Mrs. Alero Jadesimi V. Mrs. Victoria Okotie-eboh & Ors (1989)
LawGlobal-Hub Lead Judgment Report
AKPATA, J.C.A.
By Order 13 rule 13 of the High Court of Lagos State (Civil Procedure) Rules 1972, trustees, executors and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives without joining any of the persons beneficially interested in the trust or estate and shall be considered as representing such persons. The core question in this appeal is whether such persons represented by trustees, executors or administrators are such parties in civil proceedings whose right of appeal can only be exercised by their representative and are not “any other person having an interest in the matter” within the purview of Section 222(a) of the 1979 Constitution who with leave of court can appeal.
Chief Festus Samuel Okotie-Eboh, (formerly known as Chief Festus Samuel Edah) died on the 15th day of January, 1966. He was said to have died intestate. His wife, Mrs. Victoria Okotie-Eboh and three of his children, (1) Dr. (Mrs.) Clara R. Akele, (2) John Okotie-Eboh and (3) Mrs. Alero Jadesimi were granted letters of administration dated 24th June, 1971 from the Probate Registry of the High Court of Mid-Western State (now Bendel State) and duly resealed in the High Court of Lagos State. Mrs. J Alero Jadesimi, the 4th administratrix of the estate of the deceased, instituted an action, Suit No. LD/912/84, against herself as an administratrix and the other three administratrixes/administrator claiming two reliefs, namely:
(1) a declaration that the last Will and Testament dated 21st day of August, 1947 of Chief Festus Samuel Okotie-Eboh is valid, and (2) an order revoking the letters of the administration dated 24th June, 1971 granted in favour of the 4 administratrixes/administrator.
In his judgment dated 24/5/88 Agora, J., granted the two reliefs. By the Will dated 21st day of August, 1947, the deceased apparently devised his personal estate to the plaintiff. Two days after the judgment of Agora, J., the 2nd and 3rd defendants, that is, without the 1st and 4th defendants, filed an appeal against the judgment of the learned trial Judge based on seven grounds and praying that the judgment of the High Court be set aside and the plaintiff’s claim dismissed.
On 20th June, 1988, ten other children by the deceased who were not specifically named as parties in the said suit No.LD/912/84 applied to the B High court for leave to appeal against the judgment as persons having an interest in the matter. In his ruling dated 11th July, 1988, Exhibit “FS03”, the learned trial Judge dismissed the application on the ground that the applicants, “were neither parties to the action nor were they mentioned in the said Will and Testament of 1947.” He concluded that “these ten applicants have no locus standi to present the present application for leave.”
The ten applicants in their application filed on 20th July, 1988 have applied to this court for an order granting them leave to appeal against the said judgment delivered on 24th May, 1988 in the said Suit No.LD/912/88 as persons having an interest in the matter. They also filed on 2nd December, 1988 an amendment to the motion for an order extending the time within which the applicants may apply for leave to appeal. At the time they filed their original application for leave on 20/7/88, time within which to appeal had not expired.
The original application is supported by an affidavit of 13 paragraphs sworn by Emmanuel Okotie-Eboh, the 8th applicant. In it he deposed to the fact that “the applicant verily believe that the said Will admitted as Exhibit “P1″ at the lower court did not represent the true last Will and Testament of late father.” Attached to the affidavit are (1) a certified true copy of the Judgment Exhibit “FSO1” , (2) a certified true copy of the Will dated 21/8/47, Exhibit “FSO2.” The original was admitted as Exhibit “PI” in the proceedings in the lower court; (3) a certified true copy of the record of proceedings in the lower court together with the ruling dated 11th July, 1988, Exhibit “FSO3” and (4) a copy of the proposed notice and grounds of appeal Exhibit “FSO4.”
Four counter-affidavits were filed on behalf of the plaintiff/respondent who is also the 4th defendant/respondent and the 1st defendant/respondent who is said to be the mother of the plaintiff/respondent. Two of the affidavits filed on 5/10/88 and 24/1/89 were sworn by Solomon Sofunmade, the Chief Litigation Officer in the Chambers of Messrs. Kehinde Sofola and Co., solicitors to the plaintiff/respondent. The other two filed on 6/12/88 were sworn by Akinola Kuforiji, a legal executive to the firm of Messrs. Fred Egbe & Co., solicitors to the 1st and 4th defendants/respondents, that is, to the plaintiff and her mother. In effect while the Chambers of Messrs. Kehinde Sofola and Co., represent Mrs. Alero Jadesimi as plaintiff, the firm of Messrs. Fred Egbe and Co., represent her as a defendant.
The 8th applicant also filed a reply affidavit on 7/12/88, while Goodluck Okotie-Eboh, the 3rd applicant, fled another reply affidavit on the same day. The grounds of opposition to the application as can be gleaned from the counter-affidavit Sworn on behalf of the plaintiff/respondent may be summarized thus:
(1) That the applicants were aware that suit No.LD/912/84 was pending. Indeed some of them attended court and the 7th applicant testified as D.W.4 on behalf of the 2nd defendant/respondent.
They did not object to any of the defendants/ respondents representing their interest in the action and neither did they seek to be joined as separate defendants.
(2) The 2nd and 3rd defendants/respondents have already filed notice of appeal on their behalf and on behalf of all other “purported beneficiaries of the Estate.”
(3) This court can adjudicate upon the appeal without the presence of the applicants.
The plaintiff/respondent as the 4th defendant/respondent and the 1st defendant/respondent are opposing the application on the following grounds:
(1) That the applicants are not interested parties in the action as their names were not mentioned in the Will of Late Chief F. S. Okotie Eboh, the subject-matter of the suit.
(2) The proposed notice of appeal discloses no substantial grounds of appeal.
In the reply affidavit sworn by the 8th applicant on behalf and with the authority of Ben Okotie-Eboh, the 10th applicant, it is deposed to as follows:
“3. That I am informed by the said Mr. Ben Okotie-Eboh and I verily believe him as follows:
(a) That he is resident in London at 50 Oxberry Avenue. London S.W.6.
(b) That he never knew of the pendency of suit No.LD/912/84 now being sought to be appealed against.
(c) That none of his other brothers and sisters who are applicants herein knew of his address in London until June 1988.
(d) That it was after the delivery of the judgment of the lower court in this case that Mr. Adolo Okotie-Eboh in June 1988 made enquiries about his address and informed him of the judgment and the intention of the other applicants herein to appeal against the judgment.
(e) That after a deep consideration of the effect of the judgment on him particularly in depriving him of entitlement to our father’s personal property he decided to appeal along with the other applicants herein.”
In his reply affidavit, the 3rd applicant deposed that he left Nigeria for the U.S.A. in December, 1978 and did not know of the pendency of suit No.LD/912/84 until December, 1987when he returned to Nigeria by which time the case had almost been concluded.
In the further counter-affidavit sworn on behalf of the plaintiff/respondent, it is deposed to that there was a sister suit before the Chief Judge of Lagos State, Suit No.LD/1035/81, between Adolo Okotie-Eboh (the 5th applicant herein) & Ors. for themselves and on behalf of the other beneficiaries of Chief F. S. Okotie-Eboh as plaintiffs and Mrs. Victoria Okotie Eboh & Ors. as defendants. In the course of the suit, an application dated 28/10/82 was filed on behalf of the 10th applicant herein to be joined as a defendant. There was however a counter-affidavit that the 3rd and 10th applicants herein were in full time education abroad and suffered financial setback as a result of the litigation. In effect although the 3rd and 10th applicants herein were abroad at the material time, going by the further counter-affidavit, they knew of the pendency of suit No. LD/1035/81 and LD/912/84 the subject matter of this application.
Mr. Oyetibo, learned counsel for the applicants in his submission made the point that the effect of the judgment the applicants seek to appeal against is that the applicants are not entitled to any of the personal estate of their late rather. He drew our attention to section 222(a) of the Constitution which states that:
“Any right of appeal to the Court of Appeal from the decisions of a High Court conferred by this Constitution (a) shall be exercisable in the case of civil proceeding at the instance of a party thereto or with the leave of the High Court or the Court of Appeal at the instance of any other person having an interest in the matter.
He cited legal authorities to buttress his argument that a person has an interest in a matter if he is aggrieved or affected one way or another by the judgment.
It is necessary to refer to three of the authorities cited by him. In Yekini Otapo v. R. O. Sunmonu (1986) 1 N.W.L.R. (Part 16) 344 at 349.
Nnaemeka-Agu, J.C.A. (as he then was) held that leave would be granted to an applicant to appeal as a person interested if he satisfies the court that he has sufficient interest in the matter and has substantial grounds of appeal.
In Harry Akande and Ors. v. General Electric Company & Ors. (1979) 3-4 S.C. 115 at page 125. Aniagolu, J.S.C.. delivering the judgment of the Supreme Court and construing section 121E(5) of the Constitution (Amendment) (No.2) Decree 1976 had this to say:
“The person therein stated exercising the right of appeal to the Court of Appeal, must be one named in the record or, with leave, having “an interest” in the proceedings – which term would include a person affected or aggrieved or likely to be aggrieved by the proceedings. Good examples are afforded by Maja & Others v. Johnson (1951) 13 W.A.C.A. 194, and Johnson v. Aderemi (1955) 13 W.A.C.A. 297 (P.C.) at 299.”
In Attorney-General of Gambia v. N’jie (1961) 2 All E.R.504 at page 511, a Privy Council decision, Lord Denning made the point that “the words ‘person aggrieved’ are of wide import and should not be subjected to restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interest.”
The applicants, who are children of the deceased who would have been entitled to his personal estate were automatically excluded by the judgment handed down by Agoro, J. There is no doubt that they are “affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings”, if I may use the expression of Aniagolu, J.S.C. The judgment “prejudicially affects their interests” as Lord Denning put it. At least they have sufficient interest in the matter to be granted leave to appeal, if one applies the parameter of Nnaemeka-Agu, J.S.C. (as he now is).
Mr. Kehinde Sofola, S.A.N., for the plaintiff/respondent threw in what appeared as a lethal legal punch against an apparently impregnable legal barrier projected by the submission of Mr. Oyetibo. The learned senior advocate drew our attention to Order 13, Rule 13 of the Lagos State High Court (Civil Procedure) Rules which states:
“13. Trustees, executors, and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons; but the Court or a Judge in Chambers may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties.” He urged us to hold that the import of Order 13 Rule 13 is that the applicants having been represented by the defendants were already parties to the action. In effect, he submitted, they cannot be both parties who can appeal as of right through their representatives, the defendants/respondents, and at the same time be persons “having an interest in the matter” who can appeal with leave of court within the context of Section 222(a) of the Constitution. What is more, the learned S.A.N., submitted, is that the 2nd and 3rd defendants/respondents who are two of the representatives have appealed against the judgment and that the grounds of appeal are similar to the proposed grounds of appeal by the applicants.
I find the submission of the learned senior advocate extremely attractive. It commands attention. It is the attention it commands and demands that has invited a close scrutiny of it. I find that there are some weak areas in the main thrust of his submission.
Firstly, Section 222 of the Constitution is not subject to the rules of the High Court. By sub-section (b) any right of appeal to the Court of Appeal from the decision of the High Court conferred by the Constitution “shall be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.” Order 13 Rule 13 is confined to proceedings in the High Court and has no relevance to proceedings in this court in an application of this nature.
Secondly, in his ruling the learned trial Judge in refusing leave stated that he failed “to see how these applicants would be aggrieved by the judgment of this court when they were neither parties to the action nor were they mentioned in the Will and Testament.” While his conclusion may be faulty he rightly held that the applicants were not parties.
Thirdly, at paragraph 6 of the counter-affidavit filed on behalf of the plaintiff/respondent, it is deposed that “the applicants are neither ‘the appropriate parties’ desirable parties’ nor ‘necessary parties’” to the action. The learned S.A.N. adopted this argument in his submission before us. Also in the two affidavits filed on behalf of the 1st and 4th defendants/respondents, it was also specifically stated that “the ten applicants in this matter are not interested parties in this action as they were no parties to the action in the High Court nor were they mentioned during the proceedings.”
A party cannot be heard to approbate or reprobate. He will not be allowed to base his action or defence, whether by pleadings or affidavit evidence, on a set of facts and then depart from the set of facts on which issues had been joined to meet the case of the other side. The plaintiff/respondent cannot be heard to say that the applicants are parties who cannot seek leave to appeal under the umbrage of “persons having an interest.
Fourthly, as stated by Aniagolu, J.S.C, in Akande v. General Electric Company (supra) a person exercising the right of appeal to the Court of Appeal must be named in the record, or with leave, having an interest. The applicants were not named in the record. They cannot be parties exercising right of appeal. They only qualify as persons having “an interest.” It is therefore not a question of their being parties and at the same time said to be persons having “an interest.”‘
Fifthly, as stated by Nnaemeka-Agu. J .S.C. (as he now is) in the case of Ojukwu v. Military Governor of Lagos State (1985) 2 N.W.L.R. (Part 10) 806 at page 815, a person is said to have interest in the matter where such person could have been joined as a party to the suit. (See Akinola Maja & Ors. v. Harriet Johnson (1951) 13 W.A.C.A. 194). It is only in this sense that Order 13 Rule 13 is relevant. By that rule of court the fact that trustees, executors or administrators shall be considered as representing the beneficiaries will not preclude the court from “at any stage of the proceedings, order that such persons to be made parties either in addition to or in lieu of the previously existing parties.” It is implicit in this rule that the beneficiaries are in fact not “parties” until they are made or joined as “parties.”
As rightly stated by the learned Author of “Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria” at paragraph 10.42 page 120, a court will order the joinder of any beneficiary wherever the court thinks that justice so demands and that ‘”the court will readily do so where for example, the trustees or executors or administrators are in litigation between themselves in respect of the property.” The action, the subject-matter of this application, is a classical example of administratrixes/administrator litigating between themselves – a plaintiff administratrix suing herself as a defendant. The administratrixes/administrator are evenly divided, two representing opposing interests. Only two of the four have appealed against the judgment of Agoro, J.
Before us the 1st and 4th defendants/respondents are represented by one counsel. The 1st defendant/respondent as plaintiff/respondent is represented by another counsel. The 2nd defendant/respondent by a different counsel and the 3rd defendant/respondent by yet another different counsel. The counsel for the 1st and 4th defendants/respondents associated herself with the submission of learned counsel for the plaintiff/respondent in opposing the application, while both counsel for the 2nd and 3rd defendants/respondents did not oppose the application. It is obvious that the defendants/respondents represent different and conflicting interests.
It is safe to say that where it is obvious to the court that the representatives of beneficiaries have not the same interest in the cause or matter in which they purport to represent the beneficiaries, the court or Judge may order that any or all of the beneficiaries be made parties. Where such beneficiaries for one reason or another have not been made parties in the court of first instance, on their application they should be granted leave to appeal against a decision adverse to their interests.
It is however the submission of Mr. Sofola that the applicants could not have been sued having regard to the nature of the relevant claim, and are therefore not “proper parties” or “desirable parties” or “necessary parties.” The action was for the court to pronounce on the validity of the Will and Testament dated 21st day of August 1947 and to revoke the grant of the Letters of Administration of the Estate. There is no doubt that generally in an action of this nature the appropriate parties are the executors or administrators of the estate.
I agree with the learned Senior Advocate that the applicants could not have been sued by the plaintiff/respondent.
As stated by Oputa, J.S.C., in Chief Abusi Green v. Chief (Dr.) E. T. Green (1987) 3 N.W.L.R. (Part 61) 480 at page 492, “a plaintiff who conceives that he has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only and should not be compelled to proceed against other persons whom he has no desire and no intention to sue.” The learned Justice of the Supreme Court went on to say that when the suit has been filed the trial Judge becomes “dominus litis and he assumes the duty and responsibility to ensure that the proceedings agree with the justice of the case by joining either as plaintiffs or defendants ‘all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit or who may likely be affected by the results’ if they had not already been made parties.”
At page 493, Oputa, J.S.C., went on to say that desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject-matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with.
It is obvious to me that the applicants are desirable parties, if not necessary parties, who could have been joined as defendants if they had sought to be so joined. It is unnecessary to consider whether they are necessary parties in this application. Being desirable parties and are persons having an interest in the matter they can appeal with leave of court.
In Ubagu & Ors. v. Okachi & Ors. (1964) 1 All N.L.R. 36. Brett, J.S.C. made the point that where the defendants in a case have been fighting the battle of a community, if any of the other people of the community “consider themselves aggrieved by the order of the High Court they are persons having a right of appeal under Section 117(6)(a) of the Constitution of the Federation and it is for them to exercise that right if they so wish to obtain a variation of the judgment of the High Court.”
In the case of Ede v. Nwidenyi, in Re: Ugadu (1988) 5 N.W.L.R. (Pt.93) 189 cited by Mr. Oyetibo, Karibi-Whyte, J.S.C., pointedly stated at page 20 of the cyclostyled judgment that “un-named defendant who is represented in an action by another can apply for leave to appeal against the decision within the meaning of Section 213(5) 222(a) of the Constitution 1979.”
In the alternative, Mr. Sofola urged us to hold that persons who knew of an action but took no step to be joined as a plaintiff or defendant will not be given leave to appeal as an interested party. In this regard he cited Mrs. Omotunde Shonekan v. Mrs. Gladys Smith (1964) 1 All N.L.R. 168 at page 171, Akinola Maja v. Harriet Johnson (supra) and Harriet Johnson v. Baba-Funke Aderemi (1955) 13 W.A.C.A. 297.
The law is that a person whose interest is involved in a cause of matter and deliberately chose to keep aloof and watch others fight his case is bound by the result in the same way as if he were a party. (See Esiaka v. Obiasogwu (1952) 14 W.A.C.A. 178). However, just as the party who fights his battle for him can appeal against the result he also generally may be granted leave to appeal as an interested party. In Ede v. Nwidenyi & Ors. (supra) at page 21 of the cyclostyled judgment Karibi-Whyte, J.S.C., adopted with approval the reasoning of Ogundare, J.C.A., in Re: Afolabi (1987) 4 N.W.L.R. (Pt.63) 18 at page 31 where the learned Justice of the Court of Appeal observed:
“Assuming it is correct to say that an applicant is a privy to the defendant, this cannot preclude him from seeking leave to appeal under section 222 of the Constitution. In fact, by being a privy he must be a party interested.
Karibi-Whyte, J.S.C., went on to state that the decision in the Court of Appeal did not constitute res judicata between parties and that “the litigation between the parties is still continuing and the adverse parties is entitled to carry it on till the hierarchy of appeal is exhausted. The binding nature of the decision only comes to be considered as between the parties when any of the parties sues or is sued in a fresh action.”
With due respect to learned counsel for the plaintiff/respondent the case of Shonekan v. Smith (supra) is inapplicable. It is not necessary for me to state the full facts of the case. These are the essentials. By Order 7 Rule 5(1) of the then Supreme Court Rules, the Registrar of the court below shall after notice of appeal has been filed cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal. It shall not be necessary to serve any party not directly affected. There is however the proviso that “the court may of its own motion or on the application of any person claiming to be affected direct notice to be served on all or any of the parties to the action or other proceeding or upon any person not a party and make such order as might be made if the persons served with such notice had been original parties to the appeal.”
The dispute in that case related to a Deed of Settlement made by Rufus Wright conveying his land to trustee and trust for Ladipo Wright and if there shall be no issue for Ladipo in trust for the settlor’s other children who shall be living at the death of Ladipo. The trial Judge held that upon the death of Ladipo Wright without issue the settlor’s other children took the land in fee simple as joint defendants and the plaintiff being the sole survivor took the land in fee simple absolute for herself and her heirs. The relevant portion of the judgment of the Supreme Court for the purposes of this case reads:
“reference must be made to two preliminary points which came up at the hearing and were argued before us. The first arose from the first ground of appeal which, in effect, states that all the parties interested in the Deed of Settlement were not before the court. Although the matter was not raised in the court below, as the pleadings disclosed that Rufus Adekunle Wright left a widow who might have an interest in the Settlement, we formed the view that she should be served with notice to appear and so directed by virtue of the proviso to Order VII Rule 5(1). A record of appeal with the amended grounds of appeal were duly served upon her. She was present in court and was duly represented by counsel. In answer to questions from the court, we were satisfied that if she had any interest at all, she was barred from being joined as a party to this action since it was clear that she knew of the action before it originated; she had helped either one or both sides, and she was satisfied to leave it to the plaintiff/respondent to fight her own battle.”
The first point to note is that the said widow did not seek leave to appeal under the provision of any Constitution. She filed no proposed grounds of appeal. She was summoned before the Supreme Court by virtue of Order 7 Rule 5. The issue was whether she was a proper person to be joined as a party to the action and not as a person to be granted leave to appeal. The Supreme Court came to the conclusion that she was “barred” from being joined as a party to the action since she had “helped either one or both sides and she was satisfied to leave it to the plaintiff/respondent to fight her own battle.” Obviously the plaintiff/respondent who was fighting her battle for her won in the court below. The question of her appealing could not have arisen.
The cases of Akinola Maja v. Harriet Johnson (supra) do not support the contention of the plaintiff/respondent. On the contrary the decisions therein are in favour of the applicants. In Maja v. Johnson there was an application for leave to appeal by beneficiaries under a Will. The applicants were not a party to the suit and the executors decided not to appeal. Leave to appeal was granted the applicants by the West African Court of Appeal. In Johnson v. Aderemi the appellant was the defendant. The trial court found for the defendant and pronounced the Will of the testator to be invalid and declared that the testator died intestate. The West African Court of Appeal reversed that decision pronouncing the Will to be valid. In determining the appeal it allowed parties to be added as appellants who were not parties to the original suit. On appeal to the Privy Council, it was argued that the West African Court of Appeal had no power to add as parties to the appeal persons who were not parties to the original action. It was held by the Privy Council that the West African Court of Appeal had powers to add parties as appellants who were not parties to the original suit. In effect the beneficiaries, as in this case, were granted leave to appeal.
A person who is a desirable party because he has an interest in an action has two distinct rights. They are, the right to apply to be joined as a party in the trial court and the right to seek leave to appeal pursuant to Section 222. His failure, refusal or neglect to pursue his right in the trial court to be joined as a party will not bar him from seeking and obtaining leave to appeal against a decision which is detrimental to his interest.
Also in my view the applicants cannot be denied their rights under the Constitution merely because two named parties have appealed against a decision of the court below on identical or similar grounds of appeal with the proposed grounds of the applicants. Disqualifying the applicants on this ground would be inherently unreasonable in that, amongst other things, the named parties who have appealed are at liberty at any stage to withdraw their appeal or compromise it to the detriment of the applicants. If this should happen the applicants would be left in the lurch. Besides it requires more that the grounds of appeal to succeed in an appeal. Arguments have to be proffered. Arguments to be canvassed by counsel for the named parties may not fall in line with submissions of counsel for the applicants.
The proposed grounds of appeal are substantial. Ground (1) complains that the action is caught by Section 33(1) of the Limitation Law and that the High Court had no jurisdiction to entertain the action. Ground (2) complains that the law of Property Act, 1925 of England is not applicable to Nigeria in General and Lagos State in particular. Ground (3) attacks the order of revocation of the resealing of the Will in Lagos State when such relief was not sought by the plaintiff/respondent.
The application succeeds. Time within which the ten applicants may apply for leave to appeal under Section 222(a) of the Constitution against the judgment of the trial court delivered on 24th May 1988 is extended till today. Leave to appeal is hereby granted. Time within which to appeal against the said judgment is extended till 7 days from today. There will be no order as to costs.
Other Citations: (1989) LCN/0083(CA)
