Mrs. Sinmisola Carew V. Mrs. Iyabo Omolara Oguntokun (2011)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, J.S.C 

The appellant initiated a court proceeding against the respondents by way of originating summons, seeking the determination of the following question:

‘1. Whether the executors and executrix, i.e.; the 1st to 3rd respondents of the Will of Late Alhaja Adijatu Ayoola Balogun, have a right to refuse to pay probate and Solicitors fees and expenses, from the available funds in Afribank PLC, one of the deceased bankers or from any of her Bankers.

RELIEFS SOUGHT

An order that the Probate Fees of N8,493,286,000 be paid to the Probate Registrar from the N17,008,082.82 standing to the credit of late Alhaja Adijatu Ayoola Balogun deceased in her account with the 4th respondent, the Afribank Issa Williams (Branch), Lagos.

ii An order that the applicant solicitors fees of =N=8,000,000.00 and the valuation fees of =N=1,300,000.00 for their services for the issuance of the grant of Probate of the deceased’s WILL, be paid to the applicant from the deceased account with the 4th respondent.’

An affidavit in support of the originating summons was filed, and exhibited thereon are documents related to the claim. The 2nd respondent thereafter filed a motion on notice for:

‘1.AN ORDER setting aside the issue and service of the Originating Summons caused to be issued and served by the Applicant in this suit.

OR ALTERNATIVELY

AN ORDER allowing amendments to be made and ORDER pleadings in this case.

GROUNDS OF THE APPLICATION

The nature of the claim in this case is not such that could be determined on an Originating Summons.

The claim of the Applicant involves more than the construction of the WILL of the Deceased testatrix and (ii) the contract of the applicant.

There is involved apparently a substantial dispute of facts.’