Daniel & Ors v Abiola & Anor [2003] EWHC 1562 (Ch)

HC 02 C 03724[2003] EWHC 1562 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of JusticeDate Wednesday, June 25, 2003
Strand
London WC2A 2LL
Before
MR JUSTICE LAWRENCE COLLINSIn the Estate ofBASHORUN MOSHOOD KASIMAWO OLAWALE ABIOLA
Between
TIMOTHY HUGH DANIELADAM BROKEKOLAWOLE ABIOLA - ClaimantsZAINAB DUKE ABIOLAONWUKA KALU - Defendants
Mr Roger C-H Horne (instructed by Kendall Freeman) for Claimants.The First Defendant appeared in person for in person
JUDGMENT
[1]This, in its original form, was an application for these directions:(1) To ratify the appointment of the Administrators of the Estate of Chief Abiola ("the Estate") or that a grant pending suit, should the Court consider it necessary, be granted to the Claimants;(2) that the Claimants be authorised to make these payments: - £5,734.31 to Holman Fenwick & Willan, - £118,352 to Kendall Freeman, solicitors to the Estate, - £26,813.50 to Mercer & Hole, accountants to the Estate;(3) that the Claimants be authorised to make the following payments on account of costs and disbursements: - £25,000 to Holman Fenwick & Willan, - £50,000 to Kendall Freeman, solicitors to the Estate;(4) that the Claimants be authorised to distribute up to £25,000 to beneficiaries in dire financial need as deemed appropriate by the Claimants; and(5) that the Estate may use the money currently held subject to an undertaking to the Doctors Healthcare Company Limited ("DHCL") in order to discharge the above fees.[2]The application arises in the following circumstances. Bashorun MoshoodKasimawoOlawale Abiola ("Chief Abiola") died on 7 July 1998. Chief Abiola was a well known and respected Nigerian. At one time he was widely considered to have been Africa’s wealthiest man. He ran and owned Concord which was Nigeria’s largest media company. In 1993 Presidential elections took place in Nigeria. Chief Abiola stood as a presidential candidate, but before the results were announced General Babangida annulled the results and announced that he would not be handing over power to a democratically elected regime. Chief Abiola funded his own election campaign and the Claimants’ evidence is that it is believed that the large majority of any cash that he had accumulated during his life was spent on the election.[3]In late 1993, General Abacha seized power in a military coup and deposed General Babangida. Chief Abiola continued to protest that he had won the general election and therefore was the democratically elected president of Nigeria. General Abacha ordered that Chief Abiola should be arrested and he was incarcerated until his death on 7 July 1998. The Claimants’ evidence is that whilst Chief Abiola was incarcerated his business empire crumbled and the value of his assets was greatly reduced.[4]The Claimants believe that the last Will and Testament of Chief Abiola is a Will dated 25 October 1989 ("the 1989 Will"). The 1989 Will contains specific legacies amounting to £2,195,000 and provision for a trust out of the residue for his numerous children. The death of Chief Abiola and the distribution of his Estate and the value of it has been the subject of widespread publicity in Nigeria and around the world. Chief Abiola had many wives and many children.[5]The 1989 Will appointed National Westminster Bank plc to be the Executor and Trustee of Chief Abiola’s Estate. By form of renunciation dated 8 January 1999, National Westminster Bank renounced probate of the 1989 Will. Following this renunciation the 1989 Will was lodged with the District Probate Registry in Winchester on 27 April 2000 in order that four of Chief Abiola’s sons could be granted probate.[6]On 2 May 2000 a caveat was entered by Princess Zainab ("the First Defendant"), one of Chief Abiola’s wives. The caveat was warned by the four children. The First Defendant claimed that the 1989 Will was a forgery. Those proceedings were heard on 4 August 2000, and District Judge Conn decided that the application was misconceived, and that there was nothing before the court to indicate that the 1989 Will was a forgery. Her application was dismissed. She was granted permission to appeal, but when her appeal was heard on 19 January 2001 it was dismissed. She applied to the Court of Appeal for permission to appeal from this decision, which was refused on 27 July 2001.[7]Dr Gloria Abiola (the mother of certain beneficiaries) lodged a caveat, opposing the grant to the four children, and they agreed that independent administrators along with a family member should be appointed: namely Mr Tim Daniel (then of DJ Freeman & Co, now Kendall Freeman), Mr Adam Broke (a chartered accountant) and Mr Abdul Lateef Kolawole Olatokumbo Abiola (the eldest son of Chief Abiola), act as administrators to the Estate. They were appointed Administrators by an Order made by District Judge Bowman on 1 August 2001.[8]On 17 September 2001 a Grant of Administration with no will annexed was issued by the Cardiff District Registry on the application of the First Defendant. Notwithstanding the fact that she had recently contested proceedings which had found the 1989 Will to be valid, she claimed that Chief Abiola had died intestate.[9]Following a hearing on 13 November 2001, District Judge Bowman revoked the First Defendant’s Grant of Administration on the grounds that Chief Abiola had clearly not died intestate.[10]At a further hearing on 29 November 2001, District Judge Bowman directed that the Principal Probate Registry grant Letters of Administration to the Administrators. A Grant of Administration dated 30 November 2001 was subsequently sealed.[11]On 28 November 2001, the day before that application was heard, a further will and codicil dated 7 June 1994 and 9 June 1994 respectively ("the 1994 Will") were lodged with the District Probate Registry in Oxford by the Second Defendant.[12]Although on 4 December 2001 solicitors for the Second Defendant stated that they would be issuing proceedings to seek revocation of the Grant of Administration on the 1989 Will on the basis of the 1994 Will, no such proceedings were ever commenced to revoke the Grant of Administration.[13]On 11 February 2002 District Judge Bowman ordered that the 1989 Will and the 1994 Will be released from the Principal Probate Registry to a handwriting expert for handwriting analysis.[14]The Second Defendant and the Claimants agreed on Phillippa Lavell being appointed as the joint handwriting expert and agreed upon her instructions, and she reported (and also in a subsequent report) that the 1989 Will was probably genuine and that the 1994 Will was probably a forgery. The First Defendant has produced a report from another expert concluding that the 1989 Will is a forgery.[15]These proceedings were issued by the Claimants on 12 December 2002, by a claim form asking the court to pronounce for the validity of the 1989 Will and against the 1994 Will on the ground that it is a forgery. Proceedings were commenced against the First Defendant because she was the residuary legatee under the 1994 Will and was not a beneficiary under the 1989 Will and because she had made several previous attempts to obtain a grant and to challenge the validity of the 1989 Will. The proceedings were commenced against the Second Defendant because although he had indicated a desire to renounce probate he was the executor named in the 1994 Will and had lodged the 1994 Will at the Oxford Probate Registry.[16]On 3 February 2003 the Second Defendant filed an acknowledgment of service indicating an intention not to defend the claim. On February 18, 2003 the First Defendant filed a defence and counterclaim in which she asserted (inter alia) the genuineness of the 1994 Will. There is to be a directions hearing next week in the proceedings.[17]The Claimants’ solicitors say that substantial fees have been incurred in ensuring that the proper process of probate is not disrupted. They have had to deal with almost daily requests from family members to distribute money to them, many of whom are in dire need and to provide other forms of assistance to them in the form of letters to schools, colleges etc.[18]To date the Claimants have collected in some assets of the Estate as cash. Of this cash only £11,268 remains unencumbered. Monies have been distributed to family members who are in need or to pay disbursements that have been incurred on behalf of the Estate.[19]The single largest cash asset of the Estate is monies that have been transferred to the Estate but which are held subject to an undertaking. These monies relate to shares in DHCL which were owned by Chief Abiola and were subsequently sold on his behalf by DHCL realising the sum of £666,538. The Claimants approached DHCL to transfer these monies to them but because of the dispute surrounding the validity of the 1994 Will, but DHCL would not transfer the monies to the Claimants unless the following undertaken was given:
"We understand that your clients, DHCL and Roadhaven Limited hold certain monies to which the Estate of Chief M K O Abiola (Deceased) is entitled by virtue of his formerly being a shareholder of the Doctors Laboratory Limited and DHCL respectively. Upon being transferred to us we undertake to hold such monies in our client account to your client’s order."
[20]The monies cannot therefore be used by the Claimants for the purposes of administering the Estate or making distributions without the permission of DHCL. DHCL’s position is that it does not believe that they would have the necessary good faith to be afforded the protection granted by section 27(2) of the Administration of Estates Act 1925 and therefore may be held personally responsible for any distribution made by the Estate.

Holman Fenwick & Willan’s legal fees

[21]The Claimants’ evidence is that Chief Abiola purchased in Nigeria two Oil Prospecting Licences (OPL’s): these were held by a company called Summit Oil. His shares in Summit Oil have passed to the Estate. Chief Abiola purchased the OPLs but due to his incarceration was unable to carry forward the development work required. In Nigeria once OPL’s have been purchased the proprietors have a certain period of time to dig three oil wells on each OPL and to demonstrate to the Nigerian National Petroleum Corporation (NNPC) that oil is present in the wells. Once this has been established, the OPL’s are converted by the NNPC to Oil Mining Licences (OML’s) and oil production can commence.[22]The Claimants hope that the OPL’s can be converted into OML’s and that the revenue generated by them can be used to meet the specific legacies and to set up the residuary trust. Without this it is believed that the value of the Estate is unlikely to exceed £500,000, which is far below the specific legacies. Unfortunately, due to the deterioration in the state of the wealth of Chief Abiola’s family they are unable to carry out the work required without involvement and investment from third parties.[23]Summit Oil has entered into negotiations with third parties to enable the work to take place. Mr J Tooker, a solicitor and oil and gas specialist at Holman Fenwick & Willan has represented and continues to represent Summit Oil in these negotiations. Unless Summit Oil is able to negotiate a deal with a third party to enable the OPL’s to be converted into OMLs, no revenue will be produced. Unless these negotiations are completed within the next couple of months it is unlikely that the OPLs will be able to be converted into OMLs. It is therefore vitally important for the Estate that Mr J Tooker is able to commence work immediately for Summit Oil. The principals of Summit Oil are in the UK this week and had hoped to be able to commence work with Mr Tooker, if his fees can not be paid the work cannot begin.[24]The Estate is not currently in a position to be able to meet the legal fees of Holman Fenwick & Willan. The fees outstanding are currently £5,734.31 and it is estimated that the further work would cost £25,000. The Estate would be able to meet these fees out of the monies currently subject to the undertaking given to DHCL. The Claimants seek permission to discharge the outstanding invoices and to satisfy the reasonable future invoices of Holman Fenwick & Willan up to a value of £25,000 from the monies received from DHCL and which are currently subject to the undertaking referred to above.[25]The Claimants say that these firms should be paid for the considerable work done, and ask that permission be given to draw down future sums, up to a maximum of £50,000 in order to meet future fees and disbursements incurred by the Claimants, including the costs of the forthcoming action to establish the validity of the 1989 Will.

Payments to beneficiaries

[26]The Claimants also say that the beneficiaries under the 1989 Will of Chief Abiola are currently suffering severe financial hardship as a result of the length of time it is taking to administer the Estate. They ask the court for permission for a sum of £25,000 to be released to the Claimants in order for them to be able to make distributions to family members who are in immediate need. In order to protect the position of other beneficiaries, they propose that no distributions should be made to any family member which would exceed that to which they would be entitled to under the 1994 Will, which would ensure that if the 1994 Will is found to be the valid no beneficiary would have received any more than his or her entitlement under the 1994 Will.

The First Defendant’s position

[27]The First Defendant’s response to this application is to raise a number of issues, which relate not to this application, but to the main proceedings, including her contention that the court has no jurisdiction to determine the validity of the 1994 Will (although I do not understand the basis for this contention), and she asks the court to strike out the matter, or alternatively to appoint new administrators.[28]On the specific applications, she says(a) the £666,538 in the possession of DHCL is not an asset of the estate because it represents the proceeds of shares which Chief Abiola agreed to transfer to her as a gift during her lifetime;(b) The Third Claimant should pay the fees in connection with Summit Oil;(c) it is inequitable for the fees of DJ Freeman & Co (or Kendall Freeman) to be paid while the proceedings are still pending; but(d) all professionals whose services were employed since the death of Chief Abiola will be remunerated under the 1994 Will. She produced at the hearing today a document purporting to show that Chief Abiola had agreed to transfer the shares in DHCL to her as a lifetime gift.

The issues

[29]The issues have somewhat narrowed in the course of the hearing today since the Claimants accept that any order I make should be limited to ensuring that what is permitted by the court is substantially limited to payments which would benefit the Estate whichever Will is the controlling one. They therefore do not press the application with regard to the payments to beneficiaries (which they will deal with by application to the Master as may be necessary), or to professional fees incurred in relation to the disputes which have arisen, except in so far as they are already covered by costs orders such as the orders of 1 August 2001 and 29 November 2001.[30]It is obvious that the court should do its best to ensure that all steps which are necessary for the preservation of the estate pending resolution of the dispute should be taken, and that payments which are due for services which were rendered for that purpose should be made.[31]The only serious question is the procedure by which that policy can be given effect. A common form grant has been obtained by the Claimants. If they fail in the probate action, then the court will revoke it as from judgment, but it remains valid pending the conclusion of those proceedings. The commencement of the probate action did not of itself revoke the grant, and if the Claimants fail in the probate action, the grant will not be void ab initio: cf Hewson v Shelley [1914] 2 Ch 13 (C.A.). The grant is still valid, although pursuant to CPR 57.6(2) it has been lodged with the court. Lodgement does not affect its validity, and it is suggested in Tristram & Coote, p. 607, that a copy of the grant may issue with leave even before the probate action is concluded.[32]If there had been no common form grant, the Claimants could have sought a grant pending the determination of the probate action under section 117 of the Supreme Court Act 1981, which provides:
"Where any legal proceedings concerning the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, are pending, the High Court may grant administration of the estate of the deceased person in question to an administrator pending suit, who shall, subject to subsection (2), have all the rights, duties and powers of a general administrator."
[33]It would be wrong to make an order appointing administrators pending suit while there are validly appointed administrators in a case where there is strong evidence that only the 1989 Will is valid.[34]No injunction has been sought or obtained restraining the Claimants from acting, nor are there at present any grounds for believing that they have done anything other than act in the best interests of the Estate.[35]I will therefore direct that they are authorised to give a good receipt for the monies held by DHCL, and that they are authorised to make such payments from the Estate as have been ordered by the court to be so made, and any other payments which are properly made for the benefit of the Estate. I accept that if the First Defendant ultimately makes good her claim that the shares in DHCL were given to her by Chief Abiola as a lifetime gift, then part of the proceeds of sale will have been used for the benefit of the Estate. But nothing in this judgment is intended to preclude her from making a claim in relation to the proceeds of sale. If there is any doubt about any particular payments the Claimants should make an application, without notice, to the Master for directions.