Onayemi V Okunubi (1965)

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BAIRAMIAN, J.S.C.

The late Emmanuel Musuru Okunubi left a will, in which he made various specific dispositions with a final bequest and devise to all his children in equal shares of the residue both real and personal, and he appointed three executors, of whom the remaining two were sued by the plaintiffs (the above respondents, who are two of the beneficiaries). (Caxton-Martins Ag. J. (as he was at the time) gave judgment as follows –

“There will be judgment for plaintiffs for an account of the estate of the late Emmanuel Musuru Okunubl and also for the appointment of 1st plaintiff Olatunji Okunubi as an administrator of the said estate; his appointment as such an administrator is fully justified on the ground that since the defendants obtained probate some ten years ago, no account was filed by them; this is a gross dereliction of one of the most important duties and evidence of gross negligence of that duty on the part of the defendants.

The order of the court is that the account for the whole period be filed forthwith and also that the appointment of 1st plaintiff as administrator is made forthwith save that such appointment will not make him liable as an accounting party in respect of the period covered by the administration of the estate by the defendants since Probate was granted.”

It is only one of the executors who has appealed, and only his name is given above. His first ground of appeal is that –

(a) ‘The learned trial judge erred in law in giving judgment for the plaintiffs when all the beneficiaries were not before him.”

In support of it the appellant’s learned counsel referred to Schandort and Anor. v. Holm and Anor. 9 W.A.C.A. 173, in which the Court of Appeal quoted the following passages from Daniell’s Chancery Practice 6th Ed., Vol.1:

From p. 151. “Any person coming to the court for relief should bring before the court all such persons as are necessary to enable it to do complete justice; and should so far bind the rights of all persons interested in the subject as to render the performance of the judgment which he claims safe to the party called upon to perform it, by preventing his being sued or molested again respecting the same matter, and should for this purpose, subject to the provisions mentioned in the first section of this chapter, bring before the court, either as co-plaintiffs with himself, or as defendants, or by serving them with notice of the judgment, all persons so circumstanced that, unless their rights were bound by the judgment of the court, they might cause future molestation or inconvenience to the party against whom the relief was sought.”

From p. 166. ‘The rule which requires that all persons having concurrent interests with the plaintiff should be parties to the action applies to all cases in which an account is sought against a defendant. One person cannot bring an action against an accounting party without bringing before the court all persons who are interested in having the account taken, or in the result of it; otherwise the defendant might be harassed by as many actions as there are parties interested in the account.”

The judgment states (at p.174) that, although there were other children the executors did not contest liability to account to the two children who sued them, and goes on to quote those passages from Daniell to show that the two plaintiffs had a duty to bring into the suit the other children. That remark, though obiter in the case, Is a useful reminder of the duty which a plaintiff has; but we do not think the court in Schandorf meant to say that if the plaintiff failed in that duty his action ought to fail. It is clear from the notes under Order 16, r. 11, of the English Rules of the Supreme Court in the White Book for 1963 (“Application of Rules – Misjoinder, Nonjoinder’, at p.345) that nonjoinder cannot defeat a claim. It rests rather with the defendant to raise, as early as possible, the point that not all interested persons are before the court, so that the court may direct the plaintiff to give them notice and have everybody concerned as a party at the trial: see Sheehan v. Great Eastern Railway Co. (1880) 16 Ch.D. 59, at p. 64.

In the present case neither of the executors raised the point either on the return day of the writ or in their pleadings; nor did they move the trial court at any time in that behalf: It was only in counsel’s concluding address that the point was first taken on the appellant’s behalf, and the trial judge did well to disregard the argument that the action must fail. If it was otherwise right to give the plaintiffs judgment, they were entitled to have judgment. It appears from the passage at page 151 of Daniel’s Chancery Practice that the plaintiffs can serve others with notice of the judgment, but we are not concerned with that here and shall not expand on it. What we should like to remind trial courts is that they can of their own motion deal with the need of bringing in others, if it appears to them that there are others who ought to be brought in as interested parties; in this case that need was apparent long before the trial.

The first ground of appeal must fail. The second ground is that –

(b) ‘The learned trial judge erred In law in making the order to join the first plaintiff as an ‘administrator’ when he has no jurisdiction to make any such order.”

It appears from the argument in the court below that in regard to the claim for an order appointing the 1st plaintiff as a personal representative in addition to the two remaining executors, the plaintiffs’ learned counsel relied on section 160(2) of the English Supreme Court of Judicature (Consolidation) Act, 1952, which provides that –