THE ESTATE OF OLUSOLA POPOOLA V. ACCESS BANK PLC: On whether estate of deceased person can sue or be sued: An insight into the Court of Appeal decision in The Estate of Olusola Popoola v. Access Bank Plc. Citation: [2020]16 NWLR PT.1751 at PG. 539. Courtesy: Moruff O. Balogun Esq.

Summary of facts:

Mr. Olusola Popoola (deceased) enjoyed a facility from the respondent and died without repaying same. Failure to pay made the respondent to demand repayment from his estate and later the respondent took out a writ before the court below in Suit No. ID: 139/2009 claiming the outstanding sum of NI, 878,422.09 (One Million, Eight Hundred and Seventy Eight Thousand, Four Hundred and Twenty Two Naira, Twenty Nine kobo). The respondent also filed a motion for final judgment in accordance with Order 11 rule 1 and Order 19 rule 4 of the Lagos State High Court (Civil Procedure) Rules, 2004.

The appellant entered appearance and filed a preliminary objection which was dismissed after which the motion for judgment was heard and judgment entered against the appellant on 30th March, 2011.

Dissatisfied with the judgment, the appellant filed a notice of appeal. The respondent in his response incorporated a preliminary objection in the respondent’s reply brief.

In determining the appeal, the court considered the provision of section 15 of the Administration of Estates Law of Lagos State, 2003:

15(1) Subject to the provisions of this section, on the death of any person after the commencement of this Law, all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of deceased person, the damages recoverable for the benefit of the estate of that person.
Shall not include any exemplary damages;
In the case of a breach of promise to marry shall be limited to such damage if any; to the estate of that person as flows from the breach of promise to marry;
Where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses maybe included.
(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless either:

proceedings against him in respect of that cause of action were pending at the date of his death or
The cause of action arose not earlier then three years before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out representation,

(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Law, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.
(5) The rights conferred by this Law for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accident Law, or the Carriage By Air Act, 1932 of the United Kingdom and so much of this Law as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Law as relates to causes of action under the said law and the said Act as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1) of this section.
(6) In the event of the insolvency of an estate against which proceeding are maintainable by virtue of this section, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust.”

Held: Unanimously dismissing both the preliminary objection and the appeal.

The Court of Appeal raised and considered the following issues:

On Whether estate of deceased person can sue or be sued:
The estate of a deceased person can sue or be sued. The usual practice is that the executors or personal representatives should prosecute or defend such an action on behalf of the estate, and such actions should be headed, “UVW suing as Executors of the Estate of XYZ (Deceased)”. That is where there is a letter of administration or where the deceased left a Will. None of those scenarios existed in the instant Case. However, some actions are also simply headed “Estate of XYZ (Deceased)” and the matter can still proceed in this wise. More as, the rules allow for it.

Per NIMPAR, J.C.A.
“The respondent in reaction to the preliminary objection on jurisdiction by the appellant at the court below deposed to facts that a search at the probate division yielded no result thus, the decision to sue the Estate of the deceased. If the appellant contends that there is an Administrator or Executor, it is a positive assertion and therefore the burden of proof is on it to so prove but it failed. That is the requirement by the Evidence Act. In the absence of Administrator/Executor to the Estate of the Olusola Popoola, the respondent took advantage of the window allowed by the rules of the court below wherein it gave the trial court, power to proceed in the absence of any person representing the estate of the deceased person or against any person the court appoints, Order 13 rule 15(1). Since the estate of a deceased includes assets and liabilities, the entire estate can logically be brought in to defend the claim against the estate. This is more so, in the absence of a will or letter of administration and because the said Olusola Popoola died intestate, nobody came forward as his personal representative for obvious reasons. The said deceased Olusola had mortgaged his house which forms part of his estate and therefore the estate can be called upon to defend what constitutes the deceased estate. Furthermore, Order 13 rule 16(1) says no proceedings shall be defeated by reason of a misjoinder or non joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties before him.

On Meaning of estate:
Estate means the property that one leaves after death; the collective asset and liabilities of a dead person.

On when silence amounts to admission in formal demand for debt repayment:
Where a bank makes demands for settlement of debt by letter and the amount of the debt is contained in each letter and the debtor does not query the respective figures written in the letter as the overall debt due, the debtor will be deemed to have impliedly admitted the quoted figures as the amount of the debt due. In the instant case, the respondent, made a formal demand on the appellant stating figures and the appellant failed to refute or respond. In the circumstance, he was deemed to have admitted the debt.

On whether cause of action which survives a deceased person shall abate by death of the person:
Generally, a cause of action which survives a deceased person shall not abate by the mere death of the person except for defamation, seduction and inducement of spouse. In the instant case, the cause of action was a loan facility which survived the death of the borrower.

On whether admission in a solicitor’s letter binding on client:
A counsel briefed in a matter, can make statements or perform certain acts which will bind the client. He is an agent of the client for the purposes of the subject matter and has implied authority to make admissions on behalf of the client. He has authority to decide with his own knowledge of the law, how to conduct the case, and the client is bound by how the counsel conducts the case. The remedy open to the client if he is not satisfied is to withdraw the brief or sue for professional negligence if that appears to be the case. As such, any formal admission by counsel on behalf of a client is an admission that can bind the client. In the instant case, the appeals made in the letters dated 10th November, 2010 and 25th October, 2010 pleading for a waiver over the indebtedness of the deceased by appellant counsel, was an admission of the fact that the appellant was indebted in the sum stated in the letters. The argument of the appellant that the admission by his counsel was not an admission that could bind him was preposterous and untenable. The appellant was bound by the content of the letters written by his counsel which were all clear on the admission of the debt.

On burden on defendant who admits indebtedness from plaintiff:
An admitted debtor has both the moral burden and legal obligation of establishing by credible evidence that he has fully liquidated or paid the debt he owes to his creditor. A bare denial of liability cannot amount to a reasonable defence in a claim for a debt once a defendant admits the indebtedness’ or receipt of a loan, the burden as to repayment or as to the reasons for non-payment, is on him. In the instant case, the appellant admitted the loan in his statement of defence and counter affidavit but went on to state that the late Olusola Popoola liquidated the said debt and also denied taking the second tranche of N750,000.00. He neither annexed any document nor pleaded to show that the first loan of N1,000,000.00 was liquidated. The appellant deposited title documents for loan which had a tenure of 90 days and there was no evidence that the amount was paid back after the said 90 days. The documents were not returned after 90 days. By exhibit 8, the appellant through Seyi Kolawole nee Popoola made a repayment proposal in addition to solicitors letters marked as exhibit FA 1& 2 admitting the debt. From the totality of the evidence before the trial court, the appellant failed to establish liquidation of its indebtedness.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.