Rufai Kekereogun V. Alimi H. Oshodi (1971)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C. 

The appellants were the defendants in the Lagos High Court (suit no. M/74/66). The respondent who was the plaintiff endorsed his writ as follows:

“1. The plaintiff’s claim against the defendants is for a declaration that he together with any or all of the defendants are entitled to administer the estate of the deceased Yesufu Akanbi Kekereogun.

2. Alternatively that the defendants be restrained from administering the estate of the late Yesufu Akanbi Kekereogun to the exclusion of the plaintiff.”

The facts are fairly simple. The plaintiff is a first cousin of the deceased, Yesufu Akanbi Kekereogun, who died at Jeddah on the 28th April, 1965, whilst on pilgrimage to Mecca. The 1st, 2nd and 3rd defendants are half brothers of the deceased. On the 8th June, 1965, the plaintiff applied to the probate register for a grant of letters of administration jointly to both the 1st defendant and himself to enable them to administer the estate of the deceased, and on the 15th February, 1966, the defendants lodged a caveat against the said application. The plaintiff then warned the caveators by filing and causing to be served on them an affidavit of interest. After the defendants had entered an appearance to the warning, the plaintiff took out the writ of summons in this case. In his statement of claim, the plaintiff avers, inter alia, that:

“8. The deceased during his lifetime was a contractor and in his business dealing the plaintiff was an associate.

9. The deceased owned 28A, Adams Street but as the building was not of sufficient value the plaintiff who is the owner of 37, Adams Street mortgaged his own property to the African Continental Bank Limited in 1962 to secure an overdraft of 290Pounds to the deceased.
10. The plaintiff apart from the mortgage of his property was also a surety on account of the overdraft referred to in paragraph 9 supra.
11. The deceased had not repaid the said overdraft in full prior to his death on the 26th April, 1965.
12. The balance outstanding in the account of the deceased with the African Continental Bank Limited as on the 25th May, 1965 was 1,217Pounds:5s:10d. And concluded by stating that “in view of paragraphs 8, 9, 10, 11 and 12 above, he is entitled to join in the administration of the estate of the deceased”.

The answers of the defendants to these averments are contained in paragraphs 3 to 7 of their statement of defence and are as follows:

“3. The defendants deny emphatically paragraphs 5, and 10 of the plaintiff’s statement of claim and maintain that the plaintiff without the knowledge and consent of the defendants made application in his own name and that of the 1st defendant and when the 1st defendant knew about it he (the 1st defendant) vehemently opposed this.

4. The defendants admit that the deceased was a contractor during his lifetime but maintain that the plaintiff was never a business associate of the deceased.
5. The defendants emphatically deny the statement of the plaintiff relating to the mortgage of 37, Adam Street, Lagos to the African Continental Bank in 1962 to secure an overdraft for the deceased.
6. The defendant avers that the property No. 37, Adam Street, Lagos belonging to the plaintiff was about to be sold by the National Bank and the mortgage was later transferred to the African Continental Bank by the assistance of the deceased, and this property i.e. 37, Adam Street, Lagos was not mortgaged by the plaintiff owner to secure an overdraft for the deceased but the plaintiff owner mortgaged the property entirely on his own initiative.
7. The defendants maintain that the plaintiff had no right whatsoever to join in the administration and that the proper persons to administer the estate are the defendants. WHEREUPON the defendants maintain that the defendants are the rightful persons to administer the estate of the deceased.”

In the course of his reserved judgment, the learned trial judge made the following findings of facts:

“The plaintiff, Alimi Hamza Oshodi and the deceased Yesufu Akanbi Kekereogun were each the son of two sisters of the full blood, both now deceased. “The deceased died intestate. He was afflicted with the bane of childnesses as he left neither a child nor a wife. He, however, left a house and landed property, 28a Adams Street, Lagos which he acquired by his own able efforts. The first three defendants were born of the same father as the deceased and the 4th defendant was the half brother on the father side of the mother of the deceased.”

After expressing the view that:

“The plaintiff’s claim is quite strong so as to include him among the administrators while on the other hand the defendant’s refusal to have him among the administrators is unreasonable and is such on the balance of relationship, that the court cannot support it.”

He entered judgment for the plaintiff and ordered:

(1) that letters of administration and the estate of the deceased be granted to the plaintiff and the 3rd defendant; and

(2) That the 1st, 2nd and 4th defendants be restrained from intermeddling with the estate.