Position of the Law on the Capacity of Personal Representatives to Sue in Respect of the Estate of a Deceased

CASE TITLE: DIMKA v. KUPTONG & ANOR (2024) LPELR-62207(CA)

JUDGMENT DATE: 16TH MAY, 2024

PRACTICE AREA: WILLS AND PROBATE

LEAD JUDGMENT: ABBA BELLO MOHAMMED, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Wills and Probate.

FACTS:

This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja (the trial Court), delivered on the 6th day of June, 2017 by Hon. Justice A. M. Talba.

As Executor/Trustee of the late Estate of Filibus Suwa Dimka, the 1st Respondent (as Plaintiff) filed an Originating Summons at the trial Court against the 2nd Respondent (as Defendant), wherein he sought for the determination of the following question:

“Whether a child born in 2008 for whom the Testator acknowledged paternity, qualify and can be covered by the phrase “any other children that may be born to me” under Clause 11 of the Will and Testament of Filibus Suwa Dimka (Deceased).”

Upon an affirmative answer to the above question, the 1st Respondent then sought for the following reliefs, among others:

1. A DECLARATION that Miss Sokmwa Abigail Dimka, born on the 14th day of September 2008 for whom Mr. Filibus Suwa Dimka (Deceased), Testator of the Will and Testament of the Will dated October 20, 2002, acknowledged paternity before his demise in 2010, qualifies and can be covered by Clause 11 of the Will and testament of Filibus Suwa Dimka dated October 20, 2002.

2. A DECLARATION that Miss Sokmwa Abigail Dimka, born on the 14th day of September 2008, for whom Mr. Filibus Suwa Dimka (Deceased), Testator of the Will and Testament of the Will dated 20th day of October, 2002 acknowledged paternity before his demise in 2010, qualifies and can be covered by Clause 11 of the Will and Testament of Filibus Suwa Dimka dated 20th October, 2002 and should be entitled to share in the Estate of Mr. Filibus Suwa Dimka (Deceased) in accordance with the Will and Testament of Filibus Suwa Dimka (Deceased) dated 20th October 2002.

In reaction to the suit, the 2nd Respondent filed a counter affidavit and a written address wherein she argued that the spirit and letters of the Will of Filibus Suwa Dimka (Deceased) showed that he does not want to bequeath his estate to any other person except his son Gerald Kopji Dimka, who is specifically named in the Will. After hearing the parties, the learned trial Judge entered judgment for the 2nd Respondent and held that Sokmwa Abigail Dimka is not qualified and cannot be covered by the phrase “any other children that may be born to me” under Clause 11 of the Will and Testament of Mr. Filibus Suwa Dimka (Deceased).

The Appellant claiming to be the next friend of Sokmwa Abigail Dimka, appealed against the judgment of the trial Court after obtaining leave from the Court to appeal as an interested party.

ISSUE(S) FOR DETERMINATION:

The Court considered the following issues:

1. Whether the judgment of the trial Court ought to be set aside or amount to a nullity due to the non-joinder of the child whose rights and interests was the subject matter of the proceedings.

2. Whether the learned trial judge was right when he interpreted the phrase “any other children that may be born to me” under clause 11 of the WILL AND TESTAMENT of Filibus Suwa Dimka (Deceased), to exclude the Appellant, Sokmwa Abigail Dimka.

DECISION/HELD:

In conclusion, the appeal was allowed.

RATIOS:

ACTION- NECESSARY PARTY(IES): Who is a necessary party?
ACTION- JOINDER OF PARTY(IES): Condition(s) for a party to be joined to an action
ACTION- CAPACITY TO SUE AND BE SUED: Position of the law on the capacity of personal representatives to sue in respect of the estate of a deceased
ACTION- NON-JOINDER OF PARTY(IES): Whether non-joinder of a party can by itself defeat an action
INTERPRETATION OF DOCUMENT- CONSTRUCTION OF DOCUMENT(S)/INSTRUMENT(S): How unambiguous words of an instrument/document are to be interpreted
INTERPRETATION OF DOCUMENT- CONSTRUCTION OF DOCUMENT(S)/INSTRUMENT(S): Cardinal rule of interpretation of instrument, document or agreement
INTERPRETATION OF STATUTE- EJUSDEM GENERIS RULE OF INTERPRETATION: Scope of application of ejusdem generis rule of interpretation
JUDGMENT AND ORDER- PERVERSE DECISION: Meaning of a perverse Decision or Judgment
WILLS AND PROBATE- WILL: Duty of Court in the construction of Wills