A Lagos High Court sitting in Igbosere on Thursday, May 31 ruled that it cannot make any pronouncement on the 3rd Codicil an Irrevocable Power of Attorney, whose validity, as pleaded by the Defendants, is being challenged by the Claimants in the matter of the estate of Alhaji Kasali Olaleye (Deceased).
Presided over by Justice Morenike Obadina, the court gave the ruling in respect of the application filed by the Defendants/Applicants.
The Defendants/Applicants had prayed the court to inter alia grant a declaration that the Will, and the alleged 3rd Codicil of the deceased, as well as the alleged Irrevocable Power of Attorney in respect of the deceased’s estate, are “real, authentic, genuine, valid, binding and operational.”
They also prayed for the grant of an “order of perpetual injunction restraining the Claimants/Respondents from further collecting of rents or dealings with any of the properties of their deceased father.”
The properties in reference are those of the deceased testator known and addressed as 7, Arikewuyo Street, Onipanu, Lagos as well as the property at Bonke’s Compound, Ilugun, Abeokuta, among others.
While declining to make pronouncement on the alleged 3rd Codicil and Irrevocable Power of Attorney, as prayed by the applicants, the court rather ordered for accelerated trial of the substantive suit “pursuant to order 38, Rule 8 of the High Court Of Lagos State (Civil Procedure) Rules 2012.”
It further ordered the appointment of Court Receivers to start collecting the rents in respect of the said deceased estate pending the determination of the substantive suit.
According to Justice Obadina, the cumulative proceeds from the rents as collected would be turned over to the party in whose favour judgment is ultimately given.
She further ruled that the case file be referred to the Admin Judge for reassignment pursuant to her order for accelerated trial.
The Claimants in the suit are Mr. Lateef Olaleye; Mrs. Abeebat Awal (Nee Olaleye); Mr. Abass Olaleye; Mrs. Tawakalitu Olagunju (Nee Olaleye); and Mrs. Modinat Adepeju (Nee Olaleye).
Others are Mr. Isiaka Olaleye; Mrs. Rukayat Owolabi (Nee Olaleye); Mr. Shamsideen Olaleye; and Mrs. Rasheedat Adenusi (Nee Olaleye).
The Defendants/Applicants are Mrs. Bolatito Olatitayo Jarikre (Nee Olaleye); Mr. Akeem Olaleye; Mrs. Fatimah Toriola (Nee Olaleye); Lasisi Oyewole Esq. and the Probate Registrar.
The 1st to 9th Claimants as well as the 1st to 3rd Defendants are children, numbering 12, from the three wives of the deceased Alhaji Kasali Adisa Olaleye, who died after a brief illness on November 7, 2010.
According to the Statement of Claim on Oath of the Claimants deposed to by the first child of the deceased/1st Claimant in the suit, Mr. Lateef Olaleye, a family meeting was held following the demise of their father, Alh. Kasali Olaleye.
Save one of the surviving children of the deceased, who is residing abroad, 11 of the children were all present at the meeting in which the 1st Defendant, Mrs. Bolatito Jarikre, a lawyer called to the Bar on May 5th, 2000, was nominated as the custodian of the rents.
After Mrs. Jarikre had undertaken the assignment for 11 months, the family asked her to give account of the rents. “That is when the problem started,” the 1st Claimant said.
Following this development, the family proceeded to Abeokuta to confer with a cousin of their father’s, Pa Ajide Orija, whom their father, while alive, told the children to always confer with at any time they had issues, as relating to his Estate.
Lateef said the old man called a meeting attended by the deceased’s children and three other elders, who after listening to the parties demanded that the 1st Defendant Mrs. Jarikre should render account as per the rents.
Her retort, however, was to the effect that she was not obligated to render any account to the family on the ground that their deceased father had executed a Will and Codicils during his life-time whereupon he willed his entire estate to her, “being the apple of his eye.”
According to her, he’d appointed her by his 3rd Codicil, which is being disputed, the sole Executor/Trustee of his estate, including the rent-yielding properties in Onipanu, Lagos and Ilugun, Abeokuta.
Lateef stated however that the development became curious because not until the family had ordered Mrs. Jarikre to render account, the question of a Will or indeed Codicils executed by the deceased was never raised.
In fact, the family had taken for granted that their father died intestate. Thus the Claimants became suspicion about the 1st Defendant’s motive, considering she was the only one among the deceased’s children who knew about a will and Codicils.
The 1st Defendant Jarikre further posited that her father had executed in her favour an Irrevocable Power of Attorney in respect of the said properties just to drive home the point that their deceased father’s estate has fully and finally devolved to her.
Speaking on the nature of Irrevocable Power of Attorney, Chief Goddy Uwazuruike, a lawyer, reports that unlike a revocable/regular Power of Attorney, an Irrevocable Power of Attorney does not determine at the demise of the Donor.
According to him, “An Irrevocable Power of Attorney is akin to a conveyance or an assignment of interest. It is therefore executed by deed, for which the Donee furnishes consideration to the Donor; and to that extent, it is a registrable instrument.”
The 1st Defendant thus began the process of having the deceased’s Will read at the Probate.
Although the move met some legal challenge from the other family members, led by the 1st Claimant, the hurdle was eventually crossed.
And on May 4th, 2012, the family converged at the Probate Registry for the reading of the Will.
Curiously, instead of the Will of the deceased being read, it was an alleged 3rd Codicil to his will that was read.
While claiming that the testator by dint of the 3rd Codicil has revoked the appointment of the 8th Claimant, Shamsideen Abiodun Olaleye, as the deceased’s Executor/Trustee on the ground of “fraudulently misappropriating N100, 000” from the Estate; the alleged Codicil left the 1st Defendant Mrs. Jarikre the sole Executor/Trustee of the Estate.
It added, “I do hereby appoint my daughter Mrs. Bilikisu Bolatito Jarikre (Nee Olaleye) to manage my properties.
“She is to inter alia collect rents, issue statutory notices to tenants, eject tenants therefrom, recover possession of part or whole tenanted to tenants and do all that is reasonably expedient.
“I confirm the execution of the irrevocable Power of Attorney dated 4th February 2008 in favour of the said Mrs. Bilikisu Bolatito Jarikre (Nee Olaleye).
“Under no circumstances whatsoever should my will be a subject of litigation in any court of law.”
It also named one Alhaji Sulaiman Aimasiko Mustapha as second witness to the alleged Codicil.
But when his reaction was sought concerning the foregoing state of affairs, Chief Uwazuruike, said, “It is a legal misnomer for a Codicil to be read without the Will being read.
“This is because a Codicil follows a Will. There cannot be a Codicil without a Will, because the former merely amends certain clauses in the Will.”
It was against this background that the family, having instructed Barrister Mutiu O. Olanrewaju, as counsel to the 1st to 9th Claimants, applied to the Probate Registry for the recovery and reading of the Will.
It was discovered, following the reading of the Will, which was executed by the deceased on August, 18th, 2003 that the original Executors/Trustees were the said Pa Ajide Orija (now deceased); the 1st Claimant, Lateef Olaleye; the 6th Claimant, Isiaka Olaleye; and the 5th Claimant, Modinat Olaleye.
The 1st Codicil, whose language was practically devoid of legalese, and executed on January 15th, 2008 was also obtained.
It amended the list of the Executors, reducing same to Mr. Ajide Orija or Bilikisu Olaleye; and Shamsondeen Olaleye.
The 2nd Codicil, also devoid of legalese, and executed on August 30th, 2008, was equally obtained, showing no amendment of Executors/Trustees’ list.
But comparing the 1st and 2nd Codicils with the 3rd, a certain departure in language is readily observed: while the latter was suffused with legalese; the former was written in very plain and easily comprehensible language.
This discrepancy, among others, raised suspicion among the Claimants, who feared that the 3rd Codicil might have been the work of a masterful forger.
On that score, the Claimants instituted an action before the Lagos High Court challenging the validity of the 3rd Codicil, which literally revoked the deceased’s.
They, therefore, prayed the Court to declare it invalid, void, and of no effect whatsoever.
The Court, however, would refer the matter for mediation. At the session, one of the witnesses to the 3rd Codicil, Alhaji Aimasiko, was asked to confirm having witnessed the execution of the 3rd Codicil.
In his reply, he stated that he never at any time witnessed the execution of the alleged Codicil, following which the matter was returned to the Court for trial.
The Defendants have however denied the claims of the claimants in written statements of defence on oath jointly and separately deposed to by the Defendants.
Hearing in the suit continues, as the court has ordered accelerated trial of the suit.