IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON THURSDAY, THE 4TH DAY OF APRIL, 2024
BEFORE THEIR LORDSHIPS:
JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
PAUL AHMED BASSI JUSTICE, COURT OF APPEAL
APPEAL NO. CA/LAG/CV/219/2019
BETWEEN:
AND
(Administrator & Administratrix of the (CLAIMANTS)
Estate of Late Alhaji A.W. Elias)
(For themselves and on behalf of
Kudoro Family of Ojodu Family) RESPONDENTS
(For themselves and on behalf of Olofin
Of Isheri Chieftaincy Family)
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
Before the High Court of Lagos State, sitting in Ikeja, the 1st and 2nd Respondents, as Administrator and Administratrix of the Estate of Late Alhaji A.W. Elias, commenced an action against the Appellants and the 3rd, 4th, 5th and 6th Respondents claiming declaration that they are the legal owners of the parcel of land situate at No. 39, Budland Road, Akinyode, Ojodu, Lagos State, belonging to the late A.W. Elias, and that the entry of said land by the Appellants and the 3rd 4th, 5th and 6th Respondents amounts to trespass.
Upon being served with the Writ of Summons and Statement of Claim, the 1st, 2nd and 3rd Defendants, who are now the Appellants, challenged the competence of the Claimants to institute the action by filing a Preliminary Objection. The grounds upon which the objection was predicated as couched at pages 8 & 9 of the Record of Appeal are that –
In the said judgment of Hon. Justice L.A.F. Oluyemi, attached to the affidavit in support of the Preliminary Objection as Exhibit A, where the 1st and 2nd Respondents were Defendants, the Court ordered, inter alia, that the defendants shall commence the process of winding up this Estate by completing the distribution of the properties of this Estate commenced in 1990 and in line with the distribution pattern adopted in 1990, and that the process of winding up the Estate shall be concluded on or by 31st December 2016.
The Suit, subject matter of this appeal was filed in 2014 by the same persons who were ordered to conclude the winding up of the Estate by 31st December, 2016, hence the contention of the Appellants before the lower Court that the 1st and 2nd Respondents lacked the locus standi to institute the action, having been stripped of their capacity as Administrator and Administratrix by operation of that judgment.
At the conclusion of hearing of the Preliminary Objection, the trial High Court (Lower Court) ruled on 15/01/2019 at page 57 of the Record, thus:
There is nothing to show that the judgement of my Brother delivered in 2015 has been enforced to give effect to it.
In the circumstances, until the Judgment is given effect to, it remains the Judgment and nothing more at this point and in the light of the fact that the 1st Claimant is also the Head of the family, the court cannot shut its eyes to the fact that he wears two caps in respect of the specific claim before the court.
I find that as the head of the family, the Claimant and deponent is a person interested in the Estate, who has a right to sue to protect the Estate from being dissipated or wasted.
Dissatisfied with the above-quoted finding of the lower Court, the Appellants have approached this Court to ventilate their grievance by filing a Notice of Appeal, anchored on four (4) grounds of appeal dated and filed on 28/01/2019.
While the 1st and 2nd Respondents transmitted Additional Record of Appeal which was deemed on 18/01/2022, the Appellants transmitted Further Additional Record of Appeal, deemed properly compiled and transmitted on 25/02/2019.
Appellants’ Brief of Argument filed on 28/02/2019 was settled by Adewale Lawal, who, on 16/01/2024, when the appeal came up for hearing, adopted same and urged the Court to allow the appeal. Appellants’ counsel neither referred to nor adopted the Appellants’ Reply Brief filed on 14/08/2019. The said Reply Brief is therefore deemed abandoned.
The 1st and 2nd Respondents’ Brief of Argument filed on 17/05/2019 was withdrawn and struck out and in its place, the 1st and 2nd Respondents’ Brief of Argument refiled on 05/06/2023, on the order of Court, was adopted by T.A. Dairo, who urged the Court to dismiss the appeal. Like the case with the Appellants’ counsel, learned counsel for the 1st and 2nd Respondents, who had file a Notice of Preliminary Objection on 06/05/2019 and argued same in his Brief of Argument, abandoned the said Preliminary Objection by not referring to same during the hearing of the appeal.
The 3rd – 6th Respondents did not file Brief of Argument in this appeal.
Appellants’ counsel nominated three issues for determination, thus:
On his part, learned counsel for the 1st and 2nd Respondents formulated two issues for determination –
In my considered view, only a sole issue arose for the determination of this appeal, which I frame as follows:
Whether, in view of the judgment of OLUYEMI, J. in Suit No. LD/482/2011, and the amended capacity of the 1st and 2nd Respondents, the lower Court was right in holding that the 1st and 2nd Respondents have locus standi to institute the action, the subject matter of this appeal.
Appellants’ submissions are essentially that Exhibit A annexed to the preliminary objection being a subsisting judgment of Court must be obeyed and given effect to by the lower Court and that it was wrong for the lower Court to hold that Exhibit A remained just a judgment, having not been given effect to. Appellants’ counsel also faulted the lower Court’s reliance on fresh facts adduced in the counter-affidavit of the 1st and 2nd Respondents and its reliance on same to give them locus standi and or capacity to continue this suit. It was the further argument of the Appellants that in view of the judgment in Exhibit A, which ordered the 1st and 2nd Respondents to wind up their Administration of the Estate of Late A.W. Elias by 31st December 2016, they no longer have the locus standi to institute the action giving rise to this appeal and that the lower Court owe a duty to give effect to the judgment in Exhibit A.
The position of the 1st and 2nd Respondents, on the other hand, is that apart from the Ruling on the Appellants’ Preliminary Objection dated 15/01/2019, the lower Court also granted the application of the 1st and 2nd Respondents for leave to amend the capacity in which they sued, on the same date, pursuant to their motion on notice dated 29/10/2018. The new capacity of the 1st and 2nd Respondents, as per the Ruling of the lower Court at pages 85-86 of the Additional Record of Appeal, and as exhibited at page 79 of the Additional Record, reads: “Administrator and Administratrix of the Estate of Late Alhaji A.W. Elias for themselves and as Head and Principal Members of the family of Late Alhaji A.W. Elias.” Counsel for the 1st and 2nd Respondents submitted that in view of this Ruling, the 1st and 2nd Respondents are no longer prosecuting the action only as Administrator and Administratrix of the Estate, rather, they are prosecuting the Suit in dual capacity, also as Head and Principal Members of the family of the Late Alhaji A.W. Elias. He urged the Court to hold that the lower Court was right when it held that as principal members of their family, the 1st and 2nd Respondents have the locus standi to sue to protect the family’s interest in the Estate.
RESOLUTION OF THE APPEAL
This appeal revolves around the effect and/or the interpretation to be placed on the judgment of L.A.F. Oluyemi, J. in Suit No. LD/482/11, dated 30/06/2015 wherein the 1st and 2nd Respondents, who were the Defendants in that case, were ordered to commence the process of winding up the Estate of Late Alhaji A.W. Elias and conclude same by 31st December, 2016; vis-à-vis the Ruling of the lower Court in the suit leading to this appeal, i.e., Suit No. LD/8173/2014, in which the capacity of the 1st and 2nd Respondents as Administrator and Administratrix of the Estate of Late Alhaji A.W. Elias was amended to include their capacity as Head and Principal members of the family of Late Alhaji A.W. Elias. Let it be on record that the status of the 1st and 2nd Respondents as Administrator and Administratrix of the Estate of Late Alhaji A.W. Elias, is not in dispute between the parties to this appeal.
The Suit, subject matter of this appeal was commenced in 2014, hence the Suit No. LD/8173/2014. Therefore, as at 30/06/2015 when Oluyemi, J. ordered the 1st and 2nd Respondents in Suit No. LD/482/11 to commence the process of winding up the Estate and conclude by 31st December, 2016, the Suit leading to this appeal was pending and has not been concluded up till now. It is also a known fact that the 1st and 2nd Respondents do not have the power to compel the Courts to conclude all pending matters pertaining to the Estate of Late Alhaji A.W. Elias before the 31st December, 2016, to enable them comply with the order of Oluyemi, J. No Litigant possess the power to compel a Court to hear and determine his matter before a certain time frame. Bearing in mind that the suit was initiated by the 1st and 2nd Respondents to recover land which forms part of the Estate of Late Alhaji A.W. Elias, it becomes practically impossible to wind up the Estate while the suit to recover part of the Estate was/is still pending in Court. That was the wisdom behind the application of the 1st and 2nd Respondents to amend the status in which they were suing. That was also the wisdom of the lower Court, when, in granting the application for amendment of the Writ of Summons and Statement of Claim, it stated:
I have examined the facts against the background of the Probate rules that deal with Administration of Estates as well as the Law, and I find that the Claimants who are principal members of their family can sue to protect the family's interest in the Estate, quite apart from being Administrators against whom Judgment may be enforced against. The truth of the matter is that each case is treated based on its peculiar circumstances. In this case, i find no reason why an amendment should not be granted as the inconvenience to the 1st - 3rd is one that can be compensated in cost. I find merit in the Application to amend. The prayer to amend is granted in terms proposed.
This Ruling is quite distinct from the Ruling on the preliminary objection, which is now on appeal. There was no appeal against the above quoted Ruling which was delivered on 15/01/2019, the same date the Ruling appealed against was delivered. The implication is that the Appellants have accepted the Ruling of the lower Court which granted the 1st and 2nd Respondents leave to amend the status in which they sued the Appellants. With the amendment of the status of the 1st and 2nd Respondents, the Appellants’ appeal has, more or less, becomes academic, as the Claimants/1st and 2nd Respondents have, by virtue of the un-appealed Ruling, possessed the requisite standing to sue as Head and Principal Members of the Family of Late Alhaji A.W. Elias in order to protect the family property allegedly trespassed into by the Appellants and the 3rd - 6th Respondents. The effect of the application for amendment of the capacity of the 1st and 2nd Respondents, which was taken the same date with the preliminary objection, was to short-circuit the preliminary objection of the Appellants, but the Appellants failed to realize that. It was the Appellants’ non-realization of the effect of the application for amendment and the Ruling rendered thereon that made them not to appeal against the said Ruling, which remains binding on them.
Ultimately, the sole issue formulated ought to be and is hereby resolved against the Appellant. The appeal lacks merit and is hereby dismissed.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Adewale Lawal for the Appellants
T.A. Dairo for the 1st and 2nd Respondents
