The Impetus to Usurp An Executor - A Case ReviewBack

The case of Adenekan Ademola & ors v. Chief Harold Sodipo & 3 ors (1992) 7 NWLR (Pt. 253)

 

There are many ways one can dispose of bounties after death.[1] Under the Nigeria law, both statutory and customary law has prescribed various ways for the disposition, management and administration of a deceased person’s property. This ultimately is to ensure the passing of property at death to the dependants/beneficiaries to the testator.

 

 

One of the ways known under Nigeria law could be found under the statute by way of Will. A Will is purely a creation of statute and for it to be valid; it must comply strictly with the provisions of the relevant statute extant at the time being. Succinctly explained, a Will is a testamentary and revocable document, voluntarily made, executed and witnessed according to law by a testator with sound disposing mind wherein he disposes of his property subject to any limitation imposed by law and wherein he gives such other directives as he may deem fit to his personal representatives otherwise known as executors, who administers his estate in accordance with the wishes manifested in the Will.[2]

 

 

From the above definition, a particular set of persons gives the Will its efficacy without which the whole aim of testator’s wishes will be defeated – the Executors. To appoint an executor is to place one in the stead of the testator who may enter to the testator’s goods and chattels and who hath action against the testator’s debtors and who may dispose of the same goods and chattels towards the payment of the testator’s debts and performance of his Will.[3] From the above, it is clear that the powers of an executor is the facsimile of that of a testator and is simply appointed by the testator to administer the property of the testator upon demise.[4]

 

 

Speaking From the Grave

 

With the deceased speaking through the Will right from the grave, what impetus does anyone have to usurp his appointed Executors? Under the English law, if the beneficiaries have serious concerns regarding the ability of an executor to perform his duties, the beneficiaries must firstly write to the executor and ask him to explain his actions.

 

 

Generally, the English Court has no inherent jurisdiction to remove an executor in a Will[5] however can remove an executor and appoint new ones under three distinct provisions made under Administration of Justice Act 1985, Section 50; Judicial Trustees Act 1896, Section 1; Trustee Act 1925, Section 41. The test as stated in Letterset v. Borers provides thus “…the court will only remove an executor if it is in the interest of the proper administration of the estate and would promote the welfare of the beneficiaries”.[6] Until the adoption of the Letterset’s case by the Supreme Court in the case of Areola v. Sodom (1992), there appear to be a misconception as to the degree of misconduct and maladministration that will ground usurping the powers of an Executor.

 

 

The case of Areola v. Sodom (1992) 7 NWLR (PT 253) 251

 

The respondents in this case (Chief Harold, Adina, Bayo, Aduke and Ajike – Sodom) are some of the children of the late Isaac Ademoye Sodom who died in Ogun State in 1960 leaving a Will. The Appellant (Hon. Justice Adenekan Areola) is one of the two executors and trustees of the Will. The other executor had since died. Sometime in 1985 the appellant caused a meeting of the children of the deceased to be held in Isaiah Adebola Sodipo’s house at Ebutte Metta, Lagos. Adebola is the deceased’s eldest child and therefore head of the deceased’s immediate family. The meeting according to the appellant was called to deliberate on repairs to be carried out to the Apagun market family property.

 

 

The children resolved to carry out the repairs at their own expense and not from the estate fund. When it appeared that efforts were not being made towards contributing money for the repairs, Chief Adebola Sodom, Dr. J.A. Sodom and Akanni Osho Sodom, all children of the deceased urged the appellant to carry out the repairs with funds from the estate. The appellant agreed and caused work to commence. The respondents protested and instituted an action in the High Court seeking amongst other reliefs: “An order removing the defendant as Executor and Trustee of the Estate and appointing Judicial Trustees in his stead.”

 

 

The decision of the trial Court was appealed and cross-appealed up to Supreme Court by the parties on the grant and refusal of reliefs sought in the Statement of Claim, but particular attention will be only to the order of removal of an Executor.

 

 

In the High Court, the learned trial Judge – Craig C.J. (as he then was) relying on the cases of Renner & Ors. V. Renner[7] and E. Fregene v. M.A. Awosika[8] refused the grant of the relief by stating that the court although has the inherent power to remove an executor or Trustee, and will remove any found guilty of acts of misconduct or mismanagement but explained that what amount to misconduct will vary from case to case. The Court stated that generally, the misconduct or mismanagement would be those which go beyond mere inadvertence and come within the reach of a criminal offence such as embezzling the funds of the Estate or using Trust funds for the Executor’s personal affairs or conveying trust property to unauthorised persons. The Court went further to express that although an Executor may be guilty of inaction, over zealousness or such similar conduct, but do not think that the Claimants have succeeded in proving fraud or dishonesty against the Executor.[9]

 

 

From the above pronouncement, the trial Court had raised the degree of what a party must proof for the removal of an executor. Practically, the degree is akin to prove of a criminal offence which a party is under the law required to do beyond reasonable doubt in order to ground the grant of the relief of removal of an executor. By this judgment, the trial Court has set a standard which was too high for a beneficiary and the trial Court was not alone, as the Court of Appeal also maintained and upheld the decision of the lower Court.

 

 

On appeal to the Supreme Court, Ogundare JSC was emphatic – “…misconduct amounting to dishonesty or crime need not be proved before a Court can exercise its power…”[10] The Supreme Court went ahead to agree with the submission of the Counsel to the respondents, however, held that the evidence put before the Court was not enough to ground the grant of the relief. With this, the position of our law is clear and uncontroverted – to the effect that the Court may remove a private trustee/executor if the Court is satisfied that the continuance of the existing trustee/executor in office may be detrimental to the execution of the trust notwithstanding that misconduct or maladministration has not been proved against him.[11] Also, on the degree of conduct capable of grounding removal of an executor/trustee the Court held that there are “Conducts which is detrimental to the execution of the trust/Will, and whether misconduct or maladministration has been proved against a trustee may range from criminal conduct to mere moral turpitude. The conduct may not constitute an actual breach of trust, yet it could be sufficient to ground his removal. Misconduct need not amount to dishonesty or criminal conduct to ground removal”[12]

 

 

The trial Court was wrong to set so high a criterion and the Court of Appeal should not have accepted the criterion. The conduct which will suffice for removal of an executor may not constitute an actual breach of trust, yet it could be sufficient to ground his removal.[13] The misconduct need not amount to dishonesty or criminal conduct to ground removal hence no such burden is placed on a beneficiary to prove by our laws to succeed. The rationale is explicit, to the effect that it must always be borne in mind that trustees/executors exist for the benefit of those to whom the creator of the trust/Will has given the trust estate. And in exercising its jurisdiction as empowered by the laws do not venture to lay down any general criterion/rule beyond that anticipated by the law as the main guide must always be the welfare of the beneficiaries to the estate.

 

 

The overriding principle remains that the court will only remove an executor if it is in the interest of the proper administration of the estate and would promote the welfare of the beneficiaries. It is also a position adopted in the case of Letterset v. Borers[14] which case was relied upon by the Supreme Court,[15] that the Court is entitled to remove a trustee/executor/personal representative on the grounds that are not pleaded by a claimant. Pertinent to note also, that the English Court in Letterset v. Borers which now forms part of Nigeria case law since its adoption in the instant case, stated that the ground for the removal will not be restricted to the grounds raised by the claimant in its pleadings, as the Court may rely on new facts raised in the trial. The Court is entitled to look into all facts relating to the trust and form its own view.

 

 

Conclusion

 

With these decisions, the impetus required of any beneficiary to usurp powers of an executor is now relaxed and their welfare better protected. Although the Claimants in case under review failed on their claim to remove the executor as there were insufficient evidence, however, no one is left in doubt on what to do since the decision in Areola v. Sodom supra.

 

[1] Kole Abayomi (Wills: Law and Practise) 2004, pg 1

[2] Kole Abayomi (Wills: Law and Practise) 2004, pg 6

[3] Swinburne Pt. 4 S. 2 pl 3, Williams & Mortimer Executors, Administrators & Probate, 1970 at pp 3

[4] Tristram and Coote’s Probate Practise 25th edition, Chapter 4

[5] Re: Ratcliff (1898) 2 Ch 352 at 356

[6] (1884) 9 App Cas 371

[7] (1961) All NLR 233

[8] (1957) WRNL pg. 156

[9] Ademola v. Sodipo pg 283

[10] Ogundare JSC pg 280 para F – G - Ademola v. Sodipo

[11] Ibid, pg 280 para E - F

[12] Ibid, Karibi-Whyte JSC pg 283 – 284, paras. G - A

[13] Moore v. M’ Glynn (1894) 1 Ir. R. 74

[14] supra

[15] Ademola v. Sodipo (supra)

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