MOSUNMOLA IYABOLA FADAYOMI (APPELLANT)

v.

OLUDOLAPO OMONIYI SADIPE & ORS. (RESPONDENT)

(1986) All N.L.R. 466

Division: Supreme Court of Nigeria

Date of Judgment: 25th April, 1986

Case Number: (SC. 16/1985)

Before: Eso, Uwais, Coker, Karibi-whyte, Oputa; JJ.S.C

The appellant is the 3rd plaintiff in this probate action instituted in the High Court of Lagos State for the probate of the Will of Chief Michael Modupe Shadipe who died on 17th July 1979, leaving a Will dated the 25th January, 1979. In the said Will, the four plaintiffs and two others; who have since renounced probate, were appointed Executors and Executrixes of the Will. The defendant is one of the widows and mother of four of the beneficiaries and surviving issues of the deceased. None of the parties dispute the validity of the Will and indeed the four plaintiffs jointly applied for probate of the Will.

The defendant however filed a caveat against the issue of probate because her children claimed as beneficiaries under the Will. The defendant however called for a dismissal of the suit because according to her defence no cause of action was disclosed against her even though she filed a caveat.

However, the present appellant as one of the executrixes appointed by the testator has along with the other plaintiffs jointly applied for probate, but subsequently applied to the trial court that her name should be struck out as she did not instruct the counsel who filed the action. The trial Judge refused the application. Dissatisfied with the ruling, the appellant appealed to the court of appeal which dismissed the appeal. Still not satisfied with the decision of the court of appeal, the appellant has finally appealed to the Supreme Court.

HELD:

(1)     All the plaintiffs, including the appellant have a common interest and have applied for it. It can in the circumstances of the case reasonably be inferred that it was a joint application for the grant of probate of the Will. The present action is part of the general instruction given by all the four executors and executrixes for obtaining the grant. It is unnecessary for the appellant to separately instruct the plaintiffs counsel. The action is a follow up of the application for the grant.

(2)     The defendant in this case was not opposed to the Will but only to the grant to the other three plaintiffs. She is opposed to them because she dislikes them alleging they will not serve the interest of her four children who are beneficiaries under the Will. In the circumstances, it was competent of the trial Judge in exercise of his discretion to grant or refuse to make the order striking out the name of the appellant, who jointly applied for probate along with others. By jointly applying for a grant of probate, the necessary implications is that she was a consenting plaintiff in the probate action against the defendant, a caveator, who opposed the grant. So long as she has not renounced her application for a grant, the trial Judge did not in advisedly exercise his discretion and this Court as an appeal court will therefore not interfere.

Appeal dismissed.

A.A. Akinyemi for the appellant.

C.O.I. Joseph for the 3 respondents.

Miss C.F. Ogundare for the defendant.

Coker, J.S.C.:-This appeal was dismissed on the 27th day of February, 1986 and, as indicated, I now give my reasons.

The Appellant, is the 3rd plaintiff in this probate action. The action was instituted in the High Court of Lagos State for the Probate of the Will of Chief Michael Modupe Sadipe, who died on the 17th July, 1979, leaving Will dated the 20th January, 1979. In the said Will, the four plaintiffs and two others, who have since renounced probate, were appointed Executors and Executrixes of the Will. The defendant is one of the widows and mother of four of the beneficiaries and surviving issues of the deceased. The question whether or not they are minors does not arise. None of the parties dispute the validity of the Will and indeed the four Plaintiffs have jointly applied for probate of the Will.

The defendant, however, filed a caveat against the issue of probate, not because she claimed to be a beneficiary or a person entitled on intestacy of the Estate. She claimed no interest whatsoever in the Will nor is any other Will of the deceased propounded. As could be seen from the statement of defence, her children claimed as beneficiaries under the Will. She however, called for a dismissal of the suit because according to her defence no cause of action was disclosed against her even though she filed a caveat. One therefore wonders why she refused to remove the caveat after being warned.

However, the present appellant as one of the executrixes appointed by the testator has along with the other plaintiffs jointly applied for probate, but subsequently applied to the trial court that her name should be struck out as she did not instruct counsel who filed the action. In her affidavit in support of the application she deposed:-

(2)     "That I was not involved in any decision to institute this action and I never gave instructions to the Counsel representing the other Plaintiffs to institute the present action.

(3)     That the Chambers of Chief Gani Fawehinmi & Co. have always represented my interests in the Estate of the late Michael Modupe Sadipe to which the present action relates.

(5)     That I am an executrix to my later father's Will.

(6)     That it will be in the interest of justice to strike out my name referred to as the 3rd appellant in this suit."

She did not repudiate her instructions to apply for probate jointly with the other three plaintiffs for the grant. The learned trial Judge refused the application. He held inter alia:-

"From paragraphs 2 and 3 of the affidavit in support, it would appear that the reasons for this APPLICATION are that she did not instruct learned Counsel for the Plaintiffs and that her Counsels (sic) are those in the Chambers of Gani Fawehinmi other than these, I cannot find any other reasons either in the affidavit or on the motion paper itself for her application to be struck out of the action as one of the Plaintiffs. . .

"There is nothing, as stated earlier, in the application before me to show the grounds on which she would like her name struck out as one of the Plaintiffs; there is no serious allegation before me, against the other Plaintiffs either; yet both Counsel for the Defendant and her own Counsel implored me to grant the prayers in the 'interest of justice'. . .

"The grant of an application of this nature is in the discretion of the Court and the court can only exercise this discretion if there are sufficient reasons to justify its grant."

"I find no justifiable reasons for acceding to the request of the applicant. I am also of the opinion that her presence is necessary to enable me adjudicate effectively and completely settle all questions raised by the pleading of those involved in the matter."

Dissatisfied with the Ruling, the appellant appealed to the court of appeal, which appeal was dismissed on 10th July 1984. Still not satisfied with the decision of that Court, the appellant has finally appealed to this Court on two grounds, which read:-

"(1)    The Learned Justice of the Court of Appeal erred in law in dismissing the Appeal and affirming the Ruling of the Honourable Mr Justice Y.A.O. Jinadu delivered on Thursday, the 19th day of January, 1984.

PARTICULARS OF ERROR

(1)     A right of action being a constitutional right can only be exercised by the Appellant and no one can force her to exercise same.

(2)     No one can be compelled to be a Plaintiff in any action."

"(2)    The learned Justices of the Court of Appeal erred in law in dismissing the Appeal and not striking out the Appellant's name in the substantive suit.

PARTICULARS OF ERROR

(1)     Whether in probate or in non probate matters, no one can be made a Plaintiff against his or her consent.

(2)     By the application of Order 13 Rule 18 of the High Court of Lagos State (Civil Procedure) rules, the Justices of the Court of Appeal ought to have struck out the name of the Appellant as Plaintiff pursuant to Order 15 Rules 6 and 8 of the English Rules.

(3)     The Appellant did not instruct Plaintiffs' Counsel to act for her and to file on her behalf the pending suit in the lower Court and as such cannot be compelled to take part in the proceedings thereof."

In his brief of argument, Chief Gani Fawehinmi posed the issues involved under three heads, namely:-

(1)     "Whether an Executor or Executrix who has not renounced probate can be made a party to every Probate Action concerning the Estate in respect of which he/she is Executor/Executrix against his/her wish.(2)     If so whether he/she must necessarily be a plaintiff in such a probate action along with other executors/executrixes.

(3)     Whether the right of action of an executor and provided for by the constitution is subject to his right in the Will."

He submits that by virtue of section 16 of the Lagos State High Court Law, the Practice and Procedure of the English Court should apply in probate action in the absence of any specific rules made in that regard by the Chief Judge of the State. And Order 13 Rule of the High Court Rules 1972, provides that in all probate actions, the Rules as to parties shall be followed. He then referred to Order 1 Rule 2, High Court of Lagos Rules which defined: "Probate Actions include actions and other matters relating to grant or recall of Probate or Letters of Administration other than Common Form Business." He further submits that the action relates to the grant of Probate and there is contention as to the rights thereto, therefore the English Rules must apply. Reference was also made to Order 76, rule 3 of the Supreme Court Rules in England.

And finally he submits the following:-

(1)     "That whether in a probate or a non-probate matter, no person can be made a plaintiff against his own wish. Whether a person is a plaintiff to an action can only be determined after a close perusal of the pleadings and a totality of the evidence before the court.

(2)     If a person does not intend to sue or has not authorised any person to sue on his behalf and the defendant to such action does not have any claim against him, then he cannot be a party (and a portion) a Plaintiff to such an action. If he is made a party his name should be struck out."

The case of Matthews Oates v. Mooney (1905) 2 Ch. 460 was cited by Counsel.

The summons in the case was taken out by two of three defendants asking that all the proceedings in the action may be stayed as between one out of three co-plaintiffs and the applicants or that the name of the said plaintiff may be struck out of the record upon the ground that she has compromised the matters in dispute in the action and has revoked the authority of her solicitors to prosecute the action. The Solicitors for the plaintiffs who were retained by her jointly with her co-plaintiffs, were still on record and counsel appeared on their instructions and opposed the application on behalf of all the co-plaintiffs. Swinfen Eady J., held the application was unprecedented and failed.

As a general rule, the submission of learned Counsel is correct, but the facts and circumstances of this case are exceptional. A person may not be joined as a plaintiff without his consent. There must be no conflict between plaintiffs, they must not sever or take inconsistent steps, nor can one co-plaintiff make an application in the action independently of the other. Co-plaintiffs must act and appear at the trial by the same counsel and if separately employed by the co-plaintiffs must act together. But once a person has joined in an action as co-plaintiffs he has no absolute right to withdraw from the action and have his name struck out if he is a necessary party to the action. In a proper case he may apply to have his name struck out as a plaintiff and added as a defendant, subject to the defendant being safe guarded as to costs.

However, the court has a wide discretion depending on the peculiar facts and circumstances of the case and the overall interest of justice. The present proceeding is a probate action. A probate action is defined in Order 76, rule 1(2), R.S.C." as an action for the grant of probate of Will . . . of a deceased person, or for the revocation of such a grant, or for a decree pronouncing for or against the validity of an alleged will, not being an action that is non-contentious or common from business." The validity of the Will for which probate is being sought is undisputed. All the plaintiffs, including the appellant, have a common interest and have applied for it. It can in the circumstances of the case reasonably be inferred that it was a joint application for the grant. The present action is part of the general instruction given by all the four executors and executrixes for obtaining the grant. It is unnecessary for the appellant to separately instruct the plaintiffs' counsel. The action is a follow up of the application for the grant.

Tinuola Abimbola Badamosi, one of the executives, in verification of the writ, deposed that she and the other plaintiffs, including the appellant, have applied for probate of the Will. The appellant has not denied this fact. So, the appellant and the other plaintiffs are desirous of obtaining probate of the Will. So also is the defendant whose issues claim under the Will and not otherwise. The defendant who filed a caveat never disputed the validity of the Will . . . This action is concerned principally and solely with the grant of probate. All the parties, plaintiffs and the caveator, have common and not conflicting interests in the grant.

The defendant in this case was not opposed to the Will but only to the grant to the other three plaintiffs. She is opposed to them because she dislikes them alleging they will not serve the interests of her four children who are beneficiaries under the Will.

In the circumstances it was competent for the trial Judge in the exercise of his discretion to grant or refuse to make the order striking out the name of the appellant, who jointly applied for probate along with the others. By jointly applying for a grant of probate, the necessary implication is that she was a consenting plaintiff in the probate action against the defendant, a caveator, who opposed the grant. This is not a case where a person has been joined as a plaintiff without her consent. It is, in my view, a case where a co-plaintiff is seeking to withdraw from the case and to have her name struck out of the action. So long as she has not renounced her Application for a grant, the trial Judge did not inadvisedly exercise his discretion and this Court as an appeal court will therefore not interfere. Swinfen Eady J., p.463 in re Matthews Oates v. Mooney (1905) 2 Ch. 460 cited by Mr Akinyemi said:-

"It has been pointed out in several cases that it is not a matter of course to allow a co-plaintiff to withdraw and have his name struck out at any time. The general rule is that where co-plaintiffs disagree, the name of one is struck out as plaintiffs and added as defendant." But it is stated in Daniels Chancery Practice, 7th ed. Vol. 1 p.224, that "An order to strike out a name of a co-plaintiff will not be made as a matter of course even on terms of giving security for costs."

The instant suit is a probate action for pronouncing the Will and the appellant and the other co-plaintiffs/respondents have common interest against the defendant who opposed the grant. Having jointly applied for a grant along with the other co-plaintiffs, she cannot as of right seek to withdraw from the action so long as she is still desirous of obtaining the grant. The learned trial Judge was right in refusing her application and equally, the court below was right in dismissing her appeal.

I therefore dismiss the appeal and further affirm the decision of Jinadu J.

Kayode eso, J.S.C.:-I have had the advantage of a preview of the Reasons given in this case by my learned brother Coker, J.S.C. I agree and adopt them for dismissing the appeal on 27th February, 1986.

Uwais, J.S.C.:-I have read in advance the reasons for judgment read by my learned brother Coker, J.S.C. I entirely agree with the reasons and I adopt them as mine. It was for the same reasons that I agreed on 27th February, 1986 that the appeal should be dismissed.

Karibi-whyte, J.S.C.:-After hearing arguments on this appeal on the 27th February 1986, I dismissed the appeal and indicated that I will give my reasons for so doing today. This I now proceed to do.

The issue which has been the subject matter of this litigation is a very short and simple one. It is whether applicant who is one of the executrixes of the Will of the testator and who is one of the Plaintiffs in the Probate action is entitled to have her name struck out as a Plaintiff in the action. The facts of the case have been very clearly and ably set out in the judgement of my learned brother D.O. Coker, J.S.C. I adopt them.

It is significant to observe that appellant is not disputing the Will, and is not seeking to be relieved as testator. Appellant joined as one of the executrixes who applied to the court for Probate. It seems that her main complaint is that she was not involved in the decision to institute the action, and also of the instructions to counsel representing the other Plaintiffs to institute the present action. The learned trial Judge rejected the application of the appellant to strike out her name as one of the Plaintiffs. In his opinion appellant is a necessary party to the action for the effectual and complete adjudication of the questions raised by the pleadings.

Appellants appeal to the Court of Appeal was dismissed on the 10th July 1984. This appeal is against that decision. There are only two grounds of appeal, which are as follows:-

GROUNDS OF APPEAL

(1)     The learned Justices of the Court of Appeal erred in law in dismissing the Appeal and affirming the ruling of the Honourable Mr Justice Y.A.O. Jinadu delivered on Thursday, the 19th day of January, 1984.

PARTICULARS OF ERROR

(1)     A right of action being a constitutional right can only be exercised by the Appellant and no one can force her to exercise same.

(2)     No one can be compelled to be a Plaintiff in any action.

(3)     The learned Justice of the Court of Appeal erred in law in dismissing the Appeal and not striking out the Appellant's name in the substantive suit.

PARTICULARS OF ERROR

(1)     Whether in probate or in non probate matter, no one can be made a Plaintiff against his or her consent.

(2)     By the application of Order 13 Rule 18 of the High Court of Lagos State (Civil Procedure) Rules, the Justices of the Court of Appeal ought to have struck out the name of the Appellant as Plaintiff pursuant to Order 15 Rules 6 and 8 of the English Rules.

(3)     The Appellant did not instruct Plaintiffs' Counsel to act for her and to file on her behalf the pending suit in the lower Court and as such cannot be compelled to take part in the proceedings thereof.

Counsel to the appellant has in his brief of argument posed three issues as involved in this appeal. These are:-

(1)     Whether on Executor or Executrix who has not renounced probate can be made a party to every probate action concerning the Estate in respect of which he/she is Executor/Executrix against his/her wish.

(2)     If so whether he/she must necessarily be a plaintiff in such a probate action along with other executors/executrixes.

(3)     Whether the right of action of an executor as provided for by the constitution is subject to his rights in the Will."

In his submission, Counsel referred to Section 16 of the High Court of Lagos Law which provides for the application, of the Practice and Procedure of English Courts in the absence of any local rules. Counsel referred to Order 1, rule 2 of the High Court of Lagos Rules where "Probate Action" was defined "to include actions and other matters relating to grant or recall of Probate Letters of Administration other common Form of Business." It was submitted that this action relates to the grant of Probate and as to the rights thereto, accordingly English rules are applicable. Reference was made to Order 76, rule 3 R.S.C., of England. Finally, Counsel submitted that firstly, no person can be made a plaintiff against his Will, and that whether a person is a plaintiff in an action can only be determined after a perusal of the pleadings and a totality of the evidence before the court. Secondly, a person who does not intend to sue or has not authorised any person to sue on his behalf, and the defendant to such an action cannot be a party as a Plaintiff to such an action. If he is made a party his name should be struck out." Counsel cited Matthews Oates n. Mooney (1905) Cr. 460 in support.

The general principle is well settled that a person cannot be made a plaintiff in an action without his consent. But

this general principle is subject to the principle to prevent multiplicity of actions. Hence where persons have the same interest in an action, they could join as plaintiffs. This joinder is more commonly granted where the parties have similar right to relief in respect of the same injury arising out of the same transaction or series of transactions, whether jointly, several or in the alternative-see Ekun & Ors. v. Younan & ors. (1959) WRNLR. 190. It can also be granted where common questions of law and fact would arise from actions in respect of each of the parties where brought separately-see Iwooh v. Akanbi (1975) INMLR. 187. It is therefore important that there should be no conflicts between co-plaintiffs in their prosecution of the action. Where co-plaintiffs are represented by different counsel, such counsel must act together. Once a person has been joined properly as a co-plaintiff to an action, he has no absolute right to withdraw from the action and be struck out. If he is a necessary party.

The question whether appellant is entitled to have his name struck out will depend upon whether he must be joined in the action or that he is a necessary party to the determination of the action. The action in respect of which appellant seeks to be struck out as plaintiff is a probate action within the definition of Order 76, rule 1(2) R.S.C., being an action for the grant of probate or will of a deceased person or for a decree pronouncing for the validity of an alleged Will. The validity of the Will for which probate is sought is undisputed. There is no doubt, and this is not denied by appellant, that all the plaintiffs including the appellant, have a common interest in the proof of the Will. They jointly applied for its grant. The defendant was not opposed to the Will but only to the grant to the other three plaintiffs.

In the circumstances, it was competent for the trial Judge in the exercise of his discretion to refuse the application to make the order striking out the name of the appellant, who has jointly applied for probate along with the other plaintiffs. In a probate action where the executors were acting jointly, the appellant is a necessary party to all the matters involving the proof of the Will, having jointly applied for probate along with the others. By so jointly applying for a grant of probate the implication is that appellant was a consenting party as plaintiff in the probate action against the defendant, a caveator, who opposed the grant. It is clearly not a case where appellant as plaintiff was joined without her consent. Appellant has not renounced her application for a grant.

I do not think a co-plaintiff can at whims withdraw from the probate granted and seek the court's order to withdraw and have his name struck out. The order to strike out the name of a co-plaintiff cannot be obtained as a matter of course. The co-plaintiff must satisfy the court that there is no longer a desire to act as an executor, that there is no longer a common interest with the other co-plaintiffs, and that he is no longer a necessary party to the action.

Appellant having not established any of these requirements the learned trial Judge was right in refusing her application to be struck out as plaintiff, and the Court of appeal was right also in dismissing the appeal.

The appeal before this Court is also dismissed.

Oputa, J.S.C.-On the 27th day of February 1986, the Court heard arguments in this appeal, dismissed same and reserved its Reasons for Judgment to the 25th day of April, 1986. I have had a preview in draft of the lead Reasons for Judgment just delivered by my learned brother Coker, J.S.C. and I am in complete agreement with his reasoning and conclusions. I may just add a few comments.

In his Introduction to his Brief, learned Counsel for the Appellant said of this appeal:-

"This appeal concerns one of the most fundamental aspects of Practice and Procedure-that of determination who are the right parties to an action as constituted by the pleadings and whether an Executor or Executrix who has not renounced probate can be compelled not only to be a party to a Probate action against his/her wishes but also to be a Plaintiff against his/her wish."

Although the Appellant's Brief was introduced on this rather very high note, a dispassionate look at the facts and surrounding circumstances of this case soon reveals that this is a very big storm in a very small tea cup. What then are the facts. They are these:-

"1.     Late Michael Modupe Sadipe died on 17th July, 1979, leaving a Will dated 20th January, 1979.

2.      The present Appellant together with the 1st, 2nd and 3rd Respondents were appointed Executrixes and Executors of the Will of late Sadipe. Two other, similarly appointed namely Festus Ibidapo Adesanoye and Chief J. Akin-George, renounced probate.

4.      In the meantime, the 4th Respondent, Agnes Omolabake Sadipe, the wife of the deceased and mother of four of the beneficiaries, lodged a caveat against the admission of the Will into Probate.

Also by Section 23 of Administration of Estates law Cap 2 of the Laws of Lagos State 1973:-

"The court shall have power to summon any person named as executor in a Will to prove or renounce probate of the Will and to do such other things concerning the Will as were customary before the commencement of this Law."

If the Lagos High Court shall have the power to summon the Appellant, being a person mentioned in the Will of her father, Chief Michael Modupe Sadipe, to prove the said Will, how can the self same court strike out the Appellant's name from the proceedings instituted inter alia for the very same purpose instituted for grant of probate of the self same Will? It is this grant of probate that will clothe the Appellant with the necessary legal authority to act as Executrix. This, I dare say, is in her own interest an in the interest of the Will also. Other questions may arise during the actual administration of the estate of the Appellant's late father. They have not arisen yet. When they do arise I am in no doubt that Chief Gani Fawehinmi's Chambers will be quite capable of dealing with them. Thus from any angle one may choose to look at it, the Appellant loses nothing an can never be adversely affected by being a co-plaintiff in Suit No. LD/497/83.

The High Court was therefore right in refusing to strike out the name of the Appellant from Suit No. LD/497/83. The Court of Appeal was also right in dismissing the appeal to it from the High Court judgment. It is for all the reasons given above and also for the fuller reasons in the lead Reasons for Judgment of my learned brother Coker,