ONAYEMI V. OKUNUBI (1965) LCER-350(SC) #

Case Summary #

This appeal borders on Probate and Administration of Estate.

Brief Facts: #

This appeal contests the judgment of the High Court of Lagos. Following the passing of Emmanuel Musuru Okunubi, he left a will containing specific dispositions and a final bequest to his children in equal shares of the residue, both real and personal. He appointed three executors, two of whom were sued by the plaintiffs, who are beneficiaries under the will.

Caxton-Martins Ag. J. ruled in favor of the respondents, directing an account of the estate and appointing the first plaintiff, Olatunji Okunubi, as administrator due to the defendants’ failure to file an account despite obtaining probate ten years earlier. This failure was deemed gross negligence.

The court ordered the defendants to file the account immediately and appointed the first plaintiff as administrator, absolving him of liability for the period covered by the defendants’ administration. Only one of the executors appealed to the Supreme Court.

Legal Issues: #

The appellant argued this appeal on the following grounds:

1. That the learned trial judge erred in law in giving judgement for the plaintiffs when all the beneficiaries were not before him.

2. That the learned trial judge erred in law in making the Order to join the first plaintiff as an ‘administrator’ when he has no jurisdiction to make any such Order.

3. That the learned trial judge erred in law in holding that the plaintiffs can ask for an account otherwise than in the manner prescribed under Order 48 of the Rules of alternatively by Originating Summons.

4. That the learned judge erred in law in saying that the defendants are guilty of “gross dereliction of one of their most important duties” because they did not file an account since they obtained Probate when there is no obligation upon them by law to file any such account .

Ratio Decidendi #

ACTION – NON-JOINDER OF PARTY(IES) – Whether the non-joinder of a party can defeat an action #

“It is clear from the notes under Order 16, R.11, of the English Rules of the Supreme Court in the White Book for 1963 (“Application of Rule-Misjoinder, Non-joinder”, at p.346) that non-joinder cannot defeat a claim. It rests rather with the defendant to raise, as early as possible, the point that not all interested persons are before the Court, so that the Court may direct the plaintiff to give them notice and have everybody concerned as a party at the trial: see Sheehan v. Great Eastern Railway Co. (1880) 16 Ch. D.59, at p. 64.” Per VAHE ROBERT BAIRAMIAN, JSC in ONAYEMI V. OKUNUBI (1965) LCER-350(SC) (Pp 4 – 4 Paras A – D)

Decision/Held: #

The appeal was allowed in part to the extent that the part of the judgment which appointed the 1st plaintiff Olatunji Okunubi as an administrator was set aside.