ALHAJI MOJIDI ODUTOLA V. CHIEF MOTOLANI ADEROGBA AJAO & ORS

Legalpedia Citation: (2025-07) Legalpedia 63997 (CA)

In the Court of Appeal

Holden at Lagos

Tue Jul 22, 2025

Suit Number: CA/L/490/2009

CORAM

Yargata Byenchit Nimpar Justice of the Court of Appeal

Abdulazeez Muhammed Anka Justice of the Court of Appeal

Uwabunkeonye Onwosi Justice of the Court of Appeal

PARTIES

ALHAJI MOJIDI ODUTOLA

APPELLANTS

1. CHIEF MOTOLANI ADEROGBA AJAO

2. CHIEF (MRS.) ADEBOLA ASAKE ADESIDA

3. BASHORUN ADEBAYO ATANDA AJAO

(Personal Representative of Late Chief Joseph Adediran Ajao) 4. MR. ROTIMI BALOGUN

5. PERSONS UNKNOWN

RESPONDENTS

AREA(S) OF LAW

PROBATE AND ADMINISTRATION, LOCUS STANDI, JUDICIAL DISCRETION, ESTATE LAW, PERSONAL REPRESENTATIVES, PRACTICE AND PROCEDURE, TRESPASS, REAL PROPERTY, APPEAL

SUMMARY OF FACTS

The Respondents were personal representatives of Late Chief Joseph Adediran Ajao who died on 21st June, 1962, by virtue of probate dated 12th October, 1963 granted by the High Court of Lagos State as amended by Order dated 18th September, 1962. Late Chief Ajao was the owner of a parcel of land measuring 301.45 acres lying at Mosebi Village near Onigbongbo Village, via Ikorodu Road, Ikeja District (now known as Anthony Village, off Ikorodu Road), Lagos State, known as Ajao Estate. The Respondents sued the Appellant for N10,000,000 damages for trespass on the land in dispute and perpetual injunction restraining further trespass. The Appellant raised a preliminary objection that the Respondents had no locus standi to institute the suit as the land in dispute was not listed among the estate properties for which they were granted probate. The trial judge agreed that probate properties discovered after death should be listed but ruled that the Claimants should apply at the probate registry to list the property before the Court could proceed, rather than striking out the suit. Dissatisfied, the Appellant appealed on 5th November, 2008.

HELD

1. The appeal was dismissed.

2. The judgment of the High Court of Justice, Lagos State, in the Ikeja Judicial Division was affirmed.

3. The court held that the trial court appropriately exercised its discretion when it directed that the probate documents be regularized to include the land in dispute.

4. The court held that personal representatives have capacity by operation of law to institute actions in respect of real estate of the deceased even when not mentioned in the probate documents.

ISSUES

1. Whether the lower Court was right in adjourning the case to enable the Claimants regularize their position instead of striking out the suit for lack of jurisdiction?

2. Whether the learned trial Judge was right in granting a relief not claimed by the Respondents that is, adjourning the matter for them to regularize by including the property subject of this action in the existing probate which does not cover this property subject of this litigation?

3. Whether in the circumstances of this case the lower Court appropriately exercised its discretion when it directed that the probate documents of the Estate of Late Chief J. A. Ajao be regularized to include the land in dispute?

RATIONES DECIDENDI

EXERCISE OF DISCRETION BY TRIAL COURT – GUIDING PRINCIPLE

In exercise of discretion, no case is a precedent to the order; for every case is treated in its own peculiarity based on the facts and circumstances of each case. The guiding principle is that the discretion must be exercised judicially and judiciously.– Per UWABUNKEONYE ONWOSI, J.C.A.

COURT’S DISCRETION FOR INTEREST OF JUSTICE – CONSTITUTIONAL BASIS

In the instant case, the Trial Court has merely exercised his discretion under the law for interest of justice and as guaranteed under Section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended). – Per UWABUNKEONYE ONWOSI, J.C.A.

APPELLATE INTERFERENCE WITH DISCRETION – EXCEPTIONAL CIRCUMSTANCES

Where there is an appeal against the exercise of discretion by a trial Court, an Appellate Court is normally reluctant in interfering with the trial Courts bona fide exercise of discretion unless in some exceptional cases which include: (a) Where the exercise of discretion by the trial Court was done arbitrarily rather than judiciously and judicially; (b) Where the trial Court’s exercise of discretion was based on a wrong principle of law; (c) Where such an exercise of discretion was not based on the evidence on record and was therefore perverse; (d) Where in the exercise of discretion the trial Court took into account or considered irrelevant matters or disregarded relevant matters; (e) Where the lower Court’s exercise of discretion is erroneous that no reasonable tribunal would have made such an erroneous exercise of discretion. – Per UWABUNKEONYE ONWOSI, J.C.A.

TRIAL JUDGE AS DOMINUS LITIS – CONTROL OF COURT

A Trial Judge is dominus litis, and controls his Court jealously. – Per UWABUNKEONYE ONWOSI, J.C.A.

EXECUTORS’ DUTIES BEFORE GRANT OF PROBATE – IMMEDIATE CAPACITY

It is elementary law that Executors and Administrators, may lawfully undertake some of their duties immediately upon the death of their Testator, even ahead of the grant of probate. – Per UWABUNKEONYE ONWOSI, J.C.A.

REAL ESTATE DEVOLVES BY OPERATION OF LAW – AUTOMATIC VESTING

By virtue of Section 3(1) of the Administration of Estates Law of Lagos State, real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner asbefore the commencement of the law, chattels real devolved on the personal representative from time to time of a deceased person.– Per UWABUNKEONYE ONWOSI, J.C.A.

CAPACITY TO SUE REGARDLESS OF PROBATE LISTING – LEGAL PRINCIPLE

In the instant case, the respondents as personal representatives of the late Dominic Sosu, have the capacity to institute the action in respect of the real estate to which their deceased father was entitled by operation of law notwithstanding that the real estate was not mentioned in the letters of administration.– Per UWABUNKEONYE ONWOSI, J.C.A.

PROPERTY VESTING BY OPERATION OF LAW – AUTOMATIC EFFECT

So, the subject matter of the suit, the deceased property, though not listed in the probate had by operation of law vested on the Respondents who are the personal representatives of the deceased. – Per UWABUNKEONYE ONWOSI, J.C.A.

DEFINITION OF PERSONAL REPRESENTATIVE – COMPREHENSIVE SCOPE

Personal representative means the executor or administrator whether acting with regard to personal property or with regard to real property of the deceased. – Per UWABUNKEONYE ONWOSI, J.C.A.

CAPACITY TO INSTITUTE ACTION ON ESTATE – LEGAL STANDING

In the instant case, the Respondents as the personal representative of Late Chief J. A. Ajao, the deceased, have the capacity to institute the action on his estate. – Per UWABUNKEONYE ONWOSI, J.C.A.

TECHNICAL ARGUMENTS VS SUBSTANTIAL JUSTICE – MODERN APPROACH

Therefore, the issue of locus standi and want of jurisdiction; that the matter ought to have been struck out as argued by the Appellant are mere fanciful technical arguments seeking for technical justice; but our Courts have since been enjoined to turn their back against technicalities, and embrace substantial justice. – Per UWABUNKEONYE ONWOSI, J.C.A.

COURTS’ ATTITUDE TOWARDS SUBSTANTIAL JUSTICE – MODERN JUDICIAL APPROACH

It is trite law that the attitude of the Court is now to do substantial justice and not allow technicalities to prevent the determination of the rights of parties. Courts should focus on justice and not technicalities that merely defeat claims without a hearing on the merits – Per YARGATA BYENCHIT NIMPAR, J.C.A.