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.