FOLARIN ROTIMI ABIOLA WILLIAMS v. CHIEF OLADIPUPO AKANNI OLUMUYIWA WILLIAMS & ORS (2014)

FOLARIN ROTIMI ABIOLA WILLIAMS v. CHIEF OLADIPUPO AKANNI OLUMUYIWA WILLIAMS & ORS

(2014)LCN/7066(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/L/247/2012

RATIO

POSITION OF THE LAW ON THE BINDINGNESS OF TERMS OF AGREEMENT

The law is trite regarding the bindingness of terms of agreement, where parties at in the instant appeal voluntarily enter into an agreement and willingly too endorse the said terms, the agreement must be honoured, courts of law being courts of justices and conscience will certainly not allow anything to be read into an express agreement, terms on which parties were not in agreement, see BABA V. NIGERIA CIVIL AVIATION TRAINING CENTRE ZARIA (1995) 5 NWLR (PART 192) 388. SCOA NIG LTD v. BOUDREX LTD (1930) 3 NWLR (PART 138) 380, I think the only duty on this court is to say “Honour your agreement”. PER TIJJANI ABUBAKAR, J.C.A

INTERPRETATION OF STATUTE: WHETHER OPERATIVE WORDS IN A CLEAR AND UNAMBIGIOUS DOCUMENT MUST BE ASSIGNED ORDINARY GRAMMATICAL MEANING

It is indeed trite and as rightly pointed by the learned trial judge that, where a document is clear and unambiguous, the operative words in it should be given their ordinary grammatical meaning. See BABATUNDE V. M.O.N. LTD (2011) 18 NWLR (PT 1279) 738. Thus, where the language, terms intents or words of any part or section of a written contract document or enactment are clear and unambiguous, they must be given their ordinary meaning as such terms or words used best declare and present the intention of the parties unless, of course it would lead to absurdity or be in conflict with other provisions thereof.

See OLATUNDE V. OBAFEMI AWOLOWO UNIVERSITY (1998) 4 S.C. 91; U. B. N. PLC v. OZIGI (1994) 3 NWLR (PT 333) 385; EGWUMEWU V. EGEAGWU (2007) 6 NWLR (PT 1031) 431. In NNPC v. MAMMAN AMINU (2013) LPELR-(21395) this court held at page 46 that:-

“it is also a settled principle of interpretation of documents that where the language used by parties in couching the terms of provision of a document are clear and unambiguous, the court must give the operative words in the document their simple, ordinary and actual grammatical meaning”.

See also IKENNE LOCAL GOVT V. WAPC PLC (2011) 12 NWLR (PT 1261) 223.

It is also trite that in construing the actual or real intent in a given document, contract or enactment, the principle is that the documents, contracts or enactment must be read as a whole and not in isolation by clauses or sections. See NNPC V. MAMMAN AMINU Supra. This court therein relied on the Supreme Court case of UNILIFE DEVELOPMENT CO. LTD V. ADESHIGBIN (2001) 4 NWLR (PT 704) 609 where it was held that:-

“The best construction of deed is to make one part of the deed expound the other, and so make all the parts agree. Effect must so far as possible be given to every word and every clause….. It is a fundamental rule of construction of instruments, that several clauses must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict to their natural meaning” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

RITA NOSAKHERE PEMU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

FOLARIN ROTIMI ABIOLA WILLIAMS – Appellant(s)

AND

1. CHIEF OLADIPUPO AKANNI OLUMUYIWA WILLIAMS, SAN

2. CHIEF KAYODE ADEKUNLE OLUSEGUN WILLIAMS

3. TOKUNBO ENIOLA WILLIAMS, SAN – Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Lagos State Probate Division delivered by Hon. Justice J.O.K. Oyewole on the 31st day of January, 2012 wherein the appellant’s application for stay of proceedings was dismissed.

The 1st and 2nd Respondents in this appeal had as claimants in the lower court commenced this suit through a writ of Summons and Statement of Claim dated and filed on the 24th January 2011, against the Appellant and the 3rd Respondent, seeking the following reliefs:

1. An Order of the Court vacating the caveat entered on the 21st day of December, 2009 by the Defendants on the estate of the deceased.

2. An order of the court for the grant of Letters of Administration (with Will annexed) of the deceased’s estate to the 1st and 2nd Claimants as Administrators of the estate and the only beneficiaries under the will as recognized by the testator.

3. An Order of the Court compelling the Defendants to produce in Court a comprehensive general account of all the assets of the deceased including real property, goods, stocks and moneys in banks accounts within and outside Nigeria, operated by the deceased in his individual capacity, jointly with any other party and as a separate entity of which the deceased was an officer as well as an account of the personal estate of the deceased.

4. An Order that the Defendants should pay cost of this action

5. A Declaration of the court establishing the Will dated 22nd day of June, 1954 in solemn form of law.

6. A Declaration of this court that no valid legal vesting deed nor valid legal instrument nor any valid legal deed of gift/trust duly registered was executed by the deceased inter vivos in favour of any person, save and except as contained in the said holographic Will.

7. A Declaration of this court that the Defendants have no locus standing to enter a caveat on the estate of the deceased.

Upon being served with the processes, the Appellant and the 3rd Respondent filed an application via a motion on notice dated 24-5-2011, wherein they sought for the following reliefs from the lower court:

i. An order staying all further proceedings in this suit in favour of arbitration under the Arbitration and Conciliation Act 1990.

ii. An order mandating and/or directing the petitioner herein to forwith take all necessary procedural and legal steps to commence arbitration proceedings under the Arbitration Conciliation Act 1990.

The grounds for the application are that:

(1) The totality of the claims set forth in the claimants’ statement of claim and the underlying facts in support thereof relate or stem from the administration of the Estate of Chief Frederick Rotimi Alade Williams (deceased).

(2) The claimants and the defendants entered into an agreement dated 23 November, 2005 in respect of all the issues pertaining to the Estate of Chief Frederick Rotimi Alade Williams (deceased)

(3) The said agreement in terms by clause 19 provides as follows:

“All disputes under this agreement shall be settled amicably failing which they shall be settled by a sole arbitrator appointed by all the parties under the arbitration and conciliation Act 1990 Cop 19, Laws of Federal Republic of Nigeria. In the absence of concurrence by the parties on a sole arbitrator, the sole arbitrator shall be appointed by the Chief Judge of Lagos State.”

(4) The Federal High Court has ruled that the 1st claimant should proceed to arbitration in matters pertaining to the Estate of Chief Rotimi Williams.

Briefly put, the facts that led to this unfortunate legal battle is that, following the death of Chief FRA Williams SAN, CFR, CON, on the 26th of March, 2005, there was a general acceptance among the children that their father revoked every testamentary disposition made by him before his death. However, some differences arose among his children particularly the parties in this appeal who are now the gladiators in the protracted battle for the estate of the late Chief F.R.A. Williams SAN, CFR, CON.

Several meetings were held by the parties towards resolving their differences and after the three months of protracted mediation chaired by the late Honorable Justice Kayode Eso (JSC), settlement was reached and all the parties herein entered into a family agreement dated 25th November, 2005. It was signed by all the parties in this appeal and witnessed by late Justice Kayode Eso (JSC) and one Abimbola Williams.

The said agreement is now referred to as Exhibit AO2, and clause 19 provides for reference to arbitration. Subsequently, the 1st and 2nd Respondents based on the discovery of a Holographic Will said to have been made by their father and lodged in the Probate Registry of the Lagos State High Court sought the propounding of the same, but the Appellant and the 3rd Respondent launched a caveat against it. Hence the 1st and 2nd Respondent instituted the action in the lower, court seeking the vacation of the caveat and an order for the grant of letters of Administration (with Will Annexed) of the Deceased’s Estate amongst other claims.

This prompted the Appellant to file the motion on notice for the stay of proceedings in the lower court and for the matter to be referred to a sole arbitrator as per clause 19 of the Agreement.

Written addresses were filed and exchanged, and adopted by the parties. In the Ruling delivered on 31-1-2012, the learned trial Judge dismissed the application.

The Appellant was not satisfied with the said Ruling and hence he filed a notice of Appeal dated and filed on 13-2-2012 Briefs of arguments were subsequently file and served by the parties.

The Appellant’s brief of argument is dated 30-5-2012 and filed on 31-5-2012. The Appellant’s reply brief is dated 10-9-2012 and filed on 13-9-2012, but deemed properly filed on 17-1-2013.

The 1st and 2nd Respondent’s brief of argument is dated and filed on 6-7-2012 but deemed properly filed on 17-1-2013.

The 1st and 2nd Respondents also filed the Respondent’s notice of intention to contend. It is dated and filed on 19-9-2012, but deemed properly filed on 17-1-2013.

The 3rd Respondent did not file any brief of argument.

At the hearing of the appeal on 6-2-2014, the parties duly adopted and relied on their respective briefs of argument.

In the Appellant’s brief of argument, three issues were formulated for determination as follows:

1) Whether the learned trial Judge erred in law in varying the ambit of EXHIBIT AO2 when the parties thereto agreed that it is exhaustive of all issues concerning or pertaining to the estate of late Chief F.R.A. Williams, SAN. CFR, CON. (GROUND 1)

2) Whether the claim set out in the statement of Claim is covered by EXHIBIT AO2 which is exhaustive of all issues concerning and pertaining to the estate of Late Chief F.R.A. Williams, SAN. CFR, CON. (GROUND 2)

3) Whether EXHIBIT AO2 signed by all the beneficiaries of the estate of Late Chief F.R.A. Williams, SAN.CFR, CON will govern the manner and distribution of the estate in view of the instrument revoking all testamentary disposition executed by the deceased during his lifetime. (GROUND 3)

In the 1st and 2nd Respondents’ brief of argument, four issues were formulated for determination as follows:

1. Whether an arbitrator possesses the adjudicatory competence and/or jurisdiction to hear and determine the claims of the 1st and 2nd Respondents as claimants at the court below, which claims are set out in the writ of summons and statement of claim filed at the court below.

2. Whether the learned trial judge rightly held that the Arbitral clause contained in Exhibit AO/2 does not extend to all disputes arising from the estate of Late Chief FRA Williams, SAN. CFR, CON.

3. Whether the Rescinded Agreement Exhibit AO/2 is exhaustive of all issues concerning and pertaining to the Estate of Late Chief F.R.A. Williams, SAN.CFR, and whether the case of Jadesimi V. Egbe Supra is relevant and applicable to the instant case.

4. Whether in law, the Rescinded Agreement Exhibit AO/2 overrides Exhibit KWM/1 which Exhibit KWM/1, the Deceased testator expressed his wishes on how his estate should be administered.

The starting point here seems to be from the Appellants brief of argument wherein the issues No’s 1, 2 and 4 formulated in the 1st and 2nd Respondents brief were challenged on the ground that they are not relevant to the grounds of appeal. The Appellant referred to Order 18 rule 4(1) of the Court of Appeal Rules 2011 as well as EKE V. OGBONNA (2006) 11-12-SC 31 at 34 and JADESIMI v. EGBE (2003) 10 NWLR (PT 827) 1 to contend that a Respondent to an Appeal who has not Cross-appealed, cannot raise an issue outside those framed or formulated by the Appellant from the ground of Appeal.

I have read the four issues formulated in the 1st and 2nd Respondents brief and I indeed observe that issue No 1 has no bearing with any of the grounds of Appeal filed by the Appellant. The same goes for issue No. 4, however I find issues No.2 and 3 to relate to the grounds of appeal and are accordingly given the pass mark.

As per issue No’s 1 and 4, they are not derived from any of the three grounds of appeal. For an issue for determination to be competent, it must relate to the ground or grounds of appeal. Where it is found not to so relate, such issue so formulated and the argument derived there from are deemed incompetent and should be discountenanced or struck out. See OKPALE V. IBEME (1989) 2 NWLR (PT 102) 208. OGUDO V. THE STATE (2011) 18 NWLR (PT 1278) 1 at 45; MAMUDE V. OKAFOR (1996) 4 NWLR (PT 1448) 637; MOMODU V. MOMOH (1991) 1 NWLR (pt 159) 608; OSSAI V. WAKWAH (2005) 4 NWLR (PT 969) 208.

Issues for determination as formulated in a brief or argument must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. See IBATOR V. BARAKURO (2007) 9 NWLR (PT 1040) 475. In SHETTIMA v. GONI (2011) 18 NWLR (pt. 1279) 413 at 439-440 the Supreme Court held inter alia that:-

“The conclusion is therefore clear, that the sole issue does not arise from the grounds of appeal filed by the appellants, neither have the 1st-3rd Respondents filed any grounds of appeal/cross appeal or Respondents notice from which the said issue could be traced. Either way, the issue is incompetent and liable to be struck out.”

In the instant appeal, the 1st and 2nd Respondents issues No. 1 and 4 as formulated in their brief of argument does not derive from any of the grounds of appeal filed by the appellant, and they did not file any notice of appeal or cross appeal. The resultant effect of this short coming is that the Issues NO. 1 and 4 as formulated in the 1st and 2nd Respondents brief of argument are incompetent and accordingly the arguments advanced in support thereof. The said Issue No. 1 and 4 together with the argument in support are hereby struck out.

However, I find that the 1st and 2nd Respondents issues 2 and 3 covers the three issues raised in the appellants brief of argument. I will however adopt the issue raised in the letters brief in the consideration of this appeal.

ISSUE ONE

Herein learned counsel for the appellant referred to exhibit A02, particularly clause 19 therein to submit that a proper construction of its content will reveal that it declares and acknowledged what properties constitutes the estate of late Chief F.R.A. Williams which includes his real and personal property, and also contains the agreed formula for the distribution of the said estate and is an acknowledgement of what constitutes the estate save the procurement of letters of Administration by the parties.

He added that, based on Exhibit A02, any dispute with regard to the manner of distribution of the estate can only be settled in accordance with the arbitration clause. He then referred to the portion of the rule of the lower court at page 1052-1053 of the record to contend that the estate of the deceased person is made up of both the real and personal property which is exhaustive of the Estate and Exhibit A02 deals with both the real and personal property of late Chief F.R.A. Williams.

Learned counsel further referred to the clause 1.1, 2.1, 3.1, and 4.1 of Exhibit A02 which clearly unveils the subject matter of distribution between the parties wherein they all acknowledged and accepted that they have no claim against any of the persons mentioned with regard to or pertaining to the distribution of the personal and real property of Papa and Mama “as herein contained”

He referred to section 5(1) of the Arbitration and conciliation Act which provides that

5(1) “if any party to an arbitration agreement commences any action in any court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceedings”

He therefore noted that the based on the above section of the Act and having regard to the subject matter of Exhibit A02, the learned trial judge ought to have affirmed the agreement freely entered by parties and refer to the matter of arbitration. The following authorities were cited in support. OGUNDEPO V. OLUMESAN (2011) 12 SC (PT 1) 39 at 55; U.B.N PLC V. OZIGI (1994) 3 NWLR (PT 333) 385; M.V. LUPEX V. NOC & S LTD. (2003) 15 NWLR (PT 844) 469 at 491; KURUBO V. ZACH MOTISON (NIG) LTD (1992) 5 NWLR (PT 239) 102 and NISSAN (NIG) LTD V. YOGA NATTAN (2009) 1711 FWLR (PT 494) 1582 at 1602.

Furthermore he argues, the issue in this case is narrowed down to obtaining letters of Administration of the Estate of late Chief F.R.A Williams which was settled in Exhibit A02 and on that premise an application can be made to obtain letters of Administration which process was on going before the 1st and 2nd Respondents stalled. It with series of court actions rather than explore the arbitral clause in the agreement to resolve the agreed disputes.

Responding in their issue No. 2, learned counsel for the 1st and 2nd Respondents was of the assertion that Exhibit A02 has been validly rescinded by Exhibit KWM/8 contained at pages 410-417 of the Record.

He added that Exhibit A02 though purports to distribute the estate of the Deceased testator, the case before the trial court is to propound the will of the Deceased Testator and issue letters of Administration (with WILL Annexed).

He submitted that the principle of law is that where a party to a contract/agreement subsequently discovers that the said agreement was procured under misrepresentation and concealment of material facts, he can terminate the said contract by way of rescission. Vide-ABRAM STEAMSHIP CO V. WESWILLE SHIPPING CO LTD. (1923) A. C. 733 at 781.

He added that Exhibit A02 was executed by the parties under the mistaken belief that the deceased died intestate.

Learned counsel submitted further that the Arbitral clause contained in the rescinded Exhibit A02 does not extend to all disputes concerning and pertaining to the Estate of late Chief F.R.A. Williams because in the will Exhibit KWM/1, the Testator has decided the beneficiaries of his estate, therefore any purported agreement which tend to vary the expressed wishes of the Deceased Testator is illegal and unenforceable as held in Exhibit KWM/4 judgment of ALOGBA J. at page 298 to 299 of the records. Which judgment he says, he has not been appealed against and remains binding on the parties.

It was also the Submission of the learned counsel that the learned trial judge did not vary the terms of the rescinded Agreement Exhibit A02 but only gave clause 19 therein His plain and unambiguous construction, because the claim before the court is to propound the Will of the Deceased Testator and issue letters of administration (with Will Annexed) whereas clause 19 of Exhibit A02 deals with the dispute arising under the said Agreement which purports to distribute the Estate of the Deceased Testator. He added that the Estate has to be duly constituted first before the issue of distribution of assets of the Deceased Testator can arise. He referred to the holding of the learned trial Judge at pages 1067-1058 as well as 1053 of the Record to submit he did not vary any ambit of Exhibit A02, but gave it the ordinary and unambiguous construction and accordingly Section 5(1) of the Arbitration and conciliation Act is inapplicable to the instant case.

ISSUE TWO

Whether the claim set out in the statement of claim is not covered by Exhibit A02 which is exhaustive of all the issues concerning or pertaining to the Estate of Late Chief F.R.A. Williams SAN. CFR CON

Dwelling in this issue, learned counsel for the Appellant referred to the finding of the learned trial judge in his Ruling at page 1053 of the Record wherein he held as follows:-

“the arbitral clause in Exhibit A02 cannot be extended to the subject matter of this suit as to justify an order staying the suit in favour of arbitration”.

He argued that the lower court in arriving at the above decision did not avert its mind to the subject matter of the claim before it. He then adopted his argument canvassed in Issue No.1. and the authorities cited in support as his argument on this Issue No. 2.

He reiterated on the claim of the 1st and 2nd Respondents at the lower court which he says, relate to the Administration of The Estate of Late Chief F.R.A. Williams and has to do with the manner of distribution of the Estate as the basis for the application for letters of Administration.

Therefore he argued, all disputes under the agreement Exhibit A02 which deals with the real and personal property of Late Chief F.R.A Williams deals also with disputes arising from the Estate which is the bedrock of the claim at the lower court.

Relying on OKOYA V. SANTILI (1990) 2 NWLR (PT 131) 172 at 205, he submitted that where a party as in the instant case seeks reference to arbitration in the premise that the claims before the court has been settled by agreement between the parties wherein they agree to resolve any dispute relating thereto to arbitration, the court must examine the claim on the backdrop of the agreement in determining its jurisdiction more so when the 1st and 2nd Respondents concealed the existence of Exhibit A02 at the court below.

On the validity of Exhibit A02 entered into by the parties, he referred to the decision of this court in JADESIMI V. EGBE (2003) 10 NWLR (PT. 827) 1. He added that while in the above case the family agreement was upheld as valid despite the fact that it was entered into whilst the validity of the Will was pending before the Supreme Court, in the instant case the estate of Chief F.R.A. Williams had assumed intestacy by virtue of the Revocation instrument hence the consensus by parties to execute Exhibit A02 and reference of intestacy therein. This he says, justifies the contention that the subject matter of this suit is within the ambit of Exhibit A02 and ought to be referred to Arbitration.

For the 1st and 2nd Respondents, it was submitted that their claim in the lower court is not basically on distribution of the Estate, rather, the claims are to vacate the caveat entered by the objectors, and also to propound the Will of the Deceased Testator so that the Estate upon being duly constituted would distribute the Estate of the Deceased Testator in accordance with the expressed wishes of the Deceased Testator in Exhibit KWM/1.

Further submissions was made that the Exhibit A02 is not and cannot be exhaustive of all issues concerning and pertaining to the Estate of the Deceased Testator-because it was executed to distribute the Estate of the Deceased, without the parties knowing of the existence of Exhibit KWM/1.

Moreso that it is only the Deceased that can distribute his Estate the way he wishes-and any agreement that purports to vary such wish is null and void.

It was also submitted that the case of OKOYA V. SANTILI cited supra by the appellant is inapplicable to the instant case because Exhibit A02 in the instant case has been rescinded by the 1st and 2nd Respondents in which case there is no binding agreement between the parties.

Reference was also made to the case of JADESIMI V. EGBE (supra) cited by the appellant to submit that the case is totally irrelevant and inapplicable to the instant case because the facts are not the same. He then proceeded to analyze the facts of the said case as distinguishable from that of the instant case and then urged this court to hold that the case of JADESIMI V. EGBE supra is distinguishable and inapplicable to the instant case.

Reacting on this in the appellants reply brief, it was submitted that part of the subject matter of Exhibit A02 being the real and personal property of comprising the estate of the Deceased, any dispute with respect thereto is cognizable under Exhibit A02.

He added that the family agreement is exhaustive of all issues concerning and pertaining to the Estate of the Deceased intestate as it declared what properties constitute the estate of the late Chief Williams which includes his real and personal property and an agreed formula for distribution.

On the case of OKOYA V. SANTILI supra, it was submitted that it is most applicable to this case and as per the alleged rescission of Exhibit A02, reference was made to page 1045-1053 of the Record where the learned trial judge stated in his ruling that the determination of the question whether the agreement had been rescinded should be left till the hearing of the substantive suit which means the issue is yet to be resolved.

On the case of JADESIMI V. EGBE supra, it was submitted that it is applicable to the case because the deceased died intestate having validly revoked his last WILL and thus the agreement was not made under a mistaken belief that the deceased died intestate because he actually did.

He further submitted that all the alleged factors stated in paragraph 6.7 of the 1st and 2nd Respondents brief show complete misconception of the fundamental basis of the decision in Jadesimi’s case which is that a family agreement such as the one before this court is possible, valid and binding in law -and should accordingly be applied.

Before I proceed to consider the issues in contention, the following facts shall be of note as not being in dispute or doubt. To wit:-

(1) That the iconic legal luminary Chief F.R.A. Williams SAN CFR, CON. Passed on sometime in March 2005.

(1) That he died leaving behind his estate which consists of his Real and Personal property and that all the parties therein are his children and brothers from the same womb.

(2) That it was accepted by the parties concerned that he died intestate based on the available evidence that he revoked every testamentary disposition made by him before his death.

(3) That subsequent to his demise, there arose some differences amongst his children with respect to his estate resulting in series of meetings to settle the matter.

(4) That at one of the mediation meeting choired by the late Justice Kayode Eso (JSC) settlement was reached and all the parties in this appeal entered into a family agreement (Exhibit AO2) dated 25th November 2005-wherein they all agreed to the way and manner of sharing the real and personal Estate of their father.

Now on the issue for consideration, I am minded to address issues 1 and 2 together as they are interwoven and interrelated.

The appellants complaints is that he learned trial judge erred in law by varying the ambit of Exhibit A02 contrary to the agreement of the parties that it is exhaustive of all issues concerning the Estate of their father and given the fact that the said Exhibit A02 covers the claim set out in the 1st and 2nd Respondents statement of claim.

The learned trial had in his ruling at page 1052 to 1053 of the Record held as follows:-

The arbitral clause in the said family agreement, exhibit A/02 is follows

“All disputes under this agreement shall be settled amicably failing which they shall be settled by a sole arbitrator appointed by all the parties under the Arbitration and Conciliation Act 1990 Cap 19, Laws of the Federal Republic of Nigeria. In the absence of concurrence by the parties on a sole arbitrator, the sole arbitrator shall be appointed by the Chief Judge of Lagos State.

Where a document is clear and unambiguous, the operative words in it should be given their simple, ordinary, grammatical meaning.

See UNION BANK OF NIG. LTD V. PROF. ALBERT OZIGI (1994) 3 NWLR (PT 333) 285 at 389.

Giving the unambiguous provisions above the ordinary grammatical meaning, it will be evident that the contrary to the contention of the Defendants, the arbitral clause does not extend to all disputes arising from the estate of late Chief FRA Williams but as expressly stated therein, only covers disputes arising from the family agreement exhibit A/02.

The reliefs contained in the writ of summons and the statement of claim revolve around the attempt by the claimant to give effect to the Will said to have been made by the late father of the parties dated 22nd day of June, 1954 which they become aware of after the family agreement, exhibit A/02 was made.

An examination of the said exhibit A/02 however shows that the said Will dated 22nd day of June 1954 central to this suit was not contemplated therein as it treats the estate involved as an intestacy.

I therefore agree with the position of the claimants/respondents that the suit cannot be justifiably called a dispute arising from the said family agreement exhibit A/02. That being so, the arbitral clause contained in the said family agreement cannot accordingly be extended to the subject matter of this suit as to justify on order staying the suit in favour of arbitration as contained in the said family agreement.

In totality therefore, I do not find merit in this application and I must accordingly refuse it.

The learned trial judge seemingly examined Exhibit A02 but made a finding that the arbitral clause contained therein does not extend to all disputes arising from the estate of late Chief FRA Williams but only covers disputes arising from the family agreement Exhibit A02. While the claim before him was to give effect to the Will said to have been made by their late father which they became aware of after the family agreement Exhibit A02.

See also IKENNE LOCAL GOVT V. WAPC PLC (2011) 12 NWLR (PT 1261) 223.

In the light of the above, it is germane to peruse the content of exhibit A02 in order to appreciate and understand its true intent and purport. In this regard, the recital section at page 890 of the Record comes to the fore and it reads thus:-

“WHEREAS

(1) Ladi, Kayode, Folarin and Tokunbo are the children and sons of the Late Chief Fredrick Rotimi Alade Williams and the late Chief (Mrs) Beatrice Oladunmi Williams herein after referred to as papa and mama respectively.

(2) Papa had an interest in real and personal property and during his life time made various trust instruments in respect of these properties.

(3) Some properties continue to be held in the name of papa.

(4) All the personal property of mama passed to papa by operation of law and a third of the real property of mama now forms part of papa’s Estate.

(5) Ladi, Kayode, Folarin and Tokunbo are full brothers who out of brotherly love elected to enter into this agreement in respect of their interests in the subject matter thereof”

A simple reading of the above set out recital show that item 2 therein referred to the real and personal interest of their father Chief FRA Williams which no doubt constitutes his Estates. Pages 5 to 11 of the said family agreement contains a detailed mode of sharing of the said real and personal Estate of their father. At the end of it all, it was provided in clause 19 of the said family agreement (Exhibit A02) as follows:-

“all disputes under the agreement shall be settled amicably, failing which they shall settle by a sole arbitrator appointed by all parties under the Arbitration and Conciliation Act 1990, CAP 19. LAWS of the Federal Republic of Nigeria. In the absence of concurrence by the parties on a sole arbitrator, the sole arbitrator shall be appointed by the chief Judge of Lagos State”

Now, what is the whole intent and purpose of the agreement signed by all the parties herein? It is nothing more or less than the mode of sharing and distribution of the real and personal property, otherwise called the Estate of late Chief FRA Williams.

The claim by the 1st and 2nd Respondents at the lower court are for:-

(1) An order of the court vacating the caveat entered on the 21st day of December 2009 by the Defendant on the estate of the deceased.

(2) An order of the court for the grant of letters of Ministration (with Will annexed) of the deceased estate to the first and 2nd claimants as Administrators of the Estate and the only beneficiaries under the WILL as recognised by the Testator”.

(3) An order of court compelling the Defendants to produce in court a comprehensive general account of all the assets of the deceased including bank accounts within and outside Nigeria, operated by the deceased in his individual capacity, jointly with another party and as a corporate entity of which the deceased was an officer as well as an account of the personal estate of the deceased.

(4) An order that the Defendants should pay costs of this actions

(5) A declaration of court establishing the WILL dated 22nd day of June 1954 in the solemn form of law.

(6) A declaration of this court that no valid legal vesting nor valid legal instrument nor any valid Deed of gift/trust duly registered was executed by the deceased inter vivos in favour of any persons, save for except as contained in the said Holographic WILL.

(7) A declaration of the court that the Defendants have no locus standing to enter a caveat on the estate of the Deceased.

The above claim, it must be noted, was at the instance of the 1st and 2nd Respondents as claimants against the appellant and 3rd Respondents as the defendants. The 1st and 2nd Respondents are the 1st and 2nd sons of the deceased while the appellant and the 3rd Respondents are the 3rd and 4th sons respectively. The four of them are the beneficiaries of the estate of the deceased and signatories to the family agreement, Exhibit A02.

The claim by 1st and 2nd Respondents at the lower court formed the basis for the application by the appellant for stay of proceedings and reference of the suit to an arbitrator by the lower court.

A careful perusal of the whole content of exhibit A02 duly and whole heartedly endorsed by the parties on the 25th day of November 2005 and witnessed by no less a revered personality than late Honourable Justice Kayode Eso (JSC) and one Abimbola Williams. Show that it relates by every imaginable standard to the real and personal estate of late Chief F.R.A. Williams.

I have also scanned through the 1st and 2nd Respondents claim in the lower court and all I can discern there from is that it to all intent and purpose relate to the estate of late Chief FRA Williams, (Res ipsa loquitor)

I however find it herculean to see my way through to the justification on the part of the learned trial judge in the holding that the arbitral clause does not extend to all disputes arising from the estate of late Chief FRA Williams- but only covers dispute arising from the family agreement Exhibit A02.

The said arbitral clause as contained in the clause 19 of the family agreement specifically stated thus:-

(19) DISPUTES

all disputes under this agreement shall be settled amicably, failing which they shall be settled by the sole arbitrator appointed by all parties under the arbitration and conciliation Act 1990, CAP 19, LAWS of the Federal Republic of Nigeria. In the absence of concurrence by the parties a sole arbitrator shall be appointed by the Chief Judge of the Lagos State.

I had earlier indicated that the whole intent and purpose of the family Agreement Exhibit A02 as shown by its content is the mode of sharing and distribution of the Estate of late Chief FRA Williams.

Clause 19 therein only made provision for the manner of settlement of any dispute that may likely arise therefrom, given the nature of the heart of man whom the Almighty God has sadly proclaimed to be deceitful and desperately wicked and for which no one can know except him the Omnipotent and Omniscient One- who rules in the affairs of mankind.

I therefore find it difficult to otherwise give effect to the simple, clear and unambiguous grammatical meaning ascribable to the content of the family agreement. This means what it states that all disputes under the agreement shall be settled amicably or by a sole arbitrator appointed by all the parties or by the chief Judge of Lagos State.

See UNILIFE DEV. CO LTD V. ADESHIGBIN supra.

In other words, any dispute arising from the mode of sharing and distribution of the estate of their late Father shall be settled amicably internally or by a sole arbitrator appointed by the parties or the Chief Judge of Lagos State as the case may be.

The holding of the learned trial Judge indeed amounts to varying the ambit of Exhibit A02 as contended by the appellant. It also amounts to limiting the scope of the said family agreement Exhibit A02 which by its clear and ordinary meaning is exhaustive of all issues concerning or pertaining to the estate of late Chief FRA Williams.

Granted that Exhibit KWM/1, Holographic Will made by late Chief FRA William in 1954 was discovered. Would that really give the 1st and 2nd Respondents uninhibited justification to unilaterally abandon the family agreement entered into by four blood brothers of the same womb without following procedure as laid down in clause 19 of Exhibit A02?

The said Holographic Will if proved relates to the estate of Chief FRA Williams for which all the parties have hitherto entered into a family agreement as to the mode of sharing and distribution. Consequently, given the fact that it was discovered subsequent to the formalization of Exhibit A02 with no fault attributable to any of the parties, it is germane that all the parties aforesaid shall be involved in deciding the way forward having earlier on shared the estate amicably without notice of the fact that all things been equal the said exhibit KWM/1 provided a different mode of sharing the estate. I will quickly add here that it is without prejudice to the appellant’s assertion that the said Exhibit KWM/1 was covered by the revocation of all testamentary disposition by their father in 1998.

These are indeed the issues that call for resolution in the light of the emergence of Exhibit KWM/1 and by virtue of clause 19 of Exhibit A02 if ought to be resolved amicably by the parties and if that fails, it should be settled by the sole arbitrator and this is the path the appellant sought the intervention of the lower court to address but unfortunately the application was refused, on the ground that the scope of clause 19 does not extend to the 1st and 2nd Respondents claim.

This court having now found that the provision of clause 19 is exhaustive of all the estate of late Chief FRA Williams SAN. CFR, CON, whatever obstacle standing in the way of a grant of the application by the lower court is thus uprooted.

The arbitration clause where embedded in a document constitutes an agreement of such parties concerned that if any dispute occurs with regard to the obligations which the parties have undertaken to each other, such dispute should be settled by a body or tribunal of their own constitution and choice. See ROYAL EXCHANGE ASSURANCE v. BENTORTH FINANCE (NIG) LTD (1976) 11 SC (REPRINT) 96.

See also THE OWNERS OF THE M.V. LUPEX V. NIGERIAN OVERSAES CHARTERING AND SHIPPING LTD (2003) – 6 SC (PT 11) 62 OR (2003) 15 NWLR (PT 844) 469 where the Supreme Court held that:-

“The law is also settled that the mere fact that a dispute is of a nature eminently suitable for trial in a court is not sufficient ground for refusing to give effect to what the parties have, by contract, expressly agreed to.

So long as an arbitration clause is retained in a contract that is valid and the dispute is within the contemplation of the clause, the court ought to give due regard to the voluntary contract of the parties by enforcing the arbitration clause as agreed by them”

I am also mindful of the Supreme Court authority that by virtue of section 5(1) of the Arbitration and conciliation Act an applicant for the stay of proceedings must be a “party of the arbitration agreement” and that the subject matter of the action must be “with respect to any matter which is the subject of an arbitration agreement”. See A.I.D.C. v. NIGERIA L.N.G. LTD (2000) 2 SC 57 or (2000) 4 NWLR (PT 653) 494.

In the instant case it is evident that the appellant is a defendant in the suit filed by the 1st and 2nd Respondents in the lower court which subject of claim we had earlier held relates to the real and personal estate of their deceased father duly settled in Exhibit A02.

It was also strenuously argued by the 1st and 2nd Respondents that the said Exhibit A02 had been rescinded by both of them on grounds of misrepresentation and concealment of material facts. Though the argument does not emanate from any issue formulated by the parties or the grounds of appeal or Respondent notice, my simple answer to that is found in section 2 of the Arbitration and Conciliation Act which provides that

“unless a contrary intention is expressed therein, an arbitration agreement shall be irrevocable except by an agreement of the parties or by leave of the court or a judge”.

There is nothing before us to show that the parties agreed to the rescission of Exhibit A02 or that it was done with the leave of the court or a judge. I therefore find it impossible to flow with that line of contention.

On the other hand, the Apex court of this country has held that where parties enter into agreement and there is arbitration clause whereby the parties must first go for arbitration before trial in court it is natural for the defendant in a case where the other party has filed a suit to ask for stay of proceedings pending arbitration. See FAWEHINMI CONSTRUCTION COMPANY LTD V. O.A.U (1998) 5 SC 43 or (1998) 6 NWLR (PT 552) 171.

On the whole issue, No.1 and 2 are resolved in favour of the appellant.

ISSUE THREE

Whether Exhibit A02 signed by all the beneficiaries of the estate of late Chief Williams, SAN, CFR, CON will not govern the manner and distribution of the estate in view of the instrument revoking all testamentary disposition executed by the deceased during his life time.

Herein, learned counsel relied on the appellant’s argument canvassed in issue 2 as well as the authorities cited in support.

He then referred to paragraph b, c, d and e of the affidavit in support of the motion for the stay pending arbitration before the lower court as found at page 171-172 of the record to point to all the parties herein were aware that all testamentary disposition made by late Chief FRA Williams have been revoked prior to executing Exhibit A02 by virtue of which any disagreement relating to the distribution of the estate of the deceased is necessarily a dispute and should be referred to arbitration.

Also by the authority of JADESIMI V. EGBE (supra) Exhibit A02 duly signed by all the parties and beneficiaries of the estate of the deceased shall govern the manner and distribution of the estate.

This issue was addressed in the course of the consideration of issues NO. 1 and 2 wherein it was answered in the affirmative. The point should however be further stressed that, an agreement voluntarily entered by parties such as in this case, must of necessity be honoured in good faith, in the absence of fraud or mistake because the court does not engage itself in the act of writing and rewriting agreements for parties, it must therefore avoid being branded as a meddlesome interloper. Where therefore the words in an agreement are clear, precise and unambiguous, the court shall without much ado expound those words in their ordinary and natural sense in order to give a true and genuine effect to the intention of the parties. See ZENITH BANK PLC V. EGBE (2003) 10 NWLR (PT 827) 1.

Parties in the appeal had in their respective briefs argued strenuously for and against the applicability of JADESIMI’S CASE. It may not be on all fours with the instant case, but one principle of law that is commonly accepted and applied in JADESIMI’S case and which I am bound to follow in the instant case is that where parties have voluntarily entered into an agreement and duly endorsed it, the full intent and purpose of such agreement must be honoured in good faith.

In the instant case, given the fact that the parties in this appeal decides to enter into amicable family agreement (Exhibit A02) on the premise that to the knowledge and acceptance of all of them, their father revoked every testamentary disposition executed during his life time and thus passed away intestate. It accords with morality and good conscience for the parties concerned to abide by the terms of the said family agreement in the event of any subsequent development which might have been unforeseen like the alleged emergence of Exhibit KWM/1 (Holographic Will). The said family agreement made adequate provision for addressing the issue in clause 19 and it ought not to be ignored as a first option.

The 1st and 2nd Respondent also filed a Respondent’s notice of intention to contend the decision of the lower court to be confirmed on the following grounds:

(1) That the Appellant and the 3rd Respondent lack the locus standi to initiate and/or maintain this action.

(2) This suit cannot be referred to Arbitration as the claims before the court are not arbitrable and the rescinded Agreement cannot bind on estate which is yet to be constituted and which is not a party to the said rescinded Agreement.

On the 1st ground, the term Locus Standi denotes the legal capacity to institute proceedings in a court of law. See THOMAS V. OLUFOSOYE (1985) 1 NWLR (PT 18) 669, OROGAN V. SOREMEKUN (1986) NWLR (PT 44) 688, INAKOJU V. ADELEKE (2007) 4 NWLR (PT 1025) 423.

Thus Locus Standi normally relates to and is usually accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected. See ODUNEYE V. EFUNUGA (1990) 11-12 SC 122.

In the instant case, the Appellant and 3rd Respondent were brought as Defendants in the lower court. They never initiated any other action therein, rather they applied to the court to stay proceedings in the suit against them pending the reference of the claim before the court to an arbitration for settlement in accordance with the arbitration clause contained in the agreement between the parties which pertains to the manner of distribution of the estate of the Late Chief FRA Williams. The said claim in which they were made Defendants in the lower court also relates to the said estate. I therefore see no basis for seeking to confirm the Ruling of the lower court on this ground, given the fact that the Appellant and the 3rd Respondent are parties in the suit in the lower court as well as Exhibit AO2. This indeed confers on them the necessary Locus Standi to file the application.

On the second ground, it is my humble view that it has been adequately addressed in the main appeal and I do not “intend to embark on another voyage on this already explored terrain- having held earlier on that the arbitral clause in Exhibit A02 extends on all issues pertaining to the Estate of late Chief FRA Williams.

Before I conclude, I want to seize this opportunity to refer to item 5 of the Recital wherein the true spirit of the family agreement was manifested.

It reads thus:

WHEREAS

5. Ladi, Kayode, Folarin and Tokunbo are full brothers who out of brotherly love have elected to enter into this agreement in respect of their interests in the subject matter hereof.”

In this regard, let the parties concerned reflect on their childhood years when they gathered together around the table with papa and mama in attendance sharing the same food and water. Now with this altercation and bitterness over mundane riches built up by their deceased father.

The question for them to answer is “what would papa and mama say if they were alive”. May admonition is ‘think, think’ and again I say think’.

On the whole I find that the appeal has merit and it is accordingly allowed. The ruling of the High Court of Lagos State delivered by J.O.K Oyewole J. On the 31st January 2012 is hereby set aside.

It is hereby ordered that ail further proceedings in the court be stayed in favour of arbitration under the arbitration and conciliation Act 1990 as per clause 19 of Exhibit A02.

All the parties in this appeal are directed to work in harmony towards achieving the said goal.

I make no order as to costs.

RITA NOSAKHARE PEMU, J.C.A: I had the advantage of reading in draft, the lead Judgment just delivered by my brother SAMUEL CHUKWUDUMEBI OSEJI J.C.A.

I agree with his reasoning and conclusions, predicated on his exhaustive and painstaking analysis of the issues for determination.

Exhibit “AO2” is unequivocal. It portends that any dispute with regard to the manner of distribution of the estate can only be resolved by reference to the arbitration clause. I need not restate the provision of Exhibit “AO2”, as same has been referred to in the lead Judgment.

Any attempt to vary the contents in Exhibit “AO2”, would amount to truncating the wish of the family whose wish is ostensibly to bring peace to the parties.

The only reasonably order to make is to stay further proceedings in favour of arbitration under the relevant provisions of the Arbitration and Conciliation Act 1990 as pertaining to Clause 19 of Exhibit “AO2”.

The Appeal is meritorious and same is allowed by me. The Ruling of J.O.K. Oyewole J. delivered on the 31st of January 2012 is hereby set aside.

I subscribe to the consequential order made in the lead Judgment that parties work in harmony.

TIJJANI ABUBAKAR, J.C.A: The law is trite regarding the bindingness of terms of agreement, where parties at in the instant appeal voluntarily enter into an agreement and willingly too endorse the said terms, the agreement must be honoured, courts of law being courts of justices and conscience will certainly not allow anything to be read into an express agreement, terms on which parties were not in agreement, see BABA V. NIGERIA CIVIL AVIATION TRAINING CENTRE ZARIA (1995) 5 NWLR (PART 192) 388. SCOA NIG LTD v. BOUDREX LTD (1930) 3 NWLR (PART 138) 380, I think the only duty on this court is to say “Honour your agreement”.

My leaned brother Oseji JCA as usual dissected the issues in this appeal and I adopt his reasoning and conclusion in the lead judgment as my own.

I also allow the appeal, and set aside the ruling delivered by J.O.K Oyewole J (as he then was) on 31 January 2012, and further proceedings are hereby stayed, and parties in this appeal shall march to arbitration immediately.

Parties to bear their costs.

Appearances

E. O. MadugunnaFor Appellant

AND

Ogbeide K. Ukumhen for 1st & 2nd Respondents

T.E. Williams SAN in person as 3rd RespondentFor Respondent