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12TH MARCH, 1971

SUIT NO. SC. 167/1968.

3PLR/1971/41  (SC)

















Alli-Balogun for the Defendants/Appellants. Lardner for the Plaintiff/Respondent.






MADARIKAN, J.S.C. (delivering the judgement of the Court): The appellants were the defendants in the Lagos High Court (Suit No. M/74/66). The respondent who was the plaintiff endorsed his writ as follows:-


“The plaintiff’s claim against the defendants is for a declaration that he together with any or all of the defendants are entitled to administer the estate of the deceased Yesufu Akanbi Kekereogun.


  1. Alternatively that the defendants be restrained from administering the estate of the late Yesufu Akanbi Kekereogun to the exclusion of the plaintiff.”


The facts are fairly simple. The plaintiff is a first cousin of the deceased, Yesufu Akanbi Kekereogun, who died at Jeddah on the 28th April, 1965, whilst on pilgrimage to Mecca. The 1st, 2nd and 3rd defendants are half brothers of the deceased. On the 8th June, 1965, the plaintiff applied to the Probate Register for a grant of letters of administration jointly to both the 1st defendant and himself to enable them to administer the estate of the deceased, and on the 15th February, 1966, the defendants lodged a caveat against the said application. The plaintiff then warned the caveators by filing and causing to be served on them an affidavit of interest. After the defendants had entered an appearance to the warning, the plaintiff took out the writ of summons in this case.


In his statement of claim, the plaintiff avers, inter alia, that:


“8.     The deceased during his life time was a contractor and in his business dealing the plaintiff was an associate.


  1. The deceased owned 28A, Adams Street but as the building was not of sufficient value the plaintiff who is the owner of 37, Adams Street mortgaged his own property to the African Continental Bank Limited in 1962 to secure an overdraft of £290 to the deceased.


  1. The plaintiff apart from the mortgage of his property was also a surety on account of the overdraft referred to in paragraph 9 supra.


  1. The deceased had not repaid the said overdraft in full prior to his death on the 26th April, 1965.


  1. The balance outstanding in the account of the deceased with the African Continental Bank Limited as on the 25th May, 1965 was £1,217-5s.-IOd.


and concluded by stating that “in view of paragraphs 8, 9, 10, 11 and 12 above, he is entitled to join in the administration of the estate of the deceased”.


The answers of the defendants to these averments are contained in paragraphs 3 to 7 of their statement of defence and are as follows:


“3.     The defendants deny emphatically paragraphs 5, and 10 of the plaintiff’s statement of claim and maintain that the plaintiff without the knowledge and consent of the defendants made application in his own name and that of the 1st defendant and when the 1st defendant knew about it he (the 1st defendant) vehemently opposed this.


  1. The defendants admit that the deceased was a contractor during his life time but maintain that the plaintiff was never a business associate of the deceased.


  1. The defendants emphatically deny the statement of the plaintiff relating to the mortgage of 37, Adam Street, Lagos to the African Continental Bank in 1962 to secure an overdraft for the deceased.


  1. The defendant avers that the property No. 37, Adam Street, Lagos belonging to the plaintiff was about to be sold by the National Bank and the mortgage was later transferred to the African Continental Bank by the assistance of the deceased, and this property i.e. 37, Adam Street, Lagos was not mortgaged by the plaintiff owner to secure an overdraft for the deceased but the plaintiff owner mortgaged the property entirely on his own initiative.


  1. The defendants maintain that the plaintiff had no right whatsoever to join in the administration and that the proper persons to administer the estate are the defendants. WHEREUPON the defendants maintain that the defendants are the rightful persons to administer the estate of the deceased.”


In the course of his reserved judgement, the learned trial judge made the following findings of facts:


“the plaintiff, Alimi Hamza Oshodi and the deceased Yesufu Akanbi Kekereogun were each the son of two sisters of the full blood, both now deceased.


“The deceased died inestate. He was afflicted with the bane of childnesses as he left neither a child not a wife. He, however, left a house and landed property, 28a, Adams Street, Lagos, which he acquired by his own able efforts. The first three defendants were born of the same father as the deceased and the 4th defendant was the half-brother on the father side of the mother of the deceased.”


After expressing the view that:


“the plaintiff’s claim is quite strong so as to include him among the administrators while on the other hand the defendant’s refusal to have him among the administrators is unreasonable and is such on the balance of relationship, that the court cannot support it.”


he entered judgement for the plaintiff and ordered:


(1)     that letters of administration and the estate of the deceased be granted to the plaintiff and the 3rd defendant; and


(2)     that the 1st, 2nd and 4th defendants be restrained from intermeddling with the estate.


The defendants have appealed to this Court against that decision. At the hearing of the appeal, learned counsel for the appellants, Mr. Balogun, indicated that he did not intend to pursue the appeal of the 4th defendant; and his appeal is hereby dismissed.


The plaintiff has based his case on two main props, viz, that he is a first cousin of the deceased and that by a guarantee dated the 14th of April, 1962 (exhibit 4), he guaranteed the repayment to the African Continental Bank Limited of credit facilities not exceeding £1,800 granted by the bank to the deceased.


Before us on appeal, Mr. Balogun has submitted that as between the 1st, 2nd and 3rd defendants who are half-brothers of the deceased and the plaintiff who is a cousin of the deceased, the 1st, 2nd and 3rd defendants have a prior right to administration. As it has not been suggested that the deceased was survived by a widow, the only matter on this appeal is to determine who are the next-of-kin of the deceased. The rules governing the rights to administration in Nigeria in the circumstances of this case are the rules in England where death occurred there before 1926 and are set out on pages 166 and 167 of Williams on Excutors and Administrators 13th Edition as follows:-


“in the first place the children and their lineal descendants to the remotest degree, and on failure of children, the parents of the deceased are entitled to the administration;


then follow brothers and sisters,


then grandfathers and grandmothers,


then uncles or nephews, great-grandfathers and great-grandmothers,


and lastly cousins”


“When the contest is between one of the half blood, the whole blood is preferable in the grant of administration to the half blood, though the majority of interests concur in the latter, unless material objections can be proved against the claimant of the whole blood.”


In our view, there can be no question that as between the 1st, 2nd and 3rd defendants who are half-brothers of the deceased and the plaintiff who is his cousin, the 1st, 2nd and 3rd defendants as next-of-kin have the right to administration.


In answer to the second ground relied upon by the plaintiff, it was Mr. Balogun’s contention that the plaintiff as a guarantor was not entitled to a grant of administration in the circumstances of this case where the next-of-kin are willing to take out a grant. In his reply, learned counsel for the plaintiff, Mr. Lardner, referred us to section 73 of the Court of Probate Act, 1857, (English) which reads as follows:-


“Where a person has died or shall die wholly intestate as to his personal estate, or leaving a will affecting personal estate, but without having appointed an executor thereof willing and competent to take probate, or where the executor shall at the time of the death of such person be resident out of the United Kingdom of Great Britain and Ireland, and it shall appear to the Court to be necessary or convenient in any such case by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the personal estate of the deceased, or of any part of such personal estate, other than the person who, if this Act had not been passed, would by law have been entitled to a grant of administration of such personal estate, it shall not be obligatory upon the Court to grant administration of the personal estate of such deceased person to the person who, if this Act had not passed, would by law have been entitled to a grant thereof, but it shall be lawful for the Court, in its discretion, to appoint such person as the Court shall think fit to be such administrator, upon his giving such security (if any) as the Court shall direct; and every such administration may be limited as the Court shall think fit.”


Concisely put, Mr. Lardner’s argument was that the plaintiff’s contention that he and the deceased were business associates and the fact that the plaintiff was the guarantor of the deceased in the bank in respect of an account in which there was an outstanding balance of £1,112-16s-3d were special circumstances which should justify the court in exercising its discretion under section 73 to make the grant of administration in the terms sought by the plaintiff. In support of his argument, counsel relied on the case of In the Goods of James Browning (1861) 164 E.R. 1144.


That case concerned the estate of one James Browning who died intestate in 1861 and was survived by his widow, Mary Ann Grace his sister and only next-of-kin, six nephews and six nieces. The deceased was in a big way of business as a merchant and left personal property to the value of £110,000. One of his nephews entered a caveat to the grant of letters of administration of his estate but an arrangement was afterwards come to between the widow, nephews and nices of the deceased that the caveat should be withdrawn and that in consideration of the large amount of the estate, an application should be made to the court for a grant of administration to be decreed to the widow and the caveator, with the consent of two other nephews of the deceased who were partners in the business of the deceased and were willing to execute the administration bond as sureties. The application was however refused by the judge who said:


“If I am to make a joint grant of administration at all, it must be to the widow and to the sister, as the next of kin of the deceased. I am of opinion that the statute 21 Hen. VIII. c. 5, s. 3, precludes me from joining the nephew, who is only a person entitled in distribution, and not next of kin of the deceased, in the grant. Neither can I make the grant under section 73 of the Probate Act.”


In our view, Browning’s case (supra) does not support the contention of Mr. Lardner. Indeed, it is the very antithesis of it as in that case notwithstanding the fact that all persons interested in the estate consented to a joint grant of administration being made to the applicants, the court refused to make such a grant to a person who was not the next-of-kin of the deceased. On the facts of the instant case, we are satisfied that no special circumstances have been shown for invoking the aid of section 73 of the Court of Probate Act, 1857.


In the event, we have come to the conclusion that the plaintiff was not entitled to the reliefs sought on either of the grounds relied upon by him. The appeal therefore succeeds and it is allowed. The judgement of the High Court Lagos, in Suit No. N/74/66 is set aside.


We accordingly order:


(1)     that the plaintiff’s claim be and it is hereby dismissed;


(2)     that letters of administration of the estate of Yesufu Akanbi Kekereogun deceased be granted to the 1st, 2nd and 3rd defendants i.e. Rufai Kekereogun, Yakubu Kekereogun and Raimi Kekereogun; and


(3)     that these shall be the orders of the Court. The 1 st, 2nd and 3rd defendants are entitled to their costs of this appeal from the plaintiff which we assess at 55 guineas.


Appeal allowed:


Judgement of High Court set aside: Plaintiffs claim dismissed:


Letters of Administration granted to 1st, 2nd and 3rd Defendants.



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