Mr Kayode Bakare & Anor V. Mrs Dupe Bakare & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment)

On the 13th of June, 2003 the plaintiffs/respondents brought an action at the High court of Osun State, Ilesha in suit No. HIL/36/2003 against the 1st to 3rd defendants praying for:

1. An Order revoking the Probate Letters of Administration dated 23rd November 2000 granted to the 1st and 2nd Defendants by the 3rd Defendant in respect of the estate of Chief Salaudeen Bolaji Bakare (deceased) on the ground that it was obtained by fraud and/or misrepresentation.
2. An order of Court discharging the present purported administrators and appointing the 3rd defendant as the sole administrator with the sole purpose of convening a meeting of the estate of Chief Salaudeen Bolaji Bakare (deceased) within 60 days from the date of judgment and to elect or appoint new administrators for the estate in place of the 1st and 2nd Defendants.
3. An order directing the 1st and 2nd defendants to furnish and verify the accounts of the real and personal estate of Chief Salaudeen Bolaji Bakare (deceased) as per the letters of administration dated 23rd November 2000 which have come into their possession since the death of the deceased on 21st January 1989 till date.
4. An order directing the 1st and 2nd Defendants to render an up to date account of all proceeds, rent and other incomes so far received and or collected by the 1st and 2nd Defendants on the estate known to belong to Chief Salaudeen Bolaji Bakare as per letters of administration dated 23rd November 2000.

The Plaintiffs/respondents also filed along with their suit, a motion on notice praying the court for the following interlocutory orders:

1. Interlocutory order restraining the 1st and 2nd Defendants from further acting as administrators of the estate of Chief Salaudeen Bolaji Bakare deceased pursuant to the probate letters of administration dated 23rd November 2000 granted by the High Court of Justice Osun State of Nigeria pending the hearing and determination of this suit
2. Order directing the 1st and 2nd defendants to pay all proceeds received from the estate accruing; collected yet to be received by them from 2nd January 1989 till date into an interest yielding account in the name of the Chief Registrar of the High Court pending hearing and determination of the suit.
3. Order of court directing all tenants and or lessees of properties/buildings listed in the probate Letters of Administration dated 23rd November 2000 to forthwith pay their rents in the name of the Chief Registrar of the Honourable Court pending the hearing and determination of this suit.
4. An order directing the 1st and 2nd Defendants to furnish the honourable court with details of all proceeds, rents and monies collected and or received by the 1st and 2nd defendants in respect of the estate of the deceased and to pay same into an interest yielding account with First Bank PLC or any other reputable bank as the court may deem fit to order, same account to be kept in the name of the Chief Registrar of this Court pending the determination of this suit.

The defendants/appellants filed a counter affidavit in opposition to the motion on notice. It is necessary to point out that the 4th defendant/respondent Mrs. Yinka Osborne had initially been joined in the suit as 7th plaintiff. She applied for her name to be struck off as a plaintiff on the ground that she was not aware of and never authorized the institution of the action. The application was taken and granted on 31/5/2003 without opposition by the plaintiffs. The plaintiffs were ordered to amend their Pleadings to reflect the change of parties and to serve same on the 7th plaintiff who had then been made the 4th defendant. Without effecting the amendment, the plaintiffs proceeded to move their application for injunction against the defendants with the processes still reflecting Mrs. Yinka Osborne as the 7th plaintiff. After due consideration of the written submissions of counsel on the motion for injunction, the trial judge in a reserved ruling delivered on 27/7/04, granted the application in part as follows:

(a) The 1st and 2nd defendants are hereby restrained from further acting as administrators of the estate of Chief Salaudeen Bolaji Bakare pursuant to probate letters of administration dated 23/11/2000 pending the final determination of this suit.

(b) All proceeds accruing from the estate are to be paid into an interest yielding account in First Bank of Nigeria Plc, Osogbo in the name of the Chief Registrar of the High Court of Justice Osun State pending the final determination of this suit.

(c) All tenants/lessees of properties/buildings listed in probate letter of administration dated 23/11/2000 are to forthwith pay their rents into the said interest yielding account opened in the name of the Chief Registrar.

(d) An order of accelerated hearing of this suit is hereby granted.

Aggrieved by this ruling, the 1st and 2nd defendants/appellants filed a notice of appeal containing six grounds of appeal. Briefs were filed and duly exchanged. From the six grounds of appeal, the appellants formulated a single issue for determination:

“Whether in all the circumstances of this case, the learned trial judge ought to have granted the reliefs sought at the interlocutory stage or at all.”

In their brief of argument, the 2nd – 5th respondents also formulated a single issue for determination:

“Whether having regard to the facts and circumstances of this case, the 2nd – 5th respondents could be said not to be entitled to the reliefs granted by the learned trial judge?”

On the 13th of July, 2009, this court then sitting at Benin had granted an application by the 1st and 7th respondents, Ms Dupe Bakare and Mrs Yinka Osborne to change their counsel. The result was that the law firm of George Ikoli & Okagbue now appeared for the 2nd to 5th respondents only while Sofunde Osakwe Ogundipe & Belgore now represented the 1st and 7th respondents. It is pertinent to mention that in the affidavit in support of the application for change of counsel it was deposed on behalf of the 1st respondent that she never instructed any counsel to institute or prosecute the action leading to this appeal; that she was never privy to any meeting where it was agreed that this action should be initiated and was never informed by the other claimants herein of their intention to commence this action in a representative capacity; that she has no intention to pursue any of the claims/reliefs in this suit against the above mentioned defendants, rather she wished for an immediate distribution of the estate as her only interest is her share of her late father’s estate. Consequently, no brief was filed on behalf of the 1st and 7th respondents. Further, during the hearing, the application of O.J. Fagbemi Esq., appellants’ counsel to be allowed to offer oral address on certain points in the respondents’ brief or to be given an adjournment to file a reply brief was vehemently opposed by Mr. Alalenu for the 2nd to 5th respondents on the ground that their brief was filed on 24/3/11 and that Mr. Fagbemi had 7 months to file a reply brief if he had wanted to file one. He urged us to refuse the application as it was made in bad faith. Mr. Fagbemi’s application was refused. The parties thereupon adopted their briefs.

In his argument on the sole issue, O. J. Fagbemi Esq. Counsel for the appellants referred to the case of Kotoye v CBN (1989) 1 NWLR (Pt. 98) 419 at 441 C – H where Nnaemeka Agu JSC (of blessed memory) set out the factors which a court must consider in deciding whether or not to grant an interlocutory order of injunction. Learned counsel submitted that in addition to those factors, it is the duty of the learned trial judge not to grant an injunction but to rather order accelerated hearing where the hearing of an application for injunction would mean a trial of a case twice first on the affidavits then again oral evidence as prescribed in the cases of John Holt Nis v African Workers Union of Nigeria and Cameroon (1963) ALL NLR 385: Nigeria Civil Service Union v Essien [1985] 3 NWLR (Pt.12) 306: Peter E Ventures v Gazasonner Industries Ltd [1998] 6 NWLR (Pt ) 619. Counsel further contended that it is the duty of the trial judge not to grant an injunction where the orders sought are final in nature or where the orders are sought to be made against persons not parties to the proceedings. Okpokiri v Okpokiri [2003] 3 NWLR (Pt. 649) 461 at 475: Adenuga v Odumeru [2003] 8 NWLR (Pt 821) 163.