➥ CASE SUMMARY OF:
Alero Jadesimi & Anor. v. Fred Egbe & Ors. (2003) – CA
by Branham-Paul C. Chima
Court of Appeal
36 WRN 79
➥ JUDGEMENT DELIVERED ON:
➥ AREA(S) OF LAW
Equity looks at intention.
➥ PRINCIPLES OF LAW
⦿ A RESPONDENT CANNOT FRAME ISSUE OUTSIDE THE APPELLANT’S GROUNDS, EXCEPT CROSS-APPEAL
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. — S. Galadima, JCA.
⦿ IT IS THE EVIDENCE ACT THAT DETERMINES ADMISSIBILITY
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. — S. Galadima, JCA.
⦿ THE PROVISION OF EVIDENCE ACT THAT GUIDES ADMISSIBILITY OF “WITHOUT PREJUDICE”
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. — S. Galadima, JCA.
⦿ PRECONDITIONS BEFORE INADMISSION OF “WITHOUT PREJUDICE”
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. — S. Galadima, JCA.
⦿ A BENEFICIARY CAN CHOOSE TO RENOUNCE GIFT GIVEN IN A WILL
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. — S. Galadima, JCA.
⦿ TERMS OF SETTLEMENT MUST RELATE TO PLAINTIFFS CLAIM BEFORE IT CAN BE ENFORCED
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. — S. Galadima, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Suleiman Galadima, JCA.
⦿ FOR THE APPELLANT
Kehinde Sofola SAN
⦿ FOR THE RESPONDENT
Fred Egbe Esq.
Tayo Oyetibo, Esq.
➥ CASE FACT/HISTORY
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.
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.
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.
➥ ISSUE(S) & RESOLUTION(S)
I. 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?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE “WITHOUT PREJUDICE” DOCUMENT DOES NOT CONTAIN AN ADMISSION
“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.”
“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.”
II. 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 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?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE APPELLANTS WERE THE ONES WHO SET THE PROCESS IN MOTION FOR THE AGREEMENT
“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.”
B. THAT THERE WAS AN AGREEMENT THAT THE ESTATE WILL BE SHARED EQUALLY
“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.”
C. THAT THE APPELLANTS, LEGATEES, HAVE WAIVED THEIR RIGHT BY REACHING THE AGREEMENT
“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.”
D. THAT THE AGREEMENT REACHED IS NOT BASED ON THE VALIDITY OF THE LETTERS OF ADMINISTRATION
“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.”
III. 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?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE JUDGEMENT ON THE WILL CANNOT INVALIDATE THE AGREEMENT
“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.”
B. PARTIES HAD IN CONTEMPLATION THE CASE AT THE SUPREME COURT NONETHELESS
“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.”
IV. 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?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THERE WAS NO MISCARRIAGE OF JUSTICE
“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.”
“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.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
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.”
Section 41(1) of the Administration of Estates Law Cap. 3, Laws of Lagos State, 1994: “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.”
➥ REFERENCED (CASE)
⦿ EQUITY ACTS ON CONSCIENCE
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.”
⦿ EQUITY LOOKS AT THE INTENT RATHER THAN THE FORM
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.”
➥ REFERENCED (OTHERS)