Mrs. Esther Oluwatoyin Ayorinde V. Mr. Richard Ayorinde & Ors (2003)

LawGlobal-Hub Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.C.A. 

This is an appeal against the ruling of the Kwara State High Court of Justice in suit No. KWS/129/98 delivered by Hon. Justice A.A.Adebara on the 5th day of April, 2001 in which he struck out an application of the appellant on the grounds, inter alia:

“that it is an abuse of court process and that the appellant cannot approbate and reprobate.”

The facts of the case, as can be gathered from the record are that the appellant was one of the wives of Major Saka Adekunle Ayorinde (deceased) who died intestate. Before his death, the deceased is alleged to own properties including one storey building at 12 Peter Tokula Street, G.R.A. Ilorin and the premises and properties of Ajibike Memorial Nursery/Primary School along Airport Road, Ilorin. During his lifetime the deceased co-habited with the appellant in the one storey building while the appellant was responsible for managing the Nursery/Primary School.

Following some disagreements with the family of the deceased after his death, the appellant took out a writ of summons in her personal capacity against some members of the family of the deceased who were sued in a representative capacity. The appellant claimed the following reliefs:

“(a) A declaration that the defendants herein, either jointly and severally or through any of their agents, privies or assigns, are not entitled to sell, dispose of or intermeddle in any way whatsoever with the estate situate at Ilorin, of Late Major Saka Adekunle Ayorinde who died intestate in Ilorin.

(b) An order of court prohibiting the defendants herein, whether jointly or severally from selling, disposing of or intermeddling in any way whatsoever with the estate of Late Major Saka Adekunle Ayorinde situate at Ilorin which are the followings (sic):

(1) One storey building situate at Tokula Street, G.R.A. Ilorin.

(2) Premises and properties of Ajibike Memorial Nursery/Primary School, along Airport Road, Ilorin.

(3) An order of court restraining the defendants or their privies from further disturbing the plaintiff’s peaceable use and enjoyment of the house at 12 Peter Tokula Road, G.R.A., Ilorin, which house was occupied jointly with her husband when he was alive.”

The parties in that suit were:

Esther Oluwatoyin Ayorinde

and

1. Richard Ayorinde
2. Suniyu Ayorinde
3. Mrs. Kutuola Kehinde
4. Chief Tinji Ayorinde

(For and on behalf of the rest of Ayorinde family).

The action was instituted on 18th August, 1998 though the respondents contend that it was not served on them until the 20th day of May, 1999. It is the respondent’s case that prior to the institution of the action and upon an agreement of the Ayorinde family which was reached at a family meeting attended by the appellant, an application was made to the Probate Division of the Oyo State High Court for letters of administration in respect of the estate of Late Major Saka Adekunle Ayorinde and that same was granted on February 5, 1999. However, the appellant contends that it was rather on the 28th day of June, 1999 that the 2nd – 4th respondent’s were appointed administrator and administratrix respectively over the properties owned by Late Major Saka Adekunle Ayorinde. The respondents also contend that the letters of administration so granted was later resealed at the Probate Division of the Kwara State High Court after a caveat filed by the appellant was disposed of. It turned out that only the 1st respondent out of the four administrators and administratrix was made a party to the suit as commenced by the appellant. So to bring in the administrators and administratrix into the matter the appellant sought and was granted leave by the court to amend the court processes to include the 2nd, 3rd and 4th respondents who were substituted for the original 2nd, 3rd and 4th defendants as administrators and administratrix of the estate of Late Major Saka Adekunle Ayorinde (deceased). The appellant also amended the capacity in which she sued to now sue as the next friend of her two children. After adjourning the matter for definite hearing upon completion of the pre-trial processes, the appellant, on 7th November, 2000 filed an application before the lower court this time praying that the names of 2nd, 3rd and 4th respondents be struck out of the suit on the ground of their incompetence as parties having allegedly been appointed administrators and administratrix during the pendency of the suit before the trial court. The respondents of course opposed the application and in a considered ruling the learned trial Judge dismissed same, hence the appeal.

The appellant filed 4 grounds of appeal against that ruling out of which learned counsel for the appellant, T.O.S. Gbadeyan, Esq., has formulated two issues for determination in the appellant’s brief of argument deemed filed on 28/10/02. The issues are as follows:

“1. Whether or not the 2nd – 4th defendants/respondents are suable and proper parties having regards to the letter of administration issues (sic) in their favour on the already pending (sic) before the trial court.

2. Whether the application filed by the plaintiff/appellant before the trial court seeking an order for the striking out the names of the 2nd – 4th defendants/respondents, was an abuse of court process.”

These issues are adopted by learned counsel for the respondents, T. A. Abdulwahab, Esq., in the respondent’s brief filed on 18/11/02.

Both briefs were adopted by learned counsel for the parties when the appeal was heard on 14/1/03.

In arguing issue No. 1, learned counsel for the appellants, T.O.S. Gbadeyan, Esq. submitted that since it is without dispute that the action was instituted on 18/8/98, the appointment of 2nd – 4th respondents as administrators and administratrix on the 28th day of June, 1999 to administer the properties constituting the subject matter of the suit filed on 18/8/98 is an abuse of court process. That where a matter is before a court of law none of the parties thereto can legally take any unilateral action that will prejudice or tend to prejudice the hearing of the matter by the court, relying on Ezegbu v. F.A.T.B. (1992) 1 NWLR (Pt. 220) 699 at 705. That in any situation where a litigant attempts to frustrate judicial process, as it is the case herein the court will instill judicial discipline by undoing what has been done by the erring party referring to the comments of Kalgo, JCA (as he then was) in Ezegbu’s case (supra) at page 708 holding 13. That this court should restore the dignity of the court by allowing the appeal and striking out the names of the 2nd to 4th respondents.

Referring to section 11 of the Administration of Estate Edict, Cap. 1, Laws of Kwara State of Nigeria, Vol. 1, 1994, learned counsel submitted that letters of administration when issued in favour of a person vests power to administer properties covered by it in the administrator/administratrix. That such powers include the power to inter meddle with, tamper with dispose of, lease or an out right sale of such property and submitted that “the appointment of the 2nd -4th respondents as administrators/administratrix over those properties constituting the subject matter of a pending suit amounts to inter-meddling with the interest of the appellant and a contradiction or stultification of reliefs sought before the trial court via her writ of summons”. Learned counsel then referred to a relief in the writ of summons which asks for an order restraining the respondents from selling, disposing of or inter-meddling in any way whatsoever with the estate of the deceased and submitted that such appointment of the respondents amounts to intermeddling with the subject matter of the suit before the court.

In what I may term a very strange submission, learned counsel for the appellants submitted that “the 2nd – 4th respondents are not competent to defend the matter before the trial court. We urge the court to invalidate their appointment as administrators/administratrix and to strike out their names from the suit.”

That incompetence of parties renders a suit incompetent relying on Hi-flow Farm Ind. Ltd. v. University of Ibadan (1993) 4 NWLR (Pt. 290) 719 at 723; Onabanjo v. Ewetuga (1993) 4 NWLR (Pt. 288) 445 at 447.

That where the parties are incompetent the trial court will have no jurisdiction to hear them referring to State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Anon Lodge Hotels Ltd. v. Mercantile Bank (Nig.) Ltd. (1993) 3 NWLR (Pt. 284) 721.

That the fact that the appellant brought the 2nd – 4th respondents into the suit does not regularize the irregularity surrounding their appointment. He then urged the court to resolve the issue in favour of the appellant.

On his part learned counsel for the respondents, T. A. Abdulwahab, Esq., stated that the following facts have been established to wit:

(i) That the originating process even though filed on 18/8/98 was not served on the respondents until 20/5/99.

That letters of administration was granted by the probate division of the Oyo State High Court to the respondents on February 5th, 1999.

(iii) That subsequent to the nullification of the caveat filed by the appellant the probate registrar of the Kwara State High Court of Justice granted an order resealing the said letters of administration.

(iv) That the appellant’s claim as endorsed on the writ has nothing to do with the issuance of the letters of administration. Referring to pages 20 lines 2 – 3, 43-44; 61 and 102 lines 10 – 13 of the records.

Learned counsel submitted that there is no substance in the complaint of the appellant that the appointment of the 2nd to 4th respondents during the pendency of the action constitutes a bar to their being made parties in the action because what is important is the date when notice of the suit was brought to the respondents and not the date of filing the action and secondly, that in view of the claims of the appellant, the respondents are the proper parties and that this fact is conceded by the appellant when she applied to the court to have them made parties to the suit relying on Ademola v. Sodipo (1992) 7 NWLR (Pt. 253) 251, (1992) 7 SCNJ (Pt. 11) 417.

That upon a grant of letters of administration the management and control of the real estate of a deceased person is vested on the administrators. That having regards to the claim of the appellant the participation of the respondents is very necessary for the determination of the claims relying on Union Beverages Ltd. v. Pepsi Cola Int. Ltd. (1994) 3 NWLR (Pt. 330) 1, (1994) SCNJ 157 at 174.

That an action touching on the control and management of an estate of a deceased person cannot be properly constituted in the absence of the administrators of the estate particularly where their appointment is not being challenged. Counsel then urged the court to resolve the issue against the appellant.

In the reply brief filed on 9/12/02, learned counsel repeated the substance of his argument in the appellant’s brief on issue No.1 so I do not intend to repeat them here.

From the facts of the case, it is clear that the appellant based his application before the lower court on the principle of lis pendens which Black’s Law Dictionary, 7th Ed. at page 942 defines, inter alia as:

“The jurisdiction, power, or control acquired by a court over property while a legal action is pending.”

The term is also defined in short as pending law suit. The facts on which the appellant relies in invoking that principle of law are that the originating process which infact did not include the 2nd – 4th respondents whom she wants struck out after being made parties upon her application by the court, was filed on 18th August, 1998, while the said respondents were allegedly appointed administrators and administratrix on the 28th day of June, 1999 after the court process had been filed and served on the respondents indicating a pending suit in respect of the Estate of Major Saka Adekunle Ayorinde; that the appointment of the respondents in view of reliefs being sought at the trial amounts to intermeddling with the subject matter of the suit referring to relief (b) on page 2 of the record. That with the appointment, the respondents assumed or took prematurely the interest or estate in the properties which are sub-judice and that the respondents are therefore incompetent parties.

It is difficult to see the link between the principles of lis pendens and the competence of the respondents as parties. Whereas lis pendens frowns on acquiring an interest in a property subject of a pending action, that does not, in my view make the person an incompetent party to the action, if he had been made a party to same.

It only makes the interest so acquired in the property involved in the law suit subject to the outcome of that suit. For instance, if it turns out that the person from whom he acquired the interest has no title, then in law he has acquired nothing and that acquisition is subject to being set aside by the court of law. This is trite law.However, the question is what did the lower court find. At page 102 of the record, the learned trial Judge found as follows:

“I am satisfied that even though this suit was filed on 18/8/98, it only came to the notice of the respondents on 20/5/99, when they were served with the writ of summons. I am equally satisfied that the caveat entered by the applicant based on the affidavit evidence before me was disposed of on 5/5/99, this was before the writ was served on the defendants. The plaintiff’s claims in the writ of summons has (sic) nothing to do with issuance of letter of administration. Even the interim order of injunction granted by this honourable court on 10/5/99 only restrained the original defendants from selling the property or disturbing the peaceable enjoyment of the applicant on the property the subject matter of this suit. There is no restriction on the respondents in obtaining letter of administration in respect of the property, even though the applicant is aware of the fact relating to the sealing of the letter of administration as she entered caveat through her counsel, Deji Gbadeyan, Esq. on 13/8/98 (a period of nearly 10 months before the interim injunction was issued by the court and a period of 5 days before the writ in this suit was filed). It was this caveat filed on 13/8/98. (See exhibit “B” attached to the applicant (sic) application dated 6/5/99 and filed on 7/5/99.”

Going further at pages 104 and 105 of the record, the learned trial Judge held as follows:

“The property in dispute between the parties in this case is 1 storey building situate at 12 Peter Tokula Street, G.R.A. Ilorin and premises and properties of Ajibike Memorial Nursery and Primary School along Airport

Road, Ilorin which the applicant prays the court to make an order prohibiting the respondents from selling as well as an order prohibiting the respondents from disturbing the applicants peaceable use and enjoyment of the 1 storey building above referred. It has not been alleged that the respondents has (sic) sold the said property in dispute rather the contention of the applicant is that the 2nd – 4th defendants names be struck out of the suit because they were appointed administrators and administratrix during the pendency of the suit. It is to be noted that the issue of improper appointment of the 2nd – 4th respondents is not one of the relief (sic) sought in the writ of summons … In the circumstance of the above, I cannot see how the doctrine of lis pendens apply to this matter…”

I am of the firm view that the above findings and holding by the learned trial Judge are well supported by the facts and circumstances of the case as well as the law applicable thereto. That being the case, I hold the view that the learned trial Judge is right in his findings and holding on this point. I wonder if administrators and administratrix of an estate of a deceased are said not to be competent parties to an action involving dispute regarding property forming part of that estate; then who would be? Granted that the administrators obtained the letters of administration after the institution of the action and service of the processes on them, there is evidence that the processes did not just start and end on 28/6/99 when the grant was resealed in Kwara State but much earlier and the appellant did file a caveat against the resealing but lost out. It follows that with the disposal of the caveat, there was no longer any legal impediment to the granting of the letters of administration to the respondents in question particularly as they were not parties to the original action as instituted and even after they were joined, the reliefs against them do not ask that the letters of administration be set aside.

In law the title of an administrator to the property comprised in the estate relates back to the time of death of the intestate. See the case of Adeniyi Jones v. Martins (1943) 9 WACA 100 at 102 per Petrides CJ, Gold Coast where it was held in effect that where letters of administration have been granted, the administrator derives his authority under the grant and the property of the deceased does not vest in him until such grant. However, the appellant has nothing to fear since she has asked for an order prohibiting the respondents from selling the property in issue etc and there is no evidence that the respondents intend to dispose of the property while the suit pends, the appellant has nothing to fear. If the appellant’s interest is to safeguard the property in dispute then common sense demands that the respondents as administrators of the estate remain in the suit pending its determination rather then striking out their names therefrom.

In any event, the appellant has not referred this court to a single authority which decides that where there is a pending action in respect of a property of a deceased who died intestate no letters of administration should be granted in respect of the estate particularly where there is no caveat against the application for letters of administration as in this case.

I am of the view that issue No.1 be and is hereby resolved in favour of the respondents.

On issue No.2, the learned counsel for the appellant submitted that the application of the appellant to have the names of 2nd – 4th respondents struck out for having been appointed administrators during the pendency of the action is not in abuse of court process because it has to do with the jurisdiction of the court, which can be raised at any stage of the proceedings relying on Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266 at 269.

That an application aimed at removing improper parties which constitute a cog to the exercise of the jurisdiction of the court cannot be said to be abuse of court process and urged the court to resolve the issue in favour of the appellant and allow the appeal.

On his part, learned counsel for the respondent submitted that the learned trial Judge is correct in holding that the application of the appellant constitute an abuse of court process in view of the facts that it was the appellant who applied for the 2nd – 4th respondents to be made parties in the case and gave reasons for so doing. He submitted that the application was not made bona fide relying on Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, (1992) 11-12 SCNJ 26 to 48; Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126, (1993) 2 SCNJ 90 at 102; Amaefule v. State (1988) 2 NWLR (Pt.75) 156 at 172.

That the respondent sought to be struck out are necessary parties to the action having regards to the pleadings and urged the court to affirm the decision of the lower court.

It is not in dispute that the 2nd – 4th respondents whom the appellant now want to be struck out of the suit were made parties thereto upon an application by the appellant. The application which was filed on 21/6/99 prayed the court for the following reliefs:

“(i) An order of court granting leave to amend the capacity in which the plaintiff earlier sued to now sue as next friend of her two children i.e. Tosin and Tolani Ayorinde who are both minors.

(ii) An order of court joining Tosin Ayorinde, Nike Ayorinde and Michael Kehinde as new 2nd, 3rd and 4th defendants respectively.

(iii) An order of court striking out the names of the old 2nd, 3rd and 4th defendants from this suit.

(iv) An order of court granting leave to the applicant to sue the 1st defendant and parties sought to be joined as (administrator/administratrix of the estate of Saka Adekunle Ayorinde, deceased).

(v) An order of court granting leave to the applicant to amend the writ of summons and other court processes to reflect the names and capacity of the parties.”

In paragraphs 6, 7 and 8 of the affidavit in support of that application it was deposed as follows:

“6. That I was also informed by Mrs. F.O. Olasupo of counsel and I verily believe her that the parties sought to be joined are some of the administrator and administratrix of the estate of Saka Ayorinde deceased (the late husband of the applicant herein and by virtue of their capacity they are the ones that can defend this action.

7. That I was also informed by Mrs. F.O. Olasupo and I verily believe her that the 2nd – 4th defendants are no more necessary parties in this suit as administrator and administratrix have now been chosen.
8. That I was also informed by Mrs. F.O. Olasupo and I verily believe her that unless leave of court is obtained, the applicant cannot regularize her position and sue the 1st defendant and parties sought to be joined as the administrators and the administratrix of the estate of Saka Ayorinde (deceased). ” (italics supplied by me).

So there is no doubt whatsoever that as at 21/6/99, when the above facts were deposed to, the appellant knew that the 2nd – 4th respondents had been appointed administrators and administratrix of the estate in question i.e. 21/6/99. However, the application of the appellant was granted and the processes amended accordingly. As found by the learned trial Judge there is no appeal against the ruling brought in the 2nd – 4th respondents into the case. That order therefore still subsists. What the appellant did subsequently is to file the application that gave rise to this appeal. The question is whether, having regards to the facts of the case, the said application can be termed an abuse of court process.

The learned trial Judge held that it is but the appellant is contending that it is not.

An abuse of court process may arise in both a proper and improper use of judicial process in litigation against an opponent to the irritation or annoyance of that opponent and the efficient and effective administration of justice. For instance where the plaintiff institutes multiple actions on the same subject matter against the same parties on the same issue – see Attahiru v. Bagudu (1998) 3 NWLR (Pt. 543) 656 at 665-666; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, (1992) 11 – 12 SCNJ 26 at 48; Okorodudu v. Okorumadu (1977) 3 SC 21 at 32 etc.

We also regard as an abuse of process if a proceeding is in want of bona fide or is frivolous, vexatious and oppressive. In Amaefule v. State (1988) 2 NWLR (Pt. 75) 156 at 177 the Supreme Court stated the position thus:

“An abuse of process of the court is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious and oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. The term abuse of process has an element of malice in it. It has to be a malicious perversion of a regularly issued process civil or criminal for a purpose and to obtain a result not lawfully warranted or properly attainable thereby.”Applying these principles to the facts and circumstances of this case on appeal, I am of the view that the learned trial Judge is right in holding that the action of the appellant in first and foremost applying for an order of court to have the 2nd – 4th respondents joined in the action for being necessary parties which application was granted but turning round later to apply for their names to be struck out on the ground that they are incompetent parties while the original order of joinder subsists, is to say the least an application initiated by the appellant or the use of the process of the court to the annoyance or irritation of the respondents concerned. It is also clearly an act to impede the efficient and effective administration of justice which ought not to be encouraged at all by this court or any court of law for that matter.

That apart, there is the sub-issue as to whether the application before the lower court is competent having regards to the fact that no appeal has been filed against the order joining the 2nd – 4th respondents neither has that order been set aside before the presentation of the application in issue in this appeal.

It is very clear that the appellant, by praying the court to grant the application giving rise to this appeal is in law calling on that court to review its earlier decision granting the joinder which in law the lower court is not competent to do. It is trite law that the High Court has no jurisdiction to sit on appeal or review its previous decision which is the purport of the application of the applicant.

It is the law that where a person has by order of a Judge been made a party to any proceeding that order cannot be reviewed by that Judge or any other Judge of co-ordinate jurisdiction. It is only an appellate court that may do so upon a proper appeal against the order except it can be established to the satisfaction of the court that made the order that it was so done without jurisdiction and therefore a nullity. In a similar case of Onwuka v. Maduka (2002) 18 NWLR (Pt. 799) 586, 11 NSCQR 575 at 583 – 584 the Supreme Court, per Ayoola, JSC in the lead judgment of the court stated the position of the law as follows:

“The question in this appeal bears consideration from a general as well as a particular perspective. The general perspective calls for an application of the general principle of law that a court lacks jurisdiction to set aside its own decision except as permitted by the common law, such as, when the decision is a nullity by reason of a breach of procedure as has occasioned a miscarriage of justice; or, as provided for by the rules, such as, when judgment is given in default or the court is given the power to discharge an order it has made.

Even interlocutory decisions can be final as to what it decides except in cases where the rules permit a court to discharge or review an order it has made. That interlocutory orders stand in the same position as final orders, and cannot be altered except by means of an appeal has been decided as long ago as 1912 in Kelsey v. Doune (1912) 1 K.B. 482 (see 1999 Supreme Court Practice (White Book) 20/11/99). Were the parties to be at liberty, without exceptional circumstances and rules of court so permitting them, to bring before the High Court facts which were not put before it came to a decision and to ask for a review of a prior decision on the basis of those facts, finality of decisions would become uncertain. The power of a court, where such exists, to discharge an order it has previously made or to review its decision is guarded and regulated by express rules … Once an application to strike out the name of a party involves a review of a previous decision and principle applies, and it does not matter that the order prayed for was couched merely as one to strike out the name of a party.”

The facts of that case are that the appellants as plaintiff in the High Court of Anambra State commenced an action against one Ben Maduka (the original defendant) claiming damages for trespass and injunction. On an application made pursuant to Order 3 rule 10 of the High Court Rules, the High Court (Keazor, J.) on 7th June, 1994 added the applicant in the application, Chief Chukwujekwu, Amizu, Okoli and Izundu as defendants in a representative capacity. These persons thus became the 2nd to 5th defendants in the suit. The appellants on 21st July, 1994 applied under Order 3 rule 7 to the High Court for an order “That the 2nd to 5th defendants improperly joined be struck out from this suit”. An objection was raised to the application which was eventually upheld on 13th December, 1995 by another Judge of co-ordinate jurisdiction. The appellants appealed to the Court of Appeal and lost and upon further appeal to the Supreme Court, the appellants still lost on the grounds reproduced supra amongst others.

It is therefore my considered view that in whatever angle one looks at this appeal, the irresistible conclusion is that it lacks merits and in accordingly dismissed.

The ruling of Hon. Justice A. A. Adebara delivered in suit No. KWS/129/98 on 5th April, 2001 is hereby affirmed. I assess and fix the sum of N5, 000.00 as cost in favour of the respondents.

Appeal dismissed.

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Other Citations: (2003)LCN/1360(CA)