LADY KOFO ABAYOMI MRS LANDE EJIWUNMI CHIEF ROTIMI WILLIAMS v. PROBATE REGISTRAR (M/84/70) [1970] 10 (20 August 1970);

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  • LADY KOFO ABAYOMI MRS LANDE EJIWUNMI CHIEF ROTIMI WILLIAMS v. PROBATE REGISTRAR (M/84/70) [1970] 10 (20 August 1970);
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IN THE HIGH COURT OF LAGOS STATE

ON THURSDAY, THE 20TH DAY OF AUGUST 1970

M/84/70

IN THE MATTER OF THE ESTATE OF CHIEF OLADIPO MOORE DECEASED

AND

IN THE MATTER OF APPLICATION FOR LETTERS OF PROBATE BY

LADY KOFO ABAYOMI

MRS LANDE EJIWUNMI

CHIEF ROTIMI WILLIAMS .......................................... APPLICANTS

AND

PROBATE REGISTRAR ............................................... RESPONDENT

BEFORE: George J.

 

The applicants brought a motion under the proviso to rule 44 of Order 48 of the Rules of Court for cancelling the assessment made by the respondent regarding payment of fees payable for the grant of probate in common form a respect of a Will.

The sole issue for determination by the court was whether fees are payable in respect of the leasehold property of a person who died leaving a Will.

Order 48, rule 11 of the Rules of Court requires every Application for a grant of probate or letters of administration to file in Court a true declaration of all the personal property of the deceased and the value thereof, while item 28 of Schedule 2 of the rules prescribes the fees payable "on probate or letters of, or order for administration; where the value of the property affected by the grant or order, etc."

In the Application for the grant of probate, the applicants filled a form in which the property left by the deceased was estimated at a value of £17,253.7s.9d, including the sum of £9,000 said to be "particulars and value of property held by the deceased as lease."

 

HELD:

(1)     "Personal property" in Order 48, rule 11 of the Rules of Court includes, "Leasehold property" or property held for a term of years.

(2)     With regard to the expression, "Property affected by the grant", the fact that probate had been obtained was sufficient to vest all the properties of the deceased, both real and personal in the proving executors.

(3)     Since this was a probate matter both real and personal properties of the deceased were affected by the grant. The Probate Registrar was, therefore, right in assessing the fees payable in respect of the leasehold property of the deceased.

 

PER CURIAM:

Estate fees are not payable in respect of Freehold properties because an applicant for a grant is not required by any rules of Court to supply the Probate Registrar with any information concerning them.

Motion Struck Out.

 

Cases referred to:

Probate Registrar v. Mrs Macaulay M 219/1967.

Absi v. Probate Registrar M69/70.

 

Act referred to:

Administration of Estate Act 1925 (England)

High Court of Lagos Act. Section 16

 

Rules and Orders referred to:

Rules of Court Order 48, rule 11

 

Motion For Cancellation of Assessment made by Probate Registrar in respect of Will.

Chief Williams (With him Akosode), for the Applicants.

Babaniji, for the Probate Registrar.

 

George, J.:-This is a motion made under the proviso to rule 44 of Order 48 of the Rules of Court for an order

(1)     Cancelling the assessment made by the respondent regarding payment of fees payable for the grant of probate in common form in respect of the Will of the above named deceased person.

(2)     Directing that the assessment of such fees shall not include any assessment on the testators contractual right to and equitable interest in the property known as 84 Raymond Njoku Street, S.W. Ikoyi, Lagos.

At the hearing of the motion, Chief Williams, for the applicants informed the court that he and Mr Babaniji for the Probate Registrar had agreed that "the sole issue for determination by this Court is whether fees are payable in respect of the Leasehold property of a person who died leaving a Will.

There is no affidavit in support of the application nor was any evidence led. The applicants relied on documents submitted in support of their application for Probate in common form. No objection was taken to this mode of presenting a case before the court, presumably because in the case of Probate Registrar v. Mrs Macaulay M/219/1967 Abebiyi, J., had arrived at the conclusion that issues could be settled in this manner. It is my view that it is not in every case that an affidavit is required in support of a motion. I called for the file and it was produced by Counsel for the Probate Registrar to see the forms of application as applied for probate, the form of grant of probate itself, as well as the nature of the oath to be sworn to by the executor and executrix. Counsel for the applicants informed the court that he would rely principally on the decision of Adebiyi, J., in the Estate of Macaulay referred to above as well as the decision of Kazeem, J., in the case of Absi v. Probate Registrar Suit No. M/69/70. The record of proceedings in the former case and the judgment in the latter were produced.

Counsel for the Probate Registrar on the other hand informed the court that he would rely on the new forms of Executors Oath and the new form of Probate. It is apparent from the file of the Probate Registrar and it was agreed to in Court by Chief Williams himself that the applicants submitted certain forms to the Probate Registrar showing the inventory of the personal property of the deceased but have not subscribed to the oath. In the application for grant of probate paragraph 2, the applicants filled a form in which the property left by the deceased was estimated at a value of £17,253.7s.9d. This estimate includes the sum of £9,000 said to be "particulars and value of property held by the deceased as Lessee."

Now Order 48, rule 11 of the Rules of Court requires every applicant for a grant of probate or letters of administration to file in court a true declaration of all the personal property of the deceased and the value thereof, while item 28 of Schedule 2 of the rules, prescribes the fees payable "on probate or letters of, or order for administration; where the value of the property affected by the grant or order, etc." Now in the Macaulay and Absi cases cited above, both, Kazeem, J., and Adebiyi, J., arrived at the conclusion that since an administrator of an Estate was precluded by the Administration Real Estate Act Cap. 2 of the Laws of Nigeria from administering the real estate of a deceased person, except in certain circumstances, the real estate could not be regarded as "property affected by the grant." In these two cases, the assessments made by the Probate Registrar were cancelled. Counsel for the respondent distinguished these two cases from the present case on the ground that the applicants are required to administer according to law all the estates that by law devolve and vest in the personal representative. If they are so required, it is quite clear that all the estates of a TESTATOR both real and personal come within the designation "property affected by the Grant."

Chief Williams submitted that Order 8, rules 3 and 5 require that forms in the schedule shall be used.

Order 8, rule 3 states, "the forms in the first schedule or forms in like effect May be used in all matters, courts, and proceedings to which they are applicable with such variations as circumstances require."

It is to be observed from the word used in the rules namely, "May", that it is not the intention of the Legislature to make use of forms in the schedule imperative. Howbeit as there is no evidence as to who issued the forms, I shall assume that the proper forms are the ones in the Rules of Court.

What is the property affected by the grant of Probate of a Will? The learned author of Tristram and Coote's Probate 22ndEdition at page 153 under the heading Property Covered by Grant says:-

"In the case of persons, domiciled in England dying on or after the 1st of April, 1923, the grant extends to the personal estate in Great Britain and the real Estate (other, in pre-1926 cases, than the copyholds or lands held by customary tenure) in England."

This observation applies equally to grants made in Nigeria, for section 16 of the High Court of Lagos Act reads:-

"The Jurisdiction of the High Court in Probate, Divorce and Matrimonial Causes and Proceedings may subject to the provisions of this Act in particular of section 27 and to rules of court, be exercised by the court in conformity with the law and practice for the time being in force in England."

Unless where there is provision in the rules of court in probate matters the law and practice in England apply to Lagos State.

The author of Tristram and Coote's in the passage quoted above was dealing generally with Probates and not Administration. His view is based on the joint effect of Seal of the land Transfer Act and Seal of the Administration of Estate Act of 1925. Both statutes apply to Lagos State, the former as a Statute of General Application in England before 1st January, 1900, and the latter forming part of the "Law & Practice for the time being in force in England", within the meaning of section 16 of the High Court of Lagos Act.

The application of the administration of Estate Act, 1925, to Lagos State is by section 16 of the High Court of Lagos Act made "subject to the provision of this Act (i.e., High Court of Lagos Act) and to rules of Court."

I shall assume that the old forms of grant of Probate are still in force and examine to what extent they affect the assessment made by the respondent regarding payment of fees. Form Cap. 14 after stating that the Will was proved and registered proceeds to say that "the administration of the personal property of the said deceased was granted by this Court..."

The assessment of fees made by the Probate Registrar in respect of fees payable on the grant of probate is being challenged.

I have had the opportunity of reading the address of Counsel in the case of Re Macaulay which was produced by Chief Williams as the substance of his argument in the present application. In the course of his address the learned Counsel said:-

"Order 48, rule 11 personal property therein can only be interpreted in the sense to which it is used in the Act which confers power to Cap. 80."

Counsel for the applicant presumably means the "Administration of Estate Act. If that is so, I am unable to agree with the learned Counsel. Power is not conferred on Cap. 80 by the Administration of Estate Act, 1925. As stated above, that Act applies to Lagos "subject to rules of court." Before proceeding to examine the definition Clause in the Administration of Estate Act, 1925, I must be satisfied (1) that it is not contrary to our rules of court and (2) that the definition can legitimately be read into our rules of Court.

The old Supreme Court Rules which are still in force in the High Court of Lagos were culled from earlier enactments. The form of Grant of Probate Form C. 14 is identical with the form of Grant in the Laws of Nigeria 1923 Edition, Cap. 3 Vol. III Page 161. This form was in use as early as 1915. When the legislature used the expression "personal property" in an ordinance dating as far back as 1915, the expression, being a term of Art must be construed in its legal sense.

In Strand's Judicial dictionary 3rd Edition Volume 3 page 180 the learned author states:-

"The personal estate and effects or its equivalent, the personal property of an individual may perhaps be broadly defined to be all his property other than that which, if he died intestate would go to his heir."

Likewise the learned author of the 3rd Edition of Halsbury's Laws of England Vol. 29 page 355 describes "personal property" thus:-

"Personal property or personality may be rightly described as comprising all forms of property movable or immovable, corporeal or incorporeal other than freehold estates and interests in land."

This is the definition of the phrase, "personal property". As Lawyers have been using this expression in this sense for about 900 years, it would be idle for me to sit here and say that I do not know that Leasehold Property is part of the Personal Estate of a deceased person because there is no definition Clause in our Rules of Court. There is no definition Clause in the Land Transfer Act of 1897 and yet there is not a single reported case on the interpretation of "Real Estate" "Chattels Real" used in the Act until its repeal (in England) in 1925. The reason is obvious; Lawyers know the meaning of these terms.

In enacting section 16 of the High Court of Lagos Act, it was not the intention of the Legislature that the rules of Court in Probate matters should be incorporated into the Administration of Estate Act (England) 1925 so as to make the definition Clause in that Act applicable to our own rules of court.

Section 3 of the Administration of Estate Act, 1925, does not purport to give a definition of "real estate" for all purposes. Its application is limited to the interpretation of the term in the Act itself, for Section 3 (1) says:-

"In this part of this Act 'Real Estate' includes..." Again Section 52 of the same Act reads: In this part of this Act 'Real & Personal Estate' means..."

The Act further goes on to provide in Sec. 55 as follows:-

"In this Act unless the context otherwise recognises, the following expression have the meanings hereby assigned to them that is to say:-.."

The definition of the expressions, "Property" "Personal Property" "Real Estate", etc, in the Administration of Estate Act, 1925, is therefore limited to the Act itself. I am not in this application asked to construe the meaning of the word, "Personal Property" in the Administration of Estate Act nor was any section of the Act referred to.

The same remark applies to Sec. 175 of the Judicature (Consolidation) Act, 1925. The definition there applies to "this part of this Act & in the other parts of this relating to Propate Causes & Matters."

When reading these two acts - the Judicature Consolidation Act & the Administration of Estates Act (1925), I must, notwithstanding the meanings attributed to the expression "personal property", "Real Estate", etc., by the common Law, read them in light of the definition in the two Acts.

But, as stated above these two acts apply to Lagos State in probate matters, "subject to rules of court." If I read the definition into the "rules of Court", then I would be reading the rules as if they were subject to the "Law of England."

In my view, "personal property" in Order 48, rule 11 includes "Leasehold Property" or property held for a term of years.

With regard to the expression "property affected by the grant", the fact that probate has been obtained is sufficient to vest all the properties of the deceased, both real and personal in the proving executors. The grant, says Tristram & Coote's Probate Practice 22nd Edition at page 8, "in cases of death after 1897 is made, therefore, in respect of all the estate which by law devolves to and vests in the personal representative of the deceased."

The grant of probate according to Williams on Executors 14th Edition Vol. 1 Cap. 398 page 232, "even in common form, unprovoked, is conclusive both in the court of Law and equity, as to the appointment of executors, and the validity and contents of Will, so far, as to cases prior to the L.T. Act 1897, as it extends to personal property, and as to Wills coming into operation after that Act, as to both real and personal property (except the legal estate in copyholds).

Since this is a Probate matter both real and personal properties of the deceased are affected by the grant.

The Probate Registrar is, therefore, right in assessing the fees payable in respect of the Leasehold property of the deceased. Estate fees are not payable in respect of Freehold properties because, an applicant for a grant is not required by any rules of Court to supply the Probate Registrar with any information concerning them.

The Motion is, therefore, struck out.

Motion struck out.