EXTENT OF THE POWERS OF EXECUTORS AND TRUSTEES OF AN ESTATE IN THE MANAGEMENT OF A TESTATOR’S BUSINESS

CASE TITLE: JOHN & ORS v. AKHUAMHENKHUN & ORS (2021) LPELR-54138(CA)

JUDGMENT DATE: 5TH MAY, 2021

PRACTICE AREA: WILLS AND PROBATE.

LEAD JUDGMENT: ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Wills and Probate.

FACTS

This is an appeal against the judgment of the Edo State High Court, Benin Judicial Division delivered by ERAMEH, J. on 30th May, 2014 in Suit No. B/355/OS/2011, wherein the lower Court entered judgment in favour of the Claimants (Respondents).

A summary of the facts is that; by the last Will and Testament of Chief Matthew Danladi John dated 18th October, 2005; particularly paragraph 15 of the said Will vest powers and duties on the Respondents who are appointed Executors/Trustees in the Will to manage the properties at Nos. 5, 5A and 7, Liberty Road, GRA, Benin City housing and the corporate seat of KOSO INTERNATIONAL HOTEL.

The Appellants are shareholders and directors respectively of Kurat Ventures Limited of which Koso International Hotel is said to be a division; the 4th Respondent is also a beneficiary, shareholder and director of Kurat Ventures Ltd.

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​After the Will was admitted to probate, the Appellants refused the Respondents as Executors/Trustees of the said Will from taking control of the management of the said properties and Koso International Hotel therein to the chagrin of the Respondents on the ground that it was part of the Kurat Ventures Ltd and they had no power to control same hence this action was instituted at the High Court.

After hearing the case, the lower Court entered judgment in favour of the Respondents.

Dissatisfied with the judgment, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on a sole issue:

Whether a business duly registered under the Companies and Allied Matters Act, 2004 can form part of a testator’s estate to be managed and/or administered by the Executors/Trustees of the testator who are not themselves directors of the company?

DECISION/HELD

In the final analysis, the appeal was unanimously dismissed.

RATIOS:

• WILLS AND PROBATE – EXECUTOR(S) OF WILL: Whether the business of an unregistered arm of a registered business venture of a testator can be managed by the Executors/Trustees of his estate
• WILLS AND PROBATE – POWER(S) OF TESTATOR: Whether a testator is at liberty to dispose of his property in any manner he deems fit
• COMPANY LAW – REGISTERED COMPANY: How to ascertain if a company has been duly registered under the Companies Act
• COMPANY LAW – INCORPORATION OF COMPANY: Effect of incorporation or registration of a company