one or more of such person may, with the approval of the Court, be authorized by the other persons interested to sue or defend in such suit for the benefit of or on behalf of all parties so interested.”
A close reading of the two provisions shows that “what is mandatory is not the leave to sue in a representative capacity but that the representative capacity shall be expressed on the Writ – see Otapo V, Sunmonu (1987) 2 NWLR (Pt. 58) 587, where the Supreme Court per Obaseki, JSC added that-
“It is settled law that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action.”
In this case, the Appellants did not comply with Order 5 rule 11 (1) (a) – their representative capacity was not endorsed on their Writ. Is this defect fatal?
That is the question that will determine this appeal one way or the other.
Yes, a person instituting an action in a representative capacity MUST endorse that capacity on the Writ of Summons, but the question here is whether failure to express the capacity on the Writ will render the action incompetent.
There are divergent opinions on the subject; some authorities say that the Writ would be regarded as deficient and liable to be set aside or struck out, notwithstanding that the representative capacity was expressed subsequently in the body of the Statement of Claim – N.A.C.B. Ltd, V. Adeagbo (2004) 14 NWLR (pt. 894) 551, U.B.N. Plc V. Ntuk (2003) 16 NWLR (pt. 845) 183.
Other authorities maintain that the defect is curably by an amendment – see Awudu V. Daniel (2005) 2 NWLR (pt. 909) 199, wherein the Court held- “It is required that a Plaintiff should show on his Writ and his pleadings that he is suing in a representative capacity. Yet, even at that where a Writ of Summons is defective, to ensure that substantial justice is done, the Courts, rather than declare the suit incompetent would allow amendment of the Writ which is defective only in its failure to state the capacity in which the action is brought”. (Italics mine)
See also the case of Chief Gbogbolulu of Vakpo V. Chief Hodo of Anfoega Akukome (supra), which is similar to this one. In that case, the Writ did not specifically state that the action was brought in a representative capacity, and the lower Court held that the decision of the Magistrate Court could not be upheld because the representative capacities were not expressed on the Writ. On appeal, the West African Court of Appeal (WACA) held.
“We are of opinion that he was wrong to do so. It is the duty of Courts to aim at doing substantial justice between the parties and not to let that aim is turned aside by technicalities – – As” soon as any question arose as to the capacities of the representative parties it was, in our view the duty of the Court to make any formal amendment in the claim which would make clear the capacity in which the Plaintiff sued and the Defendant was sued and the real point of controversy between them, provided that they could be done without any hardship to either party.
This Court has full power to take this course and since it appeared that no hardship would accrue to either party by the heading of the suit being amended, even at this late stage, so as to make clear the representative capacities of the parties, we ordered in the course of the hearing of the appeal that the title of the suit be altered to read as now appear as the heading of this Judgment”. (Italics mine)
The above decision of WACA In 1941 is what we stand by in today’s Justice.
Nothing is engraved in hard stone and mounted forever, never to be changed.
The emphasis is more and more on substantial Justice not mere technicalities.
This is an era where Courts do more than just glance at processes before it.
The Courts are expected, in fact, justice demand that Courts should examine every process filed in Court critically before arriving at a decision on a matter.
The mere fact that its jurisdiction is objected to does not mean that the Court is blinded from looking at an application before it that will ensure justice.
The decision in Nalsa & Team Associates V. NNPC (supra) is quite clear – where there are two Motions before a Court, the interest of justice demands that the Motion the determination of which would save the substantive action should first be heard. Therein, Karibi-Whyte, JSC, further stated as follows –
“In the exercise of its discretion to hear applications before it, the Court is guided by consideration of doing justice between the parties, and to ensure ultimately that the dispute between the parties was decided on its merits. – – Where in the exercise of its discretion an application to dismiss the action was first heard resulting in the action being struck out, justice would not have been done to an Applicant whose application to regularize his appeal, the basis for the Application to dismiss the appeal is still pending. This will tantamount to a wrongful exercise of discretion”. (Italics mine)
The above authorities bring to the fore the truism that undue reliance on technicalities is not in the interest of justice, consequently, it is the duty of the Court in the course of doing substantial justice to make any formal amendments, which would make clear the capacity in which a party is suing, provided that no hardship is done to either party – see Vulcan Gases Ltd. V, Okunlola (supra). In this case, I do not see what hardship the Respondent would have suffered if the lower Court had considered the Appellants’ Application for leave to sue in a representative capacity. Looking at it from the different angles of this case, it is my view that the said Application would have had the result of giving life to the Appellants’ action, and the lower Court should have at least considered the overall effect before the Objection.
If it was granted, the Appellants would have been able to amend their Writ; even if it was refused, the action should have been struck out not dismissed.
This brings us to the other issue for determination, which centers on the interpretation and application of Section 10 of the Administration of Estates Law of Ogun State. The said Section provides as follows –
“Where a person dies intestate and administration is granted under this law in respect of his real and personal estate that estate shall be deemed to have been vested from the date of his death until administration is granted in the Chief Judge
In its Ruling on the issue, the lower Court concluded as follows @ p. 45 –
‘The law relating to this issue is quite clear; Section 10 of the Administration of Estates Law vests in the Chief Judge of a State the real and personal estate of a person who dies intestate pending the grant of letters of administration. – – The position here is that the Plaintiffs herein simply have no focus stand to institute the action as no Letters of Administration has been obtained by them as yet’.
The Appellants argued that the lower Court was wrong as to where the said Section comes into operation. It is their contention that the Section only comes into effect after letters of administration have been obtained, and three conditions must be satisfied first – the person must have died intestate, letters of administration must have been granted, and the Letters must have been granted under the appropriate State law. It was further submitted that the purpose is to fill the lacuna in title between the Application for the grant and the actual grant; that their application was made to the High Court of Lagos State and not Ogun State, therefore the second and third conditions were not satisfied so Section 10 was yet to become applicable; that it is not only holders of Letters of Administration or a State Chief Judge that can institute legal proceedings in these cases; and that the lower Court’s decision flies in the face of Okonyia v. lkengah &. Ors (2001) FWLR (Pt. 53) 158.
Furthermore, that the said law has no provision on how the power may be exercised, and the law is that where a power exists and there are no statutory provisions on its exercise, a litigant may use any available Court procedure, citing Fajinmi V. The Speaker, Western House (1962) 2 N5CC 144; and that the lower Court could have treated their Application as one that invokes the Chief Judge’s powers, citing Falobi V. Falobi (1976) 10 NSCC 576.
On its part, the Respondent argued that the operative word in Section 10 of the Administration of Estates law is ‘shall’, which excludes the exercise of discretion as it imposes a duty that must be followed to the letter, citing Opeola V. Opadiran (1994) 5 NWLR (Pt. 334) 368, thus the deceased’s estate is, from the date of his death, vested in the Chief Judge of Ogun State, until the administration is granted, and that any other interpretation would result in absurdity as it would give survivors of an intestate the unfettered liberty to deal with the estate without obtaining letters of Administration.
It was further argued that the case of Okonyia V. Ikengah & Ors (supra) is Clearly distinguishable from this one, and since the Appellants disclosed that they applied for the letters of Administration in Lagos State, the only capacity in which they could have brought the action was as proposed Administrators of the deceased’s Estate, and citing Adewumi V. AG, Ondo State (1996) 8 NWLR (pt. 464) 73, that the marginal note – “Vesting of Estate of intestate between death and grant of administration”, though not forming part of the statute but could be used as a guide to consider the purpose of the Section.
This Court was also referred to page 88 of the book – “Executors, Administrators & probate” by Williams and Mortimer, to buttress the submission that the letters of Administration must issue before the commencement of legal proceedings by Administrators because they have no right of action until they have obtained letters of Administration. However, in their Reply Brief the Appellants referred this Court to Kafene Jeddo V. Imlko (1912) All NLR 264, and argued that in this case, the Appellants each had a beneficial interest in the deceased Estate and could sue as next-of-kin, and the Respondent quoted the book by Williams and Mortimer out of con, and reproduced certain portions from the 2000 Edition of the book.
It was further submitted that the provisions of Section 10 of the Ogun State law cannot apply since no application was made to that State, however, that the jurisdiction to deal with their claim is vested in the Ogun State High Court, citing Onyema & Ors V. Oputa & Ors (1981) 3 NWLR (pt. 60) 250, and for the Ogun State law to apply, they must have either applied to the Ogun State High Court for letters of Administration or applied to the said High Court for re-sealing of the grant obtaining Letters of Administration from the High Court of Lagos State, therefore at the time the action was filed, the Estate could not have vested In the Chief Judge of Ogun State, and the lower Court erred in so holding. Arguing in the alternative, it was submitted that if the lower Court was right to hold as it did, the proper order it ought to have made was to strike out the suit for want of jurisdiction instead of dismissing same as it did, citing Re: Masonic and General Life Assurance Company (1885) 32 CH. D. 373, & Chikere V, Okegbe (2000) 12 NWLR (pt, 681) 214.
I must quickly say that where the Appellants applied to for Letters of Administration is of no consequence in this appeal. It is well settled that the High Court of a State has jurisdiction to entertain an action arising from the administration of the Estate of a deceased person who died intestate notwithstanding that the Letters of Administration is in respect of properties within the State while the Estate includes properties outside the State – see Salubi V. Nwariaku (2003) 7 NWLR (Pt. 819) 426Sc, Amobi V. Nzegwu (2005) 12 NWLR (Pt. 938) 120- & Okonyla V. Ikengah & Ors (supra).
What is more, the Appellant were wrong in their interpretation of Section 10.
The law is well settled that where the provision of a statute is clear, it is the duty of the Court to interpret it by giving the plain words their ordinary interpretation without more – see Kraus Thompson Org. V. N.I.P.S.S. (2004) 17 NWLR (Pt. 901) 44SC.
Section 10 of the Administration of Estate.
Law clearly states that where a person dies Intestate, his estate will be deemed vested in the Chief Judge of a State until administration’s is granted.
Obviously, the Respondent is right, any other interpretation would be absurd; there would then be no point in vesting the said estate on the Chief Judge.
By the same token, I agree with the Appellants that they never claimed to be Administrators of the deceased’s Estate, rather they averred in their supporting Affidavit that the 1st Appellant was the wife of the deceased; the 2nd Appellant was his brother; and that they have applied for Letters of Administration, which is still under process at the Probate Registry in Lagos”.
The Appellants’ position is that so long as a Plaintiff does not falsely indorse the Writ as Administrator and so long as the action is for the benefit of the Estate, an Applicant for Letters of Administration of the estate of a deceased intestate can institute and maintain an action for the protection of the Estate prior to the issue of Letters of Administration. To this end, they cited Jeddo V. Imlko (supra), where the Supreme Court held that where a Plaintiff who sues as next of kin for trespass to the Estate subsequently obtains Letters of Administration, the doctrine of relation back applies, as the action was originally properly constituted in that the Plaintiff sued in the correct capacity at the time of the Issue of the Writ; and it is in order for the Court to allow an
Amendment of the Writ enabling the Plaintiff to sue as Administrator.
They also cited Okonyia V. Ikengah & Ors (supra), where this Court held.
“The Respondents, as Personal Representatives of late George Onyechi lkenoah, have capacity to institute an action in respect of the real estate to which the deceased in this case is entitled by the operation of law, even where letters of administration have not been obtained”.
The authorities are very persuasive and. appear to favour the Appellants but a closer look shows that the contrary is the case. Each case is determined on its own facts and circumstances, and no two cases are unerringly alike.
Notwithstanding the similarities, the Appellants’ situation is not the same. First of all, the Appellants did not sue in the correct capacity at the time of the Issue of the Writ of Summons as the Respondent did In Jeddo’s case.
Secondly, the Respondents in Okonyia’s case had been granted Letters of Administration and instituted their action as Administrator and Administratrix.
In this case, the Appellants’ application for the letters was being processed.
Surely, acting on Administrator and so long as the action is for the benefit of the Estate, an Applicant for Letters of a proposed state of affairs that is yet to be Is speculation, which no Court worth its salt should be seen indulging in. But all is not lost; I agree with the Appellants that they should not have been shut out completely as the lower Court did when it dismissed their action for the reasons given.
The action should have been struck out, certainly not dismissed- see Chikere V. Okegbe (supra). In my view, the circumstances of this case did not warrant a dismissal of the Appellants’ action in its entirety and I do so hold.
In the final analysis, the Appellants did not really have any legs to stand on but their suit should not have been dismissed. Consequently, this appeal is allowed in part. The dismissal of the Appellants’ suit is hereby set aside, and in its place, is an order striking out the suit.
There is no order as to costs.
Other Citations: (2007)LCN/2459(CA)
