Charles Igunbor Vs Olabisi Afolabi (2001)

LAWGLOBAL HUB Lead Judgment Report

KARIBI-WHYTE, J.S.C.

The application of the appellants by motion to the trial Judge to join as Co-Administrators in an application for letters of administration to the Estate of late P. A. Igunbor is the genesis of this appeal. The crux of this appeal is whether the procedure adopted by applicant/appellant is correct.

On the 17th July, 1992, the Court of Appeal, Ibadan Division, set aside the ruling of Ibidapo-Obe J. of the High Court of Oyo State sitting at Ibadan and granting the application of the appellant and another to be joined as co-applicants to the administration of the intestate Estate of the late P.A. Igunbor who died intestate at Ibadan on the 17th May, 1987.

The facts of this case are in the main not disputed. P.A. Igunbor died survived by five wives, fifteen children and a younger brother. On February 2, 1988, Mrs. Olabisi Afolabi (nee Igunbor), the oldest child and a female and Mrs. Mary Oyeyemi Igunbor, the youngest wife of the late P. A. Igunbor without the knowledge of the appellant applied for letters of administration to the estate of the deceased. Appellant being aware of this application of the respondents for letters of administration filed a notice by caveat to prohibit the grant of the letters of Administration to the respondents alone. Appellant eventually filed an application commenced by way of motion on notice, in which he prayed for the following orders:

“(i) For an order extending time within which to file caveat hereby prohibiting respondents from obtaining the letters of administration alone in the administration of the estate of late Phillip Aifemiamiuwu Igunbor who died in 1987.

(ii) An order deeming the caveat/prohibition filed by the 2nd applicant in this matter to be properly filed.

(iii) An order joining (1) Mr. John Ogunmola Igunbor (2) Mr. Charles Dele Igunbor as Co-applicants with the respondents who had already applied for letters of Administration in respect of the estate of late Philip Aifemiamiuwu Igunbor.”

This is the Suit No. M/75/88 John Ogunmola Igunbor & Anor. v. Mrs. Olobisi Afolobi & Anor filed on the 8th August, 1988. The application was supported by an eighteen paragraph affidavit sworn to by Charles Dele Igunbor. It is pertinent to observe that this application is sequel to an existing application for the grant of letters of administration. The Suit No.1/653/88. In re The Estate of Mr. Philip Aifiemiamiuwu Igunbor (Deceased), Between Mrs. Olabisi Afolabi (nee Igunbor), Mrs. M. Oyeyemi Igunbor Plaintiffs and Mr. Charles Dele Igunbor Defendant, filed on the 2nd August, 1988.

The application of the appellants was opposed in a counter-affidavit of six paragraphs sworn to by Mrs. Olabisi Afolabi. The application was opposed by Counsel for respondents in an oral preliminary objection alleging that the procedure followed in bringing the application by motion was faulty and was not in compliance with the due process of law. It was contended that applicants should have initiated the action by writ of summons and not by notice of motion. The learned trial Judge overruled the objection and granted all the prayers in the motion. Respondents appealed to the Court of Appeal. They filed and relied on five grounds of appeal. Out of these grounds three issues for determination were formulated in the appellants’ brief of argument. Respondent did not formulate any issues and was deemed to have adopted the formulation of the appellant.

The issues formulated in the court below are as follows:-

“1. As the law (both substantive and procedural) stands, can a caveator initiate any proceeding howsoever for the removal of his own caveat, otherwise than by its withdrawals and moreso, having sworn to an affidavit to prohibit the grant to the appellants on 12th July, 1988 simultaneously with the entry of his caveat on the same day in reply to the warning issued by the appellants – see pages 5, lines 20-59; 14 lines 1- 5; 25 of the records

2. Does the 1st respondent’s application now appealed against constitute a probate action within the then applicable rules of court, Orders 35 rule 16 and 2 rules 1 and 13 and Order 25 rule 29 of the current rules, 1988 so as to confer jurisdiction on the court to pronounce thereon howsoever
3. Has the 2nd respondent who never entered any caveat against the appellants’ application for the grant of letter of administration of the deceased’s estate, and who is neither a beneficiary nor a creditor of same any “locus standi” in this matter OR Is the competent in law in such a circumstance to be granted letter of administration jointly with the appellants who in any event are opposed to his being included in the grant; more so when the 2nd respondent is neither a brother nor sister of the deceased as borne out at pages 21, 34 to 35 of the record which show that he is not a beneficiary of the estate howsoever.”

The Court below also heard and overruled the preliminary objection as to whether the appeal before the court was competent being an interlocutory matter in respect of which leave of the court had not been first sought and obtained within 14 days of the decision. It was held that the orders of the learned trial Judge were final orders and that an appeal therefrom was as of right under section 220(1) of the Constitution 1979.

On the substantive appeal, the court below considered the issue whether the learned trial Judge lacked jurisdiction to hear the application which was initiated by notice of motion rather than by the issue of a writ of summons. It was contended that there was already a pending suit for the removal of the caveat and in view of the provisions of Order 35 rule 16 and Order 2 rr. 1 and 3 of the High Court (Civil Procedure) Rules, 1978 of Oyo State, the application was not properly initiated. The learned trial Judge ought to have struck out the application.

The Court after construing the provisions of the Probate Rules, as to the meaning of the words “action”, ‘Probate actions’ within the meaning of the Oyo State, High Court (Civil Procedure) Rules 1978 came to the conclusion that the law did not make the distinction between “Probate actions” and other actions suggested by learned Counsel for the respondents, now appellant. The Court below referred to Order 35 rule 16 of the High Court (Civil Procedure) Rules, 1978.