Mosunmola Iyabola Fadayomi Vs Oludolapo Omoniyi Sadipe (1986)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C

This appeal was dismissed on the 27th day of February, 1986 and, as indicated, I now give my reasons.

The Appellant, is the 3rd plaintiff in this probate action. The action was instituted in the High Court of Lagos State for the Probate of the Will of Chief Michael Modupe Sadipe, who died on the 17th July, 1979, leaving Will dated the 20th January, 1979. In the said Will, the four plaintiffs and two others, who have since renounced probate, were appointed Executors and Executrixes of the Will.

The defendant is one of the widows and mother of four of the beneficiaries and surviving issues of the deceased. The question whether or not they are minors does not arise. None of the parties dispute the validity of the Will and indeed the four Plaintiffs have jointly applied for probate of the Will.

The defendant, however, filed a caveat against the issue of probate, not because she claimed to be a beneficiary or a person entitled on intestacy of the Estate. She claimed no interest whatsoever in the Will nor is any other Will of the deceased propounded. As could be seen from the statement of defence, her children claimed as beneficiaries under the Will. She however, called for a dismissal of the suit because according to her defence no cause of action was disclosed against her even though she filed a caveat. One therefore wonders why she refused to remove the caveat after being warned.

However, the present appellant as one of the executrixes appointed by the testator has along with the other plaintiffs jointly applied for probate, but subsequently applied to the trial court that her name should be struck out as she did not instruct counsel who filed the action. In her affidavit in support of the application she deposed:

(2) “That I was not involved in any decision to institute this action and I never gave instructions to the Counsel representing the other Plaintiffs to institute the present action.

(3) That the Chambers of Chief Gani Fawehinmi & Co. have always represented my interests in the Estate of the late Michael Modupe Sadipe to which the present action relates. .

(5) That I am an executrix to my later father’s Will.

(6) That it will be in the interest of justice to strike out my name referred to as the 3rd appellant in this suit.”

She did not repudiate her instructions to apply for probate jointly with the other three plaintiffs for the grant. The learned trial judge refused the application. He held inter alia:

“From paragraphs 2 and 3 of the affidavit in support, it would appear that the reasons for this application are that she did not instruct learned Counsel for the Plaintiffs and that her Counsels (sic) are those in the Chambers of Gani Fawehinmi other than these, I cannot find any other reasons either in the affidavit or on the motion paper itself for her application to be struck out of the action as one of the Plaintiffs . . .

“There is nothing, as stated earlier, in the application before me to show the grounds on which she would like her name struck out as one of the Plaintiffs; there is no serious allegation before me, against the other Plaintiffs either; yet both Counsel for the Defendant and her own Counsel implored me to grant the prayers in the ‘interest of… Justice . . .

“The grant of an application of this nature is in the discretion of the Court and the court can only exercise this discretion if there are sufficient reasons to justify its grant.”