LIJADU V. FRANKLIN (1965) LCER-354(SC) #

Case Summary #

This appeal borders on Civil Procedure

Brief Facts: #

This appeal challenges the ruling of the High Court of Lagos. Reverend Moses Folarin Lijadu initially filed suit against Mrs. Adedoyin Franklin in the same court, seeking an Order for her to execute a deed transferring ownership of a parcel of land, specifically No. 5 Campbell Street, Lagos, to him. However, the court dismissed the action. Reverend Lijadu then filed notice of appeal with the Supreme Court, but unfortunately passed away before the appeal could be heard.

The current motion before us is brought by the executors of Reverend Lijadu’s will, seeking to be substituted as appellants in his place on the record. While Mrs. Franklin does not oppose this substitution in principle, she has raised a procedural issue. She notes that the will has only been granted probate in the High Court of Western Nigeria, and argues that for the executors to have the requisite standing to pursue this appeal, the probate must also be recognized by the High Court of Lagos through a process known as resealing. The executors contest the necessity of this step.

Legal Issues: #

The Court determined the propriety of the application

Ratio Decidendi #

WILLS AND PROBATE – RESEALING – Requirements of the law as to resealing of a will #

“The rule is stated in Dicey’s Conflict of Laws, 7th edition, Rule 103 as follows:- “A grant of administration or other authority to represent a deceased person under the law of a foreign country (i.e. any country which is not England), has no operation in England.” Its effect was explained by Scrutton, J., in Haas v. Atlas Assurance Company Limited [1913] 2 K.B. 209, in these terms:- “An executor could not assert or rely on his right in any Court without showing that he had previously established it in the Probate Division either by suit, by probate in solemn form, or in the ordinary form. The usual way in which he proved it was by the production of a copy of the will certified under the seal of the Court. That state of the law was described by Jervis C.J., in Johnson v. Warwick 17 C.B. 516, as being that the Court had not the legal optics through which to look at the will until the will was proved in the form provided by English law.” The rule of common law was reinforced by the Revenue Act, 1884, and modified by the Revenue Act, 1889, but these Acts do not, in our view, apply in the Federal territory as statutes of general application, and in any event they have no bearing on the present question. The passage cited from Haas v. Atlas Assurance Company Limited refers to some of the methods by which an executor may establish his right. In addition, probate granted in Northern Ireland, Scotland, or specified parts of the Commonwealth will be recognised by the English Courts if the grant has been resealed in England; See Halsbury’s Laws of England, 3rd edition Volume 16 pages 256-263. In Nigeria, the Probates (Resealing) Act Cap. 161, makes similar provision, and enables probate granted in any part of the Commonwealth to be resealed in the High Court of Lagos.” Per LIONEL BRETT, JSC in LIJADU V. FRANKLIN (1965) LCER-354(SC) (Pp 2 – 3 Paras B – F)

Decision/Held: #

The Supreme Court held that the applicants must have their grant resealed in the High Court of Lagos if they wish to pursue the appeal, and the motion was allowed subject to the condition that within four weeks they make the necessary application for the purpose and they should inform the Registrar of the Supreme Court when the resealing has been carried out, so that the appeal may be set down for hearing.