Mrs. Sinmisola Carew V. Mrs. Iyabo Omolara Oguntokun & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C.

The appellant initiated a court proceeding against the respondents by way of originating summons, seeking the determination of the following question:-

“1. Whether the executors and executrix, i.e; the 1st to 3rd respondents of the Will of Late Alhaja Adijatu Ayoola Balogun, have a right to refuse to pay probate and Solicitors fees and expenses, from the available funds in Afribank PLC, one of the deceased bankers or from any of her Bankers.

RELIEFS SOUGHT

i. An order that the Probate Fees of N8,493,286,000 be paid to the Probate Registrar from the N17,008,082.82 standing to the credit of late Alhaja Adijatu Ayoola Balogun (deceased) in her account with the 4th respondent, the Afiibank Issa Williams (Branch), Lagos.

ii. An order that the applicant solicitors fees of N8,000,000.00 and the valuation fees of N1,300,000.00 for their services for the issuance of the grant of Probate of the deceased’s WILL, be paid to the applicant from the deceased account with the 4th respondent.”

An affidavit in support of the originating summons was filed, and exhibited thereon are documents related to the claim. The 2nd respondent thereafter filed a motion on notice for:-

“1. AN ORDER setting aside the issue and service of the Originating Summons caused to be issued and served by the Applicant in this suit.

OR ALTERNATIVELY

AN ORDER allowing amendments to be made and ORDER pleadings in this case.

GROUNDS OF THE APPLICATION

1. The nature of the claim in this case is not such that could be determined on an Originating Summons.
2. The claim of the Applicant involves more than the construction of the WILL of the Deceased testatrix and (ii) the contract of the applicant.
3. There is involved apparently a substantial dispute of facts.”

The 2nd respondent also swore to a counter affidavit to the Originating summons, exhibiting certain documents. The learned counsel for the applicant moved the motion and the learned trial judge considered all the submissions and at the end of the day dismissed the application after finding as follows:-

“I have taken time to read the affidavit in support of the Originating Summons and the counter affidavit deposed to by the second Defendant. I am of the opinion that the conflicts which are said to be in the two affidavits are narrow, insignificant, flimsy and relate to irrelevant issues, some of the so called conflicts are alien to the issues placed before the court and are not sufficiently material to the case to justify pleadings being ordered.

It is my judgment that the conflicts in the two affidavits are certainly not irreconcilable. Besides there are documents attached to the two affidavits which can be used to determine which of the conflictions versions of the affidavits is true.”