3PLR – ALERO JADESIMI V. FRED EGBE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ALERO JADESIMI
V.
FRED EGBE
COURT OF APPEAL
[LAGOS DIVISION]
3PLR/2003/25 (CA)
OTHER CITATIONS
36 WRN 79
BEFORE:
JAMES OGENYI OGEBE, JCA (Presided)
SULEIMAN GALADIMA, JCA (Delivered the leading judgment)
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA.
BETWEEN
- MRS. ALERO JADESIMI
- MRS. VICTORIA OKOTIE-EBOH
AND
- FRED EGBE
- DR. MRS C. R. AKELE
- JOHN OKOTIE-EBOH
- LAWRENCE OKOTIE-EBOH
- MRS. LYDIA LASSEY
- GODFREY OKOTIE-EBOH
- EMMANUEL OKOTIE-EBOH
- MRS. GRACE ODURO
- MRS. AJORIETSEDERE AWOSIKA
- GOODLUCK OKOTIE-EBOH
- BAWO OKOTIE-EBOH
- JOE ADOLO OKOTIE-EBOH
- MERCY OKOTIE-EBOH
- BENEDICT OKOTIE-EBOH
REPRESENTATION
KEHINDE SOFOLA SAN with him, O. OGUNNIYI [Miss], ISMAIL [Mrs.] – For appellants
FRED EGBE ESQ. in person as 1st respondent.
TAYO OYETIBO With, NOJEEM TAIRU – For 2nd –14th respondents
ORIGINATING COURT
LAGOS STATE HIGH COURT [BODE RHODES-VIVOUR, J. Presiding]
OTHER ISSUES
ESTATE ADMINISTRATION AND PLANNING: – Succession to property – ‘Purchaser’ under section 41(1) of the Administration of Estates Law, Cap. 3 Laws of Lagos State 1994 – Definition of – Categories of persons covered
ESTATE ADMINISTRATION AND PLANNING: – Beneficiary of estate under a will – Right to renounce testamentary devise – Whether can be exercised with or without a reason – Enforceability
ESTATE ADMINISTRATION AND PLANNING:- Wills and succession – Equitable principles applicable thereto – Where a legatee under the will or other testamentary instrument who has instituted an action to prove the will makes a proposal while the action was still pending, to other persons who would otherwise have been beneficiaries of the estate of the testator but for the provisions of the will not to enforce legal right to the legacy under the will but that the estate should be distributed among all the beneficiaries – Where those other beneficiaries in reliance on the representations of the legatee took steps to deliberate on the representations and both sides agree on a formula for distribution of the estate – Whether equity would not allow the legatee to enforce her right to the legacy and abandon the agreement if she afterward wins her suit – Relevant equitable doctrines and principles
ESTATE ADMINISTRATION AND PLANNING: – Wills and succession – Where a Court declares letters of administration covering an estate to be null and void – Whether all actions and contracts which were executed by the Administrators prior to the declaration are null and of no effect whatsoever – Whether voids all existing agreement executed by Administrators appointed pursuant to the voided letters of administration – Section 41(1) of the Administration of Estates Law Cap. 3, Laws of Lagos State, 1994
ESTATE PLANNING AND ADMINISTRATION:- Provisions of a Wills – When same can be over-ridden by subsequent agreement made between parties to inheritance under the will – Considerations for such agreement – Extent of enforceability – Whether subject to Court approval – Justification
ALTERNATIVE DISPUTE RESOLUTION – CONTRACT: – Bindingness of an agreement made to settle ongoing litigations – Whether can be repudiated by party in whose favour judgment was subsequently given by court on the ground of mistake – Whether failure to ask Court to substitute reliefs sought in suit with terms of extra-judicial agreement is fatal – Equitable maxims applicable to same
COMMERCIAL LAW – CONTRACT:- Agreement – How made – Whether could be in writing, oral or inferred by conduct – Essential Elements – Where the parties agreed on all material points – Whether there is no need to look for offer and acceptance
COMMERCIAL LAW – CONTRACT – Equity and contract – Doctrine of equity: “pacta sunt servanda” – Agreement voluntarily entered into must be honoured in good faith as equity would not allow the law to be used as an engine to defraud – Equity looks at the intent rather than form and will impute an intention to fulfil an obligation – Implications for sanctity of contract
CHILDREN AND WOMEN LAW:- Women/Children and Inheritance – Women and Justice Administration – Succession to property by step siblings – Use of Agreement to override the provisions of a judicially contested will – How treated
INTERPRETATION OF STATUTE: – Section 41(1) of the Administration of Estates Law, Cap. 3 Laws of Lagos State 1994
PRACTICE AND PROCEDURE – FILING AGREEMENTS IN COURT:- Agreement pursuant to sharing of estate devised under a will – Where already a subject of Court litigation – Whether failure to file terms of agreement in Court to enter judgment accordingly is fatal if the Court subsequently gives a judgment adverse to terms of the agreement – Whether the terms of settlement reached by parties is circumscribed by the claims filed before the court – Whether terms of settlement which are not within the purview of the plaintiff’s claim cannot be entertained by the court as to form the basis of the court judgment – Whether court has no jurisdiction to grant a relief that has not been claimed
PRACTICE AND PROCEDURE – SUPREME COURT – JUDGMENT:- Extra-judicial Agreement and a subsequent Supreme Court judgment – Where agreement had the same parties and relate to the same subject matter – Where agreement envisaged the Supreme Court judgment – Enforceability of same – Whether Supreme Court judgment invalidates the agreement – Relevant considerations
PRACTICE AND PROCEDURE – COURT – EQUITABLE JURISDICTION – MAXIMS: – Equity looks at intent rather than form – Equity will not allow the law to be used as an engine of fraud – Application of
PRACTICE AND PROCEDURE: – Admissibility of evidence – Evidence Act and Common Law – Applicable standard in Nigeria – Treatment of Common Law rules of evidence
PRACTICE AND PROCEDURE: – Issues properly raised during trial – Party alleging failure of trial court to consider same – Duty on party to prove same
PRACTICE AND PROCEDURE: – Issues for determination – Proper way to formulate same – Issues formulated which do not arise from any of the grounds of appeal – Whether competent – A respondent who does not cross-appeal or file a respondent’s notice – Whether cannot frame issue outside the grounds of appeal filed by the appellant
PRACTICE AND PROCEDURE:– Evidence – Doctrine of “without prejudice” – Admissibility of document evidence made without prejudice – Common Law and Statutory foundation – Application framework in Nigeria – Section 25 of the Evidence Act – Whether in applying the doctrine it is the provision of the Evidence Act that must be used as a guide and not common law principle
PRACTICE AND PROCEDURE: – Admissibility of Evidence under Section 25 of the Evidence Act – Document made ‘without prejudice – Whether can only be excluded on the ground that it contained an admission adverse to the maker’s interest as contemplated by the Act
PRACTICE AND PROCEDURE – JUDICIAL PRECEDENCE: – Supreme Court – Decision in Jadesimi v. Okotie-Eboh (1996) 2 NWLR (Pt. 429) 123 – Issues decided therein – How applied
WORDS AND PHRASES – LATIN MAXIMS: – Maxims of equity – ‘pacta sunt servanda’ – meaning of
WORDS AND PHRASES: – ‘Purchaser’ under section 41(1) of the Administration of Estates Law, Cap. 3 Laws of Lagos State 1994 – “Without prejudice” – Applicability in Nigeria – whether under Common Law rules or Evidence Act – Effect
MAIN JUDGEMENT
SULEIMAN GALADIMA, JCA: (Delivering the leading judgment):
This is an appeal by the 1st and 2nd appellants, as 2nd and 3rd defendants respectively, in the court below against the judgment of the Lagos State High Court in suit No. LD/1581/96 delivered on the 6th day of January 1998 by Bode Rhodes-Vivour(J.)
On 15th May, 1996 an action was instituted by thirteen plaintiffs presently 22nd-14th respondents, against the 1st and 2nd appellants claiming as follows:
- Each of the plaintiffs claims against the 1st defendant the sum of £40, 448.80 (forty thousand four hundred and forty eight pounds and eighty pence) or the naira equivalent of same in the sum of N5,560, 588.00 being their shares of a fund amounting to £909,424.88 (nine hundred and nine thousand, four hundred and twenty-four pounds and eighty-eight pence) which accrued from the estate of Chief F.S. Okotie-Eboh, (deceased) and is in the bank account or custody, care or control of the 1st defendant which fund was agreed by the plaintiffs and the defendants to be distributed in accordance with the contents of a document dated 14th July 1995 to be relied upon at the trial and copy of which is in possession of the defendants.
- An account of the interests which have accrued on the said fund from the 15th day of March, 1996 and same to be distributed by the 1st defendant in accordance with the formula contained in the said document dated 14th July, 1995.
- Against the defendants jointly and severally an injunction restraining the defendants whether by themselves their servants, agents and or representatives from acting or taking any step whatsoever in breach of the agreement reached by the estate of late Chief F.S. Okotie-Eboh particularly the English estate the full terms of which are set out in paragraph 11 of the amended statement of claim.
Both sides exchange pleadings, which were amended. Matter proceeded to trial. Two witnesses testified in favour of the plaintiffs. The defendants on their part led evidence in support of their case. 1st respondent did not in substance, dispute the validity of the agreement relied upon by the plaintiffs. Again, although the appellants filed the joint statement of defence and counter-claim, the 2nd appellant, on her part, did not appear in the lower court throughout the proceedings and no evidence was offered on her behalf. The 1st appellant gave evidence for herself and called four witnesses.
In a well considered judgment, the learned trial Judge granted the plaintiff’s claims and dismissed the appellant’s counter-claim.
Being dissatisfied with the judgment of the lower court, the appellants have now appealed to this court. There are eight grounds of appeal contained in the appellants’ notice of appeal. The learned counsel for the appellants filed a brief of argument. Four issues were formulated for determination as follows:
“1. Whether the learned trial Judge was not in error when he held that the letter dated January 16, 1995 and written “without prejudice” was admissible in evidence without the consent of the writer and further whether he was not in error by making order founded on the alleged agreement based upon the said letter dated July 14, 1995 for sharing of the estates of the deceased.
- Whether the learned trial Judge was not in error in his holding as valid the agreement for the distribution of the estate of the deceased purportedly signed on July14, 1995 by persons who claimed to be administrators of the deceased, such agreement being purportedly reached consequent upon negotiation carried out “without prejudice” as opposed to the distributing as contained on the will of the deceased which has been pronounced valid by the Supreme Court in its judgment dated February 6, 1996.
- Whether the learned trial Judge was correct in relying on the Supreme Court decision in N.S.D Ebosie v. J.C Phil-Ebosie and Ors. (1976) 7 S.C 119 in holding that the children of the deceased in this case entered an enforceable agreement on July 19, 1995 which must have the effect of negativing the judgment of the Supreme Court given on February 6, 1996, concerning the matter of the distribution of the estate of the deceased in this case.
- Whether there has not been a miscarriage of justice in this case by the failure of the learned trial Judge to give full and dispassionate consideration to all the important issues raised and canvassed before him.”
The 1st respondents filed a brief in which the learned counsel in person formulated three issues for determination as follows:
“1. Whether the learned trial Judge was correct in admitting in evidence the document dated 15th January, 1995 marked “exhibit CC”
- Whether the learned trial Judge was correct in upholding the validity of the agreement recorded in “exhibit L” inspite of numerous defences of (a) pendens (b) misrepresentation concealment of material facts (c) undue influence (d) conspiracy (e) lack of consideration (f) that the deceased directed that the 1st plaintiff is not to be given anything, pleaded and argued by the 2nd defendant/1st appellant.
- What bearing if any has the Supreme Court decision in SC/188/92: Alero Jadesimi v. Mrs Victoria Okotie-Eboh and Ors. on this matter.”
The 2nd –14th respondents filed a brief of argument in which the learned counsel identified four issues for determination as follows:
“1. Whether the learned trial Judge was right in admitting in evidence the 1st appellant’s letter dated January 15, 1995 which was concluded with the words “this is made without prejudice.”
- Whether the learned trial Judge was right in law in holding as valid and binding the agreement between the plaintiffs and the appellants the terms of which are reflected in exhibit “L” regarding the distribution of the estate of the late Chief F.S. Okotie-Eboh.
- Whether the judgment of the Supreme Court delivered on 6th February 1996 in SC/188/1992 has the effect of invalidating the agreement between the plaintiffs and the appellants regarding the distribution of the estate of late Chief F.S. Okotie-Eboh.
- Whether the learned trial Judge did not adequately consider all the relevant issues raised and canvassed before him.”
On 3/3/2003, this appeal was heard and the learned counsel for each of the parties addressed us orally. However to appreciate and better follow their arguments, I consider it necessary to have a brief resume of the facts of this case in which the siblings of First Republic Finance Minister, the late Chief Festus Okotie-Eboh are polarized over sharing of his vast estate and some money kept in London bank account. The 2nd appellant is the widow of the deceased whilst the 1st appellant is the daughter and only child of the 2nd appellant. The 2nd –14th respondents are the children of the deceased begotten of different mothers.
On 15/1/1966 Chief F.S. Okotie-Eboh died. It was believed by his survivors that he died intestate. Consequently, letters of administration of his estate in Nigeria was granted to 1st, 2nd appellants also to the 1st and 2nd respondents respectively. However in 1984 the 1st appellant commenced suit No. LD/912/84 against the administrators named above in the High Court of Lagos State to prove what she claimed to be the last will of the deceased. The 1st appellant was successful and the court pronounced favourably for the force and validity of the will and the letters of administration was revoked. But on appeal to this court the judgment were set aside and the letters of administration were restored. The battle continued. 1st appellant further appealed to the Supreme Court. While the appeal was pending, 1st appellant instructed 1st respondent to initiate moves to settle the dispute between her and her brothers and sisters regarding the distribution of the estate of their late father. At the end of the deliberation on both sides it was agreed by all parties that the estate of the deceased, particularly the funds to the tune of £909,424.88 standing to the credit of the estate in England be distributed in accordance with an agreed formula to all the beneficiaries.
Meanwhile while the fund was still lying in the private bank account of the 1st respondent in England, the Supreme Court of Nigeria on 6/2/96 delivered judgment on the 1st appellant’s appeal in which she was successful. Consequently, the judgment of the Court of Appeal was set aside and that of the High Court pronouncing in favour of the force and validity of the will of the deceased was restored.
Relying on the judgment of the Supreme Court, 1st appellant, wrote a letter on 29/3/96 to the 1st respondent instructing him to transfer all the funds in his account to her thereby resiling from the agreement earlier reached with her brothers and sisters. Her claim was predicated on a clause in the validated will which bequeathed to her all the personal property of the deceased. She claimed in that letter exhibit K.K. that the agreement was made by her under a mistake when 1st respondent told her that her appeal to the Supreme Court would not be heard for years. By reason of the content of the letter of 1st appellant, the 1st respondent refused to distribute the funds in accordance with the agreed formula whereupon the respondents commenced this action in the High Court of Lagos State. On 6/1/98 Rhodes- Vivour (J) delivered judgment in favour of the 2nd –14th respondents ordering the 1st appellant to abide by the agreement. This is briefly the background facts that gave rise to this appeal.
I have already set out issues formulated by the parties in this appeal. I shall however determine this appeal on the four issues formulated by the appellants, which are (substantially similar issues, which call for determination of this appeal by the 2nd –14th respondents.
On 3/3/2003 when this appeal was heard, learned counsel for the appellants, Kehinde Sofola, SAN adopted and relied on his brief of argument and he urged that the appeal be allowed. Learned counsel for 1st respondent, Fred Egbe, Esq. appearing in person, adopted and relied on his brief of argument. He urged this court to dismiss the appeal. Similarly, learned counsel for 2nd – 14th respondents, Tayo Oyetibo, Esq., having adopted and relied on his brief of argument, urged us to dismiss the appeal.
I would wish to start by observing that the first, second, third and fourth issues formulated for determination by the appellant are distilled from the third, first, fourth and seventh grounds of appeal respectively. In the same vein, the four issues formulated by 2nd –14th respondents are equally covered by these same grounds. However, my close study of 1st respondent’s brief shows that it is only the first issue that is covered by ground three of the appellant’s notice of appeal. Hence the second and third issues formulated by the 1st respondent do not arise from any of the grounds of appeal. A respondent who does not cross-appeal or file a respondent’s notice cannot frame issue outside the grounds of appeal filed by the appellant. Indeed, none of the last two issues for determination as formulated by the 1st respondent has any relevance to the grounds of appeal. In Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 543-544 the Supreme Court per Nnaemeka –Agu, JSC held:
“This court has stated a number of times that a respondent’s primary duty is to support the judgment appealed against by showing that the contentions of the appellant as to the grounds of errors are without merit. Also, as they have not cross-appealed, they cannot formulate issues as it were, in nubibus – hanging in the skies. They can only either adopt the issue as formulated by the appellants based on the grounds of appeal before court or, at best, recast them by giving them a slant favourable to the respondent’s point of view, but without departing from the complaint’s raised by the grounds of appeal.”
See also Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563, 579, 580.
In view of this observation, I will adopt the issues formulated in the appellants’ brief, which are also covered in the brief of 1st and 2nd –14th respondents.
On the first issue, learned counsel for the appellants submitted that the learned trial Judge was in error when he held that exhibit “CC” dated 15/1/95 written “without prejudiced” was admissible in evidence without the consent of the writer. It was further submitted that it was erroneous on the part of the learned trial Judge to have made orders founded on the said agreement exhibit ‘L’ dated 14/7/95 in spite of very strong objection by the 1st appellant. However, the learned counsel for the 1st respondent submitted in his brief that the learned trial Judge was correct in holding that exhibit ‘CC’ did not contain any admission as to warrant its exclusion as demanded by the appellants. In his own submission, learned counsel for 2nd –14th respondents submitted that section 5(a) of Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 does not permit the exclusion of evidence, which is otherwise admissible under the Act.
The letter dated 15/1/95 written by the 1st appellant was admitted in evidence as exhibit ‘CC’ and the agreement was also admitted as exhibit ‘L’ the full contents of the letter read thus:
“Dear Mr. Egbe,
I would like you to please initiate moves to settle the dispute between myself and my brothers and sisters subject to the proposal they had earlier made that my mother will be entitled to a third of the estate and the remaining to be shared in equal proportions. This is made without prejudice many thanks.
Yours sincerely.”
It was on the basis of the instruction contained in the letter that 1st respondent wrote a letter dated 16/1/95 to the respondents through their counsel. This was admitted as exhibit “D”. In that letter 1st respondent had requested from the respondents for whatever proposals they may wish to make on behalf of their clients for consideration of the 1st appellant.
The basis of objection of appellant’s counsel to the admissibility of exhibit “CC” was that it was a privileged communication or what he called “evidence of without prejudice negotiation.” Also learned Senior Advocate for the appellants further argued in their brief that they saw no reason how section 25 of the Evidence Act is relevant to the issue of admissibility or non-admissibility of communication made without prejudice. Although no other section of the Evidence Act was cited by the learned counsel which he considered relevant to the issue, it would appear to me that he was relying on the common law in arguing against the admissibility of exhibit “CC” references made by the learned counsel for 2nd –14th respondents to section 5(a) of Evidence Act and Akinola Aguda’s Law and Practice Relating to Evidence in Nigeria. Under section 5(a) of the Act no piece of evidence can be excluded under the common law if the Evidence Act or any other statute in force in Nigeria does not expressly render it inadmissible. Section 5 of the Act would be applicable and particularly useful where the Evidence Act has not made provision for the reception in evidence of a particular piece of evidence where such class of evidence is admissible under the rule of common law. In the case of Onyeanwusi v. Okpukpara (1953) 14 WACA 311, the West African Court of Appeal held that it was the Evidence Act or where silent the common law of England that applied at the High Court. Also in the case of R. v. Agaga-riga Itule (1961) 2 SCNLR 183, (1961) All NLR 462. Brett Ag., C.J.F considering whether part of a confession which tells in favour of an accused person was evidence of the fact as alleged, held as follows:
“…the matter is not dealt with expressly in sections 27 to 32 of the Evidence Ordinance and the common law rule therefore applies by virtue of section 5(a).”
It has to be pointed out here that what determines admissibility or otherwise of a particular piece of evidence or document is the Evidence Act and not the common law. See also R. v. Agwuna (1949) 12 WACA 456 at 458.
Although the statutory authority for doctrine of “without prejudice” which learned counsel for the appellants seeks to rely upon in excluding exhibit ‘CC’ is of common law origin the statutory authority for its application in Nigeria is section 25 of the Evidence Act. I agree therefore with the learned counsel for the 2nd –14th respondents that in applying the doctrine it is the provision of the Evidence Act that must be used as a guide and applied and not common law principle as learned counsel for the appellant has submitted. Section 25 of the Evidence Act provides as follows:
“25. In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given;
Provided that nothing in this section shall be taken to exempt any legal practitioner from giving evidence of any matter of which he may be compelled to give evidence under section 170 of this Act.”
It could be said that from the provisions of section 25 of the Evidence Act reproduced above that the following ingredients must be present before the provisions can be applied to exclude a piece of evidence. These ingredients are that:
(a) the evidence concerned must relate to an admission by the person against whom the evidence is to be given;
(b) the admission must have been made upon an express condition that evidence of it is not to be given; or
(c) the admission must have been made in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.
I agree with the learned counsel for the 2nd –14th respondents that the first ingredient is important. It is absent in this case. I think exhibit ‘CC’ is a letter from the first appellant conveying a specific instruction to her solicitor as to what is to be done on her behalf. It does not contain any admission by her. Learned counsel for the appellants had argued that there is no authority for the proposition contained in the judgment of the lower court that before a document can be excluded on the ground that it was made without prejudice, it must have contained an admission as contemplated of the Act. I am of the opinion that this submission of the learned Senior Advocate with due respect cannot be correct as the doctrine of “without prejudice” does not exist under our law independent of the provisions of section 25 of the Evidence Act. I can, at least refer to one case – Fawehinmi v. N.B.A (No. 2) (2002) 59 WRN 27;(1989) 2 NWLR (Pt. 105) 558 where the Supreme Court considered section 25 of the Evidence Act very well in the leading judgment of Agbaje, JSC. The passage in the judgment as contained on page 662 reads:
“So, the plaintiff is correct in his submissions to us that once a piece of evidence is relevant, it is admissible irrespective of how it was obtained. The following cases cited namely Sadau v. The State (1968) 1 All NLR 124 at 125; Igbinoma v. The State 25 C.S at 15-16, and Torti v. Ukpabi (1984) 1 SCNLR 214 support this proposition. The statements of the three Senior Learned Advocates of Nigeria upon which the plaintiff relied in his application to restrain them from appearing in this case were clearly admissions within the meaning of that word in sections 19 and 20 of the Evidence Act.
His Lordship therefore concluded that it cannot be argued that the three Senior Advocate whom the plaintiff sought to restrain by the application in question from appearing in this case are no parties technically speaking to that application so that any relevant admission made by them will ordinarily be admissible against them in that proceeding. On section 25 of the Evidence Act his Lordship did clearly state that the section grants privilege from disclosure to court on admission made upon express condition that evidence of it is not to be given or in the circumstances from which the court can infer that parties agreed together that evidence of it should not be given.
Beside the authority, by section 25 of the Evidence Act which requires that a piece of evidence must constitute an admission before it can be excluded as a privileged communication, even the common law which the learned Senior Advocate relies upon requires no less. Hence in Fawehinmi v. N.B.A. (No. 2) (supra) reference was made to Phipson on Evidence 12th edition page 295 paragraph 679 which says.
“Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admission: the law on grounds of public policy, protecting negotiation bona fide entered into for the settlement of disputes. The rationale of the doctrine is a complex of factors. The policy of the law is to encourage settlement. It is thought to be “unfair” that advantage should be taken of the willingness of a party to negotiate, and some cases discover an express or implied contract between the parties that without prejudice communications should not be disclosed. Wigmore thought that the doctrine was based on the fact that the statement was conditional, but this is inconsistent with the English and Common-wealth authorities ………..”
From the italicized portion of the above passage it can be seen that at common law what is prohibited is the use of admissions contained in offers of compromise made “without prejudice”. Where no admission is contained in such offers no prohibition is envisaged. It is for this reason I agree with the 2nd – 14th respondents’ counsel that the argument of appellants’ counsel is flawed. Seeing this issue from another angle still the arguments of learned counsel for the appellants must fail in that the letter exhibit “CC” was not admitted in evidence to prove any admission against the 1st appellant but rather it was admission to prove the instruction given to the 1st respondent which led to the writing of exhibit ‘D’ by the 1st respondent. The learned trial Judge emphasized on this point thus:
“It is clear that the words “without prejudice” cannot operate to prevent a letter which show the clear instructions of the 2nd defendant to the 1st defendant from being relied on in evidence. Exhibit ‘D’ is dated 16/1/95. It was written by the 1st defendant to the plaintiffs’ counsel informing him of his instructions from the 2nd defendant.”
It is in the light of the foregoing I shall rest my judgment on this ground and resolve the issue in favour of the respondents.
The second issue for determination in this appeal is whether the learned trial Judge was not in error in his holding as valid the agreement for the distribution of the estate of the deceased purportedly signed on July 14, 1995, by persons who claimed to be Administrators of the deceased such agreement being purportedly reached consequent upon negotiations carried out “without prejudice” as opposed to the distribution as contained in the will of the deceased which had been pronounced valid by the Supreme Court in its judgment dated February 6, 1996.
The learned counsel for the appellants having repeated his earlier submission that the learned trial Judge was wrong by admitting in evidence the agreement, exhibit ‘L’ and acting on it, he further submitted that even if the trial Judge was right on doing so that he committed a serious error by holding in effect that the contents of that document have a binding effect on the beneficiary mentioned in the will of the deceased, the will having been pronounced valid by the Supreme Court. It is contended that the pronouncement of the validity of the will dated 21/8/47 means that the contents of will came to life on 16/1/66 the day the deceased died. In consequence, the letters of administration granted otherwise than was provided for in the will were and are, and will continue to be null and void. It is therefore submitted by the learned Senior Advocate for the appellants that all acts performed and all other things done by the Administrators purported under the void appointment must be void and of no effect whatsoever.
The learned counsel for the 2nd – 14th respondents in his brief gave the antecedents of the agreement between the parties which the respondents sought to enforce and submitted that the agreements is valid in law. However he is of the opinion that there is misconception in the issue formulated by the appellants in that exhibit ‘L’ which was signed by the Administrator/Administratrix as agreement between the parties. I agree too that exhibit ‘L’ is no agreement between the parties. It would appear that the agreement between the parties exists independent of exhibit ‘L’. It is shown from the evidence of PW1 and PW2 that exhibit ‘L’ was used as a document to facilitate the withdrawal of the funds in court in England.
Evidence on record clearly demonstrates this point. On page 202 of the record PW1 testified thus:
“Exhibit ‘L’ was drawn in accordance with the agreement that we had already reached to settle the dispute in the estate. The terms of the document is only a reflection of the agreement. It was sent to Herbert Smith and Co. to enable him continue proceedings in the English court to get funds in England. The funds were in court in England as at that time.”
On page 204 PW2 testified thus:
“I have seen exhibit ‘L’ before I signed it. The first plaintiff signed also. It was sent to me by Mr. Fred Egbe. It reflects the terms agreed upon and communicated to Mr. Fred Egbe. After signing exhibit ‘L’ we sent the document to Mr. Fred Egbe who took it to 2nd and 3rd defendant. Their signature is on the document. After the four Administrators signed, it was taken to the solicitors in England to file application for release of fund in England. The order was granted on 28/11/95.”
On page 206 lines 22-28 PW2 further testified as follows:
“We entered into agreement as children and beneficiaries. The Administrators were only used as an instrument to get the fund released. The fact that 2nd defendant signed the document reflecting terms of agreement shows that she is in support of our proposal. She accepted terms of the agreement. It is not true that we connived with Mr. Egbe to make 2nd and 3rd defendant to accept the terms of the agreement.”
With these testimonies the learned trial Judge on his part had no difficulty in stating what constitute the agreement between the parties. On page 574 of the record he held thus:
“It is not in dispute that all the terms agreed by the plaintiffs and communicated to the 2nd and 3rd defendants through the 1st defendant are reflected in exhibit ‘L’.”
On page 576 the learned trial Judge further held:
“It is trite law that an agreement could be in writing, oral or could be inferred by conduct. The age old view is that an agreement requires the identification of a valid offer and a valid acceptance of the offer but where the parties agreed on all material points, then there is no need to look for offer and acceptance. See the observations of Lord Denning in Gibson v. Manchester City Council (1978) 2 All ER page 583, Butler Machine Tool Co. Ltd. v. Ex-cell-Corp Ltd. (1979) 1 All ER 965. Once a consensus ad idem can be inferred then the agreement exist.”
Having carefully considered the testimony of all the witnesses, letters and documents tendered and a number of authorities, the learned trial Judge found as of fact that the parties, with the exception of the 1st respondent entered into an agreement to share the money forming part of the residue of their deceased father’s estate and that exhibit ‘L’ was an instruction to the solicitors to effect transfer of the funds in accordance with the agreement. However the learned Senior Advocate for the appellants submitted that the agreement exhibit ‘L’ is null and void and therefore incapable of conferring any rights or obligations on any of the parties to it or upon any other persons.
I have dwelt at some length over the question of the terms of the agreement, which are repeated in exhibit ‘L’. I have also reproduced some parts of evidence of the witnesses and excerpts of the learned trial Judge in his conclusions. I am of the firm view that the parties are ad idem on all the terms in the agreement.
The corollary of this view is that I am prepared too to hold that the agreement between the parties for the distribution of the estate of the deceased is valid in law. In deciding this point I will apply the doctrine of equity “pacta sunt servanda” which means that agreement voluntarily entered into must be honoured in good faith. For equity would not allow the law to be used as an engine to defraud. See Hart v. T.S.K. J. Nigeria Ltd. (1998) 12 NWLR (Pt. 578) 372. In the instant case it was the 1st appellant who by means of exhibit ‘CC’ set in motion the process leading to the agreement for distribution of the estate of the deceased. In reliance on the 1st appellant’s representation the respondents expended time and material resources to carefully deliberate on an acceptable formula for distribution of the said estate at the end of which exhibit ‘CC’ was adopted. Equity looks at the intent rather than form and will impute an intention to fulfil an obligation.
In the case of National Insurance Corporation of Nigeria Ltd. v. Power and Industrial Engineering Co. Ltd. (1986) 1 NWLR (Pt. 14) 1 at 29, Aniagolu, JSC had this to say:
“Equity, as we all know, inclines itself to conscience reason and good faith and implies, system of law disposed to a just regulation of mutual rights and duties of men, in a civilized society. It does not envisage sharp practice and undue advantage of a situation and a refusal to honour reciprocal liability arising therefrom; it will demand that a person will enter into a deal as a package-enjoying the benefits thereof and enduring, at the same time, the liabilities thereon.”
Again, because equity frowns at an unconscionable use of a person’s rights at common law, it generally acts in conscience.
Hence, in Earl of Oxford’s case (1615) 1 REP CHD, 20 digest (Rep) 252 it is stated thus:
“….. Equity looks at the intent rather than the form and will impute an intention to fulfill an obligation. It will impute an intention that the appellant, far from scuttling away from its valid obligation to the respondent, will fully honour its agreement, entered into in January 1978, to indemnify the respondent upon its loss …. It runs against all accepted notions of justice that the appellant should pocket the premium and turn round to jettison the liability.”
When the 1st appellant instructed the 1st respondent vide exhibit ‘CC’ to initiate process for settlement of the dispute with her brothers and her sisters regarding distribution of the estate of their deceased father, the 1st appellant really commanded some respect and honour as a lady who exhibited a large heart in the eyes of her other siblings, although the motive may be that even if she subsequently loses her appeal at the apex court, which was yet unheard, and which effect was then a probability, she would have saved her face boldly and standing tall before them that she had after all agreed before the appeal was concluded that the estate of the deceased be shared equitably. One wonders if she had lost the appeal she would have challenged the validity of the agreement with the 2nd –14th respondents. I agree with this line of reasoning by the respondents because all the arguments in the appellants brief against the validity of the agreement revolve around the judgment of the Supreme Court, which declared the 1st appellant the sole beneficiary of the estate of her deceased father.
To my mind it is an equitable principle that where a legatee under the will or other testamentary instrument who has instituted an action to prove the will makes a proposal while the action was still pending, to other persons (as in this case 1st appellant to her blood relation) who would otherwise have been beneficiaries of the estate of the testator but for the provisions of the will that she would not enforce her legal right to the legacy under the will but that the estate should be distributed among all the beneficiaries and those other beneficiaries in reliance on the representations of the legatee to steps to deliberate on the representations and both sides agree on a formula for distribution of the estate, equity would not allow the legatee to enforce her right to the legacy and abandon the agreement if she afterward wins her suit. This principle is based on the equitable maxim that equity imputes an intention to fulfil an obligation.
Another reason given by learned counsel for the appellants for contending that the agreement was invalid is that since the Supreme Court had declared the letters of administration to be null and void then all actions which were done by the Administrators were null and void, and that the learned trial Judge was wrong in holding that section 41 of the Administration of Estates Law of Lagos State invalidated the acts of the Administrators. I agree with the respondent’s counsel that the arguments of the learned SAN for the appellants in the effect of the nullification of the letters of administration granted to the Administrators on the agreement between the parties were based on the erroneous premise that exhibit “L” constitutes the agreement between the parties and that those who signed it as Administrators had lost their capacity by reason of the judgment of the Supreme Court. I do not agree that the nullification of the letters of Administrators affected the validity of the agreement. Firstly the letters of administration were granted to only four persons, but the agreement in issue in this case was between the respondents and the 1st and 2nd appellants. It would appear to me that those who had agreed to share in the estate of the deceased should not base their agreement on the letters of administration. In other words the existence or non-existence of the letters of administration has no bearing on the existence or validity of the agreement. I have said before that exhibit ‘L’ was signed by the four Administrators only intended to facilitate the withdrawal of funds from England. Moreover, the respondents call in aid of their argument section 41(1) of the Administration of Estates Law Cap. 3, Laws of Lagos State, 1994 which effectively validates the acts of the Administrators in executing exhibit ‘L’. That section provides:
“41(1)All conveyances of any interest in real or personal estate made to a purchaser either before or after the commencement of this law by a person to whom probate or letters of administration have been granted are valid, not withstanding any subsequent revocation or variation, either before or after commencement of this law, of the probate or administration.”
Under the law the “purchaser” is defined thus:
“Purchaser” means a lessee, mortgagee or other person who in good faith acquires an interest in property for “valuable consideration”, which includes marriage, but does not include a nominal consideration in money.”
I am of the opinion too that the 2nd –14th respondents as plaintiffs come within the purview of “other persons” in the definition of “purchaser” above. They are persons who have acquired an equitable interest in the money transferred – into the 1st respondent’s account – vide exhibit “L”. I respectfully hold the same view with the learned trial Judge that the “plaintiffs” are other persons who acquired in good faith an interest in the funds in England for valuable consideration. Accordingly, I resolve this second issue in favour of the respondents.
In the third issue the reason by the learned counsel for the appellants for contending that the agreement between the parties was invalid is that the judgment of the Supreme Court delivered on 6/2/96 had superseded the said agreement and therefore that the parties were no longer bound by the latter. The Supreme Court decision is reported in Jadesimi v. Okotie-Eboh (1996) 2 NWLR (Pt. 428) 128. The learned trial court did not in any part of his judgment hold that the agreement had the effect of nullifying the decision of the Supreme Court. On page 590 of the record this is what the learned trial Judge said:
“The Supreme Court in an unanimous judgment delivered on 6/2/96 the judgment of the Court of Appeal was set aside and the judgment of the High Court affirmed. The issue for determination before this court is the enforceability of an agreement, while the issue before the Supreme Court was the validity of a will. The matter before me was never before the Supreme Court, neither was it before the Court of Appeal or the High Court. Mrs. Alero Jadesimi stated in evidence as follows:
‘No court in Nigeria has pronounced on exhibit ‘L’
We are here for the court to decide on exhibit ‘L’. This is further affirmative evidence that the issue before this court is before the court for the first time. The courts have nothing to do with what is not before them.
In the light of the above I fail to see how the decision of the Supreme Court affects the enforceability of an agreement that was never brought to the notice of the Supreme Court when the issue of validity of the will was before it.’”
I have before now narrated the relevant facts leading to the Supreme Court judgment. Let it be noted however that, it was only in 1971 the 1st and 2nd respondents and the appellants herein applied for and were granted letters of administration over the estate of the deceased. But at the time of applying for and the grant of the letters, the applicants were not aware that the deceased had made a will in 1947. The will was discovered in 1984 whereupon the 1st appellant commenced in the High Court of Lagos State an action in suit No LD/912/84 against her mother the 2nd appellant herein and the 1st and 2nd respondents, claiming that the court should pronounce for the force and validity of the last will and testament of the deceased in 1947. It was the 1st appellant who won in the High Court, but upon appeal by the 1st and 2nd respondents herein, the Court of Appeal reversed the judgment. On appeal the Supreme Court allowed the appeal. In his leading judgment Uwais, CJN on page 148 of the report concluded and ordered thus:
“I therefore came to the conclusion that the Court of Appeal erred in its decision that exhibit ‘P1’ was revoked by reason of 1961 marriage between the deceased and the 1st respondent. Consequently, the appeal succeeds and I allow it. The decision of the Court of Appeal is set aside and I restore the judgment of the trial court which arrived at the right decision by wrong reasoning. Accordingly, I hereby pronounce for the force and validity of the last will and testament dated 21st day of August 1947. (Exhibit P1) of Chief Festus Samuel Okotie-Eboh ………………………”
I have perused with keen interest the Supreme Court judgment in Jadesimi v. Okotie-Eboh (supra) from where the above passage was extracted. It seems to me, too that the crucial issue as to who is a beneficiary or sole beneficiary of the estate of the deceased was neither raised nor discussed. It was not decided. However, the two issues before the court were as to the validity of the will of the deceased and the revocation of the letters of administration granted in respect of the estate. It is in the light of this and the background facts that I hold that the judgment of the Supreme Court cannot in any way, be held to have invalidated the agreement on the distribution of the estate which was reached by the offspring of the deceased before the date of the delivery of judgment.
I have also carefully considered the following reasons, advanced by the learned counsel for the 2nd – 14th respondents, why this issue ought to be resolved in their favour. Firstly, because all the children of the deceased and the 2nd appellant who are parties to the agreement knew that the appeal in the Supreme Court was still pending at the time the agreement to share the estate of the deceased was reached. Secondly, it was within the reasonable contemplation of the parties that the judgment in the Supreme Court in whosoever side it favours, the letters of administration would stand. Thirdly, it would seem to me, too that no new event occurred which was not within the contemplation of the parties at the time when they entered into agreement and the occurrence of which could nullify the agreement. Fourthly, the agreement entered into by the parties was not on the basis that the 1st appellant was primarily not entitled to share in the estate of the deceased, such that subsequent delivery of the judgment of the Supreme Court, if it turns in her favour, would turn out to make the agreement to have been entered into on the basis of a mistake. The learned counsel for the 2nd – 14th respondents has contended that by relying on the judgment of the Supreme Court to resile from an earlier agreement reached amounts to pleading mistake in disguise.
Indeed, the appellants cannot, by any stretch of imagination, plead mistake while relying on the judgment of the Supreme Court to resile from the agreement reached with the respondents. I do not think so. As I have said before, no new facts have emerged after the agreement between the parties was reached, that was not within the contemplation of the parties. In other words I do not hold the view that the judgment of the Supreme Court validating the will of the deceased had created a new right in favour of the 1st appellant thereby entitling her to inherit all the personal estate of the deceased. Besides, it is well settled and recognized principle of law that a beneficiary under a will can renounce property devised or bequeathed to him by the will. The learned SAN for the appellants has submitted that the learned trial Judge came to an erroneous and perverse decision by relying on decision of the Supreme Court in the case of N.S.O Ebosie v. J.O. Ebosie and Ors. (1976) 7 SC 119, on the grounds that the facts of that case are totally different from the facts in the instant case. Although the facts and circumstances may not be on all fours with the instant case but the recognized principle of law that a beneficiary under a will can renounce a testamentary property bequeathed to him, to me is still good law. The summary of that case which the learned trial Judge, relied upon, was that the male offspring of the testator were the beneficiaries under his will. In order to create harmony and peace, in the family, the beneficiaries agreed to a scheme of distribution which was outside the provisions of the will of the testator. On the validity of this scheme of distribution agreed by the beneficiaries, Supreme Court held in the following passage in Ebosie’s case (supra) at page 134.
“We are aware that a beneficiary may for some personal reason refuse to accept the property devised or bequeathed to him by will. The reasons for doing this are numerous and we do not propose to catalogue them here. Whatever his reasons may be, even if he has no reason at all, nothing precludes a person from renouncing a testamentary gift ……………………”
In this third issue under consideration the learned Senior Advocate for the appellants had argued in his brief of argument that had the parties so wished, they could have filed the terms of agreement in the Supreme Court for that court to enter judgment accordingly. It was further submitted that the parties cannot be held bound by an agreement which was signed prior to a judgment of the Supreme Court. I respectfully share the same view with the learned counsel for the 2nd – 14th respondents that jurisdiction of the court to enter judgment in accordance with the terms of settlement reached by parties is circumscribed by the claims filed before the court. If the terms of settlement are not within the purview of the plaintiff’s claim, it will be difficult for the court to allow filling of the terms, which will form the basis of the court judgment. The judgment of the court must reflect the claims before the court. This is so because it is a well settled principle that the court has no jurisdiction to grant a relief that has not been claimed. See Obioma v. Olomu (1978) 3 S.C 1 at 7-8, where Sowemimo, JSC (as he then was) had this to say:
“Secondly, we think that, as the reliefs granted by the learned trial Judge were not those sought by the applicants he went beyond his jurisdiction when he purported to grant such relief. It is trite law that the court is without power to award a claimant that which he did not claim…”
I have perused the reliefs in suit No. LD/912/84 which led to the judgment of the Supreme Court as set out in the respondent brief in paragraph 6.2. It is not part of the reliefs sought in the suit that the court should determine the formula of distribution of the estate of the deceased. The Supreme Court cannot and did not therefore, give judgment on such an issue.
It is in the light of this I shall again resolve this issue in favour of the 2nd – 14th respondents. I therefore hold that the judgment of the Supreme Court in Jadesimi v. Okotie-Eboh (supra) did not in any way invalidate the agreement for the distribution of the estate of the deceased.
The fourth issue is whether the learned trial Judge did not adequately consider all the relevant issues raised and canvassed before him.
It is the contention of the learned SAN for the appellants that if the learned trial Judge had subjected all the issues raised and canvassed before him to full and dispassionate consideration, he would have entered judgment in favour of the appellants. He relied on the case of Polycarp Ojogbue and Anor v. Ajie Nnubia and Ors. (1972) 1 All NLR (Pt. 2) 226;(1972) 8 S.C 227. On the other hand, the learned counsel for the 2nd –14th respondents submitted that the learned trial Judge extensively and dispassionately considered all the issues raised by the appellants before arriving at the conclusion that the respondents were entitled to their claims.
Learned counsel for the 2nd –14th respondents has meticulously identified some issues, which he said the learned trial Judge did show dispassionate consideration.
From the record the issues that called for dispassionate consideration of the lower court are the doctrine of lis pendens. The learned trial Judge at page 583 of the record and relying on Combined Trade Ltd. v. A.S. T. B.Ltd. (1995) 6 NWLR (Pt. 404) 709 and Clay Ind. (Nig.) Ltd. v. Aina (1997) 8 NWLR (Pt. 516) 208 page 233 arrived at a conclusion that the doctrine has no application to personal property and therefore it does not apply to this instant case. On misrepresentation, mistake and concealment of material facts, there was lengthy consideration on pages 583-585 of the record. Other issues considered by the learned trial Judge in his judgment which are reflected in the record include allegation of undue influence exerted on the 1st appellant to sign exhibit ‘L’. Another issue considered relevant by the appellants but which that learned counsel for the appellants thought was not dispassionately considered by learned trial Judge would appear essentially the question of, whether from the content of exhibit ‘L’, there was conspiracy, that is whether 1st respondent conspired with the remaining respondents to share the estate of the deceased. The learned trial Judge held that contrary to the allegation of conspiracy, it was on court’s record that he was hostile to the 2nd – 14th respondents.
The complaint of the appellants should not have been that these issues relevant to the determination of the suit at the lower court were not at all considered. It is a different thing all together if they were not resolved in their favour. And if the learned trial Judge has failed to do so, it must be shown that his failure to do so was perverse and it consequently occasioned miscarriage of justice. This is not shown.
Upon careful consideration of the judgment of the lower court, I am of the view that all the relevant issues raised by the appellants in that court were carefully considered. It is not shown that the learned trial Judge has failed to consider relevant and crucial issues in the determination of the case before him.
Having resolved all the issues in favour of the respondents and for the reasons I have stated in this judgment, the appeal fails and is dismissed. I award N10,000 costs to the respondents.
JAMES OGENYI OGEBE, JCA:
I read in advance the lead judgment of my learned brother Galadima, JCA just delivered and I agree entirely with his reasoning and conclusion. He has dispassionately resolved all the issues in this appeal and I have nothing useful to add. I too dismiss the appeal and endorse the order of costs made in the lead judgment.
CHUKWUMA-ENEH, JCA:
I have had the advantage of perusing in draft the judgment just delivered and I agree with the reasoning and conclusions reached by my learned brother Galadima, JCA. I also dismiss the appeal with N10,000 costs to the respondents.
CASES REFERRED TO IN THE JUDGMENT:
Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511.
Butler Machine Tool Co. Ltd. v. Ex-cell-Corp. Ltd. (1979) 1 All ER 965.
Clay Ind. (Nig.) Ltd. v. Aina (1997) 8 NWLR (Pt. 516) 208.
Combined Trade Ltd. v. All States Trust Bank Ltd. (1995) 6 NWLR (Pt. 404) 709.
Earl of Oxford’s case (1615) 1 Ch.D. 20.
Ebosie v. Phil-Ebosie (1976) 7 S.C 119.
Fawehinmi v. N.B.A (No. 2) (2002) 50 WRN 27;(1989) 2 NWLR (Pt. 105) 558.
Gibson v. Manchester City Council (1978) 2 All ER 583.
Hart v. T.S.K. J. Nig. Ltd. (1998) 12 NWLR (Pt. 578) 372.
Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563.
Igbinoma v. State 25 C.S 15.
Jadesimi v. Okotie-Eboh (1996) 2 NWLR (Pt. 428) 128.
N.I.C.O.N v. Power AND Industrial Engineering Co. Ltd. (1986) 1 NWLR (Pt. 14) 36.
Obioma v. Olomu (1978) 3 S.C 1.
Ojogbue v. Nnubia (1972) 1 All NLR (Pt. 2) 226;(1972) 8 S.C 227.
Onyeanwusi v. Okpukpara (1953) 14 WACA 311.
- v. Agwuna (1949) 12 WACA 456.
R.v. Itule (1961) 2 SCNLR 183; (1961) All NLR 462.
Sadau v. State (1968) 1 All NLR 124.
Torti v. Ukpabi (1984) 1 SCNLR 214.
Statutes referred to in the judgment
Evidence Act Cap. 112, Laws of the Federation of Nigeria 1990 Ss. 5(a), 19, 20, 25 AND 170.
Evidence Ordinance Ss. 27-32.
Lagos State Administration of Estates Laws Cap. 31 Laws of Lagos State 1994 s. 41.
Book referred to in the judgment
Phipson on Evidence 12th ed. p. 295 para. 679.
