Chief Oladipupo Akanni Olumuyiwa Williams San V Folarin Rotimi Abiola Williams & Anor (2018)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The appellant, Chief Oladipo Akanni Olumuyiwa Williams, SAN who is representing himself in this appeal, filed a Motion on Notice on 22 May, 2017 praying for leave of this Honourable Court to hear the appeal on the appellant’s brief alone. Other processes filed on the same date were the Notice of Appeal and the Appellant’s brief.
The grounds for the application were given as:-
(a) The time within which the respondents ought to file their brief of argument in this appeal as provided by the Rules of this Honourable Court has elapsed.
(b) That there is no application for extension of time to file the respondents’ brief of argument before this Court.
(c) The respondents are not desirous of defending this appeal.
The motion is supported with a 5 paragraph affidavit which was deposed to by Azeez Biodun. Annexed to the affidavit are the Notice of Appeal, leave granted to the appellant by the lower Court on 15 May, 2014 to appeal to this Court and the appellant’s brief dated 6 February, 2015 and served on the respondents on 12/2/2015.
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The respondents’ reaction to this motion was to file a Notice of Preliminary objection on 6 April, 2018 praying for an order striking out this appeal as presently constituted for lack of jurisdiction. The grounds on which the preliminary objection is predicted are:-
(i) The proper/necessary parties to this appeal or persons that may be directly affected by this appeal are not all before this Honourable Court.
(ii) Chief Kayode Olusegun Williams is one of the sons of the late Chief F. R. A. Williams SAN and one of the beneficiary (sic) of his estate.
(iii) The appellant has failed to comply with the rules of this Honourable Court.
(iv) This Honourable Court lacks jurisdiction to entertain this appeal for being incompetent.
(v) The appeal, if heard as presently constituted will lead to miscarriage of justice.
In paragraph 3(a)-(j) of the affidavit sworn to by Abdulsalam Umar in support of the preliminary objection, he averred to the following facts:-
“3. I was informed by T.E Williams, Esq., SAN one of the counsel seized with the conduct of this matter on behalf of the applicant in Chambers on the 5th of April,2018 at about 1.00am and I verily believe him as follows:
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(a) Before the Court of Appeal, Lagos, there were four (4) parties to the appeal. The Court of Appeal delivered its judgment on the 31st of March, 2014.
(b) The appellant has filed a Notice dated 22nd of May, 2017 with only 3 (three) of the parties as appellant and respondents.
(c) The grounds of appeal filed by the appellant before this Honourable Court are basically on the issues of the family agreement signed by the four children of late Chief F. R. A. Williams, SAN and the 1954 Holographic Will of the late Chief Williams, SAN.
(d) The Statement of Claim filed by the appellant in this case as shown on page 5 of Vol. 1 of the Record of Proceedings, paragraphs 1, 2 and 3 clearly showed that Mr. Kayode Adekunle Olusegun Williams is a necessary party to this action;
(i) The 1st Claimant, a Senior Advocate of Nigeria since 1995 and Legal Practitioner since 1972, is the eldest son of the deceased, and the Head of the family in accordance with Yoruba Laws and customs and also a beneficiary under the holographic Will of Chief Frederick Rotimi Alade Williams, SAN, CFR, deceased of No. 1, Shagamu
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Avenue, llupeju, Lagos who died on the 26th of March, 2005, the Will bears the date of 22nd day of June, 1954. A copy of the Death Certificate dated the 26th of March, 2005 shall be relied on at the trial of this suit.
(ii) The 2nd Claimant on Agriculturalist, is the second son of the deceased and also a beneficiary under the holographic Will of Chief Frederick Rotimi Alade Williams, SAN, CFR, deceased of No. 1, Shagamu Avenue, llupeju, Lagos who died on the 26th day of March, 2005, the Will bears the date of 22nd day of June, 1954. The last Will and Testament of Chief Frederick Rotimi Alade Williams shall be relied on at the trial of this suit.
(iii) The 1st and 2nd Claimants are the only beneficiaries under the said Will.
(e) Furthermore on page 15 of Volume 1 of the Records of Appeal, appellant under paragraph 24(2) claimed against the respondent inter alia:-
(i) An order of the Court for the grant of Letters of Administration (with Will annexed) of the deceased’s estate to the 1st and 2nd Claimants as Administrators of the estate and the only beneficiaries under the Will as recognized by the testator.
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(f) The present appeal has not properly put all the proper and necessary parties before this Honourable Court. Only three of the four beneficiaries of the Estate of Chief FRA Williams SAN are parties to this appeal as presently constituted.
(g) The absence of all the necessary parties to this appeal will lead to miscarriage of justice.
(h) The decision of this Honourable Court will directly affect one way or the other the legal proprietary or pecuniary rights of all the four children of the late Chief FRA Williams, SAN.
(i) It will serve the interest of justice better if all the children are made parties to the appeal.
(j) It is in the interest of justice that this appeal be struck out for being incompetent.
The appellant opposed the preliminary objection by filing a counter affidavit annexing the ruling of this Court delivered on 7 November, 2016 dismissing the appeal which the 2nd appellant withdrew by filing a notice of withdrawal. In paragraph 3(c)(d) and (e) of the counter-affidavit to the preliminary objection, Oyedepo Oluwasegun deposed to the following facts:-
“3. I was informed by Ms. Daniella lkeckwu one of the counsel
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seized of the conduct of this case on Monday 9th day of April, 2018 in Chambers at 2pm and I verily believe her as follows:-
c) That in response to paragraph3(d),3(e),3(f),3(g),3(h),3(i) that Chief Kayode Adekunle Olusegun Williams decided to withdraw his appeal and to this effect filed a Notice of Withdrawal on 4th day of November, 2016. Attached hereto and marked Exhibit CLRW/1 is a certified true copy of the order of this Honourable Court dismissing his appeal.
(d) That the appellant does not wish to sue Chief Kayode Adekunle Olusegun Williams.
(e) That all the necessary parties to this appeal are now before the Honourable Court.”
The preliminary objection has brought to the fore the issue of who are proper parties to the action for it is when the proper parties are determined that the Court will be competent and have jurisdiction over a matter and before the action can succeed. The argument advanced by learned counsel for the applicants in the preliminary objection is encapsulated in paragraph 3 (f) of the affidavit supporting the preliminary objection and it is that the present appeal has not properly put all the
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proper and necessary parties before this Honourable Court namely that Chief Kayode Adekunle Olusegun Williams must be made a party in the appeal before it can become competent since the issue involves the granting of Letters of Administration (with Will annexed) of the deceased estate to the appellant and the said Chief Kayode Adekunle Olusegun Williams who are the claimants and the only beneficiaries under the Will. But this argument was countered by the appellant that he does not wish to sue Chief Kayode Adekunle Olusegun Williams.
The applicants in the preliminary objection are not questioning the capacity of the appellant or that of the respondents in the substantive appeal. Where a plaintiff has the necessary capacity and locus to bring an action and then brings it, failure to join a desirable party will not deprive him of his initial locus standi and then rob the Court of jurisdiction to entertain his action. See: Ekpere & Ors v. Aforije & Ors All NLR 220; Oloriede v. Oyebi (1984) 1 SCNLR 390.
Chief Kayode Adekunle Olusegun Williams was a necessary party who had the same interest with the appellant when they filed Suit No. ID/68/2010
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right up to the time he filed Notice of Withdrawal of appeal SC. 807/2014. By filing that Notice of Withdrawal, he was no longer interested in the outcome of the appeal and the appellant who is desirous of getting to see the final outcome of the appeal cannot be compelled to keep him as a party. If Chief Kayode Adekunle Olusegun Williams has chosen to renounce his interest in the appeal which will determine the rights of the parties in the estate of their deceased father, he is at liberty to do so since it is a personal right which he can forfeit. His withdrawal of his appeal cannot frustrate the 1st appellant’s appeal from being heard. By withdrawing his appeal, he will be bound by the outcome of the appeal as if he were a party. See: Green v. Green (1987) 3 NWLR (Pt. 61) 480. The applicants in the preliminary objection are meddlesome interlopers and are trying to cry more than the bereaved. There is no merit in the preliminary objection and same is hereby overruled. Leave to hear the appeal on the appellant’s brief of argument alone filed on 22/5/2017 is granted since the respondents have failed to file their brief within the
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time provided by the Rules and there is no application for extension of time to do so which is pending before this Court.
SC.807/2014
