Onayemi V Okunubi (1965)
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The late Emmanuel Musuru Okunubi left a will, in which he made various specific dispositions with a final bequest and devise to all his children in equal shares of the residue both real and personal, and he appointed three executors, of whom the remaining two were sued by the plaintiffs (the above respondents, who are two of the beneficiaries). (Caxton-Martins Ag. J. (as he was at the time) gave judgment as follows –
“There will be judgment for plaintiffs for an account of the estate of the late Emmanuel Musuru Okunubl and also for the appointment of 1st plaintiff Olatunji Okunubi as an administrator of the said estate; his appointment as such an administrator is fully justified on the ground that since the defendants obtained probate some ten years ago, no account was filed by them; this is a gross dereliction of one of the most important duties and evidence of gross negligence of that duty on the part of the defendants.
The order of the court is that the account for the whole period be filed forthwith and also that the appointment of 1st plaintiff as administrator is made forthwith save that such appointment will not make him liable as an accounting party in respect of the period covered by the administration of the estate by the defendants since Probate was granted.”
It is only one of the executors who has appealed, and only his name is given above. His first ground of appeal is that –
(a) ‘The learned trial judge erred in law in giving judgment for the plaintiffs when all the beneficiaries were not before him.”
In support of it the appellant’s learned counsel referred to Schandort and Anor. v. Holm and Anor. 9 W.A.C.A. 173, in which the Court of Appeal quoted the following passages from Daniell’s Chancery Practice 6th Ed., Vol.1:
From p. 151. “Any person coming to the court for relief should bring before the court all such persons as are necessary to enable it to do complete justice; and should so far bind the rights of all persons interested in the subject as to render the performance of the judgment which he claims safe to the party called upon to perform it, by preventing his being sued or molested again respecting the same matter, and should for this purpose, subject to the provisions mentioned in the first section of this chapter, bring before the court, either as co-plaintiffs with himself, or as defendants, or by serving them with notice of the judgment, all persons so circumstanced that, unless their rights were bound by the judgment of the court, they might cause future molestation or inconvenience to the party against whom the relief was sought.”
From p. 166. ‘The rule which requires that all persons having concurrent interests with the plaintiff should be parties to the action applies to all cases in which an account is sought against a defendant. One person cannot bring an action against an accounting party without bringing before the court all persons who are interested in having the account taken, or in the result of it; otherwise the defendant might be harassed by as many actions as there are parties interested in the account.”
The judgment states (at p.174) that, although there were other children the executors did not contest liability to account to the two children who sued them, and goes on to quote those passages from Daniell to show that the two plaintiffs had a duty to bring into the suit the other children. That remark, though obiter in the case, Is a useful reminder of the duty which a plaintiff has; but we do not think the court in Schandorf meant to say that if the plaintiff failed in that duty his action ought to fail. It is clear from the notes under Order 16, r. 11, of the English Rules of the Supreme Court in the White Book for 1963 (“Application of Rules – Misjoinder, Nonjoinder’, at p.345) that nonjoinder cannot defeat a claim. It rests rather with the defendant to raise, as early as possible, the point that not all interested persons are before the court, so that the court may direct the plaintiff to give them notice and have everybody concerned as a party at the trial: see Sheehan v. Great Eastern Railway Co. (1880) 16 Ch.D. 59, at p. 64.
In the present case neither of the executors raised the point either on the return day of the writ or in their pleadings; nor did they move the trial court at any time in that behalf: It was only in counsel’s concluding address that the point was first taken on the appellant’s behalf, and the trial judge did well to disregard the argument that the action must fail. If it was otherwise right to give the plaintiffs judgment, they were entitled to have judgment. It appears from the passage at page 151 of Daniel’s Chancery Practice that the plaintiffs can serve others with notice of the judgment, but we are not concerned with that here and shall not expand on it. What we should like to remind trial courts is that they can of their own motion deal with the need of bringing in others, if it appears to them that there are others who ought to be brought in as interested parties; in this case that need was apparent long before the trial.
The first ground of appeal must fail. The second ground is that –
(b) ‘The learned trial judge erred In law in making the order to join the first plaintiff as an ‘administrator’ when he has no jurisdiction to make any such order.”
It appears from the argument in the court below that in regard to the claim for an order appointing the 1st plaintiff as a personal representative in addition to the two remaining executors, the plaintiffs’ learned counsel relied on section 160(2) of the English Supreme Court of Judicature (Consolidation) Act, 1952, which provides that –
“(2) If there is only one personal representative (not being a trust corporation) then, during the minority of a beneficiary or the subsistence of a life interest and until the estate is fully administered, the Court may, on the application of any person interested or of the guardian, committee or receiver of any such person, appoint one or more personal representatives in addition to the original personal representative in accordance with Probate Rules and Orders.”
Assuming for the moment that the High Court of Lagos can act under that provision, we note that in this case, although there are beneficiaries who are minors, yet there are two executors, not only one, so that provision cannot be used.Whether it can be used at all, when there is only one personal representative, is a nice point of law on which we heard some argument, and it may help hereafter ff we refer briefly to sections 10 and 11 of the High Court of Lagos Ordinance (Cap 80 in the 1958 Laws of the Federation etc. Those sections confer on the High Court of (Lagos within the Federal Territory of Lagos) the jurisdiction and powers of the High Court in England, including (inter alia) “the administration or control of property and persons”. Presumably the jurisdiction and powers meant are those vested in the High Court in England as on 31st December, 1955 when the Ordinance was passed.
We note that section 45(1) of the Interpretation Ordinance (Cap.89) speaks of the statutes of general application that were in force in England on the 1st January, 1900 as being in force in Lagos; but that subsection also has these words, “except in so far as other provision is made by any Federal law”, and it is arguable that other provision has been made on jurisdiction and powers by the High Court of Lagos Ordinance. Like the former Supreme Court, the High Court of Lagos has jurisdiction to control the administration of estates and apparently all the powers of the High Court in England in that behalf as they stood at the end of 1955, including the power conferred by s.160(2) of the English Act of 1925. However, as already stated, the subsection cannot be used because there are two executors in this case.
As regards the English Acts in force before 1900, the Trustee Act, 1893, expressly states in subsection (3) of section 25 that –
“Nothing in this section shall give power to appoint an executor or administrator.” And that, by the way, is repeated in s.41(4) of the Trustee Act, 1925.
Eaton v. Daines  W.N. 32 disclosed a difficulty on the point of time when a trustee could be appointed, and it seems that the Judicial Trustees Act, 1896, was partly designed to get over that difficulty: subsection (1) and (2) of section 1 provide as follows:-
“(1)Where application is made to the court by or on behalf of the person creating or intending to create a trust or by or on behalf of a trustee or beneficiary, the court may, in its discretion, appoint a person (in this Act called a judicial trustee) to be a trustee of that trust, either jointly with any other person or as sole trustee, and, If sufficient cause is shown, in place of all or any existing trustee.
(2) The administration of the property of a deceased person, whether a testator or intestate, shall be a trust, and the executor or administrator a trustee, within the meaning of this Act.”
Thus, the administration of the estate Is turned into a trust, the executor or administrator is assimilated to a trustee, and the court may appoint a judicial trustee at any time.
Mr. Makanju, if we understood him aright, submitted that the High Court could appoint an executor, administrator, or judicial trustee under the act of 1896. There is some confusion of thought in that submission; it seems to arise from the provision in subsection (2), which assimilates an executor or administrator to a trustee; but the submission loses sight of the fact that the court is only enabled to appoint a trustee (called a judicial trustee), and we do not think that there was any Intention in the Act of 1896 to repeal by implication the express provision in s.25(3) of the Act of 1893 (quoted above), that the power to appoint a trustee does not enable the court to appoint an executor or administrator eo nomine – by that name and office. Looking at the judgment in In re Ratcliff  2 Ch. 352, which relates to an application under the 1896 Act, we note that it was for the appointment of a judicial trustee either jointly with Mrs. Ratcliff, the sole executrix, or as sole trustee. It is clear that the court could not appoint the 1 at plaintiff to the office of an administrator of the estate under the Act of 1896. We are not concerned with the question whether the court could have appointed him a trustee under the Act of 1896.
We should also like to note here that subsection (1) of section 1 of the Judicial Trustees Act, 1896 speaks of application being made for the appointment of a trustee, and when any person is minded to apply to the court under that Act he will do well if he looks up precedents or rules on the proper proceeding for making the application. It would be well to find out whether he could bring an action by writ of summons, or whether he ought to apply by originating summons Instituted in the matter of the estate and in the matter of the Act. This procedural point is mentioned because it was glanced at in argument, but it does not arise for determination as in this case the court could not have appointed an administrator under any form of procedure.
There remains grounds (d) and (e), which state that –
(d) The learned trial judge erred in law in holding that the plaintiffs can ask for an account otherwise than in the manner prescribed under Order 48 of the Rules or alternatively by Originating Summons.
(e) The learned judge erred in law in saying that the defendants are guilty of “gross dereliction of one of their most important duties” because they did not file an account since they obtained Probate when there is no obligation upon them by law to file any such account.”
In regard to ground (e) Chief Williams pointed out that Rule 43, sub-rule (1), in Order 48 of the Supreme Court (Civil Procedure) Rules, 1945 (Vol. 10 of the 1948 Laws, p.1 at p.87) was amended in 1952. Originally the subrule read as follows:-
“(I) Every person to whom a grant of probate or letters of administration shall have been made, and every administrator appointed by the court shall, within twelve months from the date of the grant or the order appointing him, file in court the accounts of his administration, and shall thereafter file such further periodic accounts as the court may direct until the completion of the administration.”
In 1952 the words “within twelve months from the date of the grant or the order appointing him” were deleted and replaced by the words “if called upon by the court so to do”. Thus, as the appellant had not been called upon to furnish accounts, there was no dereliction of duty.
As to ground (d) Chief Williams did not submit that accounts could not be asked for by an action: his argument was that the plaintiffs ought to have confined themselves to asking for an account insofar as they were concerned, and if they wanted a complete account they ought to have moved the Probate Registrar to call on the executors for a complete account. The appellant’s learned counsel pointed out that the will devised specific property to one child and another; that the property devised to the 1st plaintiff was transferred to him, and that the property devised to the 2nd plaintiff was offered to him; that the 1st plaintiff was not qualified for higher education under the trust created for it in the will; and that as the plaintiffs were not concerned in the items of property devised to other children, the order for accounts ought not to be for a general account.
Mr. Makanju pointed out that as the plaintiffs were also residuary legatees under the will, and as the administration was not concluded they could ask for a general account.
Chief Williams’ reply was that the plaintiffs had not shown that it was reasonable to ask for an account including the properties specifically devised, and that a general account would cost a good deal of money. He informed the court that there were fifteen beneficiaries mentioned in the will, of whom six were of age and the other nine minors.
An executor has a duty to keep clear and distinct accounts of the property which he is bound to administer; and the High Court has control over the administration of estates. We do not know why the old rule, which required the filing of accounts within twelve months from the grant of probate or letters of administration, was altered in 1952 to read “ if called upon by the court so to do”. It may be thought that where the beneficiaries are of age it may be left to them to look after their interests and come to court, If necessary, to ask for accounts. But when they are minors, it is highly desirable to have accounts filed from time to time; and in this case no accounts have been rendered for over ten years. We venture to say that the probate registrar ought to have called upon the executors to file accounts long ago. We cannot understand why the executor wishes to resist the rendering of accounts, and it seems to us hardly possible to have a true picture of the administration unless the accounts rendered are general and complete.
In this case there were two executors but the executrix asked for leave to withdraw, which was refused on the ground that accounts had not been rendered. She has not appealed from the judgment. In substance k looks as if there is only one active executor. However, the order is against both to render an account of the estate for the whole period – which we take to mean down to the date of judgment – and there is no reason to disturb that order. There may be some cost involved; we leave it to the court below to decide what is the reasonable cost and how it is to be met.
The appeal of the executor Michael O. Onayemi from the judgment of Caxton-Martins Ag. J. dated 29th July, 1963 in the High Court of Lagos, Suit No. 86/63 is allowed to this extent only, namely that the part of the judgment which appoints the 1st plaintiff Olatunji Okunubi as an administrator is set aside, but otherwise the judgment shall stand; the appellant is allowed fifty-five guineas as costs of appeal payable out of the estate, and the respondents are allowed thirty guineas as costs of appeal also payable out of the estate.
Other Citation: (1965) LCN/1275(SC)