No A3/2000/3531

Neutral Citation Number: [2001] EWCA Civ 1296
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE WEEKS QC

								Royal Courts of Justice
								Strand
								London WC2

								Tuesday, 17th July 2001
B e f o r e:

LORD JUSTICE JUDGE

LORD JUSTICE MUMMERY

SIR MARTIN NOURSE

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AYONRINDE and Another

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OYEMOMILARA and Another

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR KEITH MYERS (Instructed by Egole & Co of Brixton, London) appeared on behalf of the Appellant

MR CYRIL O UME (Instructed by Awoloye-Ko & Co of Brixton, London) appeared on behalf of the Respondent

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J U D G M E N T
1.	LORD JUSTICE MUMMERY: This is an appeal by the first claimant in an action which was dismissed by His Honour Judge Weeks QC, sitting as a judge of the High Court, on 8th November 2000. The appellant is represented by Mr Myers. The respondent to the appeal is the first defendant in the action. She is represented by Mr Ume. The respondent claims to be the widow of the deceased, Henry Odumbaku, (“the deceased”), who was born in Nigeria on 9th April 1928 and who died in the Chelsea and Westminster Hospital on 11th February 1997. This claim is disputed by the appellant. 
2.	On 22nd April 1998 the appellant and one Mrs Martins issued a writ in the Chancery Division. The first defendant to the writ was the respondent. The second defendant, a friend of the deceased called Mr Adetunji, features in this dispute, having been appointed executor in a will made by the deceased.
3.	In the statement of claim, dated 21 April 1998, the appellant claims revocation of letters of administration, which were granted to the respondent on 18th July 1997. The grant was made, first, on the basis that the deceased died intestate and, secondly, on the basis that the respondent was his lawful widow and that there was no other person entitled in priority to share in his estate. It was stated that the value of the estate did not exceed £40,000. It appears that the principal asset in the estate is a one-bedroom flat which is identified in the letters of administration as the place where the deceased was living before his death, that is 246 Goulden House, Bullen Street, London SW11. According to one valuation in the papers, that property is now estimated to be worth in excess of £100,000.
4.	The statement of claim puts the appellant's case in this way. She was the appointed legal representative under an order made in Wandsworth County Court on 27th February 1997 in proceedings that related both to dealing with the assets of the deceased's estate and as to his place of burial. She also claims as a person holding a power of attorney given to her by one Rosaline Ezanebor, who claims to be have been the wife of the deceased. Her claim is to have the letters of administration of the deceased's estate revoked on the ground that they were obtained by deceit or fraud on the court.
5.	The statement of claim pleads that the respondent also claims to be the wife of the deceased. That is disputed on a number of grounds. First, because she was married to someone else and that marriage was still valid and subsisting. It is alleged she was married in Nigeria on 22nd August 1988 to Mr Joseph Oyemomilara. Secondly, it is alleged that the respondent's claim is as a common law wife, who was still legally married to someone else, but had been living with the deceased at the flat. It is alleged that the respondent made false representations to the Principal Registry of the Family Division that she was the personal representative of the deceased. That is incorrect because the deceased still had a wife living in Nigeria, namely Mrs Ezanebor. These matters are relied upon in support of the allegation that letters of administration have been obtained by fraud.
6.	Reference is also made to a will made by the deceased. It is alleged that that will is invalid as it was not duly executed in accordance with provisions of the Wills Act 1837. We were told by Mr Myers in argument that it is also challenged on the ground that it is a fraudulent document.
7.	The respondent defended the claims alleging that she, in fact, is the spouse of the deceased and is accordingly entitled, in priority to any other person, to the grant of the letters of administration. It is expressly alleged that the appellant is not a relative of the deceased and has no beneficial interest in the estate and was not validly appointed legal representative by the order of the Wandsworth County Court. It is also alleged by the respondent that if, which is not admitted by Mrs Ezanebor, she was married to the deceased, that marriage was dissolved before the deceased married another woman, and that marriage was itself dissolved in or about June 1983 in Wandsworth County Court. That is before the date when the respondent says that she married the deceased, that being 12th January 1995. It is important to mention that it is expressly pleaded by the respondent that the alleged power of attorney, relied upon by the appellant as authorised to bring the proceedings, was not in proper form and was invalid.
8.	As for the marriage of the respondent to Mr Joseph Oyemomilara in Lagos, it is said that that marriage was dissolved by the High Court in Lagos State, Nigeria. There was a decree nisi on 22nd November 1994. It was made absolute on 23rd December 1994. Reference is also made in the defence to a daughter of the deceased and to the will mentioned in the statement of claim. It is contended that the will is invalid on the grounds it was made before the respondent married the deceased and was therefore revoked on the marriage.
9.	It is expressly pleaded in paragraph 12 of the defence that the appellant has no locus standi in the case and is not entitled to the relief. The respondent also makes allegations against the appellant of unlawful intermeddling in the deceased's estate. There is a counterclaim that the appellant and her co-claimant Mrs Martins, who has since died, have constituted themselves executors de son tort of the estate of the deceased.
10.	Shortly before the action came on for hearing before His Honour Judge Weeks on 8th November 2000 two applications were issued. They are confusing documents, since they are both headed as being in the Queen's Bench Division. They are incomplete and they are lacking in relevant information. They are totally unsupported by any evidence. What it comes to is this. The notice of application was to have the name of the second claimant Mrs Martins, removed as a party, she having died, and to have Mrs Rosaline Ezanebor substituted. But no explanation is given in the application document, Part C, which is a space for explanation to be given, as to the basis on which it was sought to join Mrs Ezanebor as a claimant in the place of Mrs Martins.
11.	When the action came before the judge no application was made at the beginning of the hearing either to have Mrs Ezanebor substituted as a claimant or to have the hearing of the action adjourned for any reason. What appears to have happened is that action proceeded to a hearing with the judge hearing submissions on two points. First, as to whether an order made in the Wandsworth County Court appointing the appellant as a legal representative gave her the requisite standing to bring an action for revocation of the letters of administration. Secondly, whether the power of attorney authorised the bringing of these proceedings. The power of attorney was dated 29th August 1997 and executed by Mrs Ezanebor appointing the appellant as her attorney to do certain acts or things, including - 
“to apply for and obtain letters of administration of the estate of the said Henry Odumbaku deceased to be granted to her by the High Court of Justice in her name and for my use and benefit.”
12.	No reference was made in the power of attorney to the appellant having any authority to bring proceedings for revocation of letters of administration.
13.	The judge rejected the arguments on behalf of the appellant on both points. He pointed out that the appellant and her co-claimant did not claim to be related to the deceased, either by blood or marriage. The claim was based on the appellant having been a close associate of the deceased and having been appointed legal representative by the Wandsworth County Court by order of Miss Recorder Worrall QC in 1997 under O.5 Rule 7 of the County Court Rules. That order had been made in the proceedings in the County Court brought primarily to restrain the removal of the deceased's body for burial in Nigeria. A series of temporary injunctions had been granted. The upshot was that the injunctions were discharged and the deceased's body was removed from the jurisdiction for burial in Nigeria.
14.	In my judgment, the judge rightly held that the order of the County Court of 27th April 1997 was only made for the purpose of the County Court proceedings. It did not give the appellant any standing in the matter in the Chancery Division for revocation of letters of administration. As for the reliance on the power of attorney of 29th August 1997, the judge held - again, in my view, rightly - that the power did not authorise the appellant to apply to the court for revocation of a grant, which had already been made. The judge concluded that the action was defective on the ground the appellant did not have sufficient interest to make the application for the relief sought. So far there was nothing wrong in the decision of the judge.
15.	Towards the end of his judgment it appears that, as the hearing was drawing to a close and it became clear that the two points taken by the appellant were unsuccessful, the application for joinder of Mrs Ezanebor as a party was resurrected. An application was also made for the matter to be adjourned for 24 hours to enable the appellant and her co-claimant “to put their house in order”. It appears that was the expression used by Mr Myers when he made his application for the adjournment. The judge refused both the adjournment and the application for joinder. He said this on page 9 of his judgment:
“When I drew counsel's attention to the possibility that the claimants might have no interest sufficient to maintain their claim, counsel for the claimants renewed the application to join Mrs Rose Essinibore [sic]. I enquired whether there was any witness statement from her in the proceedings and I was told that there was not.
At that late stage and, in those circumstances, it did not seem to me right to reconstitute this action with an absent claimant, living abroad, who had not made a witness statement in the proceedings.
Accordingly I refused that application and, for the record, I should say that I refused a further application to adjourn the matter for 24 hours to enable the claimants to `put their house in order', as they said. It seemed to me wrong that, when the defendant had been finally brought after two-and-a-half years to trial, the claimant should be allowed further time in which to reconstitute the action with a different claimant.
In my judgment, the claimant fails at the first hurdle in that she has no interest sufficient to persuade the court that it would be right to revoke the grant of letters of administration to the first defendant.
Accordingly I will dismiss the action.”
16.	The judge also made an order striking out the second claimant, Mrs Martins (deceased). He stood over the counterclaim with permission to restore. He dismissed the injunction claim and restored the original grant of letters of administration to the respondent's solicitors. He ordered the appellant to pay the respondent's costs to the action and ordered a detailed assessment.
17.	The appeal is primarily on the ground that the judge ought to have granted the adjournment and to have joined Mrs Ezanebor as a party. The proceedings would then meet the objection that they were defective for lack of locus on the part of the claimant.
18.	New evidence - by which I mean affidavit evidence and documents which were not before the judge - has been put before this court. No formal application has been made for permission to adduce new evidence, but there is clearly an argument on the injustice to the appellant and Mrs Ezanebor as a result of the judge's refusal of an adjounment. Mr Ume objected to this late evidence. He did not accept it as correct. According to the new evidence, which confusingly bears dates which precede the hearing before the judge by one month, Mrs Ezanebor has grounds for being joined as a party and for claiming the relief of revocation of letters of administration granted to the respondent. There is, first, an affidavit sworn by Mrs Ezanebor dated 4th October 2000. It was sworn in Lagos. Although it bears the date 4th October, we understand from an affidavit sworn by the appellant's solicitor, Mr Egole, that it was not received in London until 9th November, that is, the day after the judge dismissed the action. According to this affidavit Mrs Ezanebor says she was married to the deceased and the marriage was valid and subsisting at the date of the death of the deceased. She explains why she cannot afford to come to the UK to give evidence.
19.	Most interesting of all, there is another document - a power of attorney. This is dated 4th October 2000 and appears to be signed by Mrs Ezanebor, giving her address as 54 Campbell Street, Lagos and saying she is the widow and that this new power of attorney gives powers to enable the appellant to bring proceedings.
20.	There is also an affidavit dated 29th November 2000 to the effect that no record can be found in Nigeria of the divorce of the respondent from her husband. The importance of this evidence is that Mr Myers says that, if the judge had granted an adjournment for the short period he had asked - 24 hours - , it would have been available for the order for substitution of Mrs Ezanebor as a claimant in place of Mrs Martins. That, coupled with the new power of attorney, should have rectified the matter and prevented a dismissal of the action without deciding the substantive question as to who was the deceased's wife at the date of his death.
21.	Mr Ume responds to these argumlents by contending that the trial judge had a very wide discretion as to whether or not to grant an adjournment. This application for an adjournment was not made until the trial, even though the appellant was fully aware from the pleadings that points were being taken as to her standing under the terms of the power of attorney. He points out it was not even made at the beginning of the trial. It was made in the closing stages of the trial when, it appears, the grounds on which Mr Myers was seeking to persuade the judge as to the appellant's standing were failing. He says the application was made without evidence and the effect of granting the adjournment would have been prejudicial to the respondents. He pointed out, correctly, that this court is reluctant to interfere with a decision, unless it has to, because the judge, in the exercise of his discretion, has misdirected himself in principle or has failed to have regard to relevant matters or has taken account of the irrelevant matters or reached a decision which can be described as plain wrong. He submitted that we should dismiss the appeal.
22.	In my judgment this is one of those rare cases in which, in the interests of justice, it is legitimate for an appeal court to interfere with the exercise of discretion. The judge was clearly right on the two points which he decided on the standing of the appellant. I think it is difficult to say the judge was wrong to refuse the application for an adjournment on the material put before him in support of the application. He had before him two applications relating to joinder with no evidence at all in support of them. From the account given to the court by Mr Myers, I am satisfied the judge was not fully in the picture about the state of affairs relevant to his discretion. It cannot have helped Mr Myers' application with the judge to have left the application right to the end of the hearing. For the interests of justice, attention ought to have been brought to these matters at the start of the hearing. So far as I could gather from what Mr Myers told us, he did not say to the judge much more than that he wanted a short adjounment to “get his house in order”. He had not mentioned that there was a new power of attorney being executed or prepared. At the very least there should have been an affidavit or a witness statement from Mr Myers' solicitor, explaining the difficulties in the transit of documents from Lagos to London in time for use at the hearing.
23.	The point that really convinces me that this appeal should be allowed is that, if it is not, there is a real injustice to Mrs Ezanebor. Everyone has known, ever since these particular proceedings have started, that there was a substantial dispute between Mrs Ezanebor and the respondent as to which of them was the deceased's wife. That issue has not been decided as matters stand at the moment. The letters of administration have been granted to the respondent on the basis that she was the widow, but there is in the papers evidence, in the form of an affidavit from Mrs Ezanebor and other documents, which indicate there is a substantial doubt on this matter.
24.	I should mention another complication which the parties in this court have sought to minimise. In my view when the court comes to hear the case the existence of the will cannot be ignored. On the face of it, the photocopy will included in our papers is a valid will. Under it the deceased appointed the second defendant, his friend Mr Adetunji, to be the executor and trustee. It appears, so far as Wandsworth County Court proceedings reveal, that he has to some extent acted in that capacity.
25.	There is a gift of £3,000 to one Dale Mandy Mannia, whom he describes as his daughter. She has not been located. I do not know what efforts have been made to find her.
26.	By clause 4 (b) of the will he gives - 
“To any woman that is my wife at the time of my death both Common Law and In Law - I give one-third of my residual Estate.
(c) I direct that in the event of my death my body be taken to my home in Nigeria for burial.”
27.	That provision featured in the Wandsworth County Court hearing where the dispute was where he should be buried. He gives reasonable expense and costs. He gives to the Africa Cathedral Better Church of Lagos Nigeria the remainder of the estate:
“But if I should have a child after this preparation of this Will, then that child should inherit the Estate instead of the Church.”
28.	We do not know the position of the child. We have been told she is not teh child of Mrs Ezanabor or the respondent. The will appears to be signed by the deceased.
29.	Confusingly, there are two dates on the will; one is 2nd March One Thousand Nine Hundred and Eighty-nine (that is typed out so far as the year is concerned). There is another date at the foot of the will, just above the signatures and details of the attesting witnesses where it is stated:
“Signed by the said testator in our presence, and then by us in his or hers on the 2nd day of March 1993.”
30.	There the “93” part of 1993 and the month of “March” are in manuscript. There are then two witnesses - two different signatures and different details. All that we have been told about the witnesses is that they have not been located. We do not know who was asked to locate them and what has been the extent of the inquiry. In my judgment, consideration will have to be given in the future conduct of these proceedings as to how the question of the validity of that will should be dealt with.
31.	The position of the two parties is that the will is invalid, either as being a forgery or not properly executed or revoked by a marriage. One of the issues in this case is whether the marriage in question on 12th January 1995 was a valid marriage. If it was not valid it would not have the effect of revoking it. Because of the beneficiaries mentioned in the will, there are persons other than Mrs Ezanebor and the respondent who are interested in the succession to the deceased's estate.
32.	For all the reasons given above, and in what I would emphasise is a really quite exceptional case, I would allow this appeal on the basis that, even though the judge was not wrong on the material before him, a serious injustice would be done if this claim remained dismissed. I would allow the appeal. I would continue an injunction, the terms of which can be discussed with counsel. I would remit this action to the Chancery Division for the giving of directions by and for trial by a High Court judge of the Chancery Division. I would also direct, on the basis of the evidence which is now available, that Mrs Ezanebor be joined as a claimant in the action in substitution for Mrs Martins, who was struck out of the action by the order of the judge in November 2000. 
33.	SIR MARTIN NOURSE: I agree with the judgment of my Lord and the order proposed by him.
34.	LORD JUSTICE JUDGE: I also agree. This is a particular decision in extremely odd circumstances. His Honour Judge Weeks was not provided even with the minimal assistance to which every judge is entitled; hence his decision with which - for the reasons given by my Lord and on the basis of the material before us and not before him - we disagree.
35.	I hope no one regards this case as having decided any point of principle or providing any authority for a proposition of law which is not already trite.
Order: Appeal allowed