Rev. Lijadu V Mrs Franklin (Nee Lijadu) (1965)

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The Rev. Moses Folarin Lijadu sued Mrs. Adedoyin Franklin in the High Court of Lagos for an order requiring her to execute a deed conveying to him a piece of land known as No. 5 Campbell Street, Lagos. The action was dismissed and he gave notice of appeal to this Court, but before the appeal came up for hearing he died. The applicants in the present motion are the executors of his will and ask to be substituted for him on the record as appellants. The respondent does not object in principle, but has pointed out that the will has, up to the present, only been admitted to probate in the High Court of Western Nigeria. She has therefore submitted that in order to obtain the necessary standing to prosecute this appeal the applicants must have the probate resealed in the High Court of Lagos. The applicants have denied the necessity of this and as the question is of some general importance we reserved our decision.

We have not been referred to any Nigerian statute governing the point, and it is necessary to consider what standing a personal representative has at common law in litigation. Under section 16 of the High Court of Lagos Act the jurisdiction of the High Court in probate proceedings may be exercised in conformity with the law and practice for the time being in force in England, but it is not the law or practice in probate proceedings that is in issue. The rule is stated in Dicey’s Conflict of Laws, 7th edition, Rule 103 as follows:-

“A grant of administration or other authority to represent a deceased person under the law of a foreign country” (i.e. any country which is not England) “has no operation in England.”

Its effect was explained by Scrutton, J., in Haas v. Atlas Assurance Company Limited (1913) 2 K.B. 209, in these terms:-

“An executor could not assert or rely on his right in any Court without showing that he had previously established it in the Probate Division either by suit, by probate in solemn form, or in the ordinary form. The usual way in which he proved it was by the production of a copy of the will certified under the seal of the Court. That state of the law was described by Jervis C.J., in Johnson v. Warwick 17 C.B. 516, as being that the Court had not the legal optics through which to look at the will until the will was proved in the form provided by English law.”

The rule of common law was reinforced by the Revenue Act, 1884, and modified by the Revenue Act, 1889, but these Acts do not, in our view, apply in the Federal territory as statutes of general application, and in any event they have no bearing on the present question.

The passage cited from Haas v. Atlas Assurance Company Limited refers to some of the methods by which an executor may establish his right. In addition, probate granted in Northern Ireland, Scotland, or specified parts of the Common wealth will be recognised by the English courts if the grant has been resealed in England; See Halsbury’s Laws of England, 3rd edition Volume 16 pages 256-263, in Nigeria the Probates (Resealing) Act, Cap. 161, makes similar provision, and enables probate granted in any part of the Commonwealth to be resealed in the High Court of Lagos. The administration of estates is a residual subject under the Constitution of the Federation, and for the purpose of the Probates (Resealing) Act, each Region of Nigeria, having a separate system of law and a separate judicature, is to be regarded as a distinct “part of the Commonwealth”, as are the Provinces of Canada and the States of Australia.

For these reasons we are of the view that the applicants must have their grant resealed in the High Court of Lagos if they wish to pursue the appeal, and the motion is allowed subject to the condition that within four weeks from today they make the necessary application for this purpose. They should inform the Registrar of this Court when the resealing has been carried out, so that the appeal may be set down for hearing. The respondent will have 5 guineas costs.

Other Citation: (1965) LCN/1268(SC)