The Executors Of The Estate Of The Deceased Madam Cathrin Efejuku & Anor V. MR. Peter James Aziza & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The 1st Respondent as Claimant instituted an action before the lower court by a writ of summons dated January 30, 2009 claiming the following reliefs in the Amended Statement of Claim at pages 185 -187 of the records:

1. “A declaration that the document dated the 16th day of April 2008 and alleged to have been written and executed by the late Fred Egbe of 4-6 Alexander Road, Ikoyi, Lagos was in fact not made by him.
2. Even if(which is not admitted) the said document was in fact made by the said Fred Egbe, the said document is invalid, null and void as to create a trust or constitute a will in respect of the Estate of the said Fred Egbe.
3. A declaration that the 1st -4th Defendants cannot act as Executors of the Estate of the deceased pursuant to the document dated 16th April 2008 as they were not in fact appointed Executors under the said document.
4. A declaration that the 1st -4th Defendants cannot act as Trustees of Fred Egbe Foundation as neither a Trust nor a Foundation was legally established by the deceased.
5. In the further alternative, even if claims 1,2,3 and 4 are resolved against the Claimant, a declaration that the said document only vests the 1st -4th Defendants with the power to dispose of the interest specifically granted to them with powers so to do and that all other assets vested in the 1st -4th Defendants as Trustees of the Fred Egbe Foundation but not specifically disposed of, will form part of the residuary Estate of the Deceased to be distributed to the Claimant and the 5th Defendant.
6. A declaration that Mr. Fred Egbe of 4 -6 Alexander Avenue, Ikoyi -Lagos who died in London on the 27th of May 2008 died intestate.
7. A declaration that the administration and distribution of the Estate of the late Fred Egbe is governed by the Administration of Estates Law of Lagos State and or its equivalent law under the Laws of Delta State.
8. A declaration that only the Claimant and the 7th Defendant are entitled under the provisions of the Law referred to in claim 7 above to succeed to the Estate of the said Fred Egbe.
9. A declaration that the 5th and 6th Defendants are not qualified and or competent to act as Administratrix of the Estate of Fred Egbe for reasons given in the Statement of Claim amongst others.
10. An order of court appointing the Claimant and the 7th Defendant as Administrator/Administratrix of the Estate of Fred Egbe.
11. An order of perpetual injunction restraining the defendants from interfering with and or intermeddling with the Estate of the late Fred Egbe.
12. An order directing the Defendants and more particularly the 6th Defendant to render an account of the properties and assets of the deceased in London, South Africa, Lagos, Warri and anywhere else in respect of which she has taken over and or disposed of since the death of the deceased and to pay over to the Administrators of the Estate of the deceased as are duly appointed by the court.
13. The sum of N25,000,0000.00 (Twenty Five Million Naira) or any amount as may be determined by this Honourable Court being the cost incurred in the prosecution of this action inclusive of legal fees.”

The 2nd to 5th Respondents who were the 1st to 4th Defendants at the trial court were described as relatives and children of friends of the deceased who caused a purported Will of the deceased to be read and were ready to apply for probate. The 1st Appellant, that is the 5th Defendant, was the 94 years old mother of the deceased while the 2nd Appellant, that is the 6th Defendant, is the half-sister of the deceased. The 7th Defendant now 6th Respondent in this appeal is the daughter and only certain surviving child of the deceased. The 1st Appellant died in the course of this appeal and was substituted by Executors of her Estate by order of the court made 21st May 2012.

The 1st Respondent upon filing the action also filed a Motion on Notice for interlocutory injunction wherein he asked for the following orders:

1. “An order of interlocutory injunction restraining the Defendants either by themselves, their agents and or privies from intermeddling with the Estate of the late Frederick Egbe pending the determination of this suit.
2. An order directing the Defendants particularly the 6th Defendant to file an account within 7 (seven) days of the making of this order of properties and assets of the deceased in Nigeria, London, South Africa or any other country which has come into her possession since the death of the deceased.
3. An order appointing the following to be the Interim Administrators of the Estate of the Deceased with powers to manage the said Estate pending the determination of this suit-

a. Dr. Eyimofe Atake SAN

b. Mr. J.B. Okele (Chartered Accountant and former Partner, Coopers and Lybrand)

c. Alhaji A.O. Shote (Principal Partner Shote & Co., Firm of Estate Surveyors)

4. An order directing that the law firm of the deceased, Fred Egbe & Co., shut down by the 6th Defendant be reopened immediately and that the management of the said firm be under the control of Interim Administrators appointed by the Court.
5. An order directing that all assets covered by prayer 2 above be handed over to persons appointed in prayer 3 above.
6. And for such order or further orders as this Honourable Court may deem fit to make in the circumstances.”

In the Affidavit in Support of the Motion sworn to by Etete Emmanuel he deposed inter alia as follows:

1. That I am counsel in the Chambers of Prof. A.B. Kasunmu SAN briefed by the Claimant in this action and I have the Claimant’s authority to depose to this affidavit.
2. That some of the facts deposed to in this affidavit are based on information given to Prof. A.B. Kasunmu SAN and myself, by the claimant, and his mother -Miss Adetoun Adesunloye which information I verily believe to be true.
3. That the other facts deposed to in this affidavit are derived from searches conducted by me at Corporate Affairs Commission in Abuja, the Land Registry in Lagos and from information given to me by the Claimant’s Solicitors and Agents in London and South Africa which information I verily believe to be true.
4. That based on the information derived from the facts stated in paragraphs 2 and 3 of this affidavit, the Claimant’s Statement of Claim has been settled and filed in this court. Now shown to me and marked as Exhibit ABK1 is a copy of the said Statement of Claim.
5. That I adopt as part of my affidavit all averments of facts as contained in the Statement of Claim.
6. That the deceased Mr. Fred Egbe died in London on the 27th of May 2008, and was at the time of his death living at 8 Hill Court, 34 Highgate Street, London.
7. That I am informed by Prof. A.B. Kasunmu SAN and I verily believe him that the keys to the deceased’s house in London were handed over to the 5th Defendant by a friend of the deceased (Mr. Peter Thomas) who also gave the 6th Defendant money with instructions to change the keys to the house in order to secure same.
8. That instead of doing this, the 6th Defendant used the opportunity of being in possession of the keys to enter the house and remove valuable materials from the house and the safe kept by the deceased.
9. That the movements of the 6th Defendant in and out of the house, was captured by CCTV camera installed in the block and also witnessed by the Porter and Housekeeper of the residence of the deceased.
10. That on one of the occasions when she went into the house of the deceased, the 6th Defendant went with a gentleman whom she introduced to the Porter as her son to remove valuable paintings and other movable items packed in boxes from the house.
11. That the paintings removed are those mentioned on page 2 of the document said to have been made by the deceased on 16th April 2008. Now shown to me and marked Exhibit ABK2 is a letter written by Nichollos (a firm of investigators) to Bower Cotton Khaitan, Solicitors acting for the Claimant confirming the removal of the paintings and other items by the 6th Defendant.
12. That I am informed by those who are close to the deceased and have seen the paintings and knew when they were bought that the value of the paintings so removed are in excess of (?6,000,000.00) Six Million Pounds.
13. That it was on one of the visits to the London house of the deceased that the 6th Defendant and her son sold the Mercedes car in the house for about (?85,000.00) Eighty Five Thousand Pounds.
14. That the 6th Defendant has neither made any inventory of all the items removed by her nor has she given an account of all the money she removed from the houses of the deceased.
15. That the properties at 8 Hill Court, 34 Hillgate Street, London is not registered in the name of the deceased but in the name of one of the companies in which he is a Director and Shareholder i.e. Ghorodemi Limited. Now shown to me and marked Exhibit ABK3 is a copy of a search conducted at the Lands Registry in London.
16. That Ghorodemi Limited is a Property Investment Company incorporated in 1994 and the Directors and Shareholders of the Company as at when the deceased died in May 2008 are as follows:

a. Directors (1) Mr. Fred Egbe (Now deceased)

(2) Madam Cathrin Efejuku (5th Defendant)

b. Shareholders (1) Mr. Fred Egbe (Now deceased)

(2) Madam Cathrin Efejuku (5th Defendant)

17. That the 6th Defendant is now making an effort to sell the property in London by getting herself appointed by the 5th Defendant as a Director of Ghorodemi Limited knowing fully well that the resolution passed appointing her as Director of the Company is irregular, illegal, null and void. Now shown to me and marked Exhibits ABK4 and ABK5 are documents and letters in proof of this averment.
18. That in addition to the above, the 6th Defendant is also working in concert with one Dr. Fred Esiri who went to South Africa and attempted to take over the deceased property there and to whom the 7th Defendant was said to have given a power of attorney to represent her interest in the Estate of the deceased. The said Power of Attorney is now shown to me and marked Exhibit ABK6.
19. That on the 19th of September 2008, my colleague- Miss T.A Adesanmi was present in the office of Counsel for the 1st -4th Defendants at Festival Road, Victoria Island when the document dated 16th April 2008 alleged to be the Will of the deceased was read and Counsel Notes as recorded by her on that day is now shown to me and marked Exhibit ABK7.

FRED EGBE & CO

20. The deceased was at the time of his death living in Nigeria at 4 -6 Alexander Road, Ikoyi, Lagos and practicing as a Legal Practitioner under the name and style of Fred Egbe & Co at Itiku House No. 28 -30 Macarthy Street, Lagos.
21. That there are some Legal Practitioners and other employees working with the deceased in Fred Egbe & Co., serving some corporate and non-corporate clients.
22. Immediately on the death of the deceased and without any authority from anyone, the 6th Defendant went into the office of the deceased at Itiku House and removed all valuables and money from his office and proceeded thereafter to close the Chambers which Chambers has not functioned since then.

OTHER ASSETS OF THE DECEASED